80192 22/2013   Hybrid Justice in Vanuatu: The Island Courts Michael Goddard and Leisande Otto About the Justice and Development Working Paper Series The Justice and Development Working Paper Series serves as a platform for innovative thinking on justice and development that features work from World Bank and external authors. It is a product of the World Bank’s Justice Reform Practice Group, which generates knowledge and provides advice and assistance to Bank staff and Bank client countries on improving state and nonstate justice system institutions and mechanisms. Justice and Development disseminates the findings of works in progress to facilitate a more rapid exchange of ideas about development issues and justice reform. Editorial Policy The Justice and Development Working Paper Series publishes original research papers on law, justice, and development. Publication proposals may be made by Bank staff and external contributors. 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The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations and other information shown on any map in this work do not imply any judgment on the part of the World Bank of the legal status of any territory or the endorsement or acceptance of such boundaries. © 2013 The International Bank for Reconstruction and Development/The World Bank Table of Contents Abstract .............................................................................................................................................. 1 1. Introduction ................................................................................................................................. 1 1.1. Methodology ....................................................................................................................................... 2 1.2. Pluralism, Kastom, and Chieftaincy ............................................................................................ 3 2. Community Strategies for Addressing Disputes .............................................................. 7 2.1. Local Perceptions of Disputes and Wrongdoing ................................................................... 7 2.2. Addressing Disputes and Wrongdoing ................................................................................... 10 2.3. Persistent Conflict between Local Dispute Management and the Introduced Legal System: ni-Vanuatu Views ................................................................................................................... 15 3. Island Courts .............................................................................................................................. 17 3.1. History of the Island Court System .......................................................................................... 17 3.2. Jurisdiction, Procedure, and Caseloads .................................................................................. 19 3.3. Budget, Operational Issues, and Training.............................................................................. 25 3.4. Law and Kastom in Island Courts ............................................................................................. 29 3.5. Gender Aspects of Island Courts ............................................................................................... 31 3.6. Villager Awareness and Use of Island Courts ...................................................................... 34 4. Concluding Observations ....................................................................................................... 36 Annex ................................................................................................................................................. 38 References ....................................................................................................................................... 43 i Hybrid Justice in Vanuatu: The Island Courts Michael Goddard and Leisande Otto1 Abstract Island Courts have been in operation in Vanuatu since 1984. Official documents have hitherto provided little information on their practical operations or utility, and our preliminary research in 2010 found that not much was known at the state governance level about their real circumstances. In 2011, we conducted fieldwork research on five islands—Efate, Santo, Malekula, Epi, and Tanna—to provide better information on the practical operations of island courts and their use by ni-Vanuatu. We found that although island courts have the potential to provide a valuable service to rural ni-Vanuatu, a number of problems must first be addressed. Their resources and support networks need to be improved and a regularity in these services guaranteed. Networking with other governance institutions (including nongovernmental organizations [NGOs]) at the local level in the provinces could be facilitated, as cooperation among these institutions would be beneficial to all of them. It would also be useful to encourage the island courts to strengthen the flexibility and creativity that they are, of necessity, already developing, particularly in relation to matters of “kastom.� 1. Introduction At the time of Vanuatu’s independence from British-French Condominium rule in 1980, it was clear that a new system of local courts was needed for the country’s widely di spersed population. These courts, according to the new Constitution, would have “jurisdiction over customary and other matters, and … provide for the role of chiefs in such courts.�2 Subsequent legislation in 1983 formally established the island courts system, and the new courts were given both criminal and civil jurisdiction. However, from the start, there were ambiguities in these new courts’ legal scope, as they were founded to include, with some caveats, “customary law� in their jurisdiction but without any precise clarification of what “customary law� actually means. This ambiguity was exacerbated by the unclear nature of the warrants that set up the courts, which, despite the constitutional provision, do not make explicitly clear that island courts do indeed have general customary law jurisdiction. In collaboration with the Vanuatu Supreme Court and Ministry of Justice, Jastis Blong Evriwan (JBE), part of the World Bank’s Justice for the Poor program, conducted research on Vanuatu’s island courts, including fieldwork on five islands: Efate, Santo, Malekula, Epi, and Tanna. The study looked at the linkages between island courts and customary dispute-settling procedures, and investigated community perspectives on local-level justice issues to contribute to the better understanding and improvement of justice delivery in Vanuatu. Findings from the research are intended to inform a review of the Government of Vanuatu’s 1 The authors would like to thank all interviewees who gave their time to answer our many questions, and Milena Stefanova, Brigitte Olul, and Sema Joel at Jastis Blong Evriwan for their support and assistance. We are also grateful to Deborah Isser and Rea Chiongson for comments on a draft of this report. 2 Constitution of the Republic of Vanuatu art 78(2) & 52. 1 Justice Sector Strategy 2009–2014, and provide an evidentiary base from which judgments can be made about the utility, potential, and developmental possibilities of the island courts in relation to the overall justice delivery system. Specifically, this report is based on a combination of fieldwork and historical/documentary research as part of an investigation of two linked socio-legal phenomena: (1) the practical operations of the island courts, including community awareness, understanding, and utilization of the courts, and (2) community-level perceptions of minor civil and criminal problems, and strategies for dealing with them. The linking aspect is the question of whether and how much communities draw island courts into their dispute-managing strategies, and whether those communities are (or consider themselves to be) adequately served by the courts. 1.1. Methodology The research combined quantitative and qualitative methods. The quantitative research was documentary and archival. Historical data on the island court system were collected, and reports and statistics on the casework and other aspects of operative courts examined. Historical research was conducted in the archives of the Vanuatu Cultural Centre and at the University of the South Pacific’s (USP) Emalus Campus library in Port Vila to investigate the background and circumstances of the establishment of island courts in 1983. The qualitative research began with some preliminary consultations with relevant governance/administration personnel in Port Vila on September 6–15, 2010. Field research was then undertaken from February 4 to March 22, 2011, which was conducted initially in a number of urban settlements in Port Vila and several rural villages elsewhere on Efate Island. This four-day exercise served as a pilot for our research methodology, and more extensive research was subsequently conducted on the islands of Santo (seven days), Malekula (seven days), Epi (six days), and Tanna (seven days). It was originally planned to go to Banks and Torres islands as well, but cyclonic weather conditions restricted plane travel and some rescheduling was necessary. Nevertheless, the research covered a representative sample of islands in the northern (but not far northern), central, and southern regions of Vanuatu on which island courts are fully established and operational. Time constraints and a schedule involving multi-sited research did not, however, allow for lengthy participant observation or the development of focus groups. Research consisted primarily of in-depth interviews in the lingua franca Bislama, using an open-ended and non-leading question format. This approach is recognized as being especially appropriate for research in small-scale societies like those of Vanuatu, as it can elicit information that may not be readily apparent, such as local cultural values, gender roles, socioeconomic roles and activities, and so forth—that is to say, it is effective in providing culturally specific information (see Mack et al. 2005). The researchers visited the main center and representative villages on each island, conducting interviews with island court clerks and justices, local police personnel, nongovernmental organizations (NGOs), community organizations, representatives of churches, chiefs, and male and female villagers, both in groups and individually. The team further observed some island court hearings, but due to postponed or canceled sittings, this exercise was limited. It was nonetheless useful to obtain insights into the procedures of the courts, the types of cases they hear, and the kinds of decisions made. Observation was supplemented by consultations with the justices and clerks who were able to elucidate and elaborate on aspects of a day’s hearings. 2 1.2. Pluralism, Kastom, and Chieftaincy This study is guided by a sensitivity to pluralism, interaction, and hybridity, and an acknowledgement that contemporary Vanuatu is characterized by dynamic and changing social, cultural, and legal orders. In legally plural countries such as Vanuatu, it is common to find both state-based and non-state-based justice systems. The state justice system consists of those state institutions that are commonly found in contemporary Western societies: the court hierarchy and relevant criminal and civil state justice apparatuses. Non-state justice systems exist independently of the state and typically apply their own unique procedures, often based on local customs and mores. State institutions have limited effectiveness in countries like Vanuatu, with culturally varied populations dispersed among a number of islands typified by difficult terrain and minimal infrastructure. Customary regulatory systems (which are usually regarded locally as “traditional�) predominate, especially beyond urban areas, and in Vanuatu, chiefs are commonly recognized as the most accessible mediators or adjudicators of disputes. These two types of systems are not mutually exclusive; rather, they interact and influence each other and thus generate specific hybrid systems—that is, systems that possess many non-state hallmarks yet that also have a legislative basis and incorporate a degree of state engagement. An example is the island courts of Vanuatu. The recognition and examination of the notion of hybrid courts is a significant development beyond former dichotomous approaches to justice in Vanuatu and other Pacific Island countries that simply posited “custom� or “customary law� in contrast to Western law. These dichotomies developed in times of colonial rule and their enduring influence can be seen in constitutional directives that hybrid courts should apply custom or customary law, except where it is at odds with “the law� or with “principles of humanity.� Today, this implied potential contradiction between law and custom is being superseded by a recognition that there is a complex interaction between community dispute-management strategies and introduced law. It is therefore necessary to understand this interaction and its implications for the delivery of justice to local communities. The pluralism described here fits Franz von Benda-Beckmann’s concept of “wild� legal pluralism (2006, 59), which he contrasts with “weak� legal pluralism. In the case of weak legal pluralism, one legal order (usually the state) recognizes the existence of others, but its own perspective is emphasized; in wild legal pluralism, several legal orders coexist regardless of their recognition of each other. Benda-Beckmann also points out that broadening the concept of law beyond the state involves an acknowledgement that it can be created, maintained, and changed by other forms of social organization and on the basis of other underlying sources of legitimacy. “Local, non-state legal orders are, therefore, not identified with local ‘culture.’ They are part of culture in the widest sense, but cannot be reduced to culture� (Benda-Beckmann 2006, 59). In light of this notion of pluralism, it is important to discuss two key concepts up front: kastom and chieftaincy. Kastom The term “kastom� is used in most Pacific Island societies, and while at first sight it seems merely pidgin for “custom,� scholarly literature on Pacific societies shows this to be an oversimplification. Commentators have emphasized the unstable nature of kastom concepts, whose meanings are constantly changing (Akin 1999, 38; Keesing 1982). The flexibility of the idea of kastom has allowed it to be used by Pacific Island peoples in different ways in different circumstances; in some cases, it has been used to justify anti-colonial and anti- 3 Christian conservatism, while in other cases, it has been used to rationalize the partial abandonment of ancestral ways (see Keesing 1982, 371). Some Pacific societies have seen mission influence as destructive of kastom; others have seen kastom as compatible with Christianity (Keesing 1982, 370–71). However, even where people present their kastom as contrasting with Western ways, it often shows the complex influence of interaction with foreign traders, Christianity, and colonial bureaucracy over a long period of time (see, for example, Hviding 1993). Among academics today it is commonly said that the conventional notion of “customary law� itself was generated in the course of colonialism, and that the dualistic idea that in Pacific countries there is “law� on the one hand and “custom� on the other is a legacy of colonial attitudes (see, for example, Demian 2003, 97). Kastom may, then, represent “an edited as well as idealized and mythicized version of the past� (Keesing 1982, 370). However, this does not prevent it from being used to legitimize customary law in opposition to introduced law. In Vanuatu, the influence of Christianity has created a contemporary understanding among ni- Vanuatu that peaceful negotiation was a customary way of settling disputes, contrasted with the adversarial procedure derived from government law. They employ the term kastom to refer generally to their indigenous values and mores, implying that it not only contrasts with the values, laws, and institutions of the state (“white men’s ways�) but is sometimes oppositional to them. Attempts to codify kastom After independence, several attempts were made by ni-Vanuatu to record local kastom to use as an indigenous regulatory system. Projects were carried out on the islands of Tanna and Ambae, and the National Council of Chiefs also attempted the task. These efforts are briefly described here. The “Tanna Island Kastom� project (Le Ten 1994) was an attempt to record and codify kastom in response to Western influences. Between 1981 and 1983, a committee of chiefs listed appropriate kastom responses and punishments for wrongdoing, comparing them to responses of earlier times and occasionally contrasting their perspective to those of the West. For example, where women were formerly said to have been killed for drinking kava3 or for seeing a chief drinking kava (an earlier response), they would now be fined a pig or one head of kava (a current punishment) (Le Ten 1994, 43). Another example is the ban imposed on Western contraception methods in favor of kastom methods (Le Ten 1994, 41). An attempt to distinguish kastom from Western religion and simultaneously accommodate the latter could be seen in the edict that “religion� should not interfere with kastom, while kastom should respect and not interfere with religion (Le Ten 1994, 42). In the northern part of Ambae island, the Lakalakabulu Area Council of Chiefs was established in 1996. Its aims included the protection and promotion of traditional values and the resolution of disputes in a customary way (Vuhu 2003, 145). In the absence of a warranted island court on Ambae at the time, the council involved itself in the resolution of land disputes, family problems, and minor criminal issues. Its procedures were carefully structured, combining aspects of mediation, arbitration, and adjudication, and it also allowed complaints against its decisions. The latter were addressed through further meetings until all were satisfied with the outcome (Vuhu 2003, 147). An island court was finally established on 3 Kava is a drink prepared from the root of a pepper plant, Piper methysticum. It is used in many Pacific Island societies for a variety of spiritual, political, and social purposes. 