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Customary Law in the Pacific: An Endangered Species?1

Kenneth Brown

INTRODUCTION

‘True ‘tribal law’ is probably dead everywhere.’2

As we approach the close of a century in which colonialism was entrenched and then dismantled in the Pacific, it is opportune to take stock of the present status of customary law in the region. The pacification of the islands, almost complete at the dawn of the century, was accompanied by a common perception that depopulation trends in the early part of the century rendered any consideration of customary law of academic and historical value only. It was considered that indigenous islanders would be extinct before the century was half over.3

This conviction combined with the attitude that the colonial legal model was superior resulted in a policy towards customary law that was casual and perfunctory. It was accorded a measure of recognition in relation to customary land early in the century but only then after administrative attempts to acquire and alienate such land in the interests of revenue raising and meeting the demands of commercial lobbies.4 Certainly customary law could never be allowed to interfere with the imperative of the maintenance of law and order. It was to be restricted to governing matters of personal law only.5

The colonial authorities subordination of customary law produced powerful demands at independence directed towards the integration of customary law into the body legal. The aspiration was to promote genuine legal pluralism rather than a stratified dualism with one source dominant and the other subservient. In the new order customary law was to be a primary source of law.

This article will examine the extent to which this goal has been attained and suggest methods of safeguarding the survival of customary law as a viable legal source in the next century. Searching questions the article will endeavour to resolve are:

Can regional jurisdictions develop a distinctive indigenous common law and jurisprudence by blending received law with customary rules?6

Can customary law be adapted so as to remain relevant in and suited to an increasingly technology-driven, globalised world?

Is customary law flexible enough to meet modern norms on human rights, particularly gender equality?

If customary law, a regime suited to small-scale groupings, cannot adjust to interdependent internationalism, is a policy of isolating customary law the only method of safeguarding its survival?

 

EVOLUTION OF AN INDIGENOUS COMMON LAW IN THE POST-INDEPENDENCE ERA

Champions of customary law have little to celebrate in its maturation as a source of law in the Pacific. Any progress to synthesize it into the legal domain is still in its infancy. Reasons for this disappointment are not too difficult to isolate.7

Legal training

The judiciaries of most Pacific jurisdictions have until recently been expatriate-dominated. Even local judicial officers are trained in the common law paradigm and this instruction remains influential. Advocates too, whether expatriate or islanders, have been immured in common law conditioning and have had no inclination or incentive to advance the principles and ideology of custom.

Expatriate judicial attitudes are illustrated by the observations of the former Chief Justice of Vanuatu Justice Vaudin d’Imecourt in Willie Assal and Chief Francis Assal v Chief Pierre Vatu, the Council of Chiefs of Santo and Santo Regional Council.8 Having commented9 that, ‘There can be nothing more ‘Custom’ than the nangol jump’ his Lordship then proceeded to marginalise and denigrate custom by initially commenting10: ‘…this is not a custom court but a court of law’ and then continuing:

As far as Nagol11 jumping is concerned, there is no 'rule of law' that is ‘applicable’ to it. … Since there is no rule of law governing the matter, I must have recourse to section 47(1) of the constitution, I shall have to determine the matter according to ‘substantial justice’ and, if at all possible, in conformity with custom.12

The approach that a rule of law13 was to be primarily applicable underscores the patronising posture towards custom. It is curious that the conclusion that customary law stood as applicable was only arrived at after a quest for an alternative legal rule to resolve the dispute proved fruitless. This relegation of customary law to a source of last resort is perhaps the extreme view but is indicative of a substantial spectrum of judicial approach.

