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Comparative Legal Systems - TOPIC OUTLINES
Unitary versus Federal Systems
Legal/political systems in the world today can be divided roughly into unitary or federal systems. The division is a rough one in that there are certainly considerable variations within each type. This is one way of characterising and comparing them. Students should be familiar with unitary legal systems. All of the systems within the USP region and most of the rest of the Pacific are unitary systems. The Federated States of Micronesia is, however a federal system. As we shall see federal systems are however the most predominant type of legal system internationally.
At the conclusion of this topic you will:
- Understand the nature of a unitary legal system and the comparative advantages/disadvantages of such systems;
Understand the nature of federal systems and the comparative advantages/disadvantages of such systems;
Unitary versus Federal Legal Systems
One of the usual ways of classifying legal or political systems is in terms of the distinction between unitary and federal systems. Basically the classification rests on questions as to whether there is in any particular system a central authority which has final authority for the system as a whole (unified) versus one in which there are several composite and coordinate sets of political and legal institutions which have defined and thus independent spheres of authority.
The Nature of A Unitary System
As the name suggests a unitary system is one where there is one set of central institutions which have ultimate political and legal authority within the territory. There might in such a system be various other local or regional institutions of law and government, but these are regarded as essentially subordinate to the authority of the highest or central institutions. They are subordinate in the sense that the central authority can overrule or override any action taken by them.
Most of the countries of the USP region are of course unitary systems of law and government. The whole territorial area of each country is subject to the central authority of the one parliament, executive and judicial system. The Federated States of Micronesia is a different system because it is a federal system. The states of Kosrae, Yap, Ponapei and Truk have their own systems of law and government but there is also superimposed on this a national layer of law and government under a federal constitution which has authority in certain defined areas of national interest.
It is important to note that within any unitary system there are what we could call forces of regionalism or decentralisation. You will see examples of this below when we look at the unitary systems of the United Kingdom and France. There are pressures on the central institutions of government to provide greater regional autonomy and self determination.
The United Kingdom
The United Kingdom is a unitary legal system. The legislature comprising the lower, popularly elected house called the House of Commons and an upper house comprised of peers called the House of Lords, along with the Monarch as the symbolic head of State, functions as the central authority for the whole of the United Kingdom. The House of Lords also functions with a special as the highest court of appeal.
The legislature is strictly speaking the Queen in parliament but the monarch is constitutionally controlled by the parliament which is sovereign and therefore supreme. The House of Commons is a popularly elected house from electorates in England, Wales, Northern Island and Scotland so the parliament is thus the popular house of all these regions of the United Kingdom.
Executive authority is also centrally located and the hierarchy of the court system is also. There are what could be described as sub-legal systems England and Wales, Scotland (in respect of civil matters) and Northern Island but the House of Lords is the highest appellate court for the whole of the United Kingdom.
Whilst unity is maintained for the system a rather more realistic view is that the United Kingdom is highly diversified. The demands for home rule and or decentralisation in Celtic regions of Scotland Wales and Northern Island disrupt the superficial perception of homogeneity and unity within the United Kingdom. Concessions to contain these forces of localism within the appearance of legal unity are rather extensive. Scotland, for example has long functioned as if it were in vital respects an independent legal and political system with its own legal doctrines influenced by those of continental Europe. It has a distinctive educational and administrative system as well as its own Established Church. When matters pertaining to Scotland are debated in the United Kingdom parliament there are special conventions and procedures involved. For example, members of parliament from elsewhere rarely participate in debates on Scottish matters. There are special Committees such as the Scottish Standing Committee to deal with bills pertaining to Scottish matters. There is a separate Scottish Secretary of State with a special Scottish Office with a number of specialised departments. Administrative functions are highly devolved to Edinburgh.
To some considerable extent, the same is true of Wales which is in fact a principality. In many ways these are attempts to appease the incessant demands for local autonomy and independence which are often expressed as Home Rule or nationalism and put in terms of the need to protect Scottish and Welsh culture tradition and language. The current arrangements have never been accepted by nationalists as satisfactory, although it is long been difficult to tell the degree of popular support which the nationalists have. In relative terms Scotland and Wales have been less affluent in the past than England such that, whatever the fervour with which arguments for the preservation local tradition and culture are presented at times there are economic benefits to both to remain part of the wider United Kingdom.
Local governments exist in England and Wales but they are statutory creations and therefore creations of and subordinate to the UK parliament. They were largely created in the nineteenth century. They consist of various councils.
The Northern Island case is perhaps more unusual. Northern Island was settled by a largely Scottish Protestant population in the early seventeenth century imposing upon and displacing a large sector of the local Irish community in that region. The Protestant settlers became a majority in the Six Counties of the North of Ireland. This is now called Ulster but Ulster originally was made up of nine counties and was one of the four main provinces of Ireland as a whole. In 1920 Ireland was partitioned that is to say, divided into two parts as a kind of pragmatic and inept response to the republican demands and indeed rebellion aimed at self government in Ireland. Independence was granted to the southern region which is now known as the Republic of Ireland. Three of the catholic dominated counties of Ulster became part of the southern Republic. However Northern Island remained as part of the United Kingdom with an entrenched protestant majority and a catholic minority within that region.
The allegiance of the catholic minority has remained largely in favour of the republican movement; that is in favour of the complete unification of Ireland as a separate state. That of the Protestant majority has been that of loyalty to the United Kingdom which is regarded by them as having a duty to protect their particular interests. This has often manifested the phenomenon of 'ultra-loyalism'. This is the common colonial phenomenon of appearing to be more loyal to government of the mother country than its own citizens at home are.
In the late 1960s there emerged in Northern Ireland a spate of what is called 'the Troubles'. This involves sectarian protest and political violence between protestant and catholic political movements. This has continued to the present time. There have been various attempts to resolve this situation through numerous constitutional conventions and by proposals for local rule through a local parliament known as the Storemont. One was established in the early 1970s but failed. Another has been more recently established but is constantly on the brink of failure again owning to the inability of the two religious factions to work together and resolve historical antipathies.
The nature of the French unified system of governance versus federalism
The unified system of governance in France has origins pre-dating the French Revolution, linked to the successive attempts made by the Kings over centuries to unify the country, to expand and settle its boundaries. For example the right to issue legislation through ordinances (ordonnances) was an indispensable tool in the centralisation of power which took place during the period of the absolute monarchy (beginning with François 1st in 1494 until the revolution of 1789).
However, since the current system of governance is to a large extent inherited from the French revolution, which adopted the doctrine of separation of powers as a formal system of governance, it is particularly relevant to examine the contents of the revolutionary ideology in support of centralised systems of governance. Legal reform occupied a very prominent place on the agenda of the Revolutionaries and lead to a wave of codification with Napoleon Bonaparte (Empire period) .
