I heard a fascinating tale the other day. A woman of my acquaintance, happily married with children, had apparently been married twice already. Each time, the husband had become abusive and, each time, had died suddenly, without explanation. Word was that she was adept at ‘posen’ – subtle potions that kill suddenly, hours or even days after their ingestion.

Whatever his motivation, her current husband was the model of good behaviour; he never ‘passed behind’ (the Bislama term for adultery) and looked after the children as if they were his own.

Doubtless polished and embellished in the telling, the story remains, at its core, perfectly credible. Spousal abuse is rampant in Vanuatu society, and the police, courts and kastom do almost nothing to protect women. It’s not at all beyond imagining that a woman might take matters into her own hands and act to stop her own suffering using whatever means necessary.

Now, this might be nothing more than folk tale. I am constantly regaled with stories of people collapsing and dieing under mysterious circumstances. On one memorable occasion, I was informed that when the family of one deceased man went to collect his body from the morgue, ‘his guts were gone! They’d simply vanished.’ Another case told of someone’s liver turning completely white. (How this was ascertained was never clear.)

The problem with this particular story is that every part of it is perfectly plausible. Indeed, in a society that views justice quite differently from mainstream European-derived notions of it, it’s not at all inconceivable that a woman would use subtle murder as a way out of an otherwise intolerable situation.

Despite the recent passage of the Family Protection Act, most women face physical abuse at some point in their adult life. Most often, their spouse is the aggressor. For a significant minority of women, beatings are brutal, frequent and delivered for no reason than to utterly break them.

In one particular case, a young woman was beaten daily into her 6th month of pregnancy, and began to be beaten again within days of delivering her child. Three weeks later, she returned to hospital with swelling in her abdomen. A week or so after that, she ran away, unable to take another day of this sickening abuse.

Object as we might against the injustice – and we do – the problem with domestic abuse is that it’s easy to get away with. The young runaway would have left months before, but her husband had already paid her bride price, which he claimed entitled him to do as he saw fit. Although kastom clearly states that the woman’s family could have taken her back, they were intimidated by the mere notion of a long, drawn-out dispute.

Furthermore, the threat of violence was always there. I asked her sister why they didn’t send the woman back to the island, where the husband would be unlikely to follow. She shot me a patient look and said, ‘Because he would just come and burn down our house instead.’

But surely the men in her family would protect them? Well, she answered, yes and no. It’s clear that men rank the safety of their women far lower than their own. Some I spoke to rolled their eyes in exasperation. They recognised that the husband was doing wrong. They swore when they spoke his name. But when it came down to actually taking action, things became suddenly more complex.

Bride price came up again, and complaints about the ineffectiveness of the police. But ultimately, it came down to this: Conflict between families is a difficult thing to control, and nobody wanted to be the one to start something. Especially over something as ‘unimportant’ as a woman. Besides, they argued, everyone gets jealous, and sometimes a quick clip upside the earhole is just what’s needed to keep her in line.

That was all I needed to know. If someone’s going to plead for understanding for a man who engages in daily brutality against their own family member, there’s little point in arguing for trust and respect between the sexes.

The man gets off scot free in virtually every domestic crisis. If he runs off on his wife and kids, people will ask, ‘What did she do to drive him away?’ If he fools around with someone else, it’s usually the wife who’s forced to find the other woman and beat her into submission. It’s the only way she can publicly demonstrate that she’s not at fault. If a man beats his wife inside his own home, nobody will do anything. Ever. Here in Vanuatu, a man’s home really is his castle. Even if it’s his wife’s money that pays for it, her labour that maintains it, and her life that suffers just so that he can feel in control.

Why should we be surprised then, if one or two desperate women feel driven to poison hubby’s evening meal? When he pauses for grace before supper, more than one husband in Vanuatu would do well to pray he doesn’t create the next Black Widow.

With the recent passage of a new telecommunications Act (awkwardly titled the TELECOMMUNICATIONS AND RADIOCOMMUNICATION REGULATION ACT), Vanuatu has taken another important step in ensuring continued success in building openness and fairness into the business of communications.

Parts of the Act, currently awaiting the President’s signature, validate and give force of law to terms and conditions already included in the licenses issued to our two incumbent telcos. It also provides an overall framework for continued growth, expansion and innovation. Most importantly, it makes permanent the office of the Telecommunications Regulator.

(Before I go on, I should make it clear that the text of the Bill was under discussion until shortly before it was voted on. The version I was able to view was not the official text. That will only become available once the Clerk of Parliament receives the signed Act from the President. That said, I’m pretty confident that those parts of the Act discussed here are unchanged.)

Perhaps the most notable aspect of this new legislation is the delegation of the right to issue telecoms licenses to the Regulator. Until the Act takes effect, this power is retained by the Minister.

John Crook, the Interim Telecommunications Regulator, has made it clear that he wants to see the process of obtaining what’s termed a Telecommunications Operator License to be as simple and direct as possible. All that should be required to start a new Internet Service Provider is to demonstrate that you have the right to operate such a business in Vanuatu, that you have the means to do so and that you’re willing to play by the rules.

We’ll likely see some reasonable limits put on this process. Contractual obligations limit the mobile telephone market to Digicel and TVL for a more years, and it’s likely that any large-scale enterprise (someone wanting to build out another national communications network, for example) would require approval by the Council of Ministers.

But, for those local businesses who’ve been waiting patiently for their ISP licenses to be approved, these are glad tidings. Approval could conceivably come within days or weeks.

Rod Smith, owner of Telsat Pacific, is excited at the prospect. One of six applicants, he’s been champing at the bit for months now, waiting for his application to be approved. Telsat intends to provide Internet services throughout Vanuatu, using a mix of satellite and wireless technologies. As the long-time provider of satellite television services, Smith feels comfortable that he can reach most anywhere with his service.

Smith described an ambitous plan to provide residential, business and roaming Internet services. His business model includes a single-sign-on service. Pay once for your Internet, and you can log in anywhere Telsat service is offered at no additional charge. Entry-level packages will start at bandwidths similar to those currently offered by TVL.

