Kastom procedures and kastom law

The initial question to be investigated was whether in kastom procedures were more important than substantive laws. On further reflection, however, I realised that the real question was whether or not the procedural aspects of the kastom system were just as, or more, difficult to reconcile with the state system as the substantive laws. Analysing this question requires a three-stage approach: are there substantive laws in the kastom system? Are the differences between substantive laws in the two different systems problematic? Are the differences between procedural approaches in the two systems more or less problematic?

The first question therefore is whether there are substantive laws in the kastom system. Many authors warn against using concepts of Western jurisprudence, such as ‘rules’ or prohibitions to describe Melanesian ways of resolving conflicts, as the use of such terms is said to ‘sit uneasily with the ethnographic evidence’.[108] In the kastom system today, however, the concept of substantive laws, by which is meant a relatively precise norm with a sanction for disobeying, is widespread. The laws that are spoken about, and increasingly written down,[109] appear to have three sources: kastom, the state system and Christianity.

Kastom laws generally relate to regulating kinship relationships[110] or prohibitions of various kinds (for example, a chief may put a namele leaf[111] on the beach, which signifies that people must not gather resources from that reef), protection of the environment and respect.[112] Some crimes from the state system are also slowly being introduced into the kastom system, such as the crime of rape, which did not exist in the same way in kastom. [113] The third category of laws is derived from Christianity; thus people will talk about the prohibition on ‘coveting’ something or on ‘fornication’. There are also of course general laws prohibiting people from stealing, assaulting each other, damaging property and so on, which probably come from all three sources.

It is clear that kastom laws vary throughout Vanuatu, but it is difficult to determine to what extent.[114] Most respondents agreed that the fundamental principles of kastom remained constant throughout the country, but there were variations in details such as appropriate amounts of kastom payments and laws relating to respect and kinship.[115] One chief stated, ‘[W]e do everything similar, but how we present it in a ceremonial way is different.’[116] There are a number of indications that the differences between various kastom laws do not pose huge difficulties in resolving conflicts in practice. The Chief Justice and the Chief of the Malvatumauri—men who would be expected to be aware of the differences between kastom in different parts of the country—stated that the differences in substantive kastom were not of much importance. Also the town councils of chiefs in Luganville and Port Vila manage to deal with the different laws among the various communities without too much difficulty.

Given that there are therefore substantive laws in the kastom system today, the second question is whether or not differences between them and the laws of the state system are likely to be problematic. One of the clear findings of the research was that, with the exception of some human rights provisions in the constitution[117] that were widely criticised as being inconsistent with kastom, no respondent complained about the particular substantive content of the state system.[118] It could be that this is due to a lack of true understanding by the majority of the population of the substantive content of state laws. An alternative reason could be that ni-Vanuatu are used to accepting different kastom laws and to finding ways of minimising the difficulties these pose. This suggests that differences between state law and kastom law might similarly be able to be negotiated, because people are used to doing so and because the content of substantive kastom laws has changed over time anyway, incorporating state laws and Christian laws.[119]

The final question therefore is whether differences between the procedures in the state and kastom systems are more or less problematic than the differences in substantive laws. Except for the complaints about the laws relating to human rights in the constitution, every criticism of the state system and example of the difficulties with it made during this study related to procedures rather than substance. This suggests that differences in procedures are more problematic than differences between substantive laws. As the Chief Justice stated, the focus of reform needed to be on the legal structures and systems—‘the basket’—rather than the substantive law or what was inside the basket. He observed that that could come afterwards: ‘the people can fill the basket with their laws.’[120]

[108] Sillitoe, An Introduction to the Anthropology of Melanesia, p. 149. See also the discussion in Chapter 2 under ‘The legal anthropological approach’ on the place of norms in customary legal systems. Gordon and Meggitt commented that the influence of Malinowski, who derided any study or analysis of ‘codes, courts, and constables’, also contributed to the scholarly focus on the broader field of processes of social control rather than the analysis of customary law in Melanesia. Gordon, Robert and Meggitt, Mervyn 1985, Law and Order in the New Guinea Highlands, p. 192.

[109] This development is discussed in further detail under ‘The dynamism of the kastom system’.

[110] These range from the people with whom one can have sexual relations to the different types of behaviour one should adopt with different members of the family—for example, the prohibition in some areas on brothers and sisters talking to each other once they have reached puberty.

[111] The namele is a type of cycad and its leaves are used to mark tabu places. Its importance is shown by the fact that it appears on the Vanuatu national flag.

[112] This is a wide-ranging notion that includes the prohibition on women drinking kava in some places, a woman not being allowed to be in a tree that men pass underneath and people speaking out of turn at meetings. Respect is discussed further under ‘“Respek hemi lus” (Respect has been lost)’.

[113] In kastom, the idea of consent—central to the state crime of rape—was not considered an issue. What was problematic was sexual intercourse outside societal boundaries, such as adultery and cross-kinship sexual relations. Today, many chiefs use the word ‘rape’ when in fact they are not referring to forced intercourse but forbidden intercourse (because the parties are not married, for example), but some use it to mean ‘fosem woman’ (force the woman).

[114] The by-laws that have been written suggest there is a lot of differentiation in relation to the kastom laws relating to kinship and respect but this could result from the differing judgments of the people who wrote them down as to what should be included.

[115] Respondents often talked about ‘our kastom’ and ‘their kastom’, but when pressed as to the differences they would mostly respond that the quantum of the fine was different in different communities.

[116] Interview with a chief from Efate (Port Vila, 21 March 2007).

[117] Freedom of movement and freedom of religion are the principal problems.

[118] There were of course many general comments to the effect that it did not sufficiently reflect the cultural context of Vanuatu.

[119] This is discussed further in Chapter 5.

[120] Interview with Chief Justice Lunabek (Port Vila, 7 February 2002).