CUSTOM, LAW AND PRACTICE IN

TUVALU

The Relationship between Law and Custom

In Tuvalu

James Duckworth

This paper has been prepared for an evaluation of custom and cultural values and their relationship to the laws of Tuvalu. Any country faces challenges as it goes through the development process. The basis of any society is its culture –it is that and its traditions that form an essential part of the law. However, with the accession to the United Nations by Tuvalu and its need to become part of the international community there has been pressure to consider laws that do not necessarily comply with its traditions and culture and which may challenge the basis of the society.

This paper will deal with custom and the law identifying those parts of the law that are based on custom- land, family issues, and crime. The Falekaupule will also be discussed, and thereafter to international commitments (Treaties).

It will be necessary to begin with an explanation of custom and then the Constitution of Tuvalu 1986 as that is the supreme law to which all other law is subject. Further, it gives Principles concerning the applicability of custom to law that need to be considered in all cases.

The law is at 21^st August 2002.

The Nature of Custom

Custom can be defined as the rules that a particular society has, based on the same culture and tradition. Those who share the same culture often have shared characteristics - language, origins, and in type being of the same build/ temperament. On the islands of Tuvalu, custom will vary from island to island and the grouping of the islands to form a nation is relatively recent as in all Pacific Islands (particularly when a contrast is made to other parts of the world such as Western Europe).

Each of the islands has customs that are shared but some will also be unique (changes in language through the different use of words, for example).

Further, how a society itself is managed and controlled reflects the traditional way in which islands have operated. Historically, there is very little documentation to record how this took place. This tends to be based on oral tradition and memory rather than written records in the pre-colonial times.

Tuvalu does share the characteristics of other societies that are Polynesian and the language is similar in its use of words to Samoan. That indicates that there may have been a common origin. Some 1000 years ago, it is believed that occupation first took place from Samoa. They brought with them their system of living. Certain aspects of the land tenure system appear to have remained similar particularly how the land is used for subsistence farming etc…. This is also true in other cultural matters from decision making to dancing and feasting.

Decision Making

The pre- Colonial system in all the islands reflected the dominance of the Chief Ulu Aliki) . That Chief dominated the island and had the power to take such decisions as were felt necessary for the running and control of the island. That included dealing with all administrative matters including the right to dispense justice and punishment in the manner necessary.

The Chief tended to pass down through descent and go from one generation to the next. In this way, the chiefly system was preserved within a family and promoted certainty. However, this did cause problems with intrigue and jealousy. Early Tuvaluan history records a large number of deaths of those who were Chiefs and their descendants by those who were envious of their position and power(and who took control)

Further, wars between islands were frequent which led to disruption and uncertainty.

The system that therefore evolved as throughout Polynesia was one of dominance of a Chief who had the support of the island and their people and was a title that was passed down his family until either that support was lost or others put themselves in positions of power.

This situation changed with the coming of the missionaries who came to civilize what they saw as cultures based on conduct which they judged to be in need of change (applying their own values and without recognition that these societies had evolved with their own beliefs) . Throughout the nineteenth century, Christianity came to be accepted on all the islands of the Tuvalu group. This changed the practices of the people and their ways such that today the Church is in a dominant position. The Church leader on the island is deemed to be a Chief and his power although not of the Ulu Aliki has the equivalent status.

As in many countries throughout the Pacific, the modern system of Government was introduced when the islands became a Protectorate under the Crown as part of the Gilbert and Ellice Colony in 1898. The British policy was not to change all the institutions that they found but where possible work through some of the local institutions in existence. For this reason, the lands system was maintained as they found it without English concepts of land ownership being imposed. This was done through creating a system of administration. Certain English concepts were also introduced such as leases, rent, to reflect the need to provide for commercial development.

However, the British did impose a system of governance for Courts, Councils, a Parliament based on the Westminster model and in Local Government. Local Government remained in that form until 1997 when the Falekaupule were introduced.