 

The perceived nature of customary law

Conceptually, customary law is fundamentally viewed by those in authority as formless, without structure and unfitted to the needs of the modern nation state. The latter requires a centralised, established regime that imported models are well equipped to provide. This theoretical divide forms a momentous barrier to the integration of state and customary law.14

An added problem is that customary law is not only unwritten and hence difficult to ascertain but also is diffuse and diverse. Business in the developing colonies required predictability and certainty from the legal system and customary models were deemed unable to offer this. As a result counsel and judiciary favoured the easy option and apply the certain tried model. This reasoning has continued after decolonisation.15 There is the additional imperative that where the parties adhere to different customary regimes or one party has no customary regime but the other has that it is simpler to prefer the received model that presents no choice of law problems. Although the prevailing theory is that customary law is inherently diverse there are influential contentions that it has striking universal features. One instance is brideprice payments on marriage, which are widespread in Africa, the Pacific and Indonesia.16

This treading of the uncomplicated path flunks the challenge inherent in incorporating customary law into the legal body politic. If, as Allott and Ojwang assert,17 customary laws do become more alike there is at least the possibility of developing an indigenous common law in each regional jurisdiction. This will necessitate the careful and painstaking collection of customary laws and practice and ascertaining if common strands and principles can be distilled from the gathered material. This is likely to be a time consuming and expensive process and it is doubted if the commitment or economic resources are available to support it.

Is it feasible to develop a regional jurisprudence? It seems impracticable but the advantages are obvious; easier training of legal personnel; less expensive appellate courts; faster exchange of information; and in a region where resources are limited the pooling and sharing of facilities will enhance economic efficiency. Less tangible but no less valuable benefits should be increased regional self-respect and confidence. Moreover, regional cooperation is a weighty factor in assisting adjustment to the demands of globalisation.

Any effort in this direction will require the abandonment of parochialism both at a local and regional level and a concerted effort from academics, politicians, the judiciary and legal profession. The enterprise will necessarily be a long-term one, involving prudent, fundamental research, firstly in each jurisdiction, and then inter-regionally.

 

Lack of political commitment

Customary law has perhaps fared worst from a lack of political will promoting its vigorous implementation.18 Most Pacific jurisdictions have constitutions that provide for the application of customary law.19 The extent to which they do so varies.20 Arguably the Constitution of Vanuatu is the most forceful in its advocacy of custom and yet judicial interpretation there has whittled down its status as a source of law there. This may change with a new Chief Justice, Acting Justice Lunabek, who is a powerful champion of custom: witness the comments in his judgement as Senior Magistrate in Waiwo-v-Waiwo and Banga.21 Some jurisdictions where the place of customary law in the hierarchy is not constitutionally established have passed legislation providing for its recognition.22

Papua New Guinea’s Customs Recognition Act23 is hedged with restrictions. It contains the local version of the ubiquitous ‘repugnancy’ proviso. A recent instance of the application of the proviso is afforded by Ubek-v-Darius24 where the court found that an alleged custom that a father was entitled to the custody of a child of a de facto union where no bride price had been paid ‘repugnant’. The Act was conservatively interpreted particularly in the years immediately following independence.

The Constitution of Solomon Islands25 mandates Parliament to legislate for customary issues but the legislature has, with limited exceptions,26 neglected this duty. The legislature in Vanuatu has also not pursued a radical policy. The Vanuatu Constitution empowers Parliament only to provide for the ascertainment of the rules of custom: not for its application.27

The enthusiasm for custom evident at the onset of independence has faded. There is a need for the executive to resurrect that zeal and rediscover increased commitment to the development of an appropriate local common law. This is crucial if any real progress is to be achieved.

 

THE ADAPTABILITY OF CUSTOMARY LAW TO THE MODERN WORLD.

Post-colonial Pacific politics have been driven by a quest for economic development. This has resulted in a perception that the law must have the capability of being an instrumental agent in contributing to this development.28

From this thesis it has been accepted that received law or locally enacted legislation based on received law models is the only channel equipped to support and accommodate modern economic expansion. Customary law is believed to be unqualified to do so. This leads to the inevitable sidelining of customary law.

There are also compelling grounds to consider that those in power have preferred the interests of the metropolitan elite and business combines to those of the traditional village dweller.29 Economic forces are potent and it has proved difficult to resist the persuasive allure of ‘progress.’ Long term social and environmental concerns have been subordinated to the rush to produce more export wealth.

