Legal Pluralism in Vanuatu
Vanuatu’s legal pluralism, a term which describes a jurisdiction with more than one operating judicial system. The justice system in Vanuatu has been called a “bird that flies with two wings’, requiring both to stay in flight (Forsyth 2009). One wing is the ‘kastom’, or customary justice system, rooted in local traditional practice. The other is the state justice system, based on the Western system of justice. I explore the need for separate systems by identifying strengths and weaknesses. Then I discuss the limitations in their interaction and the threats this makes to justice, before identifying the opportunities for pluralism to enhance justice outcomes.
Kastom law refers to traditional indigenous justice, where indigenous chiefs manage conflicts in their communities. Sometimes called Community Justice, it is based on traditional Melanesian values (Bule 1986) and mostly serves Vanuatu’s large rural population (75% of total) who live in small villages across 65 different islands. Forsyth (2009) points out that in small communities, people are often related by family, marriage and land ownership, making it important to manage conflict quickly and in a restorative way. The kastom system is a culturally appropriate approach to managing conflict within and between communities, focused on restoring community peace and relationships.
This system makes it easier for rural people to access justice, because chiefs live locally, speak the same language, and have existing relationships that encourages them to manage conflict quickly by bringing parties together (Forsyth 2009). Conflicts can be handled quickly by chiefs who are locally-based and have understanding of context. This would be difficult under the state system which would need to place judges on 65 islands or fly them around, a cost the government cannot support (MJCS, 2016p27). Sentencing is based on community principles and values. As these are extremely diverse in Vanuatu across over 100 language groups, the state justice system would struggle to have this cultural relevance.
However, while the system can restore harmony quickly, it does not always provide justice to its victims, especially women. Creating peace in a faster way does not protect women from future violence and may leave them feeling unheard. For example, in a domestic violence case, the chief will decide the fair exchange of goods (like pig or mats) or labour between families of husband and wife (Jolly 1994). This punishment may encourage forgiveness, but behaviours are not called out for rehabilitation to prevent future re-offending (MJCS 2013). Further, bias and favouritism are common when chiefs are related to offenders politically, religiously or by family, and disputes between chiefs themselves over whose right it is to make decisions can devalue chiefs’ authority in the community.
Another challenge is that chiefs do not share common ground, so punishment differs between communities. A large study engaging chiefs on several islands found they had very inconsistent ideas about what ‘justice’ is (MJCS 2016), rooted in local morality and beliefs. This makes justice hard to monitor, because there is inconsistent national oversight on how conflicts are resolved, posing complications for Vanuatu as it tries to fulfil its commitments to international conventions like the United Nations Convention on the Elimination of All Forms of Discrimination.
State law is built primarily on Western criminal, civil law and common law systems. This system is more suited to urban areas of Vanuatu, where people come from different islands with different traditional beliefs, separated from the extended families and deeper relationships that give the community system its strength. While the community system focuses on restoring harmony to closer relationships in a small population, the state system is focused on maintaining harmony(or obedience) in the high-population environment where the role of justice is to deter crime through threat of punishment.
The state system, with its measures to remain objective, can benefit victims. A large report on access to justice found victims of crime using the state system reported a higher level of satisfaction with the state process than the community system. This was higher for women: 81% were satisfied with their experience with a magistrate, compared to 64% with chiefs (MJCS 2016, p19).
The state system may provide a more comfortable environment for women to raise issues of violence than a community setting, where they are seen as creating unnecessary conflict (Taylor 2008). Because domestic violence is normalised (Tor&Toka 2004) women who report violence in the community system may experience shame before their families, and face backlash from the community they live with (MJCS 2008, p28).
As the state system is more complex and formalised, there is better recording of case outcomes, resulting in greater accountability and public visibility. Judges are required to report conflicts of interest and can be punished for not doing so, which makes them less likely to know the offenders and victims and be biased towards them.
However, the state system is unable to deliver many benefits of the community system. It is well-equipped to issue punishment, but not to rehabilitate offenders and restore harmony. This system has even been found to increase violence through acts of revenge where decisions did not reflect community values, or restore relationships (MJCS 2016 p25). It does not account for cultural traditions related to land ownership, understandings of black magic(and accusations of its use)(MJCS 2016, p5). This creates low confidence in the system, exacerbated by poor public confidence in police, who are seen to exploit their authority and lack expertise in law and fair policing techniques. The formal legal system is based on who can make their case more clearly, which requires detailed knowledge of law or access to expensive lawyers, which few people can afford(MJCS 2016, p32). These economic and awareness barriers combine with geographical and linguistic barriers, making access to state law very poor.
These limitations of both systems create the need for legal pluralism (Forsyth, 2009), however poor interactions between systems pose many threats to justice in Vanuatu. There is a lack of clarity about which system should cover what, and poor collaboration between the systems to exploit their strengths. Changes in national law (and importantly, education on the purpose and benefit of these changes) are poorly communicated to the kastom sector (Forsyth 2009).
