University of the South Pacific
Island Courts were established in Vanuatu in the mid nineteen eighties to provide a forum for the resolution of customary law disputes. However, the island courts, where operational, have remained largely unused. This paper outlines some of the difficulties with the legal framework of the island courts that prevents them from successfully fulfilling their purpose.
Custom in the Constitution
The Republic of Vanuatu is ‘founded on traditional Melanesian values’.(1) Custom therefore continues to influence the legal system introduced by the French and British colonisers in pre-Independence times.
In respect of the laws of Vanuatu, the Constitution provides that:
Art 95 (1) Until otherwise provided by Parliament, all Joint Regulations and subsidiary legislation made thereunder in force immediately before the day of Independence shall continue in operation on and after that day as if they had been made in pursuance of the Constitution and shall be construed with such adaptions as may be necessary to bring them into conformity with the Constitution.
(2) Until otherwise provided by Parliament, the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom.
(3) Customary law shall continue to have effect as part of the law of the Republic of Vanuatu.
Although there is a general recognition of customary law, the only subject area in which the role of customary law is clearly defined is land law. ‘All land in the Republic of Vanuatu belongs to the indigenous custom owners…’,<small>(2)</small> and so ‘the rules of custom… form the basis of ownership and use of land in the Republic of Vanuatu.’<small>(3)</small>
Because of the status of customary land law, it is required by the Constitution that the government ‘shall arrange for appropriate customary institutions or procedures’<small>(4)</small> to deal with custom land disputes. In addition to the specific requirement that a dispute resolution system for land matters be set up, there is provision for the establishment of general custom courts. Parliament is required to ‘provide for the establishment of village or island courts with jurisdiction over customary and other matters and shall provide for the role of chiefs in such courts.’<small>(5)</small>
The Island Courts Act No 10 of 1983
In response to the Constitution, the Island Courts Act (Chap 167) (ICA) was passed in 1983. In early 1984 the first island courts were established, and currently 8 warrants establishing island courts have been issued.<small>(6)</small>
The ICA envisages the establishment of courts that will deal with customary matters. Section 10 provides that:
Subject to the provisions of this Act an island court shall administer the customary law prevailing within the territorial jurisdiction of the court so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order.
Justices in the island courts are laypeople. They must be knowledgeable in custom, and at least one of them must be a custom chief from within the territorial jurisdiction of the court.<small>(7)</small> In all matters other than land matters, disputes are heard by 3 justices sitting together,<small>(8)</small> and at least 3 justices must be appointed to each island court.<small>(9)</small>
A magistrate (who does not necessarily have any legal training) is appointed as supervising magistrate for each island court.<small>(10)</small> The ICA gives the supervising magistrate the power of revision over all cases other than land cases.<small>(11)</small> All land matters are heard by the magistrate plus 3 justices.<small>(12)</small> It appears that these justices are only advisory, as their role is to give assistance to the Magistrate.<small>(13)</small>
The jurisdiction of each court is determined by its particular warrant, although no island court can deal with civil claims (other than land claims) of more than 50,000 vatu, or impose criminal sanctions of more than a 24,000 vatu fine or 6 months imprisonment.<small>(14)</small>
In hearing claims the courts are not bound by formal rules of evidence<small>(15)</small> and lawyers are not allowed to participate in island court hearings.<small>(16)</small>
Appeals against decisions of an island court can be made to the Magistrates Court, other than in land matters. Land matters are appealed directly to the Supreme Court.<small>(17)</small>
However, despite the fact that these courts have been established with the intention of providing appropriate procedures for the settlement of customary matters, they have come under increasing criticism for failing to do so.
The most obvious problem is the fact that many of these courts exist in name and warrant only. Adequate funding and personnel are lacking, so most island courts are mere fictions. Those that do operate tend to do so sporadically, resulting in large delays for complainants.
Such operational difficulties indicate administrative problems and do not suggest difficulties with the nature of the structure itself. As such, criticisms of the lack of funding for island courts do not touch upon the more significant underlying difficulties in areas such as:
the jurisdiction of the courts, both legal and territorial;
the role of the adjudicators;
the remedies that island courts are permitted to order;
the procedures used for hearing claims; and
the appeal structure.
The Island Court Act echoes the Constitution in emphasising that island courts are to be legally recognised courts that administer custom law.
