Kastom & The Law: Worlds Apart

(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.

3 thoughts on “Kastom & The Law: Worlds Apart

  1. An excellent analysis — possibly the best you have ever done.

    As usual, however, a bit Romantic.

    I would like, someday, to read a follow up on the underlying problem in kastom versus law. You touch it, in passing, when you side with the women who no longer want to be beaten, or forced to marry the man who rapes them.

    Kastom, whether in Vanuatu or North America, is inherently very conservative, and changing it, especially when the change threatens the elite who interpret and enforce it, takes a long, long time. In the meantime, those who are not in a position to enforce their interpretations go on suffering.

    Would anyone really consider changing the approach to male-female relations if it were not for the outside influences that have been brought to bear — by expats who come in talking about law, by volunteers like you, by human rights lawyers introducing and propagating new ideas?

    Certainly kastom has its value, but it is also an instrument of repression. Those ostracised or shamed for their differences, whether socially threatening or merely new and unusual, are brought in line by a weight far more terrible than The Law.

    Brought in line or destroyed.

    I am not saying The Law is not repressive: any system of rules aimed at allowing society to function is bound to be repressive to someone. Think of all the wrongfully convicted who died before DNA testing could exhonerate them.

    But laws can change much faster than kastom. And law in a democratic structure can *lead* kastom.

    Look at Barak Obama and Hillary Clinton. They are where they are now because Law opposed kastom, and won so thoroughly that kastom had to change — at least on the surface. And, as new generations grow up under the Law, older kastoms wither.

    Frankly, I am for Law. Yes, I would like to see it more responsive to compassion and community needs, but kastom has never been my friend: it kept the family in its place beneath the Paterfamilias until law stepped in – too late – and declared us our own persons. It let all the ‘guys’ at work know what was going on but never do a thing to help. It lead the cops to give the Old Man a word to the wise when a wife sought protection, with devastating consequences.

    It kept the black man, the woman, the poor and the working people in their place. Their kastomary place….

    No legal system is perfect: penalties often are no match for the crime, sometimes too light, sometimes too heavy. The Law can be twisted as it was in 1933.

    But kastom contributed to that, too, when the Junkers could simply *not* imagine being outsmarted by a housepainter.

    The law has two great advantages over kastom: it embodies the idea of equality regardless of race, gender, creed, et caetera, at least in a democratic system, and it changes faster than habit.

    And isn’t that what kastom is? Habit in respectable garb?

  2. “I would like, someday, to read a follow up on the underlying problem in kastom versus law. You touch it, in passing, when you side with the women who no longer want to be beaten, or forced to marry the man who rapes them.”

    That will likely happen sooner than later. I’m working through a series of columns examining various aspects of the disparity between Vanuatu society and development expectations.

    And just to be clear: I’m for the law as well. But there is much to kastom that remains desirable, even after issues of basic human rights (like the utter disenfranchisement of women) are addressed. More on this by other means….

    More to the point, though, I didn’t want to use this column to pass judgement, but to make it clear that any crime reduction efforts that do not in some way reflect and address the way lives are lived today must necessarily be unsuccessful. Only after the nature of each of the competing systems becomes well understood does the process of reconciling the two become possible.

    Currently, there’s no way the policeman walking the beat can have the same calming effect in Port Vila as in London, until it is commonly understood that, for example, his relationship to his tawians (brothers-in-law) is trumped by the uniform he wears. Until we recognise the influence that family exerts, we can’t create a circumstance in which he can safely intervene in a situation without involving himself and his family in an ever-widening dispute.

    Kastom exacts a price from both sides of a conflict, right or wrong. As things stand right now, a police constable cannot defend him/herself from this liability; therefore they have every incentive to avoid taking any positive action.

    My argument, in other words, is that in order to get to the point where the best parts of Enlightenment thinking – particularly human rights and equality – are reflected in how we live out lives, we need a plan that accurately reflects the route as well as the destination. Yet once again, we’ve got a situation where experts and expats are frustrated and dumbfounded that all their efforts and exhortations seem to be for naught, because they see nothing but lawlessness and apathy, where in fact there is a great deal more going on.

  3. One of your best articles thus far. The writing style in which you use it is much easier to understand where you are coming from and what you are wanting to accomplish. You have done well my friend. Now just send an email every now and then to stay in touch. I haven’t heard from you in a long while.

    I look forward to your further analysis. Are you by any chance getting any heat for revealing your name in the DP? Or are you remaining anonymous?

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