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‘Barava Tru’*: Judicial Approaches to the Pleading and Proof of Custom in the South Pacific

Published online by Cambridge University Press:  17 January 2008


[I]t is the transformation of custom into customary law—into something that State courts will recognize, enforce and require—that disrupts the continuity of the indigenous systems. In pre-colonial times … [the settlement of disputes] … depended … on the mutual processes of negotiation and compromise. There is no need to romanticize these processes…. But the important point in this context is that norms play a very different part in negotiations to that which they play in legal processes. They may be used to stake out negotiating positions as a starting point from which to proceed or as a sounding board as to the correct procedure in the cultural and symbolic sense, but they cannot be cited as rules or conditions that will be imposed.1

Copyright © British Institute of International and Comparative Law 2002

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1 Chanock, M, ‘Neither Customary nor Legal: African Customary Law in an Era of Family Law Reform,’ 3 International Journal of Law and the Family 7288, 80 (1989).CrossRefGoogle Scholar

2 Like all generalisations, this one is subject to many exceptions. There were (and still are) in both Africa and the Pacific, many societies that differed from the norm described here. In the Pacific, for example, Polynesian societies such as Samoa and Tonga were characterised by marked division between kings and nobility on the one hand and commoners on the other. In Africa, there were large nations, governed by royal families and extending their sway over vast territories. There are numerous ethnographies, histories, and memoirs reconstructing the stories of pre-colonial societies. Examples can be found in the references cited in Chanock, M, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge, 1985)Google Scholar, and Zorn, J and Care, J Corrin, Proving Customary Law in the Common Law Courts of the South Pacific, Occasional Paper Number Two (London: The British Institute of International and Comparative Law, 2002).Google Scholar

3 Hoebel, EA, The Law of Primitive Man (New York: Scribner, 1968)Google Scholar; Gulliver, PH, Disputes and Negotiations: A Cross-Cultural Perspective (Studies on Law and Social Control) (New York: Academic Press, 1979)Google Scholar. See also the ethnographies collected in Epstein, AL, (ed) Contention and Dispute: Aspects of Law and Social Control in Melanesia (Canberra: Australian National University Press, 1974)Google Scholar, and in Bohannan, P, (ed) Law and Warfare (New York: Doubleday, 1967).Google Scholar

4 Chanock, above, nn 1 and 2.

5 Bayne, P., ‘Legal Development in Papua New Guinea: The Place of the Common Law,’ 3 Melanesian LJ 9 (1975).Google Scholar

6 Chanock, above n 1, 77–8.

7 AM Strathern, ‘Official and Unofficial Courts: Legal Assumptions and Expectations in a Highlands Community,’ New Guinea Research Bulletin No 47 (1972).

8 Chanock, above n 1, 81–3; id, above n 2, 172–91; Zorn, ‘Family Law—Marriage and Divorce’, in Zorn, J, Custom and Customary Law, Course Book One (Suva: University of the South Pacific, University Extension, 1994), 84102Google Scholar; McRae, H, ‘Reform of Family Law in Papua New Guinea’, in Weisbrot, D, Paliwala, A, and Sawyerr, A (eds), Law and Social Change in Papua New Guinea (Sydney: Butterworths, 1982), 132.Google Scholar

9 Chanock, above nn 1 and 2; see also id, ‘Law, State and Culture: Thinking about Customary Law after Apartheid,’ Ada Juridica (1991), 5270Google Scholar. Writers who have also argued that the colonial experience in general, and courts in particular, convert custom into customary law, include G Woodman, ‘Some Realism about Customary Law: The West African Experience’ (1969) Wisconsin LR, 128; Gordon, R, ‘Vernacular Law and the Future of Human Rights in Namibia’, Ada Juridica (1991), 86103Google Scholar; and, Snyder, F, ‘Customary Law and the Economy,’ 28 J African Law 34 (1984)CrossRefGoogle Scholar. For a similar argument about what happened to custom during the colonial period in the Pacific, see Fitzpatrick, P, ‘Traditionalism and Traditional Law,’ 28 J African Law 20 (1984).CrossRefGoogle Scholar

10 Chanock, above n 2, 113–21.

11 Ibid, 177.

12 Chanock, above n 2, 188.

13 Ibid p 177

14 Moore, SF, Law as Process: An Anthropological Approach (London: Routledge & Kegan Paul, 1978), 55–8.Google Scholar

15 Actually, most colonial societies consisted not just of two cultures (that of the colonisers and that of the colonised) but of many cultures, since, in both Africa and the Pacific, indigenous cultures differ from one tribe or clan to another, from one region to another, even from one village to another. Moore, , Social Facts and Fabrications (Cambridge: Cambridge University Press, 1986)Google Scholar (on Africa); Gordon, R and Meggitt, M, Law and Order in the New Guinea Highlands: Encounters with Enga (NH Hanover, University Press of New England, 1985)Google Scholar (on the Pacific).

