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Hybrid Justice in Vanuatu Public Disclosure Authorized 22/2013 Public Disclosure Authorized Hybrid Justice in Vanuatu: The Island Courts Public Disclosure Authorized Michael Goddard and Leisande Otto Public Disclosure Authorized About the Justice and Development Working Paper Series The Justice and Development Working Paper Series serves as a platform for innovative thinking on justice and development that features work from World Bank and external authors. It is a product of the World Bank’s Justice Reform Practice Group, which generates knowledge and provides advice and assistance to Bank staff and Bank client countries on improving state and nonstate justice system institutions and mechanisms. Justice and Development disseminates the findings of works in progress to facilitate a more rapid exchange of ideas about development issues and justice reform. Editorial Policy The Justice and Development Working Paper Series publishes original research papers on law, justice, and development. Publication proposals may be made by Bank staff and external contributors. Manuscripts must be in English and no longer than 25–40 pages. They can be submitted at any time. All submitted papers will be acknowledged and carefully reviewed by the editorial committee. Criteria for selection include rigorous scholarship and topics about innovative approaches to law, justice, and development generally, particularly topics related to institutional reform of justice sector agencies justice in development, including community legal empowerment and access to justice programming criminal justice reform and administration justice systems in conflict-affected and fragile areas monitoring and evaluation of justice systems and projects. Inquiries: Telephone: +1 202 473 5941 Justice Reform Practice Group Email: [email protected] The Legal Vice Presidency Website: www.worldbank.org/lji The World Bank 1818 H Street NW Washington DC 20433, USA Disclaimer: This working paper is published to promote the World Bank’s work to the development community with the least possible delay. The manuscript of this paper therefore has not been prepared in accordance with the procedures appropriate to formally edited texts. Some sources cited in this paper may be information documents that are not readily available. The findings, interpretations and conclusions expressed herein are those of the author(s) and do not necessarily reflect the views of the International Bank for Reconstruction and Development, the World Bank and its affiliated organizations, or those of the executive directors of the World Bank or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations and other information shown on any map in this work do not imply any judgment on the part of the World Bank of the legal status of any territory or the endorsement or acceptance of such boundaries. © 2013 The International Bank for Reconstruction and Development/The World Bank Table of Contents Abstract .............................................................................................................................................. 1 1. Introduction ................................................................................................................................. 1 1.1. Methodology ....................................................................................................................................... 2 1.2. Pluralism, Kastom, and Chieftaincy ............................................................................................ 3 2. Community Strategies for Addressing Disputes .............................................................. 7 2.1. Local Perceptions of Disputes and Wrongdoing ................................................................... 7 2.2. Addressing Disputes and Wrongdoing ................................................................................... 10 2.3. Persistent Conflict between Local Dispute Management and the Introduced Legal System: ni-Vanuatu Views ................................................................................................................... 15 3. Island Courts .............................................................................................................................. 17 3.1. History of the Island Court System .......................................................................................... 17 3.2. Jurisdiction, Procedure, and Caseloads .................................................................................. 19 3.3. Budget, Operational Issues, and Training.............................................................................. 25 3.4. Law and Kastom in Island Courts ............................................................................................. 29 3.5. Gender Aspects of Island Courts ............................................................................................... 31 3.6. Villager Awareness and Use of Island Courts ...................................................................... 34 4. Concluding Observations ....................................................................................................... 36 Annex ................................................................................................................................................. 38 References ....................................................................................................................................... 43 i Hybrid Justice in Vanuatu: The Island Courts Michael Goddard and Leisande Otto1 Abstract Island Courts have been in operation in Vanuatu since 1984. Official documents have hitherto provided little information on their practical operations or utility, and our preliminary research in 2010 found that not much was known at the state governance level about their real circumstances. In 2011, we conducted fieldwork research on five islands—Efate, Santo, Malekula, Epi, and Tanna—to provide better information on the practical operations of island courts and their use by ni-Vanuatu. We found that although island courts have the potential to provide a valuable service to rural ni-Vanuatu, a number of problems must first be addressed. Their resources and support networks need to be improved and a regularity in these services guaranteed. Networking with other governance institutions (including nongovernmental organizations [NGOs]) at the local level in the provinces could be facilitated, as cooperation among these institutions would be beneficial to all of them. It would also be useful to encourage the island courts to strengthen the flexibility and creativity that they are, of necessity, already developing, particularly in relation to matters of “kastom.” 1. Introduction At the time of Vanuatu’s independence from British-French Condominium rule in 1980, it was clear that a new system of local courts was needed for the country’s widely dispersed population. These courts, according to the new Constitution, would have “jurisdiction over customary and other matters, and … provide for the role of chiefs in such courts.”2 Subsequent legislation in 1983 formally established the island courts system, and the new courts were given both criminal and civil jurisdiction. However, from the start, there were ambiguities in these new courts’ legal scope, as they were founded to include, with some caveats, “customary law” in their jurisdiction but without any precise clarification of what “customary law” actually means. This ambiguity was exacerbated by the unclear nature of the warrants that set up the courts, which, despite the constitutional provision, do not make explicitly clear that island courts do indeed have general customary law jurisdiction. In collaboration with the Vanuatu Supreme Court and Ministry of Justice, Jastis Blong Evriwan (JBE), part of the World Bank’s Justice for the Poor program, conducted research on Vanuatu’s island courts, including fieldwork on five islands: Efate, Santo, Malekula, Epi, and Tanna. The study looked at the linkages between island courts and customary dispute-settling procedures, and investigated community perspectives on local-level justice issues to contribute to the better understanding and improvement of justice delivery in Vanuatu. Findings from the research are intended to inform a review of the Government of Vanuatu’s 1 The authors would like to thank all interviewees who gave their time to answer our many questions, and Milena Stefanova, Brigitte Olul, and Sema Joel at Jastis Blong Evriwan for their support and assistance. We are also grateful to Deborah Isser and Rea Chiongson for comments on a draft of this report. 2 Constitution of the Republic of Vanuatu art 78(2) & 52. 1 Justice Sector Strategy 2009–2014, and provide an evidentiary base from which judgments can be made about the utility, potential, and developmental possibilities of the island courts in relation to the overall justice delivery system. Specifically, this report is based on a combination of fieldwork and historical/documentary research as part of an investigation of two linked socio-legal phenomena: (1) the practical operations of the island courts, including community awareness, understanding, and utilization of the courts, and (2) community-level perceptions of minor civil and criminal problems, and strategies for dealing with them. The linking aspect is the question of whether and how much communities draw island courts
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