Last week’s courtroom confrontation between chief Viraleo Boborenvanua and Justice David Chetwynd is not nearly so simple as it seems. It’s about more than respect; it’s about authority.
The challenges presented by this case have bedevilled us since October 5th 1979, when the nation decided to enshrine a degree of ambiguity concerning the power and authority of our chiefs into the constitution, its ‘mama loa’.
In December of last year, a confrontation occurred between chief Viraleo, his supporters and several others whom the chief accused of harvesting sea cucumbers from a location that he had declared tabu. A church, a store and several residences were burned, and people were allegedly threatened with spear, knives and firearms.
Chief Viraleo and eight others were arrested by a detachment of police sent to re-establish law and order in the Aligu district of East Pentecost. They were taken back to Port Vila, and have remained here since, awaiting trial.
Chief Viraleo lives a kastom life. He holds himself responsible for the administration of the natural resources in his area, and when his authority was ignored, he enlisted several of his supporters to punish the people he felt had flouted his authority.
Others have questioned the chief’s jurisdiction in the particular area where the crimes allegedly occurred.
Until the police arrived, he was the government, for all intents and purposes. Local police were unable to cope with the unrest, and in the end a contingent was sent from the capital to bring him back to Vila.
Hilda Lini, a lifetime supporter of customary practice and tradition, has long advocated for a rebalancing between kastom and the law. She took on the cause of the chief and his people, and did her best to help them get legal representation. They were released on bail largely because of her efforts.
In an interview with the Daily Post, she stated that the chief hadn’t enough money for private representation. She alleged that the Public Solicitor was not helpful either, but didn’t offer specific details in this regard. In any case, the chief and his co-accused showed up for their plea hearing on Tuesday without legal representation.
The chief’s unfamiliarity with the law and his lack of counsel almost certainly contributed to the standoff that ensued. Better preparation might have allowed him to make his point without running afoul of the rules of the court.
Judge Chetwynd—or any judge, for that matter—is required to maintain authority within the confines of the court. This is not a matter for negotiation, and no concession is possible. The judge is the sole authority in the room. Every other individual within it is treated as having equal rank and precedence.
This is the same principle that led Justice Mary Sey to disallow honorifics and kastom names when referring to the politicians in the 2015 bribery trial.
Arguably, the chief’s regalia, which included clear signs of rank, were in breach of the principle of equality in the eyes of the law. Whatever the circumstances, Judge Chetwynd, felt that the clothing was inappropriate. But that in itself might not have sufficed to make him rule that the chief was in contempt of court.
Hilda Lini recounted that, faced with the chief and his entourage in their kastom attire, Judge Chetwynd allowed that if he were meeting the chief in his own nakamal, his style of dress might be acceptable. The chief retorted that the whole issue should have stayed in his nakamal in the first place.
It’s not possible to read Justice Chetwynd’s mind, but if it appeared to him that the chief was defying the authority of the court, he would be left with no choice but to find him in contempt. And the rules of contempt are unequivocal: anyone who is in contempt must—not may, not should, but must—be brought into line.
Now, before we go any further, let’s be clear about something. ‘Contempt’ as it’s commonly understood denotes a lack of respect. It’s seen as sneering, or worse. This has led countless people to state the obvious, that the chief was actually showing respect by dressing as he did.
That may be. But ‘contempt of court’ is a legal term. One authority defines it this way:
“Contempt of court generally refers to conduct that defies, disrespects or insults the authority or dignity of a court. Often, contempt takes the form of actions that are seen as detrimental to the court’s ability to administer justice.”
The key phrase here is ‘actions that are seen as detrimental to the court’s ability to administer justice’.
You could argue that by dressing as he did, the chief was questioning the authority of the court. You could argue that the entire problem arose because he exercised what he felt was his chiefly authority and was punished for doing so.
The border between kastom and the law has always been poorly defined. This is because of their fundamental incompatibility. Hereditary rule, autocracy and other aspects of kastom are at odds with the democratic system that we signed up to in 1980. And the adversarial system of the courts is equally at odds with kastom, which emphasises peace and collective wellbeing over individual rights and access to justice.
As long as peace is maintained in the villages of Vanuatu, the rule of law tends to keep a respectful distance. But when social order—the very thing that kastom is supposed to maintain—breaks down, the state inevitably steps in.
It’s been that way for as long as kastom and the law have coexisted. Edward Jacomb was a British administrator during the Condominium period at the beginning of the 20th Century. Among other things, he was responsible for establishing the British constabulary here. His memoirs offer invaluable insight into the tensions between the two different sets of rules.
Time and again, the police were called in when kastom failed to resolve tensions. In a number of cases, both the chiefs and the transgressor(s) welcomed the arrival of the police and the removal of the wrongdoer. It restored peace in the village, and often enough saved the troublemaker from rough justice.
Kastom consists largely of keeping the peace in the village. But there was no peace in Aligu last December. And as a Radio Australia presenter noted, having your house burned down seems a pretty harsh penalty for stealing sea cucumbers.
Chief Viraleo is a charismatic and occasionally controversial character. He has appeared frequently in the national and global media as a promoter of Turaga, his own particular take on Vanuatu kastom. Some, however, claim that what he calls kastom is closer to a cargo cult. They say he espouses a set of beliefs that are not entirely compatible with Raga kastom, which predominates in North Pentecost.
The chief was photographed in western garb when he appeared in a July 2007 BBC story concerning the creation of the Tangbunai kastom bank, which accepts pig tusks, mats and other riches as collateral. He has made several attempts to integrate traditional beliefs and practices into modern life.
Some say that his defiance of the authority of the court is a calculated step in his lifelong campaign to formalise the authority of kastom in everyday life.
If that’s true, then the courts, the government, and the people of Vanuatu should embrace this opportunity. The ambiguity in the relationship between kastom and the law is enmeshed in the very language of the Constitution. This standoff represents an opportunity for us to reach for a better understanding.
Judge Chetwynd quite wisely bailed Chief Viraleo and instructed him to seek legal counsel before returning to his court to enter a plea. This is a sober and sensible response to the impasse, and it buys time to separate the question of kastom from the chief’s guilt or innocence for the crimes of arson, illegal assembly and uttering threats.
Vanuatu has long navigated the narrow waters between its traditional and colonial past. It’s time for us to chart these straits in greater detail.