REPORT ON THE VANUATU
JUDICIARY CONFERENCE 2006: THE RELATIONSHIP BETWEEN THE KASTOM AND STATE
JUSTICE SYSTEMS
Conference held at USP,
28 – 29 August 2006
Report prepared by Miranda
Forsyth
Index
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Executive Summary (1) Police and Kastom
System (2) Courts and the Kastom
System
(a) Papers Presented
Question 1: Should the
matters that each system or both systems deal with be specified?
•1 Program of the conference |
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3 |
Executive Summary
A two day conference on the topic of the relationship between the state justice
system and the customary justice system (“the kastom system”) in
The main message to come from the conference was the importance many of the
participants placed on discussing these issues, and the feeling of the majority
that these are issues that need to be taken forward. It was also clear that the
relationship of the two systems touches upon extremely sensitive issues, such
as state powers and the role of kastom and chiefs in
The first part of the conference involved a description of the current
relationship between the two systems and this was facilitated by a series of
papers presented by members of the judiciary, police and the chiefs as well as
through group discussion. The papers demonstrated the fact that there is a
significant informal relationship between the two systems, as well as some
limited avenues for a formal relationship. The limited role of the kastom
system in the state Constitution was contrasted with the extensive role the kastom
system plays in reality in resolving disputes in
The second part of the conference was devoted to a discussion of the current
problems with the relationship, which was managed through a series of papers
and then by group discussion in small groups. There was a great deal of
agreement amongst the participants in relation to what the problems are, some
of the most significant being: lack of communication between the two systems;
lack of clear pathways between the two systems; lack of clear guidelines about
which system should deal with which cases; the fact that the two systems
undermine each other in a variety of ways; and also the problem of people being
punished twice for the same offence, once by the state system and once by the kastom
system.
The final part of the conference was concerned with a consideration of what
steps could be taken to improve the relationship between the two systems and
involved small groups considering a series of questions designed to provoke and
focus discussion, as well as plenary discussion of the findings of each group.
Perhaps unsurprisingly, the participants were far more divided in their views
about what the possible solutions to these problems are.
There was a very clear feeling amongst the participants that the issues that
had been raised by the conference should be acted on in some way, and so the
final two hours were devoted to a discussion about how to progress the issues.
At the close of the conference the Chiefs Justice called for, and received,
undertakings by the chiefs, the police and the judiciary that they would each
separately move forward with these issues in various ways he identified for
them.
The general comments made by participants about the conference was that it had
been a very valuable experience and that although it should not have taken 26
years for the chiefs and judiciary to “sit down” together it was good that at
last it had happened.
Introductory Comments
The Vanuatu Judiciary Conference 2006 marked a watershed in the relationship
between the customary system of justice in
The challenge is how the two
systems can interact or interconnect so that Vanuatu society can live in peace,
individuals are secured in their persons and property, community values are
enhanced and protected commerce and investment – particularly foreign
investment is encouraged, and relationship between trade partners are conducted
in confidence throughout the islands of the Republic.
The conference was attended by the New Zealand High Commissioner, the Chief
Justice, most of the Vanuatu judiciary and magistrates, lawyers from the state
law offices and private lawyers, a number of senior police officers, the
Director of the Correctional Services Department and some of his senior staff,
the President and Secretary of the Malvatumauri, chiefs from North Efate, the
President of the Vaturisu Island Council of Chiefs, the President and a number
of members of the Port Vila Town Council of Chiefs and a number of other
chiefs, representatives from AUSAID, and others involved and interested in the
issues.
The conference was jointly organized by the Chief Justice and USP and was
facilitated by two members of the law faculty at USP, Professor Don Paterson
and Miranda Forsyth. It was generously funded by the New Zealand High
Commission and took place over two days in the conference room at USP. The
language of the conference was Bislama. On the first day the participants
learnt about the current relationship between the two systems through a series
of papers presented by members of the judiciary, police and the chiefs as well
as through group discussion. In the afternoon the attention turned to the
current problems with the relationship and this was facilitated by a series of
papers and then by group discussion in small groups. The second day was
entirely devoted to a consideration of what steps could be taken to improve the
relationship and involved small groups comprised of a mix of police, chiefs,
judiciary, lawyers and others considering a series of questions designed to
provoke and focus discussion, as well as plenary discussion of the findings of
each group.
