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Ken Brown[*]
A year ago in this journal I looked at the myriad problems involved in granting recognition to customary law in any future constitution for the Northern Territory.[1] These problems are not limited to the legal complexities. There is political hostility to any formal acknowledgement of customary law from a wide constituency in the Territory. The same edition of the journal carried a thought provoking contribution from Stephen Gray discussing proposed tentative moves towards permitting Indigenous methods of dispute resolution and policing in which he looked at several agencies involved in developing some meagre measure of autonomy for Indigenous law administration.[2]
The theoretical recognition of customary law is only a first symbolic step to any realistic application of home-grown justice. Any debate so far has generally proceeded on the basis that even if notional acknowledgment is extended to custom as a source of law the formal State courts will apply the law.[3] Any recognition that pays lip service to custom and on offer as a sop or olive branch to Indigenous interests is problematic unless it extends to allowing customary law to be administered and applied by Indigenous institutions. Previous experiments in setting up Indigenous adjudication bodies have been sporadic, makeshift and piecemeal. It will be argued that recognition of Indigenous law without recognition of relevant Indigenous institutions is fatally flawed in theory and gives rise to practical problems for applying custom.
The right of a people to practice their culture in their own homeland is fundamental. Article 27 of the International Covenant on Civil and Political Rights[4] provides:
In those states in which ethnic, religious or linguistic minorities exist, persons belonging to those minorities shall not be denied the right, in community with other members of the group, to enjoy their own culture, to profess and practice their own religions, or to use their own language.
This right logically extends to the recognition of the laws of that culture. Aboriginal people presently face a triple bind. First, any recognition of their custom in the Northern Territory is, at best, faltering and begrudgingly bestowed. Second, ‘alien’ courts are charged with its dispensation and in the eyes of these tribunals, custom, like a ‘foreign’ law, is a question of fact requiring proof before it can be even considered. Finally, as Helena Blundell graphically describes elsewhere in this issue of the Alternative Law Journal, Indigenous parties are denied access to a free interpreter service necessary to communicate with courts. Any claim that customary law can or should be administered by State courts is arguably founded on a footing that is as secure as quicksand. The claim is that the common law is just that: common — and therefore — fair to all. Consequently the common law governs those such as Indigenous Australians whose culture may be founded on principles unknown to the common law’s original culture.
However, the reverse proposition is not accepted and customary law, even if a recognised source of law, never applies to someone whose personal law is not customary. Furthermore, the official State courts are staffed by people steeped in the mystiques of the common law who are likely to invoke the common law in disputes where choice of laws problems arise.
In summary, the mantra of the dominant system is: our law will likely govern and dictate to you but yours can never apply to us.
The intrinsic character of the common law compounds the disadvantage placed on those claiming adherence to custom. As Chanock perceptively observed: ‘Law was the cutting edge of colonialism, an instrument of the power of an alien state and part of the process of coercion’.[5] Powles has strikingly likened the common law to the ‘Western juggernaut’.[6] While the common law often professes to be tolerant of and willing to learn from other legal regimes, in reality it has been opportunistic in its tactics and absorbed only those facets and aspects of other laws or legal systems that suit its purpose. Crucially any forbearance does not stretch to permitting another system of law to operate alongside it as an equal.
This Anglo-centric stance flows from a deeply rooted faith in the superiority of the common law as a fountainhead of jurisprudential wisdom and the progenitor of the blessed principle of the rule of law. Customary regimes were perceived as being unfamiliar with this hallowed precept and consequently dismissed as inferior. A radical reason for the abiding reluctance to extend genuine recognition to custom stems from the anti-pluralist, jealous character of the common law.