Asked how long it would take for him to be ready once his license is approved, Smith half-quipped, “I’ll have everything turned on by afternoon the next day.”

Others are just as sanguine, planning to offer wireless and other services throughout the municipal areas. It’s not clear how much price movement we’ll see in the short term. Satellite Internet is inherently expensive. While we might see more affordable packages than are currently available, they will likely be fairly modest in terms of what you can do with them.

When I discussed their mobile Internet service with Crevan Murphy, CTO at Digicel Vanuatu, he denied any interest in using GPRS to provide traditional ISP-style services. That said, an amended license agreement is currently awaiting approval. Time will tell what it contains.

TVL did not respond to recent questions concerning their future plans, beyond noting the wholesale improvements they’ve been undertaking across their entire infrastructure. Earlier briefings on their plan to extend broadband DSL service further into Port Vila’s neighbourhoods and to Tanna and elsewhere indicate that they intend to compete just as aggressively in the ISP market as they have in mobile services.

Local scuttlebutt has it that they’re currently upgrading their telephone switching equipment to support Internet protocols, too. So we might be seeing new services announced sooner than later.

With all this growth and excitement in the air, it’s comforting to know that the process will be overseen by a seasoned and able Regulator. Interim Regulator John Crook presided over some of the more contentious moments during the lead-up to the opening of the mobile market, and it’s understood that he will stay on for at least another year.

Equally important, he can finally start building out a permanent staff. Regulating telecommunications is a difficult game – there’s no small amount of geekery involved, but it’s intermixed with business, social and political considerations as well.

The new Telecoms Act takes solid steps to ensure that the office doesn’t become another VCMB, de-politicising the Regulator’s role and putting measures in place to ensure its neutrality.

Donors have suggested that in order to keep apace with technological issues, it might be desirable to create a regional ‘pool’ of technical expertise, shared between Pacific Island nations. That’s all well and good, but Vanuatu needs to invest in its own people as well.

While a solid grasp of technology is critical to managing this important national resource, it’s not sufficient in and of itself. If we want to do this right, we’ll need more than a few experienced and savvy ni-Vanuatu in the Regulator’s office and in other critical areas when these new communications services begin to make their impact felt on Vanuatu society.

When this Act becomes law, we can expect to see the same kind of radical transformation in the Internet market as we witnessed a little over a year ago with mobile services.

For most people in Vanuatu, this will be their first encounter with the Internet, a resource whose impact, potentially, will be even greater than mobile telephone revolution we’ve just been through.

Since the arrival of the Internet, there’s been unceasing talk about the imminent demise of traditional publishing models (especially newspapers), the subversive effect of ‘free’ online content and the purported damage done by Peer to Peer ‘pirates’ sharing music, movies and other creative works. At the centre of all this debate over the imbalance that new technology has created between creator and consumer is the oft-ignored conclusion that copyright as a regime for encouraging creativity in modern society is simply unworkable on the Internet.

Pundits, lawyers and media distributors the world over continue fighting the tide, thinking they can shape the Internet to match their expectations concerning copyright. Instead, they should be shaping their expectations to match the Internet.

Faced with the inevitable demise of mediated, controlled distribution – the core of the traditional content industries profit model – we have two obvious options: We can continue to tinker with copyright, attempting to redefine fair use, to place reasonable penalties (or at least disincentives) on unauthorised copying… ultimately, to renegotiate the compromise that lies at the heart of the concept.

This incremental, ostensibly pragmatic approach unfortunately ignores the fact that digital information is quite simply immune to copyright enforcement. The practical ‘right’ to make copies is the very essence of digital technology. Its usefulness is predicated on the fact that data is infinitely mutable and that copies cost as close to nothing as makes no difference. To pretend that we can place anything more than voluntary limits on this capability is dangerously naive.

People copy because they like to, because they can.

Alternatively, we can scrap copyright, go back to first principles and examine in detail what the rights of the creator really are.

I believe that the latter is the best course. We should try to find a new, workable model for managing creative works. But we’re making a big mistake if we assume from the outset that such a framework will be envisioned and enacted based exclusively on an iron-clad conception of ‘rights of the author’. Authors’ rights as a definable concept have been nebulous at best since they were first posited.

A fundamental conflict exists between the creator’s benefit and society’s. It’s a natural desire for all creators to want recognition (and ideally, validation) for their work. Creative processes resulting in notable works are time-consuming, exacting and often quite painful on a personal level. Poet Robert Frost memorably described this aspect of writing as ‘the pleasure of taking pains.’ Such pleasure notwithstanding, writing without reward often feels more like an affliction than an avocation.

Society, on the other hand, benefits most when the fruits of these efforts are replicated simply and as close to no-cost as possible. We can play the chicken-and-egg game of guessing whether society benefits more from its great authors or its newfound ability to reproduce their works at no cost, but the fact remains that society as a whole benefits most when no restrictions whatsoever are placed on the reproduction of creative works and ideas.

(You can argue that creating an environment that formalises authors’ entitlements benefits society by allowing creators to prosper, but you’d have to demonstrate some sort of causative relationship between the two. You’d also have to deal with the numerous historical counter-examples where art and culture have flourished in their absence. Until you do, I’ll assume that the argument is hypothetical at best.)

The approach that the copyright regime takes is to negotiate a compromise in which creators receive exclusive rights from the public in exchange for reasonable limitations on (and duration of) those rights. But those demands are becoming increasingly unreasonable, thanks largely to the eternal copyright policies driven by large media producers, and by their increasing tendency to carve away at existing consumer rights by licensing material rather than selling it.

The public recently got a sharp reminder of the cost of such licensing regimes when Amazon deleted George Orwell’s 1984 and Animal Farm from people’s Kindle e-book readers without so much as a by-your-leave.

On the other side of the issue, people blithely circumvent every technical measure thrown into their path, copying and sharing music, movies, e-books and anything else that strikes their fancy.

The copyright compromise has been subverted by both parties and cannot be remade.

