Pacific Punch: Tropical Flavors of Mixedness in the Island Republic of Vanuatu
Legal systems are not fixed in time but are continually changing and adapting, if not entirely, then at least partially—a little here, a little there, like a party punch that requires improvisation when the original ingredients start to run low. This process of change, compromise, and modification is particularly notable in “young” systems that are emerging from colonial rule but, rather like a young kangaroo, still very much in the colonial or neocolonial “pocket” or “pouch,” with debatable viability if they are cast out too soon or required to face the challenges of the world too fast. At the same time, however, the globalization of ideas offers a tempting “pick and mix” of possible alternatives for legal development once the young state does emerge.
This challenge to the nature and form of mixing is based on an examination of one postcolonial legal system, that of the Republic of Vanuatu in the South Pacific, which, in 2013, celebrated 33 years of independence. It is therefore a relatively young state, which prior to gaining its independence in 1980 was brought under the joint influences of British common law and French civil law. As a country of more than 80 islands, its modest population of around 250,0001 is predominantly indigenous Melanesian people with a strong sense of tradition and custom, including adherence to customary laws.
It might be thought that a country that was ruled in tandem by Britain and France for nearly 80 years and that to this day retains “the British and French laws in force or applied … immediately before the Day of Independence”2 would be a classical mixed jurisdiction, particularly because the laws appear in both languages (English and French are two of the three official languages of the country), and English and French are the languages of education.3 Such, however, is not the case. As this chapter will show, the possibility for a classical mix in Vanuatu has been thwarted and frustrated by various accidents of history. Nevertheless, a mix does emerge, perhaps not of the classical kind, nor of the second-reception kind, but rather a fluid, not quite definable mix, which, in a piecemeal response to pragmatic need, is giving rise to an emerging hybrid.
To understand how the legal system has reached its current cocktail, I have roughly adopted part of the structure of Palmer’s questionnaire, which he used to inform his book Mixed Jurisdictions Worldwide (Palmer 2001). I have had to depart from this questionnaire at times because Vanuatu does not fit all aspects of Palmer’s criteria. Nevertheless, the chapter starts from a presovereign past, taking into account the political forces that shaped Vanuatu’s legal system prior to its independence and following this trajectory through to the present day. The justification for this continuum of consideration will, I hope, become evident, because it is pertinent to the questions of whether, when, and how mixing occurred in the past or occurs today and what were—or are—the ingredients.
The history of the islands of what is today the Republic of Vanuatu has been one of mixed encounters from the early seventeenth century. The islands were first discovered by the Spanish explorer Pedro Fernández de Queirós, who landed in 1606 on a northern island that he called Espiritu Santo (now known simply as Santo), believing that he had discovered the fabled Terra Australis. The archipelago was later mapped and named by the English explorer Captain James Cook in 1774.4 He called the islands the New Hebrides. Although an increasing number of traders visited the islands from about 1840 onward,5 and French Catholic and English Presbyterian missionaries started to arrive in the same period,6 it was not until the 1860s that the gradual increase in European settlement by English (often by way of Australia) and French (by way of New Caledonia and other French territories in the Pacific) planters resulted in growing competition for the acquisition of land from indigenous owners.7 This competition, in turn, led to requests from settlers to their respective governments for annexation of the islands.8 Neither France nor Britain were keen to comply, although both had previously exercised their power over other islands in the region. France had annexed the Marquesas Islands in 1842 and New Caledonia in 1853 and had declared a protectorate over Tahiti in 1842. Britain had acquired Fiji as a crown colony in 1874 and would eventually establish a protectorate over the Solomon Islands in 1893.9 Such was their reluctance to accede to the settlers’ requests that in 1878, an Anglo-French exchange of notes suggested that neither country proposed to interfere with the independence of the islands. Instead they offered naval support and occasional naval protection to their respective settler-citizens.10 However, as a result of increasing internal violence, competitive land