16 See, eg, Loumia v DPP [1985–6] SILR 158 (Solomon Islands) (court did not accept in defendants' excuse that customary payback norms required that they kill the victim); B Ottley, and Zorn, J, ‘Criminal Law in Papua New Guinea: Code, Custom and the Courts in Conflict’, 31 American J Comparative L 251 (1983).Google Scholar

17 Weber, M, Law in Economy and Society (New York: Simon & Schuster; 1967 [originally published 1925]).Google Scholar

18 Another way to phrase this might be to say that custom and state law disagree about what makes situations similar or different. Customary processes are based on the belief that every situation is unique, and demands a special mixture of norms in order to be resolved. To the extent that custom recognises similarities, it would be only if every fact—especially the facts of relationship, power and status—were the same. State law essentially believes that there are many situations similar enough so that the same rule, or a carefully worded exception to that rule, can apply. Moreover, at state law, the similarities do not concern status or relationship—except where those figure as elements of the rule, as in statutory rape, incest, intestate succession, or other rules based directly upon kinship.

19 Chanock, above n 2, 183–4.

20 For the primary mention of the custom in the Old Testament, see Ruth, 4:9–17.

21 Chanock, above n 2, 183–4.

22 Zorn, , ‘Lawyers, Anthropologists, and the Study of Law: Encounters in the New Guinea Highlands,’ 15 Law & Social Inquiry (1990), 271304.CrossRefGoogle Scholar

23 Redfield, R, The Little Community (Chicago: University of Chicago Press, 1973).Google Scholar

24 Llewellyn, KN and Hoebel, EA, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1983 [originally published 1941]).Google Scholar

25 Mair, L, Australia in New Guinea (Melbourne: Melbourne Univ. Press, 1970)Google Scholar; Wolfers, E, Race Relations and Colonial Rule in Papua New Guinea (Sydney: Australia and New Zealand Press, 1975).Google Scholar

26 Narakobi, B, ‘We the People, We the Constitution,’ in Zorn, J, and Bayne, B (eds), Lo Bilong Ol Manmeri, (Port Moresby: University of Papua New Guinea, 1975), 19Google Scholar; Sir M Somare, ‘Law and the Needs of Papua New Guinea's People,’ in Ibid, 14. For the argument that this hortatory use of custom also changes it (or, at least, misstates it), see Keesing, RM, ‘Creating the Past: Custom and identity in the Contemporary Pacific’, 1(1) Contemporary Pacific (1989).Google Scholar

27 Chanock argues that it is not necessary to view custom as ‘law’ in order to believe that it is the equal of state law. The legal pluralists offered a slightly different solution to the dispute. They posited that, in every society, there are many laws, one for each ‘semi-autonomous social field’ (each family, work or school group, club, church, or other organisation) to which each actors belongs, and that many of these non-state sources of law have more immediacy and more power over individuals than does the state. Griffiths, J, ‘What is Legal Pluralism?24 Legal Pluralism, 1 (1986)Google Scholar; Moore, above at n 14.

28 Zorn and Corrin Care, above at n 2.

29 Chanock, above at n 2, 183–4.

30 See, eg, para(a) of the declaration in the Preamble to the Constitution of Solomon Islands, schedule to the Solomon Islands Independence Order 1978, SI 1978/783 (UK).

31 See, eg, s 76 and Sch 3, Constitution of Solomon Islands 1978.

32 Care, Corrin, et al, Introduction to South Pacific Law (London: Cavendish, 1999), 37–8Google Scholar; Zorn, , Custom and Customary Law, Course Book Two (Suva: University of the South Pacific, 1994), 3845.Google Scholar

33 The rules of evidence in most common law courts also require that foreign law be proved, which means that, in those jurisdictions which require that custom be treated as fact, custom, is treated as if it were imported, whereas the introduced common law is treated as if it were home grown.

