CUSTOMARY LAW AND RECEIVED LAW IN THE FEDERATED STATES OF
MICRONESIA
ANKUSH
SHARMA[*]
INTRODUCTION
... the spirit of the law, born within schools and courts, spreads little by little beyond them; it infiltrates through society right down to the lowest ranks, till finally the whole people have contracted some of the ways and tastes of a magistrate.[1]
Trends in both the substantive law and legal culture of a
given society are regularly the subject of scrutiny and debate. Such an interest
in shifts of legal culture arises, as de Tocqueville points out above, because
of the inevitable impact they have on broader society. It is, in particular,
identifying the source of the initial impetus in the change of legal culture
that attracts much inquiry and contemplation.
In this respect, the role of
the judiciary and courts cannot be understated. When courts interpret and apply
law in given factual situations they fulfil an integral role in defining the
content of the law and giving it a broader social relevance. This is
particularly applicable to the judicial interpretation of constitutional
provisions, especially those provisions that confer rights and duties on
individuals and groups, such as a ‘Bill of Rights’.
In newer
societies, where the justiciable
law[2] is still developing and
therefore highly malleable, there must be a clear idea of how the community
wishes the law to be applied and therefore defined. This idea must be supported
by consistent practice on behalf of the institutions which make, interpret and
enforce the law. Without such a nexus, the law is at best a confusing mess and
at worst, its authority can be threatened or altogether usurped. History is
replete with instances where the expectations of society are not matched by the
realities imposed by its legal system. One only need take a cursory look at the
ubiquity of bribery and corruption in many Third World countries to accept such
a proposition.
In the South Pacific, the conflict between the idea of law
and its reality is a common feature of most, if not all, of its respective legal
landscapes. The need to secure a role for traditional customs and customary law
is frequently juxtaposed against the pressures of the outside world and its
written, Western-derived law. How to negotiate a path through these often
conflicting demands is a challenge of some importance and one relevant to the
entire region.
To undertake an examination of such issues within the South
Pacific would be a task of considerable size. That is why this paper has
limited itself to the Federated States of Micronesia, and more particularly, a
key decision of its Supreme Court.
CUSTOMARY BEATINGS IN MITIGATION OR AS A BREACH OF THE CONSTITUTION: TAMMED V FEDERATED STATES OF MICRONESIA[3]
Facts
The case was heard as a consolidated appeal in the
Supreme Court Appellate Division, from the Supreme Court Trial Division of two
separate and unrelated proceedings of sexual assault. Within days of both
assaults, the attackers had received severe beatings from members of their
respective victims’ family and village as customary punishment for their
actions.
In the case of Joseph Tammed, the sexual assault occurred against a
school student in March 1988. Ten days later, his victim’s relatives
forcibly took Tammed to the home of the victim’s father where he received
a severe beating. The court noted that the thrashing he received was so fierce
there was a possibility that he may not fully recover from some of his injuries.
In the later case of Raphael Tamangrow, the sexual assault occurred in July
1988 against a victim who was of a higher caste. In a scenario similar to that
of Tammed, six days after the assault had taken place Tamangrow was abducted and
beaten by villagers of the victim. His beating was so severe that he required
hospitalization.
There was general agreement between all parties that the
beatings received by both appellants were broadly consistent with established
custom and tradition, which consequently led the Court to treat such practices
as factual, rather than as questions of law. This, however, must be qualified
with the recognition that there remained some contention that the treatment
received by Tamangrow did in fact violate custom on a number of grounds.
However, the Court declined to consider these claims in any detail given the
stated position of the Yap attorney general to accept that the punishment had
been in accordance with Yapese custom. Significantly, the Yap attorney general
chose not to prosecute those individuals who participated in the customary
beatings of the appellants.[4]
Nature of Cause of Action
As indicated above, the action was a consolidated appeal against the
sentencing decision of the Supreme Court Trial Division. Both appellants
claimed that the trial court erred in not giving mitigating effect to the
beatings each had received when it handed down their respective sentences. It
can be inferred from the Supreme Court’s opinion that the appeal for
mitigation was argued on the grounds of both the customary and non-customary
nature of the beatings.
