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The application of the common law and equity
in countries of the South Pacific
Don Paterson
In all countries of the South Pacific that were under the control of Britain, or of the British colonies of Australia and New Zealand, the
principles of common law and equity were introduced during their period of dependency, either by direct application by the controlling country or by adoption by the dependent country, and these principles have been
continued in force since independence and self-government as part of the existing laws of the countries concerned.
Colonial legacies?
A study of received and adopted legislation applying in the
University of the South Pacific region
Jennifer Corrin Care
When the island countries of the South Pacific moved towards independence (which is intended here to include self-governance),1 decisions concerning the laws under
which they would operate had to be made. Although the desire for laws reflecting local values and objectives can be seen reflected in the Preambles to many of the
resulting Constitutions,2 the imperial country in control at the time was obviously a strong influence. Apart from direct factors, such as the provision of advice and
technical and financial assistance, and the role played in the negotiation and discussions during the transition period, factors such as education and training of
emerging leaders in the tradition of the imperial country, and close trade links, financial aid, and general economic relations were indirectly at play.
Not surprisingly, therefore, none of the Pacific Island countries of the University of the South Pacific region opted to reject the laws in force prior to independence. Instead,
the general pattern adopted at independence was to represent the new status of the country by replacing the imperial countries’ constituent laws with a new Constitution,
and establishing a representative parliament that would thenceforth replace the colonial lawmaking body and make laws suited to local circumstances and needs. In most
cases, custom was also recognised as part of the law, by express provision to that effect in some Constitutions.3 As a transitional step, to avoid a vacuum pending the
creation of laws by the new legislature, laws in existence at the time of independence were ‘saved’. This included legislation in force in England at a particular date,4
common law and equity, and ‘colonial’ legislation made by the legislature of the country whilst it was under the control of the imperial country.
What resulted was a system of complex legal pluralism, with laws being made up of those indigenous laws that survived the process of imperialism; pre-independence
laws (from numerous sources) continued in force; and post-independence laws. The position was further complicated in many instances by the fact that introduced laws
had often been moulded to take account of indigenous concepts, resulting in a category of hybrid laws, not quite fitting into any of these categories. This might have
occurred, for example, when English common law or a statute was adapted to take account of customary factors.5
Given the importance of the move to independence, a precise indication of the laws continued in force, and the relationship between the different categories of law, was
undoubtedly vital. However, there are many areas of uncertainty. This article examines some of those that surround the application of English legislation in the member
countries of the University of the South Pacific.
Common Law at bay?
The scope and status of customary law
regimes in the Pacific
Guy Powles
At a time when the establishment of the University of the South Pacific LLB programme heralds a new era in legal education for the Pacific Island region, it is
appropriate to reflect on one of the justifications for a uniquely Pacific degree, namely the persistence of customary law. This paper will attempt to demonstrate the diversity
and extent of the recognition and use of customary law in the context of the introduction of common law, while examining problems associated with customary
law’s role and dimensions as a sub-system of the law of the state. The undoubted tension between indigenous and introduced spheres of legal activity points to the value
of engaging in some measuring of the relative size and importance of each sphere. Factors contributing to the status of customary law include lack of guidance as to its
application, the operation of ‘repugnancy’ provisions and uncertainty as to the manner in which custom should be proved. These are reviewed briefly, and then the paper
turns to a specific location on the interface between indigenous and introduced law, namely, where the decisions of customary law institutions may be subjected to reconsideration by non-customary courts or processes.
Customary law regimes draw much of their authority from customary institutions such as village and island councils, meetings of extended family leaders and elders, and
chiefs and other men and women of recognised standing, whether inherited or earned. It is helpful to look at examples of decision-making powers exercised by customary
law institutions such as these, and to consider to what extent the status accorded to their decisions may be regarded as an indicator of the significance of customary law
itself. Developments over the past two decades seem to indicate a preference on the part of governments and common-law courts to pursue policies designed to render
customary law more accountable, and thus, to ‘regulate’ custom.
Customary rules and the welfare principle
Post-independence custody cases in the
Solomon Islands and Vanuatu
Kenneth Brown
SINCE THE ADVENT of independence in Solomon Islands on 7 July 1978 and Vanuatu on 30 July 1980, customary law has been given official recognition as part of
the law of the land by virtue of provisions contained in the respective Constitutions of the two countries. Post-independence there has been a somewhat sporadic series of
cases where the courts have had to grapple with the two related problems of determining (1) what is the proper place of customary law in the ‘league table’ of
sources of law and (2) how to resolve, as far as possible, conflicts between customary law and the law from outside sources, commonly and in this article referred to as ‘received law’.
Custom and constitutionally
protected fundamental rights in the
South Pacific Region: the approach of the
courts to potential conflicts or compromise?
