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Original Articles

A Green Stick or A Fresh Stick? Locating Customary Penalties in The Post-Colonial Era

Jennifer Corrin Care Dr Jennifer Corrin Care is the Executive Director of Comparative Law in the Centre for International, Public and Comparative Law and Associate Professor at the TC Beirne School of Law at the University of Queensland, Australia. She is also a Barrister and Solicitor of the Fiji Islands and Solomon Islands.
Pages 27-60 | Published online: 27 Apr 2015

  • The first part of the title paraphrases the Hon Malietoa Tauumafilu II, then co-chair of the Constitutional Convention of Samoa, who used two Samoan proverbs as metaphors in the debate relating to universal suffrage: Convention Debates, 26 September 1960, cited in Pita v A-G [1995] WSCA 6 (CA) 41 (Samoa).
  • For an illustration of the problems arising from the introduction of the English criminal law in Africa see R Seidman, ‘Mens Rea and the Reasonable African: The Pre-Scientific World-View and Mistake of Fact’ (1968) 15 ICLQ 1135; R Seidman, ‘Witch Murder and Mens Rea: A Problem of Society Under Radical Social Change’ (1965) 28 MLR 46.
  • See, for example, the Federal Constitution of Solomon Islands Bill 2004 (SI), which is purported to be a ‘homegrown’ document, although there are many reasons for disputing this claim. See also the Constitution Amendment Act 1997 (Fiji), which introduced the Constitution of the Fiji Islands 1997 (Fiji), in answer to the call for a homegrown constituent document. See also the Underlying Law Act 2000 (PNG), which attempts to give effect to the aspirations of ‘homegrown’ law expressed in general terms in the Constitution of Papua New Guinea 1975 (PNG).
  • The term ‘custom’ is used to connote the traditional practices, norms and values of indigenous people, as opposed to the more limited term, ‘customary law’, which refers to the rules of custom which are enforced to maintain order and resolve disputes. There is an overlap between these two concepts and in other parts of this article the terms are used loosely, reflecting the fact that the line between the two is often illusory. Customary law is a homogenous body of law. It differs from place to place and from group to group within a country.
  • Some scholars assert that customary law as it exists today is a colonial creation. See, for example, S Merry, ‘Legal Pluralism’ (1988) 22 L and Soc Rev 869 and in relation to Africa, M Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (CUP, Cambridge 1985). See further B Narokobi, Lo Bilong Yumi Yet: Law and Custom in Melanesia (U of the South Pacific, Suva 1989).
  • Whilst it is not accepted that customary law as it exists today was a colonial creation, it was certainly affected by the colonial political and legal system in many ways. See J Corrin Care and J Zorn, ‘Legislating Pluralism: Statutory “Developments” in Melanesian Customary Law’ (2001) 46 J of Legal Pluralism and Unofficial L 49, 51. Whilst the interesting debate alluded to here, and in n 5 above, is obviously connected with the discussion in the current article it is not directly dealt with in depth here.
  • D Weisbrot, A Paliwala and A Sawyer, Law and Social Change in Papua New Guinea (Butterworths, Sydney 1982); J Zorn and P Bayne, Lo Bilong ol Manmeri (U of PNG, Suva 1975); R Gordon and M Meggitt, Law and Order in the New Guinea Highlands (U Press of New England, Hanover 1985); S Moore, Social Facts and Fabrications: ‘Customary’ law on Kilimanjaro, 1880–1980 (CUP, Cambridge 1986); B Ottley and J Zorn, ‘Criminal Law in Papua New Guinea: Code, Custom and the Courts in Conflict’ (1983) 31 American J of Comparative L 251. For an example of the precedence of African customary law over Western law in Kenya. See: R Howell, ‘The Otieno Case: African Customary Law versus Western Jurisprudence’ in A Renteln and A Dundes (eds), Folk Law: Essays in the Theory and Practice of lex non scripta (Garland Publishing, London 1994) 827.
  • See, for example, R v Lati [1982] FJSC 3 (SC) (Fiji), where the Court took into account customary punishment and settlement in reducing the accused's sentences on review and classified breach of village etiquette as provocation. See also FSM v Mudong [1982] FMSC 10 (SC) (Micronesia).
  • See, for example, Re Raramu and Yowe Village Court [1994] PNGLR 486 (NC) (PNG), where the village court, intended as a ‘customary’ forum, imposed six months imprisonment for breach of the custom prohibiting a widow from taking another partner.
  • Banishment as a customary penalty is not limited to Samoa, neither are cases where such penalties have been challenged in the courts. Examples of such cases from other jurisdictions include ‘Pusi v Leni’ (HC (SI) 14 February 1997) as discussed in J Corrin Care, ‘Customary Law and Human Rights in Solomon Islands’ 43 (1999) J of Legal Pluralism and Unofficial L 135; Teitinnang v Ariong [1987] LRC 517 (HC) (Kiribati); Teonea v Kaupule [2005] TVHC 5 (HC) (Tuvalu).