Which leaves is with a sticky question: Given the circumstances, can we actually express what we mean when we talk about the rights of the creator?

The basic concept that creators retain some sort of moral (and therefore legal and economic) rights over their creations is implicit in many legal and philosophical arguments concerning creative works. That’s all well and good, but the plain fact is that, left to itself, society doesn’t recognise or respect them. It does not pay for creative works as ‘just desserts’; it recognises and rewards such efforts – usually according to arbitrary and fundamentally fickle criteria.

In short, societies generally recognise authors, but not their rights. They reward the artists they like and they often punish the ones they don’t. (And because societies are not monolithic, they sometimes do both at once. The list of authors who have perforce lived with this phenomenon could fill volumes.)

As a writer and photographer, I would like nothing better than an enforceable, predictable social contract that codifies the relationship between creator and society at large. But the fact of the matter is that in this day and age it’s just not reasonable to expect anything other than a rather ephemeral set of notions that rely on nothing more than the goodwill of the majority of the audience.

In short, I don’t think we really have any choice but to do what minstrels, painters, actors and countless other artists have done since time immemorial: Throw ourselves at the mercy of society and rely on the kindness of strangers to make a living out of a lifestyle. It’s often unjust and occasionally cruel, but I just don’t see a workable alternative.

In practical terms, this means that creators should look more closely at contract law and other means of asserting clear terms and conditions on the use of their creations on a case by case basis. And the contracts no longer need to be between the creator and the distributor (like the traditional – and much abused – recording contract). Instead, online technologies make it possible for creators to appeal directly to their fan base, establishing the terms for each creation on the fly, even, possibly, on different terms with different individuals.

Admittedly, this creates a bit of a Wild West atmosphere; in fact it militates against the average creator’s sense of justice (”I deserve to be paid for my hard work, not for some arbitrary valuation of my product.”). But the issue is not so much about justice as it is about practical means of being rewarded for one’s efforts. By relying on contract law, we can create a more adaptable, more organic regime that rewards innovative approaches without encumbering society with legal precedents whose logical conclusion is a copyright regime that turns consumers into criminals.

Even in the decades before Jimmy Steven’s Nagriamel movement, land has been at the core of ni-Vanuatu politics and society. Many battles have been fought – and far too many lost – over land rights.

Justin Haccius, a legal researcher for the World Bank’s Jastis Blong Evriwan project, has been looking at this issue for some time now. The conflict between kastom and law, he says, is one of the central issues affecting Vanuatu society today. The problem, as he sees it, is simple: “The system of the majority is not the system of the State.”

In a briefing note titled “Coercion to Conversion: Push and Pull Pressures on Custom Land in Vanuatu” Haccius highlights some of the pressures brought to bear on kastom land owners in their efforts to derive value from their land without becoming completely disenfranchised in the process.

Kastom varies widely from island to island, which makes it difficult to codify it in legal language. Nonetheless, certain commonly held principles are ignored by colonial legal tradition. At the core of the problem is the conflict between rigorous legal strictures and the fluid relationship in kastom between ownership and land use rights.

Haccius writes, “Land is generally owned by a family group, with allocations for use made by a patriarch….” This fluidity allows for compromise and accommodation, but that fluidity disappears when land is leased. The legal framework surrounding leasehold title requires a single, identifiable owner, and generally confers exclusive land use and access rights to the lessee.

The process of identifying an owner is often messy, to say the least. It compounds existing tensions at the village level as individuals and families position themselves to profit from land sales. The exclusive nature of land leases often leads to a winner-take-all scenario in which the person identified as the land owner reaps all the benefits, leaving others at a loss.

Shortly after Independence, the Minister of Lands was given the right to deal in disputed lands. While the purpose at the outset was to avoid upsetting agricultural production on plantations, the practice has since become commonplace. “Absent effective checks and balances this wide ranging power is open to abuse,” states the report.

The report notes that a 2008 Private Member’s Bill to remove this power was defeated in Parliament “on the grounds that disputes could not be allowed to hinder development.” But what is the point of development if it disenfranchises those who deserve most to benefit?

Haccius sees two forces at work here: ‘Push’ pressures pit family members against one another as they vie amongst themselves to parcel and sell their land. Economic necessity exerts a ‘pull’ pressure on land owners as well. Lands sales are often the only way kastom land owners can gain access to the cash economy. As families are drawn inexorably deeper into the cash economy, the pressure to give up access to their land increases.

This dynamic creates a system in which kastom owners operate at a perpetual disadvantage. “Custom-owners need a quick sale. Seeking better offers, marketing land or prolonging negotiations is as likely to produce contesting claimant owners attracted by a cash sale.” Negative outcomes from such a scenario include lengthy court cases, disenchanted buyers and possible intervention by the Minister of Lands.

This gives the advantage to land speculators willing to overlook their own scruples in pursuit of a quick property flip. They swoop in, sweet talk one or two individuals, and before long a few pigs are dead and one villager has a new Hilux and some walking around money. His extended family and their children, meanwhile, have lost their birthright.

Jastis Blong Evriwan is a World Bank-funded project designed to create a better understanding of the issues of social justice at the grassroots level. The goal of the project, says Haccius, “is to train local researchers so that the skills stay in the country. We recognise that the knowledge is there, but the skills” don’t always exist. Too often, he says, when foreign consultants come, they take away the knowledge and skills with them.

By partnering with the Ministries of Justice and Lands as well as with grassroots organisations, Jastis Blong Evriwan aims to join extensive local knowledge with professional legal research and advocacy training in order to create more enlightened and effective policy-making on the national stage. “The research is not to introduce new ways of doing thing, it’s to inform – and reform – existing efforts.”
The formal legal system currently holds a monopoly on development. That shouldn’t be the case.

Haccius believes that kastom shouldn’t be seen as a problem but a resource.

By working closely with local organisations and providing expert training to 3 or 4 local individuals, Jastis Blong Evriwan hopes to build what Haccius calls “bridges of dialogue” between grassroots and the state.