The common law in England did not develop, as is sometimes professed, by a benign process of distilling and adopting the best of quaint and bucolic customs, but by actually suppressing and stamping out local practices.[7] The intent was to forge a central unified legal monolith and smother the diversity of community customs. This autocratic ‘one size fits all’ approach to plurality is much in evidence in some contemporary Australian attitudes to customary law. A common catch cry in the Territory when it is tentatively broached that perhaps custom should be recognised is ‘why should they — that is, Aboriginals — be advantaged by having separate laws exclusively reserved for them’. The assumption that ‘recognition’ discriminates against white Australians in disingenuous but nevertheless well entrenched in the white psyche. Nowhere was it more evident than in the torrent of splenetic outrage that poured out from Chief Minister Stone and his coterie of acolytes to attack the acceptance of a custom-based defence by Territory magistrate Gillies in the case of a prominent Yolgnu in Colin Godsell v Galarrwuy Yunupingu.[8]
Mainstream Australia clings steadfastly to the ideology ‘one law (the common law) for all’. It is significant that in Australia’s principle colonial enterprise, Papua New Guinea, a system of Indigenous local courts was not set up until the denouement of the adventure, with the enactment in 1973 of the Village Courts Act. These courts only began to operate at the twilight of the Australian administration.
This might be contrasted with British colonial policy. This promoted the launch in the 1920s of local Indigenous courts in Africa and regionally in the Solomon Islands Protectorate in 1942. One reason guiding its implementation rested on the philosophy of indirect rule. One facet of this promoted local institutions on the practical grounds of economy and lack of available British personnel. A perceived bonus was the feeling that such institutions mollified local Indigenous resentment.
Indirect rule never propelled colonial policy in Australia for various reasons; the most obvious being that since the continent was declared terra nullius, its Aboriginal inhabitants were deemed non-persons.
The supposition behind this question advocates that we stumble on in a hesitant — and it might be added unenthusiastic — way, applying custom on an ad hoc basis where it is thought appropriate to do so. The courts might in their discretion accept custom as a mitigating factor in the sentencing exercise, and if authorised by statute as a defence in criminal proceedings.[9]
The central defect of this ad hoc approach is that custom is never applicable as of right. Any recognition is at the grace and favour of the court. Sadly this is not the end of its handicaps. Even if granted some nod of acknowledgment historically, the courts have demanded that before custom can be applied it must be proved as a question of fact. Apart from the obvious logical absurdity of being required to verify a customary personal law, as if it were a ‘foreign’ law, in its home country and jurisdiction, the fluidity of custom makes it inadvisable to be too dogmatic about what the applicable custom actually is. Of course this nebulous characteristic of custom has been employed as another stick with which to beat it. The argument runs: how can we apply custom if you are unable to pinpoint what it says? All this underlines the central thesis that Indigenous courts are essential for any meaningful application of customary law. Moreover, if custom is in contention with the common law, the latter will commonly prevail.
Two standard criticisms levelled against any proposed system of Indigenous courts are:
• custom is so formless it is too difficult and time-consuming to discover what it is and thus clear and concrete decisions are impossible; and
• Indigenous customs are so diverse that choice of law problems cannot be overcome.
These criticisms are linked in that they view the problems through Western eyes. Custom is only formless in that it may lack the precise rules considered to be an advantage by Western legal systems. This may not be perceived as a shortcoming in Aboriginal societies where the end result sought may be the general promotion of harmony, or at least stability, through compromise.[10] The ‘winner takes all’ goal of Western courts is arguably the opposite of that sought in traditional communities. A note of caution should be sounded here as it is well not to become too rosy eyed and adopt an idyllic view of customary settlement. The ‘compromises’ reached may depend on the weak caving into the strong through fear of corporal punishment or banishment.[11]
Local tribunals seeking to solve conflict have the definite advantage of cultural affinity with the situations they tackle. This plus-factor admittedly cannot be quantified but nevertheless cannot be underestimated and, allied to the improved self-belief that setting up community courts will inspire, represents a powerful line of reasoning for their speedy introduction.