The development of customary law has been largely disregarded in this process. As a result there has been little examination of whether or not customary law can accommodate modern economic demands.30 It is submitted that customary law principles are flexible and adaptable and therefore can be applied to situations and disputes that may not have arisen in pre-modern times.31

Urgent inquiry is long overdue into the ability of customary rules to fashion themselves to contemporary situations. There has been an underlying assumption that they cannot and that they operate to hinder commercial development.32

This paper advances no dogmatic claims that customary can adapt to all matrices. It faces a significant challenge not faced by the common law in its embryonic evolution. This is that the present pace of change is being propelled and accelerated at a momentum never encountered by the common law. This prevents orderly progress and the evolution of principles over a sensible and realistic time frame. This adds to the advantages33 enjoyed by the received law regimes and makes immediate attention to research even more compelling.

 

CUSTOMARY LAW AND HUMAN RIGHTS34

Traditional societies have no culture of individual rights.35 They maintain their structure and coherence through a culture of duties.36 Social groupings often consisted of little more than extended families whose members owed the unit duties of loyalty and contribution to its survival and in return received protection and support, both material and social.37 Customary groups had no tradition of rights for women. Women and children were both regarded as having the same measure of capacity: that is none. This lack of capacity was ubiquitous and extended to property, contract and judicial locus standi.38 The only formal benefit from this lack of status was that they possessed no delictual capacity. Such groups were rigidly patriarchal.

The advent of colonial administration did not disrupt this. In fact the British policy of indirect rule entrenched and institutionalised patriarchy as it only operated through male agencies, for example headmen in the Solomons and traditional chiefs in Fiji. This arguably fossilised patriarchy and prevented any move to a less rigid social structure. Consequently the rules and institutions became embedded as male-centered.39

The stark doctrines of patriarchy deprive women of autonomy. For example they are unable to occupy any position of authority or power; they cannot directly choose a marriage partner (or terminate a marriage once contracted); nor can they claim custody of their children or pursue redress for wrongs inflicted on them. Any power they possess is informal.40

Demonstrably patriarchy and its tenets are incompatible with contemporary values. Nevertheless customary societies in the Pacific remain steeped in its ideology. The Papua New Guinea case of In re Kepo Raramu and the Yowe Village Court41 graphically illustrates this contention. A widow had been imprisoned for associating with another man. Needless to say no comparable constraint applied to men. A National Court judge ordered her immediate release condemning the village court’s action as unconstitutional.

Several instances involving the kidnapping and unlawful imprisonment of women have come before the courts of Vanuatu. The facts as disclosed in the Public Prosecutor-v-Walter Kota and Ten Others42 strikingly illustrate what appears to be a persisting problem with the violation of female rights. Patriarchy seems all pervasive and extends to land tenure43 and the rules governing domestic relations.

The answers to the following questions addressed to each Pacific jurisdiction only serve to stress the dominance of the patriarchal ethos.44

  • How many women are local court justices?
  • How many judicial officers are women in the higher courts?
  • Are women proportionately represented in the corridors of power: politics, the law, business, bodies of social influence and the civil service?
  • Do the legal regimes accord adequate channels for women to claim relief from domestic violence; unrestricted rights to financial redress on marriage breakdown and equality of rights to succeed to, and claim family provision from, deceased estates?
  • Are unmarried women the victims of laws that discriminate against them?
  • Have women equal access to customary land rights and use?
  • Are females accorded equality of access to further education?

Pacific island jurisdictions confront the same dilemma on women’s issues they face on the evolution of customary law to rapidly changing economic models. They are expected to conform to the present United Nations Convention on women’s rights45 without delay and without regard to any social disruption this may produce.

Western societies from which modern norms emanate have been able to afford to tread an orderly and gradual pathway to the allocation of equal rights. Developing nations carry the burden and challenge of swift compliance. Most Pacific nations have a founding constitution. These invariably contain a chapter devoted to fundamental rights including a provision proscribing discrimination on the grounds of sex.46 Some jurisdictions have provided for customary law to be insulated from the non-discrimination code in matters of personal law.47

The protection of customary law from modern norms is a controversial issue.48 Advocates of a protective mantle maintain that family law is resistant to sudden change. They argue that any attempt to dismantle customary domestic institutions dramatically will not only prove fruitless but will result in the destruction of the cohesiveness that gives customary groups their undoubted stability. The contention is that rapid societal upheaval leaves in its wake profound dislocation.49 Those who support the insulation of customary law contend that any transition to contemporary standards must be gradual.