In terms of the success of the methodology employed at the workshop, generally
the participants stated that they enjoyed the ability to speak together, but at
the end the chiefs requested a group of “just chiefs” as they felt that they
would be freer to express their true opinions if they could sit together. This
experience suggests that at future conferences or workshops a good format may
be to have a combination of mixed groups and groups where just one interest
group is represented to ensure that the true views of all the participants are
able to be voiced.
This report was prepared on the basis of recordings made at the conference,
notes and the records made by the participants. The presenters of papers have
had the opportunity to correct the summaries of their papers which have been
made. While every effort was made in the writing of the report to be as
comprehensive and accurate as possible, the consideration of conciseness has
meant that not everybody’s full comments have been included.
Part 1: The Current Relationship Between the Kastom System and the
State System
(1) Police and the Kastom System
The relationship of the police with the kastom system was explained in a
presentation given by the Acting Commander of the Southern District, Kelson
Bule. He explained that generally there are two main areas where they work
together. First, when complaints are made to the police about behavior which is
not a criminal offence, they send these cases back to the chiefs to deal with.
Second, the police seek the assistance of the chiefs to deal with tensions in
the community which lead to people committing criminal offences. He gave as an
example the current tensions relating to the sea front in
However, he also highlighted a number of challenges that currently exist in the
relationship between the chiefs and the police. The first is the problem of
what happens when people do not respect a chief’s decision and come to the
police to ask for assistance. At present the police can only assist such people
if it is a criminal case, and in this case the police have to go back to “the
beginning of the story,” which may have been two or three months before, and
then have to deal with the case using state procedures. There is no way to take
the case forward from where the chief has taken the matter, to work together.
Another set of challenges arise when both the police and the chiefs feel that
they should deal with a particular case, and the police refuse to allow the
chiefs to deal with it by themselves. At such times when cases progress to
court, the chiefs ask “why has the case gone to court when I have dealt with
it?” Commander Bule said that he does not have an answer to this question. In
such situations sometimes the police tell the chief that after the case has
gone to court the parties can go back to the chiefs to make a reconciliation to
make sure that life, peace, and respect can all be “put back.” But he commented
that these are just individual initiatives; there is not at present a procedure
to follow to do this. He concluded by commenting that he hoped that over time
we will be able to find answers to these questions.
The participants then worked in small groups to discuss the issues raised by
the Commander and their own thoughts about the relationship between the police
and the chiefs. The groups made the following comments about the positive
elements of the relationship as it currently exists: in many ways the chiefs
can and do support the police, such as during the VNPF riots; many police have
good relations with the chiefs and many police officers are also high-ranking
chiefs which also strengthens the links between the two systems.
However, the groups also identified a number of problems with the current
relationship. The problem that every group voiced was that there is no clear
dividing line between the power of chiefs and power of police, and no clear
guidelines or procedures setting out how chiefs and police should work together
to solve particular problems. Additional problems that were raised were: there
are often conflicts between the chiefs and the police, for example during the
escaped prisoners incident when the chiefs tried to speak with the police but
they refused to speak with them, and no way of resolving these conflicts; the
police say that they rely on chiefs to resolve tensions in the community, but
this is difficult when the chiefs’ authority is not backed up by legislation; the
community generally is not sure whether they should go to chiefs or to the
police first and there is a concern that if people go to the police first then
it may be to late for the kastom system to deal with the matter
afterwards; there is a lack of understanding by police of the role of chiefs
and vice-versa; there are no regular meetings between the police and the chiefs
to discuss the issues between them; the police sometimes push the chiefs out of
the way and say that “this is a state issue, the case has to go to court” as
for example happened recently with the incidents involving the market house/
sea front which leads to the chiefs feeling demoralized; and finally there was
a question about how the police and the chiefs should work together when dealing
with domestic violence.
(2) Courts and the Kastom System
Justice Ham Bulu presented a paper on the relationship between the courts and
the kastom system. In his address he explained the position of customary
law in the Constitution, stating that the Constitution provides that customary
law is part of the law of the
The major comments that were made in response to Justice Bulu’s speech were to
the effect that some participants were concerned that the Constitution provides
that customary law can only be used by the judges as a “last resort,” and also
that the Constitution and written laws of the country only provide for
customary law to be administered by state courts and not by the chiefs.