These efforts are timely, even overdue. With a little luck and a lot of learning on both sides, efforts like this might be enough to start the transition for ni-Vanuatu from spectators in Vanuatu’s development to full partners in the wealth and growth of the nation.

Note: Because of public demand for a printable version of this column, here’s a PDF version of this week’s column.

This week, I’m going to give over much of my column space so that other voices can be heard.

Over the last two weeks or so, there’s been an animated and quite fascinating discussion on the VIGNET technical mailing list. VIGNET is a mailing list service provided by the Vanuatu IT Users Society (VITUS) in order to contribute to a public dialogue about all things to do with technology. With over 220 subscribers, it represents a significant number of people working in IT in Vanuatu.

Following the roll-out of Digicel’s GPRS mobile Internet service, concerns have been raised about children and youth in Vanuatu having access to unsuitable content, especially pornography, through their mobile phones.

With nearly 100 messages from dozens of different contributors, the discussion was illuminating, intelligent and remarkably respectful, especially given the delicacy of the topic. What follows is a small but representative sampling….

Some of the commentators suggested that responsibility for what our children are getting from the Internet begins at home. Russell Mujee wrote:

“If a parent is aware of the bad contents their Kids are accessing then they should call customer service to disable their Kids GPRS – And only to allow access later under their Authorization.

“The other option is to buy mobile phone(s) WITHOUT GPRS for their Kid(s).”

Jane Kanas replied to support the idea that, while we can never entirely block undesirable content, we should do everything we can to arm those in our care with the moral and ethical sense to cope with its unwelcome influence. She ended with a pithy and simple sentiment:

“Shape the mind to shape the action.”

Nambo Moses echoed this sentiment:

“The instructions we obey today… the future we create.”

Edward Williams added his voice, and warned against externalising the blame for this content:

“[Y]umi no save ronwe, ko isolatem yumi wetem ol pikinini afta traem blong saed long technology.

“Yumi stap lukluk iko longwe tumas, blame Digicel, olgeta we oli providem internet long fones. Responsibility istat long house fastaem. I gud ia Digicel i allowem blong kat GPRS long ol fones.

“Sam papa mo mama naoia i mas stap long house mo toktok plante wetem pikinini. Irresponsible parents [i letem] pikinini mekem rabis fasen.

“…[T]eachim gud pikinini blong yu…yumitu no save ronwe ia….Fulap istap kam iet.”

Writing from California, one interested observer suggested that we pay close attention to how other countries are dealing with the very same issue:

“Vanuatu is in a unique position as they can learn from other country’s mistakes, observe some of the issues that technology brings, and use knowledge gained as a basis for forming policies, or at the very least be aware of the risks that come with advancements in technology.”

Some people suggested that it’s all well and good to say responsibility begins at home, but that the majority of adults in Vanuatu are largely uninformed on the issue. Replying to Williams, Sum Abiut wrote:

“I don’t think parenting alone can put an end to this thread. Do parents really know who their son/daughters class mates or friends are? I don’t think so, they might be hanging out with some bunch of teens who took advantage of this service to influences other teens to watch porn. No one is blaming Digicel or [any] ISP here. It needs team work to deal with this threat.”

To which Williams replied:

“[T]eam work won’t be very effective if some bunch of lazy people are depending on yumitu mo other people sweating themselves out trying to put some rules in place preventing all these happening, and they don’t take the time to teach their kids.”

Joseph Toara raised the issue of law enforcement. Stating that Vanuatu already has laws prohibiting indecent material, he asks why aren’t they being enforced on the Internet?

“Long internet every thing is there, unless i kat filter. Hemi no mekem sense blong kat wan law we i blockem people blong karem [porn] magasine i kam long country while yu letem internet open nomo olsem.”

Numerous people offered their support for this proposition.

Makatere replied with “two cents worth”:

“Whereas monitoring all traffic at the gateway? Thats a small step towards becoming a Police state. Big Brother anyone?”

The debate swayed back and forth around the issue. One contributor, signing on with the name Big Aussie, reminded us that this problem is a little like trying to squeeze the air out of a balloon:

“Trying to hide or block these things only makes them hide, making it even harder to control access to them.”

I offered a few thoughts of my own. At the core of the issue of enforcement is the legality of the measures taken to protect people from these influences. I worried about constitutional issues, including the rights to freedom of conscience and speech, and the constitutional prohibition against unreasonable search and seizure.

Furthermore, the license agreements currently in place for our ISPs have no requirement to filter content for any reason. Imposing further conditions on them might create a great deal of concern for their lawyers, especially because of the implications raised about legal liability for the actions of their customers.

Ironically, it would be easier to for them to provide such services voluntarily to those people who wanted to subscribe to them.

More than anything else, though, I worry about the potential for abuse. The problem with installing a filtering system on our core networks is that everything we say and do on the Internet would become visible, and I fear that the temptation to look for material other than pornography might become overwhelming. If experience elsewhere is any guide, it’s not at all unreasonable to fear that political rivals, jealous lovers and people indulging in petty vindictiveness might use these tools to abuse someone’s privacy.

I’m a strong supporter of content filtering in schools, businesses and those private residences that want it. But history teaches us that when such overwhelming surveillance power is given to the state, the worst outcome is the most common.

Kenneth Fakamuria countered with an excellently reasoned response:

“The bottom line is that it is illegal to be bring pornographic material to Vanuatu. In the pre Internet era this law was enforced through customs and immigration. Now of course thanks to internet technologies, pornography is easily accessible in many major centres in Vanuatu. Does this make pornographic access any less legal? No, but it has made the law much more difficult to police.

“It was for this reason that I suggested that further action should come from government – to further enforce this law. And one suggestion was to filter pornographic material from the source. It is much easier to filter from one source than to let it pass 20,000 lines which will require 20,000 filtering actions from the many islands in the country where internet is accessible.”

Joseph Toara offered the following conclusion:

“[L]ong end blong day, yumi man Vanuatu yet bae i dicidem wanem we hemi good blong yumi.”

