Law of Vanuatu

Last updated

Law in the Republic of Vanuatu consists of a mixed system combining the legacy of English common law, French civil law and indigenous customary law. The Parliament of Vanuatu is the primary law-making body today, but pre-independence French and British statutes, English common law principles and indigenous custom all enjoy constitutional and judicial recognition to some extent.

Contents

Historical origins

Vanuatu did not exist as a politically, judicially or even conceptually unified entity prior to its being named the "New Hebrides" by James Cook in 1774, and subsequently its joint colonisation by France and the United Kingdom in 1906. [1] The French and British established a condominium, whereby separate but coexisting French and British colonial authorities would administer their own settlers, as well as settlers of other nationalities who placed themselves under the jurisdiction of either administration. Joint regulations were also issued, some of which affecting the indigenous inhabitants. For the most part, however, indigenous Neo-Hebrideans simply remained outside the jurisdiction of colonial administration, which de facto considered that indigenous custom was sufficient to regulate the "native" societies, albeit without granting custom any official recognition. [2] In addition to specific colonial regulations issued by the British High Commissioner of the Western Pacific, the British Resident Commissioner in the New Hebrides, and the French High Commissioner of the Pacific, as well as joint condominial regulations, applicable law in the colonial New Hebrides included acts of the French Parliament stated to apply to the New Hebrides, or to French colonial territories generally, acts of the British Parliament stated or deemed to apply to the colonies, and "English rules of common law and equity", all except where inappropriate to the specific circumstances of the New Hebrides. [3]

Thus, when the New Hebrides became independent as the Republic of Vanuatu in 1980, they had not inherited any unified legal system from the colonial period, and nor had they any unified precolonial legal tradition to refer back to.

Constitution

The Constitution of Vanuatu, which came into effect upon the country's formal accession to independence on July 30, 1980, establishes the bases of the country's law. Art.2 defines the Constitution as the supreme law of the country. Articles 15 and 16 create a Parliament as the Republic's legislative body. Art.47 establishes the judiciary, the function of which is to "resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to substantial justice and whenever possible in conformity with custom." Art.95 states that pre-independence "Joint Regulations and subsidiary legislation", as well as any "British and French laws in force or applied in Vanuatu" at the time of independence, continue to apply "with such adaptations as may be necessary to bring them into conformity with the Constitution", and (in the English version of the Constitution) "wherever possible taking due account of custom", until and unless repealed by Parliament. Art.95(3) stipulates that "[c]ustomary law shall continue to have effect as part of the law of the Republic of Vanuatu", without specifying any restrictive clauses thereupon. [4] Art.95 has been interpreted as recognising the continuance of English common law and principles of equity as well as British and colonial statutes. [3]

The French version of art.95 (labelled art.93), which has equal force with the English text, states that French and British laws in force at the time of independence continue to have effect insofar as they are compatible with custom. [5] Thus the English text gives pre-eminence to colonial statutes over custom, while the French text provides the reverse. This contradiction has not been resolved, [6] though in practice, courts have chosen to apply pre-independence statutes in preference to [7] custom. [8]

For the sake of clarification, in 1988, the Revised Laws of Vanuatu were adopted, intended to "have effect as a consolidation and as declaratory of the written laws" applicable in the country. [9]

Codes

Criminal and civil procedures are codified in a Civil Procedure Code [10] and a Criminal Procedure Code, [11] adopted shortly after independence.

Custom

Customary law in Vanuatu is, by its very nature, diverse, as each community has its own customs. Thus customary law is applied primarily by local courts. In 1983, the Island Courts Act created courts with jurisdiction to hear minor civil and criminal cases in accordance with local custom, "so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order". [12]

Courts

Island Courts deal with minor civil and criminal cases, as well as all cases pertaining to ownership of land. Magistrate's Courts may hear certain criminal and civil cases in first instance, and hear appeals from Island Courts, except in land ownership cases (for which appeals lie directly to the Supreme Court). The Supreme Court has "unlimited jurisdiction to hear and determine civil and criminal proceedings", and hears appeals from the Magistrate's Courts. The Court of Appeal "has the same power, authority and jurisdiction as the Supreme Court" and hears appeals from the latter. [13] The Court of Appeal is "constituted by two or more judges of the Supreme Court sitting together", per art.50 of the Constitution. [4]

