Legal Pluralism Notes

Topic 9 Recap - Challenges for Pacific Legal Systems

• Powles minimum standards:

  • The law should be responsive and understood.

  • All dispute-resolution bodies should be fair and effective.

  • Legal services should be appropriate and available.

  • The “minimum standards” help with a framework to think about what we want in legislative reform.

Topic 10 - Legal Pluralism

• Legal Pluralism: Recognizes that societies are complex and regulated by multiple sources of laws.

  • Different forms of law fulfill different functions and concern different values.

  • Certain customs can be regarded as “law” autonomously or without any necessary action by law-making agencies of the State.

  • Related to Topic 5

• View of some:

  • Sociologists (legal sociology)

  • Lawyers (legal realism)

  • Anthropologists

  • Law as a rule that is enforceable by an external authority.

  • Authority not necessarily that of the State – may be a social group.

• Importance in the Pacific:

  • Customary law exists as a separate or parallel legal system in all USP member countries.

  • Customary law is also integrated into State legal systems.

• Terminology

  • Custom/customary law used interchangeably.

  • Local values, practices, norms, ways of doing things.

  • Some authors say customary law a subset of custom – just the ways of doing things that can be enforced through customary authority.

• Custom Features (generalizations):

  • Traditionally unwritten.

  • Informal/spontaneous.

  • Conservative (traditional).

  • Reciprocity (in the sense of knowing rules and following them in respect of others within the community) importance for the strength of custom.

  • Usually self-help remedies.

  • Status dependent.

Custom and Common Law Introduction

• English customs have evolved in England into common law.

• English parliament has evolved from English custom, practice, politics.

• Local Customs in England

  • Customs = first laws on the basis of practices, habits, and usages of different localities in a country.

  • Gradual change because:

  • Widespread social and economic changes needed more centralized responses.

  • Instead of local courts, royal courts established by the King applied general unified customs of the kingdom, or the common law, rather than local customs.

  • Rise of legislation.

• Custom still part of UK law

  • For local customs to be recognized in English courts, custom must meet three criteria:

  • Immemorial usage.

  • Certain.

  • Reasonable.

• Custom v other sources of law in England

  • An Act of Parliament may abolish a custom either by express provision or by the use of words that are inconsistent with the contained exercise of the custom.

  • On the other hand - local custom replaces the common law in the area where it is held to exist (remember the three conditions that need to be fulfilled!).

• What might this mean for the Pacific?

  • In countries where custom is recognised as a general source of law, alongside statute, common law, and equity; then, in theory/legal principle it may be that custom overrides common law and equity.

Legal Status of Customary Law in the Pacific

• Customary Laws in the South Pacific Evidence of the availability of custom is visible in the following aspects:

  • Constitutional preambles.

  • Recognition of custom as a source of law.

  • People’s behaviour.

  • Norms and values of community members.

  • Court decisions.

  • Traditional economy.

  • Laws aiming at preservation of traditions, cultures, and customs.

• Customary law vs custom

  • Colonization was accompanied by the introduction of new systems of government, law, economy, and religion.

  • This resulted in:

  • Multicultural societies.

  • New, larger settlements.

  • New political, economical, and legal systems created.

• Factors influencing contemporary custom

  • Developments result in a change in the context and content of customs or customary systems of the Pacific islands.

  • Changes include:

  • Need for education.

  • Introduction of the cash economy & income generation.

  • Acquisition of new individual properties.

  • Development of the concept of a nuclear family.

  • New religious and political philosophies.

  • Personal rights etc.

• What is the legal status of customary systems?

  • Customary laws were sometimes supplanted by the introduced state legal systems.

  • Sometimes customs and customary laws were maintained & recognized as part of the national legal system, subject to certain conditions.

The Legal Status of Customary Law – Application provisions

• Cook Islands

  • Customary laws still not provided to be part of the law of the country, except as the basis for determining title to, and interest in, customary land: ss421, 422 Cook Islands Act 1915 NZ.

• Fiji

  • Fijian customary law continues to be the basis upon which determination of interests in customary land are required to be made (Native Lands Act Fiji).

  • Until 1990 - there was no provision for customary laws to be part of the law of Fiji Islands.

  • In 1990, Fijian customary law was stated by s100 Constitution of Fiji to be part of the law of Fiji Islands, except so far as it is inconsistent with the Constitution or a statute, or repugnant to the general principles of humanity.

  • This was again abolished in the 1997 Constitution with abolition continued in the 2013 Constitution.

• Kiribati

  • Customary law continued to be the basis upon which interests in customary land are to be determined - Section 58 Magistrates' Courts Ordinance 1978.

