Legal Pluralism in Criminal Law: An International Perspective

In the United States, customary laws of the indigenous Indians are not explicitly recognised in criminal laws of federal or states law.[1] There is instead an indirect recognition of customary laws through the “recognition of tribal sovereignty and the separation from the federal and state laws.”[2] Tribal sovereignty was reduced and limited through the passage of time. In the case of Ex parte Crow Dog[3] the Court dismissed the decision in finding an Indian guilty of murdering another Indian in the Indian reservation. This led to the passage of Major Crimes Act 1886 considering that Indian settlements for serious offences were unacceptable to some sectors.

The Indians were free to apply their traditional laws when committed in their reservation and in a restrictive manner with respect to crimes.[4] The law extended the coverage to fourteen from seven as falling within the jurisdiction of federal courts notwithstanding the fact that the offense was committed in Indian reservation. Indian tribes have jurisdiction in cases where the “maximum penalty of 6 months imprisonment or a $500 fine pursuant to the Indian Civil Rights Act of 1968.”[5]

In Canada, the Canadian Indians and Inuit are faced with the same fate as the aborigines of Australia. There is an absence of recognition of the customary laws in the area of criminal law. However, recognition was made insofar as marriage and adoption. In the past they addressed disputes “through accommodation through non-prosecution, jury equity or the exercise of discretions in sentencing.”[6] Initial steps have been taken towards recognition by allowing the Indians and Inuit to address their law and order issues. An agreement was entered into between the Cree Indians and the Inuit and the Government of Canada and Quebec in 1975 after a long struggle for negotiations regarding the large hydro-electricity project.[7]

This agreement, James Bay and Northern Quebec Agreement contained provisions which called for consultation by the Government of the natives with respect with administration of justice and a corollary obligation to have a criminal justice system suitable to the natives’ usages and customs.[8] The implementation of these provisions is long and slow. In the recent times, Indians were hired as paralegals and court workers, and staffs in the police force.[9] There are also some court decisions recognizing to a certain extent the customary and native laws.

In Papua New Guinea, there is to some extent recognition of customary law in criminal law but the pattern and trend established is inconsistent. This is reflected for instance in the case of

Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis where the defendant was allowed by the court to make a customary compensation in the form of pigs and K1102. “The court under section 119 of Criminal Procedure Code [Cap 136] (Vanuatu)] is also to take into consideration any customary settlement in determining what is an appropriate penalty.”[10]

Consequently, the penalty of imprisonment was mitigated.[11] The recognition of customary laws is further seen and directed in statutes, i.e. the Customs Recognition Act or formerly known as the Native Customs Recognition Act of 1963. This is substance allowed the application and enforcement of customary laws before the courts subject to certain broad restrictions or conditions such as:  that it does not contravene the principles of humanity, it is not inconsistent with any Act or ordinance, etc. [12]

The Papua New Guinea Law Reform Commission prepared proposals contained in its Report No. 7. It proposed among others, major changes towards recognition of customary laws and the role of the courts in the development of indigenous law.[13] The main consideration was in making the custom not merely a substantive element but as an underlying basis.[14] Major proposals were made in the Report namely, a) customary law defence for minor offences and b) “A new offence of diminished responsibility killing for certain homicides (excluding revenge or payback killings).”[15]

Most countries do not have customary law incorporated substantially in the criminal laws. The indigenous customary law is most often recognised in the civil law field than in criminal law.[16]

Overview in Australia

The nature of aboriginal customary law is such that it does not lend to a comprehensive definition. The law is marked by secrecy and sacredness that its dissemination is limited only to the members of the same tribe. To compound matters, the aboriginal customary law is orally handed down to generations thus; there is no written form or code that contains it.[17] Moreover, it is also included in religion which makes it more difficult in defining the law.

In the case of Milirrpum v Nabalco Pty Ltd, it is claimed that the aboriginal customary law require both a ‘definable community to which it applies’ as well as ‘a recognised sovereignty giving the law a capacity to be enforced.’[18] The Court however refused to accept this proposition and instead defined the term as “a system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people.”[19] Thus, in general, it “is constituted by a body of rules, values and traditions which are accepted as establishing standards or procedures to be followed and upheld.  It is also the context of relationships between people within families and among groups across social systems.”[20] According to the Australian Law Reform Commission, the call for recognition of aboriginal customary law was recorded to have dated back to 1836 or earlier.[21] In 1920s and 1930s, government inquiries were conducted to investigate into a possibility of recognizing customary laws. One of which was with Bleakley’s, the Chief Protector of the Aborigines who proposed the establishment of court for tribal cases considering the injustice committed by “applying British law to crimes involving tribal law.[22] Native courts were established based on legislation to handle issues between the aborigines and between them and the existing administration. However, the move to establish distinct courts for the aborigines did not occur.[23]