The most important keyword in this respect is the term nation state (état-nation) where the state is meant to incarnate the aspirations of every citizen regardless of their belonging to socio-professional categories, religious groupings or minorities in line with Rousseau’s social contract. This view of the state combined with a typical approach to law, perceived as the expression of people’s will and based on the rights of the individuals, justify the denial of minority or group rights (including local and regional groups).
Further, the principle of equality in the republican tradition meant the abolition of privileges (of the nobles and the clergy) by promising an equality before the law while inequality in treatment by the law is legitimized (women were excluded from “universal suffrage” until 1946 for example). This principle necessarily impacted upon the system of governance by ensuring equal treatment throughout the Republic hence denying regional specificity.
A centralised structure of governance
The executive power:
The Fifth Republic (1958-ongoing) emphasises the role of the executive and in particular grants extended powers to the President of the Republic whose legitimacy is enhanced by universal suffrage. This stems from the necessity to overcome governmental instability and the weaknesses of the parliamentary regime of the Fourth Republic (1946-1958) which exercised the real political power. Because of the proportional representation electoral system, coalitions within the National Assembly were then inevitable whilst the National Assembly elected the President who was responsible before it and who relied on its support.
Presidentialism as the main feature of the Fifth Republic
With the 1958 Fifth Republic Constitution, the President becomes the superior judge of the national interests in that he/she has the authority to require Parliament to reconsider bills, to refer bills to the Conseil Constitutionnel and to dissolve the National Assembly (Article 5).
The President also appoints the Prime Minister and on his/her recommendation, the President appoints and dismisses other Ministers (Article 8).
The President is enabled to take emergency powers, subject to prior consultation with the Prime Minister and the Conseil Constitutionnel (Article 16).
These extended presidential powers represented a major shift in the system of governance since the government is now appointed by the President, not by the National Assembly to whom it is responsible only in limited ways:
- a government must resign only if it is defeated in a vote on its general programme
- a censure motion must secure an absolute majority of the members of the National Assembly
The legislative power:
Under the 1958 Constitution, the Parliament (National Assembly and Senate) is provided with limited ways of influencing the legislative process (tamed?).
Overall, the Parliament is granted the rights to introduce legislation (article 39 and 40), rights of amendment (article 44), legislative procedure (articles 42, 43, 45, 46), finance procedure (article 47), parliamentary timetable (articles 48 and 51), votes of confidence (articles 49 and 50) and rights of the Government of address the chambers (article 31).
In the area of legislation, Parliament has three main tasks: to initiate proposals (proposition de lois), to amend texts submitted to it (projets de loi), and to debate and vote on their political merits.
Most legislation comes from Government initiatives and bills initiated by individual members of parliament have little chance to succeed unless they receive Government support because they will not appear on the main parliamentary agenda but on the supplementary one.
While ordinary laws (lois) can be repealed by a bare majority of the National Assembly, organic laws (lois organiques) require an absolute majority of the National Assembly if the Senate does not concur, and must be approved by the Conseil Constitutionel.
Organic laws cover areas such as finance bill procedure, electoral law, and status of the judiciary.
Relationship between executive and legislative powers:
Since the 1958 Constitution of the Fifth Republic, the executive can govern effectively as it enjoys the power to legislate on matters outside the scope of Parliament’s competence which is detailed in Article 34.
Theoretically, this represents a major innovation in the system of governance since regalement (or laws adopted by the executive) now have an equal status over lois (laws adopted by parliament) in the constitutional hierarchy of laws.
In practice though this has produced little real change in the way the country has been governed since 1958. As Bell puts it, “once a stable parliamentary majority could be secured for the government, there was no need for recourse to executive decrees as a way of ensuring that legislation could be passed” .
The judicial powers:
In accordance with the principle of separation of powers incorporated in the post-revolutionary system of governance and first elaborated by Montesquieu, administration and courts must be independent from other each in order to guarantee the protection of individual freedoms. Hence the existence of a dual system of courts: ordinary courts (ordre judiciaire) and administrative courts (ordre administratif) .
These include civil and criminal courts and have two main functions: to adjudicate disputes between individuals in the sphere of civil law and to pass sentences against perpetrators of offences.
The principle of unity of criminal and civil justice means that the main ordinary courts have both criminal and civil jurisdiction, in other words the same judge may sit either as a criminal or a civil judge in the smallest courts.
Minor disputes of civil law are heard by the tribunal d’instance while minor criminal offences are heard by the tribunal de police.
The most important civil disputes are heard by the tribunal de grande instance (TGI) and on appeal by the cour d’appel. Similarly important criminal offences are heard by the tribunal correctionnel and appeals are heard by the chambre correctionnelle of the cour d’appel.
Appeals on cassation are heard by the Court de Cassation, often referred to as the Supreme Court. It is composed of five civil divisions and one criminal division. The Court de Cassation only deals with points of law and examines whether the law has been properly applied to the facts. If it considers that the law has been properly applied, it rejects the appeal. If it quashes the decision challenged, the case goes back to the Court of Appeal.
The Cour d’Assises is an exception to the principle of unity in that it is only competent to try serious crimes. Unlike other criminal courts, it consists of three professional judges and nine lay jurés. Judgments of the Court d’Assises cannot be appealed against the chambre correctionnelle of the cour d’appel. Only appeal to the Court of Cassation is available.
The administrative court structure is composed of a supreme court, the Conseil d’Etat, first instance courts, tribunaux administratifs, appeal courts, cours administratives d’appel, and a few specialised courts such as financial courts (Cour des comptes).
The Conseil d’Etat
The Conseil d’Etat is both an advisory and a judicial body. As an advisory body, it delivers opinions to the Government on legislative and administrative matters. As a judicial body, it deals with disputes between citizens and the administration.
The Conseil d’Etat has to be consulted on the following legislative matters: public bills before they are discussed in Cabinet (article 39 of the Constitution); ordonnances that the Government is authorised to make by Parliament in the domain of law (article 38 of the Constitution). If the Government fails to consult the Conseil d’Etat when it is required, its measure is declared void on the ground of lack of competence. On the other hand, the opinion delivered by the Conseil d’Etat is not usually binding on the Government (except in rare cases where its assent is required).
The judicial division of the Conseil d’Etat may act as a first instance court or as an appeal or cassation court. In addition, the Conseil d’Etat has special jurisdiction conferred by statute in the following matters:
- judicial review of administrative action brought against décrets (decrees)
- disputes involving civil servants appointed by décret
- judicial review of administrative acts adopted by members of the Cabinet where consultation with the Conseil d’Etat is compulsory
- judicial review of decisions of administrative bodies with nation-wise competence (professional board or examination boards) and boards of directors of State-owned corporations
The Conseil d’Etat can hear appeals against judgments of the administrative courts (tribunaux administratifs) following application for a review of legality by way of preliminary rulings (recours en appréciation de légalité).
