Community Testimonies of visiting Pacific Island Judges for the Pacific Island Legal Institute Welcome Reception & Exhibit, 2019

Community Testimonies of visiting Pacific Island Judges for the Pacific Island Legal Institute Welcome Reception & Exhibit, 2019

Community Testimonies
Judicial System in Pacific Islands Countries
Legal Education
Current Challenges
Land and Title System
Family Law
Customary law in Pohnpei
Aliitai Lilio, Associate Judge American Samoa
Sovereignty of Hawaii Future Judiciary in Hawaii
Dean Avi Soifer's Final Remarks

A community testimony of visiting Pacific Island Judges engaging in inter-island and intergenerational conversation with Assistant Professor of Law Troy Andrade of Hawaii and Ulu Lehua Scholars Bev Simina of Chuuk, Lydia Fuatagavi of American Samoa, and Rockyner Hadley of Pohnpei regarding traditional/customary laws and western laws, family law, Native land title, and constitutional law with regards to indigenous and immigrant populations. The judges they asked questions to were: Nixon David, Associate Judge, Traditional Rights Court, Republic of Marshall Islands; Eneriko Ekiek, Associate Justice, Pohnpei; Walter K. Elbon, Chief Judge, Traditional Rights Court, Republic of Marshall Islands; Iosefa Faiai, Associate Judge, American Samoa; Salvador Ingereklii, Associate Judge, Palau; Davidson Jajo, Associate Judge, District Court, Republic of Marshall Islands; Grace Leban, Associate Judge, Traditional Rights Court, Republic of Marshall Islands; Aliitai Lilio, Associate Judge, American Samoa; Caios Lucky, Pro Temp Judge, Republic of Marshall Islands; Genevieve Mangefel, Pro Tem Judge, Yap; Erwine Nanpei, Associate Justice, Pohnpei; Pita Pomele, Associate Judge, American Samoa; Muasau Tasina Tofili, Associate Judge, American Samoa; Jesse Torwan, Associate Justice, Yap; Alaalafaga Tunupopo, Associate Judge, American Samoa; Kerio Walliby, Associate Justice, Chuuk; Chang William, Chief Justice, Kosrae.

7-Jan-19

Permission granted for viewing.

PICO:1

Dr. Troy Andrade, Bev Simina, Lydia Fuatagavi, and Rockyner Hadley.

Nixon David, Associate Judge, Traditional Rights Court, Republic of Marshall Islands; Eneriko Ekiek, Associate Justice, Pohnpei; Walter K. Elbon, Chief Judge, Traditional Rights Court, Republic of Marshall Islands; Iosefa Faiai, Associate Judge, American Samoa; Salvador Ingereklii, Associate Judge, Palau; Davidson Jajo, Associate Judge, District Court, Republic of Marshall Islands; Grace Leban, Associate Judge, Traditional Rights Court, Republic of Marshall Islands; Aliitai Lilio, Associate Judge, American Samoa; Caios Lucky, Pro Temp Judge, Republic of Marshall Islands; Genevieve Mangefel, Pro Tem Judge, Yap; Erwine Nanpei, Associate Justice, Pohnpei; Pita Pomele, Associate Judge, American Samoa; Muasau Tasina Tofili, Associate Judge, American Samoa; Jesse Torwan, Associate Justice, Yap; Alaalafaga Tunupopo, Associate Judge, American Samoa; Kerio Walliby, Associate Justice, Chuuk; Chang William, Chief Justice, Kosrae

0:00 Troy Andrade [introduces himself in Hawaiian and his work as as professor. Introduces his students who are part of the Ulu Lehua Scholars Program.

0:46 Bev Simina, Chuuk, 2L

1:09 Lydia Fuatagavi, American Samoa

1:36 Rockyner Hadley, Pohnpei

2:00 Troy begins to ask questions 2 two judges
Kingdom of Hawaii is his own
How the U.S. influenced your judicial systems?

2:45 Grace Leban, Associate Judge, Traditional Rights Court, Marshall Islands, Land Cases regarding land disputes based on custom. We don't have all our customary laws documented. We are very much influenced by the U.S.

4:03 - Troy returns with question: If customary law is not physically recorded, how does it get passed on?

4:10 - Grace Leban: Well, traditionally they were orally passed down. Now our trials are recorded. What I mean is that. When we say customary laws, those are not documented. We just basing our decision based on what we know about customs and what is passed down.

4:41 - Troy: How many judges are with you on the court?

4:44 - Grace: It’s a three member panel on the TRC

4:49 - Troy: are there any judges here.

