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Passage of Change

Passage of Change: Law, Society and Governance in the Pacific OPEN ACCESS

Anita Jowitt
Tess Newton Cain
Copyright Date: 2010
Published by: ANU Press
Stable URL: http://www.jstor.org/stable/j.ctt24h3jd
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  • Book Info
    Passage of Change
    Book Description:

    Numerous issues face Pacific states trying to find their way in the early 21st century. Countries are striving to secure the benefits of modernisation. Governance, law and order are needed to reach such a goal, but development cannot be at the price of culture or the environment. The question of how to develop and maintain sound legal systems and legal rules whilst maintaining the unique cultural heritages within the Pacific is a challenge with no easy answer. This interdisciplinary collection locates issues of law and governance within the particular socio-political context of the Pacific island region, presenting sociological, anthropological and political insights alongside jurisprudential analysis. Key issues including corruption, the role of customary law in modern legal systems, the place of human rights in the Pacific, environmental issues and the structure of the state are explored from a variety of perspectives.

    eISBN: 978-1-921666-89-6
    Subjects: Political Science, Business
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Table of Contents

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  1. INTRODUCTION (pp. 1-4)

    This book aims to introduce readers to some significant areas of ‘modernisation inspired’ legal changes or challenges that are currently being faced by Pacific island countries. These 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. It may seem that indigenous cultures are becoming obsolete, a piece of tradition that, increasingly, belongs in the past. From such a viewpoint introduced systems must ultimately prevail in order that Pacific island nations are able to ‘progress’ and to participate in the global...

  2. SECTION 1: THE CONTEXT OF CHANGE
    • Vijay Naidu

      Over the past century and a half Pacific island societies have undergone very significant changes. These changes are institutional, and have affected values, beliefs and attitudes and individual and group behaviour. They have transformed the political, economic and social dimensions of these societies. The extent and scope of societal change has varied from society to society but everywhere, from the remotest of villages to the not so sleepy towns, social change and its consequences are present. At the same time, however, in all Pacific island societies earlier and apparently more traditional structures, norms and values persist. The resilience of traditional...

  3. SECTION 2: CORRUPTION
    • 2. CORRUPTION (pp. 35-50)
      Robert Hughes

      Corruption in political systems is a pervasive international issue. The political systems of the South Pacific region are certainly not immune to corruption. It is not a phenomenon which only attends larger developed political systems. Certainly neither the smallness nor the communal atmosphere of the Pacific island states have prevented the occurrence of corruption on a relatively wide scale.¹ The phenomenon produces some basic themes which are seemingly incontrovertible. Corruption is one of the most significant threats to democracy world-wide. It produces instability and thrives on the social inequality to which it is a substantial contributor. It undermines the confidence...

    • Graham Hassall

      This chapter suggests that some of the difficulties now facing the states that came to independence in the South Pacific at different times in the second half of the twentieth century derive from the manner in which they were constituted. Although any state, at any time, may face political crises or economic setbacks, the seemingly endemic nature of corrupt practices by politicians and of societal unrest in such states as Papua New Guinea, Solomon Islands, Vanuatu and Fiji Islands suggests the presence of conflict at more fundamental levels. Concerns at the ability of new states to govern are not new....

    • Edward R. Hill

      The 1980 Vanuatu Constitution provides a number of features that are common to many other constitutional democracies. These include entrenched individual rights and freedoms, an independent judiciary and a democratically elected government. The Constitution also includes provision for an ombudsman. In 1994, fourteen years after the Constitution came into effect, the first Ombudsman was appointed in Vanuatu. Since then, the Office of the Ombudsman has had a high profile in the country, exposing misconduct, corruption and mismanagement within the government and public sector and, in the process, creating widespread controversy. In this short time the Office of the Ombudsman has...

  4. SECTION 3: CUSTOMARY LAW
    • Jean G. Zorn

      One of the difficulties faced by state courts when they try to recognise and apply custom in their decisions is the ever-changing nature of custom.² Customs change faster than the law changes, and the rate at which customs are changing probably has accelerated, even since the colonial period, due to the technological, economic and political changes that the Pacific island nations are undergoing.

      This chapter looks at a number of questions that are important for courts, clients and counsel. What is custom?³ What has caused custom to change, and what kinds of changes have occurred since the pre-colonial era? If...

