International Law: Customary Law - Coursework Example

Customary Law I. Definition of Customary Law There is no generally accepted definition of what constitutes Aboriginal customary law, not least because, it is almost impossible to describe comprehensively. There is secrecy surrounding many of the laws, some of which are “sacred and not to be spoken about to anyone”, except the members of the relevant tribal group. Tribal laws differ from community to community. Information obtained from one Aboriginal tribe would not include information about the laws of another tribe as they would not be permitted to speak about those other laws. A universal definition cannot be formulated by generalising from a sample description. There is no single definition of customary law agreed upon by lawyers, barristers or any others who may be concerned with it. II.General Background of Customary Law This is because both the terms “custom” and “law” are used in so many differing senses. Much of what is written about customary law is substantiated by examples of events that occurred following European settlement in Canada. These incidents along with some explanations by those of Aboriginal ancestry provide insights into the specifics of customary law. It becomes clear that direct generalizations from one tribal community to another may be misleading. However, beliefs and practices verified by Elders substantially increase the validity, at least for the local community. Basic elements of culture and environmental influences must be considered when studying customary law. It is difficult to define customary law. The validity of the existence of customary or traditional law is supported by the following characteristics1: It has existed since time immemorial (as long as can be remembered) It is reasonable It is certain in its nature, and certain about who it is supposed to affect or apply to It has been the same or continuous since its immemorial origin. III . Case Examples R v Miyatatawuy In this case, the defendant had been punished under Aboriginal customary laws prior to coming before the court for sentencing. It was held that the resolution or settlement of matters within the relevant Aboriginal community and the integral rehabilitation of the offender are significant circumstances to be considered on sentence. The court found that, although the High Court has held that Aboriginal customary law was extinguished by the passage of criminal statutes of general application, the facts and circumstances arising from the defendant’s Aboriginality, namely the operation within her Aboriginal community of practices affecting her, remain relevant. The courts are entitled to pay regard to those matters as relevant circumstances in the sentencing process. The court observed that the wishes of the victim of the offence in relation to the sentencing of the offender are not usually relevant, and that the wishes of the relevant community, of which the victim was a leading member, may not be permitted to override the discharge of the judge’s duty. Nonetheless, they may be taken into account on mitigation. R v Shannon This case illustrates how evidence of traditional customs and beliefs may be relevant to an explanation of the defendant’s conduct, mitigating the seriousness of the offence. In that respect, it is not strictly a precedent for the recognition of Aboriginal customary law, in so far as that term is understood to mean something akin to “a system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people”. The defendant lit a number of fires believing this would frighten evil spirits away, shortly after he had been threatened by his father with ill fortune or punishment at the hands of tribal kadaitcha men. The mention of kadaitcha tends to strike fear into the hearts of many Aboriginal people. In fact, Justice Zelling observed that a threat of use of kadaitcha would produce an immediate superstitious panic in the mind of the person threatened. The defendant “was put literally in fear for his life”. When police officers attempted to apprehend the defendant, he assaulted them. The appellate court (hearing an appeal on severity of sentence) accepted that the defendant’s state of mind had been affected, to some extent, by the threat of the “kadaitcha2” men and that this mitigated the seriousness of the offence. The trial judge had failed to make allowance for “the mitigating circumstances (particularly those arising from the culture of the appellant) which clearly existed”. Munungurr v The Queen The trial judge admitted into evidence a letter signed by the Chairman and Town Clerk of the Yirrkala Dhanbul Community Association stating the effect of the defendant’s imprisonment on the community and its desire that he be returned to the community to be dealt with in the traditional manner. However, he gave no weight to the letter in his sentencing decision. On appeal from severity of sentence, the court held that, despite the informality of the evidence, the trial judge should not have rejected matters contained in the letter put by way of mitigation. In particular, the trial judge failed to consider the nature of the reconciliation ceremony referred to in the letter; the effect of imprisonment on the offender’s family and his people generally; the community’s wish that he be dealt with in the traditional way; and what traditional punishment, if any, the community proposed. The court held that the views, wishes and needs of the offender’s community are relevant considerations, but will not prevail over what is a proper sentence. The court allowed the appeal and ordered that the defendant be released on a bond after three months on the condition that he attend at a tribal reconciliation for the purposes of sealing the peace between the two clans involved, as was prescribed by the relevant Aboriginal custom. R v Bara Bara This is a case where customary law was taken into account in a sentencing hearing, but not in relation to the bearing it would have on the appropriate sentence. The defendant applied for an order suppressing the name of the deceased on the basis that it was extremely offensive to most Northern Territory Aboriginal people, and contrary to most tribal customs, to speak of a dead man by his name. The court granted the application, holding that publication of the deceased’s name would be “likely to offend against public decency” within the meaning of section 57(1)(a) of the Evidence Act 1939 (NT). IV. Conclusion It appears that there is ample common law precedent for judicial discretion to recognise Aboriginal customary law. Accordingly, the arguments in support of recognition of Aboriginal customary law are powerful, and outweigh the arguments against statutory recognition. A basic tenet of the Australian and the American criminal justice system is that justice must be done. Failing to recognise the role played by Aboriginal customary law in a particular case, may well indeed lead to injustice. This reason alone may well justify legislative endorsement of the common law discretion. However, the totality of reasons for recognising Aboriginal customary law are too important to allow recognition to remain dependent upon the approaches and attitudes of individual judges and magistrates. The results of the Commission’s survey of judges and magistrates show that a number of those surveyed do not believe that Aboriginal customary law should be recognised in sentencing in New South Wales. A legislative requirement of recognition, where relevant, would ensure that, where appropriate, Aboriginal customary law is always considered; and would thus promote consistency and clarity in the law and its application to Aboriginal people. Bibliography African Customary Law: The Problem of Concept and Definition C. M. N. White Journal of African Law, Vol. 9, No. 2 (Summer, 1965), pp. 86-89. B Debelle, Aboriginal Customary Law and the Common Law in E Johnston, M Hinton and D Rigney (eds), Indigenous Australians and the Law (Cavendish Publishing, Sydney, 1997). R v Shannon (1991) 57 SASR 15 at 17 (Olsson J). Veen v The Queen (Veen No 1) (1979) 143 CLR 458; Veen v The Queen (Veen No 2) (1988) 164 CLR 465. NSW, Ministry for the Status and Advancement of Women, Report – Aboriginal Women and the Law (Dubay Jahli) (Report to New South Wales Parliament, 1994) (“Dubay Jahli Report). Read More