Local Government

In 1997, the Falekaupule Act was passed by Parliament. This tried to use traditional ways of decision making in Tuvaluan society and make those the basis for local government. This abolished the Island Councils and replaced them with the Falekaupule.

Decision making passed into the hands of an elected Kaupule under the control of a head ( the Pule o Kaupule) and a Secretary. The Ulu Aliki ( also elected )of the island has to be a member of the Kaupule and is the Island Chief.

Decisions are taken at regular meetings in which all Kaupule members are present. These are meetings of the traditional elders of the island and take place in the local meeting house: the maneapa. These meetings tend to be for the elected members, and officials. They are not for ordinary members of the public unless declared to be so. Such meetings will take place where a significant decisions needs to be taken or is provided for in the Act itself.

Within Tuvaluan society, the elders are those who are mature in age. With age comes wisdom. For this reason, Kaupule members tend to be aged 55 and above ( the age of retirement for civil servants from the Government which form the majority of the workforce).Age indicates responsibility and also an understanding of culture and tradition.

This does represent a challenge to the future generation. At present those elders have not had the benefit of a formal education or being educated overseas. This will have an increasing impact in the future when those with the newer ideas become the decision makers themselves.

The Kaupule has not been without problems. In Niutao , for example, a disagreement took place between the Pule o Kaupule and the Island Chief. Both were elected one an employee of the Kaupule, the other a Kaupule member. The Pule was removed but not in accordance with the Act .The Act was amended to provide for a simple majority to remove an official rather than by a three quarters majority. The dominance of the Chief and the conflict that this legislation has caused to how things have been done remains a problem and has to be addressed. Current policy is to tour each island to ensure that problems can be considered and solutions put forward without the need to go to law. [s1]

The Kaupule has (generally) proved a success . However, in part this has been the result of the creation of a Trust Fund (the Falekaupule Trust Fund) financed by the Asia Development Bank (ADB) and the Government ofTuvalu. The people of the islands themselves have all been expected to contribute as this is seen as helping their community. For example, the people of Niutao who are in employment have had to contribute a fortnights wages for 2 years per person to assist. This has increased the fund and represents their commitment to their islands future.

Legal Provisions on Culture

It is a fundamental provision of any law that it may be changed. This can be done either through the Courts or by Parliament. Law does not remain the same – it evolves over time to fit with the society in which it operates.[s2]

This is equally true of custom. Custom represents what is accepted and agreed by those in power ( the Chief / elders/ Kaupule) to be the traditional way of doing things. If the custom referred to is disputed then the Court needs to hear evidence as to which is the custom that applies.

If law accepts custom , then there must be some way for the Courts / lawyers to understand what custom is. This is not static and must be subject to review. As development proceeds, and society changes so custom will change to reflect that development. For example, island communities on Funafuti complain about the lack of attendance / commitment of those under 30 at traditional island functions: meetings, feasts, and dancing. This reflects a different lifestyle, and a change in priority and commitments – people tend to be busier , and have less time than previously. This may be a result of education, communication, and media that has left few parts of the world unaffected including Tuvalu.

This does raise a significant issue – do the rights of the individual , the family , and the community prevail. These three ideas are the backbone of society as it stands of the person (through Human rights), of the family ( through the teachings of the Church) and of the community ( through the islands themselves). [s3]

Development seems to have brought a decline in community and family values in favour of the individual. Whether or not this is intentional is doubtful- however, accession to the United Nations in 2000 and adoption of Conventions together with the enactment of certain legislation suggests a preference for individual rather than community.[s4]

This can be seen in cases brought for consideration to the Peoples Lawyer. Lands cases, in particular, that follow custom closely , are becoming less about ownership but more about the economic fruits of the land particularly rents and how those should be divided. Is there a custom that is operating in those cases?

The question of land will be considered at some length. However, the principles detailed in the Constitution of Tuvalu provide the starting point. These give general guidance and guidelines that are to be applied. Certain specific provisions will then be referred to which create human rights.