4:52 - Grace: Yes, I do have my other two colleagues, presiding judge Walter Elbon and Associate Judge Nixon David. And we each represent land title in the Marshall Islands. We have three land titles.

5:14 - Troy: Thank you. Do you [sorry, I am going to keep firing away questions.. [laughter]] Do you rely a lot on American property law in making your decisions?

5:29 - Grace: um

5:30 - Troy: or is it based on custom?

5:33 - Grace: yes, it is based on custom because our lands are still owned by families.

5:40 - Troy: ok, thank you. Judge, do you have any comments? On how custom has been incorporated into your judicial systems?

5:53 - Genevieve Mangefel, Pro Tem Judge: I think we include it on a case by case basis. Its brought up during trials of certain cases that will bring customary law into the picture. And by law, the judge will have to take that into account in the decisions.

6:15 - Troy: So question for you. We struggle with this in Hawaii. Who determines what is a custom?

6:22 - Genevieve: Um, I'm not an expert but what I do know that is a lot of times they bring in elders to provide testimony as to what is customary law.

6:38 - Troy: and then you make a decision based upon...

6:38 - Genevieve: And that determination is made.

6:43 - Troy: Great. Another question I have for both of you, or anybody else who wants to jump in, please feel free to waive your hand and I'll pass you the mic. Are there efforts underway in your homes to encourage students to get a legal education.

7:08 - Genevieve: Um, the short answer is yes. But of course, they have a freedom of choice. So we really can't force someone to come to law school to study if they don't want to.

7:24 - Troy: What? [laughter]

7:34 - Grace: yes we do have a lot of students going to law school now. Most of them are attending the University of the South Pacific. And a lot of them have graduated and come back. They are doing research. So yes, we do encourage the future generation to go into law and law schools.

8:10 - Troy: What are some of the current challenges that you're facing at home? Some of the big issues? So, for example, in Hawaii there’s a lot of litigation, a lot of law studies(?) regarding Hawaiian customs and practices. We have a telescope that’s currently being built on what some Hawaiians consider a very sacred mountain, right? And there’s a clash between Western law and Hawaiian law, right? Are there examples like that in your homes that, um, you’d be willing to, not give your legal opinion on, but share with us?

8:56 - Caios Lucky, Pro Tem Judge, Republic of Marshall Islands: Um, let me try to response to your question. Good questions. My name is Caios Lucky and I’m the Pro Temp Judge working with the, uh, traditional kinds of method. So for your question what I understand: what challenges that we are facing related to our criminal system. Is it my understanding?

9:34 - Troy: Yes. Yeah.

9:35 - Caios: Okay. I think mostly now, uh, too much people were protected by the nuclear, and it’s very hard to proceed [with] their case to United States, to our home country. They settled it with several amount of money and that’s it. And people are still complaining where they going to go.... And I’m gonna challenge it’s gonna be affected in the future is climate change. You know if something happen, how can we.. I don’t know… go after. To what department, to who, and so forth. I mean, at least I understand.

10:41 - Troy: Yeah, thank you.Thank you for participating.

10:46 - Lydia: So, um, my question is, um, for the American Samoa judges or any other judge that would like to chime in. But, um, when I left home I didn’t learn a lot about the land and title system and a lot of my knowledge with the land and adverse possession is from the property classes here at the law school. I was wondering if there were any, um, is there any way I can learn more about land and title issues that are unique to American Samoa or any other island, that will help us students get to know that legal system that interacts with the culture?

11:34 - Go ahead and ? you folks. [Laughter]

11:38 - Lydia: Sorry.

11:50 - Iosefa Faiai, Associate Judge, American Samoa: See that’s why I’m sitting right next to our instructor so if I made a mistake she can correct me. Anyway, I’m the newest guy on the bench, so, I can make mistakes. Well, um, sitting here and listening to the customs and coming up I guess it’s the same thing I’m called to. Uh, that’s the only way we have our identity. We can be identified as Samoans, as Hawaiians, Marshall Islands. Besides the US. And go back in history, you know, we’ve been explored by the people from different countries and then some were under the French government, uh, us, both of us here are under the US. Then comes the US law and then we’re trying to be, some of us wants to be US citizens, some of us don’t want to be US citizens. And, you know, we’re trying to hold onto the other world at the same time we want to keep the old world. So, uh, I guess you have to make the best out of it, you know. You know, I was a senator before I became a judge. I was in the politics side of the house, and rules, but I found myself... It’s pretty interesting. We were talking to a class and one of the interesting things that our instructor was saying is that: you gotta protect the constitutional rights of the defendant. Whether it’s guilty or not guilty. You know, that’s the U.S. Now in Samoan law, made a whole difference, you know? But that’s the way you identify yourself. You grew up, you learn your culture, and then right now--to answer the question, maybe, or help answer the question--yes, we do have laws in Samoa about land: the Matai system.The head of the families, the immediate families, extended families, you know all that. The process of electing the leader of the each family or extended families and the land. We have allowed that no foreign country can buy the land there, it’s all communal land. Unless some families agree to buy or sell the portion of the land. We’re trying to hold--after all these years, we realize that culture is something that we need to hold on for generation and generation. So, it’s nice to have the US, it’s also nice to hold on to what you identify yourself. Maybe I can help. Did that help a little bit? Thank you.