Outcome
The Court ordered that upon remand, the beatings should be held to have
some mitigating effect, but without having any regard to their customary
implications or their compatibility with the criminal law or civil rights.
Preliminary Legal Principles
As a preliminary to the Court’s substantive decision, it was held
that the Supreme Court Appellate Division was to apply the same standards in
sentencing appeals that it generally applied in criminal appeals. It
distinguished the more restrictive US position on the grounds of its
‘unique historical considerations’ and the court’s task to
create a system of jurisprudence relevant to the FSM.
The Court had also
found, as a preliminary to the determinations below, that as the relevant
Micronesian criminal code
provisions[5] offered a range of
alternative sentences, it implicitly granted a sentencing court discretion to
determine the appropriate sentence for a particular defendant. As such, it
impliedly prescribed the use of ‘individualised sentencing’ in FSM
courts. This principle operates to place the focus ‘at all times’
on the defendant, his/her ‘background and potential and the nature of the
offence.’ Its objective is to produce ‘a just sentence tailored to
respond to the defendant, his background and the nature of his
crime.’
The Court’s core decision can essentially be reduced to two
‘dimensions.’[6]
The
first dimension obliges a court, when determining the sentence to be imposed, to
have regard to punishments, such as the beatings inflicted upon the appellants,
irrespective of their customary implications. To not do so is contrary to the
implied mandate of individualised sentencing.
In the second dimension,
where a beating or other such punishment possesses customary implications, a
court that is determining a sentence must consider giving additional mitigating
effect to those implications in handing down its decision. Failure to do so
would violate implicit statutory
requirements[7] enacted pursuant to
the Constitution[8] as well as the
Judicial Guidance Clause.[9] This
dimension only comes into operation if specifically requested by the
defendant.
Where a state attorney general or relevant government official fails to
act against a beating or other punishment because of its customary nature, such
practices have acquired the character of an official state action. This is
because the customary punishment has acted in substitution of the proper
judicial functions required under FSM law. In such circumstances, it is
imperative that the customary practice (and its practitioners) is judged against
the same legal standards that would be applicable to state officials as if they
themselves had directly carried out the punishment. More specifically, the
exercise of such practices and punishments must comply with the due process
provisions under the Declaration of
Rights,[10] as required by the
Judicial Guidance Clause. Failure to do so renders those actions unlawful and
incapable of any mitigating effect under the ‘second dimension.’
ANALYSING THE COURT’S DECISION
Purpose and Effect of
the Decision: Two Views
A brief analysis of the second dimension of the Court’s primary ruling extracts two antagonistic understandings of the role and authority of custom in the sentencing process within the FSM. It is arguable that these opposing interpretations are characteristic of both extremes of the relationship between local custom and received law throughout most South Pacific nation-states.
A. The Negative View: Rendering Custom Subordinate and Powerless
To fully appreciate the reasons behind the decision in Tammed, it
is first necessary to study the record of the presiding judge in that case,
Chief Justice Edward C. King.[11]
Many of his relevant past decisions reveal a general pattern of judicial
decision-making that afforded custom a less than dominant role. It is evident
that he generally regarded principles of US common law as more persuasive than
Micronesian customs.[12] His stated
desire to create a Micronesian jurisprudence was seemingly restricted to the
fashioning of selective common law jurisprudence, largely devoid of any
substantial customary law influence.
Chief Justice King was a product of
Indiana University Law School from which he graduated in
1964.[13] He was joined on the bench
in this case by two ‘designated justices’. One of them was an
expatriate Australian, C. Guy Powles and the other was a local judge, John B.
Tharngan, who possessed limited formal legal
training.[14] The decision was,
however, written by and ultimately up to Chief Justice King.