4 Ambae in 2009, but the Lakalakabulu Council of Chiefs has continued its activities, and recently one of its members has been engaged in the development of a “Procedures and Rules� document. Included in this is a list of civil/criminal offenses, giving the standard penalties according to the state’s penal code followed by, in a separate column, a corresponding kastom response. Vanuatu’s National Council of Chiefs, known as the Malvatumauri, is the formal representative of kastom on a national scale in Vanuatu and in its early days addressed itself to codifying kastom. In 1983, the Malvatumauri published its policy on kastom, covering issues including land, movement of people between places, language, ceremonies, sorcery, illegitimate children, and adultery (Malvatumauri 1983, cited in Bolton 2003, 43). Bolton gives an example of the difficulties involved, in that even the term “chief� presented a problem of definition. “In the compromise solution that was eventually reached, the definition depends largely on kastom—a chief has to be recognised and installed according to kastom (article 7A)—and hence embodies uncertainty at a different location� (Bolton 2003, 43). Complexities remain in defining kastom These projects indicate the complexities of ni-Vanuatu attempts to preserve kastom and make it applicable to contemporary life. The Tanna project exemplifies some historical observations made by academic researchers about how kastom in Vanuatu, and in the Pacific Islands more generally, is a dynamic and changing phenomenon and difficult to define precisely. With respect to kastom procedure for dispute resolution, the historical record shows that Pacific traditions of dealing with transgression were not necessarily as peaceable and reconciliatory in past times as people imagine them to have been (see, for example, Bennett 2002, 5; Hogbin 1934; Koch 1975; Trompf 1994). The currently popular “restorative justice� initiative in the Pacific Islands is sometimes implied to resonate with “traditional� dispute- settlement processes. But the Tanna chief’s reference above to (among other things) the former sanctions against women in relation to kava indicates that violent responses were not unknown within traditional groups. The Tanna project may refer to tradition, but it is also a modern phenomenon reflecting considerable change in kastom responses in recent decades. An anthropologist with long research experience on Tanna has noted the influence of Christianity on local strategies for dispute management, and also discusses a variety of ways social breaches were dealt with traditionally (Lindstrom 2010). One was “avoidance� rather than reconciliation (2010, 4–5) between antagonists. This means that although no attempt was really made to settle the dispute, later events, such as a need for unity in the face of a shared problem, might bring the parties together again. Another response between groups was a physical “replacement.� For example, if a member of a group was killed by another group, the latter group might provide a replacement—the anthropologist actually gives an example in which the killer was the replacement person (Lindstrom 2010, 10–11). This response follows a pattern found elsewhere in Melanesia, where an emphasis is placed on the restoration of balance: a person lost requires a person gained. This may arguably be “restorative,� but perhaps not in the sense intended by the “restorative justice� model. Lindstrom’s examples indicate that the idea of settling problems through defining a guilty party and ordering restitution or fines, as is suggested by the Tanna kastom project, is not necessarily “traditional� but is itself significantly influenced by Western-introduced notions of justice delivery. 5 At the same time, though, Lindstrom notes that village moots (or moot courts) were held on Tanna to settle disputes, and that these ideally involved the presence of every interested party (that is, not just representatives or a majority of stakeholders). The moot had “no judges or anyone else with authority to weigh fact, determine responsibility, or impose a settlement, fine, or sentence� (Lindstrom 2010, 5). Forsyth has described a variety of dispute-settlement procedures elsewhere in Vanuatu, reinforcing the point that Vanuatu is a country of diverse cultures, and that it is unwise to generalize about how disputes are settled by kastom (2009, 98–114). Zorn says that if Pacific Island “custom� can be usefully defined at all, it could be identified as a series of accumulated, non-static, and sometimes conflicting values and habitual activities specific to a group (2003, 97). In relation to Vanuatu, Bolton describes kastom as “the product of the interaction between expatriate ideas of culture and custom and ni-Vanuatu conceptualizations of their knowledge and practice� (2003, 52), while Rousseau describes it as “an assertion of indigeneity, in that it provides a critique of, and alternative to, modernity expressed more through attitude than behaviour� (2004, 1). These definitions suggest that kastom is not really the traditional anchor that ni-Vanuatu assume it to be, but as White has said, regardless of whether contemporary customs and customary leadership are really traditional or not, local communities value them, and to ignore them is to overlook some of the basic causes of disconnection between governmental institutions and local realities (2008, 2). Chieftaincy Chieftainship is another complex notion, made more so by its relationship to the notion of kastom. The Malvatumauri attempted to develop a policy on kastom in 1983, and in the course of the exercise, found it very difficult to define what a chief was (Bolton 2003, 43). It eventually avoided that problem by declaring that a chief had to be recognized and installed according to kastom—which simply returns us to the problem of defining kastom itself. The perception that chiefs are prominent in local dispute management is complicated by these uncertainties in definition. Academics recognize “chief� as a problematic category in Pacific Island societies, and this has been compounded by a modern popular usage in which terms like “chief� and even “paramount chief� have become commonplace in societies where scholars would argue no chiefs ever existed (see White and Lindstrom 1997). Currently, disputes over chiefly titles are widespread in Vanuatu, as chiefly titles are linked to land ownership, and contemporary land dealings hold the possibility of substantial monetary profit for a landowning chief. Consequently, some cynicism about the title “chief� has developed in a climate of concern over land loss to foreigners. The jocular phrase “there’s one chief for every five people� was heard in Port Vila, inviting the inference that many of them are not “real� or “bloodline� chiefs. If villagers question or doubt the hereditary legitimacy of a chief, it might affect their willingness to accept that chief’s authority. A few village interviewees made negative comments about their local chief (see section 2.2 below), but without further investigation it is not possible to assess whether chiefs may be losing their authority in some rural areas (but see Forsyth 2009, 115–20). If such a change is occurring to any significant degree, a number of explanations are possible. For instance, inasmuch as a chief in a small-scale society represents the disposition and voice of the majority of that society’s members, a weakening of the chief’s authority could reflect a weakening of the society’s social structure. The latter could be the result of many influences, including migration, economic factors, or external governance institutions that undermine or change previously existing local institutions. Education and outmigration for employment can also alter people’s view and acceptance of village mores and village authorities; in other words, chiefs and their values may be regarded as a hindrance to development by mobile and 6 ambitious younger generations (similar criticism of chiefs and “tradition� are common in literature on development and human rights). 2. Community Strategies for Addressing Disputes Before turning to findings on the island courts, it is important to place them in the context of local disputation. This section takes the perspective of local people—in rural and urban areas—as its starting point, laying out the types of disputes and wrongdoing they identified during our fieldwork as prevalent in their communities. Next, it discusses the strategies they employ for dispute resolution, including the role of chiefs, kastom, and the churches. Finally, it reflects on ni-Vanuatu understandings and attitudes about dispute resolution through local means, as well as the formal introduced legal system. 2.1. Local Perceptions of Disputes and Wrongdoing Interviewees were asked to list the kinds of smol raurau (minor disputes) that commonly arose in their community. Some responded with stories—concrete examples they had experienced personally—while others gave a typology. Common themes were visible in all areas, but we break this down as reported in villages and in urban settlement areas. Land, landholding, and leasing Land was invariably the first issue listed by interviewees in every area visited on the islands of Santo, Malekula, Epi, and Tanna, and there was a clear inference that many disputes that might at first sight be otherwise classified were actually generated by underlying disputes over land ownership and use. Some land issues have histories stretching back to precolonial times. Others have been generated by development and the possibilities of income from land use one way or another (leases, market gardening, and so on). Still others have been generated by internal migration (there is an increasing movement of people between Vanuatu’s islands), creating requests from “man kam� (immigrants) for village land. Some interviewees blamed a breakdown in traditional protocols that formerly applied to land acquisition; in the past, man kam used to bring gifts for local chiefs and await an invitation to use land, but nowadays, they said, some man kam seemed to think the act of gifting automatically entitled them to land. Further, when man kam sought to buy land, it created conflict among local people, as several individuals would claim to be the land’s real owner. Land issues are also a problem in urban Port Vila, though they take a different form. We interviewed residents of five settlements: Freswota, Ohlen, Seaside, Blaksans, and Erakor. There is a variety of landholding and house-holding arrangements in these settlements, and formal and informal systems can be found within a few blocks of each other. 4 These include informal subleasing and micro-renting (for example, of single rooms in a building). The variability in landholding and house-holding arrangements gives rise to a number of the ongoing issues faced by some residents, including a shared sense of unease about long-term occupancy. We were told of a “typical� informal arrangement between buyers and sellers of areas of land around Port Vila whereby they enter into a mutual agreement over a long-term payment of installments until VT 1 million has been paid, at which point the buyer obtains the lease. There is commonly no legal documentation of the transaction, so until the total amount has been reached, the buyer is vulnerable to a breakdown in the arrangement if 4 For perspectives on the contemporary complexity and confusions of landholding and land dealing in Vanuatu, see Chung and Hill (2002, 13–15); Nari (2000); Regenvanu (2008); and Tawney (2006, 29, 43–44). 7 payments fall behind schedule or there is some kind of conflict with the seller. In the event of such a breakdown, the buyer loses not only the money already paid, but also the land occupancy. One strategy used by buyers to accumulate money to pay the installments is to invite rent-paying residents to live on the not-yet-bought area of land. These residents understandably live with a sense of danger (real or otherwise) of being evicted en masse if their so-called “landlord� (the buyer) loses access to the land. One settlement area, Erakor, is the site of a longstanding chiefly title dispute connected with land ownership and land dealing. The dispute entered the courts in 2002 but has roots going even further back (see Forsyth 2003, 195; Vanuatu 2002). This issue lay beneath all discussions of problems in the Erakor community and it skewed local responses to questions about justice and legal resources. The underlying land issue was described as a situation in which some people had sold land without following proper procedures and had made unsatisfactory landholding arrangements, which created ongoing tensions. An interviewee told us that because of the chiefly title dispute, which currently involved four claimants, Erakor had not had a stable chief to take problems to for the past three years (the last person locally elected to be the overall chief had died four years earlier). The interviewee’s own group had nominated a leader for itself who was not a “bloodline� chief but whom they called a chief nevertheless because of his knowledge and competence. They took their internal problems to him and he dealt with them in a “kastom way.� The preoccupation with land in Erakor might be interpreted as a different situation to other urban settlements, but we found that land issues underlie the lives of people in most settlements, even though these issues were not directly raised by interviewees. A more immediate land-related problem for some urban settlement inhabitants was room-rent debts. In some houses, individual rooms were rented out for VT 10,000–15,000 (or sometimes more) per month. If someone fell behind on his/her rent, the homeowner locked the individual out of the room. A common recourse was to take the matter to the settlement area’s chief, who called a meeting between the parties and facilitated an arrangement of back - payments by installments. Interviewees’ frequent passing references to landholding, house- holding, and rental issues suggested that more research needs to be done on the effects of informal land dealings on the socio-legal climate in urban settlements. It was difficult to assess the real status of settlers in this respect. Some appeared to be paying no rent to anyone, others were paying periodically to “landowners,� others to “landlords� who may or may not have acquired leases, and still others were renting individual dwellings or subletting rooms. Little information is available to clarify current landholding arrangements in the Port Vila urban area, and the limited historical information we found suggested that whatever arrangements do exist may not be stable and could therefore change within a very short period. The uncertainty of habitation, though largely unspoken, arguably has an effect on the social climate in Port Vila’s settlements, and further investigation of landholding, leasing, and renting would be valuable. Thefts and behavioral transgressions Aside from land, common issues listed by villagers were theft of livestock (ranging from chickens to cattle) and produce (kava, coconuts/copra), theft from trade stores, problems with marriages and liaisons between young people (relationships disapproved of by families, pregnancies, and so on), sorcery, and malicious gossip. Alcohol was sometimes mentioned, but further questioning revealed that this was seen as a problem only at Christmas celebrations and occasionally at weddings. Marijuana use by young people was also listed in some areas (the southern part of Malekula island in particular has a reputation as a major 8 marijuana-growing area, supplying boat visitors from elsewhere). Excessive kava use was also listed by some people, who said it made people lazy, which led to arguments between (male) users and their disgruntled wives. In some areas, the presence of multiple church denominations was a source of friction. For example, one village community on Santo island had previously been represented by a single denomination, but in recent years, a number of others had moved in, and these now competed for members and territory. Arguments were made worse by claims of miracle-working by one denomination (healing the blind, turning water into wine), which provoked accusations of fakery from others. The chief did not intervene, because these issues were locally defined as “church problems� and not kastom. The presence of multiple denominations with differing rules and strictures also led to family friction in some cases, if members of the same family were split between denominations. In urban settlement areas, the issues cited above, disruptive drunkenness, marijuana use, excessive kava drinking, minor theft, and marital/relationship disputes were commonly offered as examples of smol raurau, or minor problems. We were aware of more serious incidents in some settlements, including murders and intimidation of house-holders by gangs of thieves, as reported in the national newspapers.5 Media reports suggested that the crimes in specified settlements were committed by youths from other areas and were linked to marijuana use, and that chiefs, church leaders, and local authorities were inactive or unable to stop them. These serious crimes were not spoken of by interviewees, perhaps because we had enquired only about smol raurau, but probably also because of fear of reprisals, as the gangs are said to have warned victims not to report incidents. Marijuana use was commonly regarded as a cause of “mental problems�6 and was also said to lead to theft and fighting. This was connected in the opinion of some interviewees to a combination of kava and marijuana consumption among young men; if they drank kava but were not satisfied with the effects, they followed it up with marijuana, after which they became troublesome. Kava consumption is more prolific nowadays in Vanuatu than formerly, when it was largely confined to ritual occasions. In Port Vila, kava bars are common and open most evenings. Kava drinking was identified by some interviewees as a problem because it wasted household money (a small cup or “shell� is VT 50, a large one VT 100) and led to family tensions. One interviewee gave an interesting example of the “kava problem� as it related to unemployment and the easing of traditional restrictions on women drinking kava (in many rural areas, women are still excluded from drinking kava or being in a place where kava is being drunk). The example concerned unemployed young women who drank kava but had no money to buy it, who would go to a kava bar and persuade older men to buy kava for them. Problems developed if the men agreed, because their wives became angry and consequently entered into confrontations with the young women. Drunkenness was also a periodic problem in some urban settlements, occurring on paydays and weekends and connected to noise, swearing, and sometimes fighting. Family fights were said to be sometimes caused by younger members of households who went “clubbing� on the weekends. 5 For example, “Police Investigating Murder at Freshwota,� Vanuatu Daily Post, March 4, 2011; “Residents May Turn to Guns for Protection,� Vanuatu Daily Post, March 7, 2011; and “Special Squad to Investigate Freswota Murder,� Vanuatu Daily Post, March 11, 2011. 6 When asked for elaboration of what was meant by “mental problems,� people described aimless sitting around, and unresponsiveness and vacuous expressions. 