The Constitution of Tuvalu

As the Constitution represents supreme law every legislative enactment, common law decision, and applied law must not be inconsistent with it ( otherwise it is null and void). The role of custom in law is expressly preserved. It could be argued that any judgment or legislative provision that is contrary to custom could be challenged as to its legality(one must understand what custom is).[s5]

To date, there has been no judicial interpretation of this but it is anticipated that this will happen.

The Principles of the Constitution:

Those referring to custom provide:

3) While believing that Tuvalu must take its rightful place amongst the community of nations,…it recognizes that the stability of Tuvaluan society … depends very largely on the maintenance of Tuvaluan values, cultures, and tradition.

4) Amongst the values that the people … seek to maintain are their traditional forms of communities, strength and support of the family and family discipline;

6)The life and laws of Tuvalu should be based on respect for human dignity, and on the acceptance of Tuvaluan values and culture , and on respect for them;

7) Nevertheless the people …recognize that in a changing world , and with changing needs, these principles and values and the manner and form of their expression ( particularly in legal and administrative matters) will gradually change and the Constitution must recognize this and not unnecessarily hamper their expression, and development.

In the Constitution itself, section 4 confirms that this Constitution shall be interpreted and applied consistently with the Principles set out in the Preamble (section4(2)).

Part II of the Constitution then proceeds to deal with individual freedoms (freedom under the law) in a Bill of Rights. Section 10(1) provides:

Freedom based on law consists of the least restriction on the activities of individuals consistent withh… the development of Tuvalu , and Tuvaluan society in accordance with this Constitution, and , in particular, in accordance with the Principles set out in the Preamble. [s6]

Fundamental human rights and freedoms are then identified in the following section:

(1) Every person irrespective of race, origin, opinion, colour, religious beliefs, or sex has the right to the following rights and freedoms:

A) to life ( section 16);

B) personal liberty ( section 17/18);

C) security for the person ( section 18/19);

D) protection of the law ( section 22);

E) freedom of belief( section 23);

F) freedom of expression ( section 24):

G) freedom of assembly and association ( section 25);

H) protection for privacy of the home and other property;

I) protection from unjust deprivation of property ( section 20)

From this, the Constitution seems to provide for:

i) the protection of Tuvaluan-values, and culture;

ii) that those values can be amended and changed through the development of the society;

iii) preservation of community;

iv) the rights of the individual through a Bill of Rights;

v) the rights of the family ( Christian and Church going)

There are therefore considerable problems as interests of community, and the individual may differ. Further, any variation to tradition in the interests of development needs to be assessed (there is little guidance through the Courts on this subject and one would expect that these rights will in the future be subject to Court rulings).

[s7]

On Nui Island , for example, the policy of the island is for all (save those in work) to take part in community sports on Wednesday afternoon. An individual is expected to take part – if they do not, then this can lead to serious consequences and in one particular case an individual had to lave the island because of a genuine risk that he may be seriously injured through his lack of participation. This shows the problem of an individuals right against the community well.

Further, with land being the most valuable asset for a Tuvaluan, it can be foreseen that there will be questions concerning ownership and property rights. Much of this remains unwritten ( as it represents culture) but there is much that needs to be considered particularly where commercial property is involved ( business needs land irrespective of status).

Constitutional provisions need to be read subject to and in accordance with the law, and to culture. In certain cases, it is the constitutional provision that protects the individual against the community through the protections that are given.[s8]

It has been identified as a weakness in law that those trained in South Pacific jurisdictions are from jurisdictions that are English based and are not as familiar with the Constitution as they should be. This may be true – however there is a need for these to be considered and given effect to and in developing jurisdictions this is not necessarily seen as a priority despite its importance.