As ni-Vanuatu community life is shaped by modern influences, young people begin to lose faith in the authority of chiefs (Cumming 2008), and chiefs feel increasingly disempowered as the state overrules them and prohibits their coercive powers (Forsyth 2009). Meanwhile offenders claim the illegitimacy of state law, which is seen as foriegn, colonial, and domineering (Forsyth 2009,MJCS 2013,2016). There is often disdain between chiefs and police, who claim the illegitimacy of the other system (Forsyth 2009, MJCS 2016). This damages their ability to work together cooperatively.
Forsyth (2009) proposes a move from a ‘legal pluralist’ view towards Svesson’s (2005) inter-legality, emphasising ‘continuous interaction…between different legal perceptions…influencing and shaping new normative orders adapted to considering cultural diversity’(cited in Forsyth 2009 p161). This more integrated approach could be achieved through improved mutual learning between systems. If people working in each (chiefs, police, judges) understood the philosophy and practice of the other system better, they may feel less negatively and be encouraged to bring this understanding into their work. Sharing procedures could help chiefs to learn decision making procedures, management and monitoring techniques, how to assess the quality of evidence, and how to identify bias. It could also teach the state system to adopt a less adversarial approach, to bring cultural relevance into law, to emphasise harmony and rehabilitation, and to make offenders and their families feel more supported and heard through the process (Forsyth 2009).
This kind of relationship would help the state system to educate chiefs on the reason behind new laws, like those related to gender equality, and how these laws can benefit their communities (MJCS 2013). Involving magistrates from the state system collaboratively with chiefs, in ways which do not undermine their authority, could improve confidence of chiefs and their communities and provide learning opportunities for magistrates on peaceful and culturally appropriate conflict resolution (Forsyth 2009). Likewise, involving chiefs in state justice processes could make offenders more receptive to sentencing, open to change, and less hungry for revenge. All of this would help to improve citizens’ faith in the authority of the kastom system, and the relevance and importance of the state system.
To explore this, imagine a man is arrested for fighting in a nightclub. Today, he would be locked up for a few days at the police station, possibly beaten, and maybe sentenced with jail time. A better solution would be for the police to take him from the station to his local chief, where the chief’s knowledge of context and ongoing relationship to the man can be used for rehabilitation. The chief feels included, and possibly grateful for the support from police who provide a risk of firm punishment, allowing the chief to focus on his role in reintegrating the boy to the community. Similarly, in a situation of domestic violence, a chief could involve police, who can explain the consequences and reasons why violence hurts his family and community. This provides a clear boundary, removing pressure on the chief from families, allowing him to focus on healing the relationship.
There is a clear need for both kastom and state systems in Vanuatu, as both face limitations and are appropriate for different environments. However, justice is threatened by poor interaction and collaboration between the systems. Fortunately, opportunities exist for an improved relationship where the systems enhance each other’s strengths and support each other’s weaknesses through better mutual learning, sharing of procedures and use of key players between the two systems. Enhancing collaboration can improve justice outcomes for ni-Vanuatu people, as well as improve the faith of citizens in the work of the chiefs, police and judges who work to make Vanuatu a safe and peaceful place.
References:
Bule, H 1986, “ Law and Custom in Vanuatu”
http://www.austlii.edu.au/au/journals/QITLawJl/1986/13.pdf
Cummings, M 2008, ‘The Trouble with Trousers: Gossip, Kastom, and Sexual Culture in Vanuatu.’ In Butt,L & Eves,R (Eds.), Making Sense of AIDS: Culture, Sexuality and Power in Melanesia (pp.133–149). Hawaii: University of Hawaii Press.
Farran, S 2013, “Is Legal Pluralism an Obstacle to Human Rights? Considerations from the South Pacific”,The Journal of Legal Pluralism and Unofficial Law
Forsyth, M 2009, “A Bird That Flies With Two Wings: Kastom and state justice systems in Vanuatu, Australia National University, UNU Press,
Hon. Marilyn Warren AC 2014, “What is Justice” viewed 7 of September 2020 http://classic.austlii.edu.au/au/journals/VicJSchol/2014/12.pdf
Jolly, M. (1994). Women of the Place: Kastom, Colonialism and Gender in Vanuatu. Chur and Reading: Harwood Academic Publishers
Ministry of Justice and Community Justice 2013, Access to Justice, Pathways to Action for Women Experiencing Family Violence case report,
Ministry of Justice and Community Justice 2016, Conflict Management and Access to Justice in Rural Vanuatu Report,
https://www.dfat.gov.au/sites/default/files/conflict-management-access-justice-rural-vanuatu.pdf
Taylor, J. (2008). The social life of rights: ‘Gender antagonism, modernity and raet in Vanuatu’. In J.P. Taylor (Ed.), Changing Pacific Masculinities. TAJA (special issue) 19(2), 165–78
Tor, R. & Toka, A. (2004). Gender, Kastom and Domestic Violence: A Research on the Historical Trend, Extent and Impact of Domestic Violence in Vanuatu. Vanuatu:Department of Women’s Affairs.