An appeal in cassation can be made against judgments of administrative courts adjudicating as courts of last resort. The Conseil d’Etat can quash judgments of lower courts on the grounds of lack of competence, or vice de forme or misinterpretation of law.
The Conseil Constitutionnel
Originally created in 1958 as a mechanism to ensure that the Government and Parliament remain within their respective constitutional roles defined in article 34 and 37 of the Constitution, this institution is both an advisory body and a court specialised in the interpretation of the Constitution, making decisions binding on other bodies and courts.
The scope of its jurisdiction includes:
- supervision and legality of election process and referendums
- advisory role to the President seeking to use emergency powers (although advice is not binding it has considerable authority)
- constitutionality of treaties
- compulsory review of the constitutionality of organic laws before promulgation
- supervision of the boundaries of legislative competence between Parliament and the executive.
Decentralisation and regionalism in France
Regionalism in France emerged as a concept with the French revolution and in parallel with the idea of nation. It is a political movement reacting against centralisation (also termed jacobinisme, from the jacobins, a prominent political formation during post-revolutionary legal reform) and the very notion of a republican state.
A typical expression of centralisation and its impact upon the French regions is reflected by the imposition of the French language in administration and schools (as well as compulsory primary schooling free of charge) with a view of creating a republican nation made of free and equal individuals to the detriment of linguistic and cultural “minorities” (Bretons, Basques, Catalans, Corses, Savoyards, Alsaciens…).
Regionalist movements are varied and numerous in contemporary France, from pro-Europeans claiming that further integration within Europe will require nation states to be replaced by regional identities, left wing political formations (ETA in the Basque region, FLNC in Corsica, FLB in Brittany, FLNKS in New Caledonia) claiming further autonomy from the central government, to xenophobic reactions (also termed ethno-regionalism) justified by claims to remain within a minority group and to preserve its unity/purity (for example, racism in Corsica).
The territory of metropolitan France is divided in 3 major administrative units:
36 700 communes
One région is usually composed of 4 to 6-7 départements. For example, Languedoc-Roussillon is a région made of the following départements (Pyréenées Orientales, Aude, Hérault, Bouches du Rhône, Gard, Lozère)
In addition, France includes the following overseas territories, which have been granted varying degrees of autonomy from the state:
4 départments d’outre-mer/DOMs (Réunion, Martinique, Guadeloupe, Guyane)
1 collectivité territoriale de Corse
4 territoires d’outre-mer/TOMs (Nouvelle Calédonie, Polynésie Française, Wallis et Futuna, Terres Australes et Antarctiques Françaises)
2 collectivités à statut particulier (Mayotte, Saint Pierre et Miquelon)
The most comprehensive attempts of decentralisation were undertaken by law reform in 1982, transferring some of the state executive powers to the various administrative units of regional, territorial and local government (région, département, commune) and their regionally/locally elected representatives (conseillers régionaux, conseillers généraux, conseillers municipaux).
The scope of the powers transferred by the 1982/83 Lois Defferre include:
- social affairs, welfare services and housing (commune, département),
- primary education (commune) and secondary education (région),
- vocational training and apprenticeship (département, région),
- urban transport (commune) and public roads (commune, département),
- waste management (commune),
- water distribution (commune),
- environmental protection (région),
- culture/museums, archives, libraries (région/commune/département)
- economic incentives, local economic development (région/ départment/commune).
Advocates of decentralisation emphasize increased transparency and efficiency in decision-making by local representatives (maires) and regional representatives (conseillers/présidents de région/ département) as the main benefits from decentralisation.
In practice, regions have gained the most powers from decentralisation since economic and infrastructure development and land-use planning (aménagement du territoire) now fall within their domain of competence.
A number of issues remain to be addressed, such as reaching consensus between the central government and the regional councils on the extent of financial assistance needed to complete the decentralisation process. Taxation is a current issue that illustrate the limitations of the devolution of powers and a shift in the nature of claims for further autonomy from central government, with Corsica in particular seeking to be granted the power to levy its own taxes.
The status of Corsica and whether claims for further autonomy will be granted is currently subject of a national debate and will determine to a large extent the outcome of the coming presidential election. This is because the future status of Corsica may set a precedent for other regions, challenging the foundations of a centralised system of governance.
But decentralisation in France is not to be confused with federalism since the notion of nation-state remains intangible, at the core of republican values. For example if vernacular languages such as Breton are now available as an option within the curriculum of primary and secondary schools in Brittany, Corsica is the only example where the vernacular language has been made compulsory within primary schools in accordance with its special status. At present Corsica remains an exception (l’exception Corse).
Decentralisation and regionalism in France also need to be analysed in the broader context of European integration. Considering current criticisms on the perceived lack of legitimacy of decision making within the EU structures caused by the so-called democratic deficit of EU institutions, regionalism is compelled to take a supranational dimension.
With the establishment of the Assembly of Regions of Europe (ARE) regionalism and federalism in Europe were formally promoted. Since 1987 ARE has an observer status within the Council of Europe and partake in the EU decision making process having advocated and obtained the creation of a consultative Committee of Regions. Unlike the EU Commission (the main decision making body within the EU), the ARE derives its democratic legitimacy from its representatives, which are elected by the regions members of ARE. In 1996, regions members of ARE adopted a Declaration on Regionalism in Europe defining the future roles of regions within the European Union.
This last development adds a new dimension to the construction of the European identity and raises the question: if regional federalism becomes the path chosen to further EU integration, what happens to the concept of nation-state? Will it become obsolete?
Comparative Advantages of a Unitary System
1. Simplification of the lines of political and legal authority and processes
2. No undue duplication of main institutions of authority and bureaucracy; hence less public cost
3. One set of laws and institutions for all
4. Strong government through one central government
5. Unified laws and policies for all
6. Common laws for all contributes to strong national identity and nation building
Comparative Disadvantages of a Unitary System
1. Regional and local demands and interests ignored
2. Monopolisation of power at the centre
3. Urban, commercial and national interests predominate politics
4. Prone to and weakened factionalism
5. No 'ownership' of government by communities
6. Convergence politics
7. Law should reflect more diversity.
8. Weak government
The Nature of A Federal System
Federal systems are by far the most common systems in the world today. Many regard them as peculiarly modern creations; for example as implementers by the founders of the U.S.A. Constitution. However, they owe their beginnings to medieval theories. Countries such as Switzerland, India, the United States of America, Canada, Australia, Germany, and Federated States of Micronesia are federal systems. The former Soviet Union and the former Yugoslavia were also.