34 Allen, CK, Law in the Making, 7th edn (London: Oxford, 1964), 132.Google Scholar

35 Ibid, at 129.

36 Ibid, at 130.

37 Zorn and Corrin Care, above n 2, 4–19.

38 Allen, above n 34, 129.

39 See, eg, Constitution of Solomon Islands 1978, Sch 3, para 3.

40 For further discussion of the nature and limitations of the adversarial system, see Ipp, DA, ‘Reforms to the Adversarial Process in Civil Litigation’ (1995) 69 ALJ 705Google Scholar; Eggleston, LR, ‘What is Wrong with the Adversary System?’ (1975) 49ALJ 428Google Scholar; Twining, W, (ed), Legal Theory and the Common Law (London: Blackwell, 1986).Google Scholar

41 Epstein, AL (ed), Contention and Dispute: Aspects of Law and Social Control in Melanesia, (Canberra: Australian National University Press, 1974).Google Scholar

42 Allen, above n 34, at 96–7.

43 For a longer look at constitutions and statutes, see Zorn and Corrin Care, above n 2, at 4–25.

44 Constitution of Fiji Islands 1997, s 186(1); Constitution of Marshall Islands 1978, Art X, s 2; Papua New Guinea Constitution 1975, Sch 2.1, para (3); Constitution of Solomon Islands 1978, Sch 3, para 3(2); Constitution of Vanuatu 1980, Art 51.

45 Underlying Law Act 2000 (PNG); Laws of Tuvalu Act 1987; Laws of Kiribati Act 1989; Customs Recognition Act 2000 (SI) (not yet in force).

46 Niue Act 1966(NZ); Custom and Adopted laws Act 1971 (Nauru).

47 Evidence Act Cap 15, s 5 (Tonga); Evidence Act Cap 1, 28 MIRC, s 56 (Marshall Islands).

48 The Island Courts Act, Cap 122, s 22 (Vanuatu); Land Act Cap 132 s 144 (Tonga).

49 eg, the Wills Probate and Administration Act Cap 33 (Solomon Islands).

50 Zorn and Corrin Care, above n 2, at 4–13.

51 Laws of Kiribati Act 1989; Laws of Tuvalu Act 1987; Underlying Law Act 2000 (PNG).

52 To'ofilu v Oimai, unreported, High Court, Solomon Islands, Civ App. 5/96, 19 June 1997 (held that an evidentiary hearing was required before the Local Court's findings about custom could be overturned); Banga v Waiwo, unreported, Supreme Court, Vanuatu, Civ App. 1/96, 17 June 1996 (held that custom can be used only as a last resort, when no other law, local or imported seems applicable, and, if custom were to be used, a hearing would be necessary; this holding would probably be overruled today); Remengesau v Sato, unreported, Supreme Court, Palau, Civ App 5/93, 6 Mar 1994.

53 For an exception, see, eg, Toofilu v Oimai, unreported, Supreme Court, Solomon Islands, Civ App 5/96, 19 June 1997. See also Gelua v Kakamo, unreported, High Court, Solomon Islands, Land App. 6/91, 4 Feb 1994.

54 eg, in Akubor v Nauru Lands Committee and Jones, unreported, Supreme Court, Nauru, Land App. 5/91, Dec 1997, Dillon J invited the parties to offer expert testimony on the relevant custom, and, when the parties failed to supply such testimony, used the custom in deciding the case anyway. The Supreme Court of the Republic of the Marshall Islands encourages judges to take judicial notice of those customs that are widespread and well-known: Jacklick v Jejo, unreported, High Court, Marshall Islands, Civ App 42/83. This follows the previous practice of the Trial Division and the Appellate Division of the High Court of the Trust Territories, applying the Trust Territory Code, s 21, see, eg, Mutong v Mutong (1964) 2 TTR 588Google Scholar; Basilius v Rengiil (1963) 2 TTR 430Google Scholar; Kenyul v Tamangia (1964) 2 TTR 648Google Scholar; Lanjutok v Kabua (1968) 3 TTR 630Google Scholar. The rule in the Supreme Court of the Federated States of Micronesia is less clear; see, Alaphonso v FSM, 1 FSM Intrm. R 209 (App. 1981); Semens v Continental Airlines, Inc, 2 FSM Intrm R 131, 140–1 (Pon 1985)Google Scholar. Tonga has avoided the question by asserting that custom is written into its statutes: G Powles, ‘Tonga’, in Ntumy, M (gen ed) South Pacific Islands Legal Systems (Honolulu: University of Hawaii Press, 1993), 315–41, 318–19Google Scholar. An exception is Palau, where the courts do require custom to be pleaded and proved, : Ngirmekur v Municipality of Airai, 7 TTR 477 (1986)Google Scholar; Udio and Irorow v Dirrechetet, 1 ROP Intrm R (App Div 1984).

