A Bird that Flies with Two Wings: The kastom and state justice systems in Vanuatu


Table of Contents

Acknowledgments
Foreword
Prologue
1. ‘Igat fulap rod blong hem’
Brief history of Vanuatu
Place
Islandism
The urban–rural divide: which one is the ‘easy life’?
Land
Language
Politics
Religion and denomination
Gender
Age
Conclusion
2. The possibilities and limitations of legal pluralism
The positivist approach
General principles
Positivism in Melanesia
The legal anthropological approach
The legal pluralist approach
General principles
Theoretical issues
The possibilities and limitations of legal pluralism for Melanesia
Conclusion
3. Tradition and transformation in leadership structures and conflict-management mechanisms
Leadership structures and conflict management in the nineteenth century and early twentieth century
Leadership structures
Maintenance of law and order and conflict-management mechanisms
Leadership structures and conflict-management mechanisms during the Condominium
Leadership systems
Maintenance of law and order and conflict-management mechanisms
Leadership structures and conflict management post-independence
Kastom and the ‘invention of tradition’
Leadership structures in Vanuatu today
Conflict management
Conclusion
4. The operation of the kastom system in Vanuatu today
The pervasiveness of the kastom system
Diversity in conflict management
The people in charge of the management of the conflict
Before the meeting
At the meeting
After the meeting
The restorative nature of the kastom system
Privileging the community over individuals
Kastom procedures and kastom law
The dynamism of the kastom system
Challenges for the kastom system today
Too many chiefs
Respek hemi lus’ (Respect has been lost)
Chiefly misbehaviour
Lack of disciplinary mechanisms
Chiefs and modern society
Widespread support for the continuation of the kastom system
Women and the kastom system
Youth and the kastom system
Conclusion
5. The relationship between the state and kastom systems
The courts
The current condition of the court system
The relationship between the courts and the kastom system
The Vanuatu Police Force
The condition of the police today
The relationship between the police and the kastom system
The prisons
The condition of the prisons today
The relationship between the prisons and the kastom system
The Public Prosecutor and the Public Solicitor
The condition of the prosecution and Public Solicitor
The relationship between the prosecution and the Public Solicitor with the kastom system
The Malvatumauri
Conclusion
6. The problems of the existing relationship between the state and kastom systems
The facts of the case study
Problems within the two systems demonstrated by the case study
Problems within the state system
Problems within the kastom system
Problems with the relationship between the two systems
Uncertainty about where the conflict should be dealt with puts complainants in a vulnerable situation
Dispute and confusion over jurisdiction
The problem of which system should deal with a case first
The problem of ‘double jeopardy’
The operation of the state system creates feelings of disempowerment among the chiefs
The state system hinders the operation of the kastom system
The existence of the kastom system hinders the operation of the state system
Conclusion
7. A typology of relationships between state and non-state justice systems
A framework for analysing different types of relationship between non-state and state justice systems
Models of relationship
Model 1: Repression of a non-state justice system by the state system
Model 2: Formal independence between the systems but tacit acceptance by the State of a non-state justice system
Model 3: No formal recognition but active encouragement of a non-state justice system by the State
Model 4: Limited formal recognition by the State of the exercise of jurisdiction by a non-state justice system
Model 5: Formal recognition of exclusive jurisdiction in a defined area
Model 6: Formal recognition and the giving of state coercive powers to a non-state justice system
Model 7: Complete incorporation of the non-state justice system by the State
Mutual adaptations/innovations by state and non-state systems
Mutual learning
Sharing of procedures
Sharing of substantive laws/principles
Use of key players/institutions from the other system
Conclusion
8. A new method of legal pluralism
Step 1: Analyse the operation of the state and non-state systems
Step 2: Consider the aims of the overall justice system
Step 3: Examine the current positive and problematic features in the relationship between the systems
Step 4: Consider the applicability of the different models of relationship to this context
Step 5: Develop the chosen model so that it becomes one of mutual adaptation, mutual recognition and mutual regulation
Internal adaptations
Recognition
Regulation
Step 6: Develop a method of progressive implementation and evaluation of changes
Step 7: Revise the model pluralist method
Conclusion: doing legal pluralism
Bibliography
Legal cases
Vanuatu
Other jurisdictions
Newspaper articles