Land Law

Tuvalu has a land area of 26 km over 8 islands. Land is highly valued and with a population of 10000 people and increasing at 3% per annum its scarcity is a problem. Land means power and status to those who have it and an increasing source of wealth. The island chief and members of the Kaupule will be significant landowners or the head of their family having the status that that brings.

When the British came to Tuvalu they, as with Fiji, did nothing to change traditional methods of land ownership. Their objective was to try and bring order and this they did through better administration (it was previously haphazard or non-existent) giving organization and structure. This, of course, depends on an understanding of what traditional ownership is. This will be considered later.

Custom and traditional methods of land tenure were confirmed and maintained to work with the new methods of administration. Record keeping was new – prior to this there was little documentary record with little being written down, people being reliant on memory. Further, what custom was seemed not to be clear – that needed to be clarified to give order to the systems created .For those who could understand the new system there an opportunity arose for improving their position by recording all lands that they believed were under their ownership. Given that Tuvaluans did work overseas – in Gilberts and Nauru in particular- this could cause some problems as to reliability and accuracy of the information that was supplied.

Administration

Registers of ownership were created on each island and are kept by the Kaupule. These were designed to be an accurate record. The original Registers were never to have been altered but on some islands changes have been made. The reference value is reduced. Alterations can become necessary as a result of Court cases where ownership is transferred .

These registers were based on findings of two Commissioners, Lake and Kennedy. Even though full consultation may not have been made, the Native Lands Ordinance provides that the Commissioners findings cannot be challenged and as such those form the basis for ownership. Land is therefore indefeasible if it can be shown that it was registered under a particular persons name at a particular date.

Lands Courts

Any dispute arising out of land or its possession or utilization is dealt with by the Lands Court. This Court comprises of land magistrates on each island who are expected to have a knowledge of custom and be familiar with the island. No Court member must hold either a judicial or a Government post (unless retired ) and those eligible are reduced because of this. Given the limited numbers of people on each island this does cause a problem- the Magistrate will also have to be a person of standing and a significant landowner in his own right. The system of community will mean that there are close links between all those on the island. Conflicts of interest and declaration of interest are problems to be resolved. [s9]

Further, there is no formal training of Land Justices. They have therefore little knowledge of legal procedures and in a recent Island Magistrates workshop (2001) the majority of Island Magistrates admitted that the procedures that they had used for 8 years were incorrect. This would be similar for the Lands Court.

For example, in the case of Falefaea v Fung and the Island Supermarket, the Island Chief of Funafuti sought an order for repossession of land for non-payment of rent. As a Company and given the nature of the lease, this had to be done through the High Court ( although the Company was a native one it could not be construed as being a person for the purposes of the Act). As Fung was a non-native , all non- native leases have to be approved by the Minister and can only proceed through the High Court. Despite that, a possession order was made and confirmed on appeal by the Lands Court Appeal Panel. Undoubtedly, the position of the Chief influenced the Court heavily and in the higher Court although the Panel indicated that they were not satisfied with the jurisdiction that they had, they would confirm the lower Courts reasoning. The High Court subsequently reversed the decision as being ultra vires. This reflects the nature of the problems that are experienced.

The Lands Code and Native Lands Ordinance

The Native Lands Ordinance 1956 ( section 28) declared a code of laws governing native land rights from 1^st July 1962. This created what is known as the Tuvalu Lands Code and this applies to all islands (specific provisions may apply to each- local custom ). This codified custom is the only attempt to date where custom has been put together for all the islands. These codes are followed by the Lands Court unless and until they determine that a new custom is created ( or replaces what is in existence).

The Native Lands Ordinance 1978 is the only other land statute. The Lands Code helps to put into effect and interpret the Ordinance. The two must therefore be read together.

The 1978 Ordinance establishes a Lands Court within each local Government area ( section 6 ) and procedures to be followed. Similarly the Lands Court Appeal Panel and High Court were given powers to hear appeals, the latter only on points of law rather than on matters of fact and custom.