Susan Farran
As a form of social regulation, custom is characteristic of traditional societies. As societies develop, custom gives way to law, either being replaced by it or by taking on
the form of law itself, becoming customary law. The State, rather than the family, village or clan, emerges as the dominant regulatory force. Consequently traditional
society and developing society may be juxtaposed, as may moral order and civil order, custom and law. In the South Pacific region, however, a number of countries seek to
overcome this apparent juxtaposition by giving custom the force of law, incorporating it into the sources of law recognised by the State. Often this recognition is in the same
document in which the State undertakes to protect fundamental rights. The potential conflict between customary rights and constitutional rights, and attempts by the courts
to resolve that conflict, are the subject of this article, which looks at the decision-making of the courts in specific cases. These cases are considered in some detail
partly because the reader may be unacquainted with them and also because the context of the dispute is important for understanding the issues raised.
Crown ownership of foreshores and seabed in Solomon Islands
Frank Kabui
Crown ownership of the foreshores and the seabed is a common law principle. It is the law of England. Introduced in 1893 by virtue of the Pacific Order in Council 1893,1 it has become part of the law of Solomon Islands. This article discusses the
application of this principle in Solomon Islands and its relationship with customary usage regarding ownership questions of the foreshores and the seabed.2
Crime, community penalty
and integration with legal
formalism in the South Pacific
Mark Findlay
The influence of introduced legality on prevailing culture, and vice versa, are common
concerns for analysis when considering the existence and development of customary law.1 Much of the limited writing on law and custom prefers to speculate on the
impact of introduced law on already present modes of regulation. While recognising these structuralist contexts of influence, often oversimplified as they are represented,
this paper prefers to explore the adaptation of legal formalism in contexts of resilient and resonant custom.2
The reception of Judges’ Rules and the right to counsel
in the Constitution of Western Samoa
Leuluaialii Tasi Malifa
This paper examines the development of Judges’ Rules in (Western) Samoa and its role in light of the Constitution, particularly Article 6(3). A critical assessment is made
that for over 30 years, the Judges’ Rules have been applied exclusively to Police investigatory and prosecutorial work without reference being made to the
constitutional safeguard of the right to counsel guaranteed by Article 6(3), or other such constitutional pre-trial rights as, for example, the right against self incrimination,
secured under Article 9(5) of the Constitution. In the end, it is arguable that cases might have received different results or the law might have developed differently if
Judges’ Rules were subjected to the strict scrutiny and review of the Constitution.
The evolution of trial by judge and assessors in Fiji
Peter Duff
This article will discuss the evolution of the Fijian system of trial by judge and assessors, which is used in the most serious of criminal cases. As happened in most
British colonies, the Fijian criminal justice system was based upon the English model, subject to certain alterations to cater for local circumstances. One such adjustment
meant that trial by jury, an institution that is ideologically central to conceptions of criminal justice throughout the common law world,1 was largely by-passed and
ultimately abolished in favour of trial by judge and assessors. Unfortunately, there has been virtually no investigation of the history of the legal institutions of colonial (and
postcolonial) Fiji and there is a complete dearth of writing on the origins of the Fijian criminal justice system.2 Thus, this article describes the history of the Fijian assessor
system and will demonstrate that it is not only substantive law that is affected by the complex relationship between alien law and the local environment; legal institutions
and procedures have also been imported and adapted to suit local circumstances. In the first section of the article, I shall explain how and why it was that the system of trial
by judge and assessors came to form part of the Fijian criminal justice system.
Healthy, Wealthy and Wise
The national government of Tokelau after 150 years
Tony Angelo
In former times, the records as far as they go would indicate that the people of Tokelau were healthy, wealthy and wise.1 They were certainly no less healthy than
they are at present, and the ailments that did exist are not those of the present time.Tokelau, until recently, has been a subsistence economy.2 Wealth, in terms other
than land holdings and free use of the natural resources, did not exist. However, the resources were sufficient to support the people. Records, even in relatively recent
times,3 indicate that Tokelau was able to support its own needs. Wisdom was the attribute of age, and the people of Tokelau and their elders were well attuned to the
environment within which they lived. In a very direct sense, they lived by their wisdom.
The idea of Law :A Pacific perspective
Asiata Vaai
Law as a universal phenomenon is generally perceived as an esoteric institution, prescribed by states with Parliaments and other organs of government such as the
Courts and police, and involving judges and lawyers who settle, mediate or adjudicate disputes. Furthermore, law provides constructs that facilitate conformity with norms
and may have punitive and restitutive functions, maintaining law and order or generally fostering egalitarianism. For the lawyers, law is for professionals rather than lay
persons and can or ought to be ascertained from legal documents, statutes, law reports, books and other documentary sources to answer or solve particular problems
. Increasingly, however, law is seen as more than what the lawyers say it is or ought to be: since it is not a discrete part of culture and society, it should therefore be studied
‘in context’ and not confined to the isolationist views of lawyers.
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