Customary law and introduced, or adopted, law come from different premises and purposes but, some believe, are supplementary and complementary rather than contradictory.
Attorney Eliesa Tuiloma, legislative counsel to the Chuuk State Legislature, told the Pacific Island Times, “Many countries attempt to emphasize the inconsistencies of traditional customary laws and the written laws. The two systems of law are more similar than in conflict with one another. Their mutual purpose is to ensure the maintenance of peace and security within the general population. Nothing more and nothing less.”
The U.S. Navy introduced an American-style court system to Micronesia during World War II, according to James R. Arnett II in his 1985 article published in UCLA Pacific Basin Law Journal. Prior to that, “although the Micronesians had customary laws and dispute resolution mechanisms under the supervision of traditional leaders, they had never developed a formal court system or a codified legal system.” The judiciary powers exerted by the chiefs over minor offenses “were continued at the discretion of the military government” at that time.
In 1978, when Yap, Pohnpei, Kosrae and Chuuk came together to begin forming a sovereign nation, federal and state constitutions were created based on the U.S. constitution due to the lack of a realistic alternative. However, the U.S. saw early on the importance of the customs and customary law which the Micronesians had developed over centuries that affected every aspect of their lives.
Pacific island societies are centered on a system of communal care and accountability, notes an article published by the General Commission on Religion and Race of the United Methodist Church and titled “10 Honorable Traits of Pacific Islander Culture.” “Collective and social cooperation are essential for living in remote locations that were often geographically cut off from the rest of the world… Outside the purview of globalization and capitalism, these societies focus on means that will sustain everyone, and discourage self-sufficiency and independence.”
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Maintaining peace and harmony is vital. The individual gives loyalty to their clan, lineage, or family to the exclusion of others. This inherent nature of Micronesian society conflicted with the American concept of impartial administration of justice. The chiefs used their power to gain advantage in the adjudicatory process when their interests were at stake. Witnesses refused to testify, and evidence, records or motion and pleadings, and court records disappeared and frustrated the adjudicatory process, wrote Arnett.
However, today, citizens of the Pacific island nations are far less isolated due to internet access, better education, studying and living abroad, and other forms of exposure to the world beyond the reef. Nations that have joined international institutions like the United Nations suddenly find themselves under the microscope of influential world bodies, governmental organizations like the U.S. Department of State, and human rights groups like Transparency International.
A recent caning in Yap is an example of the effect of this outside scrutiny. A video of the violent punishment that took place in a secluded village made the rounds within hours on Facebook messenger. Due to the unexpected spotlight, what happened in the village did not stay in the village.
When made aware of customary retribution against perceived wrongdoers in their home communities, many who live abroad express outrage at the lack of law enforcement and court attention toward this type of corporal punishment that is illegal in other countries.
The intersection of customary and introduced law has resulted in court decisions that may take into consideration customary punishment that took place prior to the court appearance when deciding sentencing, or even whether to hear the case in court at all. One court decision in FSM noted: “Custom, including customary apology and reconciliation, is to be considered during the sentencing of a criminal prosecution, but when there was no customary reconciliation reached among the defendant and the victims, there is no consideration of this factor for sentencing.”
Customary laws are deeply rooted in a society. The objective is forgiveness to prevent future conflict so the offenders can continue to live in harmony in the community. The outcomes of customary law take many forms since the parameters are often vague, while constitutional law relies on a documented, prescribed code of law and references recorded precedent.
“Customs and tradition” are referred to in both the national and state constitutions in FSM. But the references are ill-defined, as is the role of the two traditional councils that form the fourth branch of Yap’s government. Yap’s constitution asserts that the councils “shall perform functions which concern tradition and custom.” It also declares, “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.”
Many Yapese citizens have told me privately that the councils should be disbanded and violent punishments like caning made illegal.
The FSM constitution states, “court decisions shall be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia,” and “includes a Traditional Rights Article designed to prevent unnecessary erosion of the power and importance of tradition and traditional leaders,” notes Edward C. King, FSM’s first Chief Justice, in his article, “Custom and Constitutionalism in the Federated States of Micronesia.”
Those “protective provisions” and “certain tensions” inherent in the “goals of a new nation and in the provisions themselves,” surfaced during the adoption of the constitution and have continued to be addressed in national and state court cases.
In two pivotal cases of sexual assault that took place in Yap in 1988, the defendants asked the court to reduce their sentences based on the customary beatings they had received. But the court responded that the beatings would not be taken into consideration because to do so might encourage others “to take the law into their own hands.”
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The punishment administered in the community, King noted, was carried out with no steps taken in advance to “carefully” confirm the “identity of the wrongdoer, or the propriety of the customary punishment, or supervised the beatings or took steps of any kind to guard against excessive enthusiasm on the part of the attackers.”
“[I]t was obvious that these were not mere ritualistic ceremonies but instead were harsh and dangerous beatings,” King said. The government’s counsel, a member of the Yap State Attorney General’s office that was then led by Cyprian Manmaw, who is now chief justice of the Yap Supreme Court, stated that if the crimes had been violations of state rather than national law, “Yap would have declined to prosecute the cases because the customary punishments had taken place.”
Manmaw was an opponent of national jurisdiction over major crimes, believing that the criminal justice system for each state “should be designed and controlled by the people of that state.”
Under this policy, Yap’s government would only act when customary punishment had not been carried out. Constitutional and statutory protections of civil rights would be meaningless. The national Supreme Court under King’s leadership “feared the policy of the Yap attorney general’s office was tantamount to abandonment of the Declaration of Rights.”
In the end, the court was unable to find a solution to the many social and governmental issues that arose during the two sexual assault cases, a conundrum that continues to this day.
After a long career as a senior marketing executive, Joyce McClure traded the island of Manhattan for the island Yap as a Peace Corps response volunteer in 2016. She is now a freelance writer and photographer living in Guam. Send feedback to joycemcc62@yahoo.com
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