Although s 10 of the ICA subordinates custom to written law, customary law clearly seems to be the central subject matter that island courts are being established to deal with. Although this general jurisdiction is stated in the ICA, the specific jurisdiction of each court is defined in the warrant that establishes the particular island court.<small>(18)</small>
The Efate Island Court warrant,<small>(19)</small> which is typical, provides the following jurisdiction over criminal and civil matters:
Warrant Establishing the Efate Island Court
Criminal Jurisdiction: Penal Code
S 88 insult to religion
S 89 disturbing a religious assembly
S 97A adultery
S 107(a) assault
S 121 abusive and threatening language
S 125(a) theft (value of stolen object 24,000 vatu or less)
S 126(b) unlawful use of another's property (value of property so used 24,000 vatu or less)
S 131 receiving property dishonestly obtained
S 133 malicious damage to property (object damaged is worth 24,000 vatu or less)
S 136 maltreatment to animals, birds or fish
S 144 criminal trespass
S 148 idle and disorderly
S 151 witchcraft
Criminal Jurisdiction: Offences against Joint Regulations
Cattle Trespass Reg No 3 of 1941
Joint Reg No 4 of 1962, ss 19, 33 A, 37, 38
Joint Arms and Ammunition Reg No 5 of 1963
Joint Maintenance of Family Reg No 5 of 1966
Joint Maintenance of Children Reg No 13 of 1966
Joint Punishment of Trespass Reg No 27 of 1966
Joint Taxis Reg No 36 of 1966
Joint Liquor Licensing Reg No 18 of 1968
Joint Consumption of Supply of Liquor Reg No 10 of 1966
All criminal sentences are limited to 24,000 vatu fine or 6 months in prison
Disputes concerning ownership of land irrespective of value of land
Claims in tort and contract, not exceeding 50,000
Claims under Efate regional laws where the value of the claim does not exceed 50,000 vatu
Applications for maintenance made under the Joint Maintenance of Children Reg No 13 of 1966
From this it can be seen that the warranted jurisdiction of the island court, other than in the area of land, does not actually involve any general or specific custom law jurisdiction. Rather the warrants indicate that the focus of the courts’ jurisdiction minor introduced law matters. Indeed, the quick, informal dispensing of criminal law is the area where it is commonly thought that the island courts are most successful.<small>(20)</small>
Arguably, the ICA itself still allows for a general custom law jurisdiction as s 1(1) of the ICA states that the courts "shall exercise within such limits as may be defined by such warrant the jurisdiction therein defined and such jurisdiction as may be conferred by this or any other Act on island courts generally." However, in practice island court clerks do not accept matters that fall outside of the specific jurisdiction of the warrant. The unclear wording of s 1(1) and the seemingly exhaustive nature of the island court warrants themselves mean that the island courts are not recognised as having a general custom law jurisdiction.
In applying the introduced law custom still has a small role to play. In criminal matters the courts are meant to encourage reconciliation or amicable settlement,<small>(21)</small> and must take any additional custom sentence into account when deciding the Island Court’s penalty for the matter.<small>(22)</small> As in the higher courts, custom remains supplementary to ‘law’, which is solely defined by introduced rules, rather than being recognised as creating normative behavioural standards in itself.
In civil matters no equivalent provision for the consideration of custom is made. This indicates that, at least in civil law matters involving written law, custom does not even have a supplementary role to play.
However, as with the operational difficulties, simply amending the island court warrants to provide for a general custom law jurisdiction is not in itself adequate to answer all of the criticisms of the island court structure. The other difficulties mean that it is still questionable whether the nature of the system and the procedures used are themselves an appropriate forum for the settling of customary disputes.
Vanuatu is very ethnically diverse, with approximately 108 distinct linguistic and cultural groups.<small>(23)</small> Although there may be many similarities in the custom law of different cultural groups, with such cultural diversity there is no such thing as a single custom law that applies to all of Vanuatu.
None of the island courts has such limited territory that it has jurisdiction over only one ethnicity or a homogenous body of custom law. This means that some forms of custom have the potential to be preferred over other forms of custom, depending upon affiliations of the justices. Even without any deliberate biases, claims will not necessarily be heard by a justice that has been brought up under the same custom law as the complainant. Preference may therefore be given to certain areas customs, and jealousies arise because of this.<small>(24)</small> No system of determining preference amongst competing customs is provided.
The technicalities of determining a court's jurisdiction can also mean that island courts hear claims relating to people from completely different island groups.
In general, island courts have jurisdiction to hear disputes in which ‘all the parties are resident or being within the territorial jurisdiction of the court.’<small>(25)</small> In criminal matters the court can hear matters involving an accused that committed any part of the offence within the jurisdiction.<small>(26)</small> In civil matters, if the plaintiff and defendant live in different territories, then the matter shall get heard in the court in whose territory the defendant is ordinarily resident.<small>(27)</small> If the subject matter of the dispute extends across 2 jurisdictions a joint court will be set up.<small>(28)</small> Land matters shall be heard by the court(s) in whose territory the land is situated.<small>(29)</small>
A person may therefore be judged by justices who operate under customary norms that they are not familiar with.