acquisition, agitation from the Australian colonies,11 Anglo-French suspicion of each other’s intentions in the region, and mutual concern over the activities of Germany and the United States in the Pacific, the two countries agreed to a convention in 1887, which, besides other matters, addressed the protection of life and property in the New Hebrides.12 To achieve this goal, the two powers proposed to establish a joint naval commission that would be charged with the duty of maintaining and protecting the lives and property of British subjects and French citizens in the New Hebrides.13 The Joint Naval Commission was brought into effect by the 1888 Declaration between Britain and France, for the Constitution of a Joint Naval Commission for the Protection of Life and Property in the New Hebrides.14 Its inception was not, however, the start of a great classical mixture. Although both the British and the French agreed that, except in emergencies, the naval representatives of the two powers had to act jointly, in practice the Joint Naval Commission soon proved inadequate to meet the needs of the settler communities. Acting simultaneously but separately, the two countries appointed resident commissioners in 1902. Two years later, in 1904, the two powers signed the Declaration between France and Great Britain concerning Siam, Madagascar and the New Hebrides,15 indicating an intention to formalize the shared government of the New Hebrides. In 1906, Britain and France agreed a new convention concerning the New Hebrides, confirming the Protocol between Great Britain and France Respecting the New Hebrides and establishing a sphere of joint influence in the islands, under which France and Britain would have parallel jurisdiction over their own subjects.16 The 1906 protocol, which, in the case of Britain, was made effective in 1907 by the New Hebrides Order in Council of November 2, 1907, replaced the 1887 convention, retaining only the provisions for the Joint Naval Commission. Under it, neither France nor Britain exercised joint or separate jurisdictional competence over all the occupants of the islands for all purposes, and each regarded its relationship with the islands somewhat differently. From the French perspective, shared influence over the New Hebrides meant that it was regarded under the Constitution of the Fourth Republic as a French Pacific possession rather than as an overseas territory of metropolitan France. From the British perspective, the New Hebrides was a protectorate under the British Crown rather than a colony or dominion.
Framed with the purpose of ensuring absolute equality between the two powers, the stated purpose of the 1906 protocol, as set out in its preamble, was “to secure the exercise of their [the governments of Britain and France] paramount rights in the New Hebrides,” or, as stated in the French version, “en vue d’assurer l’exercise de leurs droits de souveraineté.” Both powers appointed absentee high commissioners: the French high commissioner for the New Hebrides was the governor of New Caledonia, who was also commissioner-general of France in the Pacific Ocean, and the British counterpart was the high commissioner for the Western Pacific—based in Fiji until 1952 and then in the Solomon Islands. For all practical purposes, France and Britain were represented by their respective resident commissioners. At this stage the term condominium was not used to describe the government, and it was unclear what, if any, mixing of jurisdictional powers was envisaged. There was, for example, no provision in either the 1906 protocol or the implementing convention referring to any international law that might apply to the islands or to any procedures to be followed in negotiating or entering into international agreements with respect to the New Hebrides.
Indeed, the term condominium seems mainly to have been used in references to administrative areas where cooperation was required—for example, with respect to court personnel,17 on official documents, and by commentators. This state of affairs continued until 1922, when a new protocol, which had been drawn up in 1914 but was not ratified until after World War I, was implemented.18 Under the new protocol, greater mixed juridical functions were agreed on, including the administration of a joint court,19 the making of joint regulations for the order and good governance of the islands,20 and certain public services to be undertaken in common. From the outset, it was clear that, insofar as French and British residents were concerned, each power retained separate jurisdiction, although the basis for doing so was different. For Britain, the law applied to all persons brought under British jurisdiction; for France, it derived from the sovereignty exercised over the New Hebrides.21 Moreover, although there was to be a joint court, each power also had its own high court, which was established under the jurisdiction of the respective high commissioners.