9 Opportunist petty theft was common in urban settlements. The items stolen were mostly cooking utensils and clothing left outside dwellings. House break-ins also occurred, but were less common. Interviewees said that in most cases, nothing could be done about these kinds of wrongdoing, no reconciliation was possible, and nothing practical could be achieved by calling the police, because the thieves could not be identified. Settlers would occasionally call the police in cases of social disruption by drunks. The strategy of the police was usually to try to calm things down, but if the drunks were uncooperative or aggressive, they were arrested and locked up in a large holding cell at the Port Vila police station overnight. By all accounts, people in the crowded cell were given no food or water during their incarceration and were then released into the charge of their local chief the following day, to be dealt with as the chief saw fit. The holding cell is cell 6, and the overnight incarceration is commonly referred to by the slang term “namba sikis� (number six). Following the release of the offenders, the chiefs would usually facilitate a reconciliation between the drunks and the offended parties. The problems listed above were found to a degree in all locations visited. (It was noticeable that domestic violence was not mentioned—see section 3.5 below.) However, in some locations, there were also some singular problems. An example was an issue generated by a tourism initiative on Wala, a small island off Malekula. Problems began some years ago when a tourist boat began to visit the island, generating efforts on the part of the islanders to profit from such tours by selling local artifacts. Conflicts developed over land rights, as people claiming traditional links started coming from the Malekula mainland to get a share of the tourist trade. A chiefly title dispute (involving eight claimants and linked to the land rights claims) also began, and a scandal erupted when funds disappeared from the community trust that had been set up to look after the income from tourism. The chiefly title dispute was being heard in the Malekula Island Court while we were visiting. Wala islanders said that the misappropriated funds could not be recovered, as the suspects had gone to Port Vila and the money trail had gone cold. Mismanagement or theft of community funds, as experienced by the Wala islanders, is a contemporary problem elsewhere in Vanuatu, as rural communities attempt to benefit from the spreading cash economy. Community cooperative associations are currently common, and they undertake self-help and community development projects. An example is a case in a northern Santo island village, where funds had been mismanaged by the association’s manager and villagers went to the chief for help. The chief was a brother of the fund manager, which impeded hopes of solving the problem; the chief was also accused of obtaining goods from the cooperative without paying. When villagers tried to take him to task, he became angry and damaged the co-op building. Interviewees said these kinds of issues were not taken to courts, because they were intra-village matters and involved kin- relationships. People feared the alienation that would be created if these problems were taken to an “outside� court. 2.2. Addressing Disputes and Wrongdoing At the community level, if minor conflicts could not be resolved by the immediately affected parties, they were taken to a chief. Most places visited had a nakamal—either a building or a demarcated area—where a chief and his assistants considered the dispute and came to a decision about how it should be resolved. Customarily in Vanuatu, “justice� and punishment are lesser considerations than settlement and the restoration of social equilibrium when conflicts are publicly aired. This is not to say that ni-Vanuatu never desire vengeance when they feel they have been wronged; indeed, interviewees talking about personal experiences 10 were likely to express a desire for revenge or for the perpetrator to be humiliated or to suffer misfortune. The chief, however, represents the local community’s overall interests in the dispute. Punishments generate resentment in the recipient and can lead to greater and ongoing friction among people who are usually related by kinship or through marriage links and thus have inescapable rights and obligations toward each other. The desired outcome of disputes, therefore, is reconciliation, apologies, and mutual gifting (mats, livestock, produce) to symbolize respect, as well as ongoing social interaction and cooperation. According to interviewees, the chief’s decision is usually accepted, even if (as some interviewees conceded) dissatisfaction might be privately expressed over the amount of compensation ordered or other aspects of the resolution (see also comments under “Perceptions of chiefly authority� below). Hierarchies of dispute management Interviewees in general had a notion of a hierarchy of forums to which they would progressively take a dispute. Both in rural areas and in urban settlements, disputes and wrongdoings were said to be addressed firstly at the family level, taken to a chief if the family could not resolve the matter, and then heard before a council of chiefs if necessary. The difference between urban settlers and rural villagers was the putative next step in the hierarchy of resources. Settlers commonly nominated the police as the next step, since in their view, police involvement signaled the movement of the problem to a magistrate’s or higher court—that is, the formal legal system. An exception was when people wanted urgent and immediate attention to disruptive behavior and as a first step called the police, who simply locked offenders in a cell overnight and released them in the morning (the “namba sikis� response). Whether the idealized hierarchy of justice resources offered by urban settlers was really pursued in practice was not clear, and interestingly, island courts were only occasionally included in their catalogue. Some people offered suggestions for better local conflict-solving systems, such as a council or committee made up of representatives from various interest groups, for example, youth groups, churches, chiefs, and/or women’s groups. One woman offered the opinion that most problems in her settlement area were caused by young people who were not staying in school but wandering around getting into trouble. She suggested an overall remedy would be to provide resources to assist parents in raising and educating their children. We found that despite the stated hierarchy of dispute-management resources, minor disputes and wrongdoing among urban settlers were dealt with at the family level wherever possible. By this interviewees meant reconciliation between the families of those who had caused the problem and those who had been affected by their behavior. Apologies, presentations of woven mats (traditionally in Vanuatu, mats are symbolically redolent valuables7), and cash were generally recognized as an adequate settlement of the problem. This reflects common customary practice in Vanuatu, since reconciliation is generally seen as more constructive than punishment in small-scale societies where disputants are often related and the resentment generated by punishment and loss of face is recognized as socially corrosive. If family-level reconciliation attempts were not successful, or if the aggrieved parties wanted a more authoritative directive to compensate and reconcile, the matter was taken to a local chief (see next section below). Most urban settlements contained a number of men who were recognized chiefs in their home islands and who brought their authority to their urban neighborhood. These were assisted by municipal town councilors in one or two residential 7 See Bolton (2003) for an explanation of the traditional importance of weaving and the symbolism of mats. 11 areas. Chiefs would arrange a meeting between the disputing parties, order fines (that is, compensation payments), and oversee an apology and reconciliation process similar to that attempted between families. In cases of marital problems, they might also negotiate a separation, although this was not generally encouraged. Perceptions of chiefly authority Some interviewees expressed dissatisfaction with their chief, usually based on a personal experience of a dispute on which they felt there had been inaction or an ineffectual response. It was hard to gauge the real degree of a chief’s blameworthiness in these instances, since in the limited time available, we could not investigate the chief’s side of the disagreement or what precisely had transpired. In a few cases, interviewees told of disputes in which the antagonist had left the village permanently during the time the chief was supposed to be dealing with their case, and the chief had subsequently not acted. While the aggrieved disputant may have felt frustrated, it should be noted that traditionally, the departure of one party could mark the end of a dispute, because there is no possibility of bringing people together for reconciliation and the restoration of conventional relations in the village. Customarily under such circumstances, a chief is likely to see dispute settlement as obviated by the departure and to leave it at that. Sometimes chiefs simply recognize and accept inevitable states of affairs. In one example of a marriage problem where a woman ran away from her husband, the chief held a meeting, pigs were ceremonially killed, and the couple were seemingly reconciled. However, the woman ran away again and went to live with another man; the chief did not intervene further, because he accepted that the marriage was irreparable. There were some cases, however, of people simply ignoring the chief’s compensation orders or other decisions. One female interviewee told a personal story of a marriage problem that resulted in her violent husband leaving her with four children to look after. She went to her chief in the village, who held a meeting and ordered her husband to pay her compensation. The husband, who worked as a security guard at the provincial center, ignored the order, and the chief seemed unable to do anything further. The woman had no knowledge of how to take a complaint to the police or how to access a formal court, so did not know how to proceed. (During the interview she expressed a desire for revenge and said she wanted her husband to lose his job.) On the other hand, there were areas where in the absence of police and with very limited access to any state or provincial governance institutions, the authority of chiefs was strong and unchallenged. We also found evidence of creative solutions by communities who had no access to police. This was particularly so on Epi island, which lacked police when we visited and had had an island court for only one year. In one incident, involving trade in marijuana, young men in one village were clandestinely growing and offering marijuana for sale. Young men from another area were buying the marijuana, to the concern of their elders, but there was not enough hard evidence on the persons involved to enable the chiefs to intervene. The concerned villagers recruited a man from another place to go to the sellers pretending to be a buyer; in casual conversation, he managed to get the names of all those involved in the illegal trade, and then passed his knowledge to the appropriate chiefs, who put a stop to the affair. Alternative strategies for addressing disputes and wrongdoing Some communities were trying to develop self-sufficient, systematic ways of dealing with social problems in changing times. An example is the village of Sarete, on Santo island, 12 which has formed the Sarete Development Committee, borrowing a structural model from national governance and developing the idea after some villagers visiting Luganville (the main provincial town) saw a World Vision presentation on “Good Governance.� The Sarete Development Committee has been in existence for about three years and is overseen by a council of chiefs, below which are a set of development committees and departments. For example, there are departments for women’s affairs, youth, fisheries, health, and justice. They have marked a boundary around Sarete (which has a population of about 300), and try to control in-migration—newcomers need permission from chiefs to enter and stay. They also have a curfew system; a whistle is blown at 8 p.m. signaling for children to be inside their houses, and another “lights out� whistle is blown at 10 p.m., when kava drinking must stop and everyone must retire to their houses. The Sarete Development Committee was compared by an interviewee to former systems of social control in villages. People used to control local boundaries in the past, we were told, so the development committee was not necessarily a “new� phenomenon but rather a way of handling changing times. Law and kastom are applied in Sarete according to the nature of the case at hand. The issue goes first to the chief, but instead of hearing it at the nakamal, he passes it to the Justice Committee. Elders have drafted kastom “bylaws,� and put kastom side- by-side with the introduced legal code. An example of a kastom case was described as involving taboo-breaking (for example, entering a particular site or indulging in taboo behavior at a particular site), whereby a chief might place a namele leaf as a taboo sign in various places, and if someone ignores the taboo, he or she is taken to the committee. Another example was the procedure to be followed if someone took produce from another person’s garden. The taker is supposed to leave a sign of his identity, and if he does not, the act is classified as theft. The Sarete committee has also worked out village jurisdiction for dealing with debt and compensation cases (that is, civil offenses); cases involving a value of up to VT 25,000 are dealt with in Sarete, those involving a greater value go to the island court, and cases involving a value of more than VT 50,000 go to the magistrate’s court. Child maintenance cases are automatically sent to the island court. As a result of the creation of the Sarete Development Committee, the village was said by interviewees to be very peaceful nowadays, without the kinds of problems commonly experienced elsewhere (particularly those of troublesome youth, marijuana use, and so on). “Doing kastom� While kastom per se is insufficiently defined, kastom settlement was generally described by interviewees as the exchange of mats and other valuables between parties, as well as apologies, in a ritual aimed at reconciliation. In the urban environment, many settlers regarded the involvement of chiefs as a form of kastom, and preferred it to the more legal approaches. Most minor problems and social disruptions were dealt with in this way, including “boy-girl� problems (that is, young people’s relationships, teenage pregnancies), disruptive drunkenness, affray (public assault), verbal abuse and threats, socially damaging gossip, occasional disputes over urban garden boundaries, and so on. Some interviewees had stricter ideas about what constituted kastom. For example, one person specified that dispute settlement by kastom must involve the giving of mats, the exchange of food, and reconciliation. This implied that reconciliation effected by chiefs in which there were no mat and food exchanges (chiefs in urban settlements often simply order a compensation payment to the aggrieved party) did not qualify as “real� kastom. Another person specified that kastom required the presentation not only of mats, but also of pigs and other valuables, and said a reconciliation process in which only mats were presented was not really kastom. 13 Chiefs were often advised by “assistants� in their handling of disputes, and their decision about the form and size of the compensation payment were mostly accepted by disputants (see, for example, Forsyth 2009, 115–7). However, we were told in some urban settlements that social problems (particularly marijuana use and petty theft) that used to be taken to a chief were increasing in number and thus growing beyond chiefly manageability, so people were becoming more inclined to call the police. There was some evidence of a changing sensibility toward punitive responses to crime in urban Port Vila, perhaps as a result of a growing population and the difficulty of maintaining social cohesion and achieving reconciliations in increasingly ethnically mixed settlements. Interviewees pointed out that in the mixed settlement environment, an important consideration was the difference in kastom among the various groups, which had to be negotiated carefully in dispute management. While many interviewees preferred that minor disputes be dealt with by “doing kastom� (in the general sense, meaning an apology, compensation, reconciliation), others felt that this did not have a preventive effect, and that some sort of punishment was necessary to “get the message across� to people who repeatedly offended. There were clearly mixed attitudes toward chiefly interventions. Some people said that though chiefs continued to have a role in urban settlements, they did not “work with the law� (that is, they generally offered non-punitive solutions and did not involve other authorities), persuading people to go to the police. The implication was that the customary ways of dealing with problems were currently less effective in urban areas. Church involvement in dispute management The overwhelming majority of ni-Vanuatu today are Christian, but we did not find evidence of the significant involvement of churches in dealing with disputes and wrongdoing (but see, for example, Forsyth 2009, 11, 26n99). Sometimes, we were told, when a chief deals with a small problem and facilitates a reconciliation, a church pastor might pray over the reconciliation, and we encountered one man in an urban settlement who was both a chief and a pastor and who appeared to combine the two roles in dealing with problems in his area. For example, he said that when young people became disruptive under the influence of alcohol or marijuana, the first response was to try and quiet them down, rather than attempt to arrest them in their intoxicated state. After they had become sober, a meeting was held to resolve the tensions they had caused. If this was insufficient, the young people were brought to the church for counseling. Relationship problems between young people or married couples were also dealt with by counseling, he said, and he counseled women who were having problems due to the non-payment of child maintenance support. There were one or two exceptions to the general lack of church involvement in dealing practically with minor disputes and wrongdoing around Port Vila. In one settlement, the Presbyterian Church had a youth group that extended outreach services to people in need, buying them food and visiting them. It also attempted to draw errant youths back into the church. The church was also utilized in cases of “black magic.� Black magic accusations are hard to prove (even if there is a definite suspect) and thus hard for authority figures to deal with. Church representatives addressed black magic through prayer, which was said to have an effect on the suspect, who sometimes became weak and sick. One small community of people in Port Vila’s Seaside settlement area whose traditional home was Futuna island reported a strong church involvement in the prevention of social problems in recent years. There was a Presbyterian Church in their “compound� that intervened when problems started to increase. Weddings and special occasions had 14 previously involved alcohol and therefore trouble, but the church stepped in and banned alcohol consumption. It also closed the group’s kava bars. The compound chief also imposed a rule on female dress, reflecting conservative (and perhaps patriarchal) Christian values in an urban environment where many young women wear shorts. Young women were no longer allowed to wear shorts in the Futuna compound, and any woman doing so had to cover them up with a lava lava (wrap-around skirt). Despite the conspicuous proliferation of Christian churches in and around Port Vila, however, it cannot be said that they are active in dispute management in all settlements or subdivisions within settlements. In rural areas, they do not appear to involve themselves significantly in dispute settlement, and in some cases are a source of dispute themselves, through inter- denominational rivalry and conflict. 