In 1977, the Federal Attorney General referred to the Australian Law Reform Commission (ALRC) the issue of whether “existing courts should be able to apply Aboriginal customary law to Aborigines, and whether Aboriginal communities should have the power to apply their customary laws and practices in the punishment and rehabilitation of Aborigines.”[24]

Subsequently, several inquiries were made and the latest of which was in 1986.[25] This inquiry was before the Northern Territory Law Reform Committee (NTLRC). The Report contained recommendations to recognise the aboriginal customary law within the framework of general law and was limited to aboriginal communities located within the northern territory.[26] On the other hand, the Australian Legal Reform Commission in its Report claimed that there being no recognition of the aboriginal customary law, the Australian law, civil, criminal, substantive and procedural are to be applied. As a result of this, there was “destruction of traditional Aboriginal life and values in many areas.”[27] It specifically recommended as one of the aspects to be recognised is “criminal law including policing, interrogation, evidence, and sentencing.”[28]

Issues

      The general issue is that the general law does not allow the application and operation of aboriginal customary law in cases where traditions are held to be strong. The extent of recognition is more of a general nature rather than one based on law. There is also an absence of any recommendation for the establishment of aboriginal courts.[29]

      On the issue of decision to prosecute, the case R v Anunga[30] is cited to illustrate the guidelines established by the Supreme Court to be followed by the police in interrogating aborigines. It requires an interpreter present, the presence of the friend of the prisoner during interrogation, and limits in questioning.  In addition, Guideline 9 is to be observed in cases of more serious offences and granting the Director of Public Prosecutions the discretion to not prosecute based on customary law.[31]

      Criminal liability is made to depend on the person’s state of mind and ‘reasonbleness’ of actions.[32] Thus, there are circumstances which are considered to be partial defences and which diminish the fault element.[33] Based on the ALRC recommendations, it considered the circumstances not as a general defence or authorisation in accordance with the traditional law but one of partial defence compelling the defendant to commit the pertinent act.[34] It further recommended that these circumstances should be considered and admitted when it would show the defendant’s state of mind. ‘Claim of right’ is also considered only in cases where an “act done in accordance with an honest belief of a claim of right with respect to property where that belief negates the element of the offence.”[35] Thus, an honest belief that traditional law allows the commission of an act would only be sufficient if accompanied with the belief that Australian law recognizes the same.[36]

      Another circumstance is ‘provocation’ which may be used as defence for offences of assault or against property.[37] Provocation is of such degree and nature that it would push an ordinary person to lose his self-control. [38]Thus, in the case of Mungatopi,[39] the court ruled that albeit there is no rule in the Criminal Code that requires recognition of traditional law, it nevertheless laid down a test to be applied to an aborigine which is “the powers of self-control as everyone is entitled to expect.”[40]The ALRC also recommended that coercion or duress can be considered as partial defence as far as diminished criminal liability is concerned. It was held that a person would be liable for injury should she have done it not in accordance with customary law.[41]

      The Evidence Act has now allowed the reception of evidence of aboriginal customary law as opinion evidence subject to certain restrictions such as those accepted from an expert.[42] Finally and of equal importance, is in the sentencing of the accused. The Crimes Act 1914[43] and Crimes Act 1900[44] require that the court take into account the cultural background, character, antecedents, age and the like in imposing the appropriate penalty on the offender. The effect of sentence on the victim, the opinion of the members of the community of the offender and or of the victim was considered with a prevailing policy of imposing imprisonment only in cases as a last resort.[45]

Conclusion

Recognition of Aboriginal Customary law in Criminal Law: A Legal Possibility?