(3) The Chiefs and the State Justice System
Chief Mormor gave a short presentation in which he made the comment that when you
look at a chief you look at a kastom law. He stated that when he stands
on top of the highest mountain in
Chief Motarilavoa Hilda Lini next gave a paper in which she raised a number of
important points. First she asked what in fact the
Chief Selwyn Garu, Secretary of the Malvatumauri then addressed the
participants. He referred to Justice Bulu’s presentation and made two comments
about it. First he said that although the Constitution and written laws
recognize customary law, they do not recognize chiefs. This means that it is up
to the state courts to decide what kastom law is, rather than for chiefs.
He said that this is wrong because it is not possible to separate chiefs from
the kastom system – “when you talk about chiefs, you talk about the kastom
system.” Chiefs are the ones who understand kastom law and so they
should be the ones to administer it. This is why the chiefs are asking for
power to apply kastom law. Second, he stated that customary law is given
the last place in the sources of laws in the Constitution, and this low place
is also shown in the relationship the government has with the kastom
system as the government has not made it a priority. He observed that the
resources of Vanuatu which are spent on the justice system all go to the formal
system and none to the kastom system, and yet the majority of the
population live under the kastom system and chiefs are expected to work
hard at administering it. There should be resources directed to the system that
governs the majority of the population.
He concluded by briefly outlining the new chiefs’ legislation that has recently
been passed and he stressed that it only provides for the administrative
structure of the chiefs from National Council down to village councils. The Act
tries to support the fact that the real work of the kastom system is
done down at the bottom levels, at the village and nakamal level, not at
the higher levels, unlike in the state system where the power is at the top.
Later Chief Garu explained that the Act which had finally been passed through
parliament was like a dog that had had all its teeth removed as all the powers
the Malvatumauri had wished to be included had been amended out of it – and yet
the dog was still expected to go and hunt pigs (in other words, chiefs are
still expected to preserve peace in their communities). The particular powers
that he referred to were the powers of area and island councils to make
by-laws. He stated that a possible reason for these powers to have been taken
from the Bill was the concern that chiefs would abuse their power. However
Chief Garu explained that such a concern was misconceived because the by-laws,
as state legislation, would need to conform with all higher state laws. He
concluded by saying that chiefs still do not have the powers to implement kastom
law.
Part 2: Problems and Issues with the Relationship between Kastom
System and State System
(a) Papers Presented
The first paper was presented by Miranda Forsyth. She explained that following
a study she had made of the relationship between the kastom system and
the state system over the last four years she had found that while there was a
great deal of support in the community for both systems, their current
relationship was causing problems. The major problems that she highlighted
were: there is considerable dispute and confusion about which system should
hear which types of cases; this confusion puts complainants in a vulnerable
situation; there is an unresolved problem of which system should deal with a
case first (this is problematic when a case goes to both systems and for
example the chiefs want to hold a reconciliation ceremony before the defendant
makes his plea); the problem of “double jeopardy” (often defendants feel they
have been “doubly punished” if they are sentenced in the court as well as in kastom);
the operation of the state system creates feelings of disempowerment on the
part of chiefs and also frustration as they are told to be responsible for
their communities but hindered by the state system in carrying out their
duties; the ability to “appeal” to the state system undermines the enforcement
power of the chiefs and increasingly people are challenging the chiefs on the
basis that what they do is not in the Constitution. Finally, she noted that the
existence of the kastom system also hinders the operation of the state
system in a number of ways.