It seems
apparent that Chief Justice King was inclined, like many judges in the South
Pacific, to err on the side of caution when deciding highly contentious and
landmark cases. Judges, whether expatriates or locals, have deeply ingrained
habits that are a result of years of legal education and practice. Not
surprisingly, it then becomes difficult for members of the judiciary to
subsequently release themselves from those inclinations born out of their legal
training when they are faced with a choice between the ‘legal’ route
or a local, customary one. This proclivity causes considerable difficulties for
any effort to develop jurisprudence relevant to local circumstances. Judges are
after all, as Blackstone puts it, ‘the depositaries of the laws; the
living oracles’.[15]
In
examining the nature of the decision’s impact on the role and status of
custom in the FSM, the preceding background is useful in pinpointing how the
decision in Tammed, which accepts a role for custom in mitigation, does
in fact strip custom of its autonomous legal force. To read the decision and
consider the above background, it is apparent that Chief Justice King
‘wanted retaliatory beatings to
stop.’[16] He achieved this by
invoking the imported principles of ‘due process’ and ‘state
action’, which compelled the compliance of customary punishment with the
Declaration of Rights.[17]
In
such a reading of Tammed it becomes apparent that the exercise of
traditional methods of punishment has now become subordinately bound to
principles of law directly transplanted from a foreign culture. It was quite
the judicial sleight of hand that the Court utilised the Judicial Guidance
Clause – a clause inserted to ensure the operation of custom in
courts[18] – to effectively
make custom a secondary source of law.
It seems that in both purpose and
effect, Chief Justice King had sought to demand such stringent requirements for
the lawful exercise of custom as to make its practice within the societal
context of the FSM exceedingly difficult to achieve. Native Micronesians see
the legitimacy of their customary practices as derived from the consensual
authority they vest in their
communities.[19] They do not see
state actions and law as their actions or
law.[20] Thus, by infusing the act
of customary punishment with state authority and character, the decision in
Tammed has caused such practices to no longer embody its original
customary quality. It then logically goes that the court is no longer
considering customary law as traditionally understood, for its very decision to
impute due process requirements has fundamentally altered the character of the
practice such that it is no longer custom.
From this perspective,
Tammed has done any plan to create an original Micronesian jurisprudence
a substantial disservice.
B. The Positive View: Ensuring the Procedural Integrity of Customary Practices
To extract an alternative, beneficial view of Tammed, emphasis
must be placed on the Court’s proviso that for additional mitigation to
occur in light of the customary nature of punishment, minimum evidential
requirements must be attained.[21]
That is, it must be shown that the beatings were carried out in compliance with
customary requirements.
We couple the above stipulation of the Court with
a view that holds customary law as ‘embedded in a matrix of social
relationships which alone give [it its]
meaning.’[22] Accordingly,
the substance of custom cannot be disconnected from the decision-making process
in which the custom is used.[23]
Put simply, ‘the ways and techniques by which [customary societies] arrive
at a settlement that contributes towards social harmony, are no less part of the
customary law than abstract rules of
substance.’[24] As procedure
is so central to customary law, ensuring the integrity of such processes
inevitably secures the role of and respect for customary modes of punishment.
It is arguable that Tammed ensures such integrity is maintained if
we interpret the Court’s decision as emphasising compliance with the
processes inherent in customary law. This allows customary practices and
punishments to be accepted by the court as legitimate.
But there are
problems with this view. Primarily, it is questionable whether due process
principles are the best mechanism for ensuring the procedural integrity of
customary practices. Due process notions are inordinately and particularly
Western in their content. They are founded on the notion of the rule of law,
which detests ‘proceedings full of blind revenge and abhorrent to the
spirit of the law.’[25] It
also affords minimum guarantees of a ‘fair and public hearing by a
competent, independent and impartial
tribunal.’[26] Clearly, such
a guarantee is hostile to the particular facts of Tammed and the fact
that dispute resolution in South Pacific societies ‘has often to be seen
within the context of political
relationships.’[27]
Independence and impartiality in such an environment is therefore largely
unattainable. Nevertheless, in this respect, Tammed does operate to
safeguard the rights of the many ‘impecunious, untitled
‘common’ Micronesians’ who are apprehensive of any wholesale
reliance on the traditional
system.[28]
However, it is
conversely relevant to acknowledge that the Court in Tammed left open the
precise content of the ‘due process’ requirements, such that it
remains possible that local understandings may act as the source of their
particular substance. It seems that the Court in the resentencing hearing
impliedly accepted this latter view.