The term 'federal' came from a Latin word foedus meaning a treaty agreement or a compact, perhaps even an alliance. In a federal system power is divided between different levels of government one at the national level and several others at the provincial or regional level. Theoretically, each of the units of government national and provincial is independent of one another. They are what we call coordinate units rather than some (e.g. the regions) being subordinate to others.
Whilst the units of a federal system are coordinate and independent in legal theory the position in practice is much more complex. There are overlapping and ill defined areas of interaction between the units at the regional legal and between the regional units and the deferral or national unit. The natural of the federal compact is put in place by a constitution which defines at a particular point in time the relationship between the various units including explicitly the basis for sharing of power between them. But there is a kind of shifting balance of power which takes place over time which requires a constant readjustment by the courts of the relationship between the units. In federal systems one finds, accordingly, that the courts have an especially important role to play in judicial review of the constitution. The courts can effective shift the balance of power between the units.
There are numerous areas of potential tension between the various levels of government. Often these go to matters such as the allocation of finances between them. But it can affect a whole range of areas of legislative competency.
Federal systems can be formed in two ways either by an existing unitary state folding outwards to create several other regional units. More usually it is by several existing units folding inwards to form some national unit whilst retaining something of their own separate status. In Australia for example, existing British colonies came together to form Australia as a national unit in 1901. This was also the significant, but not the complete moment of independence from Britain. Arguably, like Solomon Islands it is still not completely independent. Another alternative is where the federal arrangement and each of the composite units is created simultaneously.
Given the nature of the arrangement federal systems have a written constitution. This is needed to define the relationships between the composite entities and to balance the power between them which can be quite complex. The constitution contains some provision which deals with the fundamental allocation of powers between the units of government. There are differences as to how this is done. In Canada, for example, power to deal with a specified list of matters is given to the provinces and the national government has whatever is left over. In Australia the reverse is the case. The national government (or federal government) is assigned power with respect to a list of specified matters and the regions, called 'States' have the residue. This reflects the relative strengths of the regions perhaps at the time they became federated.
A federal system is not the same thing as a confederation. A confederation is a loose arrangement between several independent states usually pursuant to some cooperative treaty or compact. However in such an arrangement there is no new national or unifying entity created. The arrangement under the Articles of Confederation of thirteen American States in 1781 was a confederation. Later on a proper federation was formed under the Constitution of the United States in 1788. Only at that point did a new national entity - the United States of America - come into existence.
We will examine two models of a federal legal system. These are Australia and the Federated States of Micronesia. The German system is another example which is discussed in your textbook.
The Australian federation was brought into effect after a series of constitutional conventions in the 1890s which settled the terms of the federal arrangement which was then adopted by each of the States, then self governing colonies of the United Kingdom, other than Western Australia. The federation came into effect when the constitution was ratified by an Act of the United Kingdom parliament in 1900. Australia came into existence as a federation in 1901. Western Australia later agreed to join and was admitted the constitution having made provision for its later admission. It was once proposed that New Zealand would be a member of an Australasian federation but this did not eventuate.
Australia thus was a creation out of the action both of the States, which more or less existed as sovereign entities, and the ratification of the new federal compact by the United Kingdom Parliament. The federation comprises the Australian national government and six States: New South Wales, Victoria, Queensland, Tasmania, South Australia and Western Australia. There are two mainland federal territories, the Northern Territory and the Australian Capital Territory both of which are self governing, but theoretically under federal governance. There are several other federal and indeed State territories but we need not be concerned with those.
In Australia the governmental systems at every level were influenced by the United Kingdom model. The federal system itself was not of course being influenced rather by the United States, the Swiss and the Canadian models of a federal system although none of these is particularly predominant. However at each level the legal system is based, in the final analysis on the U.K. Westminster model. This is a product of historical assumptions which were predominant at the time. In some respects the application of the Westminster model is a matter of assumption rather than explicit constitutional statement. The national constitution, for example, makes no mention of a Prime Minister or a Cabinet or other principles of responsible government. They were largely assumed as too obvious to be worth mentioning. Thus in effect the federal system in Australia is a blending of UK style government with federal principles. Some prefer to call it the 'Washminster model' but that is debatable.
Each State has its own constitution and this reflects the gradual emergence of the States as self governing colonies on the Westminster responsible government model at different stages throughout the 19th Century. Each State has its own parliamentary system, court system and system of executive government headed by State Governors who are appointed by the English Monarch. For the most part, the parliaments are bicameral. Some are not Queensland, for example, having abolished its upper house in 1949.
Each State has a three tiered court system from the Magistrates or local course, to the intermediate District or County Courts and then to the Supreme Courts of each State. The magistrates’ courts have powers with respect to criminal and civil matters. Criminal matters are limited to summary offences but the courts also deal with committal hearings on more serious charges. In civil matters the jurisdiction is limited with respect to the nature of the issue and the amount involved. In both civil and criminal cases the jurisdiction is highly diverse. These courts also hear most appeals from magistrates’ courts although there are specialised procedures in some matters to appeal direct to the Supreme Court.
Intermediate courts have statutory jurisdiction to deal with crimes excluding some serious crimes such as murder, and manslaughter. They have fairly extensive civil jurisdiction usually limited by reference to the amount of the subject matter in dispute and the nature of the remedies involved. The Supreme Courts are divided into specialised divisions on the UK Judicature Act model. Thus in New South Wales there is a Common Law Division, a Probate Division, a Commercial Causes Division and an Equity Division for example. There is a Court of Appeal for each State (and the main territories) which is effectively a specialised division of the Supreme Court. This is the highest appellate court for each State but the jurisdiction is, with certain exceptions established by cooperative legislation, limited to their territorial jurisdictions.
Both intermediate courts and Supreme Courts are constituted by judges who sit with juries on contested criminal matters and sometimes with a smaller number of jurors, on civil matters. When dealing with matters involving sentencing and most civil trials the judge sits alone. The Courts of Appeal usually have three judges of appeal hearing appeals.
Each of the States has their own bureaucracies headed by Ministers of the Crown on the responsible government model. They are systems of government in their own right with their own taxation and revenue raising systems. Each State has territorial sovereignty with respect to the area of its own territorial boundaries. The jurisdictions of the Supreme Courts are defined with reference to, and not beyond those limits. Each State is independent of the other.