There is a great deal yet to be said on this topic. VITUS considers it critically important that the people of Vanuatu educate and inform themselves about the new influences – both good and bad – that our newfound levels of access to the Internet introduce to us.

After more than a month’s delay, prison escapee John Bule’s body was finally put to rest this week. While his family may have some degree of solace now that they can properly mourn his passing, and in spite of Government entreaties to allow the justice system to work, many feel that much remains to be said about how we treat our prisoners.

In a searing letter to the Editor earlier this week, one man described how his children and their nanny had been terrorised by knife-wielding thieves. The nanny was only saved from rape or worse by the man’s timely arrival.

“If we had Capital Punishment,” he writes, “I would gladly pull the trigger on this criminal.”

I know exactly how he feels. Nearly a decade after the fact, I have only to think about one man and I begin to shake with rage.

Years ago, I lived in a frontier town smaller than Port Vila. I found evidence that one of its residents had been molesting children for over a decade, and that one of them, a 12 year old girl, had since committed suicide.

I sat at home for hours, trying to decide whether to call the police, or simply to pull my rifle from its locker and shoot him myself. In the end, I picked up the telephone, not the gun.

When we talk about respecting the rights of criminals and the rule of law, it’s easy to lose sight of why we argue for them. For me, it’s definitely not out of some namby-pamby desire to sit around the campfire singing Kumbayah. It’s not out of kindness at all.

It’s about who we are as a society, and who we want to be.

Shortly after Bule died, I talked for hours with a chief from Paama. I wanted to learn how such an affair would be dealt with in kastom. The chief replied emphatically that these events could not have happened in the past.

Two generations ago, Bule would never have been allowed to stray as far as he did. According to this chief, a serial transgressor would have faced an escalating series of fines and penalties, authorised by the chief and enforced by the young men of the village. Bule would either have been intimidated sufficiently to come back into the fold – or he would have been executed. Either would have occurred long before his final arrest, detention and unsanctioned death.

Bule reached this point of deadly crisis because a gap has appeared in society, where neither kastom nor the law operate as they should. The distance from island to town, the newfound mobility affecting Vanuatu society, has left so-called ‘town’ chiefs with little power to enforce their views. While many chiefs – this one included – serve a useful and active role in their communities, that role has become more advisory than authoritative.

Because Bule had passed beyond kastom’s ken, the chief felt there was nothing he could do but wash his hands of the whole unfortunate affair. “Bule i mestem rod long taem finis,” he told me. By ignoring the counsel of his family and his community, Bule had arrived in a place where helping hands could no longer reach him.

The chief refused to be drawn into a discussion of the propriety of the actions of those who arrested Bule. That, he said, was the Law, and had nothing to do with kastom.

A society is defined by how it treats those in its care. In Vanuatu, that often means that community rights trump the individual’s. In the Western legal justice system, individual rights are paramount. This creates a tension that subverts the ability of the community to police itself. In Vanuatu’s case, it erodes the chief’s mandate with regard to justice and social order, placing police and legal justice in his place. If they fail, the entire system fails.

But legal justice ignores something central to kastom: victim’s rights. Kastom requires reconciliation of community members; it keeps miscreants from straying too far, sometimes forcibly.

It does have its shortcomings, and its emphasis on peace-making rather than justice is often baffling, even appalling, to outsiders. But it is effective in one critical respect: It ensures that the community remains largely healthy and peaceful for all.

More than anything else, kastom’s continuing influence has kept Vanuatu from falling into the same pit of lawlessness and disorder as PNG and the Solomons.

It is not, therefore, the mere idea that members of the Vanuatu Mobile Force beat and killed Bule that I find troubling. It is the fact that, by allowing some to act without restraint, without any rules whatsoever, we as a society are moving further towards a culture that sanctions lawlessness. We have only to look at Port Moresby, with its rampant, uncontrollable violence and its often deadly law enforcement, to see where Port Vila will be in a decade.

If, that is, we don’t take steps now to bring our troublemakers back within society’s grasp.

Human rights are not abstract issues. How we treat people – all people – defines who we are.

Shortly before noon on Sunday, March 29, two Toyota pickup trucks arrived at a Malapoa residence occupied by 21 year old escaped convict John Bule, his girlfriend and their daughter, aged less than 2. Several men in plain clothes dismounted and entered the house in search of Bule.

Loud voices were heard from within the house, and 3 shots were fired, apparently as a warning. Nobody was hurt. Shortly afterward, John and his girlfriend were escorted from the house, their hands bound behind their back. They were placed together in the back of one truck and driven to the VMF barracks.

The girlfriend later recalled that she pleaded with those holding her to be allowed to return to her home and her daughter. She told them she’d done nothing wrong.

As she pled with them, she says, she heard her boyfriend John crying out in pain in an adjacent room.
Shortly before 2:00 p.m. that same day, authorities brought John Bule to Vila Central Hospital for treatment of wounds to both legs, both arms, his ribs, back and head, which had multiple lacerations, including a gash above his left eye about 10 cm. long and 3 cm. wide.

Soon after 4:00 p.m. Sunday, John Bule was pronounced dead.

Hospital authorities have not yet commented officially on the cause of death.

An unsigned statement issued from within the Prime Minister’s Office claimed that John Bule was apprehended in the Malapoa neighbourhood, then ‘questioned’ for 30-40 minutes. The statement asserts that he then tried to run away and was injured during the ensuing struggle. It goes on to say that a Commission of Inquiry will be created to investigate the circumstances of Bule’s death.

Available evidence shows that John Bule sustained grievous injuries over his entire body. This wasn’t the first time he’d sustained injuries in custody. On December 20th last year, when inmates burnt down the Stade prison and marched in protest to the Chiefs’ Nakamal, Bule was spotted with both legs bandaged. Unable to walk unaided and in obvious pain, he was supported by two of his fellow prisoners.

Roadside rumour and kava bar conversations tend toward simplistic conclusions, and the case of John Bule is no different. One otherwise sweet-natured mother uttered, “An escaped prisoner is dead? Good!” She accompanied the statement with a single, swift nod of her head.

