Yap court seeks to test bar candidates' knowledge of customary laws

Yap State Court/Photo courtesy of YapGov

By Pacific Island Times News Staff

The Yap State Court has proposed requiring bar candidates to pass a general exam on Yapese traditional and customary laws as a prerequisite to practicing law in the state.

The yet-to-be-developed exam on cultural laws would supplement the Federated States of Micronesia’s regular bar exam for lawyers seeking to join Yap’s legal sector.

The proposed general court order, which would amend the Rules of the State Bar of Yap, was announced on April 7.

“Under the court’s rulemaking procedure, the public has twenty business days—or until May 5, 2025—to submit comments on the proposed amendments,” the court said in a press release.

While the Western legal system is generally adopted in the FSM, court decisions in the 1980s took cultural traditions into account in deciding cases.

In the FSM v. Mudong ruling in 1982, the FSM Supreme Court held that, “Under appropriate circumstances, customary law may assume importance equal to or greater than particular written provisions in the National Criminal Code.”

In another ruling, the court emphasized the role of traditional customs in resolving a conflict.

“While the court may find that a criminal defendant’s conduct did not violate the criminal law and the defendant owes no debt to society in general, this does not suggest that the defendant has necessarily fulfilled all customary obligations he may owe to a relative who was the victim of his actions,” the court stated in the 1982 decision on FSM v. Ruben.

At a conference in July 2023, the Pacific Judicial Council examined the revival of custom and tradition in the FSM’s legal systems.

“We found strong statements about the importance and role of customary law in the various constitutions, but little to provide much sense it was being used extensively by courts,” Miranda Forsyth, Australia National University professor, and Robert Torres, Guam Supreme Court justice, wrote in a post-conference op-ed piece published by the Development Policy  Center.

“Most of the available case law dates from the 1980s, when judges and parties seemed more interested in asking questions about how to use customary law to make the imported legal systems more relevant to the people they regulated,” the authors wrote.

“Over the years, the flow of cases considering these principles seemed to dry up, as Western common law jurisprudence dominated the basis of legal reasoning.”

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