Within each State there are systems of local shire or municipal government in the form of elected councils. These entities are subordinate to the government of the State and fall under the overall control of the Minister for Local Government or some such portfolio. They are strictly speaking creations of State government statutes. They raise revenue predominantly by law of the level of land rates and charges for utilities services such as water and sanitation, building and development licences. Sometimes this is in the form of special grants from State or federal governments. They have an important role to play in the control and regulation of local communities as well as in health regulation, imposition of building and development standards and environmental regulation.
At the federal level there is a system of federal or national courts, a national executive and a national parliament each established by the Australian Constitution. The federal parliament is a bicameral parliament consisting of a lower house called the House of Representatives and an upper house called the Senate. Members of the House of Representatives are elected on the basis of federal electorates spread throughout Australia. These are not determined in terms of equal populations for each electorate. They are weighted such that electorates with smaller populations (notably in rural areas) still elect one Member of Parliament whereas a city electorate with many more people would also only elect one member. The electoral system is a preferential system of voting.
The Senate was originally designed not only as a house of review but as a house to safeguard the interests of the States. The States are the electorates for the election of Senators. Thus despite their respective populations Tasmania (the smallest State) and New South Wales (the largest in terms of population) elect an equal number of senators. It has a different electoral system called proportional representation one consequence of which is to produce a larger number of minority parties in the Senate. Even so, the Senate has long behaved more as a party controlled house, dominated by the major parties and voting along party lines than as a States' House.
The power with respect to financial matters is reserved to the House of Representatives. Power over money bills must originate in the lower house and this reinforces the fiscal sovereignty of the lower house. Section 53 of the Constitution applies here:
"53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.
The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.
Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws."
In 1975 there was a constitutional crisis Australia which lead to the sacking of the Whitlam government. One of the issues was whether the Senate had power under section 53 to defer or delay passage of a money bill providing for the federal budget passed by the House of Representatives thus denying the government access to fiscal resources. The view that it does would make the Senate one of the most powerful upper houses in the world. The issue remains debatable.
As to the assignment of legislative powers section 51(1) and section 52 of the Australian Constitution set out the basis for this. Section 52 contains powers which are exclusive to the federal government (and cannot be exercised by the States) and section 51(1) other powers which are taken to be concurrent with the States (both can legitimately legislate with respect to them. The relevant provisions are as follows:
"51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -
(i.) Trade and commerce with other countries, and among the States:
(ii.) Taxation; but so as not to discriminate between States or parts of States:
(iii.) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:
(iv.) Borrowing money on the public credit of the Commonwealth:
(v.) Postal, telegraphic, telephonic, and other like services:
(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.
(vii.) Lighthouses, lightships, beacons and buoys:
(viii.) Astronomical and meteorological observations:
(x.) Fisheries in Australian waters beyond territorial limits:
(xi.) Census and statistics:
(xii.) Currency, coinage, and legal tender:
(xiii.)Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money:
(xiv.) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:
(xv.) Weights and measures:
(xvi.) Bills of exchanging and promissory notes:
(xvii.) Bankruptcy and insolvency:
(xviii.) Copyrights, patents of inventions and designs, and trade marks:
(xix.) Naturalisation and aliens:
(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:
(xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:
(xxiii.) Invalid and old-age pensions:
(xxiii A.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances:
(xxiv.) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:
(xxv.) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:
(xxvi.) The people of any race, for whom it is deemed necessary to make special laws:
(xxvii.) Immigration and emigration:
(xxviii.) The influx of criminals:
(xxix.) External Affairs:
(xxx.) The relations of the Commonwealth with the islands of the Pacific:
(xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:
(xxxii.) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:
(xxxiii.) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:
(xxxiv.) Railway construction and extension in any State with the consent of that State:
(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:
(xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:
(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:
(xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:
(xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
Note that (aside from section 52) section 51(1) is an exhaustive list of the powers of the national parliament. The list of relevant areas was compiled in the late 1800s. It does not contain what many would now regard as matters of essentially national interest such as the control of the national environment. It has largely been left to the High Court to expand range of the listed powers by liberal interpretation of some of the provisions. Note, however, that sub-head (xxxvii) makes provision for the referral of powers by the States to the Commonwealth. This opens the way for what is called co-operative federalism, involving some attempt to provide uniform laws throughout Australia on key areas. The regulation of corporations is one area in which this has occurred.
"52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to
(i.) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes:
(ii.) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government or the Commonwealth:
(iii.) Other matters declared by this Constitution to be within the exclusive power of the Parliament."
The powers under section 51(1) powers held concurrently with the States. What happens if both a State and the federal government should have passed laws relating to the one subject area? This would create extreme confusion on the part of citizens. Section 109 sets out to provide the appropriate balancing mechanism. It provides:
“109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
Note that it does not pronounce an inconsistent State law invalid altogether. It is invalid only to the extent of the inconsistency.
The States have a reserve of legislative powers. Matters which are not contained within sections 51 and 52 fall exclusively to the States. If the federal parliament were to attempt to legislate on them then the legislation would be ultra vires. This arrangement reflects the historical strength of the States when the compact was formed. The reverse is the situation in the Canadian federation where defined powers are given to the provinces and the federal government has a reserve of powers.
Notwithstanding the restrictions on federal legislative powers the balance of powers in Australia's federal system have shifted considerably towards the federal government. This has been implemented by the manner in which High Court has interpreted the Constitution. This process started in 1920. In 1942 the High Court upheld federal government legislation which, in effect, gave it a monopoly ion the levying of income taxation. This effectively gave the federal government a huge advantage in terms of the raising of financial resources. It can now control State government policy in many key areas by the making of financial grants to the States which are conditional on the implementation of federal government policy at the State level.
The full text of the Australian Constitution can be found Here
Federated States of Micronesia
(NB. These notes are adapted from a forthcoming entry in Legal Systems of the World ABC-CLIO, FSM Entry by Hughes R. and Tagging P.)
Brief political history
The islands that now make up FSM were ruled successively by Spain, Germany, Japan and the United States. In 1565, Spain claimed Micronesia with the aim of acquiring territory and converting heathens into Christians. Later on, In the 1800s the Germans visited the territory but unlike the Spanish, the Germans concentrated on trade, copra and mining. Additionally, the Germans attempted to convert the customary land tenure into a freehold system. Micronesia fell under another colonial power in 1914 when the Japanese took over Micronesia from the Germans. Four years later, in 1920 the League of Nations mandated Micronesia to Japan. Japan contributed substantial economic development so that Micronesia saw more economic development in the next 24 years than was witnessed during the two previous colonial administrations. In 1944, through the Pacific campaign, Micronesia was again annexed by the United States of America. The US was primarily interested in Micronesia as a military installation and as such all development on Micronesia was centered around that need. In 1947, Micronesia was turned into a Trust territory except Guam. This political arrangement stayed in place until 1986, when the UN Trusteeship Council approves a Compact of Free Association between FSM and the United States.