      There is an extensive literature on the argument for and against the recognition of aboriginal customary law in criminal law in Australia and other countries. In Australia alone, the ALRC explained its arguments in favor of recognizing customary law in general Australian law as serving the ends of justice. It further claimed that it would be unjust and unfair to have an aborigine punished under a general law for observance of their customary law or be penalised under the general law and customary law at the same time.[46] By recognising the customary law, it would compensate for the injustice committed in the past for non-recognition. The fact that the customary law affects and influences the aborigines is a valid reason to recognise it. For after all, it helps in maintaining peace and harmony which some provisions of general law are found to be irrelevant and ineffective in doing.[47]

      Arguments against recognition have been discussed as well. It is claimed that courts should not recognise it considering that customary law is unreliable. Recognition would mean allowing unacceptable punishments to the general law framework. Finally, it is claimed that there should only be one law and thus recognition will lead to an unwanted legal pluralism which is divisive and against public sentiments.[48]

      An evaluation of the arguments point towards the persuasion of recognising traditional customary law into the framework of the general law. The principle of equality before the law, human rights and other freedoms demand that traditional customary law be recognised.  As it now stands, what remains a challenge is the manner of carrying this into effect until its successful implementation and realisation. By codifying the entire aboriginal customary law into a written form like a statute will destroy its very nature of being oral. There should be a careful selection and incorporation of aspects of traditional law into the general law framework. For instance, a call for incorporation of aspects of traditional law in criminal law by statute as discussed earlier can only be educative.[49] The inquiries made have identified certain aspects and issues where recognition of customary law in those areas may help the aborigines. With respect to case law, the development of judicial pronouncements recognising and considering aspects of customary law guide judges in imposing penalties and sentencing the offender. This common law development is another manner of incorporating traditional customary law into the general law. In sum, recognition can be achieved by acknowledgement of certain aspects and by incorporation.

