By: Tess Newton Cain

Conversations held at the recent Australasian Law Reform Associations’ Conference in Canberra prompted a discussion as to whether institutional law reform (i.e. law reform as carried out by a dedicated agency such as a law reform commission) is really practicable within the context of small jurisdictions such as those that make up the greater part of the Pacific island region.

Several of the jurisdictions in the region do have agencies that are tasked with law reform although the names and institutional architecture of these organisations vary (as is the case elsewhere in the world). In Vanuatu, the Law Commission has been recently established and has yet to undertake any law reform inquiries whereas the Samoa Law Reform Commission has been in existence since 2008 and has been tasked with ten references so far, including amending the law in order to change the position of the dateline in relation to Samoa and review and reform of the Crimes Ordinance 1961 as one component of a four-part review of the criminal law more generally. Indeed, the need to modernise, harmonise and otherwise reform the criminal law of Samoa was one of the main drivers for the establishment of the Commission. Elsewhere, The Constitutional and Law Reform Commission of Papua New Guinea is very active and will be even busier in 2013 undertaking a nine-month programme of review of the Constitution and other pieces of legislation relating to parliamentary procedure, including election of the prime minister.

But are agencies such as these essential pieces of legal architecture or unaffordable luxuries? On pursuing this question with a number of interested parties it then transpired that there was a related, underlying question – is there a need for law reform at all? The following opinion of Tung-Lam Dang, legislative counsel in the Federated States of Micronesia, largely reflects what was discussed in Canberra:

Law reform is a definite must. A lot of Pacific jurisdictions inherited legislation from previous pre-independence administrations that may or may not correspond to local realities or to shifting priorities. A process of acculturation must take place to ground the legislation in concrete reality. This is in part to neutralise the perception that law is somehow a remote concept alien from customs and traditions. Law reform should also be used not to accomplish cultural harmonisation, i.e. to look backward, but also to propel a country forward towards defined policy goals. Examples of that are the tax reform effort currently underway in Micronesia.

In a similar vein, members of the Samoa Law Reform Commission highlighted the need for their activities to be located in the particular socio-cultural context of the country in order for them to be able to do the required research and community consultations and for the products of their work and any ensuing legislative changes to have the necessary acceptance in society as a whole:

Recommendations have been based on the need for Samoan criminal law to be relevant for modern times and in line with international trends. However, Samoan custom and traditions have remained paramount considerations. Changes have only been recommended where the Commission considers that they would enhance Samoa’s society, culture and economy, and better meet the needs of the Samoan Government and community. (2010, Samoa Law Reform Commission, Report 01/10, p2)

However, a somewhat different opinion was put forward by Whitlam K Togamae who is a private sector lawyer based in Honiara but who also practises in Nauru and Marshall Islands (neither of which have dedicated law reform agencies). He comments, ‘The regionalism approach in most resource related laws, fisheries, environment and commerce makes the work of law reform commissions irrelevant’. It would seem that whilst there are some areas where it is more appropriate or effective to have a standardised or uniform approach to law, there are others where the need for cultural, political or community buy-in is sufficiently strong as to necessitate for something that is more home-grown in nature.

So, to return to the original question – do we need dedicated agencies and administrative processes to do the law reform that is needed and desired or should Pacific island jurisdictions be using a different methodology or mechanism that is more ‘fit for purpose’ given competing priorities and capacity constraints in small jurisdictions? Tung-Lam Dang highlights that institutional law reform can have its drawbacks:

… I am a little skeptical of ‘institutional’ law reform, which I understand to mean a specific administrative setup dedicated to that task. The danger here is reform for the sake of reform, or worse yet the uncritical import of international priorities which may or may not correspond to local needs. Sometime what is present although theoretically inferior to perceived current norms has the advantage of being well understood and well implemented. The litmus test should always be not how a law looks on the shelf but how it is implemented.

This is a valid point and it is related to an issue that is important within the the wider context of legislating – sometimes it may be that the legislative ‘solution’ is not necessarily the one that is most appropriate and, in some situations, adding more law may actually result in making a bad situation worse. More significantly, too much reliance on legislation and law reform by government can lead to the dilution of the legislative process overall with the community at large losing (or perhaps more realistically failing to gain) any faith in positive contributions to every day life resulting from laws as enacted by parliaments.

This entry was posted on Wednesday, September 26th, 2012 at 6:00 am and is filed under Pacific Voices. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.