But it’s not that simple. It never is. Issues that in the abstract appeal to our most predatory feelings take on a completely different complexion when they affect us, or our loved ones. John Bule was not that woman’s son, but he did belong to someone.

While we sometimes feel that Hammurabi may have had it right, John Bule didn’t deserve to die like this. Not according to any law I can find. Neither the New Testament, kastom nor Common Law condone this kind of senseless death.

Vanuatu is a nation of laws. In real terms, it operates using a mostly pragmatic mix of kastom, Christianity and Common Law. First and foremost, family ties bind us together, guided by our chiefs and our churches. The law is our ultimate arbiter.

Let me ask, then: What chief, what pastor, what judge can sit idly by when something like this happens? The answer, I am ashamed to say, appears to be: Most of them.

We’ve known about problems in the prisons for years now. We’ve seen what happens when people, jailed and jailer alike, are hidden from the public eye. If the testimony of Prison Report 2008 is to be trusted, no sooner did convicts pass out of our sight then they were susceptible to treatment that contravenes not only the law, but our own collective conscience.

And yet, because it’s hidden from our sight, we allow it to go on.

While I confess to an unusual anger over this incident, I don’t especially blame the men who arrested Bule. Just a few days before these events, I spoke with one of them. The long, late hours of constant, often fruitless searching had taken their toll. It was clear to me that his good nature, his professionalism even, were being strained by the effort.

But it is precisely because of such stresses that the enforcement of rules, discipline and routine is critical to Vanuatu’s Correctional Services. Had Bule been returned immediately to their custody, there is every reason to believe he would be alive today.

Donors, politicians, chiefs and especially the staff of the Correctional Services Department have invested time, money and no small emotion over the years to improve things. All to no avail. They failed because we, as a society, didn’t care to know what was happening on the other side of the prison wall.

We are all of us responsible for this tragic death.

When Correctional Services announced their intention to build a proper detention facility, a chorus of voices complained about money wasted on a ‘country club for criminals’. When the truth about conditions inside the prison became clear, we tut-tutted soberly, and turned our heads.

When journalists broke the news of prisoner protests, they were threatened and even beaten.

Though a Commission of Inquiry was established to investigate the issue, the public has yet to see its report. An article in the Independent quoting Professor Don Patterson, a Commission member, appears to corroborate some – if not all – of the prisoners’ claims.

Not to diminish the importance of this document and the urgent need to publish it, but we already know what the problem is. The answer too, should be clear. We need to recognise that prisoners are not outcasts – inmates, even escapees, are not magically transported out of society’s purview. We still bear responsibility for their lives.

We all abhor the actions of those we send to prison. So why, then, would we choose to emulate them? Since when was violence – absent justice, orders or oversight – the solution to anything?

What chief would stand up and explain to the Paama community that Bule’s death was just and deserved? What pastor would claim that sin excuses sin? What minister would state that his employees acted beyond order or instruction, but rightly?

By whose authority did John Bule die?

John Bule’s death overshadows and derogates all that we hold dear in this society. We must – all of us – work to ensure that it never happens again.

Another year passes and a new one begins; a useful time to pause for a moment and reflect on what we have, what we know, and what we want.

The things we have are stacked side by side like extra timbers kept dry under the eaves – notionally of value, but of uncertain usefulness right now…..

We have new laws. The President at last signed the Family Protection Act into law. Its effectiveness in actually protecting families will rely in no small part on the willingness of police to actually use it. Will they honour the requirement to enter a private domicile when a dispute is taking place, or will they hold onto the old rejoinder that what happens inside stays inside?

The amended Employment Act is on the President’s desk, awaiting his signature. Will we see some flexibility from the Minister, some desire from unions and employers to achieve a reasonable compromise that mitigates the worst of the economic effects and still improves the plight of the average ni-Vanuatu worker?

We have – well, we don’t have prison any more. Following mid-December’s mass prison walk-out that resulted in the old Stade jail burning down, we have a chance to make a new start. Will those responsible get past their desire to blame the messenger? Will they accept that Opposition members Carcasses and Regenvanu were acting in the public interest when they insisted the protesting inmates honour their pledge to present their grievances to the Malvatumauri and then return peacefully to jail?

Will the government at last grant land to Correctional Services in order that construction of a new prison be started?

Will officials embrace the opportunity to improve conditions for prisoners and society alike by taking the Correctional Services Act to heart, enforcing both the spirit and the letter of the law? Will we at last find a way to integrate kastom and respect into prison life?

Every one of these questions hinges on a simple truth: Everyone – man, woman and child, labourer, miscreant or minister – has rights. These rights are not granted by governments, nor can they be taken away.

The concept of fundamental human rights has existed since the Enlightenment period in the 18th Century, and is enshrined in documents like the American Bill of Rights and the French Declaration of the Rights of Man and Citizen. But it was not until 1948 that the UN ratified the Universal Declaration of Human Rights. A milestone of human achievement, for the first time all the nations of the world formally recognised that human rights are inherent – that they exist regardless of our desire to respect them or not.

Considering its contents, the Declaration is a curious document. If the rights enumerated in it are indeed central to our nature, why do we need to list them at all, much less give them the force of law?

The answer is potentially embarrassing to many of us. Human rights are not convenient. They get in the way of many desires that, for better or worse, are also deep-rooted in the human soul.

Selfishness, lust (in all its forms), the desire for power over others – the hunger for each of these is blunted as soon as we accept that all others are possessed of fundamental dignity which may be thwarted but cannot be denied.

We cannot beat our wives just because they can’t hit back at us. We cannot ignore the needs of our children just because they cannot demand them. Nor can we ignore the needs of the working man, no matter how unskilled or ignorant, simply because it reduces our profit margin.

We can restrict his liberty for the welfare of all, but we cannot take away a prisoner’s rights. They are not ours to give or take.

Notwithstanding the prevarication of a few seeking to justify thought and action after the fact, I know of no one in Vanuatu who will deny that kastom shares that central principle that human beings have inherent rights and responsibilities to one another, that they were granted by God and must be respected by man.