The Supreme Court has jurisdiction to provide binding interpretations of the Constitution, per art.53(3) thereof, which provides: "When a question concerning the interpretation of the Constitution arises before a subordinate court, and the court considers that the question concerns a fundamental point of law, the court shall submit the question to the Supreme Court for its determination." [4]

Public Solicitor of Vanuatu

In the original Constitution of Vanuatu, Article 54 called for the establishment of a Public Solicitor of the Republic of Vanuatu. The Public Solicitor's Act of 1984 made further provisions by ensuring that the person filling the position was a legal practitioner. [14] Chapter 177 (1988) of the Laws of the Republic of Vanuatu would further outline the functions of the Public Solicitor. [15] The Public Solicitor is to provide legal assistance to needy individuals or to any person when directed by the Supreme Court of Vanuatu. [16] The office is dependent on graduate lawyers who do not possess the two-year requirement necessary to practice before any court of law in Vanuatu. [17] The Public Solicitor Act was amended again in 2016. [18]

Public Solicitor of Vanuatu (Incomplete Table)
NameTerm
Oliver Saksak [19] c. 1985-1986
Gerald Rissen [20] [21] c. 1987-1996
Henzler Vira [22] [23]

Hillary Toa [24]

c. 2007-2009
Jacob Kausiama [25] [26] [27] c. 2011-2014

Public Prosecutor of Vanuatu

The Office of the Public Prosecutor of the Republic of Vanuatu commenced in 2003 and is governed by the Public Prosecutor's Act [CAP 293]. Whereas the Public Prosecutor has no authority to direct a police investigation, s/he can serve in an advisory capacity. The decision to prosecute is dependent upon the completion of the evidential test. [28]

Public Prosecutor of Vanuatu (Complete Table)
NameTerm
Nicholas Mirou [29] c. 2003-2005
Kayleen Tavoa [24] [30] (1st female)c. 2005-2014
Josiah Naigulevuc. 2015-

Co-existence of French and British law

In those rare cases in which French and British laws applicable in Vanuatu may contradict each other, Chief Justice Vaudin d'Imecourt reasoned in Banga v Waiwo (1996) that the courts should "find a solution in conformity with the rules of equity". [31]

In practice, courts have tended to strongly favour the maintaining of English legal procedures. Case law, an English legal principle, applies in Vanuatu, enabling judges to shape the law through their rulings and interpretations, and to create binding legal precedents. English common law precedents are applied in preference to other legal sources. [32] Chief Justice Vaudin d'Imecourt has explained this by the fact that an overwhelming majority of legal professionals in Vanuatu are trained in common law, and thus have little or no training in French law (or ni-Vanuatu custom). [33]

Co-existence of custom and other sources of law

Miranda Forsyth, of the University of the South Pacific, has argued that custom (known in Bislama as kastom) is de facto ignored by courts, and solely (and unofficially) "administered by communities and chiefs". She notes that judges have been reluctant to apply it not only because they are trained in common law, but also because they have considered custom, which is inherently local, to be ill-suited for application in national courts, where the principle of stare decisis might give one local custom binding force throughout the country. [34] [35]

See also

Related Research Articles

<span class="mw-page-title-main">Politics of the Pitcairn Islands</span>

The Pitcairn Islands are a British Overseas Territory in the South Pacific Ocean, with a population of about 50. The politics of the islands takes place in a framework of a parliamentary representative democratic dependency, whereby the Mayor is the head of government. The territory's constitution is the Local Government Ordinance of 1964. In terms of population, the Pitcairn Islands is the smallest democracy in the world.

<span class="mw-page-title-main">History of Vanuatu</span>

The history of Vanuatu spans over 3,200 years.