Two recent regional developments suggest movement towards a less protective attitude to custom. Firstly section 38 (8) of the 1997 Constitutional Amendment Act in Fiji modifies the provisions of section 16(3)(c) and (d) of the 1990 Constitution which sheltered custom generally from the sexual and other non-discrimination code. The new section allows restricted protection from the non-discrimination program for customary land tenure, fishing rights and the entitlement to chiefly rank or title but is far more limited in its ambit than its predecessor.

Secondly the landmark Vanuatu decision in Noel-v-Toto50 effectively outlawed as unconstitutional any precept or principle of custom that discriminated in its effect. This injunction was notable as it forbade any rule of customary land tenure that was discriminatory even though Article 74 of the Constitution itself decreed that, ‘The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu’.

Admittedly this decision is based on Article 6 of the Vanuatu Constitution which establishes a code of fundamental rights containing no qualifications or restrictions safeguarding custom. Nevertheless, regional law reform to improve the status and position of women is proper and inevitable. However, such reform will have little impact on social systems resistant to change unless accompanied by systematic education programs. Such programmes must be designed to spread awareness to women of new rights and to men of the need to accommodate such rights.

Moreover, studies in Africa confirm that that formal legal emancipation is sterile without social and economic self-sufficiency. Only those with a measure of independence are in a position to vindicate their rights.51 The mere endowment of rights by a constitution or other enactment is insufficient. As Bennett explains:52

It is necessary to remember that for many people the Constitution is an alien transplant, and without advance publicity, careful education, and a serious attempt to make legal forums more accessible, people at whom the fundamental rights were aimed will be in no position to act on them.

There is no reason to doubt the validly of these observations in a Pacific context. Radical dissemination of information is critical. Even if Pacific politicians, who remain predominantly male, acknowledge the imperative for an educative onslaught, paucity of means remains a potent limiting restraint.

 

COMMENTARY

If customary law is to remain significant and viable it faces immense challenges. It is battered by the demands of a technology-driven age and the escalation of calls for equality. Although resilient, it is formally ill equipped to adapt to these mandates. Customary law represents a powerful code of values ordering the quotidian existence of those living in customary groups and consequently is unlikely to be discarded lightly53. It has the capacity to adapt and in a modified form it will undoubtedly continue as the legal regime for many. The key question is whether this role will be performed in or out of the formal juristic order.

 

The cocooning of custom

Should customary law be kept separate to ensure its survival? Those who advocate a positive response premise their arguments on a conservative agenda. The contention is that customary law is not equipped to compete with the monolithic strength of introduced law systems and will be the inevitable loser in any circumstances where there is a choice between the systems. The counter to this standpoint is that the adoption of such a platform will probably result in customary law becoming a cultural curiosity preserved as an antique legal oddity and museum piece.54

In the colonial era customary law retained a separate identity. This was predicated on the supposition that it was a separate but subordinate legal model. The establishment of a distinct customary system had two unfortunate aspects. First, customary law was always regarded as the poor cousin and inferior to common law. This precept found lucid exemplification in the practice adopted in matters where choice of law issues arose. This was that although the received law would be applicable to indigenous islanders, customary law could generally never apply to the non-indigenous.55 The perception of customary law as subservient has proved difficult to reject and may be one reason why it has not been easy to develop an indigenous common law.

Secondly, the establishment of a distinct system of customary law administration leads to the promulgation of an ‘official’ version of customary law. It encourages the fossilisation of customary rules and practice and customary law thus develops the characteristics of the dominant regime with its emphasis on rules and precedents.