  • 1978 - Magistrates' Courts were authorised by legislation to apply customary law in minor civil and criminal proceedings within their jurisdiction, provided it was not repugnant to natural justice, equity and good conscience or inconsistent with any law for the time being in force (s42 Magistrates' Courts Ordinance 1978).

  • This was continued in force as part of the existing laws of Kiribati by s5 Kiribati Independence Order 1979 UK.

  • 1989 - Application of customs was extended to all Courts by s5 Laws of Kiribati Act 1989, which stated that customary law is part of the law of Kiribati except to the extent that it is inconsistent with the Constitution, or legislation or subsidiary legislation in force in Kiribati, and shall be applied in criminal cases and in civil cases with regard to those matters specified in the Act.

• Marshall Islands

  • Customary law is part of the "existing law" of the Marshall Islands which has been continued in force by Article XIII, Section 1(1) of the Constitution.

  • Customary is defined by Constitution as "any custom having the force of law in the Marshall Islands; and includes any Act declaring the customary law“

  • Constitution further states the Nitijela may make declarations of customary law.

  • Courts held to have implied power to recognise custom as having the force of law.

  • However Art.11 of the Const. states that fundamental rights shall not invalidate "the customary law or any traditional practice concerning land tenure or any related matter.”

• Nauru

  • Custom and Adopted Laws Act 1971 - Declared the rules of custom and customary law to be part of the law of Nauru and to be applied to all matters of title to and interests in land, dispositions of property by Nauruans, succession to the property of Nauruans, and matters affecting Nauruans.

• Solomon Islands

  • Schedule 3 – Declared the rules of the customary law to be applicable save so far as the are not inconsistent with the Constitution/legislation or subsidiary legislation.

  • Customary law takes priority over the principles of common law and equity.

• Tokelau

  • Tokelau Amendment Act 1967 NZ – Custom to form the basis upon which beneficial title to land in Tokelau is to be determined

  • But - There is no provision for custom to be part of the law of Tokelau in any other respect.

• Niue

  • Customary law forms basis for determining titles to, and interests in, customary land.

  • There is no provision for customary law to form any other part of the law

• Tuvalu

  • C/Law recognized as the basis for determining rights of ownership & use of customary land (See Native Lands Ordinance 1965)

  • Island Courts (1963) & Magistrates' Courts (1965) - allow parties to use local law or custom not repugnant to natural justice, equity and not inconsistent with current law.

  • 1987 - ss4-5 Laws of Tuvalu Act 1987 – C/law to be part of the law to be applied by all courts with regard to those matters that were specified in the Schedule to the Act, except to the extent that it is inconsistent with Constitution/ legislation or subsidiary legislation in force in Tuvalu

• Tonga

  • No provision for customary laws to be applied as part of the law of Tonga.

• Vanuatu

  • Constitution (Art. 72) – Customary law form the basis of ownership and use of land.

  • Constitution (Art. 95(3)) - Customary law to continue to be part of the law of Vanuatu.

  • 1983 – s10 Island Courts Act - Islands Courts to "administer" customary law prevailing within the territorial jurisdiction of the court, so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order

• Samoa

  • Const. (Art.100) – Custom forms the basis for determining the right to hold matai titles and customary land.

  • Const. (Art.111) – Custom to be part of the law of Samoa if they have "acquired the force of law in Samoa or any part thereof under the provisions of any Act or under a judgment of a court of competent jurisdiction.“

  • Very few customs given that force of law – e.g. those relating to matai titles and title to customary land.

  • Since independence - No reported instance of a court having recognized Samoan custom.

  • Banishment – Court refused to accept it as a customary punishment.

What Emegres?

• A very diverse (= confusing!) picture of legal systems in the South Pacific

• You need to look at individual countries in order to find out about the current status of customary law v state law

• Customary law is usually more important in matters involving land

• Current ‘hierarchies’ of laws in SP countries are rather confusing as they tend to place all sorts of laws on equal footing

Impact of Custom as a Source of Law?

• Impact quite limited

• A number of practical reasons for this, stemming from general tensions between different sources of law.

Practical problems

• Lack of guidance as to application of customary law

  • To what matters do customary laws apply?

  • Is customary law applicable only to persons belonging to the same 'customary' group?

  • What is the scope of application of customary law to the general population?

  • The answers to these and related questions may only be given by the legislatures by way of appropriate enactments.

• Proof of Customs –

  • Unwritten, uncertain and controversial.

  • Must be proved in court

  • Formal law needs to devise special procedures to deal with evidence on customary law issues.

  • use of neutral expert witnesses, expert referees and assessors and use of textbooks.