  • For a novel essay on this topic, see R Seidman, ‘The Inarticulate Premise’ in A Renteln and A Dundes (eds), Folk Law: Essays in the Theory and Practice of lex non scripta (Garland Publishing, London 1994) 805.
  • See, for example, Constitution of Samoa 1960 (Samoa) preamble and s 111(1); Constitution of Solomon Islands 1978 (UK) preamble, s 76 and sch 3 s 3(1).
  • Except in Tonga, where no ‘cut-off’ date was specified. See Civil Law Act 1966 (Tonga) s 4. The Civil Law (Amendment) Act 2003 (Tonga) ss 2–4 now exclude the application of all English legislation.
  • Legislation made by the particular country's legislative authority prior to independence.
  • eg the Sale of Goods Act 1893 (UK) remains in place in Kiribati, Nauru, Solomon Islands and Tuvalu and the Law Reform (Miscellaneous Provisions) Act 1934 (UK) applies in Kiribati, Solomon Islands, Tonga, Tuvalu and Vanuatu. With regard to judicial reluctance to apply customary law, see further J Zorn and J Corrin Care, Proving Customary Law in the Common Law Courts of the South Pacific (BIICL, London 2002).
  • See, for example, the preamble to the Constitution of Samoa 1960 (Samoa) where banishment is just one manifestation of this conundrum. For another example, see J Corrin Care, ‘Negotiating the Constitutional Conundrum: Balancing Cultural Identity with Principles of Gender Equality in Post Colonial South Pacific Societies’ (2005) 5 Indigenous LJ (forthcoming).
  • See further J Corrin Care et al, Introduction to South Pacific Law (Cavendish Press, London 1999) 78–9. By way of contrast, in Kiribati and Tuvalu legislation makes it clear that customary law is to prevail over the principles of common law and equity in relation to a specified list of matters: Laws of Kiribati Act 1989 (Kiribati) s 6(3)(b); Laws of Tuvalu Act 1987 (Tuvalu) s 6(3)(b).
  • eg the Criminal Procedure Code 1978 (Fiji) s 163 (the reference to ‘compensation’ is generally regarded as referring to customary compensation); Village Fono Act 1990 (Samoa) s 8; Customs Recognition Act (PNG) s 4(e); Federated States of Micronesia Code Cap 11 [1203] (Micronesia); Criminal Procedure Code (Vanuatu) s 119.
  • Eg Leota v Faumuina [1988] SPLR 1 (HC) (American Samoa); Hala v R [1992] Tonga LR 7 (SC) (Tonga); R v Vodo Vuli (SC) 14 August 1981 (Fiji), where customary apologies were taken into account in sentencing in the formal courts.
  • Eg in A-G v Saipa'ia [1980–1993] WSLR 26 (CA) (Samoa), the court took into account Samoan custom relating to matai (chiefly) title in interpreting Part V of the Constitution.
  • Eg in Re Gaifomauga No 2 Territorial Constituency [1960–69] WSLR 169 (SC) (Samoa) and Re Fa'asaleleaga No 2 Territorial Constituency, Laupepa v Eikeni [1970–79] WSLR 254 (SC) (Samoa), it was held that the provision of foodstuffs and gifts of money were Samoan customary practices rather than bribery or treating. On the other hand, in Re the Individual Voter's Roll, Moore v Lober [1970–79] WSLR 245 (SC) (Samoa), Re Aleipata (Itupa I Lalo) Territorial Constituency, Kalolo v Tamatoa [1970–79] WSLR 247 (SC) (Samoa), and Re Palauli North (Le Falefa) Territorial Constituency, Palenato v Pita [1970–79] WSLR 258 (SC) (Samoa) it was held that the gifts and presentations went beyond what was appropriate under Samoan custom.
  • For striking examples of imposition, see Island Courts (Civil Procedure) Rules 1984 (Vanuatu); Local Courts (Forms) Rules LN27/1979 (SI). For an example of adoption, see the formal judgment writing style of the Customary Land Appeal Court referred in Buga v Ganifiri [1982] SILR 119 (HC) (SI).
  • Constitution of Samoa 1960 (Samoa) art 75; Judicature Act 1961 (Samoa) s 41.
  • ibid (Constitution) art 65.
  • ibid art 74. Jurisdiction is governed by the District Courts Act 1969 (Samoa). The magistrate's courts were renamed district courts by the District Courts Amendment Act 1992/3 (Samoa), which came into force on 1 February 1999.
  • Although such forums have undoubtedly been by affected by Western influences. See, for example, C Macpherson, ‘The Persistence of Chiefly Authority in Western Samoa’ in G White and L Lindstrom, Chiefs Today (Stanford University Press, Stanford 1997) 19; S Lawson, Tradition versus Democracy in the South Pacific (CUP, Cambridge 1996) ch 5; M Meleisea, ‘Governance, Development and Leadership in Polynesia: A Micro-study from Samoa’ in E Huffer and A So'o (eds), Governance in Samoa (Asia Pacific Press, Canberra 2000) 198.