<span class="mw-page-title-main">Politics of Vanuatu</span> Political system of Vanuatu

The politics of Vanuatu take place within the framework of a constitutional democracy. The constitution provides for a representative parliamentary system. The head of the Republic is an elected President. The Prime Minister of Vanuatu is the head of government.

In most common law jurisdictions, the attorney general or attorney-general is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enforcement, prosecutions or even responsibility for legal affairs generally. In practice, the extent to which the attorney general personally provides legal advice to the government varies between jurisdictions, and even between individual office-holders within the same jurisdiction, often depending on the level and nature of the office-holder's prior legal experience.

<span class="mw-page-title-main">New Hebrides</span> 1906–1980 Anglo-French condominium (modern Vanuatu)

New Hebrides, officially the New Hebrides Condominium and named after the Hebrides Scottish archipelago, was the colonial name for the island group in the South Pacific Ocean that is now Vanuatu. Native people had inhabited the islands for three thousand years before the first Europeans arrived in 1606 from a Spanish expedition led by Portuguese navigator Pedro Fernandes de Queirós. The islands were named by Captain James Cook in 1774 and subsequently colonised by both the British and the French.

<span class="mw-page-title-main">Prosecutor</span> Legal profession

A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in civil law. The prosecution is the legal party responsible for presenting the case in a criminal trial against the defendant, an individual accused of breaking the law. Typically, the prosecutor represents the state or the government in the case brought against the accused person.

The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. In the courts, the judiciary interpret and apply the law of Canada. Some of the courts are federal in nature, while others are provincial or territorial.

<span class="mw-page-title-main">Supreme Court of the Philippines</span> Highest court in the Philippines

The Supreme Court (Filipino: Kataas-taasang Hukuman; colloquially referred to as the Korte Suprema, is the highest court in the Philippines. The Supreme Court was established by the Second Philippine Commission on June 11, 1901 through the enactment of its Act No. 136, an Act which abolished the Real Audiencia de Manila, the predecessor of the Supreme Court.

<span class="mw-page-title-main">Supreme Court of Singapore</span> National supreme court

The Supreme Court of Singapore is a set of courts in Singapore, comprising the Court of Appeal and the High Court. It hears both civil and criminal matters. The Court of Appeal hears both civil and criminal appeals from the High Court. The Court of Appeal may also decide a point of law reserved for its decision by the High Court, as well as any point of law of public interest arising in the course of an appeal from a court subordinate to the High Court, which has been reserved by the High Court for decision of the Court of Appeal.

<span class="mw-page-title-main">Judicial system of Turkey</span>

The judicial system of Turkey is defined by Articles 138 to 160 of the Constitution of Turkey.

<span class="mw-page-title-main">Court of Appeal of Singapore</span> Supreme appellate court of Singapore

The Court of Appeal of Singapore is the highest court in the judicial system of Singapore. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the chief justice, who is the president of the Court, and the judges of the Court of Appeal. The chief justice may ask judges of the High Court to sit as members of the Court of Appeal to hear particular cases. The seat of the Court of Appeal is the Supreme Court Building.

The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system. The revised Constitution of 1987 codified judicial independence in Article 103, which states that, "Judges rule independently according to their conscience and in conformity with the Constitution and the law." The 1987 rewrite also established the Constitutional Court, the first time that South Korea had an active body for constitutional review.

<span class="mw-page-title-main">Judiciary of the Czech Republic</span> Overview of court system in Czech Republic

The Judiciary of the Czech Republic is set out in the Constitution, which defines courts as independent institutions within the constitutional framework of checks and balances.

<span class="mw-page-title-main">Outline of Vanuatu</span> Overview of and topical guide to Vanuatu

The following outline is provided as an overview of and topical guide to Vanuatu:

<span class="mw-page-title-main">Solicitor General of the Philippines</span> National law officer

The Office of the Solicitor General of the Philippines, formerly known as the Bureau of Justice, is an independent and autonomous office attached to the Department of Justice. The OSG is headed by Menardo Guevarra.

