Forsyth, Miranda --- "Vanuatu: Determining chiefly title: from courts to custom and back again" [2003] AltLawJl 58; (2003) 28(4) Alternative Law Journal 195

• Determining chiefly title: from courts to custom and back again

Determining chiefly title: from courts to custom and back again

MIRANDA FORSYTH^[*]

reports on the interrelationship between the common law and custom in Vanuatu.

The recent judgment of the Vanuatu Supreme Court in Chief Waya Tenene and Saul Kalmarie v Kalmetabil Kalmet Nmak (Civil Case No. 203 of 2002, 25 June 2003) is an innovative attempt to synthesise the courts and traditional dispute resolution processes. When Vanuatu became independent in 1980, the new President, Father Walter Lini, noted the importance of developing 'in the Melanesian way on our own' and using 'God and custom' as the 'sail and steering-paddle of our canoe'. However, in reality, the courts and parliament have made few attempts to achieve any degree of inter-relationship between the common law and custom during the last twenty years. The present situation is of two systems - 'white man's courts' and custom administered by chiefs - operating almost entirely independently of each other. It is just possible that this case will mark the beginning of a change of the tide.

The case is the latest in the long saga of determining who has the right to the chiefly title of Erakor Village (Erakor), a village close to the capital city, Port Vila. The current chief, Chief Waya Tenene, had been chief from 1971. Recently, two other contenders for the chiefly title emerged. In an effort to stop the unrest caused by the challenge to his position, Chief Waya Tenene filed proceedings in the Supreme Court. The Supreme Court, together with the parties, formulated six general questions about what the custom of Erakor stated about whether a sitting chief can be deposed, what qualifications a contender for the chiefly title must have and associated procedural matters. The questions were then sent to the Island Court for consideration as 'the Island Court is the proper court of first instance in the formal system for matters of custom'. The Island Court is comprised of chiefs and other upstanding members of the community, and has jurisdiction over minor civil and criminal matters. In the event, the Island Court not only answered the six questions, but went beyond the matters referred to it and named the respondent as chief, and gave directions for his ordination.

The appellants appealed on the basis that they had only asked the Island Court to answer general questions and that they had not led any evidence, or had the opportunity to present argument, on the question of who the actual chief should be. The respondent argued that although it had not been asked to determine the chiefly title, the Island Court had the right to make the declaration as to who should be chief.

The Supreme Court, noting that '[t]he formal Court system is not always the best way of resolving these disputes', proposed that before giving its ruling, the parties should try to settle the issue 'in the nakamal' in light of the Island Court's answers. The nakamal is the traditional place where chiefs talk and resolve disputes. The meeting took place and was chaired and guided by the President of the Malvatumauri, the Paramount Council of Chiefs. At the meeting each party had a representative to talk for him, and other interested parties, such as some elders, pastors, and representatives of women's groups, also gave their opinion on the issues. However, the parties were unable to reach a consensus about who should be the chief, and the case came back before the Supreme Court. A record of the meeting, together with the recommendation of the President that there should be an election between the contestants who were of the chiefly bloodline, was also sent to the Supreme Court.

The Supreme Court then delivered its ruling, holding that the Island Court had gone too far in finding the respondent to be the true chief of Erakor, and quashing those parts of the decision that went beyond answering the six questions. It then noted that the options for resolving the dispute over chiefly title were:

• to return the matter to the Island Court to hear any remaining evidence on genealogy; or

• to follow the recommendations of the President of the Malvatumauri that the dispute be resolved by an election.

The appellants were content for there to be an election. However, the respondent argued that the Island Court had clearly found that, according to Erakor custom, the chief's first born son of the bloodline is entitled to take over the chief's duty.

The Court stated that it was faced with a dilemma. It noted the finding of the President of the Malvatumauri that Chief Waya Tenene had been elected to his present position, although he is also a man from the chiefly bloodline, and also observed that '[c]ustom and common law have many features in common. One of those features is their flexibility to meet change and development, yet still retain their inherent qualities and value.' It also noted that the idea of returning the matter to the Island Court was unattractive, given the length of the dispute so far. Finally, the Court ordered that an election be held, concluding that 'the custom ofErakor has recognised that where there are competing and irreconcilable claims to the chiefly title from those of the bloodline then an election can be held ... [This] does not devalue custom. It enhances custom. '

The case is interesting on both a procedural and a substantive level. Procedurally, it is the first reported decision where parties have been formally sent by the court to a 'nakamal' or 'kastom' meeting in the middle of a proceeding, and where the recommendations of such a meeting have so openly formed the basis of the court's decision. This innovative new procedure allows the courts and the chiefs to work together, tying the enforcement powers of the Court with the mediatory nature of nakamal meetings. Such new directions should be encouraged, as they take the courts a step closer towards what has hitherto been the elusive aim of developing a Melanesian jurisprudence.

The case also raises interesting questions about the relationship of the courts and custom. It demonstrates a clear desire by members of the community to use the courts as arbiters of custom-the community could have gone first to the Malvatumauri, but chose to file directly in the Supreme Court. However, it also raises difficult issues about how and whether custom should become part of the common law, and the question of the extent to which the courts should encroach into the traditional jurisdiction of the chiefly councils.

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^[*] Miranda Forsyth teaches law at the University of the South Pacific.

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©2003 Miranda Forsyth