Respect for human rights is a troublesome thing. It demands that we take the time to consider others’ needs, often putting them before our own desires. It demands that we compromise, that we avoid expedience, that we show patience, forbearance and, often enough, a good deal of ingenuity in order to accommodate the conflicting wishes of human society in a peaceful and – above all – respectful way.

If we are to find any inherent dignity and respect within ourselves, we must respect those demands. If we look into our own individual souls and see anything of value there, we must accept that the same exists in every man, woman and child, no matter who they are. Before we raise a hand, turn our head or forget the fallen, we must remember that the things that make us human belong to everyone.

It’s time we took those leftover timbers from 2008 and began building something new – something that reflects the best in all of us.

This week, the Australian government moved closer to implementing its controversial Internet Content Filter. The ICF represents the Rudd government’s latest attempt to curtail access to illegal or ‘unwanted’ online materials by requiring that all Australian Internet providers implement this filtering system. News sources report that the government has released the technical specification of its pilot implementation.

I’ve written before about the technical, ethical and legal problems surrounding this plan. I maintain that the system is ineffective and inappropriate, foisting a law enforcement role on the nation’s ISPs, and threatening free speech without providing sufficient protection from the very content it seeks to block.

With Internet deregulation on the horizon in Vanuatu, it seems timely to take a look at some of the basic issues underlying the debate.

At the core of the debate over access to Internet content is the issue of privacy. The question of privacy has a few particular wrinkles here in Vanuatu, where family-centric village life still dominates our culture.

There are two fundamental approaches to privacy in the online world. The first takes an individualistic, contractual approach. It states that all information pertaining to you is yours and yours alone, though you may choose to negotiate away some of your personal information in exchange for a given service. In this light, privacy is a desirable, valuable commodity; it’s up to the individual to ensure that they don’t give away too much of it.

I like to call this the American approach, because of its strong emphasis on personal liberty and responsibility.

The second perspective on privacy contends that the cat is already out of the bag. We live in a global community where information about us is available to any who chooses to look. If we accept that point, then the only things left to do are to make sure that nobody gets a monopoly on access to information and that everyone’s information if equally accessible. So if a nosy government wants to know everything about us, that’s fine, as long as we get to know everything the government knows. Proponents of this approach claim that this creates a culture of civility, because anyone who pokes his nose into others’ business will soon find his deepest personal secrets exposed as well. What’s good for the goose is good for the gander.

I call this the Japanese approach, because such a regime relies on mutual respect, restraint and conformity to function properly.

In the American approach, individuals must carefully guard their own personal information. But what happens if they don’t?

Suppose someone joins an online dating service, even though they’re already married. Let’s say they later run for political office. If it comes out that the candidate propositioned women in a discussion forum, well, too bad for him. He disclosed the information; now he has to live with the consequences.

On the other side of the issue, if our candidate contracts an STD, then goes online to order drugs to treat the condition, how should we treat his actions? Does his Internet Provider have a right to know this? How about the government? The American approach says no.

In this context, a content-filtering programme creates huge worries for individuals. In order to filter out the ‘unwanted’ material, a content filter needs to look at every URL you type in. It would be bad enough if the government were looking at this information, but in this case, the people with their eyes on the data would be private Internet Service Providers.

There is nothing stopping a low-level employee from watching this data simply out of prurient interest. In fact, this kind of abuse happens almost every time comprehensive surveillance is conducted. In a famous example, low-level staffers in the US National Security Agency would regularly listen in on romantic conversations between soldiers serving in Iraq and their wives at home. The practice became so common that some even created ‘Greatest Hits’ compilations of their favourites and shared them with other staffers.

The American approach contends that anyone who abuses a person’s privacy is liable to civil or even criminal prosecution. But how to police something like this? The American approach basically states that you are responsible for protecting your own data, but you should have powerful legal tools available if someone betrays your trust.

In order to act though, we have to know someone is spying on us. More often than not, all we have is someone’s promise that they aren’t.

At the other end of the privacy continuum, the Japanese approach to privacy states that personal information is only valuable to the extent that others are willing to respect it. It’s more a cultural approach than a legalistic one.

Let’s take the same example we used above, where a candidate tries to set up an adulterous liaison in an online forum. Everyone can see the information, but before they talk about it, they consider whether this site is considered a public or private space.

In an essay titled ‘Privacy and Paper Walls’, I wrote:

“In the past, most Japanese houses were made of wood and featured sliding doors made mostly of paper. They were useless, of course, for blocking noise or preventing willful intrusion, but they were extremely effective at establishing a distinction between public and private space. A couple in a crowded household might have a furious argument, for example, but if the fusuma, or sliding door, is closed, then as far as anyone in the adjoining room is concerned, the quarrel hasn’t happened.

“It’s hard to imagine how one could possibly ignore something so obvious, but consider the social transaction involved: If you agree to ignore what happens on the other side of the door, I will agree to do the same. Now consider the number of potentially embarrassing noises that could emanate between these spaces, and you’ll begin to appreciate just how useful such an agreement would be.”

Put in terms closer to home for many in Vanuatu: We should consider carefully the beam in our own eye before commenting on the mote in our brother’s eye. Who else uses that dating forum? How comfortable would it be for all of us if public attention were drawn to that site? If society collectively decides that the site should be subject to scrutiny, so be it. But it’s equally possible that people might choose to leave such information alone – no matter how much they might personally disapprove of it – because the public cost would be too high.

A dating site might not be a perfect example of a site people would prefer to consider a private space, but let’s go back to content filtering services:

If people find out that staffers were regularly watching what sites they access, the vast majority would disapprove, because even innocent information can prove dangerous. A woman who’d miscarried several times would not want anyone but her closest confidants to know that she was pregnant again, not because it’s wrong, but because discussing it would be too painful. Likewise, a devout Christian experiencing a crisis of Faith would not necessarily want it widely known. It’s perfectly normal that we should face such moments in our lives, but it’s not something most of us choose to make public.

The Japanese approach, therefore, relies on a social contract in which everyone respects everyone else’s secrets in order that their own remain protected.