C. Resentencing Hearing
On remand to the Supreme Court of Micronesia’s Trial Division, the
Court reduced the sentences of each defendant by six months in having regard to
the non-customary nature of the
beatings.[29]
On whether
additional mitigating effect could be given to reflect the customary nature of
the beatings, the Court found that on the evidence the beatings were not
customary.
In obiter dicta, the Court added that even if the
beatings were found to be customary, mitigating effect could not be given, for
an additional finding that the punishment was consistent with the Constitution
was not able to be made. The Court identified the failure to demonstrate that a
‘responsible’ leader had identified the wrongdoer, prescribed the
punishment’s scope or supervised the beatings as key reasons for so
ruling.
Although the result supports the ‘negative view’
elucidated above, the Court did leave some scope for the application of the
‘positive view.’ It did so by hinting that the procedural
requirements for due process were those prescribed not by US jurisprudence, but
rather by the customary practice itself. Should the defendants have proved the
beatings were customary and then demonstrated the role of a
‘responsible’ leader in the beatings (as required by the custom) the
Court suggested that it would have granted additional mitigating effect.
D. Sentencing Laws in Other South Pacific Jurisdictions
The particular operation and relevance of customary punishment to
sentencing decisions is a well-recorded area of the law in the South Pacific. In
Samoa, for instance, it operates through section 8 of the Village Fono Act
1990.[30]
In Vanuatu, the
authoritative case of Waiwo v
Waiwo[31] detailed the
court’s practice of taking into account any relevant customary punishment
as a mitigating factor in
sentencing.[32] However, on appeal,
the Court of Appeal handed down a conflicting decision to that offered at
trial.[33]
In Fiji, courts have
also given due and substantial recognition to customary sanctions when
adjudicating on the imposition of a
sentence.[34]
In Papua New
Guinea, section 4(e) of the Customs Recognition Act
1963[35] requires a court to
consider any customary punishment in determining the penalty to be imposed.
There have been numerous cases heard on this provision,
[36] including one pertaining to its
constitutionality.[37] It is,
however, worthy to note the effect of the Underlying Law Act 2000, which
evidently impliedly repeals provisions of the Customs Recognition
Act.
As far as this writer is aware, issues of ‘due process’
have not arisen in the above jurisdictions. It may be relevant to suggest that
the reason for the appearance of such legal requirements in the FSM can be
partly attributed to the prominent role played by American law there.
Judicial decisions that, despite their good intentions, curtail or
inhibit the operation of customary law are unfortunately common in the South
Pacific.[38] Such decisions may be
justifiably attributed to the cautious and reflexive approaches of members of
the South Pacific judiciary, who prefer the safety of the familiar over the
uncertainty of the unknown. However, that is perhaps not the entire story. Any
apprehension on the part of a judge to apply customary law in lieu of received
law must be viewed in light of the fundamental incompatibilities of the two
systems of law.
The decision in Tammed raises, albeit indirectly, a
number of significant issues that relate to the problems of having customary and
received law work in tandem in the South Pacific. The received law, being
largely derived from English (and in the FSM’s case, American) common law
is characterised by certainty and predictability, having been forged through the
perpetual judicial refinement of precedent. This state of affairs manifests
itself in mostly concrete terms, whether as acts of parliament or case law. It
is from such sure sources, that an impartial judge will apply what is
relevant.
Such processes stand in stark contrast to the common features of
customary law in the South Pacific. The precise content of the practice,
principle or story that comprises the customary law is frequently uncertain,
contentious and perhaps even ambiguous. It is most often oral and can therefore
be subject to considerable scrutiny and challenge by the received law. Further,
and as Tammed demonstrates, the ‘judge’ in customary law is
often not the impartial adjudicator that one finds in and is expected by the
received law. He or she is rather, well entwined in the dispute by virtue his
or her social or political connections with the parties. This is a point that
was explored above.
Essentially, the result of the conflicting fundamentals
of the two systems is an inevitable conflict. Whereas one expects certainty,
impartiality and universality, the other demands subjectivity and an adherence
to timeless local traditions however they may be interpreted and applied.
Tammed demonstrates this discord by highlighting the procedural demands
of received law (through the Bill of Rights) against those of customary law
(i.e. the customary beatings).