As well as the potential for bias towards particular customs, depending upon where the adjudicators come from, there is a perceived lack of faith in the decisions of the island court because the adjudicators are seen as being ‘outsiders’.<small>(30)</small> This problem is reinforced by the ICA, which disqualifies justices from hearing proceedings in which they have any personal interest or bias.<small>(31)</small> Resolution in custom involves a more holistic consideration of matters, so having an adjudicator who is personally aware of the situation tends to be considered to be appropriate to custom resolutions. The statutory disqualification of personally interested justices therefore indicates a lack of commitment to customary methods of resolving disputes.
Given that the jurisdiction of the island courts is predominantly minor introduced law matters, the lack of training of justices also raises difficulties. There is no requirement that justices receive any training at all in the law. Rather, their only required qualification is that they be knowledgeable in custom.<small>(32)</small>
Although the level of training of adjudicators in Magistrates Courts in Vanuatu is also an issue, at least Magistrates are centralised, and lawyers can be used in proceedings to ensure that Magistrates apply the law correctly.
In the Island Courts lawyers are not allowed to participate,<small>(33)</small> so this potential check is lost. Because the courts are themselves geographically remote individuals are a lot less likely to be able to access government departments, libraries or other people knowledgeable in the law that can help them to ensure that the law is correctly applied.
The remedies that the island courts can order are foreign concepts that may not be recognised as appropriate customary ‘remedies’.
In civil proceedings, the island courts can make the following orders:<small>(34)</small>
- An order for payment of money by way of compensation, costs or otherwise
- An order for restitution of property
- An order authorising the use or occupation of land
- An order prohibiting the use or occupation of land
- An order restraining a party from interference with authorising use and occupation of land
In criminal proceedings the court can order:<small>(35)</small>
This fine, or a part of it, may be paid to the injured party, instead of being paid to the court, if the court so orders.<small>(36)</small> This fine need not be in money, but can be in goods to the equivalent money value of the fine.<small>(37)</small> As an alternative to imprisonment, if the sentence is for 2 months or less, the court can order community work.<small>(38)</small>
There is no general power to make legally recognisable orders of ‘custom remedies’, such as the performance of a custom reconciliation ceremony, or the giving of pigs or other customarily significant objects to the complainants entire family.
Further, some remedies created by legislation, such as imprisonment, are completely foreign to custom.
Although, at the moment the island courts do not have the jurisdiction to adjudge customary matters, in the event that a general customary jurisdiction were allowed under an island court’s warrant, the limitation on the nature of remedies that can be ordered would hinder the effective use of this wider jurisdiction. It also means that disputes involving the introduced laws, which provide recognisable rights and obligations, cannot be resolved using custom methods, thereby missing a possible chance for synthesis of the two systems.
It was envisaged that the island courts would have simple rules of procedure. Whatever procedural rules exist, they should not be so technical as to be unusable by laypeople, or so rigid as to prevent the effective use of custom.
However, the actual rules of procedure that have been passed are excessively formalistic and create barriers to the effective use of the courts and appreciation of custom methods of doing things within the court process.
Although the formal rules of evidence have no place in an island court<small>(39)</small> this is the only major concession to informality. Both the civil and criminal procedure rules largely adopt the procedures of the higher, introduced courts.
Civil hearings begin with the filing of a written statement of claim<small>(40)</small> which is then served on the defendant.<small>(41)</small> Should the defendant wish to counterclaim she must file a notice of counterclaim at least four days before the hearing.<small>(42)</small>
Before the hearing the court can take a more interrogative role and settle the issues between the parties.<small>(43)</small> The actual hearing proceeds as would a hearing in the Magistrates Court, with the plaintiff stating her case, the defendant responding, the plaintiff calling evidence, the defendant crossexamining witnesses and so on.
If the defendant produces no evidence, the plaintiff sums up, then the defendant states her defence. If, on the other hand, the defendant does produce evidence, the plaintiff sums up after the defendants evidence has been adduced and defendant has summed up her case.<small>(44)</small>
This procedure is adversarial, and very much based upon the procedure to be found in introduced courts. It does not allow for discussion or mediation, and requires the dispute to be reduced down to legally recognisable issues that, by their very nature, are unable to be holistic. It is also very complicated.
The only significant difference in the procedure found in the Island Courts (Civil Procedure) Rules 1984 is that the court must visit any land in dispute before reaching a decision.<small>(45)</small> In addition, notice of land claims must be made publicly, by placing notices on the land in dispute and in other appropriate places.<small>(46)</small>
The Island Courts (Criminal Procedure) Rules 1984 are similarly formalistic.
The procedure begins after a police officer, having investigated a complaint, believes an offence to be committed. A charge goes to the clerk of the island court who then causes a summons to be served on the accused.
Again the proceedings in court mirror the Magistrates Court. The accused is required to plead. If she pleads not guilty then a full hearing occurs with the prosecution commencing, followed by the defence.