It’s pretty easy to see how knotted and difficult privacy becomes in an online world whose very basis is cooperative information sharing. Whether we think that people should take care to protect their individual privacy, or that privacy should be protected through mutual discretion and respect, it’s clear that attempting to regulate online behaviour inevitably creates complicated, difficult and often troubling problems for everyone.

Whether we use online systems or administer them, or both, we all benefit from a minimalist, agnostic approach that avoids prying wherever possible.

I’ll be writing more comprehensively about this issue in Saturday’s Weekender, but there’s a lot of meat on this issue, and I thought I’d package up the wonkery first….

Severance

There does seem to be real cause for concern regarding the changes to severance payments. First, increasing the liability for employers by 300% make a big difference. I spoke with someone yesterday about the potential impact and he related the story of one of his senior staff. This person makes a decent salary in a competitive sector. After nearly 7 years of service, he’d be due roughly 1.7 million vatu (about USD $17,000). But – again, under the current rules – he’d only be eligible for severance if:

1. He stayed at least another 3 years; or
2. His boss was foolish enough to let him go.

Neither is likely to happen.

Under the new rules, this person’s boss would be liable for nearly 7 million vatu. To make matters worse, there’s no longer a requirement that an employee serve a designated amount of time before becoming eligible for severance, should s/he resign.

7 million vatu is more than enough to buy a nice parcel of land, build a house on it, and live at leisure for some time. To say nothing of how happy one’s family would be to share in such a windfall. I can assure you that the temptation to take the money and run is extreme. Especially in competitive sectors where finding further employment is not as challenging as unskilled or semi-skilled work in construction, retail or hospitality.

Maternity Leave

I confess to a little confusion here. The Daily Post[*] recently ran an editorial stating that maternity leave has been doubled. But when I reviewed the amendments, I found that:

1. Additional protections have been put in place to ensure that a women returning from maternity leave is given the same or equal status in terms of work, remuneration and benefits;
2. her time allocated to breast-feeding is doubled to (although the number of times she can breast feed has not been changed);
3. women are granted up to 12 weeks maternity leave, starting 6 weeks before delivery and lasting 6 weeks after.

I’ll be the first to grant that this conclusion is based on what I remain convinced is an ambiguous and redundant insertion (noted in blue in the preceding post). That said, the only quibble I can find with that breast feeding a child only twice between 7:30 a.m. and about 5:00 p.m. would be problematical for some children. Having twice as much time (1 hour instead of 30 minutes) in each interval is useful, but ultimately of questionable value without some flexibility over how that 2 hour total is apportioned.

[*] Full disclosure: I write a weekly column for the Daily Post. Evidently, that doesn’t mean I can’t disagree with some of their editorial stances.

Misc

The remaining changes are mostly neutral or of moderate effect:

• allowing an employer to deduct from severance if an employee hasn’t given adequate notice;
• increasing the rate at which annual leave is accrued;
• reducing the eligibility time for annual leave.

It seems businesses are well within their rights to grouse over this, especially given that Vanuatu workers currently enjoy more public holidays than just about anyone else. But in my opinion there’s no cause for crisis.

And where in all of this is the previously announced decision by Minister of Internal Affairs Patrick Crowby to increase the minimum wage? To be fair, the issue isn’t dealt with in the Employment Act, but it strikes me that an increase there would be of greater import to the average ni-Vanuatu worker than improved severance and maternity benefits.

Work-arounds

The problems created by this 400% increase in severance and related changes are real, and require remedy. Certain of the larger institutions in this country would face insolvency if their staff were to avail themselves of the windfall awarded them by these amendments.

The law was passed unanimously by Parliament (about which more later) The law was passed, apparently, with only two or three abstentions and no votes against; it remains only for the President to sign it and for it to be gazetted before it has legal effect. As much as one might be inclined to encourage His Excellency to sign off on some of the other Acts awaiting his pen (most notably the Family Protection Act), there’s really nothing to be done but accept that a bad law has been passed, to put it into place and then (quickly!) to take measures to mitigate the worst effects of the legislation.

The Employment Act stipulates that the Minister has broad rights of exemption where employment issues are concerned. About the only thing he can’t do is legalise forced labour. He could, at his sole discretion, exempt everyone from the severance provisions of the Act with the promulgation of a single letter. This might buy enough time to either repeal the relevant amendments, or better yet, to perform a decent consultation and enact some more sensible further amendments in a later Parliamentary session.

[Update: The consensus among the experts I've spoken with is that a blanket exemption from the most contentious amendments would be an exceptional, but entirely legal, course of action.]

If this doesn’t transpire, there does seem to be another loophole. In cases where there’s been a seamless transition between employers (e.g. a change of ownership following the death of a principle, the re-shaping of a partnership, or the transfer of ownership of a company), the Act has the following to say:

(6) An employer who is liable to pay severance allowance under subsection (5) shall –

(a) be entitled to deduct any period and to make any deduction which any previous employer would have been entitled to deduct or to make had the previous employer become liable to pay severance allowance; and

(b) be exempt from any liability to pay the allowance in respect of any period for which any previous employer was exempt from such liability.

(Emphasis mine.)

Now, that says to me that with a little corporate sleight of hand, a company owner could maintain continuity in the workplace, avoid having to terminate all his staff and pay out their existing severance immediately, and remove ‘any’ liability prior to the enactment of these amendments.To my feeble faculties, ‘any’ sounds like it includes pre-existing severance rates which existed ‘any’ time in the past.

(CAVEAT: I’ll re-visit this last point once I’ve had a chance to pass it by some lawyers. I may well be am talking through my hat.)

And here’s the update: I’ve spoken with a couple of lawyers, and they agree that, although the Act seems somewhat contradictory in this section, to construe it as I have done would be “a tortuous interpretation” in the words of one. He continues:

“The general rule is that a piece of legislation should be read as making sense. A common sensical interpretation, for me, would be that the exemption from liability did not relate directly to the original liability, but to extraneous exemptions[.]“