  • This course has also been suggested in the Fiji Islands, where s 186 of the 1997 Constitution provides: ‘(1) The Parliament must make provision for the application of customary laws and for dispute resolution in accordance with traditional Fijian processes. (2) In doing so, the Parliament must have regard to the customs, traditions, usages, values and aspirations of the Fijian and Rotuman people’. Parliament has not yet taken any steps to carry out this mandate.
  • See, for example, Native Lands Ordinance Cap 61 (Kiribati); Local Courts Act Cap 19 (SI); Customary Land Tribunal Act 2001 (Vanuatu) and Island Courts Act Cap 167 (Vanuatu).
  • See further, S Tcherkezoff, ‘The Samoan Category of “Matai Chief”: A Singularity in Polynesia? Historical and Etymological Comparative Queries’ (2000) 109 J of the Polynesian Soc 151; M Fitzgerald and A Howard, ‘Aspects of Social Organisation in Three Samoan Communities’ (1990) 14 Pacific Studies 31.
  • in 1993, the District Court held that the punishment permitted under the Village Fono Act 1990 (Samoa) was restricted to fines of food, money or animals or a work order. Other punishment was to be reviewed by the Land and Titles Court. This case is unreported, but is referred to in U Va'a, ‘Local Government in Samoa and the Search for Balance’ in E Huffer and A So'o (eds), Governance in Samoa (Asia Pacific Press, Canberra 2000) 159. The legislation affirms the customary authority of the Village Council and confers further powers on it, but it also allows for an appeal to the Land and Titles Court, which arguably restricts its powers.
  • Meleisea (n 26) 198; K Lesa, ‘Editorial’ Samoa Observer (Apia 6 February 2005) <http://www.samoaobserver.ws/news/opinions/op0205/0605op001.htm> (Accessed 3 May 2005).
  • Village Fono Act 1990 (Samoa) s 3(2). If it is accepted that the Village Fono Act 1990 (Samoa) restricts the powers of the village fono, it is arguable that the Act is unconstitutional, as the preamble to the Constitution states that Samoa is based on ‘Samoan custom and tradition’.
  • The process of allowing appeal from ‘customary’ land courts to introduced courts has caused problems in other South Pacific jurisdictions. See, for example, Nelson Lauringi v Lagwaeano Sawmilling and Logging Ltd [2000] SBHC 6 (HC) (SI) as discussed in J Corrin Care, ‘Wisdom and Worthy Customs: Customary law in the South Pacific' (2002) 80 Reform 31, 34.
  • Cabinet Committee, Report on Matai Titles, Customary Land and the Land and Titles Court (Government of Samoa, Apia 1975) 90.
  • ibid.
  • Land and Titles Protection Ordinance 1934 (Samoa) s 34, enacted in pursuant to the Samoa Act 1921 (NZ).
  • Enacted pursuant to the Constitution of Samoa 1960 (Samoa) art 103.
  • The Act has since been amended by the Land and Titles Amendment Act 1983 (Samoa); Land and Titles Amendment Act 1988 (Samoa); and Land and Titles Amendment Act 1992/3 (Samoa).
  • Land and Titles Act 1981 (Samoa) s 34(1).
  • ibid s 34(2). For a detailed discussion of the Land and Titles Court, see A Epati, ‘The Western Samoan Land and Titles Court’ (1981) 7 Samoan Pacific LJ 104.
  • ibid ss 47(2) and 92.
  • Western Samoa became known as Samoa by virtue of the Constitution Amendment Act 1997 (Samoa).
  • Land and Titles Act 1981 (Samoa) s 2.
  • ibid s 76(2) read with s 72(2). Costs orders made against a frivolous or vexatious litigant and orders made by the magistrates' court relating to offences under s 75(1) are excluded from the right to appeal. See s 76(2).
  • J Corrin Care, ‘Reconciling Customary law and Human Rights in Melanesia' (2003) 4 Hibernian LJ 53, 66–7.
  • Act III, scene I. Forms of banishment can still be found entrenched in legislation in Western countries. See, for example, J Alloy,’ “58-County Banishment” in Georgia: Constitutional Implications under the State Constitution and the Federal Right to Travel' (2001–2) 36 Georgia L Rev 1083.
  • In Vanuatu, it is noted in the Custom Policy of the Malvatumauri (paramount chiefs), published by the National Council of Chiefs (17 August 1983) as a penalty available against people living in the village, but who are from another village or island, who do ‘not listen to the chief and troubles the people.’ Three warnings must be given before the person is banished. See art 4, s 5 and art 5, s 5. However, banishment is not a uniform customary penalty throughout the South Pacific region. For example, in the Are-Are region of Solomon Islands, it is an offence to evict a person from the village community: Chief Waitotora, Are-Are Customary Law (Provincial Press, Honiara 1991) 25. For examples of cases involving banishment in other areas of Solomon Islands and in Kiribati and Tuvalu, see n 10, above
  • C Oputa, ‘Crime and the Nigerian Society’ in T Elias, S Nwabara and C Akpamgbo, African Indigenous Laws (Nigerian Government Printer, Enugu 1975).
