Abstract:
In the plural legal systems of the South Pacific island nations, there is an ongoing struggle to harmonise indigenous customary law and introduced Western influenced laws. Before colonisation reached the shores of Vanuatu, indigenous custom governed the lives of society; a decentralised system of traditional authority was vested in chiefs who made custom rules and used custom to resolve disputes. To this day, chiefs continue to use custom in daily village affairs even though the laws of Vanuatu do not grant these powers to the traditional authority.
The establishment of the Malvatumauri, or the National Council of Chiefs, in Vanuatu was described as the “closest thing to state recognition of the kastom system”. However, the Council has been largely ineffective and its impact, insignificant. The Malvatumauri has made several attempts to be active in its role through a number of proposals. This prompted the drafting of and subsequent passing of the Council of Chiefs Act 2006 by Vanuatu Parliament. Although this was hailed as a step in the right direction, the Act was criticised by the Secretary of the Malvatumauri who compared it to “a dog that had had all its teeth removed and yet the dog was still expected to hunt pigs”.
How then do we give the proverbial dog its teeth back?
The first four parts of the paper contain a discussion on custom in Vanuatu. Part II of this paper discusses the colonial history of Vanuatu and the resulting impact that it has had on the legal system. Part III of the paper focusses on defining the term “custom” while Part IV discusses the relationship between custom and the other sources of law that exist in Vanuatu. Part V elaborates on other issues that affect the application of custom in Vanuatu.
The final three sections of the paper elaborates on the current frameworks relating to tradtiaional authority. Part VI focuses on the Malvatumauri Council of Chiefs in Vanuatu while the focus of Part VII is the Village Fono in Samoa. Part VIII elaborates on possible solutions that would allow the Malvatumauri Council of Chiefs to play a more meaningful role in the application of custom.
This paper concludes with a recommendation that: the Constitutional provision regarding custom be amended, the island courts be reformed and the Council of Chiefs Act be amended to grant powers to chiefs to create bylaws and resolve disputes under custom.