55 Judges often discuss customary rules as if they were facts, not rules. See, eg, Manie & Kaltabang v Kilman (19801988) 1 VLR 343, at 343.Google Scholar

56 (1980–8) 1 VLR 236.

57 Ibid, at 252–3. See also Akubor v Nauru Lands Committee and Jones, unreported, Supreme Court, Nauru, Land App. 5/91, Dec 1997.

58 For two different responses by the same judge to anthropological evidence, compare the decisions of Thompson, J, then Chief Justice of Nauru, in Dogirouwa [1969–82] Nauru LR 9, Part B: Land Appeals, 7 May 1969, and Grundler v Namaduk & ors. [1969–82] Nauru L R 92, Part B: Land Appeals, 8 May 1973.

59 Nanda, and Warms, R, Cultural Anthropology, 6th edn (New York: Wadsworth, 1997)Google Scholar. See also Malinowski, B, Crime and Custom in Savage Society (New York: Greenwood, 1926, repr 1984).Google Scholar

60 Marcus, G and Fischer, M, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (Chicago: University of Chicago Press, 1999).Google Scholar

61 Herdt, GH, Ritualized Homosexuality in Melanesia (Berkeley: University of California Press, 1993)Google Scholar, Mukhopadhyay, C and Higgin, P, ‘Anthropological Studies of Women's Status Revisited’, (1988) Annual Review of Anthropology, 17: 161–95CrossRefGoogle ScholarPubMed; Weiner, A, Women of Value, Men of Renown (Austin: University of Texas Press, 1983).Google Scholar

62 Or, in the Malas Family case, the forebears of the people now before the court.

63 Knauft, B, From Primitive to Postcolonial in Melanesia and Anthropology (Ann Arbor: University of Michigan Press, 1999)CrossRefGoogle Scholar; Carrier, JG, (ed), History and Tradition in Melanesian Anthropology (Berkeley: University of California Press, 1992).Google Scholar

64 Murphy, P, Evidence, 6th edn (London: Blackstone Press Ltd, 1997), 538Google ScholarPubMed. See also Tomalana v Drug House of PNG [1991] PNGLR 65 at 69Google Scholar, for an explanation of the use of reference works and treatises on matters warranting judicial notice.

65 Read v Lincoln (Bishop) [1892] AC 644.

66 Birrell v Dryer (1884) 9 App Cas 345.

67 White v Bywater 19 QBD 582.

68 It is not clear whether dictionaries are admissible as evidence per se or only to refresh the judge's memory on a matter judicially noticed: Howard, MN, Crane, P, and Hochberg, D (eds), Phipson on Evidence, 14th edn (London: Sweet & Maxwell 1990), 797.Google Scholar

69 Ibid, 781.

70 Western Samoan Trust Estates Corp. v Tuionoula, Saip'ia & ors. [1980–93] WSLR 181.

71 With the accession to the bench of more indigenous judges, this may be changing. See, eg, Dae v Pitia, unreported, High Court, Solomon Islands, Land App 1/1992, 8 June 1995, at 1.

72 Grundler v Namaduk & ors. [1969–82] NLR 92, Part B: Land App, 8 May 1973. But cf Gelua v Kakamo, unreported, High Court, Solomon Islands, Land App 6/1991, 4 Feb 1994.

73 Allott, N, ‘Customary Law in British Africa’ (1957) 20 MLR 244 at 250.CrossRefGoogle Scholar

74 For an explanation of the role of assessors in an African context see King Emperor v Tirumal Reddi (1901) ILR 24 Mad 523, cited in Allott, Ibid, at 249.

75 (1980–8) 1 VLR284.

76 The nature of the objection is not specified in the judgment, but is presumed to have been the assessors' relationship to the respondents.

77 (1980–8) 1 VLR284.

78 One of the Chiefs was indisposed, the court associate had to travel to the Chief's village to record his answers in writing and bring them back: Regenvanu Family v Ross (19801988) 1 VLR 284 at 286Google Scholar. We are not told whether this was the reason that the judge's interaction with his assessors was limited to written questions, or whether the judge would have prepared written queries regardless.

79 In fact, it is stated in the judgment that there was no head chief for Uripiv and the people of Uripiv were directed to elect one. In Solomon Islands it has been made clear that customary land representatives are not akin to trustees: See, eg, Lilo and Another v Ghomo [1980/1] SILR 229; Kasa & Kasa v Biku and the Commissioner of Lands, unreported, High Court, Solomon Islands, civ cas 126/1999, 14 Jan 2000.