  • Committee Report on Matai Titles (n 35) 83; Leituala v Mauga [2004] WSSC 9 (SC) (Samoa) 11.
  • (SC (Samoa) 8 May 1995). The description of banishment in this article is based largely on the information in this judgment and from the Committee Report on Matai Titles (n 35) div 3 ch 7.
  • Land and Titles Act 1981 ss 34 and 37. The authority is not conferred explicitly but was part of the jurisdiction of the Native Land and Titles Court, which is continued in force. see Re the Constitution, Ta'amale v A-G [1995] WSCA 1 (CA) 18 (Samoa).
  • Proclamation of 16 September 1901, referred to in the preamble to the Samoa Offenders Ordinance 1922 (NZ) and set out in Leituala(n 52) 8.
  • Proclamation of 20 March 1916, referred to in the preamble to the Samoa Offenders Ordinance 1922 (NZ) and set out Leituala (n 52).
  • Regulation of 12 February 1918, referred to in the preamble to the Samoa Offenders Ordinance 1922 (NZ) and set out Leituala (n 52).
  • Section 2. The Ordinance was made pursuant to the Samoa Act 1921 (NZ) and set out ibid Leituala.
  • Germany renounced rights in respect of Samoa by the Treaty of Versailles 1919 art 119. in 1920, the Council of the League of Nations, established under article 22 of the Covenant of the League of Nations mandated power to administer Samoa to New Zealand. See Order in Council, 11 March 1890 (UK) s 3, made under Foreign Jurisdiction Act 1890 (UK).
  • Tagaloa v Inspector of Police [1927] NZLR 883 (SC) (NZ). The Samoa Act 1921 (NZ) s 46 allowed the Legislative Council of Samoa to make laws providing that they were not repugnant to the Samoa Act or any other Act of the parliament so New Zealand or any United Kingdom Act in force in Samoa.
  • Samoa Amendment Act 1938 (NZ).
  • This view is supported by Ta'amale (CA) (n 54) and the Committee Report on Matai Titles (n 35) div 3 ch 7.
  • ibid Ta'amale (CA) 20.
  • Practice Direction (SC) 17 April 1980 (Samoa).
  • Maea v Solomon (Land and Titles Court (Samoa) 7 February 1972); Taimalie Time v Papalii Lave (Land and Titles Court (Samoa) 13 March 1973); Ututa'alega v Luafatasaga Iulio (Appellate Division of the Land and Titles Court (Samoa) 19 March 1987).
  • Ta'amale (CA) (n 54).
  • Leituala (n 52).
  • Ta'amale (SC) (n 53), as cited in Ta'amale (CA)(n 54) 23.
  • ibid Ta'amale (SC).
  • La Trobe University v Robinson [1972] VR 883 (SC) 900–1 (Australia), affirmed by La Trobe University v Robinson [1973] VR 682 (SC) (Australia); Felkin v Herbert (1864) 33 LJ Ch 294, 9 LT 635; Brown v Crowley (No 2) [1964] 1 WLR 147 (CA).
  • Ta'amale (SC) (n 53).
  • All references to the offender in the case are to ‘he’. The Committee Report on Matai Titles (n 35) 83 refers to ‘his’, but generally it uses the gender neutral term ‘person’ to refer to the offender. The author considers it likely that this is more a reflection of the report writer's political correctness than an accurate reflection of the practice of banishment.
  • Leituala (n 52).
  • Committee Report on Matai Titles (n 35) 83, refers to the possibility of banishment resulting in the separation of a person from his family.
  • See, for example, Ta'amale (CA) (n 54). It is arguable that inclusion of family members in the banishment order is unconstitutional, see text to n 137.
  • The Niue Constitution Act 1974 (NZ) is an exception as it does not contain a bill of rights. There is no bill of rights in Tokelau either, which does not yet have its own Constitution.
  • The Fiji Islands, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, and Tuvalu followed these models. The Cook Islands and Vanuatu follow the Canadian Bill of Rights. Tonga follows the Constitution of Hawaii 1852. See S Latukefa, ‘Nineteenth-Century Constitutions’ in P Sack (ed), Pacific Constitutions (Australian National University Press, Canberra 1982) 30.
  • These rights are recognised by the Constitution of Kiribati 1979 (Kiribati) ss 10, 11 and 14; the Constitution of the Fiji Islands 1997 (Fiji) ss 29, 34 and 35; the Constitution of Papua New Guinea 1975 (PNG) ss 37, 45 and 52; the Constitution of Samoa 1960 (Samoa) arts 9, 11 and 13; the Constitution of Solomon Islands 1978 (UK) ss 10, 11 and 14; the Constitution of Tuvalu 1978 (Tuvalu) ss 22, 23 and 26 and the Constitution of Vanuatu 1980 (Vanuatu) art 5(1)(d), (f) and (i) and 5(2). The Constitutions of the Cook Islands, Micronesia, Marshall Islands and Tonga do not protect the right to freedom of movement, but only the right to freedom of religion and the right to a fair trial. See Constitution of the Cook Islands 1965 (Cook Islands) arts 64(1)(b) and (d); Constitution of the Federated States of Micronesia 1975 (Micronesia) art IV, ss 2 and 3; Constitution of the Republic of the Marshall Islands 1979 (Marshall Islands) art II, ss 1 and 4; Constitution of Tonga 1875 (Tonga) ss 5 and 14.