2.3. Persistent Conflict between Local Dispute Management and the Introduced Legal System: ni-Vanuatu Views Most ni-Vanuatu speak of their village or kastom methods of dealing with disputes and wrongdoing as standing in contrast to all introduced methods, including island courts, magistrate’s courts, higher courts, and also the use of the police. Any attempts made to integrate what are popularly perceived of as two contrasting systems would need to overcome not only practical and juridical complications, but also a fairly well entrenched attitude at the village level. As Forsyth has written, “The development of a Melanesian jurisprudence has been the Holy Grail for many academics, politicians and judges in Melanesia since the independence of the States in the region� (Forsyth 2004, 427). The customary ni-Vanuatu attitude is frequently expressed with reference to “law and order,� “minor crime,� “community justice,� and other terms borrowed from introduced systems of law and justice, but it is actually a manifestation of social preoccupations rather than juridical ones. To quote Forsyth again: “In ‘traditional’ Melanesia … authority was typically dispersed throughout the social body … There was no concept of ‘crime’ per se. Disputes were defined and resolved within an elaborate framework of kinship, status and relationships� (2004, 429). Interviewees demonstrated this important aspect of customary society with comments about the relative transparency of village moots and nakamal hearings. They compared this transparency to what they regarded as the manipulations that were possible in the introduced courts, where procedures prevented interruptions, limited the number of interested parties who could take part, and enabled people to lie and give false testimony. People could not lie, they claimed, in a nakamal or village hearing, because so many people with common knowledge were present to expose falsehoods and correct false declarations. There was also an implication that people attempting to manipulate decisions in their own interests preferred to avoid village forums in favor of island or magistrate’s courts because they could lie and elude spontaneous communal responses to their testimony. We were given an example by two women who talked of their first experience of an island court. They had been asked to give eyewitness testimony for their group in a property damage case, which their own party had wanted to deal with in the nakamal but the other party had refused, and so the case went to the island court. The interviewees said they told the truth in court but the other party gave false testimony and actually accused their group of stealing cattle (which they denied to us). The island court found in favor of the other party, and their own “side� had to plant 50 heads of kava as compensation and shake hands with the other party. They complied but were unsatisfied with the outcome, and their side had since 15 appealed the decision. The two women told us that as newcomers to an island court, they had been nervous, unused to standing in a witness box, swearing on a Bible, and so on. However, they declared that now that they were familiar with the procedure, they would not be nervous the next time. The example handily encapsulates the attitudes of rural villagers to the introduced legal system—their distrust of it and their initial experience of its procedures as alien. Despite the dichotomous view rural villagers hold about kastom and law, we found an example on Santo island of villagers attempting to combine them. The two interviewees in this case were an old man, X, now aged 74, and Y, who was the son of X’s elder brother. X had been an adopted son (adopted from within the natal group). His adoptive father had bequeathed some land to his biological son, but gave another piece to X in 1989. He did this by writing a will (which we were shown) that was witnessed and stamped as a legal document. In addition, X’s adoptive father held a ceremony to legitimate the bequest according to kastom. X, now elderly himself, had no children, and the ownership of the land was latterly being contested by four claimants. X wanted to keep the land in the bloodline of his adoptive father, so he was now seeking to bequeath it to his elder brother’s son, Y. He wanted to do this in the same way his adoptive father had, so it would be legitimate (in his view) both in law—via a will—and in kastom. X and Y had found a very old man who had witnessed the 1989 ceremony and who could testify that it had really happened (thus proving X’s original acquisition of the land through kastom), and now X and Y were seeking the advice of the island court clerk about proceeding with the will and bringing together the kastom and the legal aspects. Y and his brothers were planning a public ceremony in which they would reciprocate to X for his bequest of the land. Y was now married with children, so he would pass the land on via his bloodline. As well as being an example of villagers using island court clerks as a resource for legal advice, this was a very interesting case of villagers bringing together kastom and law—something the state would like to be able to do on a national scale but has so far been unable to achieve. Youth perspectives Research conducted in Vanuatu roughly one decade ago found that young offenders arrested on minor charges preferred to be dealt with according to customary procedure (facilitated by chiefs) rather than the courts. Their preferences were related in the research findings to a contrast between their relatively rough treatment by police and the punitive approach of Western law on the one hand, and the reconciliatory approach of kastom procedure on the other (Rousseau 2003). From a different perspective, Morgan draws attention to the poor legal literacy among young people, who often do not know their legal rights and do not provide adequate information to their legal representatives (2001, 59). At a “Governing for the Future� workshop in Port Vila in 2001, the relevance of kastom in urban areas was questioned.8 Community dispersal “diluted the influence of chiefs� (Morgan 2001, 59): “Tolerance of violence towards women and children, opposition to women in decision- making roles, arranged marriages and chiefs’ control of young people’s mobility are all elements of kastom that are no longer acceptable� (Morgan 2001, 59). Concerns had been raised that there is no right of appeal in kastom courts, and chiefs reserve the right to repatriate young people to their natal islands. According to Morgan, tension was mounting at the beginning of the new century “between notions of reinvigorated kastom to compensate for perceived state weakness and awareness that this may curtail the human rights of individual ni-Vanuatu� (2001, 60). 8 Note that this implies a dichotomy between kastom and law. 16 The testimony of particularly our urban interviewees, however, provides a more complicated picture. On the one hand, there was some concern that chiefs are becoming less able to deal with rising problems in urban areas, and people were turning instead to the police. On the other hand, the “namba sikis� recourse of police means that young people are confined with older people under harsh conditions in a single large cell, and then simply passed back to chiefs. This seems to be a process that the organizers of the 2000 Juvenile Justice Project had hoped to reform (see Simeon 2003), particularly the harsh treatment of young offenders in a formal justice system that made little provision for distinguishing them from adult offenders (Morgan 2001, 60). Yet little seems to have changed in this respect, and it is not clear whether the rights of younger people are being better served by formal policing methods than by informal community responses in the current urban socio-legal climate. Greater confidence in kastom The idealization of kastom approaches to dealing with disputes reflects an enduring characteristic of small-scale societies in Melanesia: the restoration of damaged social relationships is a primary consideration, and legal ideas of justice and punishment have not yet displaced the exigencies of kinship-based social organization. There was a clear sense of a law/kastom dichotomy in the attitudes of villagers everywhere, and the majority of people felt that kastom was more appropriate for dealing with at least intra-village disputes. One implication of rural villager attitudes is that island courts, which were intended to be an amenable forum for dealing with disputes and wrongdoing particularly in village societies, need to skillfully negotiate the prevailing popular sense that there is a kastom/law dichotomy if villagers are to find them an attractive complement to village forums. Contemporary urban ni-Vanuatu also for the most part subscribe to a simple ideal of kastom settlement of disputes, involving the giving of mats and valuables and the acknowledgement of reconciliation. Some contrasted this with the procedure of urban chiefs who hold a meeting and simply order compensation payments, and implied that kastom would work better. This, however, was complemented by other views favoring the combination of intervention by the chief, the church, and other community organizations. The shared constituent of these views is that they favor community rather than legal resources—and island courts, regarded as “legal� courts, are not included in these communal models. 3. Island Courts In this section, we discuss the history of the island courts, and some anomalies in their jurisdiction. We report on their practical operations, procedures, and caseloads, and the efforts of staff to deliver services in spite of budgetary constraints. We investigate the relationship of law and kastom in the practice of the courts, consider how gender issues affect the use of the courts, and examine villagers’ perceptions and use of island courts as a legal resource. 3.1. History of the Island Court System Although at the very end of British-French Condominium rule, the New Hebrides (Vanuatu’s colonial name) Courts Regulation 1980 provided for village, island, and town courts, there is no clear record that such courts ever came into operation. However, the Constitution of Vanuatu, adopted at independence that same year, required that Parliament “provide for the establishment of village or island courts with jurisdiction over customary and other matters, 17 and … provide for the role of chiefs in such courts.�9 According to Russell, by 1982, the need for a new system of local courts had become apparent, and in December of that year it was decided to have a two-tier system, with island courts staffed by local justices and appeals on land cases going directly to the Supreme Court (1988). Island courts were subsequently established by legislation—the Island Courts Act—in 1983 (which was amended in 1989, 2001, and twice in 2006). Some Western lawyers regard the Island Courts Act as unclear in its legal criteria. One commentator has gone so far as to say that sections of the act “lie uneasily together and display muddled drafting� (Brown 2005, 172). Inasmuch as the island court system was planned and inaugurated shortly after independence, the ambiguities created by a shift from the idiosyncratic politico-legal culture of the British-French Condominium of colonial times (see Weisbrot 1989) to post-colonial governance became manifest in some anomalies in the legal scope of the island courts. An attempt was clearly made to integrate the legacy of “joint regulations� with regional governance rules, the notion of kastom, and standard Western distinctions between civil and criminal law. An elderly island court justice interviewed during research on Malekula island in 2011 said he had previously served as a justice on a similar kind of court in the late colonial period. This was very likely the “native court� in which New Hebrideans (now ni-Vanuatu) appeared when charged with offenses against fellow indigenes. They were tried by French and British District Agents (in the last years of Condominium rule, indigenous Assistant District Agents could also serve in this role) together with two indigenous “assessors� (Hudson 2002, 299). Another court of the Condominium period that employed an indigenous assessor was the Court of First Instance, in which New Hebrideans were tried for offenses against the joint regulations (Hudson 2002, 299). The jurisdictions of these two courts were absorbed into the island courts in 1984 (see table 1). In February 1983, Vanuatu’s Attorney General prepared a discussion draft of the Island Courts Bill to be presented to Parliament. The draft was sent to the Senior Magistrate for comment. Section 3(1) of the draft stated that an island court should have three justices, and the Senior Magistrate suggested an addition to the effect that one of the justices should be a “custom chief resident� in the territorial jurisdiction of the court.10 This simple phrase was an important marker of the hybrid nature of the island courts and their connection to kastom. The Act was passed in May 1983. It has previously been suggested (Weisbrot 1989, 65, 79) that island courts were modeled on the local courts of Solomon Islands. F. J. Cooke, Vanuatu’s Chief Justice at the time of the establishment of the island courts, had previously served in Solomon Islands, and some documents and correspondence were found during our archival research11 supporting Weisbrot’s contention. The first island court sitting was held in Port Vila, Efate island, on April 30, 1984. Tanna Island Court held its first sitting in Isangel on July 18 the same year, and the courts on Malekula and Santo began sitting around the same time. The first island court land case, concerning custom ownership of Mangaliliu Plantation, was heard in September 1984. Correspondence found in the Supreme Court archive suggests that island courts were in 9 Constitution of the Republic of Vanuatu art 78(2) & 52. 10 Supreme Court Archive Box 981. Corres., Attorney-General to Sen. Magistrate, dated February 1, 1983, and reply dated February 14, 1983. 11 Archive Box 981. Loose papers, including initial drafts of Island Court procedural forms, circa March 1984, and corres., Sen. Magistrate, to unnamed recipient, March 9, 1984. 18 operation before their rules and procedures had actually been finalized,12 and the year 1984 appears to have been a period of hasty and uneven implementation. It was anticipated that by 1985, each of the four island courts so far established (Efate, Santo/Malo, Tanna, Malekula) would be provided with its own vehicle and driver;13 however, vehicles were not forthcoming, despite a complaint by the Chief Justice in 1985.14 The lack of vehicles remains an impediment to the functioning of island courts to this day. The number of island courts in operation has fluctuated over a long period of time, and some oral evidence gathered in 2010 implied that the number declined in the late 1990s, and that island courts may have stopped operating for a year or two. However, on Malekula and Tanna, the available records consulted indicated continuous operations since 1984, so if there was a break in operations, it cannot have been countrywide. The record of the warranting and establishment of the island courts remains incomplete, but some were found on Tanna, Santo, and Malekula islands, enabling a partial compilation of statistics and a limited profile of the types of cases heard in those courts over a number of years (see Annex, tables 9–15). Currently, 12 island courts are supposed to exist, but according to the Island Court Supervisor, only 10 are currently in operation (note that 63 of the 82 islands constituting Vanuatu are inhabited). Budget figures for 2010 confirm that 10 island courts are in fact operating. 3.2. Jurisdiction, Procedure, and Caseloads Jurisdiction As previously noted, when island courts were inaugurated, an attempt was made to combine the legacy of joint regulations with regional governance rules, the concept of kastom, and generally recognized Western distinctions between civil and criminal law. A particularly opaque aspect of this integration is the inclusion of customary law in the jurisdiction of island courts, as long as the customary law is “not in conflict with any written law and is not contrary to justice, morality and good order.�15 Interestingly, though, no explanation of what is meant by “custom,� “customary law,� or the vernacular kastom is offered in the warrants establishing individual island courts. Indeed kastom, a constant referent in everyday discourse and particularly in discourse on law and justice in Vanuatu, is not even mentioned in the warrants. It has been suggested by some commentators that the nature of the island court warrants means that the courts are not recognized as having general customary law jurisdiction (Weisbrot 1989, 81; Forsyth 2007, 224–5), and that there is no general authority to make legally recognized orders of “custom� remedies (Jowitt 1999; Forsyth 2007, 433). Island courts exercise both criminal and civil jurisdiction (see table 1). Early warrants establishing island courts listed criminal and civil offenses fairly specifically, clearly delineating the limits to criminal jurisdiction and including offenses against specified joint regulations surviving from the British-French Condominium of the colonial period, as well as offenses against regional (now provincial) laws. Limitations on civil jurisdiction were not specified. In 1994, there were some changes via an order amending all previous warrants; several offenses were added to the previous list under the Penal Code, some minor traffic 12 Archive Box 1007. Corres., Public Prosecutor to Chief Justice, May 3, 1984 and handwritten note to Island Court Clerk, dated May 4, 1984. 13 Archive Box 1007. Corres., Senior Magistrate to all Island Court Clerks, June 15, 1984. 14 Archive Box 957. Corres., Assistant Registrar Supreme Court to 3 rd Sec. Ministry of Transport, March 19, 1985. 15 Island Courts Act 1983 s 10. 19 offenses were included, and limitations were specified on civil jurisdiction, including customary land disputes, claims in tort and contract to a maximum of VT 50,000, and civil claims under regional laws to a maximum of VT 50,000. In recent years, the warrants have become less detailed. For example, the warrant issued with respect to Erromango Island Court in 2009 stated: “The jurisdiction .... shall be limited to the hearing of civil, criminal and customary matters within the Island Courts (Amendments) Act [Cap167] and this includes pending customary land claims on the Island of Erromango.