Michael Taurakoto from Wan Smolbag then gave a presentation
on some issues that he identified as being present in both systems. He
focused on three issues: the treatment of women, youth and leaders. The
main problem in the treatment of women by both systems is the way they fail to
deal properly with domestic violence. Domestic violence is very prevalent
in
The relationship between the police and youth is not good,
both in
The third weakness of both systems is the failure to deal
with corruption and leaders who break the law of the country. The
Leadership Code Act seems to be like a flower only - there are lots of good
ideas and principles in it but it is not enforced. Public Reports released by
the Office of the Ombudsman are rarely followed up with corrective action. The
only two reports to have been taken to Court are the 'Ex Gratia Payments' Case
which first went to Court in 1997 and is currently awaiting judgment while the
other case ended with a prominent leader being jailed but later pardoned by the
then Head of State. And here the chiefs were actively involved in pressing for
the pardon because of the community need for maintaining peace and treating
national leaders with respect. He contrasted the light way that leaders are
treated by both systems with the way that women and youth are treated and
commented that it is very sad.
Professor Paterson presented the final paper on some Constitutional issues in
relation to the kastom system. He explained that the parameters of
section 95(3) which provides that “Customary law shall continue to have effect
as part of the law of the Republic of Vanuatu” is not clear – does it extend to
all people who live in Vanuatu? and to all elements of life or only to
“traditional” ones? He also reiterated some comments made Justice Bulu about
the problem of parliament failing to provide for how the courts should
determine what custom is. Finally he commented on the fundamental rights and
freedoms in
(b) Break-out groups’ discussion of the problems and issues with the
relationship between the two systems
Each mixed group was asked to consider the questions in the two boxes below and
then they presented their answers which they had written on large sheets of
paper to the group. Later these answers were displayed and people were given a
chance to agree or disagree with them by placing a yellow or a green dot beside
the point. Most points were agreed with many times and so these have not been
recorded. Rather, in the summary below I have indicated the points that many
groups on their answer sheets raised by use of an asterix “*” and the points
that some people indicated they disagreed with by use of a question mark “?”.
|
How does the operation of
each system support the other system? Is this enough? |
How does the operation of
each system undermine or conflict with or not support the other system? |
|
•1 Police can assist chiefs to
carry out some decisions, eg Land Disputes in some situations •2 Chiefs/ custom system assist
to maintain peace within and between communities. For example the VNPF riot
and the VMF/ Police dispute •3 Land Tribunal Act supports
customary resolution first of all •4 •5 There is recognition of both
systems under the law, particularly in: the Constitution, the Criminal
Procedure Code, the Judicial Service and Courts Act, the Island Courts Act
and the Land Tribunals Act** •6 Supreme and magistrates Court
can refer matters back to chiefs -? •7 Section s119 CPC means that
if reconciliation ceremony has taken place then courts can take this into
account*** •8 Chiefs assist in bringing the
accused into custody •9 Not enough support, there
needs to be amendments to the legislation ** •10 It is generally accepted
that there are two systems and each acknowledges the other* •11 Custom operates where the
law is silent and has a jurisdiction that is extended by community acceptance
of the chiefs right to deal with cases and so they are not given to the
police •12 The two systems have the
same goals of solving problems/ conflicts •13 Some co-operation between
police/ courts and chiefs •14 Police carry out awareness
in cooperation with chiefs and involve the chiefs in stopping crime at the
village level and deal with domestic violence issues at lower levels •15 Kastom process
addresses minor offences before charges are laid which means less work and
cost for the courts •16 There is respect between the
chiefs and the courts •17 Without the kastom
system the state system would not cope with having to deal with everything •18 Courts can support the kastom
system by exercising power to stay proceedings or dismiss charges where this
has occurred (s118)* •19 There is new legislation as
part of the Correctional Services Act which allows the courts to send matters
back for customary settlement at local level |
•1 Police assistance is
restricted to state criminal matters and so the police cannot assist the
chiefs in other matters, such as sending people back to the islands •2 There is confusion and a lack
of clarity about which system should deal with particular cases and this puts
pressure on families, communities and institutions •3 People are punished twice by
the two systems (the courts ignore the custom settlements)*** •4 Policy makers within the
formal system don’t take into account the role of chiefs and do not consult
with them before enacting laws which undermines the power of chiefs* •5 There is not enough
discussion with chiefs about major projects and initiatives occurring in
their territory •6 The custom systems is not
resourced or supported as the state system is, and there is only training for
the state system*** •7 The state system does not