Attempts to institutionalise customary practice by codification tend to produce the same outcome and create a customary code steeped in a rule-centered paradigm. They also entrench regimes that are conservative and reflect the ideology of those who are consulted in their preparation. These are invariably men and since it is men who are also charged with the task of their administration and enforcement patriarchal norms become embedded in the ‘official’ version of traditional law.57

A retreat into insularity is defeatist. If customary law is to be marginalised by being observed and practiced only in its traditional heartland of land tenure and personal law then the profile it enjoys will be akin to that it had in the colonial era. Even this heartland is being invaded in the Solomon Islands as legislation on timber rights and wills and probate interferes with customary law on land tenure and succession.58

Inherent in the contention that customary law should be isolationist is the corollary that it must be restricted in application to disputes that have an undiluted unitary customary matrix. It cannot remain apart and simultaneously demand that it be applied outside its own chosen sphere of operation. This proposition has two consequences detrimental to the future of customary law other than as an archaic remnant. Primarily it excludes its application when any dispute raises choice of law issues. This is not limited to situations where a choice of law between custom and imported law is present but logically extends to exclude its operation where there is any clash of rules between two customary orders. Moreover the inexorable social shifts of inter-island migration, inter-custom marriage, urbanisation and the increased acquisition of individual personal property will reduce the incidence of conditions where the custom element remains ‘pure’ and consequently its influence will further decline.

 

 

Conclusions

And lastly there is no such thing as custom. Really custom is fading away. Most people are copying and imitating the western styles of tradition.59

The attraction of the contention that customary law should be kept separate is superficial and should be rejected as a way forward. Even if it is established as a ‘separate but equal’ regime the consequence of its adoption as such will be the evolution of a divisive form of legal apartheid. Those who disseminate this agenda represent the conservative elements in society, especially male elders, whose standing and prestige depend upon its continuation and maintenance.

Can customary law survive in direct competition to state and imported jural models? The answer is only positive if a fresh approach to customary law is adopted. This involves firstly the acceptance a dynamic view of both customary law and common law. Then notions that they are antithetical must be discarded. Both embody values for the proper ordering of society. From these premises a blueprint for the evolution of an indigenous jurisprudence can be designed.

The common law has been adapted and adopted throughout the world, attesting to its malleability.60 If those steeped in common law credentials accept this flexible characteristic of the common law then there is no impediment to synthesising customary law with the imported common law and creating an indigenous common law.61 Much of the belief that customary law is ill suited for the modern world stems from a perception of customary law as an inflexible, out-dated set of rules. This observation gains its credence from the ‘official’ established notion of customary practice that must be abandoned before any integrated local common law can mature. Customary law is dynamic and adapts to societal shifts.62

Whilst the establishment version of customary law is probably supported by the operation of indigenous grassroots courts throughout the Pacific and its ground rules are perceived as fixed, customary law in practice is probably evolving a more contemporary ethos. Customary practice is not unchanging and modification will often reflect the pace of social transformation. The practice on brideprice, a cardinal element of the formation of the traditional customary marriage, is probably undergoing transition due to increased education, urbanisation and the reluctance of a new generation, both male and female, to conform rigidly to its strictures.63

It is imperative for its development and integration that customary law is seen as a vital regime not a reactionary conservative code of practice. Paradoxically, is the living nature of custom, the most critical attribute for its survival, the characteristic that places it at a disadvantage in relation to the ‘official’ version as the constant flux inhibits any recording of the principles which may lead to its more ready recognition?

It is considered that the prognosis for customary law in the Pacific in the next century is mixed. Regardless of any programme of official intervention it will undoubtedly endure as the regulatory model for the many who accept and abide by its tenets and this will probably be unaffected by the lack of express endorsement. What remains problematic is its formal integration and acceptance as a source in the state system so that the creation of a local common law becomes an actuality.

This acceptance will only mature if far greater stress is placed on well-funded, meticulous and qualified research into the evolution of changing customary practice. This must be complimented and supported by generating awareness about the nature and practice of customary law to legislators and all those involved in the law and its administration. To achieve this goal it is critical that the relative complacency that has been such a distinctive feature of the post-colonial era is reversed. Otherwise the gloomy prediction cited at the commencement of this section might prove to be correct.

