9. Challenges for Pacific legal systems

• Challenges


  • State ‘formal’ legal system based on common law (colonial rules) is at odds with customary legal systems practiced for thousands of years in the Pacific islands
  • State legal systems work well in the centers (capitals) but cannot be equally well enforced in the periphery (outer islands)
  • Awareness of rights and obligations (legal literacy) is still low in the Pacific • Bribes and corruption within the legal system/executive prevail
  • Lack of ‘ownership’ and distrust in the fairness of the state legal system prevails
• Modern/ foreign VS custom/ local

  • ‘The Vanuatu state legal system finds itself in a dichotomous position concerning “introduced” law and Indigenous practices, beliefs and expectations.’ - Benedicta Rousseau
  • The ‘problem is that many ni-Vanuatu see the court system as being a foreign system. The general distrust and lack of ownership of the system are illustrated by the fact that many people refer to the courts as ‘kot blong waetman’ (white man’s court).’
• Why are there many challenges to Pacific legal systems?

  • Challenges are largely arising because of tensions between the legal, political, and social systems introduced by various colonial powers and the legal, political, and social systems of indigenous cultures.
  • state law is often seen as a colonial legacy and lacks “ownership” by the people
  • Modern/foreign vs custom/local

  However, introduced systems are ultimately needed so that Pacific Island nations can ‘progress’ and participate in the global economy.
• Examples of tensions:

  • between traditional ideas and Christian teaching, as to what is right and wrong, or fair, or just.
  • between group-based and individual-oriented societies as to notions of responsibility.
  • between unwritten customs and written statutes – as to both the way they are expressed and the content of what they say.
  • between the authority of local chiefs, elders, and councils, and that of the courts and agencies of central (and regional) governments, often called upon to deal with the same matter.
• • between courts dealing once-and-for-all with the particular act or offense in isolation, and traditional processes which address the wider context of disputes, often without attempting to achieve finality.
  • between customary manners and methods of communicating, and formal court
  • between local attitudes to statements which are accepted as proof of facts, and strict rules of evidence such as the exclusion of hearsay and the burden and standard of proof
  • between the different backgrounds and training of personnel, such as adjudicators and lawyers, within the same jurisdiction
• Independence in reality


  Plenty of inappropriate/ unworkable laws

  • Do not fit the cultural context
  • Being passed by bodies that are not respected
  • No realistic means of enforcement
  • Misguided belief that if there is a problem, passing a law will fix it
  • Things look good on paper – and maybe get donor/NGO/media approval – but are, in practice, useless
• Independence in practice?

  • Independence is "a matter of international law, rather than empirical reality. Post-colonial international relationships... [are determined by] the enduring realities of smallness, remoteness, limited resources and the longstanding interests of larger countries."
• External influences:

  • Aid donors
  • Multi-lateral lending agencies
  • UN agencies
  • Pacific Forum
• Powles' minimum standards


  • a tool for structured brainstorming that helps to look at issues holistically.
  • the legal system and individual laws within it should be responsive, understood, fair, effective, appropriate, and available.
  • standards overlap/ interrelate
• IMPORTANT!


  Powles links standards to particular aspects of the legal system

  • law should be responsive and understood.
  • dispute resolution should be fair and effective, and
  • legal services should be appropriate and available.

  When using the standards as a framework for analyzing weaknesses in the law YOU DO NOT HAVE TO link standards to particular aspects

  • ALL aspects of the legal system and laws within it must be responsive, understood, fair, effective, appropriate, and available.