� Table 1. Overview of the Legal Jurisdiction of Island Courts as Represented in Warrants of Establishment* Criminal Jurisdiction (a) Penal Code Insult to religion Disturbing a religious assembly Adultery Gross indecency Assault Unintentionally causing bodily harm Abusive and threatening language Unlawful use of another person’s property (to a value of VT 50, 000)^ Theft (to a value of VT 50,000) Malicious damage to property (to a value of VT 50,000) Receiving stolen property Maltreatment of animals Trespass Being idle and disorderly Witchcraft (b) Offenses against joint regulations (ex British/ French rule), including: Arms and ammunition regulations Cattle trespass regulations Family maintenance Child maintenance Liquor licensing Traffic regulations Taxi regulations # Civil Jurisdiction Land ownership disputes Claims in tort and contract (to a value to VT 50,000) Claims under regional/provincial laws Claims for child maintenance Notes: * Compiled from sighted warrants establishing Efate, Tanna, Malekula Island Courts 1984, Banks/Torres, West Ambae 1994. ^ Until 1994, the monetary value limit was VT 24,000. # Chiefly title disputes are notably absent from all records of the jurisdiction, and customary law is not mentioned in the warrants. Considerable emphasis was placed on land dispute resolution in the early training of island court staff. In 1988, a Ministry of Lands officer wrote that “the potential workload in land cases alone is enormous … More administrative support and regular training courses are also urgently needed� (Russell 1988, 282). However, the role of island courts in land dispute settlement changed in 2001, when a Customary Land Tribunal (CLT) was established to hear land cases. This development removed new land claims from the jurisdiction of island courts, which subsequently heard only “pending� land cases, that is, cases registered with them before 2001 that were still not finalized. At the beginning of 2010, it was recorded that there 20 were still 83 customary land cases yet to be determined by island courts.16 While officially land disputes are no longer brought to island courts, a pertinent finding in our 2011 fieldwork was that many civil cases are actually generated by land disputes, even though they are classified in different terms in the records. Complaints of trespass, property damage, and “restraining orders� (to stop land-related activities), for example, were symptoms of land ownership disputes. Whenever we asked for a list of local smol raurau (disputes, problems), land tended to be the first matter mentioned in response. Descriptions of other types of disputes frequently explained the focal confrontation or wrongdoing (for example, assault, defamation, theft) as having arisen from a land dispute. For example, on Efate island, when we enquired about local disputes and problems, one villager listed minor wrongdoing, such as abuse, physical confrontations, and property damage as well as a chiefly title dispute, in his village and added the comment that these all arose from a single, long-unresolved land dispute and would cease if the dispute could be settled. In recent years, island courts have been hearing disputes involving claims to chiefly titles, which are a growing and vexing issue in Vanuatu. An island court clerk observed to us that the development of the CLT had actually generated chiefly title disputes; because only “bloodline� chiefs can sit on the CLT, chiefs have sought to prove their hereditary qualifications by bringing title claims to the island courts. Legal commentators have questioned whether chiefly titles are strictly part of island court jurisdiction. A committee reviewed the CLT in 2010 and several recommendations have been mooted subsequently: that disputes over chiefly title should be heard by the CLT, that there should be a separate tribunal altogether to hear chiefly title disputes, and that the Malvatumauri could establish a mechanism to deal with the disputes (Simo and Van Trease 2010). If any of these recommendations were adopted, the equivocation about island court jurisdiction over chiefly titles would be made redundant. Procedure The Chief Justice is responsible for establishing island courts “as he thinks fit.�17 Island courts are comprised of lay people, called justices, selected for their knowledge of kastom. Appointments of justices are made by the President acting on the advice of the Judicial Services Commission,18 but nominations are usually submitted by island court clerks or a supervising magistrate. In 1989, Parliament required that in cases involving land ownership, island court justices be joined by a magistrate.19 Appeals from island courts are taken to the magistrate’s court except in the case of land matters, which must go to the Supreme Court. A minimum of three justices must sit in an island court hearing. One of these justices must be “a custom chief residing within the territorial jurisdiction of the court.�20 Non-chiefs frequently serve as justices, and during our research we encountered justices who were teachers and respected community leaders. All island courts visited during the research had female as well as male justices. There are prescribed rules of procedure for both civil and criminal proceedings. Criminal matters are to be commenced by a police officer filing a charge following an investigation of a complaint, and a police prosecutor will present the case. Civil matters require pleadings, 16 2009 Official Statistics for Court of Appeal, Supreme Court, Magistrates Courts and the Island Courts, 2010. 17 Ibid., s (1)(1). 18 Ibid., s 3(1). 19 Ibid., s 3(4)(a). 20 Island Courts Act 1983 s 3. 21 meaning that the basis of the claim has to be stated in writing and served on the defendant. For villagers, this requires that they register their complaints with the island court clerk, who then “summons� the other parties in the dispute. Unforeseeable postponements prevented us from attending scheduled island court hearings on Santo, Epi, and Tanna islands. However, hearings were observed at Efate (Port Vila) Island Court and Malekula Island Court. These were conducted in a very similar manner to a magistrate’s court (though without the presence of lawyers), including seating arrangements, the demeanor of the clerk and justices, and the demands for respectful behavior from the disputants. At the Port Vila court, all attendees stood as the justices entered and left, and justices bowed before taking their seats and when ending a session. In a series of observed child maintenance cases, disputants were required to sit quietly until addressed, and to stand to give testimony. Expressions of humor were not encouraged (“the court is not a place for laughter� said one justice when one disputant giggled at the testimony of another). The island court was a model of decorum and efficiency. The hearing attended on Malekula island was held in a community hall in the village of Orap that had been adapted for the hearing, which was a chiefly title dispute, and thus was less formal in its appearance than the Port Vila venue. Yet similar decorum was maintained, with strict control over the behavior of the disputants. Witnesses were sworn in on a Bible. Justices tolerated no angry outbursts, accusations of lying, or other breaches of formal court protocol. Disputants were allowed to question each other at length, but within a strict “question-answer� structure imposed by justices. A large audience of interested parties watched and listened, but did not interrupt. Caseloads The island court officials most concerned with matters of jurisdiction are the court clerks, who have to process the registration of complaints and the outcomes of cases in court. All island court clerks interviewed during our research were found to be well informed on jurisdictional matters; they had copies of the Island Courts Act and regulations, and could cite relevant sections in conversation without consultation. However, the range of cases actually heard in island courts is narrower than their overall jurisdiction allows for. An examination of 2009 statistics for the whole country (see table 3) indicated that 461 civil cases were registered and 345 completed (many completed cases had been registered several years previous to 2009). Of the completed civil cases, 194 were concerned with child maintenance, 60 with debt-compensation-type issues (cryptic entries prevented more precise identification), and 17 with property damage or disputes. Eighteen claims to chiefly title were registered, of which three cases were completed. The profile that emerged from this was that island courts were not hearing criminal cases, and civil cases were mostly concerned with debt, child maintenance, chiefly titles, and a backlog of pre-2001 land cases. Our 2011 research confirmed that criminal cases have not been brought to island courts in recent years. In 1984, the Efate Island Court was sitting three days per week, dealing mainly with criminal cases. An examination of incomplete records from the Malekula, Tanna, and Efate courts indicated that while criminal cases had been a significant part of the workload of courts in the mid 1980s, their number had considerably declined by the mid-2000s (see table 2). Epi Island Court, which has been operating only since April 2010, had received no criminal cases. The long-term reduction in criminal cases needs to be seen in the first instance in relation to the slow and gradual establishment of magistrate’s courts around Vanuatu. At independence, two magistrate’s courts were established for the whole nation, one in Luganville (on Santo Island) and the other in Port Vila. For several years, these were the only magistrate’s courts 22 (Bulu 1988, 231), and thus on several islands, there was nowhere for minor criminal cases to be taken except to the island court until a magistrate’s court was available. For example, there was a noticeable drop in criminal cases in the Malekula Island Court after a magistrate’s court was established for Malekula in 1997 (see table 2 below and the Annex, table 13). In fact, an island court clerk eventually complained to the magistrate that the island court was not getting the criminal cases that were arguably under its jurisdiction; the magistrate consequently started referring appropriate cases to the island court. Table 2. Comparison of Civil and Criminal Cases in Malekula, Tanna, and Efate Island Courts since 1984 Year Malekula Tanna Efate Civil Criminal Civil Criminal Civil Criminal 1984 27 136 35 N/A 74 N/A 1984 13 256 42 68 96 N/A 1986 N/A 122 81 103 80 N/A 1987 61 50 70 46 137 365 1988 N/A 49 52 78 89 446 1989 7 37 24 42 77 204 1990 3 47? 8 49 139 250 1991 10 85? N/A N/A 170 154 1992 28 77? 24 N/A 121 N/A 1993 29 87? 111 46 200 N/A 1994 46 153? 32 53 N/A 540 1995 96 30? 81 122 N/A unclear 1996 76 71 45 38 N/A unclear 1997 37 134 31 34 N/A 165 1998 22 58 12 48 N/A 41 1999 17 39 7 38 N/A unclear 2000 21 18 12 38 N/A unclear 2001 29 17 9 18 N/A 49 2002 52 27 4 N/A N/A N/A 2003 26 N/A 11 N/A N/A N/A 2004 28 17 11 - N/A N/A 2005 45 - 6 - 179 24 2006 50 - 11 - 174 91 2007 27 20 16 - 121 89 2008 109 - 4 - 142 19 2009 77 - 1 - 172 - 2010 59 - 14 - 108 171 Notes: “N/A� (i.e., not available): Some records were incomplete. Efforts to compile statistics for Efate have been hampered by the displacement of files in recent years after a fire at the Supreme Court building. It is likely that these could be centralized and more complete statistics provided in due course. On other islands, records have been stored with varying degrees of security and some older books may have gone missing. Queried figures: Records were handwritten, in hand-ruled “accounts-type� ledgers. In some years, there was a disparity between the total of numbered rows (supposedly representing case numbers) and the actual number of cases recorded—there were significant gaps between the recorded cases. Figures given in the table reflect the actual entries found. It is not clear whether these were a total number of cases for the year or not. Anomalies have disappeared from more recent records. “Unclear�: In book entries for some years, there were ambiguities in the case numbers covering the last months of one year and the first months of the next. No clear cutoff point could be discerned for statistical purposes . Several other explanations have been offered for the general absence of criminal cases in island courts in recent years. One is historical, involving an inference that after the alleged operational breakdown of island courts a decade ago (see section 3.1 above), villagers stopped seeing these courts as a forum for criminal offenses. However, there is no convincing evidence of such a breakdown. Another explanation was that the police, who respond to the criminal complaints in the first instance, generally opt to take them to magistrate’s courts 23 rather than the island courts. This seems to have been the case for 2008 and 2009, and in the case of Efate island. Some island court staff interviewed saw this as a matter of police attitudes toward island courts; police did not take them seriously, were not supportive enough, were very slow to get cases into the island courts, and sometimes canceled them altogether after long processing delays. The alleged police preference for magistrate’s courts has been linked to their opinion that island courts give lighter penalties than the police would like. Other island court staff, however, reported good relations with the police, and did not attribute the lack of cases to any negative attitude. Other factors include a paucity, or even an absence, of police personnel on a number of islands (for example, there are no police at all on Epi), and the lack of a police prosecutor (for example, on Tanna). A linked problem of insufficient funding for police was raised by some interviewees, said to impact on their ability to serve summonses and process cases. Without sufficient police to investigate complaints, provide evidence, and take the case to court, there is little likelihood that minor criminal cases will come before the island courts. Where police resources are limited, they are necessarily concentrated on serious crime, which is beyond the jurisdiction of the island courts. Police are understood to have started bringing minor criminal cases back to the island courts in 2010. A further factor raised by interviewees was the limited schedule of hearings in island courts, which slowed the progress of cases significantly. Indeed, it was asserted that minor criminal cases can take a year to proceed through the island courts. Consequently, police were liable to refer even minor criminal cases to the magistrate’s court to get a speedier result. The caseload of island courts nationally is relatively small compared to that of magistrates’ courts, and the clearance rate appears to be sluggish—fewer cases are completed than those registered and the number of cases pending also exceeds completions (see table 3). Table 3. Comparative Caseloads 2009, Magistrate’s Courts and Island Courts Magistrate’s Courts Island Courts Total Cases Registered 959 Total Cases Registered 461 Total Cases Completed 1392 Total Cases Completed 345 Total Cases Pending 590 Total Cases Pending 447 It thus appears that a combination of factors, rather than a single attitude or problem, is negatively impacting on police prosecution of criminal cases through the island courts. To these can be added a further factor: the attitude of rural ni-Vanuatu to the police. A researcher on kastom suggested in 2007 that the kastom system undermined the state system to an extent because villagers prioritized kastom resolutions; she further noted that it was difficult for police to collect evidence because people were uncooperative, and if villagers did turn to the state system, they were still likely to subsequently withdraw cases because they had been settled through kastom (Forsyth 2007, 262–94). Resonating with this claim and confirming findings outlined above that people continue to favor kastom over the formal justice system, our interviews revealed an insularity and a degree of fear among some villagers that dissuaded them from cooperating with the police. They preferred to try and deal with minor wrongdoing parochially, and felt that involving the police would cost money and draw them further into the state judiciary than they would like. The caseload and clearance rate of island courts is clearly affected by resourcing problems, particularly difficulties in getting cases registered and summonses delivered, transport problems, and the availability of police and magistrates. Some clerks said villagers forget or drop cases because of the unavoidably lengthy processing delays caused by these factors. 24 Historical data show that since the 1980s, there has been a significant drop in the number of cases heard. This is obvious with respect to criminal cases, and also for land cases where responsibility was transferred to the CLT in 2001. Civil case types such as debts and compensation claims have also dropped to an extent over the long term (notably on Tanna), though the reasons for this are not immediately clear. One factor may be the experience of villagers over time that taking cases to island courts results in a win/lose decision, which in terms of kastom is considered bad for future social relations between disputants (see section 3.4). Reconciliation is an important aspect of contemporary discourse about dispute-settling at village level, and people may be reluctant to use formal courts except in extreme situations. Nearly three decades have passed since island courts were first planned in independent Vanuatu, in a climate of adjustment in the aftermath of the colonial politico-legal system and with an apparent expectation that they would be significantly involved in land dispute settlement. The politico-legal circumstances have changed greatly since those times, suggesting that the role of the island courts in the judicial system is changing, and a review of their jurisdiction would be timely. 3.3. Budget, Operational Issues, and Training Budget The only budget figures for island courts readily available were for 2009 and 2010 (see table 4). Recurrent funding for the courts’ operation was budgeted at VT 24,588,025 in 2009, about one-half of which was payroll. In 2010, the figure increased to VT 30,353,025, with no projected increase in payroll but an increase in operational costs. 21 Budget amounts are determined by the Department of Justice. Island courts do not receive any regular donor funding. Aid funds were provided in one instance by the British government to facilitate a survey of the courts and to offer a training program for its justices to be undertaken in 2004 and a revision of the rules to be completed in 2005, but no further aid funding has since been provided. Payment of island courts officials is as follows: justices receive a sitting allowance of VT 2,500 per day on civil and criminal cases, and VT 4,000 per day for land courts. On land courts, the justices are joined by a magistrate who receives VT 5,000 per day. Court clerks are on a permanent salary of VT 40,000 every two weeks. Island courts are overseen by a supervising magistrate, who collects VT 15,000 per month for the task, on top of his/her normal salary. Table 4. Island Courts: Budget 2009, 2010 2009 2010 Payroll VT 12,052,905 Payroll VT 12,052,905 Operations VT 12,535, 120 Operations VT 18,300,120 Total VT 24, 588,025 Total VT 30,353,025 Operational issues Budget constraints were frequently raised by island court staff interviewees as a cause of problems in running the courts efficiently. In theory, island courts hold regular hearings, planned at the beginning of each year and involving four tours to hear cases in rural areas, the outer islands, and so forth. However, this ideal is rarely achieved. Budget constraints indicate, 21 Dept Justice of Vanuatu, Island Court Budget 2009, 2010. 