  • Judges allowed to use their personal knowledge and to take judicial notice of notorious customary laws.

  • Customs should not be treated as a question of fact but of law.

• Review of 'Customary' Tribunals Decisions by the Courts –

  • Is the High Court a proper body for reviews?

• Failure of Counsels to raise or plead proof of custom –

  • Resulting in courts not dealing with the relevant issues of custom.

  • Proof of customs is a burdensome task.

  • Counsels unfamiliar with customs by virtue of their training based on positive laws.

  • Judiciary often unsympathetic to customs – due to legal training or social backgrounds of magistrates and judges.

• Legal subjection of customs to the Constitution and other written laws.

Overcoming Problems: Custom in Case Law

• Argument/hypothesis

  • Local values, norms and practices are being reflected in case law – particularly since the advent of law reporting via PacLII

• Method

  • Random examination of all cases from 1 session of 2014 Court of Appeal. How much local case law is used? Nature of cases/decisions SI Court of Appeal May 2014/ ST 1

• Local case law is becoming dominant

  • Subject matter “Pacific” in flavour

  • Poor processes/record keeping in Courts Corruption/politicisation, Tensions of land ownership, Tensions of natural resource ownership

Overcoming Problems: Custom in Statute

• Argument/hypothesis

  • Local values, norms, practices and environment are being reflected in statute law

• METHOD

  • Random examination of some statutes from past 2 – 3 years (plus one “cheat” from RMI) in the course of 1 hour

  • How many references to custom or local values?

CONCLUSION: Why have a pluralistic system?

• Why continue with customary law?

  • Law is but a product of the society.

  • Law must reflect the political, economic, social, religious and moral fabric and aspirations of that country.

  • It also reflects the belief in God, democracy, human rights and multi-ethnicity, customs and customary laws make up a large part of the identity of the people in a country.

  • These reasons are all manifested in the Preambles of the Constitutionsof many countries in the Pacific

• Kiribati Constitution says:

  • “We the people of Kiribati with faith in the enduring values of our traditions and heritage do now grant ourselves this Constitution. In implementing this Constitution, we declare that

  • 4. We shall continue to cherish and uphold the customs and traditions of Kiribati.”

• Marshall Islands Constitution says:

  • “WE, THE PEOPLE OF THE MARSHALL ISLANDS… have reason to be proud of our forefathers who boldly ventured across the unknown waters of the vast Pacific Ocean many centuries ago, ably responding to the constant challenges of maintaining a bare existence on these tiny islands, in their noble quest to build their own distinctive society.

  • This society has survived, and has withstood the test of time, the impact of other cultures, the devastation of war, and the high price paid for the purposes of international peace and security. All we have and are today as a people, we have received as a sacred heritage which we pledge ourselves to safeguard and maintain, valuing nothing more dearly than our rightful home on these islands…”

• Constitution of Solomon Islands:

  • “We the people of Solomon Islands, proud of the wisdom and the worthy customs of our ancestors, mindful of our common and diverse heritage and conscious of our common destiny, do now, under the guiding hand of God, establish the sovereign democratic State of Solomon Islands”.

Why these preambles?

• Multiculturalism

  • acknowledges the idea that multiculturalism or the cultural diversity of ethnic groups defines the values of the state (See Fiji, Sol. Is., Vanuatu)

• Recognition of the role cultural or customary norms play and the need to use them in the system of governance.

• Legal decolonisation – A belief that the system of laws of the former colonies must be founded on our own customary systems and norms.

• The practical reason - Customs and customary laws are still alive and well in many societies within some Pacific Island countries today.

• Legal recognition of customs

  • Law should reflect norms of the people so that they may readily relate to the law that is similar to them.

Post-colonial divergence: foundations

• Common law adopted only so far as suitable for local circumstances (exact statutory wording varies by jurisdiction)

• Nyali Ltd v Attorney-General [1956] 1 QB 1, per Lord Denning:

  • – the common law is to apply 'subject to such qualifications as local circumstances render necessary.' This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English Common Law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending, so with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away.

• Affirmed in Solomon Islands Water Authority v Commissioner of Lands [2015] SBHC 58.

Other Pacific examples

• Namatak v Public Prosecutor No 1 [1986] VUCA 4

  • – We are in a newly emerging nation which was jointly administered by France and England according to French and English laws. Vanuatu no longer, relies upon Westernised sophistication and must develop its own approach. The Courts should not be quick to grasp at hair splitting technicalities.