Customary law ( as codified) therefore predates the Lands Court . The powers that that Court have are within the written instrument of its creation ( the 1978 Ordinance) and cannot exceed that. Donne CJ in Falefou v Esau ( 1991 High Court of Tuvalu) made clear that the High Court is not and never can be the arbiter of custom. That is the function of the Lands Court and on appeal of the Lands Court Appeal Panel. If a matter is for determination in accordance with custom then it is in those Courts that the case must rest. For the High Court to have jurisdiction there must be in issue a matter of law (written or through statute).

Consideration of custom therefore is for the Lands Court and Panel, on appeal, to decide. Custom must be assessed, defined, and recorded. If the Lands Court decide that there is no custom then questions of law may arise and be argued under other legal provisions. Judgments should therefore detail the custom that has applied together with the section considered. This is seldom done.

The Lands Code is 40 years old and since 1962 the foundations of Tuvalu society have changed. Does the custom that was operative in 1962 remain in force in 2002 without change? The answer is clear- custom must change as the Constitution itself recognizes. Indeed, can the High Court redefine custom if it conflicts with the Constitution itself?

It is suggested here that much needs to be done. However, custom is for the people to decide and determine – the importance of this cannot be overstated – development requires land and land planning – for that to happen the landowners have to co-operate and give security of tenure. All this currently has to be done within existing frameworks.

Land will remain the most contentious issue within Tuvaluan society. The ever increasing population and density together with the need for economic growth exacerbates this and requires a solution. This is a problem that Tuvalu shares with other small island states but one for which it must find its own answers.

The System of Land Tenure

Individual ownership of land is a new concept within Tuvalu. Land is held either Kaitasi or vaevae. Land cannot be alienated (sold to a non – native) although it would seem that it can be sold between Tuvaluans ( or the assignment to obtain the benefit of the term of the Lease).

Kaitasi is defined in the Native Lands Code as( in section 17 ):

Those people who are living or eating together on 1 estate as joint owners eg: brothers and sisters of the issue of a deceased brother or sister who were joint owners. (Joint owners may be more distantly related than brother and sister )

It usually happens that Kaitasi property is listed under the name of one person who is the head of the family group and under his name or against pieces of land or garden pits on which they are kaitasi are listed the names of the joint owners. Those persons shown as kaitasi are the only ones entitled to eat off the property shown against their names as kaitasi property.

Kaitasi therefore means that land is used and controlled for and on behalf of the extended family and membership can go back several generations. Those entitled as part of the family can be very complicated and section 1 of the Code gives further guidance where there may be an absentee member ( an increasing problem as Tuvaluans migrate overseas). However, the greater the members the more the problem. It would seem to be true to say that a kaitasi member should be on the islands or in Tuvalu although this needs to be clarified.

The head of the family is the matai – the Chief- and he will represent the family with the Kaupule and be responsible for sharing the fruits of the land and dealing with the needs of the family. He will ensure that those entitled to receive do so although this can be problematic. Custom is hard to evaluate in this area. The basis though seems to be that the family help look after each other and money is shared, to enable houses to be built by family members on land and deal with such other needs as may arise.

Land may also be vaevae. Section 17 defines vaevae as:

Whenever an estate is vaevae and each individual owner has taken his share from that estate then kaitasi does not apply.

Vaevae represents a division of lands amongst the kaitasi. This can be done by agreement before the Lands Court, or by will on the death of the head of the kaitasi.

The disadvantage of this is that as land is divided it reduces the size each member has. This may continue to be divided on subsequent deaths, although a smaller kaitasi may also be created on the smaller piece of land.

As land becomes a scarcer resource and land rents increase then it is expected that divisions amongst families will become more common. More land will be divided. This seems to be a recognition of individual family members rights being exercised to protect themselves and their families. This challenges the communal way of living and the cultural basis on which the society is based.