Bibliography

• Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299.
• Australian Law Reform Commission, Aboriginal Customary Laws and the Criminal Justice System < http://www.austlii.edu.au/au/other/alrc/publications/reports/31/Ch_17.html#fnB70> at 11 August 2007.
• Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986)
• Criminal Code.
• Ex parte Crow Dog, 109 US 556, 571 (1883).
• Finkler, H. Inuit and the Administration of Justice in the Northwest Territories: The case of Frobisher Bay, Department of Indian and Northern Affairs, Ottawa, 1976, 16-20.
• Law Reform Commission New South Wales, Report 96 (2000) – Sentencing: Aboriginal offenders  < http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3> at 13 August 2007.
• Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 266 and 267.
• Mungatopi appeal (1991) 57 A Crim R 341 p. 346-7.
• Northern Territory Law Reform Committee, Background Paper 3 Legal Recognition of Aboriginal Customary Law, (Darwin: NTLRC 2003), p. 5 <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_bckgrd_paper_03.pdf> at 14 August 2007.
• Public Prosecutor v Thomas [1998] (Unreported, Supreme Court of Vanuatu, Marum J, 22 March 1998 <http://www.vanuatu.usp.ac.fj/paclawmat/Vanuatu_cases/Volume_O-Q/
• PP_v_Thomas.html> at 11 August 2007.
• R v Anunga, (1976) 11 ALR 412.
• R v Isobel (Northern Territory Court of Summary Jurisdiction, No. 1529-1530 of 1982, Murphy SM, 19 September 1983, unreported).
• Walden v Hensler, (1987) 163 CLR 561
• [1] Australian Law Reform Commission, Aboriginal Customary Laws and the Criminal Justice System  < http://www.austlii.edu.au/au/other/alrc/publications/reports/31/Ch_17.html#fnB70> at 11 August 2007.
•    [2] Ibid  section 404.
•    [3] 109 US 556, 571 (1883).
  [4] Australian Law Reform Commission, Aboriginal Customary Laws and the Criminal Justice System  < http://www.austlii.edu.au/au/other/alrc/publications/reports/31/Ch_17.html#fnB70> at 11 August 2007.
  [5] Ibid section 404.
  [6] HW Finkler, Inuit and the Administration of Justice in the Northwest Territories: The case of Frobisher Bay, Department of Indian and Northern Affairs, Ottawa, 1976, 16-20.
•     [7] Australian Law Reform Commission, Aboriginal Customary Laws and the Criminal Justice System < http://www.austlii.edu.au/au/other/alrc/publications/reports/31/Ch_17.html#fnB70> at 11 August 2007.
  [8] Ibid section 409.
•     [9] Ibid section 409.
•     [10] Public Prosecutor v Thomas [1998] (Unreported, Supreme Court of Vanuatu, Marum J,  22 March 1998 <http://www.vanuatu.usp.ac.fj/paclawmat/Vanuatu_cases/Volume_O-Q/ PP_v_Thomas.html> at 11 August 2007.
  [11] [1982] PNGLR 299.
•     [12] Australian Law Reform Commission, Aboriginal Customary Laws and the Criminal Justice System  < http://www.austlii.edu.au/au/other/alrc/publications/reports/31/Ch_17.html#fnB70> at 11 August 2007.
  [13] Ibid sections 405, 406, 407 and 408.
•     [14] Ibi sections 405, 406, 407 and 408.
•     [15] Ibid sections 405, 406, 407 and 408.
•     [16] Ibidsection 410.
  [17] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986)
•    [18] Law Reform Commission New South Wales, Report 96 (2000) – Sentencing: Aboriginal offenders  < http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3> at 13 August 2007.
  [19] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 266 and 267.
  [20] Law Reform Commission New South Wales, Report 96 (2000) – Sentencing: Aboriginal offenders citing K Maddock, “Aboriginal Customary Law” in P Hanks and B Keon-Cohen (eds), Aborigines and the Law (Allen and Unwin, Sydney, 1984) and J Atkinson, “A Nation is Not Conquered” (1996) 3(80) Aboriginal Law Bulletin 4  < http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3> at 13 August 2007.
• [21] Law Reform Commission New South Wales, Report 96 (2000) – Sentencing: Aboriginal offenders < http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3> at 13 August 2007.
  [22] Ibid section 3:27.
•    [23] Ibid
•    [24] Australian Law Reform Commission, Aboriginal Customary Laws and the Criminal Justice System < http://www.austlii.edu.au/au/other/alrc/publications/reports/31/Ch_17.html#fnB70> at 13 August 2007.
  [25] Northern Territory Law Reform Committee, Background Paper 3 Legal Recognition of Aboriginal Customary Law, (Darwin: NTLRC 2003), p. 5 <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_bckgrd_paper_03.pdf> at 14 August 2007.
•  [26] Ibid
  [27]Australian Law Reform Commission, Aboriginal Customary Laws and the Criminal Justice System  < http://www.austlii.edu.au/au/other/alrc/publications/reports/31/Ch_17.html#fnB70> at14 August 2007.
• [28] Northern Territory Law Reform Committee, Background Paper 3 Legal Recognition of Aboriginal Customary Law, (Darwin: NTLRC 2003), p. 5 <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_bckgrd_paper_03.pdf> at 14 August 2007.
  [29] Ibid Section 5, page 30.
•   [30] (1976) 11 ALR 412.
•   [31] Northern Territory Law Reform Committee, Background Paper 3 Legal Recognition of Aboriginal Customary Law, (Darwin: NTLRC 2003), p. 32 <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_bckgrd_paper_03.pdf> at 14 August 2007.
  [32] Northern Territory Law Reform Committee, Background Paper 3 Legal Recognition of Aboriginal Customary Law, (Darwin: NTLRC 2003), p. 32 <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_bckgrd_paper_03.pdf> at14 August 2007.
• [33] Ibid
•    [34] Ibid
•    [35] Section 30(20) Criminal Code.
•   [36] Walden v Hensler, (1987) 163 CLR 561
•   [37] Northern Territory Law Reform Committee, Background Paper 3 Legal Recognition of Aboriginal Customary Law, (Darwin: NTLRC 2003), p. 33 citing Sections 1 and 34 of the Criminal Code <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_bckgrd_paper_03.pdf> at 15 August 2007.
• [38] Ibid
• [39] (1991) 57 A Crim R 341 p. 346-7.
  [40] Northern Territory Law Reform Committee, Background Paper 3 Legal Recognition of Aboriginal Customary Law, (Darwin: NTLRC 2003), p. 33 citing Sections 1 and 34 of the Criminal Code <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_bckgrd_paper_03.pdf> at 15 August 2007.
  [41] R v Isobel (Northern Territory Court of Summary Jurisdiction, No. 1529-1530 of 1982, Murphy SM, 19 September 1983, unreported).
•   [42] Uniform Evidence Act, section 79.
•  [43] Section 16A (2)(m).
•  [44] Section 429A (1)(k).
•  [45] R v Minor, (1992) 79 NTR 1
  [46] Law Reform Commission New South Wales, Report 96 (2000) – Sentencing: Aboriginal offenders, Section 3.31 < http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3> at 15 August 2007.
  [47] Ibid
•   [48] Ibid
  [49] Greg McIntyre, Aboriginal Customary Law: Can it be Recognised?< http://www.lrc.justice.wa.gov.au/2publications/reports/ACL/BP/BP-09.pdf.> at 15 August 2007.