The Federal System
Unlike, many of the Pacific States, the Federated States of Micronesia (FSM) is a federal republic, with a federal system of government similar to that of the United States. Note that Australia is a federal system but it is not a republic. Rather it is a constitutional monarchy and this is reflected at both the federal and the State levels. The influence of the USA is quite direct in the FSM system.
There are three branches of government: These are:
• the Executive which is headed by the President,
• the Legislature, composed of Secretaries from the different departments, and
• the Judiciary headed by the Chief Justice of the Supreme Court.
Within this structure, operate the states. There are four states in FSM namely Yap, Truk, Pohnpei and Kosrae and these states have their own governor, executive, legislature and judiciary. (Ngaire & Ngaire, 1996: 70). Broadly, the FSM federal system reflects the US Constitutional system where the powers of national and state governments are provided under the respective Constitutions but there are three major differences. First, the FSM Constitutions provide potential roles for traditional leaders. Second, the way power is divided between the national and state governments in FSM is different from the US. Finally, the powers and duties of the FSM national executive and legislative branches sometimes overlap in ways that would be considered a violation of the separation of powers doctrine in the United States. (Zorn, 1993: 463).
Sources of Law
a. FSM Constitution
The FSM Constitution came into effect on May 10, 1979 and by its own terms it is the supreme law of FSM. Any Act of the government which conflicts with the FSM Constitution is invalid to the extent of the conflict (Article II, Section I). Other sources of law also exist in FSM and are recognized by the FSM Constitution. These include – state constitutions, legislation (local, state and national), treaties, the traditions of the people, the decisional law of the Micronesian Courts (common law) and certain statutes of the Trust Territory. These laws are only valid to the extent that they do not conflict with the constitution. (Zorn, 1993:466). Like any Constitution, the FSM Constitution provides the framework for government to operate as well as guarantee the rights of citizens.
The power to review laws and determine the extent of conflict between the different sources of law resides with the FSM Supreme Court. In exercising its power of judicial review, the court interprets the Constitution according to the Judicial Guidance Clause in the FSM Constitution. This clause requires courts to conform their decisions to the provisions of the Constitution itself, customs and traditions of Micronesia and any social and geographical configurations of the FSM. Amendments of the Constitution may be made through a constitutional convention, by popular demand or by Congress. Proposed amendments become part of the constitution if approved by 75 percent of votes cast in at least three of the four states. The Constitution is subject to revision every ten years, when Congress must submit to the voters whether they want any amendments in the Constitution. The next convention is due in 2001.
b. State Constitutions
State Constitutions are also an important source of law in FSM. Each of the States, (Pohnpei, Yap, Kosrae and Truk) has a State Constitution. Each State Constitution is by its own terms, the supreme law of that state (subject only to the FSM Constitution). Any state law which is inconsistent with the State Constitution will be invalid to the extent of inconsistency. State courts also have power to review state and local legislation and to overturn those that violate the State or FSM Constitution. Unlike the FSM Constitution which exists only in English, the State Constitutions exist in English as well as a local language. (Zorn, 1993: 467) Amendments of State constitutions begin with a proposal, which must be approved by either 25 percent of registered voters in that state or a resolution by 75 percent of the legislature.
c. National Legislation
This is legislation made by the Congress of FSM which is the national unit of government. Pursuant to Article IX of the FSM Constitution, the National Congress is vested with powers to make laws
1. to regulate national defense,
2. to ratify treaties,
3. to regulate immigration, nationalization and citizenship,
4. to impose duties and tariffs,
5. to impose income taxes
6. to issue and regulate currency
7. to regulate banking, foreign and intestate commerce, insurance, bankruptcy, and patents and copyrights
8. to regulate navigation and shipping
9. to establish usury limits
10. to provide for postal system
11. to acquire and govern new territory
12. to govern the national capital area
13. to regulate marine resources
14. to regulate the national public service
15. to impeach and remove the President, Vice President and Supreme Court Justices
16. to prescribe penalties for national crimes
17. to override a presidential veto by not less than a three fourths vote of all state delegations
The Scope of Congress’ law-making authority is limited by the Constitutional requirement that the national government only has the powers expressly delegated by the FSM Constitution (listed above). However, both Congress and states have power to appropriate public funds, borrow money on public credit, promote education and health, and establish systems of social security and public welfare. (Zorn, 1993: 468)
d. State and Local Legislation
Another source of law is legislation enacted by individual states for themselves and local bodies within their boundaries. These laws only apply to those individual states. The states may make laws on all matters other than those exclusively delegated to the national government, subject only to the state and national constitutions. Where any state or local legislation is inconsistent with the FSM Constitution, the state or local legislation will be invalid to the extent of its inconsistency.
Treaties are treated as a major source of law in FSM, although normally they would not be considered as such. Particularly important is the Compact of Free Association with the United States which establishes the United States obligation to defend the FSM, establish military facilities and financially support the FSM. Treaties in general are negotiated by the President and must be ratified by two thirds of the national legislature. For major treaties like the Compact of Free Association, which delegate major powers of government to another nation, there must also be approval of three-quarters of all state legislatures. (Zorn, 1993: 469) The FSM also has diplomatic relations and has entered into bilateral and multi lateral treaties with other nations. These treaties however do not have the force of law unless ratified by FSM.
f. Customary law
“The customary norms and dispute settlement processes of the peoples of Micronesia are the earliest and most enduring sources of law in the FSM, but the position of custom as a source of law in the FSM’s new legal system is ambiguous.” (Zorn, 1993: 469) However, unlike the Melanesian neighbors, Vanuatu and Solomon Islands where custom is recognized as a separate body of law, the FSM and State Constitutions recognized custom as a source of common law and legislation. Customary principles therefore become law only to the extent that they are considered when enacting legislation or common law but not a separate body of law.
g. Trust Territory Laws
These are the laws which govern the country when it was still a US Trust Territory. The FSM and state constitutions however provide that only those that are not amended or repealed may continue in force to the extent that they are not inconsistent with the Constitution. Today, only little such legislation is in place.
h. Common Law
This refers to the body of case law developed in other jurisdictions apart from FSM. When FSM was still under Trust Territory, the American common law applied to it. At Independence however, the FSM Constitution and state constitutions do not receive the common law of the US or Trust Territory courts. Article XI of the FSM Constitution provides that judicial decisions of the FSM must be consistent with the “Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia.” (Zorn, 1993: 470) The intention is to fashion a uniquely Micronesian common law, looking first at the Constitution then at custom. If neither was appropriate, then the common law of other jurisdictions can be used. This includes the American common law and other Trust Territory courts.