15:49 - Bev: Um, my question is for any of the Micronesian judges but hopefully the Chuukese judge. One of the area of law that I wanted to study is family law. And the reason why I want to do that is that because that’s one of the area that most of the Chuukese population have hard time understanding, um, here in Hawaii. So my question is: do we--[inaudible]--ever have any family law cases in Chuuk or any of the FSM or Micronesian country? And how do handle family law cases? For example in Hawaii, child support.Whenever-- I used to work with a legal non-profit--and whenever there’s a child support or paternity case they would come in and complain: “Why do I have to pay child support?” So I have to explain to them: “Because you are the legal father and you have to support your child.” So how we address family law in our court back home?

17:14 - Kerio Walliby, Associate Judge, Chuuk: Thank you. Kerio Walliby from Chuuk, Associate Justice. Um, we do have family law and also family based on the US law. It’s not our culture. So that’s also where we are also having trouble here, in Guam, in Hawaii, and US, because we are carrying our culture through this society where it is not fit. So we’re trying to use and apply those cultures that is against the law. And I believe, uh, now that we do have the law back home, things will start to reduce the problems because we will start to realize that there is a law that protect the woman, protect the child, and protect the family. Because in our culture men are dominate the family. Whatever the man say, no matter what, the woman will follow. No matter what the man, even if abuse, or punch, or cause bruises to the woman and the child, they will always silent. Nowadays, change because of the law that we do have at this time. We have domestic law and we have also have that, um, divorce cases... that started in our court. And I believe because of the woman’s problem that started in Chuuk, they started to well-educate their women’s ideas that: you do have right and you can stand against that because, you know, be ashamed of what we have, you know, given by the husbands and all that. So, things change. But the only problems that sometimes comes to our court but is not real problem, is only from the US law. You know, the husband and the wife, they got married in the church and they got their vow that whatever, poor or rich, that’s still your husband and that’s still your wife. When it comes to court and the judge will decide but they say that only God can separate them too. Now they come to us and say: “Separate us, because we cannot marriage our husband, or my husband, or my wife.” So, something like that the court, I don’t mean that we follow what they did in the church, but we also look at it because it is something that we also interest to the husband and wife also to sort of look up and see how. And sometimes they would settle the case whether hat go through the legal process child support and all that. So I hope I can answer that.

20:29 - Troy: So if I understood that correctly, did the court in Chuuk feel pressure to change because of what was happening in Hawaii and Guam? [Walliby nods and Troy nods back] Change the laws? Yeah. Anybody else wanna respond as well? Family law?

20:52 - Davidson Jajo, Associate Judge, District Court, Republic of Marshall Islands: Um, my name is Davidson and I’m with the um, Marshall Islands District Court. I’ve been on the bench for approximately three years now and am the youngest judge of the Republic of the Marshall Islands, currently. Um, I looked at these questions. As first presented by one of your staff. The first question says: can you comment on the evolution of the judiciary and how through the courts efforts are made to legitimize local law? The courts has evolved through the years and I know very well through the years the debt, to um, ?? have the court so that nobody will touch it, has taken a toll on many, many aspects. Some of our judges intentionally have been removed from the bench by the legislative branch. In order to understand we have to have our court be separated from the other branches, which I think everybody understands what I state. Couple years ago there were some legislations [inaudible], and I believe Caios may remember, some laws were attempted to be passed [inaudible] to be passed by the legislative branch and the executive branch in order to change the outcomes of some traditional right cases, which were involved in our paramount chiefs in one of our domains. And I don’t believe that was passed through after numerous hearings by the community. The other question is, um: what do you think are most important legal issues or challenges affecting your courts today? And how will this year’s or past year’s Pacific Island Legal Institutes help you address these issues? Um, we have our chief justice that works with the other the branches when it comes to issues in this manner. But there are some steps taken affecting these challenges in the courts today, [inaudible] including land titles, and some amendments, you know(?), our criminal code, and, um, the changing of the courts mandate, so and so. Last question is: Have there really been issues regarding the national security and environment issues impacted the legal system? Yes, there has been. Um, the people of the atolls that are affected by the nuclear weapons, taking on things, government, and courts like international court of justice. To request just compensation. [inaudible] There shall be no other nuclear activity [inaudible] the Marshall Islands. The last question that came up is regarding family law. We have a former associate judge of the high court did a presentation, I believe, for the Pacific Islands. He did a presentation on the diminishing cultural aspects and the modernization as a result of Westernization of the Republic of the Marshall Islands. At that time the, um, the domestic violence protective act was put in place and there was some changes to be made to it since it’s really generalized. And family law includes, broken up into three parts and [inaudible] the other judges made clear that: family law---if I answered the question correctly---it falls under domestic violence and land title. Not including child support because our courts are modeled under the [inaudible] and we use the [inaudible] principles, the Bangalore principles. Those are the principles we use in our courts.