The drawbacks created by diversity lie at the heart of the line of argument most commonly peddled to undermine the promotion of local courts. While detractors may concede the place of local courts in homogenous communities they contend that urban areas are a different proposition. Research, however, demonstrates that this assessment may be wrong. Epstein in his pioneering field work in the 1950s on the Zambian Copperbelt found that local court members had no difficulty in settling disputes between parties with different customs as they did not search for and then enforce rules, but dealt with right and wrongdoing in the context of social relationships.[12]
A comprehensive critique in the 1986 Australian Law Reform Commission Report No. 31 meticulously examined the practical pros and cons of installing local Indigenous courts. Limits of space militate against a detailed appraisal here. Obvious obstacles in the Territory are political resistance and this in turn will hinder adequate financial backing for a workable system.
Theoretical legal difficulties involved in prescribing the jurisdictional ambit of Indigenous courts present tricky dilemmas. Should such courts have the power to adjudicate in disputes between Aboriginal people and others? Should Aboriginal people be compelled to submit to the jurisdiction of Indigenous courts whatever their personal wishes? The number of thorny questions while not endless is considerable.
Listing all the problems and then wringing hands in despair is a convenient way to shelve the issue as too intractable. It ignores the central fact that the present system is foreign to and dismally fails the Aboriginal community. As a matter of bare principle, a refusal to set up Indigenous courts impinges on the basic right of an Indigenous people to be judged by their peers a right taken for granted by non-Aboriginal Australia.
Aborigines now comprise between 25 and 30% of the Territory’s population and no excuse can be offered in theory for a denial of their right to justice on their own cultural terms. Acceptance of this basic principle is essential before any steps forward can be taken with confidence. The right to justice in a system reflecting Aboriginal demotic values is unchangeable and its overdue implementation would serve as a fillip to Indigenous cultural self-confidence and boost the flagging morale of those presently condemned to society’s sidelines.
References
[*] Kenneth Brown is a doctoral candidate at NTU researching in the field of customary law in Solomon Islands and Vanuatu. He worked for some years in the Solomon Islands as a magistrate and Public Solicitor.
[1] ‘Paper Promises: The Constitutional Prescription of Customary Law in the Northern Territory’, (1999) 24(5) Alt LJ 221.
[2] Gray, Stephen, ‘Monsters Round the Stomping Ground: An Alternative Dispute Resolution Proposal for Indigenous Communities in the Northern Territory’, (1999) 25(4) Alt LJ 216.
[3] The topic is definitively researched and discussed in the ALRC Report, ‘The Recognition of Aboriginal Customary Laws’, Report No 31, 1986, at Vol 2, Part VI, 27 to 31, which also summarises past attempts at implementing local courts. Interestingly such courts were proposed in the Northern Territory in 1938, legislated for in 1940 but never got off the launching pad.
[4] General Assembly Resolution 2200A (XXI) of 16 December 1966.
[5] Chanock, M., Law, Custom and Social Order: the Colonial Experience in Malawi and Zambia, Heinemann, 1998, p.4.
[6] Powles, G., ‘Common law at bay? The Scope and Status of Customary Law Regimes in the South Pacific’, (1997) 21 Journal of Pacific Studies 61 at 78.
[7] See Woodman, G., ‘Studying the Laws: Respecting Customary Law in the Curriculum’, (1987) 15 Melanesian Law Journal 118.
[8] Court of Summary Jurisdiction, Northern Territory, Gillies SM, 20 February 1998 reported at (1999) AILR 29.
[9] See the references in the brief in this issue of Alt LJ by Stephen Gray, ‘Gill Nets at Bul Gul’.
[10] There is an abundance of material canvassing this issue: for an illuminating account see Hazlehurst, Kayleen, M., ‘Australian Aboriginal Experiences of Community Justice’ (1991) 6 Law and Anthropology 45.
[11] See Chanock, above, pp. 6-7.
[12] Epstein, A.L., Politics in an Urban African Community, Manchester University Press 1958. Other research supports Epstein’s basic findings: see Smith, D.M., ‘Man and Law in Urban Africa: A Role for Customary Courts in the Urbanisation Process’, (1972) 20 American Journal of Comparative Law 223, (Nigeria) and more recently Zorn, Jean G., ‘The Papua New Guinea Village Courts’, (1990) 2(2) Contemporary Pacific, (Papua New Guinea).
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