The Key government structures
(a) National Government
The FSM Constitution establishes a tripartite system of government with executive, legislative and judicial branches. These branches exist at the national level as well as in the states.
(i) Head of State
At the head of the national government is the President, who is both chief executive and Head of State. The president receives ambassadors, conducts foreign policy and national defense and with the consent of Congress, appoints US ambassadors to operate overseas missions. More general duties include implementing the provisions of the Constitution and all national laws and grant pardons.
This branch is established under Article X of the FSM Constitution. The Vice president is the head of the executive branch and is assisted by a Vice president. Under the Constitution, both can be appointed for a term of not more than two years. However, unlike the US model where everyone votes for the president, the FSM system approximates the Westminster system where the president is chosen by a majority of Congress.
The Congress of FSM is vested with the legislative powers of the national government. Article IX, Section 8 attempts to apportion congressional constituencies so that there will be representation both of people and states. It provides that one member be elected at large from each state and additional members elected from congressional districts in each state apportioned by population. State members serve for four years and district members serve for two years. A member of Congress must be at least 30 years old, not have been convicted of a felony and may not hold public office or employment.
The legislature’s main function is to make law. For a bill to become law, it must pass two readings on separate days after which it is presented to the President. If the President disapproves it, it is returned to the Congress within 10 days (0r 30 days if Congress has less than 10 days left if that session) for relevant alterations. However, Congress may with a vote of three-fourths override presidential disapproval of a bill.
Apart from making laws, Congress also has the power to remove the President, Vice President or justice of the Supreme Court for charges of treason, bribery or conduct involving corruption. Congress also has the power to establish committees for researching and investigating legislation. Finally as alluded to in (a) above, Congress together with the President has the power to ratify treaties but in treaties which delegate major powers to another government (such as the Compact of Free Association), a further requirement of two thirds of the states is required (Zorn, 1993: 476).
Pursuant to Article XI of the Constitution, the judicial power of the national government vests in the Supreme Court. The Supreme Court is to have both a trial and an appellate division and such inferior courts established by statute. The Supreme Court is made up of a Chief Justice and not more than five associate justices who are to be appointed by the president with approval of at least two thirds of Congress. Justices of the Supreme Court must have a law degree or extra ordinary legal ability gained through at least five years of legal practice.
Article XI, Section 2 declares that the Supreme Court is the highest court in the nation thus has original and exclusive jurisdiction in cases involving disputes between states, foreign officials, admiralty and maritime cases, FSM Constitution, national laws or treaties and other domestic laws. The Chief Justice is the administrative head of the national head of the national judicial system and may make rules governing the national courts, divide the Supreme Court and other inferior courts into geographical areas, assign judges among the divisions and establish rules of procedure and evidence. Additionally, the Chief Justice governs the admission to practice and discipline of attorneys.
(b) State Governments
Like the national government, state governments consist of an executive, a legislature and a judicial branch. A Governor, who is elected by the people, heads the executive. Although the states are sovereign entities, power over foreign relations resides with the national government and the President is the FSM’s Head of State.
All the states have a Governor who is vested with executive authority. The Constitutions of Yap and Pohnpei provide that no person may serve for more than two consecutive terms of 8 years. All the states also have a Lieutenant Governor, who would become Governor is the office falls empty. As chief executive officer of the State, the Governor is responsible for execution of the laws of the state. Additionally, like the President, the Governor also has the power to grand reprieves and pardons. The Governor is also responsible for appointing the chief officers of executive departments but subject to the approval of the legislature.
All four states have legislatures which are responsible for making the laws of the State. The composition of the legislature differs from state to state. In Pohnpei there are twenty three members, in Yap there are ten senators and in Chuk there are ten senators. The number of legislatures each state has depends on the population as well as the social configuration of the state.
The legislatures meet regularly to make laws as outlined by the state constitutions. To become law, a bill must pass two readings of the legislature on two separate days. After the bill is passed by the legislature, it is presented to the Governor for consideration. If the Governor approves the bill it is passed as law but if the Governor disapproves the bill it must be returned to the legislature with objections. However, similar to national legislation, the legislature can override the Governor’s veto but by a lesser majority of two-thirds membership.
State legislatures additionally have the power to conduct investigations, hold public hearings, subpoena witnesses and documents and administer oaths. They are also empowered to impeach and remove the Governor and Lieutenant Governor and other officials for misconduct. Members of state legislatures are also privileged from arrest during and while going to or returning from sessions. (Zorn, 1993: 478)
In Pohnpei, Article 10 of the State Constitution vests the judicial power of Pohnpei in the Pohnpei Supreme Court and in such inferior courts as may be established by statute. The Pohnpei Supreme Court consists of a Chief Justice and up to four Associate Justices. The Supreme Court is divided into a Trial and Appellate Division. Each justice of the Pohnpei Supreme Court is a member of both the Trial Division and the Appellate Division. A single justice may hear a case in the Trial Division but no less the three may form an Appellate panel. The Trial justice must not sit on appeal.
In Yap, the State Court may have a Chief Justice and at least two Associate Justices. The State Court also has a Trial and Appellate Division. Just like the Pohnpei case, one judge may sit for the Trial Division but not less than three for appeals. The Trial Division has original jurisdiction and the Appellate Division has jurisdiction to hear all cases heard in the Trial Division. Justices of the State Court are appointed by the Governor, with the advice and consent of the legislature, and serve for six years. Yap law also provides for a court in each municipality. The courts would be presided by judges knowledgeable in custom with an aim to settle minor disputes arising in the municipality before it gets to the State Courts. The jurisdiction of the municipal court is limited to civil cases involving residents of the municipality and certain criminal offenses. Where the Trial Division of the State Court considers the case is beyond the jurisdiction of the municipal court, the Trial Court will order the case to be tried in the Trial Court. (Zorn, 1996: 479 – 480)
Civil law and procedure
Civil procedure of national courts is governed by Article XI of the FSM Constitution together with the Judiciary Act of 1979 (FSM Code, Title 4). In addition to the powers laid down in these provisions, Article XI, Section 9 of the FSM Constitution further provides that the Chief Justice could establish rules of civil procedure. These rules are similar to US rules of procedure and as such lack the flexibility of custom. The state courts are however more flexible applying customary means of settling disputes. All the other fundamental rules or procedure are in line with the adversarial system. In FSM national and state courts, the party seeking redress carries the onus of brining the action to court plus the burden of proving the case on a preponderance of evidence.