26:24 - Troy: Anyone else wanna comment on that question? Family law in your homes? Okay, got a simple question. Do you wanna ask? [Points to Rockyner, receives nod]. Go for it!

26:35 - Rockyner: Um, so, while everybody was talking I’ve been thinking about a lot of questions, but for now I’m only gonna ask one. Um, and this is mainly for my Pohnpeian judges. Um, in Pohnpei, um, there are like those uhdak in Pohnpei and then there’s those pwulitak in Pohnpei. The uhdak, um, they were like real Pohnpei--not real Pohnpeians--but like they were the people who were on the islands before everybody else went. And then the pwulitak they’re the people who like came in from long time ago even till today. I guess that the question is: in terms of the customary, like, traditions and, you know, practices, um, I know the Pohnpeian constitution they highly encourages traditional, you know, customs to be--to take precedence over, you know, case law so that it would create, um, a less costly legal system. Um, so the question is: in terms of people who’ve been there---pwulitak in Pohnpei, from maybe like the 1990s or so, um, who’ve adopted, you know, like these practices---does the Pohnpeian, you know, customary, uh, traditional law extend to pwulitak in Pohnpei as well?

28:19 - Eneriko Ekiek, Associate Judge, Pohnpei: My name is Eneriko Ekiek, my last name is, um, Chuukese. It is Chuukese last name but I’m a Pohnpeian. I am the US associate judge for the Pohnpei Supreme Court. Now your question, as I understand, you were referring to pwulitak and Uhdak. What I would like to say is: uhdak is the indigenous people of Pohnpei and pwulitak are those people who migrated to Pohnpei, like you said, from Chuuk, Yap, Kosrae and the outer islands from Pohnpei. Its a racial mix of race. Now, to answer the question, I don’t think you can find a pure Pohnpeian now, because we are so mixed. We have Japanese, we have Chinese, we have Germans, Americans, we have Koreans, we have Yapese, we have Chuukese, we have Kosraeans, so I don’t think there is a pure race Pohnpeian, an Indigenous Pohnpeian now a days. I hope I answered your question.

29:41 - Erwine Nanpei - Can you repeat your question? [To Rockyner]

29:51 - Rockyner Hadley - Sorry I just wanted to know if, like those traditional, customary practices extend to people as classified, in the constitution, as pwulitak in Pohnpei, the people who migrated to Pohnpei.

30:10 - Erwine Hadley - Thank you Mr. My name is Erwine Hadley. I am Associate Justice from Pohnpei Supreme Court. First, I would like to say our laws in Pohnpei are patterned after U.S. Laws. Somewhat, uh, not drastic change, but, it did change because of the culture. I believe that even though its a customary or western style law, those two they are, uh, made in order for the people to follow so we live in an harmonious society. So, to answer whether the customary practices superseding the western style law, I say that no, I think they are a combination to work toward the betterment of the society. So I would say that western. So what was said before to encourage our young people to go to Law School, in Pohnpei, we do. And, I think, uh, to address customary law, to focus on the Ms, the laws that came from Chuuk about domestic violence, the family law. In Pohnpei, in 2017, I think we just passed the domestic violence law, it has been found that there’s been abuse in marital union so a law has been passed, a domestic violence law, protecting specifically women and sometimes men. [laughing] Before, concerning the custody of minor children, in the past, they apply customary practices in such that if there is a need to keep custody of a minor, in our society, in Pohnpei, usually the custody goes to the men because he is the person that will give care to the children. So that’s why before more wise [inaudible] to have custody of the children because in the future, the children would learn from them. That has changed because what the courts now is focusing on is the best interest of the children. So the court has been educated minor children from birth to twelve years are mother has rights to control, because they can care for the needs of the children. So now, they don’t apply customary practice to the fathers. They see what is best for the children. The only time women may use custody, when she is hunted. Land laws, based on culture, needs of the people, and somewhat western style, probate cases, like before German time, up til 1957, when a person dies, the first born son. From 57-78 September 20, no, from 57-78 September 20, if the deceased made a will, then they will go. Then from July 1970 to now, if you die without will, then it goes among all children and spouse. And adopted children equal rights to children. But there’s a will. That’s all I can share. Did I answer your question?