recognize/ take into account the diversity of customs in different provinces
and villages •8 The formal system in most
cases fails to recognize and address the root causes of disputes, whereas in kastom
the chiefs will look behind the incident and ask “why did it happen?” •9 The chiefly system is
flexible and its main role is to maintain peace but the state system is
inflexible and concerns strict rules and punishment. •10 Police should approach the
chiefs before they go and arrest a member of their community as this is more
proper •11 The kastom system is
oral whereas in the state system everything is written down and sometimes
people take cases to the state system after they have been dealt with by
chiefs •12 Sometimes the state system
refuses to suspend proceedings to allow custom proceedings to go ahead even
though all the parties want to deal with the matter in kastom •13 The law is clear: the chiefs
do not have power. But in fact 80% of the community have no awareness of the
law and chiefs are involved in resolving matters without any real support •14 Chiefs think that a matter
is finished after a reconciliation but the state system sometimes goes ahead
with a case which undermines the chiefs in their communities •15 The courts do not accept kastom
fines as a penalty, they accept it only as compensation •16 Lack of awareness about the
roles of the two systems •17 In the kastom system
both parties win but in the state system one side loses* •18 Conflict when the court
looks at individual rights and the kastom system looks at community
rights and this leads to a lack of respect for custom and undermining of each
system* •19 Courts have got enforcement
powers but custom does not •20 The island court justices
make decisions that don’t take into account custom law •21 Sometimes the police don’t
work with the chiefs when dealing with serious offences, such as riots and
arson •22 Sometimes witnesses will not
give evidence to the police against another member of the community and so
cases fail •23 Disagreement between two
systems about what is an offence •24 Lack of enforcement in both
systems - ? •25 Dispute about what is a
serious offence. For example in kastom domestic violence is something
that is not important. Also rape and incest there is dispute about which
system should deal with it. •26 •27 Use of all the courts
undermines the kastom hierarchy •28 When complainants take part
in and achieve a customary settlement but then make a formal police complaint
that undermines kastom •29 In kastom the process
is quicker, there are no prisons and there are consensus judgments rather
than a decision being made by a single person •30 Chiefs and police have got
different expectations about which each should do which means they do not
have a good connection. •31 Orders of formal courts
restraining parties from approaching each other means the chiefs cannot
reconcile the parties eg Domestic Violence Protection Orders -? •32 When relatives put pressure
on victims to withdraw the case the prosecution is forced to do so as
victim’s refuse to testify |
Part 3: Possible Solutions – Building Links
The questions that the discussion groups considered are set out in the appendix
to this report. Each question contained many sub-questions and not all of these
were answered. Question six was also not discussed due to time factors. The
summary below therefore sets out the parts of the questions that were answered
together with the answers given by the various group, and the points of
agreement and disagreement are noted.
Question 1: Should the matters that each system or both systems deal with be
specified?
No group was in favour of writing down a list of matters that each system
should deal with as they all found that this was an impossible exercise, and
quickly realized that if chiefly power is codified then it will be limited as
well. In addition, as one group noted, chiefs find it difficult to codify their
offences – “in custom a wrong is a wrong.” Some groups proposed that the
decision of which system should deal with a particular case should rest with the
chief, who should decide if he can deal with the case or not (another way of
putting this was whether the case is “easy” or “difficult”). Another group
suggested that in urban areas, state law should apply whereas in rural areas, kastom
law should apply unless there is no kastom law which covers the
situation. Other groups proposed that chiefs should deal with minor matters and
the state with serious matters. A further group stated that although there
should be no list, there should be clear procedures and guidelines for both to
work together. Some groups felt that kastom should always be used to
deal with matters relating to natural resources, even in urban areas.
There was disagreement about whether individuals should have the right to
opt-out of being dealt with by the kastom system, with some feeling
there should be no opt-out as this undermines the chiefs’ authority, while
others stated that there should be freedom of choice. Others said that a person
should always be able to go to the state system afterwards.
Most groups did not address in detail the question of how a right to a fair
trial can be ensured in the kastom system, but the group that did said
that it was up to the chiefs to ensure that there is impartiality and fair
hearing in the nakamal but they need training for this. One group
commented that at the end of a case the chiefs should tell a defendant that he
can appeal to the state system if not satisfied with the decision.
Question 2: Should it be possible to appeal from the kastom system to
the state system?