  1. Kenneth Brown is a former Magistrate and Public Solicitor of Solomon Islands and is presently a PhD candidate at Northern Territory University, Australia, researching customary law in the Solomon Islands and Vanuatu.
  2. Australian Law Reform Commission, Report on the Recognition of Aboriginal Customary Laws, Report 31, 1986, Submission 33, Strethlow TJH.
  3. Rivers W H, Essays on the Depopulation of Melanesia, 1922, Cambridge, is a valuable and scholarly insight into contemporary thought. Keesing F, The South Seas in a Modern World, 1975(reprint), Octagonal Press, New York 49-60, contains statistics graphically charting the dramatic nature of the population decline.
  4. For example, the notorious ‘Wasteland Regulation’: Kings Regulation No. 1 of 1904 (SI) effected a cynical ‘landgrab’. The basis on which land was considered ‘waste’ were flimsy: Bennett J, Wealth of the Solomons, 1987, University of Hawaii Press Honululu at 131.
  5. Personal law is that which determines the issues affecting a person as an individual. See Omidire K, ‘Change of Personal Law under Customary Law in Nigeria’ (1989) 39 ICLQ 671.
  6. The search for the ‘underlying law’ in Papua New Guinea mandated by ss 20 and 21 and Schedule 2 of the Constitution 1975 is essentially a quest to develop a relevant indigenous common law.
  7. For a recent valuable and relatively optimistic analysis of the advancement of customary law see Powles G, 'Common law at bay? The scope and status of customary law regimes in the South Pacific.' (1997) 21 JPacS 61.
  8. (1989-94) 2 VLR 545, the celebrated ‘Nagol Jump’ case.
  9. Above, 551.
  10. Above, 547.
  11. The inconsistencies of spelling are inherited from the reported judgement.
  12. Above, 552.
  13. Implicitly a local statutory provision or a rule of British or French origin. It seems that even 'substantial justice’ has priority over custom.
  14. Aleck J ‘Beyond Recognition: Contemporary Jurisprudence in the Pacific Islands and the Common Law Tradition’ (1991) 7 QUT 137, analyses this and advances other intriguing theories on custom and non-customary law. One is that the political state has a vested interest in not promoting symbiosis between state law and custom.
  15. For examples and a critique of this approach see Zorn J G, ‘Common Law Jurisprudence and Customary Law’ in R W James and I Fraser (eds) Legal Issues in a Developing Society, 1992, University of Papua New Guinea, Faculty of Law. Port Moresby, 103-127.
  16. See Allott, Essays in African Law: with Special Reference to the Law of Ghana, 1960, Butterworths, London 63. Professor Allott asserts that ‘customary laws in modern Africa are growing more alike.’; Ojwang J B ‘The Meaning, Content and Significance of Tribal Law in an Emergent Nation: The Kenya Case’ (1989) 4 Law and Anthropology 125. Ojwang acknowledges differences but his study of tribal laws concludes that they ‘reveal a certain fundamental sameness.’
  17. Ibid.
  18. See Weisbrot D, Paliwala A, and Sawyerr A (eds), Law and Change in Papua New Guinea (1982) Butterworths Sydney, paras. 269-70 and 4112, which offers insights into the political priorities.
  19. Tonga does not, but custom is embedded in its laws and structures. Neither, does Fiji (except by recognition of statutory encapsulation of custom) since the commencement of the Constitution of the Republic of Fiji Islands 1997 on the 27th July 1998.
  20. This topic alone merits a separate paper. For an excellent Pan-Southern Pacific summary see Paterson D E, ‘South Pacific Customary and Common law: their Interrelationship’, (1995) 21(2) Commonwealth Law Bulletin 660. Zorn J G’s Custom and Customary Law: Coursebook Two, USP, Suva, 1994, contains a briefer round up but includes Micronesia in its review.
  21. Unreported, Senior Magistrates’ Court, Vanuatu, cc324/95.
  22. Reference is directed to the Laws of Kiribati Act 1989, the Laws of Tuvalu Act 1987, the Customs and Adopted Laws Act 1971 (Nauru). The Kiribati and Tuvalu statutes closely imitate the Papua New Guinea legislation. Paterson D E, ‘South Pacific Customary law and Common Law’, above, fn.14, has a full discussion on these statues and the difficulties they pose.
  23. PNG Rev. Stats. Cap.19.
  24. [1994] PNGLR 280.
  25. Section 75. See also ss 20-21 and schs. 2.1 and 2.3 of the Constitution of Papua New Guinea.