  • See, for example, the Constitution of Vanuatu 1980 (Vanuatu) s 47(1) and the preamble to the Constitution of Solomon Islands 1978 (UK).
  • Constitution of Samoa 1960 (Samoa) art 13(4).
  • See, for example, the Constitution of Solomon Islands 1978 (UK) s 15(2)(d).
  • See Tuivaita v Sila [1980-93] WSLR 17 (SC) (Samoa) where, despite judgement declaring the banishment order against the plaintiff unconstitutional and awarding him damages, he was unable to remain in the village due to fears for his safety and villagers boycotted his business. The damages were never paid. Similarly, in Re Willingal [1997] PGNC 7 (NC) (PNG), despite a court order that a ‘headpay’ compensation agreement, which obliged a young woman to marry a member of the aggrieved tribe, was unconstitutional, the woman subsequently went on to marry a member of that tribe.
  • Saipa'ia (n 20).
  • Electoral Amendment Act (Samoa) 1990 which was upheld in Pita (n 1). The reservation of parliamentary membership for territorial constituencies for matai is preserved by the legislation: Electoral Amendment Act (Samoa) 1990 s 4.
  • Ututa'alega (n 65); Ta'amale (CA) (n 54); Tuivaita (n 82).
  • ibid Tuivaita; Sefo v A-G [2000] WSSC 18 (SC) (Samoa); Lafaialii v A-G [2003] WSSC 8 (SC) (Samoa).
  • Ututa'alega (n 65); Ta'amale (CA) (n 54).
  • Leituala (n 52).
  • Tagaloa (n 60) 898–9. The issue in that case was not whether banishment conflicted with the right to freedom of movement, which was not protected at that time, but whether it was repugnant to the Samoa Act 1921 (NZ), which provided the punishments to be imposed for crimes in Samoa.
  • Ta'amale (SC) (n 53); Ta'amale (CA) (n 54).
  • ibid.
  • ibid.
  • Tagaloa (n 60) 898–9.
  • See, for example, ex p Walsh and Johnson (1925) 37 CLR 36 (HC) (Australia) and R v Pochi (1980) 31 ALR 666 (FC) 685 (Australia).
  • Committee Report on Matai Titles(n 35) 85.
  • Sefo (n 86).
  • [1985] 1 SCR 295 (1985) (SC) (Canada).
  • See also Murphyores Inc Pty Ltd v Australia (1976) 136 CLR 1 (HC) 19 (Australia), where Mason J expressed the view that if legislation operates directly on the topic of constitutional power under which it is passed the effect of the legislation is irrelevant to its validity.
  • Ta'amale (CA) (n 54).
  • Committee Report on Matai Titles(n 35) 86.
  • Ta'amale (CA) (n 54) 28–9.
  • Constitution of Samoa 1960 (Samoa) arts 9 and 10.
  • Saipa'ia (n 20).
  • Plebiscite Act 1990 (Samoa).
  • Ta'amale (CA) (n 54) 31. A challenge to this legislation was rejected in Pita (n 1).
  • Leituala (n 52).
  • The court was skeptical about the other allegations on which the banishment order had been based, including allegations that the plaintiff ‘s sons had ‘tried to’ throw stones at the pastor's house, and questioned what was meant by ‘trying to throw’ stones. See Leituala(n 52) 3.
  • Leituala(n 52) 5.
  • Section 3.
  • This is suggested by the wording of s 6, but it is likely that the village fono already had these powers and this view is endorsed by Vaai J in Leituala(n 52) 13.
  • ibid.
  • Samoan Offenders Ordinance Repeal Ordinance 1936 (Samoa).
  • Leituala(n 52) 12.
  • Committee Report on Matai Titles(n 35) 86.
  • Ta'amale (SC) (n 53).
  • Leituala(n 52) 12.
  • Tagaloa (n 60) 904. The issue in this case was not whether banishment conflicted with the right to freedom of movement, which was not protected at that time, but whether it was repugnant to the Samoa Act 1921 (NZ), which provided the punishments to be imposed for crimes in Samoa.
  • Sefo (n 86).
  • ibid, citing with approval Big M Drug Mart (n 100).
  • Leituala(n 52) 13.
  • Land and Titles Amendment Act 1983 (Samoa); Land and Titles Amendment Act 1988 (Samoa); Land and Titles Amendment Act 1992/3 (Samoa).
  • Leituala(n 52) 13.
  • ibid.
  • Sections 3(3) and 6.
  • Savoy Hotel Co v London County Council [1900] 1 QB 665 (QB) 669; Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 (VSC) (Australia).
  • Ta'amale (CA) (n 54).
  • Leituala(n 52) 13.
  • Constitution of Samoa 1960 (Samoa) art 9.
  • Leituala(n 52) 12.
  • Constitution of Samoa 1960 (Samoa) arts 9 and 15.