In FSM, torts law is a matter for the state courts rather than the national courts. Other civil matters which are regulated by state laws include commercial law, personal property, contracts, wills and succession and family law. The only two situations where the national courts will hear tort cases is where there are conflicts of jurisdiction between states and where the national government is a party. The common law provides the basis for tort law but the courts often resort to custom as well. This has resulted in different results on certain issues. (Zorn, 1993: 512)
The Courts in FSM have developed the law on torts to reflect the circumstances in FSM. An example is the FSM Supreme Court stance that contributory negligence as mandated by the American Law Institutes Restatement will not be applied in FSM. Instead, the less harsh rule of comparative negligence will be used. Similar developments also occur in state courts. The Pohnpei Supreme Court imposed a duty on the owner, seller or controller of machinery to educate Pohnpeians about its dangers before selling such machinery. The Pohnpei Supreme Court also held that in collecting damages, multiple defendants are not jointly and severely liable but should pay according to the extent of injury caused to the plaintiff. In tort claims, the national government is not immune in certain cases. These include:
- claims for recovery of any tax erroneously collected
claims for damages arising from improper administration of the law
claims on an express or implied contract
claims for recovery of up to US$20,000 for loss of property, injury or death resulting from the negligence of a public officer
In most other jurisdictions of the Pacific, contracts is also based on common law. This is the same for FSM although the common law here basically means the law developed by the courts from interpreting the Constitution and FSM customs. Like torts, again one observes some tension judges who are inclined to either Constitution or custom. FSM Supreme court judges accept too readily that since a contract arises in a business context, custom must be excluded. On the other hand, state court judges are more familiar with customary contract principles are swayed towards using custom. However both the Constitution and custom accept that common law would provide the guide for contracts law.
(c) Family law
Family matters in FSM remain in the exclusive jurisdiction of the states. In spite of this, none of the states had enacted family law legislation. Perhaps this is because citizens may choose to marry and divorce under statute or custom. According to custom, parties may marry when they are mature. Maturity of course is judged by behavior rather than age. Marriage involves a process of gift giving, feasts, ceremony and eventual residence. Once this is done, marriage is considered to have taken place. Where the parties choose to marry under statute, the male must be over eighteen and the female sixteen. Title 39 of the Trust Territory Code, which applies to states until revoked by new family laws, further require that the marriage ceremony must be performed by a member of the clergy and witnessed by two persons.
The arrangement for divorce is similar – either under custom or statute. According to most Micronesian societies, a separation or divorce may occur anytime when one of the spouses renounces the other. The grounds for divorce according to custom include violence, desertion and adultery. Where a party chooses to dissolve the marriage under statute, more stringent limitations are imposed. The court would only grant annulment if the marriage was illegal when entered into or voidable. Where the parties have resumed cohabitation, the court may also refuse annulment. The grounds for divorce under statute include (a) adultery (b) cruelty (c) desertion for one or more years (d) habitual drunkenness (e) a prison sentence of three or more years (f) leprosy (g) separation without cohabitation for two consecutive years and (i) willful failure of husband to provide support. (Zorn, 1993: 506)
Criminal law and procedure
Until 1991, the national courts have jurisdiction over ‘major’ crimes while states have jurisdiction over ‘minor’ crimes. However in 1991, this provision of the Constitution (Article IX, Section 2) was amended so that jurisdiction of the national court is now over matters inherently national in character. This has however remained blurry and the FSM criminal code further defines felony and misdemeanor. According to the code, a felony is punishable by more than one year imprisonment while a misdemeanor is punishable by imprisonment of not more than 30 days. Murder has no statute of limitation. For crimes attracting imprisonment of more than ten years, the statutory limitation period is 6 years, any felony is three years, a misdemeanor is two years and petty misdemeanor is six months limitation period. The National Criminal Code requires courts to look at custom when deciding criminal cases. Despite this statement, the FSM Supreme Court has refused to consider a traditional Pohnpeian forgiveness ceremony in determining criminal liability. The court has also held that customary punishments can only go toward mitigating a sentence. A person convicted of a crime could be sent to prison or fined up to US$10,000.
Recently states have acquired exclusive jurisdiction over all crimes, except those of an inherently national character. There is however, an inclination that the states would use custom more in determining sentence for criminal liability. This is no surprise given the states inclination to using custom to settle disputes.
Criminal procedure rights are provided pursuant to Article XI, Section 9 of the Constitution. The FSM Supreme Court has also adopted rules of criminal procedure similar to the US Federal Rules of Criminal Procedure. Under Title 12, a person may not be arrested without a warrant, unless there is likelihood of a breach of peace or the offender is in the act of committing a criminal offence. During arrest, only reasonable force may be applied by the law enforcement officer and the usual rights of persons apply, which include:
- right to counsel
right to see family members and employer
right to be released or charged within a reasonable time
right to remain silent
right to be informed of all their rights before questioning
In addition, any person arrested for a criminal offense other than murder is entitled to be released on bail before conviction. Arrested persons also have the right to have in advance of trial a copy of the charges, right to present witness of their choice and to give evidence on their own behalf if they chose to.
Let us look now at the comparative advantages and disadvantages of federal systems such as those we have examined. Complexity is of course a key issue which runs across these systems but so is the appeal of regionalism. In respect of unitary systems it is often claimed that there is a lack of complexity (a central unitary government system) but in practice they are very complex. In federal systems, there is entrenched legal and political complexity in fact, but entrenched for regional autonomy.
Comparative Advantages of a Federal System
- Accommodate regional interests within an overall national framework.
Allow for a degree of local autonomy
Strike a balance between unity and diversity
More 'ownership' of or participation in government by citizens
Caters more for complexity in society
Centre of power disbursed - more checks and balances against concentration of political power
Comparative Disadvantages of a Federal System
- Confused lines of authority
Complexity in government
Duplication of bureaucracies and legal systems and provincial and national levels
Boundaries between national and federal are difficult to define - creates legal disputes
Expensive due to complexities
Creates duality of citizenship and identities within the various levels in the system.
Perpetuates redundant local interests
On Federated States of Micronesia
Zorn J, Federated States of Micronesia in Ntumy M (1993) South Pacific Legal Systems, University of Hawaii, Honolulu.
Ngaire N and Ngaire D (1989) Pacific Islands Yearbook, 16th edition. Angus & Robertson Publishers, NSW, Australia.
Hughes R. and Leane G. Australian Legal Institutions, Thompsons, Sydney, 1995 Chapters 4 and 5
On United States
This includes commentary on federalism generally including access to many resources. Check out the US Federalism Site
On United Kingdom and France
See prescribed text.
Consider this issue. Suppose that you were tasked with reviewing the constitutional structures of Vanuatu, Fiji and/or Solomon Islands in terms of implementing a possible federal structure. Would you argue in favour this and for what reasons? How would you structure the federal arrangement and for what reasons?
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