  26. For example Wills, Probate and Administration Act 1987, s 3 which accords some recognition to customary rules of succession.
  27. Article 51. See Weisbrot D ‘Custom, Pluralism and Realism in Vanuatu: Legal Development and the Role of Customary Law’ (1989) 13 Pacific Studies 65, where the author suggests that politicians may see custom as a divisive factor in the nation-building process. They may also view it the same in other jurisdictions if they worry that it may undermine their central powerbase.
  28. See Fitzpatrick, above, fn.17, where the author examines and summarises the powerful economic pressures.
  29. See Fitzpatrick, above, paras 356-7. Legislative intervention on timber extraction in the Solomons has favoured business interests over those of the indigenous islanders. See Corrin J C, ‘Abrogation of the Rights of Customary Land Owners by the Forest Resources and Timber Utilisation Act.’ (1992) 8 QUT 13I and J Nonggorr ‘Resolving Conflicts in Customary and Western Law in Natural Resource Developments in Papua New Guinea.’ (1993) 16 UNSWLJ 433.
  30. In Semens v Continental Air Lines Inc (1985) S.C. of FSM 2 FSM Intrm.131 (Pon) Chief Justice King considered the possible applicability of custom to an indemnity clause but held that customary law could not be applied as there was no customary element in the contract.
  31. See the views of Sir Mari Kapi, DCJ in Re James Allan Sannga, Peter Timereke v Duncan Ferria and Anor Unreported, Supreme Court, Papua New Guinea, cc 255/1983, maintaining that customary law develops from time to time and may evolve its own customary rules to ‘modern’ property such as shares in a company. He also compares the development of a jurisprudence premised on custom to the evolution of the common law.
  32. The various viewpoints are covered in a series of contributions in Crocombe R and Meleisea M (eds) Land Issues in the Pacific, 1994, MacMillan Brown Centre for Pacific Studies, University of Canterbury and Institute of Pacific Studies, University of the South Pacific Suva.
  33. The basic advantage derives from its entrenched position. It also provides clear rules, predictability and certainty, qualities highly prized by commerce. R B Seidman R B, The State Law and Development, 1978, Croom Helm, London 31-34.
  34. Discussion will concentrate on gender equality, the most pressing human rights question in the Pacific.
  35. Bennett T W, Human Rights and African Customary Law, 1995, Juta & Co Ltd, Cape Town,.5. The following summary and much of the debate in this section owes an enormous debt to this work, a thought provoking and perceptive analysis of the topic.
  36. The catalogue of basic social obligations in the Preamble to the Papua New Guinea Constitution 1975 and of duties in Article 7 of the Vanuatu Constitution 1980 are reflections and resonant echoes of this culture. The Vanuatu roll call closely mirrors that of Papua New Guinea.
  37. Bennett, above, 5-6.
  38. Bennett, above, 80-81. Any complaint by women in customary forums was pursued by their closest male guardian. In Fiji i bulubulu, a tradition whereby compensation for assaults, sexual or otherwise, on women was paid not to them but to their menfolk confirms this, as does K-v B [1985-6] SILR 39.
  39. Until recently western society was also rooted in patriarchal norms. See O’Donovan K, Sexual Divisions in Law, 1985, Weidenfield and Nicholson, London, which graphically illustrates the transition from patriarchy in the West is modern and by no means complete. Millett K, Sexual Politics 1971, Hart-Davis, London, argues that patriarchy is universal in all developing societies.
  40. Bennett, above, 81.
  41. [1994] PNGLR 486.
  42. (1989-94) 2 VLR 661.
  43. See Crocombe R, Land Issues in the Pacific, above, 8-9, where the author optimistically observes that in the Cook Islands a culture of equal rights to land tenure has evolved without legislative or other programs of action thus affirming the flexibility of custom. He is not as sanguine on a similar evolution in Melanesia.
  44. See Johnson D ‘Aspects on the Legal Status of Women in Papua New Guinea’ (1979) 7 MLJ 5, which is the only comprehensive survey of the position of women in a Pacific jurisdiction.
  45. The Convention on the Elimination of all forms of Discrimination against Women 1979, 18 December 1979 (CEDAW). Fiji, Vanuatu and Papua New Guinea only became parties in 1995. The Solomon Islands still has not done so.