Family Law

Tuvaluan life is based on the family with traditional Christian values ( post the Christian missionaries in the late nineteenth century). The family is seen as husband and wife (with the husband as head of the household) and children. It is this that is recognized by culture and is embodied in the law ((Matrimonial Proceedings Act 1984).

According to culture on marriage, the wife will leave her home to live with her husband and be subject to the authority of the husband and very often to his mother ( given the shortage of housing on average 7 people live in one house including children – this will vary and some will have considerably more).

Should the wife become pregnant then she and the husband will return to her family as her mother is expected to help look after her. They will go back some months after the baby is born.

Further, if the marriage breaks down, then it will be expected for the wife to return to her own family. The children (dependant on age) will usually spend time with them both although custom prefers that they be with the father. This is because it preserves the right of the child to lands from their father.

If there are problems, the wider family will try to resolve these amongst themselves before resorting to legal measures. This may include mediation from the Island Pastor. Culture is seen to prefer the male to the female although considerable importance is given to the children. However, perceptions seem to be changing as development proceeds and women tend to stand up more for their rights.

This is shown in an increasing number of divorce and children cases. Figures from the Office of Peoples Lawyer on advice given in matrimonial cases and children matters show an increase from 1999 to 2002 such that at least 25 cases have been dealt with in 2002 to date ( an increase of 70% from 1999).This reflects the changes in society and culture. However, despite this culture does enable relationships to continue when they have broken down and where it would be in their better interest for that to be accepted. In such circumstances, it has led to a party to a marriage migrating without the others knowledge and to separations in excess of 5 years.

Given that such weight is attached to marriage, there does remain a stigma to being an unmarried mother. That seems to attach only to the mother – the father seems to receive little or no criticism. The family of the mother will carry shame and embarrassment and it is considered that the daughter will have prevented herself from marrying well in the future.

Further, should questions of paternity arise the Court may make such enquiry as it seeks fit ( under the Native Lands Ordinance s20(1))..In section 20(2) it goes on to provide that when the child reaches the age of 2 that the child shall live with the fathers family ( provided it can be shown that paternity has been accepted and that contributions have been made for the maintenance and well being of the child). This does, of course, depend on other factors such as whether the father was aware of the existence of the child. Where the father is a seaman this can be a problem.

Given that the test to be applied in custody cases is what is in the best interests of the child there does seem to be a considerable conflict in this provision , the Custody of Children Ordinance, and international obligations. Culture differs from the law in these circumstances.

The current legislation in force recognizes that there is a need for revision through its age and review not least of which to accept and embody into law the International obligations that Tuvalu has.

Child Custody - Custody of Children Ordinance Cap 20 ( 1974)

Marriage - Marriage Act Cap 29 (1968)

Matrimonial - Matrimonial Proceedings Act Cap 21 ( 1984)

Maintenance - Maintenance ( Miscellaneous Provisions) Ordinance

Cap 4 ( 1921/1973)

Further, this should consider the changes within the society itself.

International Commitments: the Rights of the Child, and Discrimination against Women

Tuvalu is a signatory to:

Convention of the Rights of the Child ( 1995 )

Convention on Elimination of Discrimination against Women ( 1999)

These therefore impose obligations on the nation – although a review of existing laws took place prior to accession , nothing seems to have been done further to identify changes that need to take place. Such an initial review took place by Mere Pulea of USP in 1993 but needs to be revisited as it was based on certain assumptions and generalizations.

Section 17 of the Interpretation Act Cap 1a provides that an intepretation of an Act that supports international obligations that have been entered into is to be preferred to one that is not. This was cited in the recent case of Eliapo Simona v R ( 2002) High Court of Tuvalu and approved by Ward CJ.

This has far reaching implications for where a statute is inconsistent with an international obligation it would seem that that will now be read as if the treaty is in force by enactment of law.

Review of existing laws can take place and any law that is regarded as discriminatory can be challenged. Interestingly although the Constitution does provide for freedom against discrimination it does not make specific reference to gender. Clearly this can be inferred subject , of course, to the fact that it should be compatible with the culture.