The possibility of limited legal collaboration was suggested by article 8(4) of the 1914 protocol, which stated that the condominium administration was to “cause a collection of native laws and customs … and these where not contrary to the dictates of humanity and maintenance of order shall be utilised for the preparation of a code of native law, both civil and penal.” Nothing so extensive, however, was ever achieved. Under the 1914 protocol, the two powers continued to exercise separate jurisdiction over their own subjects, citizens, and optants (that is, other Europeans in the country who chose French or British law). For British subjects and British optants, the laws that applied were any British acts of parliament and subsidiary legislation that were stated to apply to overseas territories and the general principles of common law and equity. The 1973 New Hebrides Order confirmed that the applicable law was that in force at that date (1973) insofar as circumstances permitted, and in 1976, section 3 of Queen’s Regulation 2, which established the High Court of the New Hebrides, stated that “statutes of general application in force in England on the 1st day of January 1976” were to apply. Queen’s regulations made by the British high commissioner of the Western Pacific and by the British resident commissioner in the New Hebrides also applied. French subjects and optants were governed by those parts of the codes of French law that applied in New Caledonia: the Civil Code, the Commercial Code, the Penal Code, and the Codes of Civil and Criminal Procedure. Laws applicable to the New Hebrides were promulgated in the Official Journal of New Caledonia. Hence, there was a filtering process: some laws of metropolitan France applied to New Caledonia, but not all, and some of those laws, or specific different laws, applied to the New Hebrides. The French high commissioner of the Pacific, who was stationed in New Caledonia, also had the power to make regulations for French Pacific territories coming within his jurisdiction, including the New Hebrides.
Thus, for Europeans settled in the New Hebrides, there was no mixing of legal systems even where the courts were administered jointly. Other services that were delivered jointly included posts and telecommunications, public works, native prisons, and public health services. There was also only one set of postage stamps, but both English currency and French currency were legal tender,22 and only in emergencies did the separate British and French police forces act together.
The two powers did act jointly with respect to the indigenous population, which became subject to its own form of mixed legal system: customary, personal laws, as well as the colonial laws passed by France and Britain as joint regulations, including a Native Criminal Code based on British and French law.23 One consequence of this system was that different laws applied to the same crime with different consequences. As explained by Chief Justice Vaudin d’Imecourt:
On the day immediately before the Day of Independence, there were three distinct sets of criminal laws applicable to Vanuatu. The French Penal Code, the English Penal Code made under the Queen’s Regulation 9 of 1973 and the Native Criminal Code made under Joint Regulation 12 of 1962, which applied only to the native New Hebrideans. Under Section 8 of the Native Criminal Code Premeditated Homicide (Murder) carried the death penalty, under Article 302 of the French Criminal Code, Murder carried the death penalty, whereas under the British Criminal Code that applied in Vanuatu, Murder carried life imprisonment.24
Joint regulations were directed primarily at controlling the local population or regulating relations between natives and nonnatives. Natives were unable to acquire the status of subject or citizen of either of the two imperial powers and could not opt to be governed by either French laws or British laws,25 which meant that there were instances in which no law was found to be applicable to natives.26 There was, however, some modest recognition of existing indigenous law in the condominium legal system. First, native land rights were recognized indirectly through the provision of dispute settlement mechanisms with respect to land and by acknowledgment that neither of the two powers had proprietorship, either jointly or severally, over all the land in the group. Second, district agents who went out into the field mediated between foreign law and local law. The creation of districts had been provided for in the 1922 New Hebrides Order. Each district was to have two agents, one British and one French. These agents were expected to cooperate in their tours of inspection, and although they dealt with their own nationals and optants separately, both had authority to deal with natives. Under article 8 of the convention, the high commissioners and resident commissioners were required to make codes of native laws, which could then be applied in native courts that were administered by the agents with the assistance of native assessors. Although this process of codification did not happen, some evidence suggests that district agents could work with traditional leadership to enforce law and order.27 Third, magistrates encountered customary law in their own courts when those accused appeared accompanied by their local chief or elder, who presented evidence that customary fines or payments of compensation had already been paid (Forsyth 2004). In addition, when a matter came before the Joint Court that could not be determined by French law, by British law, or under a joint regulation, the Joint Court could apply customary law. For example, adultery was no longer a crime under either French or British law and was not regulated by a joint regulation. The Joint Court therefore applied customary law, insofar as it could ascertain what the law was, given that no code of customary law existed and customs throughout the islands were not homogeneous (Vurubaravu n.d.).