25 for example, that vehicles cannot be provided for island court staff, which is a long-standing problem. As noted above, when island courts were first introduced in 1984, it was intended that each would have a vehicle and driver, but these were never provided. Island court clerks told us that in order to travel around their islands, they have to charter or rent vehicles from private individuals or provincial departments, depending on availability (for example, there are only eight vehicles on Epi island, and there is a constant demand among various institutions to hire them). This affects their ability to schedule hearings and to travel to them. Justices told us they paid their own way to get to hearings and sometimes had to wait months for reimbursement. We witnessed one island court clerk’s difficulty in traveling, a situation in which a booked vehicle failed to arrive and the clerk looked likely to have to sleep overnight in an unfamiliar village. We ourselves had difficulty getting to a court hearing on Malekula island due to the scarcity of transport. Transport problems also affect the ability of island court clerks to contact remote villages to collect case registrations when villagers have no way to come to the clerk’s office. Similarly, a lack of transport makes the delivery of summonses to remote villagers difficult, requiring clerks to be creative in their attempts to service rural villagers. Sometimes registrations are collected during one tour for cases to be heard in later tours. Some clerks negotiate with, for example, provincial area secretaries or police staff to help collect and deliver registrations and summonses. One island court clerk trying to get summonses to nearby villagers dealt with the problem by spending time sitting in the local produce market (such markets are social gathering places and the loci of message networks); word was passed around and individuals were eventually contacted in this informal but time-consuming manner. In addition to travel obstacles, budget constraints also affect the courts’ ability to run training courses, which most staff consider should be more frequent and more extensive. While we heard no complaints about salaries from island court clerks, a number of justices were unhappy with their allowances. One issue was the different allowances between cases, which, justices argued, were equally important. For example, as outlined above, the allowance for sitting on chiefly title dispute cases was VT 2,500 per day (that is, the standard fee for civil and criminal cases), but for land cases, they received VT 4,000. Since both types of case were important, said some interviewees, the allowance should be VT 4,000 for both. It was also argued that allowances overall should be increased in line with the importance of the duties of island court justices, who, for example, were used as advisers in Supreme Court decisions. Some justices felt they should receive regular salaries instead of sitting allowances, as well as a subsistence/travel allowance, and one suggested that justices were quitting service because of these shortcomings. This person made a related rhetorical point that young people doing law courses at the University of the South Pacific (USP) Port Vila campus were not moving into the state’s justice service but becoming private lawyers because it was more lucrative. The effects of budget problems create a significant difference between the operation of the court in Port Vila and those on other islands. Staff of the Port Vila Island Court said they had no particular transport or communication problems, and (unless disputants had moved away from Efate island) no problems with the registration of cases or summons delivery. However, for island courts beyond the national capital, the effects of budget constraints are exacerbated by other resourcing problems, including telecommunications and the difficulty in getting supplies from Port Vila for everyday operations. The delays impinge on their ability to conduct cases with a degree of regularity. 26 Magistrates (sitting on land cases, signing enforcement orders), police, and police prosecutors (necessary for criminal cases) are an important resource for island courts, but are often not available. For example, on Epi, there are currently no police and no resident magistrate, and there is also no resident magistrate on Malekula and Tanna. These absences necessitate delays while waiting for visiting personnel from other places and severely affect the processing of cases and the enforcement of decisions. Appeals go to higher courts, and delays in processing and decisions in those cases also affect island courts’ efforts to efficiently deliver justice (villagers frequently claimed island courts were too slow or inefficient). Island court clerks are (again) forced to find creative solutions, often involving “bending the rules� and relying on informal local arrangements. Some were able to enlist the help of provincial area secretaries to collect and deliver case registrations from remote villagers, or enlist the aid of staff from magistrate or police offices. This strategy was in fact encouraged from the earliest days of the island courts and was communicated to clerks in training courses. In other places, these other personnel were less cooperative on the grounds that their duties did not officially include working for the island courts. This recalcitrance suggests a need for better liaison between the Department of Justice and local governments. Island court administration in Port Vila is clearly cognizant of the problems, and island court clerks who have taken the initiative to occasionally ask for extra one-off funding to deal with urgent or special cases told us that they have been assisted. There is a clear indication in our findings that island courts can work better if other related agencies (police, magistrates, provincial authorities) are also efficient and cooperative. All courts appeared to have an adequate number of available justices (as many as 30 on Santo island), though not all of them were being used, in some cases, because some individuals were difficult to contact when needed. In most cases, however, we found that clerks used a small number of reliable and knowledgeable justices regularly, and tended to under-utilize others, or avoid using them at all. This was explained by clerks as a matter of preferring the “best� or “brightest� ones for reasons of efficiency and competence. However, we found some resentment at this among under-utilized justices, who complained of nepotism or favoritism. Training Most previous commentaries on the island courts have said that there were no training programs for justices or clerks in the early days of the courts. However, Russell (1988, 280– 81) describes a training program in 1984 aided by funds from New Zealand, and during fieldwork, we met elderly justices appointed in 1984 who recalled having had training at that time and their descriptions suggested that the training program was indeed thorough. This is confirmed by our archival research, which revealed that four-week training courses were conducted in 1984 for clerks and two-week courses for justices. The 1984 training course had been repeated in four local government centers in rural areas by 1988, according to Russell (1988, 280). The program of the first course in 1984, for example, included: briefing by a Ministry of Lands officer on land case procedure; review of a typical land case; observation of court proceedings with the Senior Magistrate; and participation in mock courts. Clerks also received an explanation of the Island Courts Act, warrants, administrative procedures, and police involvement in prosecution, and attended a talk on the work of regional councils and the need to establish lines of communication with other local organizations.22 22 Supreme Court Archive Box 981. “Island Court Induction Training Programme� of February 6–March 2 1984. 27 The regularity and form of training courses since that time is not well recorded. A copy of a training program dated 2004 was found during our research; it was in English and Bislama, and included copies of various acts and regulations relevant to island courts, a short guide to hearing civil claims, and a description of the general duties of island court justices. While two magistrates are said to have toured the country in 2008 conducting training sessions, only a few justices interviewed during field research mentioned this date during reminiscences, and some have had no training or refresher courses since about 2004. In 2006, a revised annual training program for island court clerks was introduced; it was originally one week in duration (compared to a four-week program in 1984), but budget problems led to its being reduced to only two days. Justices to whom we spoke had mostly been recruited since 2000 and reported having had a short training course at the beginning of their career. Memories were hazy and we suspect that the dates and lengths of the training course they suggested were unreliable. Some said they had attended two or three refresher courses since the first training, others said they had received no further training beyond the first session. Some recalled their first training program as having been about two weeks long, some said one week. Island court clerks mostly reported having received two weeks initial training and short refresher courses yearly. One clerk who was recruited in 1998 said there was no training at that time, but more recently, there have been two-day refresher courses every year. Another clerk reported having had about six weeks of training; another had received about two weeks training but had voluntarily gone to Port Vila and undertaken further legal training for several months before starting work. During our visit to Santo, a two-day course was being held for all courthouse staff (that is, not just island court clerks) and clerks from elsewhere were in attendance. This “all inclusive� range was favorably received by those spoken to, who said the opportunity to talk to others and learn from their experiences was valuable. Inevitably, clerks said they wanted more training, but gave varying answers on which aspects of their job they would like more training in, which included, for example, legal knowledge, computer skills, and shorthand writing. Our own assessment of the clerks we interviewed—based on the way they talked about their work, problem solving, the operations of the court, and so on—was that they were very competent and that the refresher courses seemed adequate to their needs. Island court clerks are expected to have some legal knowledge, and opportunities are provided for them to take distant education university courses in law, which most clerks we spoke to were pursuing. Some wanted to take further courses at a higher level, but said this presented problems when the courses were not available in the distance education form and required them to take a leave of absence from work for extended periods in order to attend university. Nearly all justices felt they needed further training, except for those appointed in the very early days of the courts, who considered themselves well trained and experienced. Those who wanted more training expressed reasonable confidence in dealing with land, chiefly title, and child maintenance cases, but felt other types of cases requiring more subtle legal knowledge were their weak areas. Some justices, particularly those working in the urban island court in Port Vila, expressed concern about “educated� defendants who were able to confuse them in court. Island court clerks also felt that justices needed more regular training, and were clearly using some justices in their territorial jurisdiction more than others because of the justices’ different abilities and knowledge. 28 3.4. Law and Kastom in Island Courts The laws of Vanuatu state that island courts should administer “customary law� unless it is in conflict with written law or is contrary to justice, morality, or good order. However, as pointed out above, some authors have suggested that the island court warrants have not clearly recognized the courts as having a general custom law jurisdiction (Weisbrot 1989, 81; Forsyth 2007, 224–5) and no general power to make legally recognized orders of “custom� (or kastom) remedies. It has also been suggested that the failure to adequately incorporate customary law into the island courts’ area of authority resulted in their becoming little more than “less formal magistrates courts� (Weisbrot 1989, 81). However, a far more complex picture emerges from our fieldwork findings, and we suggest that the practical relationship between island courts and kastom is an important and distinctive aspect of their contribution to the legal system. It might be thought that the directive that island courts should administer “customary law� is setting them an impossible task, in light of the difficulty of pinpointing a precise definition of kastom. One author has suggested that they “presently ‘float nomo’ [just float], being neither satisfactory state courts nor kastom courts� (Forsyth 2007, 226). In practice, however, island courts seem to negotiate the anomalous relationship between law and kastom sensibly, although we discovered differences in attitudes among island court officers, and found a particular contrast between the urban context of the Efate court (in Port Vila) and the rural context of other courts. We routinely asked clerks and justices where they considered island courts to stand in relation to law and kastom. Island court justices in the Port Vila area tended to answer that island courts administered law and kastom belonged to village courts and nakamals. This distinction was elaborated on by pointing out that island courts work toward a “win-lose� outcome of disputes, whereas kastom forums work toward “win-win� outcomes, involving reconciliation between parties, exchanges of gifts, and the opportunity for an accused person to save face. Island court justices who were also chiefs were an interesting source of commentary on the relationship between law and kastom, as they contrasted their dispute management in the nakamal to their experiences in the island court. Chiefs or justices invariably contrasted the ability to be flexible and to achieve reconciliation in village hearings with the inflexibility and win-lose outcomes that predominate in the island court, and they expressed a preference for the village system. Similar responses contrasting law and kastom were offered informally by clerks and justices in other islands. This is an interesting contrast for them to make in light of island court rules that state that island courts should: … encourage reconciliation and promote amicable settlement, according to custom or otherwise … and if satisfied that the settlement is adequate and fair, may order the prosecution to be stayed or terminated.23 Some island courts have tried to favor reconciliation outcomes and to avoid win-lose decisions when possible, in recognition of the difficulties villagers have in maintaining good social relations in close-knit communities, where jealousies and resentments about winning or losing cases were regarded as impediments to village unity, peace, and good order. In one 23 Island Courts (Criminal Procedure) Rules 2005 r 5. 29 court, disputants were encouraged to shake hands at the end of a hearing (even though this was said to be “against the rules� of island courts) in an attempt to compromise between the antagonistic climate of the courtroom and the conciliatory intent of kastom procedures. The variety of ways in which kastom was referred to by island court officers does little to help the attempts to clarify its precise nature, and many of their views reinforce academic conclusions that ni-Vanuatu discourses on kastom involve assumed ideas about tradition, ancestral rules, and resistance to “Western� ways and to the “law.� This is implicit, for example, in one clerk’s comment that island courts are supposed to be “legal� courts because they are guided by legislation and rules, but that in practice, they are more like kastom courts because the justices “knew kastom� but not enough law. One urban island court justice suggested that a compromise could be achieved between the win-lose and win-win alternatives; for example, in the case of the young men getting into trouble in town, they could be dealt with initially in the island court (that is, penalized), but later sent to a chief for a reconciliation procedure. Further accommodation of kastom became apparent in discussing whether island courts considered cases with a kastom aspect. Urban island court justices responded that land cases and disputes over chiefly titles were in the realm of kastom. Rural island courts, however, appear to have less clear distinctions in practice. Justices told us that if an attempt had been made to resolve a dispute in a village court or a nakamal before the case had been brought to the island court, those customary processes were taken into account in the island court justices’ deliberations. One justice offered a classification of kastom cases that was considerably broader than that given by urban island court justices, including examples such as trespassing, failure to meet obligations, and cases of in-migrants to village areas who fail to go through the formal process of seeking residential permission from local chiefs. He said these kastom cases might come to an island court if a chief could not resolve them, but sometimes the island courts would send them back to the chief. The back-and-forth process was mentioned by other justices as well as some island court clerks, indicating a sensitivity to whether cases rightly belonged in the sphere of customary resolution processes. Sometimes cases were sent back to chiefs with the imprimatur of the island court— a kind of added stamp of authority on the decision of a chief, intimating that if disputants failed to accept the chief’s decision, the case would return to the island court where it might be dealt with more severely or with an inflexible outcome. One justice said that in his opinion, there was no clear separation of kastom and law, and the island court dealt with both. He suggested there should be a system of “bylaws� so that island courts can recognize kastom (thus resonating with the idea of “codifying� kastom discussed above). We were also told of problems between kastom and law in, for example, marriage principles, where fairly closely related people are allowed to marry each other according to kastom but not according to the introduced law (this refers to the “prohibited degrees� of marriage that apply in Western law). Another example is the contrast between the principle of arranged kastom marriages (which remain prevalent in some parts of Vanuatu) and the principle of “free choice� inherent in the introduced system of law. These problems are sometimes difficult for island courts to negotiate, and thus the issues are often referred back to chiefs. The negotiation of kastom, though, was said by some to be complicated by the fact that younger generations of people, who have received formal education and are influenced by introduced law, do not recognize nakamal decisions as legitimate. These references to kastom indicate that island court officers consider it to be an alternative set of social norms to those represented by the law. For some, however, kastom also meant 30 procedural issues or customary forms of payment. One theme that emerged was the matter of stigma, which surfaced also in the context described above of why the nakamal was still preferred to a courtroom: In the formal justice system, statements are taken privately and people can lie, which can “spoil someone’s name.