Although the court is required to encourage amicable settlement<small>(47)</small> nothing in the procedural rules indicate that anything more than an adversarial approach to the hearing should be taken. The fact that the court is required to take any custom penalty into account when assessing the sentence<small>(48)</small> indicates that, rather than integrating custom into the island court custom settlements will in fact take place in addition to, and outside of, the island court process.
A further difficulty with the use of island courts as a ‘grassroots criminal court’ is that the defendant may not be afforded a fair hearing in accordance with the provisions of the Constitution.<small>(49)</small> The police prosecute the case and, although the prosecutor will not be a lawyer, she will have familiarity with the law. On the other hand, the accused is not permitted to use a lawyer, and so is at a disadvantage. Issues of fairness also arise in the concept of having non legally trained justices deciding matters of introduced criminal law.
Decisions of island courts can be appealed directly to the Supreme Court in land matters, and to the Magistrates Court in other matters.<small>(50)</small> Although the court hearing the appeal shall appoint at least 2 assessors knowledgeable in custom to assist it,<small>(51)</small> these assessors do not have any decision making power.<small>(52)</small>
The custom courts are therefore not provided with ‘separate but equal’ status, but are incorporated into the introduced court system at the very lowest level.
Despite the Constitutional requirements that an adequate procedure for the resolution of custom disputes be established, Vanuatu still does not seem to have achieved this goal. Rather, the Island Courts Act, whilst it purports to provide a suitable mechanism for the resolution of customary disputes appears in large to be a decentralised, less formal, Magistrates Court type system.
Even if the operational difficulties were resolved through adequate funding and staffing, and the legal jurisdiction of the courts were extended to include a wider customary law jurisdiction, the structure itself would still be inadequate to provide an appropriate forum for the resolution of customary disputes.
If the words of the Constitution are to be honoured, the island court structure, and in particular its procedural aspects, must be reexamined.
1. Preamble of The Constitution of the Republic of Vanuatu
2. n 1, Article 73
3. n 1, Article 75
4. n 1, Article 78(2)
5. n 1 Article 52
6. The island courts that have been warranted are: Efate Island Court, Tongoa Island Court, Santo/Malo Island Court, Malakula Island Court, Banks/Torres Island Court, North Ambae Island Court, West Ambae Island Court, Tanna Island Court. (From an Order Appointing Supervising Magistrates 30 Aug 1994, Vanuatu Gazette 23 1994)
7. s 3(1) Island Courts Act (Chap 167) All references to sections within this paper, unless stated otherwise, are to the Island Courts Act (Chap 167)
8. s 3(4)(b)
9. s 3(1)
10. s 2(1)
11. s 21
12. s 3(4)(a)
13. The Island Courts (Powers of Magistrates) Order No. 1 of 1990 Vanuatu Gazette No 1 1990
14. ss 11 & 12
15. s 25
16. s 27
17. s 22(1)
18. s 1(1)
19. 30 April 1984
20. Weisbrot, D. "Custom, Pluralism, and Realism in Vanuatu: Legal Development and the Role of Customary Law" (1989) 13:1 Pacific Studies 65, at 81
21. Island Courts (Criminal Procedure) Rules 1984, r 20
22. Island Courts (Crim Proc) Rules 1984, r 26
23. As well as being ethnically diverse Vanuatu is geographically diverse. It is a collection of 80 islands, of which 12 are considered to be major. Although there are about 108 different ethnic groups, some of these are very small. The last census placed the population at only 142,630. Whyte (ed) Vanuatu: 10 Yia Blong Independens Other People Publications, Australia, 1990, chap 2
24. n 9, at 80
25. s 6
26. s 7
27. s 8
28. s 9(1)
29. s 8
30. Indicative of this is the fact that almost all land cases get appealed to the Supreme Court. (n 9, at 81) In a personal communication with Sarah Hardy Pickering the Acting Chief Justice stated that 100% of land cases are currently being appealed.
31. s 26. Given the nature of traditional Vanuatu society, which includes very strong kinship obligations, it would be almost impossible to have a justice from the same cultural group without a personal interest in matters involving someone sharing his/her customs.
32. s 3(1)
33. s 27
34. s 13
35. s 11
36. s 17
37. s 15(a)
38. s 16(1)
39. s 25
40. IC (Civ Proc) Rules, O 6 rr 1 & 2
41. IC (Civ Proc) Rules, O 6 r 7
42. IC (Civ Proc) Rules, O 13 r 2(1)
43. IC (Civ Proc) Rules, O 13 r 1
44. IC (Civ Proc) Rules O 18
45. IC (Civ Proc) Rules O 18 r 9
46. IC (Civ Proc) Rules O 6 r 8
47. IC (Crim Proc) Rules r 20
48. IC (Crim Proc) Rules r 26
49. n 1 Art 5(2) provides for ‘standard’ human rights protections relating to fair criminal process
50. s 22(1)
51. s 22(2)
52. s 14(1) Courts Act (Cap 122)