In the period leading up to independence during the late 1970s, there were some changes. In 1978, Joint Regulation 13/1978 was passed to give effect to a resolution of the new Representative Assembly.28 The regulation provided for the establishment of joint district courts, which were composed of single judges, except in criminal trials, where the judge was to sit with two other assessors, at least one of whom had to be indigenous. The jurisdiction of the court was largely limited to matters concerning “natives,” and the law to be applied was that provided for under joint regulations. If joint regulations did not apply (for example, in civil and commercial matters), the court applied the law under which the contract or act was conducted. If no such law was stipulated, the law applicable to the nonnative plaintiff was used or a decision according to substantial justice was made, taking into account custom wherever possible. The regulation established that two judges would co-preside over the Joint Court, which was to be a court of appeal from the district courts and a court of first instance for certain matters. The judges were to be appointed by the respective high commissioners. Which of the two judges was to act as president in any individual case was to be determined by the nationality of the plaintiff; if the plaintiff was not a native, the laws were applied to the matter by agreement, or if agreement could not be reached, then by lot. The main task of the Joint Court, however, was to determine and register land claims by French and British settlers. In fulfilling this task, the court took different approaches. Under French law, any claim to land by a French citizen was upheld until disproved by the indigenous claimant; under English law, the right of ownership by a British citizen had to be clearly established. In the long term, this approach did not endear the French to customary owners of land.
Thus, on the eve of independence in 1980, a mixed system was indeed practiced in the New Hebrides, but not in a way that might qualify it to be classified as a mixed jurisdiction according to any accepted models. French law applied to French citizens and optants (including second-generation, mixed-race citizens);29 British law applied to British citizens and optants (including second-generation, mixed-race citizens); heterogeneous customary laws applied to indigenous people; and mixed joint regulations applied in various cases to indigenous people only, to nonnatives only, or to all residents of the islands. Indigenous people had also been absorbed into the different colonial administrations, had adopted the different religious faiths proselytized by French and English missionaries, and had been educated in French or English in the schools established first by missionaries and later by the colonial authorities. Islands and peoples were divided.
The movement toward independence also reflected the very different perspectives of France and Britain. During the 1970s, both powers had poured money into the New Hebrides,30 with minimal returns.31 Although the British Commonwealth Office was keen to rid itself of the financial burden of the New Hebrides from the 1960s onward, France feared that granting independence to the New Hebrides would trigger demands for independence in magnesium-rich New Caledonia, located to the west of the New Hebrides. In 1974, representatives of the two powers met to discuss the establishment of the Representative Assembly, which came into effect the following year. The possibility of dual nationality for the native population was also considered, as well as the merger of the two administrative services. Plans were drawn up to promote land reform—and thereby meet some of the concerns of indigenous landowners—and to plan for the economic and social development of the country. Differing views over independence were not limited to France and Britain, however. In the 1975 elections, held to choose municipal councils for Vanuatu’s two urban areas, Port Vila and Luganville, and to elect representatives for the Representative Assembly, it was clear that the indigenous inhabitants of the country were strongly divided (see Guiart 1983; Plant 1977; Vurubaravu n.d.).
As the scheduled date of independence approached, tensions escalated, not only between the French and English but also between different factions of indigenous people.32 By 1979, a draft constitution had been drawn up by the Constitutional Committee appointed by the New Hebridean government of national unity. Independence, however, could not be achieved until the two imperial powers revoked the 1914 protocol. On October 23, 1979, by the Exchange of Letters Constituting an Agreement concerning the Granting of Independence to the New Hebrides, the era of joint rule was terminated.33 But what did this mean for the new country’s legal system?
Independence and a New Mixedness
The opening preamble to the 1980 constitution marked what was to be the start of a new mixedness. It states:
WE, the people of Vanuatu,
PROUD of our struggle for freedom,
DETERMINED to safeguard the achievements of this struggle,
CHERISHING our ethnic, linguistic and cultural diversity,
MINDFUL at the same time of our common destiny,
AND for this purpose give ourselves this Constitution.
Thus, there was to be diversity and unity in the new government, informed both by principles drawn from a religion brought to the country by the early Catholic and Protestant missionaries and by values based on traditional, indigenous social and political organization. How did this attempt at diversity and unity translate in practice?
The classical model of mixed legal systems suggests a common law public law and a civilian private law. The new constitution of Vanuatu and the legal system that it established did not totally conform to this model.
