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Customary Law in the Pacific: An Endangered Species (Article) [1999] JSPL 8; (1999) 3 Journal of South Pacific Law

Article 2 of Volume 3, 1999

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.