35:56 - Troy - Thank you.

35:57 - Aliitai Lilio - Uh, my name is Aliitai Lilio. I’m from American Samoa. And I’d like to get back to Ms. Fuatagavi’s question and I will try to go back to family court. First, uh, the American presence in American Samoa is very strong. Our court is set up where we have one chief justice appointed by DOI, and two justice, appointed by DOI. And we have military judges for the court and our Constitution call for 6 associate judges. So that’s where we are right now. We have like a similar alluded be for, about how our laws protected our land. We all work for a managed [?] type in court. We all see all cases, associate judge, we have a seating judge, for that case, yes, we have law , as a matter of fact 95% of our land are communal land. There are steps to protecting those lands. I commended you for coming up here, I think that’s a wonderful question. We encourage our young ones to come up here for educations and especially law, to protect what we have. So yes, we have law, if you go to American Samoa , you can pull out the land law. Like I said, you have to go two steps to deal with land and title law. So the process you have to go to register, then you have to go Samoan Affairs, before you come to court. Unless there’s no other means, the court is the last result[?] of the land. So yes, there are law. Uh, your question on family court, we/I sit on family court, but like I said we have panel, like most of these judges do, we sit in court, we base our law on the U.S., we can’t get away from that. Same thing with domestic violence, it's very strong, like child support you alluded to, yes, so its the same thing here in Hawaii, we model some from here, and other states. And I think your other questions domestic violence and child support, yes, also we have adoption, and so forth. So the U.S. version[?] is very strong. So we are trying like a , like Judge Faiai alluded to earlier, we try to keep what we have, and we encourage the youth and we encourage you to take that opportunity, unless I missed something else, I just wanted to add that too. [39:08]

39:12 - Troy - Um, one last question before we close out shortly, and it’s kind of a deep question, and I wanted to ask you guys this and it might take a little time to answer it. But, um, in Hawaii, I just gave a talk today about the overthrow of the Kingdom of Hawaii and imagine a Hawaii where sovereignty was restored to the Hawaiian Kingdom and we were now a Pacific nation, much like all of you. What comments, suggestions, would you have to a future Hawaiian judiciary if there was ever one created based on your own experiences. Iʻve heard the themes of hold on to your culture, hold on to your tradition. Are there any other things you would advise for a new Hawaiian government if one was to be created. [silence]… I told you this would be a hard question. [laughter]

40:33 - Judge Tofili - Thatʻs a hard question to ask. Um, Iʻm talking about American Samoa. As mentioned by Judge Satele, and asked by Ms. Fuatagavi there, the custom and tradition, you have to hold on to it. I think the problem here in Hawaii, the people donʻt have lands anymore. But back in the islands in Samoa. 90% of our land owned by the people, communal land. It doesnʻt own by a person, but it controls by a chief. We have that system, I believe the Hawaiians were like that before. So what Iʻm getting at is every village in Samoa as a high chief and all the chief down the chain. We have district. Thereʻs a high chief in the district all the way down. The commoner, and the island as a whole. So if you donʻt have this system, you canʻt control land. The land controlled by the chief. Now, correct me if Iʻm wrong. We have 3 types of land in Samoa. Individual own land provided that you meet all qualification in order to purchase land. We have government land owned by the government and controlled by government. And then we have communal land, thereʻs a lot of land controlled by farmers. So, that custom and tradition is strong back home. It's hard for U.S. take. If the US comes in, thereʻs a law against that. Now here in Hawaii, I donʻt know if the islands still here have lands, if they have chiefs. They have kings or queens, i donʻt know what happened. It’s hard. Very very hard. If you are born in American Samoa, you care considered a US National. If you want to become a US citizen, you have to apply for it. You probably heard about news about that. We have some people born and raised in American Samoa, now live here in the mainland, they complain we should become citizens. We have agreement way back signed by forefathers that keep system and tradition as we are right now. I believe it's very strong. We got to hold on to it. If we lose that, it's gonna happen just like what happened here in Hawaii.

47 minutes, 59 seconds