    • Jean G. Zorn

      One of the criticisms of custom frequently heard these days is that it discriminates against women.² Many of the critics believe that customary gender discrimination will end whenever women can get their cases into the formal courts, where judges will use the constitutions, statutes and the common law to defeat custom.³ Imrana Jalal has provided us with an excellent definition of gender discrimination:

      Discrimination means treating people in different ways, depending on their sex, race, religion, political opinions, creed, sexual preference and so on. We may discriminate against a particular group of people, just as we may discriminate in favour...

    • Susan Bothmann

      Why should these two Australian Aboriginal women be confronted by an apparent identity conflict? The first question, I suggest, is not how they choose between these hierarchical notions of self, but why they should feel an inclination to do so at all.

      This notion of dissecting oneself and parcelling pieces of one’s identity up into special categories is a practice that comes from western models of thought and theory³ and has had no place in some other social constructs, including the traditional backgrounds from which these two women come. Many traditional indigenous communities do not share western conceptualisations of themselves...

    • Tess Newton Cain

      Within the South Pacific region¹ there are fewer instances of having to reconcile customary law and ‘introduced’ law within the realm of criminal law and procedure than is the case in other areas of law such as family law or land law. By this I mean that when we look to the available sources of law in relation to criminal matters, it is evident that this is an area that has been extensively codified, either during the colonial period or since then.² A reading of these codes indicates that reference to issues of customary law and principle occur rarely and...

  5. SECTION 4: HUMAN RIGHTS
    • Anita Jowitt

      Human rights appear to be an incontrovertible part of the modern legal and political world. The Universal Declaration of Human Rights 1948,¹ which purports to affirm a number of universal inalienable rights, is probably the United Nations’ best known document. In the Pacific the constitutions of almost all USP member countries enshrine human rights.² Powerful political organisations, including women’s rights and minority rights movements form around human rights and are a prominent part of political discourse in most modern Western or Western influenced democracies including Pacific island countries. For example, the human right of self-determination provided a focal point for...

    • Ian Fraser

      I propose here a scheme for considering what is going on when, in argument about a government policy or decision, some people invoke ‘human rights’ (or ‘constitutional rights’) to justify their views and other people, opposing them, invoke ‘custom’ (or ‘tradition’). Such arguments may be political contests within a government’s own bureaucracy, or in Parliament, or academic debates in pages like these or in university cafeterias, or legal submissions to courts of law or law reform bodies, or popular disputes in editorial pages, over kitchen tables or under village trees. I propose a scheme, a set of models, for thinking...

    • Owen Jessep

      One of the continuing legal debates in Papua New Guinea in the years since Independence in 1975 has been the proper weight to be accorded to custom in the national legal system. At first glance, custom assumes a prominent position among the sources of law set out in the Constitution, as one of the two principal sources (together with common law) of what is called the ‘underlying law’.¹ Despite this there has been no shortage of complaints since 1975 as to the lack of progress in establishing and developing an appropriate “indigenous jurisprudence”, that is, a body of legal doctrine...

  6. SECTION 5: NATURAL RESOURCE ISSUES
  7. SECTION 6: REBUILDING NATION STATES
    • Sinclair Dinnen

      Problems of lawlessness loom large in current accounts of Papua New Guinea. Concerns about these problems have induced high levels of personal insecurity, as well as providing a major disincentive to foreign investment. While such problems cannot be resolved by law and justice solutions alone, the continuing deterioration of PNG’s ‘law and order’¹ situation raises questions about the adequacy of the formal regulatory system. Successive governments have been loud with ‘tough’ rhetoric, like many of their counterparts elsewhere. Practical responses have been essentially reactive and short term.² Australia, PNG’s largest aid donor, has claimed to concentrate on institutional strengthening projects...

    • Anthony J. Regan

      Human societies have to balance two apparently contradictory needs. While ‘rulers’ are needed to manage the society, at the same time there is a need to limit the tendency of those with power to abuse it. The potential for abuse is particularly acute in complex modern societies where coercive power is great. Hence the discussion of the control of rulers in the present day tends to be about limiting state action.

      Constitutionalism — the acceptance by government of limits on its actions set by constitutional rules — was anticipated as an outcome of adoption of ‘Western’ style independence constitutions for most post-colonial...

    • Robert Hughes

      In this chapter I will take up one aspect of the legal pluralist challenge to conventional views of law and legal institutions. My concern is primarily with the challenge to the unified conception of the state which many legal pluralists hold is pivotal to the orthodox theory of legal systems. The orthodox position (i.e. positivist jurisprudence) holds that the existence of a unified central or monistic state is necessary for the existence of law in the sense that law is logically antecedent to the state. One of the central concepts or principles underlying this orthodox conception of a state is...