• In re the Constitution, Timakata v Attorney-General [1992] VUSC

  • – In real terms it means that, although the Courts of Vanuatu are not bound by any decisions of any of those courts, it can, nevertheless, allow itself to be guided and influenced by decisions of Courts such as those of the U.K, Canada, Australia, New Zealand, India, Papua New Guinea and others, within the Common law system. It can thus enrich its own jurisprudence by putting to good use and effect, those rules of law which have proved wise and successful and to have been well tested in other jurisdictions.

Pacific examples continued

• ANZ Banking Group Ltd v Ale (Uligia) [1980-83] WSLR 468

  • – The debate as to whether all civil disputes must fall either into contract or tort or quasi-contract is a legitimate category it seems to me must be rather bemusing for the pragmatic bystander in the South Pacific half a world away from the esoteric discussions taking place in the Courts of England – the courts in Western Samoa should not be bogged down by academic niceties which have little relevance to real life

Divergence example: Vanuatu Parliament/constitution cases

• Forthcoming article analyzing Carcasses v Boedoro [2014] VUSC 155 & Boedoro v Carcasses [2015] VUCA 2 (attempts to suspend mps)

  • – Clear divergence from English common law

  • – Distinct local jurisprudence built up consistently over numerous precedents

  • Primarily local

  • PNG precedent also used

  • Jurisprudence rejected by Nauru Keke v Scotty [2014] NRSC 7

Possible divergence? Intention in family & social arrangements

• English contract law:

  • Both parties must share an intention to form a legally binding contract

  • Agreements between family & in social settings are presumed not to be intended to be legally binding

• Corrin: This presumption can be easily rebutted

  • Some academic commentators suggest presumption has no place in modern contract law as it rests on an archaic public/private distinction that is now overturned in other areas of law

• Intention to be determined using an objective standard (what a reasonable person would have assumed, from actions/context, the other party intended)

Chand v Kumar (Fiji)

• Chand nephew of Kumar. Two contracts. One for Chand to buy house from Kumar. One for Chand to rent house from Kumar. Tenancy agreement an interim arrangement whilst house sale was sorted out.

• Court found the house sale agreement was not legally binding due on grounds unrelated to intention.

• Court found tenancy agreement not binding/legally enforceable as it was a family arrangement – even though it was in writing.

Chand continued

• This is another of those family disputes which take up a considerable amount of the time and resources of this Court. My experience so far is that these cases make up about 75% of the case load. It is true that a person is entitled to his day in Court but there must be a better and more efficient and less antagonistic way of resolving such disputes. Most of such disputes scream for settlement out of court and the legal profession could greatly assist the functioning of this Court by a more aggressive approach to settlement.

• Decision can be read as an expression of a cultural context that does not comfortably recognise the legitimacy of the State in resolving domestic disputes.

• Another interpretation located within the local context of restorative justice is also possible, as no winner and loser – instead both sides lost/won something

• On both readings of the case, although English common law principles may not have been applied rigorously, a suitably (P)pacific outcome was achieved.

Reweru v Agigo (Nauru)

• Parties related – nephew/uncle & spouses. Plaintiffs had a motorcycle import and sale business. The defendants were awarded a government contract to import motorcycles. Parties made an oral agreement for plaintiffs to do import for defendants. Question arose of whether defendants had to pay import costs

• Case straddles intention to form a contract & intention examined to determine construction of oral contract

Reweru continued

• NO OBLIGATION:

  • The plaintiffs assumed this was a purely business arrangement and proceeded on that basis; whereas the defendants saw it as a business cum family arrangement benefiting both nephew and uncle. This coloured the parties' respective understanding of what the transaction including the sharing of costs entailed. ..

• The initial approach to the first plaintiff by the first defendant had been on the basis of their close blood relationship. The defendants were prepared to share the 'windfall' of the Government contract with their close relatives but the plaintiffs clearly perceived matters from another perspective.

• Judge appeared to take into account the cultural considerations that a reasonable Nauruan would be operating under in order to determine whether a contract had been formed.

• Common law principle not altered but presumption that intention to form a contract is lacking is stronger in the Pacific than contemporary Australia/NZ/UK maybe?

Contract cases as “evidence” of Pacific jurisprudence?

• At the moment they are interesting anomalies

• Neither case has been subsequently used yet

• Cases suggest potential for gentle evolution – common law principle being interpreted and evolving into stronger presumption in light of cultural context

• Cf Australia, presumption weakening due to cultural context that rejects public/private distinction as being an aspect of discrimination against women

• The area of law warrants further tracking

Pacific research agendas

• State law and customary law

  • How legal pluralism functions

• The transplantation of politico-legal systems

  • Evolution/hybridisation/localisation

• Subject specific

  • Doctrinal evolution of common law

  • Statutory development/reform

Note

• Local values and practices permeate Pacific