� There are a limited number of people who are permitted to speak in an island court hearing, so lies are less likely to be challenged. The person whose name has been spoiled is less likely to be defended and would have to live with the resulting stigma. This scenario was contrasted with conditions in a nakamal or village court, where everyone is present and local knowledge is shared. It is difficult to lie in such a forum, because everyone is present and lies can be immediately challenged; accusations and defamations are cleared, people are reconciled, and there is thus no stigma. When asked which kinds of cases had a kastom component, one clerk included some child maintenance cases, on the ground that in places where men had no income to pay the VT 4,000 per month, the island court permitted them to give the child’s mother regular baskets of food as an alternative. Another example offered was the gift of a woven mat in lieu of a monetary payment. The same clerk also noted that kastom differed among the small societies within an island court’s territorial jurisdiction, using the example of the different value placed on chickens: in a society where chickens are highly valued, a chicken might be seen as an adequate compensation for a wrongdoing, whereas in another society that placed a low value on chickens, the bird would be inadequate as compensation. While our findings do not resolve questions about the administration of customary law or whether island courts really have a general custom law jurisdiction (see Weisbrot 1989, 81; Forsyth 2007, 224–5), they do challenge the contention that island courts have become little more than, again quoting Weisbrot, “less formal magistrates courts� (1989, 81), which does not adequately account for the practice of the courts overall. The urban island court in Port Vila could be said to fit the “less formal magistrate’s court� characterization, in that people who appear before it come from mixed backgrounds in an urban environment that does not draw the court into an encounter with village society. However, this appears to be an exception to the general practice of island courts, which on the other islands have a more intimate relationship with village society and are obligated to go beyond the strictures of formal courts. These island courts attempt to accommodate local folkways, mores, and ideas of what is fair and just, even though justices themselves often characterize island courts as law courts rather than kastom courts. There is a noticeable difference between the attitudes of island court justices (and clerks) and those of some police, who regard kastom reconciliation strategies as inadequate in contemporary times and who favor more punitive approaches. However, island court staff themselves are aware of the complexities of the situation, and attempt to negotiate it as best they can. In the absence of adequate resources, island courts on the islands we visited had to make complex decisions about what is possible in the delivery of formal justice locally, and thus they were flexible and amenable to the consideration of kastom to a degree that has not been fully recognized by some commentators in the past. 3.5. Gender Aspects of Island Courts Gender in kastom management of disputes Our findings suggest that a more nuanced understanding of kastom processes and institutions is needed before conclusions about women’s treatment by island courts are drawn. Our research was relatively brief, and there was insufficient time for follow-up or separate interviews with women, which limited the amount and quality of information obtained. For example, domestic violence (known to be a contemporary problem in Vanuatu) was not 31 mentioned when we asked villagers for examples of local problems. However, whether this was because interviewees were cautious in what they disclosed, or whether local, culturally contextualized concepts of reportable disputes did not include domestic violence (although they did include marriage breakdowns) is difficult to know without further research. A range of views (from patriarchal to egalitarian) toward the status of women in society and in the island courts was found among male interviewees. Attitudes toward, and the treatment of, women according to kastom were not as uniformly oppressive as some stereotypes may suggest.24 One example in this regard is the oft-cited “problem� of women’s status in marriage and their treatment in cases where the marriage has broken down. A typical interpretation of chiefly attitudes toward marriage problems and separations has been that they are liable to force the woman to go back to the man and the marriage, against her better interests. Island courts are sometimes portrayed as having a similar view, perhaps based on the understanding that island court justices are men and share the same attitudes as chiefs. An example of the problem, which relates it to the influence of Christianity, is Benedicta Rousseau’s report of island court cases where “the judgments went against or ignored the law.� She cites a child maintenance case in which appeals to the Bible were made by the court with regard to the sanctity of marriage and the Christian doctrine that divorce is bad (2004, 170). “After these statements, the court clerk explained to the applicant that all she needed to do was make an application for family maintenance, rather than child maintenance – a fact not known, or perhaps withheld by the justices� (Rousseau 2004, 170). However, we were also given explanations of reconciliation efforts made by both chiefs and island court justices, which suggests that such efforts are more complex than is often thought and may sometimes have been misconstrued by commentators. For instance, descriptions by chiefs of cases of marital problems showed that additional factors were likely to be taken into account rather than simply the direct relationship between the couple. One chief who was also an island court justice gave an example of a child maintenance case he had dealt with, a dispute that arose from what was originally a “love relationship� between a man and a woman. They had two children, but their families did not approve of their relationship, and the behavior of their elders had forced the couple apart. This led to a conflict over the children, whom the man was entitled by kastom to take, but with respect to whom the woman was entitled to ask for child maintenance. As the problem was actually caused by the attitude of the family elders who had broken the couple up, the island court justice encouraged the families to overcome their differences and their opposition to the couple’s relationship. The island court then ordered the couple to reunite, and gave the whole group one month to settle their problems. We were given other examples of similar situations, where chiefs and island courts encouraged the parents to come to terms with the “love choices� of their adult children. Such problems can perhaps be related to changing times and the impact of love matches on traditional arranged marriage procedures. These examples also indicate that chiefs and island court justices may be dealing with marital problems in changing times with more insight than some observers have assumed. Women appearing in island courts The above examples address marital or relationship problems, many of which do not actually reach the island courts because they are dealt with by local chiefs. There is a kastom aspect to the question of whether women are adequately served by island courts, since if a woman has 24 For example, Bolton (2003) gives examples of the respect and authority accorded to women on Ambae. 32 a grievance in a village community, she usually takes it to her husband. If the grievance is actually against her husband, she takes it to her natal family, and a male (brother, father) takes the grievance up on her behalf. It is men who then take the grievance to the chief, and therefore it is men who are most likely to take cases on to another court, for example, the island court, and it is unlikely that women would appear before that court except in child maintenance cases. Some justices commented on the “shyness� of women in island courts and said that they tried to encourage women to be more confident in their self-presentation. Some commented that the presence of other women gave female disputants more confidence, and one island court clerk said she tried to make sure there was a female justice sitting on such cases. When we attended an island court hearing on Malekula island, we observed a land dispute case between a man and a middle-aged woman—an unusual occurrence, as most land cases are disputed by men only—and the woman appeared very self-confident. In some child maintenance cases in Efate court, several of the women applicants were hesitant to respond to the clerk’s or justice’s questions. One of the justices we spoke to was cautious about characterizing women disputants as “shy,� however; he believed it was more accurate instead to say that the formal atmosphere of the urban court made them fearful of losing. The main cases involving women as disputants in island courts are child maintenance claims. These are increasingly being presented to the courts through the agency of local women’s centers or support groups, which pay the women’s fees and help them prepare their cases. Staff at the Vanuatu Women’s Centre (VWC) in Port Vila expressed general disappointment with their attempts to address the issue of child maintenance. They said there was no enforcement (by the police) when men defaulted on island court orders to pay maintenance, leaving women with no recourse. One rural island court clerk suggested that the court was not receiving as many child maintenance cases as it might, because if a woman had not received formal education, she did not know her rights and how to enforce them. The VWC told us that it makes educational tours, but so far without success (see comments on “awareness campaigns� below). From the perspective of island court staff, on the other hand, the involvement of women’s centers is not without its own problems, and some (female) staff indicated that it was not always to the woman claimant’s advantage, because the centers frequently did not properly prepare the cases and or adequately present them in court. Another said that when a woman went to a women’s center, it often meant that the island court clerk would lose track of the case and be unable to process it properly. We attempted to discuss these issues with women’s centers on Santo and Tanna (Malekula and Epi, the other researched islands, did not have them) but there were no staff in attendance. We were also told that the Christian church’s emphasis on the “unity of the family� and the sanctity of marriage sometimes results in women being trapped in relationships and prevented from taking child maintenance cases to island courts. Our examination of island court records indicated that when women did take child maintenance cases to court, they were nearly always successful if the father was unequivocally identified. Island court staff gender issues Two of the island court clerks interviewed were women with long experience, and they reported no personal problems as women in their jobs beyond having to sit through occasional expressions of anger by disgruntled male clients (for example, shouting and kicking furniture in the island court office, inferring that this would not happen if the clerk was male) which, they said, required the clerk simply to be patient. We encountered one male villager on Tanna island who held the extreme view that women should not be employed in island courts and thought the Tanna Island Court should be closed down because the clerk was female. However, this was not representative of the majority attitude on the islands 33 visited. All island courts investigated had some proportion of female justices except for the Epi court, whose nine justices were all male and all chiefs. The proportion of female justices was not high in the other courts, ranging from about 8 percent (Banks/Torres) to 50 percent (Tanna). Female justices for the most part had no strong opinion on matters of gender among island court staff. One commented that a greater number of younger women should be appointed, as it was important for them to be role models, but she noted that women justices of her acquaintance often had other social commitments that impinged on their ability to spend more time on island court work. Attitudes among male island court justices on the subject of female justices were varied. Some were in favor, others were not, and some appeared to have no personal bias or prejudice but stated that there were customary impediments in their societies, noting that women could not be chiefs and according to kastom could not give judgments, so a woman might find it difficult to function as an island court justice. Negative attitudes were displayed by a couple of elderly male justices who simply thought women were “a problem,� but this view was not common. Those who were in favor of women justices did sometimes raise the question of a common kastom impediment related to chiefly title disputes and some aspects of land cases—in some (but not all) parts of Vanuatu, women are not allowed into a nakamal or cannot take part in the “boundary-walking� process that is an integral and legally necessary aspect of land cases. This excludes female justices and court clerks from some aspects of chiefly title and land cases (but not necessarily from participation in the cases overall). We talked to female court clerks about this problem, which they acknowledged but did not see as a major impediment to women’s participation as island court officers. One female justice had sat on a year-long land case with no difficulties, despite the customary prohibitions described above. Female island court staff overall said women could participate in most areas of work and thought they were particularly suited to child maintenance cases. Overall, although we noted that the majority of people working in the island court system were men, we found no evidence to indicate that women’s rights or interests were routinely impeded in the courts. 3.6. Villager Awareness and Use of Island Courts Access to island courts As they were established by legislation, island courts are inescapably part of the formal court system, which has so far not been fully accessible to all ni-Vanuatu. The dispersal of the population through a large number of islands with difficult terrain and little transport is an obvious obstacle to people’s ability to access formal courts. A number of other factors have been enumerated by Forsyth (2007, 218–20), including financial constraints, the foreign nature of the court system, a lack of knowledge of legal rights, delays in processing, and the likelihood that court decisions will not be enforced because of bureaucratic lapses and a lack of personnel. Forsyth suggests that the lack of enforcement or follow-up means that offenders are unconcerned about courts’ decisions (2007, 218–20). Jowitt has also made the point that some remedies created by legislation, such as imprisonment, are foreign to kastom (1999, 7). Our first-stage research among governance institutions in Port Vila drew similar responses in relation to the accessibility and amenability of island courts to rural villagers. We were told, for example, that the small number of island courts around the islands meant that distant people would be virtually unable to get to them unless they had funds and access to boats and planes; we were also told that the courts were slow in processing cases. Clearly, the accessibility and amenability of island courts are serious concerns for many rural people. 34 Our field research findings confirmed that many villagers found it difficult to access island courts, due to both the isolation of the rural communities and the limited number and scope of tours island courts were able to achieve year by year. Registering a case with the island court was a major difficulty, as villagers would either have to wait for a tour to their area, or find an intermediary official traveling to the provincial center (perhaps a provincial area secretary) who was willing to pass on the registration to the court clerk. Similarly, communication problems made it difficult for the island court clerk to deliver summonses to people in distant locations. In many areas, people have limited access to cash, which might dissuade them from using a court that charges a VT 1,000 fee to register a civil case, although many villagers considered that they had the means (by borrowing via kinship networks) to take a case to court if necessary. Knowledge of island courts The underlying impediment to villagers’ use of island courts was a general lack of knowledge about their function and operations—if villagers had heard of them at all. Indeed, many villagers appeared not to have heard of island courts (and were only vaguely aware of magistrate’s courts). Some had heard of them but thought they dealt only with land claims and/or chiefly title claims; others identified them as courts for child maintenance claims. In the Port Vila area, the greatest awareness and knowledge of island courts was found in Erakor, simply because the Efate Island Court has played a significant role in that suburb’s long-running chiefly titles dispute (Forsyth 2003, 195–6; Vanuatu 2002), and local parties with vested interests assess the worth and competence of the island court according to their position (or side) in the dispute. Beyond Port Vila, very few villagers had any clear sense of island courts’ jurisdiction, and if they had any certain knowledge of the courts, it was usually because they had attended one. Island court clerks were well aware of the lack of knowledge on the part of villagers, and told us that villagers often did not know their legal rights, which meant that they were not bringing as many matters as they could to the courts, not least because they also did not know how to submit cases or how the island court system worked. Most clerks attempted to give “awareness� talks on island courts whenever they toured rural areas. A number of villagers professed knowledge of the courts but showed confusion when discussing their attributes. In some villages, magistrate’s courts and the police were mentioned as resources they used if problems could not be solved by chiefs. In other places, people knew nothing of any courts and expressed fear of the police. Some commentators have said previously that chiefs resent island courts, which they see as undermining their own role and status and as being a “white man’s court� in contrast to their more authentically ni- Vanuatu kastom work, although this resentful attitude was not prevalent among chiefs to whom we spoke. On the other hand, each island court has a number of justices who are themselves chiefs and kastom dispute settlers at the same time. These people offered considered opinions on the contrast between their dual roles that were sometimes critical of the island courts but showed no actual hostility or resentment toward the island court system. While we heard disgruntled comments from chiefs who were not being used as island court justices to the extent they thought they should be, we heard no particular animosity toward island courts from chiefs. Once again, where people did know of island courts, we found they characterized them as law courts, separate from kastom forums, and emphasized the “win/lose� nature of law court decisions. They contrasted this with the “win/win� nature of kastom decisions, by which they 35 meant the reconciliation and face-saving outcomes achieved by chiefs. This perception was often not supported by any first-hand experience of island courts, and seemed to be a generalization based more on reported outcomes in magistrate’s and higher courts. It suggested that without any real experience of island courts, villagers simply classified them along with magistrate’s courts and assumed they shared the same characteristics. Among people who had a little knowledge of island courts, appraisals were varied. A few suggested they were useful because they made decisions that were final and closed disputes that would otherwise continue endlessly at the level of the nakamal. Others took an opposite view, saying that they were an avenue for people to challenge chiefly decisions and open the way for further appeals (to higher courts), to the detriment of village interests. Some people criticized their inefficacy—a likely consequence of the courts’ limited resources and the failure of other agencies, such as the police and magistrate’s courts, to cooperate with them. Clearly, long delays in processing cases and an inability to enforce their decisions undermine the confidence villagers might have in the island courts. A few villagers even suggested that island courts were just making money out of villagers—in other words, collecting fees and then failing to deliver a realistic outcome. It should be emphasized here that the variety of opinions about island courts was rarely based on a measurable experience of them. There was no discernible pattern in the judgments on island courts that could usefully serve as assessments of their real performance in relation to the needs of villagers. The most significant finding was that the majority of villagers interviewed knew nothing of them. First, this attests to the low usage of island courts (reflected in the relatively low caseloads of the courts overall—see tables 2, 3 above). Second, it raises questions about the effectiveness of “awareness� campaigns by island court clerks, most of whom told us that they took every opportunity to inform villagers about the courts. “Awareness� has become a common term in contemporary Vanuatu (“we had an ‘awareness,’� “we want an ‘awareness’ about,� and so forth), popularized through development aid programs and associated presentations and explanatory talks at the village level. The term has even been absorbed into the lingua franca, Bislama. However, while many villagers talked of having had “awarenesses�—that is, a visit from some organization that gave a talk about something—they were rarely able to remember or explain what the “awareness� had been about. The inference is invited that “awareness� talks are not fully taken in by villagers (or perhaps there is some “awareness fatigue� setting in), and it may be that some kind of follow-up activity or subsequent participatory experience by villagers is needed if the campaigns are to be effective. 