Custom inside and outside of constitutions in the

Custom inside and outside of constitutions in the Pacific Island today Associate Professor Miranda Forsyth

Custom in Constitutions Customary law recognised as a source of law in constitutions at independence “ 51. Ascertainment of rules of custom Parliament may provide for the manner of the ascertainment of relevant rules of custom (Vanuatu Constitution)

Like oil and water? • “[The] stress on the impossibility of truly integrating custom 'in practice' seems to be hardening into the same sort of shibboleth as the impossibility of truly individualised justice in the common-law educational tradition. . Papua New Guinea [students] learn that the 'inaccessibility' of custom must compromise the laudable goal of an indigenous legal system. “ (Ian Fraser 1999)

The situation today? 4

Sites of mixing of state and non-state • • Local Bylaws and constitutions Use of customary law in state court judgments Creation of hybrid courts Incorporate customary processes into state justice system • State justice system recognises a role for customary authorities • State justice system seeks to regulate/ change customary practices • Creation and abolition of chiefly chambers/ national/regional councils of chiefs 5

By laws and constitutions • Current (ongoing? ) trend in creation of community by-laws and constitutions in many places across the Pacific – Community/ customary authority initiated – Judge initiated – Parliament initiated

State justice system incorporate customary processes into state justice system • Vanuatu: Parole Board: make it a requirement to perform a kastom reconciliation ceremony as part of a condition of parole – Eg/ Release Condition: - He must reside at Isangel village Lenakel area, on the Island of Tanna. He must perform a kastom reconciliation ceremony to his victim's family

Recognise customary institutions as having the right to perform certain (justice) roles • • Informally Formally – “Village Fono Act 1990 in Samoa and the Falekaupule Act 1997 in Tuvalu (“the classics”) – VIPO signing a Mo. U with the Malvatumauri re identification of customary ownership of traditional knowledge in IP claims – New land laws in Vanuatu – Cook islands constitutional amendment (1995) providing a role for the Aronga Mana to make a decision on “matters relating to and concerning custom, tradition, usages or the existence, extent or application of custom” “[A]lthough we have the authority to step in to resolve disputes concerning customary matters, this court opts for the exercise of the least supervision necessary. ” Supreme Court of Palau, Nakamura v Nakamura [2016] PWSC 13

Seek to regulate/ change customary practices (formal and informal) • “good” and “bad” customary practices • Formal attempts – Legislature – Courts – Law reform commissions • Informal attempts – Justice system agents

Creation and abolition of chiefly chambers/ national/regional councils of chiefs Creation – Micronesian Chamber of Chiefs proposed in 1990 – Proposal defeated in 1991 constitutional referendum – Motion to establish a Pacific Forum for the Traditional Leaders of the Pacific, adopted by the 45 th Session of the House of Ariki (Cook islands) (2016) Abolition – Fiji Great Council of Chiefs abolished in 2012 Change in power – Vanuatu Constitutional Amendment 2013: (2) The Council may must be consulted on any question, particularly any question relating to land, tradition and custom, in connection with any bill before Parliament.

Concluding Thoughts • “the last quarter century has seen a significant decline of chiefly influence, perhaps part of a broader trend in the Pacific islands where traditional authority is being undermined by demographic and other changes, contributing in turn to increased social and political instability “ (Lawson 2015) vs • “Despite often-expressed concerns about the apparent incompatibility of custom and human rights, especially women’s rights, the diffuse powers of global governance in a neoliberal age seem to be increasingly turning to “customary authority” as a panacea for problems of governance in so-called “weak” states. “ (Mc. Dougall 2014) 11

Take home message • Lots and lots of mixing and mingling of custom and state law, but mostly not in the ways envisaged by the founders of the constitutions 12