80 In Manie and Kenneth Kaltabang v Sato Kilman (19801988) 1 VLR 343Google Scholar, the assessors appear to have played a slightly more active role.

81 Malas Family v Songoriki Family (19801988) 1 VLR 235.Google Scholar

82 Recent cases in which the courts have done this include Dae v Pitia, unreported, High Court, Solomon Islands, Land App. Case 1/1992, 8 June 1995; Manie & Kaltabang v Kilman (19801988) 1 VLR 343Google Scholar; Malas Family v Songoriki Family (19801988) 1 VLR 235.Google Scholar

83 (1980–8) 1 VLR 235.

84 Ibid, at 253–4.

85 Conversations with Mr Hudson, Oct 1999.

86 See text above under heading ‘Books, Treatises and Other Documents’.

87 [1957] 1 WLR 1223 at 1226–7.

88 Ibid, at 235–6. The test suggested by the Judicial Committee was also used in S. Pafua v Motu'apuaka [1908–59] Tonga LR 83.

89 Allott, above n 73.

90 However, it may also lead courts to the opinion that customary law must be enshrined in a statute before it can be enforced. See, eg, Fiji Constitution Review Commission, Towards a United Future (1996), Parliamentary Paper no 34/96 at para 17.103.

91 eg, the Natal Code of Native Law discussed in Allott, above n 73.

93 Customary Law Commission Act 1989 (Marshall Islands), discussed in Zorn and Corrin Care, above n 2.

94 eg, the statutes listed in s 185 of the Constitution of the Republic of Fiji Islands 1997.

95 Administration Order No 3 of 1938, Regulations made under s 4 of Native Administration Ordinance No 17 of 1922, Nauru; Native Land Act Cap 133, Fiji.

96 Crocombe, R (ed), Land Tenure in the Pacific, 3rd edn (Suva: University of the South Pacific, 1987)Google Scholar; Lundsgaarde, HP (ed), Land Tenure in Oceania (Honolulu: University of Hawaii Press 1974).Google Scholar

97 Fitzpatrick, P, ‘The Knowledge and Politics of Land Law’, 11 MLJ 17 (1983).Google Scholar

98 Cap 133.

99 Simpson, B, ‘The Common Law and Legal Theory’, in Twining, W, (ed), Legal Theory and Common Law (London: Blackwell, 1986), 825.Google Scholar

100 [1983] SILR 95.

101 Ibid, at 96.

102 Ibid, at 96–7, quoting the earlier judgment.

103 Ibid, at 98.

104 Ibid, at 99.

105 Zorn and Corrin Care, above n 2, 61–5.

106 For an explanation of the doctrine of judicial notice and how it operates in the Pacific, see Tomalana v Drug House of PNG [1991] PNGLR 65.

107 eg, the Senior Magistrate in Waiwo v Waiwo & Banga unreported, Senior Magistrates Court, Vanuatu, Civ Cas 324/1995, 12 Feb 1996.

108 Ibid.

109 The Senior Magistrate awarded 10,000 vatu (about Aus $80) to plaintiff; the Tanna chiefs had awarded her only 500 vatu.

110 The then Senior Magistrate is now Acting Chief Justice of the Vanuatu Supreme Court, so his earlier decisions, even if over-ruled at the time, carry great weight.

111 Unreported, Senior Magistrates Court, Vanuatu, Civ Cas 324/1995, 12 Feb 1996. The Vanuatu Supreme Court overruled that part of the decision with which we are most concerned. Banga v Waiwo, unreported, Supreme Court, Vanuatu, Civ App 1/1996, 17 June 1996. However, the expatriate justice who heard that appeal is no longer on the Vanuatu court.

112 Cap 192.

113 Art 95(2) reads as follows: ‘Until otherwise provided by Parliament, the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom.’

114 During the colonial period ni-Vanuatu were governed by Joint Regulations, issued by the British and French authorities acting in concert.

115 Waiwo v Waiwo and Banga, unreported, Senior Magistrates Court, Vanuatu, Civ Cas 324/1995, 12 Feb 1996, 7.

116 Ibid.

117 Ibid.

118 Ibid, at 10.

119 Ibid.

120 See, eg, Molu v Molu No 2, unreported, Supreme Court, Vanuatu, Civ Cas 30/1996; Mat Cas 130/1996, 15 May 1998 [decision by Vincent Lunabek, Acting Chief lustice]

121 Making it impossible to translate pidgin phrases into English word for word, as our less than literal translation and ‘translated’ in the first footnote, to this Article, of the Solomon Islands pidgin Oath to the Court, used in the title of this Article, demonstrates.

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