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In Yap, customary justice trumps constitutional law

Updated: Apr 6, 2023


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By Joyce McClure



Tied to a large, square column on a wide veranda, Kamnanged, an alleged criminal, cries out as the silent assailant, his first cousin Ganangred, severely beats his bare body and head with a coconut frond stalk.


In all, seven stalks, devoid of leaflets, were used. When one split and frayed, it was replaced with another.


As the blows land, Kamnanged cries out in pain for his dead father who was from Amin. His mother, who is from the lower caste village of Michew, has no standing in the community and could do nothing.


Due to the severe injuries he sustained from the beating, Kamnanged was admitted to the ICU.


The caning, which took place in mid-February in the village of Amin in the northern municipality of Ma’ap, was captured in a one-minute video that made the rounds on social media.


The Federated States of Micronesia is a member of the United Nations and therefore subscribes to the international body’s International Bill of Human Rights as a national policy that includes freedom from torture.


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“The people of the 21st century cannot, and will not, tolerate aggressive and violent behavior,” FSM President David Panuelo said in his Sept. 22, 2022 speech before the 77th UN General Assembly, where he denounced the

the war in Ukraine.


Yet the act of caning as traditional punishment for wrongdoing is alive and well in Yap, where it is sanctioned under the rubric of “custom and tradition” that is ill-defined in the Yap state and FSM constitutions.


The FSM constitution contains an ambiguous judicial guidance clause that states: “Court decisions shall be consistent with this Constitution, Micronesian customs and traditions.”


Yap’s constitution similarly states: “Due recognition shall be given to traditions and customs in providing a system of law, and nothing in this Constitution shall be construed to limit or invalidate any recognized tradition or custom.”


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Submitted to the Yap State Legislature is an appeal from a U.S.-based Yapese citizen seeking a ban on caning as a form of punishment. Posted on Facebook, the letter has received several dozen “likes” as of this writing.


Dolores Yilibuw acknowledged that her appeal would be a tough call “because caning is a cultural method of dealing with alleged disrespectful individuals in the community.”


However, she pointed out that the concept is outdated.


“In my view, and the view of many other Yapese, caning is an aspect of our culture that is inhumane and does not seem to fit anymore as a form of punishment in the modern and international community, where Yap State has become a geopolitical player,” Yilibuw wrote in her letter to Speaker Nicholas Figirlaarwon and Vice Speaker Ted Rutun.


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By criminalizing corporal punishment, Yilibuw said law enforcement would be the responsibility of the authorities.


“There are a number of things that the court could resort to as restitution and punishment such as fines, community service, jail time,” she said. “An incarcerated person could also be offered mandatory training for behavioral reform. I believe strongly that there are more humane and non-violent ways to elicit behavioral reform.”


At the core of traditional punishment in Yap is the caste system. According to a 2003 field study by the Asian Development Bank, “Yapese society has a caste or rank system comprising seven levels that are based on the rank of the village. People are recognized and respected according to their village.”


The personal animosity of Ganangred toward his cousin is at the heart of the violent punishment he administered on behalf of the village.


Kamnanged is the child of an unacceptable inter-caste marriage. As such, he is considered more “dispensable” than if both parents were from the higher caste village of Amin. When his mother was widowed, she stayed in Amin with her children, which created conflict and hatred aimed at the family.


Kamnanged, who sells betelnut for a living, visited his father’s land where he collected the valuable product, but his paternal family denies his claim to the land.


After being banned from Amin, Kamnanged returned anyway and was fined for his “disrespect” toward the village but failed to pay.


There is no trial in customary Yap law. The men of the village order the sentence that can range from a formal apology to servitude, a fine of currency, shell money or stone money, animals or food, caning or even being killed.




Yap’s unique fourth branch of government consists of two traditional councils of chiefs who are charged with overseeing ill-defined matters of “custom and tradition.”


In his 2002 article for the Asian-Pacific Law & Policy Journal titled “Custom and Constitutionalism in the Federated States of Micronesia,” FSM’s first chief justice, Edward C. King, cited two separate cases of sexual assault in which, unlike cases that go to court, no “mature, detached, responsible or titled traditional leader” confirmed “the identity of the wrongdoer.” There was no prescribed “scope of the punishment in advance,” or steps taken “to guard against excessive enthusiasm on the part of the assailant.”


There are “serious questions of law and fact as to whether these punishments directly violated any of these constitutional protections,” King added.


“Customary punishment usually involves the greater community and goes to the root of the accused person’s existence in the community,” said Eliesa Tuiloma, Yap’s former attorney general and current legislative counsel for the Chuuk legislature.


“Meaning, it will involve the family members and relatives and their foundation – land and sea and animals. Loss of any of those are painful. An accused person cannot repeat any offense after traditional punishment is done," he added.


The video of the Yap caning is meant to serve as a deterrent, one of the most common rationales to prevent others from committing a crime.


“The people of the FSM understand that their traditional institutions and practices were developed to meet the needs of an earlier day,” wrote King. “They are now attempting to draw on constitutional principles and legal concepts developed elsewhere to assist them in joining together and taking their place as part of the world community.”


If a criminal case is taken to court, prior traditional punishment may be considered punishment enough and the case dismissed. If the case is not dismissed, it may be considered in tandem with the traditional punishment already undertaken, and the sentence deemed fulfilled or reduced accordingly.



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