<span class="mw-page-title-main">Supreme Court of Nauru</span> Court in Nauru

The Supreme Court of Nauru was the highest court in the judicial system of the Republic of Nauru till the establishment of the Nauruan Court of Appeal in 2018.

<span class="mw-page-title-main">Supreme Court of Mauritius</span> The Mauritius Supreme Court formed 1850

The Supreme Court of Mauritius is the highest court of Mauritius and the final court of appeal in the Mauritian judicial system. It was established in its current form in 1850, replacing the Cour d'Appel established in 1808 during the French administration and has a permanent seat in Port Louis. There is a right of appeal from the Supreme Court of Mauritius directly to the Judicial Committee of the Privy Council in London. The Judicial Committee of the Privy Council (JCPC) is the court of final appeal for Mauritius.

<span class="mw-page-title-main">Judiciary of Solomon Islands</span> Branch of the Government of Solomon Islands

The judiciary of Solomon Islands is a branch of the Government of Solomon Islands that interprets and applies the laws of Solomon Islands, to ensure equal justice under law, and to provide a mechanism for dispute resolution. The legal system is derived from chapter VII, part II of the Constitution, adopted when the country became independent from the United Kingdom in 1978. The Constitution provided for the creation of a High Court, with original jurisdiction in civil and criminal cases, and a Court of Appeal. It also provided for the possibility of "subordinate courts", with no further specification (art.84).

<span class="mw-page-title-main">Judiciary of Uruguay</span>

The judiciary of Uruguay is a branch of the government of Uruguay that interprets and applies the laws of Uruguay, to ensure equal justice under law, and to provide a mechanism for dispute resolution. The legal system of Uruguay is a civil law system, with public law based on the 1967 Constitution, amended in 1989, 1994, 1997, and 2004. The Constitution declares Uruguay to be a democratic republic, and separates the government into three equal branches, executive, legislative and judicial. Private relationships are subject to the Uruguayan Civil Code, originally published in 1868. The Constitution defines the judiciary as a hierarchical system courts, with the highest court being a five-member Supreme Court, who are appointed by the legislative branch of the government, for ten-year terms. The Supreme Court appoints the judges of most of the lower courts. Below the Supreme Court, there are sixteen courts of appeal, each of which has three judges. Seven of the courts of appeal specialize in civil matters, four specialize in criminal matters, three cover labour law, and two focus on family matters. At the lowest tier are justices of the peace and courts of first instance specialized in administrative, civil, criminal, customs, juvenile, and labour cases. Although the hierarchy, all of them are functionally and structurally impartial, that is, the tribunal should not be interested in the object of the particular case, and the higher tribunal does not impose a behaviour nor precedent to the lower ones. There are also separate courts for auditing, elections and the military.

<span class="mw-page-title-main">Law of Cyprus</span>

The law of Cyprus is a legal system which applies within the Republic of Cyprus. Although Cypriot law is extensively codified, it is still heavily based on English common law in the sense that the fundamental principle of precedent applies.