Herein lies the problem. What does happen where culture and the international obligation differ? In all international obligations, countries can opt out of particular Articles should they for reasons of religion or culture find it difficult to comply with. This is provided for within the Convention. In the case of Muslim countries therefore parts have been excluded through their faith. Kiribati opted out of Articles as they would oppose their culture.

Tuvalu however did not. As it has chosen expressly not to opt out then it would seem that the correct approach is that as it has been approved by the Executive then the interpretation will be that the provision of the Convention will be read as part of the existing law.

Any obligation that contradicts custom must be assessed and changed appropriately. However , it does seem that these obligations have been entered into without due consideration as to the effect that they have.[s10]

Surprisingly, there seems to be no record of Parliamentary approval to CEDAW. This is remarkable given the impact that this is likely to have. It may be that the only way to preserve culture will be to opt out and face some criticism. It would seem better to do that though than unbalance the framework of society.

Criminal Law:

Most Pacific societies have systems of punishment that include local methods of dispute resolution. This , at its most extreme level would include a revenge beating or killing for a harm done to a member of the extended family. The law will never condone such action – law should take its course without the need for such retribution.

However, traditional methods of recompense and apology will be accepted and are an essential part of the criminal system. Certain crimes are recognized as being contributed to by culture. For example, night creeping (criminal trespass by night) reflects a type of courtship in which a male is showing interest in a female without doing so directly in front of others. In cases such as this, the Court will wish to know whether an apology has been made and accepted to the head of that household. If so, any sentence will reflect the apology made.

Current criminal law is based on a Penal Code that dates back to colonial times and is in need of review to consider changed circumstances. This is the same in many other Pacific countries. Certain old English legal concepts such as larceny remain in force even though they were discarded by English law in 1978. Tuvalu has certain offences such as unlawful fighting that reflect problems when Tuvaluans used to fight with Gilbertese on Tarawa. This has now been superseded through its own history.

Culture also has an impact on why there seem to be so few offences of a certain type. Sexual offences are in particular not high. These offences do bring shame to the family involved and are often resolved by reconciliation between the parties and their families. In certain cases of rape this can even lead to marriage which may lead to problems throughout the marriage.

As in other areas, there needs to be an examination of existing law and practice and review. This affects all procedures (which tend to be those created under Colonial rule) and the offences themselves. Better and more co-ordinated sentencing between the Courts and more regular sittings of the High Court should ensure that justice is provided more quickly in the serious cases and momentum given to this process. From 1999 to 2002 there was no High Court – justice delayed is justice denied.

Further, this should reduce the demand for traditional justice mechanisms. However, the power to send an offender back to his home island if it is felt that life on the capital has too much temptation and difficulty is still widely used. In R v Tautai Mila , CJ Ward sentenced the offender to 4 months imprisonment for embezzlement and a further one year to be served on his home island, Nui. The aim was to deal with the problem- it was accepted that as a first time offender that this would be better rather than a longer term of imprisonment.

Conclusions:

Throughout this paper, certain themes emerge. Customary law is in existence, and is used in land matters , family law, and to a lesser extent in crime. It is embodied within the Constitution of Tuvalu – that Constitution contains principles that seek to make clear what custom is.

Further, where custom is to be determined then custom is a question for the Courts who have power to determine it, and not in the High Court. Where the boundaries lie between customary law that is written and the authority of the High Court can be questioned and requires clarification.

Custom like common law evolves over time, and will change according to circumstances and with development. The Constitution recognizes that but does not provide a mechanism in which that is to be done. It is accepted therefore that custom can be changed by legislation or through codification. This has been given added impetus with accession to international treaties that impose positive obligations on Governments. Governments must change laws – they cannot simply standstill and do nothing.