On the upside, the case may also
demonstrate a common ground between customary law and received law. This was
discussed above in respect of the strong preoccupation with procedure that
characterises received law. It was similarly noted that procedure occupies an
important role in customary law. Accordingly, the received law may be able to
function so as to ‘sure up’ the customary law. This could be
achieved by letting the received law ensure that customary law is applied in
accordance with its own procedural requirements, rather than as something else
merely dressed in customary clothes.
The purpose of this paper has not been to engage in any in-depth analysis
of the sentencing laws in the FSM or elsewhere in the South Pacific. Rather, it
has been, like much of the literature on law in the South Pacific, to examine
the relationship between the received law and customary law in that region.
In doing so, it was originally posited that the courts, and judges in
particular, are of the view that applying the common law of the West to South
Pacific societies to ‘regulate’ or even modernise the customary law
is acceptable and even beneficial.
In contrast, there was expressed
the view that is predicated on the notion that the received law is infused with
the ideational by-products of its own historical development, which are distinct
and often antagonistic to that of South Pacific communities. The contrast
between customary forms of dispute resolution and American notions of due
process raised in Tammed are clear indicators of this difference.
Received law can be destructive of the traditional role of law in
South Pacific societies because of their fundamental differences discussed
above. These differences are widely acknowledged and often lead to
questions about which ‘law’ should take precedence when they come
into conflict. What is often not discussed enough is how they may reinforce one
another. Tammed has suggested a possible role for the received law in
securing the procedural integrity of customary law. Whether this will or can
happen, it is submitted, is invariably up to the ‘living oracles’
– the judges.
It might be apt at this junction, to once more quote de
Tocqueville:
An American judge, armed with the right to declare laws unconstitutional, is constantly intervening in political affairs. He cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and remain in harmony with themselves.[39]
Well after Tammed had been decided, Justice King indicated that he
had thought it more appropriate that the significant issues raised there were
better resolved in dialogue between traditional and governmental
leaders.[40] This is an admirable
view, but one that it seems is difficult to support when reviewing the effect of
his decision.
One commentator has offered the view that ‘customary
law and state law are placed at either end of a divide with no bridge
between.’[41] There is some,
albeit limited, hope that Tammed was and is the first step toward
building the much needed bridge between the two ‘laws’ in the
FSM.
[*] BA (Hons), LLB (Hons)
(Queensland), Trainee Solicitor, Asahi Lawyers, Brisbane,
Australia.
[1] Alexis de
Tocqueville (translated by George Lawrence), Democracy in America
(Fontana Press edition, 1994),
270.
[2] Justiciable law is that
type of law where “a plaintiff can obtain a favourable judgment by filing
a suit in a court, following proper procedures, and proving his claim by a
preponderance of acceptable evidence.” See Dan Fenno Henderson, ‘The
Japanese Law in English: Some Thoughts on Scope and Method’ (1983) 16
Vanderbilt Journal of Transnational Law,
609.
[3] Tammed v
Federated States of Micronesia [1990] FMSC 13; 4 FSM Intrm. 266 (App.
1990).
[4] The Yap attorney general
prosecuted the appellants despite their customary punishments because the crime
of sexual assault at the time fell under national jurisdiction. This has since
changed.
[5] See 11 F.S.M.C. §
1202 (formerly § 1002).
[6]
Note that the Court itself did not use such
classifications.
[7] 11 F.S.M.C.
§ 1003.
[8] Article V §
2.
[9] FSM Constitution Art XI
§ 11.
[10] Art IV of the FSM
Constitution.
[11] He has since
1992 been replaced with a Micronesian, Andon
Amaraich.
[12] See for example
FSM v Ruben 1 FSM Intrm. 34 (Truk 1981); Alaphonso v FSM 1 FSM
Intrm 209 (App. 1982). For exceptions, see for example Semens v Continental
Air Lines, Inc. 2 FSM Intrm. 131 (Pon. 1985); Panuelo v Pohnpei 2 FSM
Intrm 150 (Pon 1986) (custom was applied through
analogy).
[13] Brian Z. Tamanaha,
‘Looking at Micronesia for Insights About the Nature of Law and Legal
Thinking’ (1993) 41 The American Journal of Comparative Law
29.
