Convergence or Clash? the Recognition of Customary Law and Practice in Sentencing Decisions of the Courts of the Pacific Island Region
Cain, Tess Newton, Melbourne Journal of International Law
[Jurisprudential debate in the Pacific Island region is often focused on what the relationship between introduced/adopted law and customary law and practice was, is and should be. Here, the debate is narrowed to a particular area of law and procedure.' that of sentencing in the criminal courts. Examination is made of the constitutional and legislative framework within which the courts operate in this sphere and sentencing decisions of the courts are reviewed. From this material a number of fundamental and possibly contentious issues are identified. Ever present is the awareness that for many people in Pacific island societies, the written law and its associated `formal' processes are of little if any significance. Reference to the laws and approaches of other jurisdictions indicates that such issues are not particular to the jurisdictions of the Pacific Island region, although it remains open to question whether any one approach can ultimately resolve the essential tensions that lie at the heart of this type of debate.]
Within the Pacific Island region(1) the intersection between `customary' law and `introduced' law is more limited in the realms of criminal law and procedure than in other areas of law, such as family law or land law. It is an area that has been extensively codified, whether during the colonial period or thereafter.(2) A reading of these codes indicates that references to issues of customary law and principle occur rarely, and are very limited in nature. Therefore a broader view must be adopted in order to get a more accurate picture of the place of customary law and practice(3) in relation to issues of criminal law and procedure.
Within many Pacific Island communities there is evidence that people who feel they have been `wronged' by another person or group of persons seek the resolution of the dispute by reference to customary law and practice, as declared and/or interpreted by chiefs or other community elders.(4) The term `wronged' is employed deliberately to draw attention to the fact that in customary law and practice, the distinction between civil and criminal wrongs is unclear. These processes are commenced, conducted and concluded without any recourse to the police or the formal court system, although it may be the case that recourse is made to the quasi-formal courts, such as the Island Courts in Vanuatu or the Local Courts in Solomon Islands.(5) There is also evidence of some communities refusing to recognise the authority of the police or other agents of the criminal justice system.(6) Yet, once a matter is reported to the police and the issue is brought within the scope of the `introduced' (or `adopted') criminal justice system, the relevant statutory provisions relating to offences, defences and procedure make very few references to customary concerns.
In several areas the courts have taken an exclusionary approach to the introduction of issues of custom prior to the sentencing stages of criminal matters. For example, one may refer to the case of Public Prosecutor v Iata Tangaitom.(7) This case concerned a charge of indecent assault contrary to s 98(2) of the Penal Code [Cap 135] (Vanuatu) in which there was some dispute as to the age of the victim. Upon determining the victim's age as 13, Marum J commented:
In mitigation, the counsel submitted that in custom, this lie sexual relationships with female members of the family] is recognized and accepted and further, age is irrelevant. In my view, if there is a conflict between custom and public law, that is criminal law, then the law must prevail and that is provided for under section 11 of the Penal Code Act where it expresses that ignorance is no defense.(8)
Several interesting points may be noted from this judgment. First, a comment such as this raises significant jurisprudential questions as to whether or not custom should be considered as something that is distinct from law or even public law. …