Almost every group said that there should not be the possibility of an appeal,
in the sense that a case should not move from the kastom system to the
state system without the necessity of starting from the beginning of the state
system’s process (ie lodging a complaint). However, the answers of some groups
suggested they may have misinterpreted this question and answered the question
of whether at present there is a right of appeal rather than the
normative question of whether there should be a right of appeal, and so
this appearance of uniformity in the answers should not be given too much
weight.
Many groups expressed the view that the kastom system should be final
and that it should be up to the person making the complaint to decide at the
outset which system they want to use and then be made to stick to that. Groups
who adopted this view supported their position by saying that appeals undermine
kastom, that people need to show respect to the kastom system,
that they should honour what they started in kastom, and that the two
systems operate with different principles and so an appeal would not make
sense. A modified version of this approach was that appeals should be limited
to certain matters, such as land disputes. An alternative view was that there
should be the possibility of an appeal, but only where there has been bias in
the kastom system, or the punishment is too heavy or the correct kastom
has not been applied.
However, some other groups said that although there should not be an appeal
this should not stop the defendant starting an entirely new case in the state
system.
Only a few groups considered whether there should be an appeal if the kastom
system is given state resources (which was an additional question posed to them
orally by the facilitators) and there was more acceptance of an appeal if state
resources had been used to punish someone. There was concern, however, that if
appeals are allowed they must be managed in ways that ensure the chiefs keep
their respect, such as by judges sending cases back to chiefs to decide again
rather than just substituting a decision.
There were mixed views on whether chiefs should keep records, with some groups
stating that this is something that could be developed, while others said it would
be better for chiefs to go and give oral evidence of what has occurred to state
courts.
This question of appeal raised the difficult issue of to whether the two
systems can and should operate together or whether they should remain separate.
This issue is discussed below in the section on general comments.
Question 3: How can the kastom system be used more by the state
system?
Most of the groups supported the idea of the re-introduction of assessors into
the state courts. Other ideas were: there should be amendments to the Police
Act to provide for guidelines about when the chiefs and when the police
should be involved in cases; there should be diversionary sentences in the
community managed by chiefs; the state system should assist in enforcing kastom
decisions; chiefs should handle more matters to reduce the time and cost of
using the state courts and to maintain good relationships within the community;
chiefs should advise courts about sentencing; chiefs can assist in civil cases,
in particular family and property law, through mediation; chiefs should be
fully consulted on government projects and policies; and that there should be
an office established within the government to ensure that the state system
uses the kastom system as much as possible. This office could be
established within the Ministry of Justice and its role would be to monitor and
ensure coordination of projects and the two systems, provide funding, training
and consultation.
Question 4: How should the courts treat customary compensation and
reconciliation ceremonies?
It was generally agreed that the fact that a customary compensation had been
undertaken should be proven to the court by having the chief come to court and
give details of it. Some groups also felt that the victim should come as well,
while others thought the chief alone was sufficient. Many groups felt that
there should be some criteria for the court to judge the value of the
compensation provided, and one group suggested this criteria could include the
implications of the crime on the community and the extended family and the
chiefs. Some groups felt that the court should be able to dismiss a case
without imposing a further sentence if the court is satisfied that settlement
already paid is sufficient.
In relation to the difficult question of when a reconciliation ceremony should
be held when a state proceeding is also going ahead, one group argued strongly
that the correct place for it is after a determination or a plea of guilt but
before sentencing. It should not take place before the plea because if someone
conducts a reconciliation ceremony and then pleads not guilty this would not
look right in the eyes of the people. One group said that it should take place
before the court hearings and another that it should occur after.
There was a discussion about the fact that one of the purposes of a kastom
settlement is to “cleanim fes” of the defendant in front of the
community and that therefore it should take place before a defendant returns to
the community.
There was a discussion about the fact that many chiefs are not aware of section
119 of the Criminal Procedure Code and that they should be aware of this
provision as this will make them handle reconciliation between the parties more
effectively.
A further discussion was had about the difference between a fine and a
reconciliation/ settlement in kastom. One group proposed that the
difference was that a fine went to the chief and/or the wider community while
the reconciliation payment went from one part to the other in order to restore
their relationship. Another way of putting this was stated to be that there are
two levels in kastom – to “cleanim fes” which is a collective
action, and to apologize to the victim. These two different functions may be a
way of moving the issue of the relationship of both systems forward.