[14] Brian Z. Tamanaha, above
n 13, 11.
[15] William
Blackstone, Commentaries (1803), Volume 1, Introduction, Section III at
[69].
[16] Brian Z. Tamanaha,
above n 13, 45.
[17] FSM
Constitution, Article IV, § 3; § 5; § 6; § 8.
[18] ‘The intent and
purpose of [the Judicial Guidance Clause] is that future Micronesian courts base
their decisions not on what has been done in the past but on a new basis which
will allow the consideration of the pertinent aspects of Micronesian society and
culture.’ Report of the Committee on General Provisions, Standing
Committee Report No. 34 (1975) 2 Journal of the Micronesian Constitutional
Convention of 1975 822 available at
<http://www.vanuatu.usp.ac.fj/library/Paclaw/FSM/Micronesian%20Constitutional%20Convention%20-1975-Vol-2.pdf>
at 06 July 2006.
[19] Brian Z.
Tamanaha, above n 13, 46.
[20]
Brian Z. Tamanaha, above n 13,
46.
[21] The Court cited the
Australian decision of Mamarika v Regina (1928) 42 A.L.R. 94 where the
practice of spearing was denied any additional mitigating effect as it had not
been carried out in compliance with customary law.
[22] A. L. Epstein,
‘Procedure in the study of customary law’ (1970) 1(1) Melanesian
Law Journal 52.
[23] Keebet
von Benda-Beckmann, ‘The use of folk law in West Sumatran State
Courts’, in Antony Allott and Gordon R. Woodman, eds., People’s
Law and State Law – The Bellagio Papers (1985)
87.
[24] Obeid Hag Ali,
“The Conversion of Customary Law to Written Law” in Alison D.
Renteln and Alan Dundes, eds., Folk Law (1995)
358-9.
[25] Wilfried Bottke,
‘‘Rule of Law’ or ‘Due Process’ as a Common
Feature of Criminal Process in Western Democratic Societies’ (1989-90) 51
University of Pittsburgh Law Review
439.
[26] Wilfried Bottke, above
n 25, 440.
[27] A. L. Epstein,
above n 22, 55.
[28] Edward C.
King, ‘Custom and Constitutionalism in the Federated States of
Micronesia’ (2002) 3(2) Asian-Pacific Law & Policy Journal
260.
[29] Federated States of
Micronesia v Tammed [1990] FMSC 18; 5 FSM Intrm. 426 (Yap 1990) Benson
J
[30] ‘Where punishment
has been imposed by a Village Fono in respect of village misconduct by any
person and that person is convicted by a Court of a crime or offence in respect
of the same matter the Court shall take into account in mitigation of sentence
the punishment imposed by that village Fono.’ See the case of
Attorney-General v Ioane [1994] WSCA 20 for the provision’s
application.
[31] [1996] VUSMC
1.
[32] Above n 31, [47].
[33] Banga v Waiwo [1996] VUSC 5; Vanuatu Supreme Court Appeal Case 1/1996.
[34] Regina v Lati [1982]
FJSC 5.
[35] Formerly the
Native Customs (Recognition) Act 1963.
[36] Acting Public Prosecutor v Aumane [1980] PNGLR 510; The State v Emp Mek [1993] PNGLR 330; The State v Osborn Kwayawako [1988] PNGLR 174.
[37] State v Joseph Kule
[1991] PNGLR 404 (where the court denied the operation of the provision partly
in light of the fact the custom offended the Constitutional prohibition on
slavery).
[38] See, for instance,
a series of cases in Samoa concerning the constitutionality of customary
practice of banishment: Italia Taamale v The Attorney-General (Western
Samoa) (1995) C.A. 2/95B; Lafaialii v Attorney-General [2003] WSSC 8
(24th April, 2003); Leituala v Mauga [2004] WSSC 9
(13th August
2004).
[39] Alexis de
Tocqueville, above n 1, 269.
[40]
Edward C. King, above n 28,
280.
[41] Brian Z. Tamanaha,
‘A Proposal for the Development of a System of Indigenous Jurisprudence in
the Federated States of Micronesia’ (1989-90) 13 Hastings International
and Comparative Law Review 106.