Custom inside and outside of constitutions in the Pacific Island today

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

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

3. 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)

4. The situation today?

5. 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

6. 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

7. 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

8. 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 MoU 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

9. 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

10. 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 45th 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 maymust be consulted on any question, particularly any question relating to land, tradition and custom, in connection with any bill before Parliament.

11. 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.“ (McDougall 2014)

12. 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