4. Concluding Observations As commentators have said previously, island courts are not performing as well as they might. Part of the problem is budgetary, due to the lack of resources and support from related governance and NGO institutions. Island court clerks appear very dedicated; they are flexible and creative for the most part, trying to adapt to changing circumstances and to negotiate jurisdictional divisions and constraints to the best interests of the communities they serve. They also seem to be performing tasks beyond their job description. In some places, they are the only available resource for villagers seeking advice on disputes and justice, and thus they are providing a valuable community service, whereby their office serves as a kind of general purpose, “drop-in� judicial information center. Moreover, the usefulness of island courts is more evident in rural areas than in urban Port Vila. 36 Field research findings suggest that island courts have an important role to play and can be effective if attention is paid to the following aspects. First, an adequate budget and attention to resourcing, including transport needs; second, faster methods of processing cases and appeals; third, improvement in servicing by related institutions (police services, magistrates) and efforts to improve cooperation with provincial government institutions; and fourth, the encouragement of creativity, flexibility, and sensitivity to local kastom by island court clerks, who are pivotal actors in the practical operations of the courts. The last aspect above, involving sensitivity to local kastom, presents a particular problem, given that island courts are primarily courts under the terms of the Island Courts Act. Their customary jurisdiction is not well defined, and arguably cannot be well defined, because kastom itself is not well defined. The dynamic, changing, and variable nature of kastom around Vanuatu cannot be denied. However, we have already observed three principles that commonly underlie contemporary dispute settling at village level. One is the authority of the chief, to whom disputes are referred when they cannot be settled between the two parties immediately involved or at the family level. Another is compensation, and a third is reconciliation, which was generally seen as very important to villagers, as disputants are likely to be related in some way and living proximate to one another, and therefore have to try and regain amicable relations for the sake of social stability in the village community. Villagers repeatedly pointed out that the “win/lose� decisions of courts cause resentment and further antagonism and are detrimental to good relations in the village. These sentiments were found to be more common in rural areas than in urban Port Vila, where the antagonists in disputes are often not related at all, and some interviewees considered that more punitive processes were necessary to prevent repeated offending. In rural areas, on the other hand, repeated offending was more likely to be accepted as part of life—and it is rural areas that island courts typically serve. Inasmuch as villagers see island courts as formal courts and emphasize the difference between court outcomes (“win/lose� decisions) and the compromises inherent in village- based approaches to disputes and wrongdoing, such a dichotomy would have to be overcome if island courts are to become more amenable to villagers and not seen as a cut-down version of magistrate’s courts (see Weisbrot 1989, 81). Some island courts have clearly gone some way towards accommodating villagers’ preference for compromise, but the courts’ flexibility is nevertheless constrained by their own nature as courts of law. They cannot be kastom courts without abandoning their current legal form in the eyes of villagers who continue to see them as “law� courts. This is the fundamental juridical dilemma facing island courts. In light of the politico-legal changes that have occurred in the 27 years since the island courts were introduced, comments from lawyers about the lack of clarity of the Island Courts Act, and the anomalous relation of island courts to customary law, a comprehensive review of the role of island courts would be timely and essential. 37 Annex Island Courts: Tables Island court records on all islands visited were kept in accounting-style books with hand- ruled columns, except in the case of 2009–10 records on Malekula and Tanna islands, where court clerks were attempting to create computer databases. The handwritten records were all incomplete in some way, particularly for earlier years, and entries were frequently hard to decipher or interpret. The tables below should accordingly be regarded as provisional and indicative, rather than final and definitive. Table A1. Civil Cases Registered in Efate Island Court, 1984–1993 Case Type # Year No. of Cases^ Debt/Comp’n* Child Unknown Maintenance 1984 74 22 42 10 1985 96 67 23 6 1986 80 48 20 12 1987 137 110 12 15 1988 89 50 11 28 1989 77 45 13 19 1990 139 100 24 15 1991 170 105 13 52 1992 121 85 35 1 1993 200 97 50 53 Notes: ^ NB that these are cases registered, not completions. While some “decisions,� “cancellations,� and “withdrawals� were noted in the record, many were not. A separate, formal list of judgments may have been kept. Cancellations and withdrawals may have been at plaintiffs’ request, or at court’s discretion. At any rate, there was not enough information to confidently suggest a completion number or rate. * “Debt and compensation� is a classification covering money owed for store items, kava, money-lending transactions, labor/work done, prior damage to goods/property, etc. Records are not specific enough to make this classification more precise. # These were cases that had no defining information. Table A2. Criminal Cases Registered in Efate Island Court, 1987–2000 (incomplete) Year No. of Cases* Year No. of Cases 1987 365 1993 No record 1988 446 1994 540 # 1989 204 1995 unclear # 1990 250 1996 unclear 1991 154 1997 165 1992 No record 1998 41^ Notes: * The register had numbered rows, implying that each row represented a case; however, in records for several years, many rows were left blank. Thus, for example, in 1988, there were 485 numbered rows with cases entered in a majority, including the last row (no. 485), but 39 rows had no accused person or details entered. The numbers given above then are the numbers of names actually recorded. The gaps in the record could not be explained by current staff (none of whom were employed in the office in the years recorded). # There were some ambiguities in case numbers covering the last months of 1995 and the first months of 1996. No clear cutoff point could be discerned for the end of 1995 for statistical purposes. ^ This figure is markedly low. A possible reason suggested by the current Island Courts Administrator is the lack of police resources (vehicles and bureaucratic) at the time, delaying the servicing of warrants as well as hindering the ability to prosecute within regulated time limits. 38 Table A3. Land Cases Registered* in Efate Island Court, 1984–2001 Year No. of Cases Year No. of Cases 1984 15 1993 10 1985 2 1994 5 1986 No record (or 0?) 1995 4 1987 No record (or 0?) 1996 5 1988 5 1997 1 1989 2 1998 1 1990 2 1999 No record (or 0?) 1991 No record (or 0?) 2000 1 1992 No record (or 0?) 2001^ 3 Notes: * Many cases are still incomplete, and decisions by the island court were invariably appealed; no record of decisions/completions is attempted here. ^ Since December 7, 2001, Parliament has provided that island courts shall not hear any new claims about the ownership of customary land; consequently, no cases have been registered since then. Table A4. Efate Island Court, Completed Cases Recorded since 2005 Year Civil Cases Criminal Cases Child Chiefly Title Debt (General) Maintenance 2005 127 - 52 24 2006 136 1 37 91 2007 102 3 16 89 2008 120 8 14 19* 2009 125 12 35 -* Notes: * Police took all minor criminal cases to magistrate’s court for most of 2008 and the whole of 2009, but resumed taking them to island courts in 2010. Table A5. Santo/Malo Island Court, Criminal Cases Recorded since 2003 2003 2004 2005 2006 2007 2008 Theft 2 3 8 6 - 6 Drunk and Disorderly 1 2 8 4 - 1 Threats 0 0 3 1 - 3 Assaults 12 6 12 4 - 16 Damage to Property 4 6 3 1 - 8 Trespass 0 2 0 1 - 2 Abusive Language 0 0 1 3 - 1 Maltreatment of Animals 0 0 1 4 - 0 Escape from Lawful Custody 0 0 0 1 - 0 Idle and Disorderly 0 0 0 0 - 3 Misappropriation 0 0 0 0 - 1 Obstructing Police Officer 0 0 0 0 - 1 TOTAL 19 19 36 25 42 Table A6. Santo/Malo Island Court, Criminal Case Decisions since 2003 Type of Decision 2003 2004 2005 2006 2007 2008 No decisions entered 1 0 9 0 - 9 Case withdrawn by the prosecutor 3 3 5 9 - 9 Pay cost and fine: 1,000–2,500 8 7 8 8 - 2 Pay costs and fine: 3,000–5,000 1 1 7 0 - 12 Pay cost and fine: 6,000–10,000 0 2 0 2 - 3 39 Pay cost and discharged 4 2 6 1 - 7 Case dismissed 1 1 0 12 - 1 Case transferred to Port Vila 0 1 0 0 - 0 Imprisonment 0 0 2 0 - 1 Not clear 0 0 0 1 - 0 TOTAL 18 17 37 33 - 44 Table A7. Santo/Malo Island Court, Civil Cases 2003–2010 Year Debt/Comp’n Child Chiefly Land- Other/ Total Maintenance Title Related Unclear 2003 incomplete inc. inc. inc. inc. 114 2004 40 30 1 4 - 72 2005 50 38 - 3 - 88 2006 52 47 - 13 1 104 2007 41 61 - 8 - 120 2008 33 41 - 2 - 80 2009 45 73 - - - 112 2010 103 63 - 2 1 175 Notes: Debts include store debts, money-lending, unpaid bills, and unpaid labor. Compensation claims include damage to property, “spoiling name,� and damage to gardens and crops. Debt records are skewed by occasional multiple claims by single creditor: e.g., a store or moneylender loses patience with debtors and takes them all to court on one day. “Restraining orders� are usually linked to land issues, as they seek to stop people logging, working, etc., on a contentious tract of land. Table A8. Malekula Island Court, Civil Cases since 1984* Year Debts* Comp’n* Land- Chiefly Title Child Other/* Total # Related Maintenance Unclear 1984 7 7 - - 11 1 27 1984 12 1 - - - - 13 1986 N/A N/A N/A N/A N/A N/A N/A 1987 50 6 - - 5 - 61 1988 N/A N/A N/A N/A N/A N/A N/A 1989 5 - - - 1 1 7 1990 1 - - - 1 1 3 1991 6 2 - - 2 - 10 1992 18 5 - - 4 1 28 1993 10 4 9 - 6 - 29 1994 33 7 - - 1 5 46 1995 57^ 28 - - 9 2 96 1996 49^ 18 1 - 8 - 76 1997 27 4 1 - 5 - 37 1998 14 2 - - 6 - 22 1999 9 2 - - 5 1 17 2000 6 2 1 - 11 1 21 2001 18 1 - - 9 1 29 2002 39 - - - 12 1 52 2003 6 - 1 - 15 4 26 2004 15 - - 1 11 1 28 2005 14 - 3 - 21 7 45 2006 24 - - 4 19 3 50 2007 11 - 2 3 9 2 27 2008 85^ - 3 2 19 - 109 2009 42 - 4 9 17 5 77 2010 33 7 2 15 2 59 Notes: * Cryptic entries made the identification of case types difficult, especially in differentiating debt from compensation claims. In clear cases, compensation claims referred to property damage, crop damage, damage by straying cattle, etc. In the last 15 years, many offenses are simply listed as “a claim for ----VT.� Thus some of the “Debt� claims in this period may in fact be 40 compensation. Cases classified as “Other,� include appeals against village court decisions, disputes over the inheritance of names, and others that were simply unidentifiable. There were no records for 1986 or 1988; the current island court clerk had no knowledge of events of the 1980s. ^ In some years, debt case numbers are skewed by sudden multiple claims by stores against credit customers after losing patience with non-payment (e.g., in 2008, two store owners made more than 25 debt claims each at a single hearing). # “Land-related� cases include claims about rights to tree fruits/nuts, “restraining orders� to prevent entry onto land or activities on particular areas, or accusations of “trespass.� Table A9. Malekula Island Court, No. of Criminal Cases, 1984–2010 Year No. of Cases Year No. of Cases 1984 136 1996 71 1985 256 1997 134 1986 122 1998 58 1987 50 1999 39 1988 49 2000 18 1989 37 2001 17 1990 47? 2002 27 1991 85? 2003–2006 N/A 1992 77? 2007 17 1993 87? 2008 - 1994 153? 2009 - 1995 30? 2010 20 Notes: Case types in most years were property damage, abuse, assault (these three were often connected in the offender’s behavior and some were related to drunkenness), and theft. In 1984, 87 of the total offenses were failure to pay head tax. In 1985, 135 of the total offenses were failure to pay head tax. In 1985 also, traffic offenses were listed (77), including vehicle defects, driving without a license, failure to obey traffic directions, etc. In 1986, traffic offenses also appeared, though in lesser numbers (30), but disappeared thereafter. Head tax offenses disappeared after 1985. These disappearances significantly reduced the number of criminal cases recorded. From 1990 to 1995, the records were typified by a disparity between the total of numbered rows (supposedly representing case numbers) and the actual number of cases recorded —there were significant gaps between the recorded cases. For example, in 1992, there were no entries until numbered row 51, then one in row 58, then a gap until row 118, and so on, so although the numbered rows went up to 260, only 77 cases were recorded across the available rows. Also, hearing dates (recorded for each case) were not in consecutive order. It is not clear whether this is a sign of incomplete case records or a bookkeeping idiosyncrasy of the period. A magistrate’s court was established at Malekula in about 1997, and all but minor criminal cases were taken there. This may explain the drop in numbers of cases in the island court from that period onwards. No records appeared to be available from 2003–2006. The court clerk could not explain this. No criminal cases were brought to Malekula Island Court in 2008 –9. Table A10. Malekula Island Court, Criminal Case Types 2007–2010 Year Assault Threat, Verbal Theft Property Trespass Maltreat Total Abuse Damage Animal 2007 4 2 8 5 2 1 22 2008 - - - - - - 2009 - - - - - - 2010 8 5 5 5 - 1 24 Notes: The low numbers reflect the court clerk’s comment that the police prosecutor appeared to prefer taking cases to the magistrate’s court. Threats, abuse, and property damage were sometimes committed in combination (e.g., a drunken incident, an angry confrontation). No cases were prosecuted in the Malekula Island Court in 2008 or 2009. 41 Table A11. Epi Island Court, all Cases 2010 Debt/Comp’n Child Land Chief Title Defamation Total Maintenance 15 10 1 3 2 31 Note: Epi Island Court began operations in April 2010. Table A12. Tanna Island Court, Civil Cases since 1984 Year Debt/ Child Land- Chiefly Title Other/ Total Comp’n Maintenance Related Unclear 1984 31 2 2 - - 35 1985 36 6 - - - 42 1986 79 2 - - - 81 1987 67 3 - - - 70 1988 50 2 - - - 52 1989 22 2 - - - 24 1990 8 - - - - 8 1991 no record no record no record no record no record no record 1992 18 2 2 - 2 24 1993 82 27 1 - 1 111 1994 16 15 1 - - 32 1995 69 9 1 - 2 81 1996 24 11 6 - 4 45 1997 19 9 3 - - 31 1998 6 4 2 - - 12 1999 6 1 - - - 7 2000 2 8 1 - 1 12 2001 - 7 2 - - 9 2002 2 2 - - - 4 2003 6 1 3 - 1 11 2004 5 - 1 2 3 11 2005 1 - 5 - - 6 2006 2 7 1 - 1 11 2007 1 12 2 - 1 16 2008 2 2 - - - 4 2009 - - 1 - - 1 2010 - 14 - - - 14 Notes: Cryptic entries made it difficult to identify case types. Some entries simply said “claim of ----VT,� others included “compensation for pig,� “compensation for taxi,� “compensation for adultery,� “compensation for kava,� etc. Most of these have been counted in the table as debt/compensation. 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Suva, Fiji: University of the South Pacific. 45 Selected Papers Published in the Justice and Development Working Papers Series 2013 WPS 21/2013: “To Whom Do The People Take Their Issues?� The Contribution of Community-Based Paralegals to Access to Justice in South Africa by Jackie Dugard and Katherine Drage WPS 20/2013: The Drug Treatment Court Concept: The Jamaican Drug Courts by Stephane Jackson Haisley 2012 WPS 19/2012: Estimating Staffing Needs in the Justice Sector by Dr. Heike Gramckow WPS 18/2012: Court Auctions: Effective Processes and Enforcement Agents by Dr. Heike Gramckow 2011 WPS 17/2011: Can OHADA Increase Legal Certainty in Africa? by Renaud Beauchard and Mahutodji Jimmy Vital Kodo WPS 16/2011: Justice Sector Reform in Mongolia: Looking Back, Looking Forward by Dr. Heike Gramckow and Frances Allen WPS 15/2011: Preventing Corruption in Prosecution Offices: Understanding and Managing for Integrity by Heike Gramckow WPS 14/2011: Justice Development Programming in Fragile and Conflict-Affected Areas: Perspectives of Two Leaders in Justice Administration by Abdul Salam Azimi and Christiana Tah WPS 13/2011: The Hybrid Courts of Melanesia – A Comparative Analysis of Village Courts of Papua New Guinea, Island Courts of Vanuatu and Local Courts of Solomon Islands by Daniel Evans, Dr. Michael Goddard with Professor Don Paterson WPS 12/2011: Alternative Dispute Resolution and the Rule of Law in International Development Cooperation by James Michel 2010 WPS 11/2010: Surveying Justice: A Practical Guide to Household Surveys by Kristen Himelein, Nicholas Menzies and Michael Woolcock WPS 10/2010: Culture-Based Justice Architecture :Building Community Wellbeing Through Deeper Cultural Engagement by Philip James Kirke 2009 WPS 9/2009: Access to Justice and Legal Empowerment: A Review of World Bank Practice by Vivek Maru WPS 8/2009: Framing Local Justice in Bangladesh by Maitreyi Bordia Das and Vivek Maru WPS 7/2009: Taking the Rules of the Game Seriously: Mainstreaming Justice in Development The World Bank’s Justice for the Poor Program by Caroline Sage, Nicholas Menzies, and Michael Woolcock WPS 6 /2009: How Do Local-Level Legal Institutions Promote Development? An Exploratory Essay by Varun Gauri