 |
Welcome to the University of the South Pacific
|
Sources of Law
The following commentaries, unless
otherwise stated, have been copied from
'Pacific Courts and Legal Systems' / editors Guy Powles and Mere Pulea (1988).
These commentaries will be updated in a forthcoming new edition of 'Pacific
Courts and Legal Systems'. Professor Paterson is continuing his work on
'Sources of Law' for each jurisdiction which are to be hosted on the PacLii.org
website.
Sources of Law By Jurisdiction
Cook
Islands,
Federated States of Micronesia,
Fiji,
Kiribati,
Marshall Islands,
Nauru,
Niue,
Papua New Guinea,
Samoa,
Solomon Islands,
Tokelau,
Tonga,
Tuvalu,
Vanuatu
Cook Islands
Sources of Law (prepared by Prof. Don Paterson)
Federated
States of Micronesia
The legal system of the F.S.M derives from:
- the Constitution of the Federated States of Micronesia,
1979
- the laws of the F.S.M. Congress
- laws of the U.S Trust Territory that are not
incompatible with the Constitution or laws of the F.S.M.
- the constitutions and laws of the states
- Micronesian customs and traditions (Constitution art.
XI s.11)
the principles of common law not inconsistent with the above
Fiji
The legal system derives from:
- the Constitution Amendment Act 1997, and the laws of
Parliament
- the laws of the pre-independence Legislative Council
and the Colony of Fiji.
- the common law, rules of equity and statutes of general
application in force in England on 2 January 1875, so far only as the
circumstances of Fiji and its inhabitants permit (Supreme Court Act Revised
Laws 1978, Cap.13 (ss.22 and 24)
- the customs of the indigenous people of Fiji relating
to the holding of customary land (83% of total) and aspects of chiefly
authority and provincial government.
Kiribati
Sources of Law
(prepared by Prof. Don Paterson)
Marshall Islands
The legal system derives from:
- the Constitution of the Marshall Islands, 1979
- the laws of the Marshall islands NITIJELA
- laws of the U.S. Trust Territory that are not
incompatible with the Marshall Islands Constitution or laws of the Nitijela
- the customary law of the Marshall Islands, particularly
in relation to land, marriage and the holding of chiefly titles
- the common law of England and the united States not
inconsistent with the above
Nauru
The legal system derives from:
- since 1968, the Constitution, and statutes of the
Parliament of Nauru
- certain statutes of the commonwealth of Australia and
the State of Queensland, and Nauruan ordinances, made prior to 1968
- the institutions, customs and usages of the Nauruan
people in relation to land, personal property and succession
- the principles and rules of common law and equity, and
the statutes of general application, in force in England on 31 January 1968,
as (in certain cases) specifically adopted, or as subsequently altered or
adapted (Custom and Applied Laws Act 1971, as amended in 1972 and 1976).
Niue
The legal system derives from:
- since 1974, the Constitution, statutes of the Niue
Legilsative Assembly and such New Zealand statutes as are made applicable to
Niue at the request and with the consent of the Niue Assembly
- New Zealand statutes applied expressly to Niue and Niue
ordinances, made prior to 1974
- the law of England existing on the 14 January 1840 (the
date New Zealand became a colony), and the rules of English common law and
equity as developed in English and New Zealand Courts, save so far as
inconsistent with the Niue Act 1966 (NZ) or inapplicable to the circumstances
of Niue (ss.672 and 673)
- in relation to land and fishing rights, the customs and
usages of the people of Niue.
Papua New Guinea
The legal system derives from:
- the Constitution, 1975, and the organic laws and acts
of National Parliament
- the laws of the pre-Independence House of Assembly and
certain laws of Australia and England
- the customs of the people, to the extent that they are
not inconsistent with constitutional law or statute or repugnant to the
general principles of humanity
- the principles and rules of common law and equity in
England as at 16 September 1975, except to the extent that they are
inconsistent with circumstances of the country from time to time, or, in their
application to any particular matter, inconsistent with custom (Constitution
s.9 and Schedules 2 and 5).
- Under the Constitution, the National Parliament, the
Law Reform Commission and the Supreme Court and National Courts are charges
with responsibility for developing the underlying law of Papua New guinea,
drawing on customary and common law sources (ss. 9,20 and 21 and Schedule 2).
Samoa
Sources of Law (prepared by Prof. Don Paterson)
Solomon Islands
The legal system derives from:
- the Constitution, 1978, and the Statutes of the Solomon
Islands Parliament
- the rules of customary law prevailing in an area of
Solomon Islands subject only to the Constitution and statutes of Parliament
- the laws of the British Solomon Islands Protectorate
made prior to 1978 and the Acts of the United Kingdom Parliament of general
application in force on 1 January 1961, subject to the circumstances of
Solomon Islands
- the principles and rules of the common law and equity
which are not inconsistent with the Constitution or statute, or customary law,
nor inapplicable or inappropriate in the circumstances of Solomon Islands
(Constitution, ss.76 and 144, and Schedule 3)
Tokelau
- Til 1 January 1949, the law of Tokelau was local custom
and a body of legislation that it had inherited from its past: the pre-1916
era as the Union Islands British Protectorate; its period (1916-1926) as an
island group within the Gilbert and Ellice Island Colony; and from 1926 to
1948 as a territory, the tokelau Islands, administered for the United Kingdom
by New Zealand
- From 1949 the Tokelau Act 1948 has served as the
constitutional base for law in Tokelau. Since that time there have been
several Acts of the New Zealand Parliament extended to Tokelau as law for
Tokelau and numerous sets of regulations made for Tokelau under the authority
of the Tokelau Act. From 22 July, 1969, the statute and common law of
England as at 14 January 1840 was extended to Tokelau by section 4A of the
Tokelau Act, as amended, to serve as basic law for Tokelau.
- Custom is now almost totally overridden by specific
legilsation. Family matters, criminal law and property matters are all
dealt with by legislation. Land matters are also dealt with specifically
by the Tokelau Amendment Act 1967. In the case of land, however, the
pattern is different from the other areas of customary importance because,
instead of stating rules, the law provides simply that custom is to be the
governing body of principle for land matters.
Tonga
The legal system derives from:
- the Constitution of 1875
- the statutes of the Legislative Assembly approved by
the King
- the common law and rules of equity of England and
statutes of general application in force in England from time to time, only so
far as no Tongan statute applies and so far as is permitted by the
circumstances of Tonga and its people (Civil Law Act - Cap 14).
Tuvalu
The legal system derives from:
- since 1978, the Constitution of 1978 followed by the
Constitution of 1986, and the statutes of Parliament
- the ordinances of the Gilbert and ellice Islands Colony
and the ordinances of the colony of Tuvalu, made prior to 1978
- the statutes of general application in force in England
on 1 January 1961 and the substance of the English common law and doctrines of
equity, modified or adapted by the courts in their civil and criminal
jurisdictions to take account of Tuvalu circumstances (Western Pacific
(Courts) Order in Council 1961 (U.K.) s.15)
- the principles expressing Tuvalu values, culture and
tradition as set out in the Preamble to the Constitution of 1986 and adopted
as the basic law of Tuvalu (Constitution 1986, s.13)
- with regard to land, succession and adoption, Tuvalu
custom and tradition, largely codified in the Lands Ordinance and Lands Code
1956.
Vanuatu
Sources of Law
(prepared by Prof. Don Paterson)