  46. The Constitutions of Tuvalu, Schedule to Ordinance 1 of 1986 and Kiribati, Schedule to the Kiribati Independence Order, SI 719/1979 (UK) do not. Such omissions are deliberate but they are not confined to the Pacific: the Bermuda Constitution (Schedule 2, Constitution of Bermuda Order, SI 182/1968 (UK) embodies no ban on sexual discrimination.
  47. For example subsection (c) of section 15 of the Constitution of Solomon Islands 1978 (schedule to the Solomon Islands Independence Order, SI 783/1978 (UK). Cf. section 27(3)(d) of the Constitution of Tuvalu, which ‘waterproofs’ customary law from the discrimination agenda generally. The Constitution of Vanuatu 1980 and the Constitution of Samoa 1962 provide for non-discrimination codes without qualifications to insulate custom.
  48. Bennett, above, 28 et seq and 80 et seq, explores both sides of the debate.
  49. The recent report in the Independent International (No 55, 10–16 June 1998) on the Inuit of Greenland catalogued a variety of ills; chronic alcoholism; an AIDS epidemic; increased incidence of suicide and widespread instances of murder and serious violence that had followed rapid societal transformation within one generation.
  50. Unreported, Supreme Court, Vanuatu, cc 18/1994.
  51. Cheater A P, ‘Managing Culture en route to Socialism: The Problem of Culture ‘answering back.’’ (1989) 16 Zambezia 103.
  52. Bennett,above,.47.
  53. Chanock M, ‘Neither Customary Nor Legal: African Customary law in an Era of Family Law Reform’, (1989) 3 International Journal of Law and the Family 72, elucidates and expands on this.
  54. In much the same way as the surviving vestiges of custom are regarded in England: for example; the right of coastal villagers to collect coal washed up on the foreshore between Seaham and Hartlepool in County Durham; Beckett (A F) Ltd v Lyons [1967] 1 All ER 833 and the right of local fishermen to dry out their nets on the beach at Walmer, in Kent; Mercer v Denne [1904] 1Ch 534.
  55. Zorn J, ‘Common Law Jurisprudence and Customary Law’, above, fn. 14, 108, discusses this doctrine in relation to attitudes in Papua New Guinea. For a striking illustration of this attitude see Nunua v CDC [1984] SILR 54.
  56. Chief Waitotora (Kenilorea Ed), Are-Are Customary Law, 1981, Provincial Press, Honiara. This pamphlet catalogues customary ‘rules’ and the penalties for their breach. It is invaluable as a statement of customary practice at the time.
  57. The notion of ‘official’ customary law being an ‘invented tradition’ was pioneered in customary law studies in Chanock M, Law, Custom and Social Order, the Colonial Experience in Malawi and Zambia, 1985, Cambridge University Press, England. For a general overview see Bennett, above, 60-65. Fitzpatrick ‘Traditionalism and Traditional Law’ (1984) 28 (1 and 2) Journal of African Law 20, explains how the British authorities in Fiji established a code of customary rules in the Native Regulations which did not mirror customary practice but which convinced themselves and posterity that they were doing so.
  58. The Forest Resources and Timber Utilisation Act Cap 90 provides for a procedure whereby those authorised to grant logging rights may not be those who have been adjudicated as the customary owners of the land on which the timber stands. The Wills Probate and Administration Act Cap 33 adopts western models of intestacy distribution and family provision predicated on nuclear rather than extended family models which are the customary norm.
  59. Whegasege A of Star Harbour Makira Province, Solomon Islands, USP Extension Student in Custom and Customary Law in Assignment 4 October 1997.
  60. Aleck J, ‘Beyond Recognition’, above, n 13, 141-143, discusses this.
  61. The application of the imported common law in the Pacific is amply surveyed in C G Powles C G, ‘The Common Law as a Source of law in the South Pacific: Experiences in Western Polynesia.’ (1988) 10 Uni. of Hawaii LR, 105.
  62. See Bennett, above, 60-65.
  63. See Rwezaura B et al, 'Parting the long grass: Revealing and Reconceptualising the African Family' (1995) 35 Journal of Legal Pluralism 25, which points out that young males with money make personal decisions on marriage or informal sexual unions and that prohibitive brideprice demands increase the incidence of elopement.

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