Drawn up by representatives of France, Britain, and local indigenous leaders, the constitution provided a Westminster framework of governance with a continental twist. The New Hebrides became the Republic of Vanuatu, with a prime minister and a president. There was a unicameral, elected legislature: the parliament and an executive Council of Ministers. The National Council of Chiefs was also established; it had advisory powers but no lawmaking power. The court system was essentially based on the common law structure, with the Court of Appeal at its apex, the Supreme Court, and then magistrates’ courts at the bottom. Provision was also made for parliament to establish further courts at village and island levels. Under article 91 of the constitution, judges who were in post at the date of independence remained in post. There was no constitutional court, but under article 16(4), the president had the power to refer any legislation passed by parliament that was considered to be unconstitutional to the Supreme Court for a ruling. The new constitution also contained a statement of fundamental rights and obligations: a bill of rights. It therefore offered a new mixedness, incorporating not only elements from French and English public law but also customary law and institutions that had hitherto existed outside the boundaries of official law.
The 1980 constitution, besides declaring that the Republic of Vanuatu was now a sovereign state, also retained all the laws in force until such time as the national parliament made new laws, provided that these existing laws were not incompatible with the new independent status of the country or were not expressly revoked.34 Hence, the following laws remained applicable: English and French law then in force, joint regulations passed by the condominium government, and resolutions passed by the elected Representative Assembly between 1977 and 1980 that had been approved by the two resident commissioners and enacted as joint regulations. Thus, as far as common law was concerned, the applicable law included legislation either made specifically for the New Hebrides or extended to it; legislation enacted as statutes of “general application,” such as Queen’s regulations passed for the Western Pacific by the British high commissioner of the Western Pacific, or regulations made by the resident commissioner for the New Hebrides; and the general principles of common law and equity derived from case law. In the case of civil law, such law included French legislation that applied to French territories or legislation made in New Caledonia that was also made applicable to the New Hebrides; regulations made by the French high commissioner of the Pacific; French codes, except for any provision that had been replaced by a joint regulation; and French case law.
However, two additional sources of law were given constitutional standing. First, under article 74, customary law was to be taken into account wherever possible, and customary law in particular was to be the only law that governed customary land. Second, under article 47, where there appeared to be no applicable law, decisions were to be made according to “substantial justice and whenever possible in conformity with custom.”35 Whether this notion of substantial justice was based on consideration of equitable principles drawn from English law or the fundamental principles that underpin French law was not stated. Nor was it clear whether this constitutional provision ousted customary law or made customary law subject to some vague notion of substantial justice. When independence was granted, it was also unclear whether all citizens of the new state would be governed by all laws or whether there would be a choice of laws, either with respect to all matters or some matters. Eventually the courts would have to make a ruling on this question.
Certainly in the years immediately after independence, French law continued to be applied, either because the matter had been commenced prior to independence or because the litigants were themselves French.36 However, the question of which law applied to which persons remained confused. In one case,37 a petitioner seeking a divorce had married first under French law and then under British law. Although the judge held that there were insufficient grounds for divorce under either French or British law (the French lawyer acting for the petitioner argued otherwise), the judge considered that
the Respondent, having lived here for thirteen years and made his home here, no matter what his status is, is subject to the laws of the State. Having been married under French law, seemingly without any objections, he is bound by French laws relating to that marriage, such laws remaining in force under Article 93(2) of the Constitution.
It appeared that the applicable laws remained to be determined by nationality. In fact, this issue remained unresolved until 16 years after independence. In 1996, in the matrimonial case of Banga v. Waiwo, Chief Justice d’Imecourt held as follows:
[U]nder Article 95 of the Constitution, the French and English Laws that applied on the day before the Day of Independence applied to everyone in Vanuatu, irrespective of Nationality and irrespective as to whether they were Indigenous Ni-Vanuatu or not. They were no longer French or English laws but they became the law of Vanuatu. All those English and French laws that still now apply in Vanuatu … form part of the law of Vanuatu and apply to everyone in Vanuatu irrespective of creed, colour or Nationality. There cannot be a law for the English and another for the French and yet another for the Ni-Vanuatu in the Republic.38
Officially this ruling suggested that there was a mix.