It would seem therefore that the most prudent starting place is to try and establish what custom is and codify that practice particularly with land. The longer any delay in doing this the harder this will become. Remarkably few cases seem to raise questions of what custom is. However, in one case where an attempt was to be made to identify the matai of the family that case although filed in 2000 still remains pending.

The other major problem is that of the obligations of the individual and family and community. Individual rights are those referred to as human rights and these need to be reconciled with the family and community. It seems that in all are as where custom remains influential that there is a trend for individuals to assert their own rights rather than those of the community at large. This is seen with increasing division of lands, more divorce and child custody cases and maintenance being sought on marriage breakdown. For society to work, there needs to be an acceptance by individuals of the part that they have to play in society and their role in the community. This is under threat.[s11]

A further challenge is the international dimension. Tuvalu is not alone in seeking to increase its profile and acceding to treaties seems to be an essential part of it. However, these treaties need to be assessed critically. Laws can and must change but should not be designed to destabilize the basis of the society. Any such law should be considered carefully.

Development does bring problems – society has to learn how it can develop yet preserve the system upon which that society has been built . This presents a challenge particularly where television and media have a stronger influence than ever before. With electricity on all the Outer Islands and the growing use of the internet , these influences will extend to the whole of Tuvalu rather than to the capital, Funafuti. This is the challenge that is to be faced.

Recommendations for the Future:

1. Codify custom as you would law as part of an ongoing review of existing laws. This can preserve tradition and confirm the rules of land ownership;

2. Understand custom – a recognition that custom does evolve needs to be made. If people can agree on what custom is then these can be followed;

3. Review existing laws – what changes need to be made to accommodate international laws?

4. Legislation must reflect the needs of the society as a whole . Development is changing traditional ways of living and the society. This can be done either by the Courts or through legislation. Society is changing from a subsistence to cash economy ( especially on Funafuti ) and from community to individual ( although as wealth increases so expectation form family and community does as well );

5. What is customary law- should it simply be for the Lands Court to assess custom ?

Case Study

This paper will be concluded by a recent problem that is likely to go to Court and which mirrors contemporary Tuvaluan society.

All islands have a village area which the owners agree and accept. The status of the landowner does not change- he still owns the land but it is allocated by the Kaupule for those who are so entitled.

In the case of Funafuti, this happened when a restructuring was necessary following Hurricane Bebe in 1972. The landowners agreed that to rebuild, a village area would be created and traditional landowners rights to take possession of and use the land would be removed in interests of the community( it should be noted that this is post the creation of the Lands Code).

30 years on this land is in high demand as it is in a prime position on the capital. Despite families living on the land for that time the actual owners are seeking the land back as their need increases ( particularly for their growing families). One landowner in particular is determined to do this and has given notice on all those occupying what he alleges to be his land.

What rights do the occupier have – is there a constitutional right that will safeguard them? This reflects the community/ individual and development question. The Kaupule itself is divided – they have indicated that in the 10 previous 10 years, land occupiers should have exchanged lands. Undoubtedly action such as this, will increase hardship particularly where houses have been built and there has been a communal acceptance as to what has taken place.

Issues such as these are on the increase and it is expected these will keep the Courts busy for the foreseeable future. Custom can therefore be assessed either by the people themselves or by the Courts.

Similar situations exist on Vaitupu and Nukulaelae and such issues will increase as land becomes more scarce and valuable.

REFERENCES

Cases

Falefou v Sopepa Esau ( High Court of Tuvalu – /1991)

Eliapo Simona v R (High Court of Tuvalu – / 2002)

Statutes

Native Lands Code 1961;

Native Lands Ordinance 1978 Cap 22;

Constitution of Tuvalu – 1986;

Penal Code – Cap 8;

Matrimonial Proceedings Act – 1984;

Custody of Children Ordinance – Cap 20;

Falekaupule Act – 1997;

Treaties/ Conventions (with year of accession )

Convention on the Right of the Child (1995)

Convention on Elimination of Discrimination against Women (1999)

Books:

A History of Tuvalu: USP 1984