Question 5: How can the kastom system use the state system more?
The groups in this session included one that was a “chiefs-only” group, while
the other groups were mixed but generally did not include chiefs.
There were mixed responses in relation to the issue of whether a council of
chiefs should be able to request the police to arrest people if they do not
attend meetings or fail to pay fines. Some groups felt that this was not desirable.
One group commented that chiefs should be able to proceed in the absence of a
defendant if he has been adequately notified about the hearing but still
refuses to come. Other groups suggested that the police can assist chiefs by
providing security at meetings and by requesting people to attend but they
should not use force to compel attendance. Another group suggested that perhaps
island courts could be used to enforce chiefly decisions.
Some groups, including the chiefs-only group, on the other hand argued that
such assistance should be available. One group argued “If the wrongdoer after
several attempts has failed to attend the meeting then chiefs can apply to a
Magistrate for an arrest warrant and after the magistrate has checked their
application and found that it is reasonable for an arrest warrant to be granted
the magistrate can order the police to arrest the wrongdoer.” The chiefs-only
group commented that chiefs have their own police and they would prefer to use
these first, with the state giving them authority to use force, before using
the state resources. The chiefs stressed that these powers would not need to be
used often and chiefs should not be encouraged to use them often as this would
erode respect. In order to avoid the problem of abuse the group suggested that
only the highest ranking chiefs should be able to request police assistance,
and suggested that a register should be made and given to the police so they
know who these people are. The comment was also made that in some islands there
is no police presence and so such powers would not assist.
Most groups felt that a council of chiefs should not be able to apply for a
warrant to compel a defendant to return to their home island, although the
chiefs-only group argued this power would be useful. Another group argued that
such a reform may be possible but it should be very clearly specified what type
of behavior could order such a warrant being issued, such as failing to respect
rights, or threatening public safety, order and health. Other groups suggested
that a way of dealing with such situations is for a council of chiefs to inform
the police of the possible threat to public safety and leave it to them to take
further steps. It is possible that there was also confusion in answering this
question about whether it meant doing this would breach the law as it currently
stands rather than being a normative question.
General Comments
A theme running through some of the comments was that some participants
strongly believed that the kastom system should remain separate from the
state and resisted the idea of state resources being used by the kastom
system or the state interfering with the kastom system. However, these
views seemed to be in the minority, with other participants stressing the need
for the two to work together. The Chief Justice in particular stressed the fact
that the reality is that
A number of comments were also made about the fact that there is a need for
more research in order to find out what kastom is, and also care needs
to be taken not to try to treat all of
There were also some comments made about the differences between the state
system, where the focus is on justice for the individual and one person wins
and the other loses, and the kastom system where the focus is on the
community and peace and attention is paid to the aftermath of the dispute.
Chief Motarilavoa Hilda Lini stated:
“Anda long kastom system pis is
collectively owned by a group or community mo community igat collective
accountability to peace. Wok blong potektem pi semi priority. Taem igat
disturbance long pis, imas gat compensation or peim bak pis kuiktaem blong
mekem se inogat conflict.”
The different focus of the different systems means that
people involved in the different systems make different decisions. Also the
comment was made that there needs to be different options for the different
provinces as different customs exist throughout the country and there is a
different reach of the state in different places due to geographical factors.
Future Directions
As there was a very clear feeling amongst the participants that the issues that
had been raised by the conference should be acted on in some way, the final two
hours were devoted to a discussion about how to progress the issues. There were
many ideas offered including: the need to train chiefs so they understand the
state systems and so can contribute more in the future to a national
discussion; the need for chiefs to stop disputing chiefly title; the need to
improve the working of those systems which currently exist which bring the two
systems together, such as the Customary Land Tribunals; the need to have more
research into the operation of the kastom system throughout the country;
consideration of changes to the Constitution to lift the position of customary
law in the hierarchy of laws that apply in the country; and the need to build
bridges between the two systems. There was also a suggestion that
The Chief Justice concluded the conference by drawing together many of the
strands of discussion and commented that the challenge for