  • Committee Report on Matai Titles(n 35) 85.
  • ibid.
  • See n 17, above.
  • [1930–1949] WSLR 140 (HC) (Samoa).
  • See, for example, Malifa v Sapolu [1998] WSCA 5 (CA) (Samoa). In the Solomon Islands, words written in a notice placed in the central market offended Malaitan custom, sparking a riot and culminating in the payment of $200,000 ‘compensation’ by the Government to the Premier of Malaita Province. See also R v Maetia [1990] SILR 23 (HC) (SI).
  • Mauga v Leituala (CA (Samoa) March 2005).
  • Tuivaita (n 82); Sefo (n 86); Lafaialii (n 86).
  • Leituala (n 52).
  • Ta'amale (CA) (n 54) 28–9.
  • ibid.
  • Lafaialii (n 86). See also Sefo(n 86) 22.
  • A fact attested to by customary law's survival of the colonial era.
  • See, for example, Constitution of Samoa 1960 (Samoa) preamble and s 111(1); Constitution of Solomon Islands 1978 (UK) preamble, s 76 and sch 3.
  • See A Renteln, ‘Culture and Culpability: A Study of Contrasts’ in A Renteln and A Dundes (eds), Folk Law: Essays in the Theory and Practice of lex non scripta (Garland Publishing, London 1994) 863; C Choi, ‘Application of a Cultural Defense in Criminal Proceedings’ (1990) 8 UCLA Pacific Basin LJ 80.
  • Compare R v Loumia [1984] SILR 51 (HC) (SI), where the court refused to take into account the cultural context of a killing, with R v Rumints-Gorok [1963] PNGLR 81 (SC) (PNG) where the court considered it a relevant factor.
  • the 2005 estimate of infant mortality rates (deaths/1000 live births) is 48.52 (Kiribati), 51.45 (Papua New Guinea), 27.71 (Samoa), 21.29 (SI), 55.16 (Vanuatu); compared to 4.69 (Australia), 5.16 (United Kingdom), 6.5 (United States): CIA, The World Fact Book <http://www.cia.gov/cia/publications/factbook/rankorder/2091rank.html> (Accessed 5 May 2005). The literacy rate is 90% (Kiribati), 64.6% (Papua New Guinea), 99.7% (Samoa), 24% (SI), 53% (Vanuatu); compared to 100% (Australia), 99% (United Kingdom), 97% (United States): CIA, The World Fact Book <http://www.cia.gov/cia/publications/factbook/fields/2103.html> (Accessed on 5 May 2005).
  • See further Corrin Care (n 16).
  • See J Muria, ‘Conflicts in Women's Human Rights in the South Pacific: The Solomon Islands Experience’ (1996) 11(4) Commonwealth Judicial Journal 7, where he observes that modern regimes in the domestic sphere are categorised as ‘foreign’ by ordinary islanders.
  • Those in favour of the ‘law as rules' theory are represented by for example by A Watson, ‘Legal Transplants and Law Reform’ (1976) 92 LQR 79, 80. Watson appears to take a more cautious approach in A Watson, ‘Legal Transplants and European Private Law’, (2000) 4 Electronic J of Comparative L 4 <www.law.kub.nl.ejcl/44/44–2.html> (Accessed 5 May 2005).
  • O Kahn-Freund, ‘Uses and Misuses of Comparative Law’ (1974) 37 MLR 1, 5–6.
  • D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, Oxford 1990) ch 9; M Findlay, ‘Crime, Community Penalty and Integration with Legal Formalism in the South Pacific’ (1997) 21 J of Pacific Studies 145, 152.
  • Ta'amale (CA) (n 54).
  • Leituala(n 52) 12.
  • See, for example, the ‘kidnapping's cases discussed in K Brown and J Corrin Care, ‘Conflict in Melanesia: Customary Law and the Rights of Melanesian Women’ (1998) 24 (3 & 4) Commonwealth L Bulletin 1334.
  • See, for example, R v Runjanjic (1991) 56 SASR 114 (SASC) (Australia).
  • See, for example, P Carlen and A Worrell (eds), Gender, Crime and Justice (Open University Press, Milton Keynes 1987); A Morris, Women, Crime and Criminal Justice (Blackwell, Oxford 1987).
  • See, for example, Public Prosecutor v Kerua [1985] PNGLR 85 (SC) (PNG), where the customary punishment of mutilation of an adulteress is discussed and Raramu (n 9), where a widow had been sentenced to six months imprisonment by the village court for forming a relationship with another man. The sentence was set aside by the National Court.
  • See I Jalal, Law for Pacific Women: A Legal Rights Handbook (Fiji Women's Rights Movement, Suva 1998) 163–5.
  • See Noel v Public Prosecutor [1996] VUCA 5 (SC) (Vanuata); Tammed v Federated States of Micronesia; Tamangrow v Federated States of Micronesia [1990] FMSC 13 (SC) (Micronesia).
  • Findlay(n 159) 148.
