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Kastom & The Law: Worlds Apart
By graham crumb | May 24, 2008
(Originally published in the Vanuatu Daily Post‘s Weekender Section.)
Last week’s summit on crime at the University of the South Pacific produced many useful recommendations. Perhaps too many.
The recommendations emerging from the 3 day workshop covered an immense scope: Law enforcement, the judicial and penal systems, the role of chiefs, social justice, ethics and civics education as well as employment were all identified as areas where conditions must improve in order to alleviate crime.
It’s hard to decide whether our comprehensive understanding of the problem should be cause for joy or despair. If we see so clearly what needs doing, why don’t we do it?
Allow me to offer an unwelcome answer: We don’t do anything because we as a society don’t want to.
Western-style criminal justice is complementary to kastom at best. In many cases, though, the two are irreconcilable.
Kastom in Vanuatu has always been about keeping the peace. Every aspect of it is predicated on maintaining an even keel, avoiding overt conflict where possible and ending it when it does break out.
Kastom is not always about justice; it doesn’t always mesh with an adversarial system that pits police, lawyers and judges against wrongdoers. Nor a penal system that removes the convicted from society altogether.
Since the 19th Century, kastom and western legal systems coexisted, sometimes comfortably, sometimes not. Edward Jacomb’s memoirs from the 1900s recount at least one occasion where everyone – the killer included – was glad to allow British authorities to bring a confessed murderer from Epi to Vila in order to stand trial.
Yes, that’s right: The killer happily accompanied the authorities back to Vila. He’d stepped so far beyond the pale that his life in the village was over. The local chiefs were glad to be quit of the transgressor because it excised the problem entirely, making it easier for community life to return to normal.
As long as the criminal justice system floats above day-to-day law enforcement, stepping in only when the situation cannot be handled locally, conflicts are few. But when police are used as instruments of government policy, trouble arises. I once spent hours in one of Tanna’s 12 sacred nakamals, listening to a chief recount a story from the 1950s, of the arrest and incarceration of french-speaking chiefs from the White Sands area. One of the old chiefs died in jail. Years passed before his remains were returned to Tanna. Nearly 60 years later, a deep grievance remains. Not so much because he was punished for breaking the law, but because his exile and incarceration were, from a kastom perspective, immeasurably wrong.
Likewise, when police powers are seen to undermine the authority of the chiefs, uncomfortable tensions inevitably arise. Among the recommendations emerging from the crime summit was for chiefs to have constitutional and legal standing where law enforcement is concerned. This idea is practicable, but not without conceding that standard western forms must change to meld with local tradition.
Kastom, at its core, is a peace-making system. It is designed so that we can all live together. Retribution for crimes committed, therefore, is not as easy as Hammurabi might have wanted when he prescribed an eye for an eye, a tooth for a tooth.
It may be difficult for outsiders to accept that a thief should suffer no greater punishment than a fine and public shaming, but that’s because they completely misjudge the importance of social standing and forgiveness in Vanuatu society. A known thief has a lot of bad karma to work off, and all his fellow villagers are happy to remind him of it, all day, every day.
Incarceration removes a wrongdoer from the approval – and opprobrium – of his peers. It subverts the most powerful tool that kastom has. Furthermore, the inflexibility of western legal systems leaves no room for discretion, which is the stock in trade of every good chief. When a chief talks about his ‘children’, he’s not just speaking metaphorically. Deep understanding of his people’s personalities and motivations rule his every insight.
None of this is to say that kastom can’t benefit from the influence from the core tenets of a society based on law, order and justice. No matter how hard I try, I have never been able to reconcile myself with the idea that a rape victim should be forced to marry her attacker. Nor can I accept that a woman beaten to within an inch of her life inside the family home is a private matter. I know that women in Vanuatu wholeheartedly agree.
Kastom is nothing if not mutable. It has transformed itself to meet the present need for over 3000 years. I know from countless conversations with chiefs from islands throughout Vanuatu that they recognise the need to adapt.
Most expats and foreign advisors, on the other hand, seem to want everything cut and dried. They simply assume that rule of law must be enforced in Vanuatu exactly as it is in Sydney, Brisbane and Paris. Until kastom informs our decisions, however, the criminal justice system will remain the hamstrung, ineffectual jumble of half-measures that it is today.
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