References

  1. William F.S. Miles, Bridging Mental Boundaries in a Postcolonial Microcosm, Honolulu: University of Hawai'i Press, 1998, ISBN   0-8248-2048-7, pp.15-16
  2. Miles, op.cit., pp.33-7
  3. 1 2 "Vanuatu - Sources of Law", Pacific Islands Legal Information Institute
  4. 1 2 3 Constitution of Vanuatu
  5. Constitution of Vanuatu Archived 2011-02-16 at the Wayback Machine , French language version
  6. Anthony Angelo, "L'application du droit français au Vanuatu", Pacific Islands Legal Information Institute
  7. "Pacific Media Centre | articles: VANUATU: Public Prosecutor considers libel action against assaulted publisher". Pacific Media Centre. Pacific Media Centre. Retrieved 2018-03-13.{{cite web}}: CS1 maint: others (link)
  8. "Beyond Case Law: Kastom and Courts in Vanuatu" Archived 2012-03-05 at the Wayback Machine , Miranda Forsyth, University of French Polynesia
  9. Revised Laws of Vanuatu 1988
  10. Civil Procedure Code Archived 2011-02-21 at the Wayback Machine
  11. Criminal Procedure Code [ permanent dead link ]
  12. Island Courts Act 1983, s.10
  13. "Vanuatu Courts System Information", Pacific Islands Legal Information Institute
  14. "Legal profession". Commonwealth Law Bulletin. 11: 183–199. January 1985. doi:10.1080/03050718.1985.9985794.
  15. "Office of the Public Solicitor" (PDF).
  16. Powles, Guy; Pulea, Mere (1988). Pacific Courts and Legal Systems. editorips@usp.ac.fj. ISBN   9789820200432.
  17. Forsyth, Miranda (2009-09-01). A Bird that Flies with Two Wings: Kastom and State Justice Systems in Vanuatu. ANU E Press. ISBN   9781921536793.
  18. "REPUBLIC OF VANUATU / BILL FOR THE PUBLIC SOLICITOR (AMENDMENT) ACT NO. OF 2016" (PDF).
  19. "Hon. Justice Saksak Abraham Oliver - Judiciary of the Republic of Vanuatu". courts.gov.vu. Retrieved 2018-03-15.
  20. Vanuatu law reports. 1996.
  21. LAMB, DAVID (1987-07-14). "Reporter's Notebook : Admiration for U.S. Fuels Offbeat Statehood Drive in New Caledonia". Los Angeles Times. ISSN   0458-3035 . Retrieved 2018-03-14.
  22. "REPUBLIC OF VANUATU / COUNTRY REPORT 26th PACIFIC ISLANDS LAWOFFICERS NETWORK( PILON) (Rarotonga, Cook Islands 5– 1O December 2007)".{{cite web}}: Missing or empty |url= (help)
  23. REPUBLIC OF VANUATU / COUNTRY REPORT 28th PACIFIC ISLANDS LAW OFFICERS NETWORK MEETING (PILON) (Apia, Samoa, 12–16 December 2009)
  24. 1 2 "Induction Program for Members of the 9th National Parliament of the Republic of Vanuatu" (PDF). October 2008.
  25. "REPUBLIC OF VANUATU / COUNTRY REPORT30th PACIFIC ISLANDS LAW OFFICERS NETWORK (PILON) ANNUAL MEETING 4-6 December 2011, Auckland, New Zealand" (PDF).
  26. "EPUBLIC OF VANUATU / COUNTRY REPORT 31st PACIFIC ISLANDS LAW OFFICERS NETWORK MEETING (PILON) (Kokopo, Papua New Guinea, October 2012)" (PDF).
  27. "Public Solicitor's Office Vanuatu / LAWYER HANDBOOK 2015" (PDF).
  28. "Public Prosecutors Office". mjcs.gov.vu. Retrieved 2018-03-13.
  29. "SOLOMON ISLANDS GOVERNMENT QUESTIONNAIRE FOR THE AUSTRALIAN FEDERAL DIRECTOR OF PUBLIC PROSECUTIONS, MR DAMIAN BUGG QC" (PDF).
  30. "Vanuatu public prosecutor Tavoa quits over alleged negligence". Radio New Zealand. 2014-01-30. Retrieved 2018-03-13.
  31. Vaudin d'Imecourt C.J., Banga v Waiwo, Supreme Court of Vanuatu, 1996
  32. "Beyond Case Law: Kastom and Courts in Vanuatu" Archived 2012-03-05 at the Wayback Machine , Miranda Forsyth, University of French Polynesia
  33. Vaudin d'Imecourt C.J., Banga v Waiwo, op.cit.
  34. "Beyond Case Law: Kastom and Courts in Vanuatu" Archived 2012-03-05 at the Wayback Machine , Miranda Forsyth, University of French Polynesia
  35. Miranda Forsyth, A Bird that Flies with Two Wings: The kastom and state justice systems in Vanuatu , ch.5: "The relationship between the state and kastom systems", 2007