  • It is also premised on the basis that the offender will be able to take refuge with another community, due to the web of extended relationships throughout the country: Ta'amale (SC) (n 53).
  • The inflexibility of fixed sentences has recently come to the fore in Queensland, Australia, in relation to the release of sex offenders. Community outrage has led to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which empowers the Public Prosecutor to apply for an offender to remain in custody despite the fact that his or her sentence has been served.
  • While living in Solomon Islands between 1987 and 1996, the author found that prisoners in provincial prisons were often allowed to carry out unsupervised duties outside the prison, even where they had been convicted of crimes of violence.
  • See Penal Code Cap 26 (SI) proviso to ss 175, 176 and 303; Criminal Code 1974 (PNG) s 600; District Courts Act 1963 (PNG) s 205B; Penal Code Cap 67 (Kiribati) s 37; Criminal Code Title 31 Cap 1 (Marshall Islands) s 184.
  • Leituala (n 52).
  • See, for example, Constitution of Solomon Islands 1978 (UK) s 4.
  • In Loumia v DPP [1986] SILR 158 (CA) (SI) the Court refused to take into account the defendant's customary obligation to ‘payback’ as an extenuating circumstance reducing the offence of murder to manslaughter. However, see Rumints-Gorok (n 153), where the court considered payback to be a relevant factor. See also, State v Francis Giru [1997] PGNC 145 (NC) (PNG); Kerua (n 167). See further Law Reform Commission of Papua New Guinea, Criminal Responsibility: Taking Customs, Perceptions and Beliefs into Account (Papua New Guinea Law Reform Commission, Port Moresby 1977) 22–5.
  • Most South Pacific constitutions guarantee the right to freedom from inhuman or degrading treatment. See, for example, Constitution of Samoa 1960 (Samoa) art 7; Constitution of Solomon Islands 1978 (UK) s 7. Under the criminal law, corporal punishment amounts to assault: Penal Code Cap 17 (Fiji) s 244; Crimes Ordinance 1961 (Samoa) s 78; Penal Code Cap 26 (SI) s 244. Consent may be a defence to a charge of assault provided death or maiming does not result: Penal Code Cap 17 (Fiji), s 236; Crimes Ordinance 1961 (Samoa) s 21 (death only Penal Code Cap 26 (SI) s 236 (reasonable punishment of a child may constitute a defence s 233(4)); R v Rose [1988] LRC 369 (HC) (SI).
  • SC (Fiji) 1981.
  • Lati (n 8).
  • Tammed (n 169).
  • R v Walker (SC (NT) 10 February 1994). See also Mamarika v R (1928) 42 ALR 94 (FC) 99.
  • In this case, customary payback was taken into account as a mitigating factor, even though it had not taken place at the tem of sentencing.
  • The question of whether Gilbertese migrants were entitled to have their customary law recognised arose in the context of marriage laws in Edwards v Edwards [1996] SBHC 75(HC) (SI).
  • For the general defence see, for example, Penal Code Cap 17 (Fiji) s 236; Penal Code Cap 26 (SI) s 236.
  • See, for example, Village Fono Act 1990 (Samoa) s 8; Federated States of Micronesia Code Cap 11 [1203] (Micronesia); Criminal Procedure Code Act Cap 136 (Vanuatu) s 119.
  • See the examples in J Corrin Care, ‘Cultures in Conflict: The Role of the Common Law in the South Pacific’ (2002) 6(2) J of South Pacific L <http://www.vanuatu.usp.ac.fj/journal_splaw/journal_main.html> (Accessed 5 May 2005). See generally M Davis, ‘Competing Knowledges? Indigenous Knowledge Systems and Western Scientific Discourses' (paper presented at the Science and Other Knowledge Traditions Conference 1996).
  • Tagaloa (n 60) 898–9.
  • See further Nelson v Braisby (No 2) [1934] 53 NZLR 559 (SC).
  • Ta'amale (CA) (n 54).
  • For an overview of the position and use of restorative justice programmes internationally, See D Miers An International Review of Restorative Justice (Home Office, London 2001).
  • S Merry, ‘The Social Organisation of Mediation in Non-Industrial Societies: Implications for Informal Community Justice in the United States' in Richard Abel (ed), The Politics of Informal Justice (Academic Press, New York 1982) [17] and [20]. This is not to suggest that traditional sanctions are always restorative, as clearly they are not.
  • Leituala (n 52).
  • ibid.
  • R Gilson, Samoa 1830 to 1900: The Politics of a Multicultural Community (OUP, Melbourne 1970) 48.
  • However, see Mose (n 140) 142, where the village fono's decision was set aside on the grounds that it had been imposed in the absence of any representation on behalf of the offender. The reference to ‘men’ is deliberate as the responsible parties and ‘advocates’ in customary societies are much more likely to be male. Only a small percentage of women are matai, and the majority of these hold lesser matai titles bestowed solely for the purpose of standing for election to parliament. See F Aiono, ‘Western Samoa: The Sacred Covenant’ in Institute of Pacific Studies of the University of the South Pacific (ed), Land Rights of Pacific Women (U of the South Pacific, Suva 1986) 102.
