Custom as a Source of Law in Vanuatu: A Critical Analysis

Based on critical postcolonial theories developed by Said, Spivak and Bhabha, this paper attempts to demonstrate that although custom is recognized as a source by the Constitution and has been given a role to play in formal courts, Vanuatu courts and institutions have not accorded to custom the importance it deserves. Instead, they continue to uphold colonial laws and values to the detriment of customary rules, values and authorities. Yet, this is not the only challenge faced by custom as a source of law. As a result of a precedent set by the former Chief Justice, custom may be held to be invalid if it is inconsistent with colonial law, written law or human rights norms. This paper does not dispute this test. It argues however that moving forward, it should not be applied strictly and it may be important and necessary to revisit this validity test of custom in the future. If this were to take place, recognition could be given to the importance of custom in Vanuatu. Furthermore, cultural considerations and interests of the local groups and communities could be taken into consideration rather than applying colonial laws or human rights laws that do not often suit the local context of Vanuatu