  • Gilson(n 196) 22.
  • Although it could, of course, be argued that this flexibility allows for the arbitrary exercise of discretionary powers.
  • Corrin Care (n 188).
  • Tovua v Meki [1988–89] SILR 74 (HC) (SI); Harry v Kalena Timber Co Ltd [2001] 3 LRC 24 (CA) (SI).
  • Garland (n 159) 266.
  • ibid.
  • ibid.
  • There are those who argue that the role of chiefs, as with the role of customary law, has been transformed by colonialism or even, in some case, that it is a colonial invention. See, for example, S Tcherkezoff, ‘Are the Matai “Out of Time“? Tradition and Democracy: Contemporary Ambiguities and Historical Transformations of the Concept of Chief’ in E Huffer and A So'o (eds), Governance in Samoa (Asia Pacific Press, Canberra 2000) 113; Meleisea (n 26) 191; Macpherson (n 26); F Aiono, ‘The Samoan Culture and Government’ in R Crocombe et al (eds), Culture and Democracy in the South Pacific (U of the South Pacific, Suva 1992) 117–37. The changes to traditional leadership and their consequences are worthy of further discussion but cannot be discussed here due to space constraints.
  • eg the Constitution of Fiji 1997 recognises the Great Council of Chiefs (Bose Levu Vakaturaga) and makes it responsible for the appointment and removal of the President and Vice President. It also has an advisory role in appointments to the Senate: ss 90, 93 and 116.
  • See, for example, Constitution of Samoa 1960 (Samoa) arts 17, 18, 44, 100 and 103; Village fono Act 1990 (Samoa); Constitution of Fiji 1997 (Fiji) ss 90, 93 and 116.
  • Committee Report on Matai Titles(n 35) 83.
  • See above, n 55 to 59.
  • Inspector of Police v Tagaloa [1921–29] WSLR 18 (SC) 21 (Samoa).
  • Inspector of Police v Tagaloa [1921–29] WSLR 18 (SC) 21 (Samoa).
  • Leituala (n 52).
  • See, for example, Public Prosecutor v Walter Kota [1989–94] 2 VLR 661 (SC) (Vanuatu).
  • See, for example, Constitution of Solomon Islands 1978 (UK) s 4.
  • Committee Report on Matai Titles(n 35) 85.
  • Garland (n 159).
  • Leituala(n 52) 12.
  • Village Fono Act 1990 (Samoa) s 6. For another example, see Local Courts Act Cap 19 (SI) s 18.
  • See, for example, Ta'amale (CA) (n 54). For another regional country see, for example, Pusi (n 1).
  • See J Braithwaite, ‘Restorative Justice: Assessing Optimistic and Pessimistic Accounts’ in M Tonry (ed), Crime and Justice: A Review of Research vol 25 (University of Chicago Press, Chicago 1999) 1.
  • See, for example, the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) (Australia) passed as a result of public outrage about the release of violent sex offenders from prison after serving their sentence. This legislation was challenged in Fardon v A-G (Qld) (2004) 210 ALR 50 (HC) (Australia), where the court upheld the validity of the Act, which allows the Queensland Supreme Court to order sexual offenders who are a ‘serious danger’ to the community to be subject to preventative detention.
  • Garland (n 159) 210.
  • Watson gives the example of the Japanese Penal Code and Code of Criminal Procedure 1882, which were modelled on French law. See A Watson Legal Transplants: An Approach to Comparative Law (Scottish Academic Press, Edinburgh 1974). Foster gives the example of the universal security introduced in Québec, which was modelled on the United States Uniform Commercial Code art 9. See N Foster, ‘Transmigration and Transferability of Commercial Law in a Globalised World’ in A Harding and E Orocu (eds), Comparative Law in the 21st Century (Kluwer, The Hague 2002) 61.
  • It is difficult to assess the effectiveness of legal transplants generally, as they are of vastly differing kinds and there are various degrees of effectiveness. See Foster ibid 72.
  • See the arguments to this effect made in relation to the justice systems in Africa, South Asia and the Commonwealth Caribbean in J Stevens, Traditional and Informal Justice System (Penal Reform International, London 1999) 42–3.
  • Convention Debates, 26 September 1960, as quoted in M Boyd, ‘The Record in Western Samoa since 1945’ in A Ross (ed), New Zealand's Record in the Pacific Islands in the Twentieth Century (Longman, London 1969) 265.
  • Eg the legislative changes made to the matai dominated electoral system following the Plebiscite Act 1990 (Samoa). See text to n 108, above.
  • ibid.
  • Hon Fiame Mataafa Faumina Mulinu II, statement to the 4th Committee of the United Nations General Assembly, 9 December 1960. See Boyd (n 227).
  • The Constitution of Papua New Guinea 1975 is the most explicit in this respect, but falls short of the goals set by the Constitutional Planning Committee. D Weisbrot, ‘The Impact of the Papua New Guinea Constitution on the Recognition and Application of Customary Law’ in P Sack (ed), Pacific Constitutions (Australian National University Press, Canberra 1982) 271.

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