Law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
in the
Republic of Vanuatu
Vanuatu ( or ; ), officially the Republic of Vanuatu (french: link=no, République de Vanuatu; bi, Ripablik blong Vanuatu), is an island country located in the South Pacific Ocean. The archipelago, which is of volcanic origin, is east of no ...
consists of a mixed system combining the legacy of
English common law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
,
French civil law
The Law of France refers to the legal system in the French Republic, which is a civil law legal system primarily based on legal codes and statutes, with case law also playing an important role. The most influential of the French legal codes is ...
and indigenous
customary law. The
Parliament of Vanuatu
The Parliament of Vanuatu ( bi, Palamen blong Vanuatu; french: Parlement du Vanuatu) is the unicameral legislative body of the Republic of Vanuatu.
It was established by chapter 4 of the 1980 Constitution, upon Vanuatu's independence from Fra ...
is the primary
law-making body today, but pre-independence French and British statutes, English common law principles and indigenous custom all enjoy constitutional and judicial recognition to some extent.
Historical origins
Vanuatu did not exist as a politically, judicially or even conceptually unified entity prior to its being named the "
New Hebrides
New Hebrides, officially the New Hebrides Condominium (french: link=no, Condominium des Nouvelles-Hébrides, "Condominium of the New Hebrides") and named after the Hebrides Scottish archipelago, was the colonial name for the island group ...
" by
James Cook in 1774, and subsequently its joint colonisation by
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of overseas regions and territories in the Americas and the Atlantic, Pacific and Indian Oceans. Its metropolitan area ...
and the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
in 1906. The French and British established a
Condominium, whereby separate but coexisting French and British colonial authorities would administer their own settlers, as well as settlers of other nationalities who placed themselves under the jurisdiction of either administration. Joint regulations were also issued, some of which affecting the indigenous inhabitants. For the most part, however, indigenous Neo-Hebrideans simply remained outside the jurisdiction of colonial administration, which ''de facto'' considered that indigenous custom was sufficient to regulate the "native" societies, albeit without granting custom any official recognition. In addition to specific colonial regulations issued by the
British High Commissioner of the Western Pacific, the British Resident Commissioner in the New Hebrides, and the French High Commissioner of the Pacific, as well as joint condominial regulations, applicable law in the colonial New Hebrides included Acts of the
French Parliament
The French Parliament (french: Parlement français) is the bicameral legislature of the French Republic, consisting of the Senate () and the National Assembly (). Each assembly conducts legislative sessions at separate locations in Paris ...
stated to apply to the New Hebrides, or to
French colonial territories generally, Acts of the
British Parliament
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...
stated or deemed to apply to
the colonies, and "English rules of
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
and
equity", all except where inappropriate to the specific circumstances of the New Hebrides.
["Vanuatu - Sources of Law"](_blank)
Pacific Islands Legal Information Institute
Thus, when the New Hebrides became independent as the Republic of Vanuatu in 1980, they had not inherited any unified legal system from the colonial period, and nor had they any unified precolonial legal tradition to refer back to.
Constitution
The
Constitution of Vanuatu, which came into effect upon the country's formal accession to independence on July 30, 1980, establishes the bases of the country's law. Art.2 defines the Constitution as the
supreme law of the country. Articles 15 and 16 create a
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
as the Republic's
legislative body. Art.47 establishes the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
, the function of which is to "resolve proceedings according to law. If there is no rule of law applicable to a matter before it, a court shall determine the matter according to
substantial justice and whenever possible in conformity with
custom
Custom, customary, or consuetudinary may refer to:
Traditions, laws, and religion
* Convention (norm), a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom
* Norm (social), a r ...
." Art.95 states that pre-independence "Joint Regulations and subsidiary legislation", as well as any "British and French laws in force or applied in Vanuatu" at the time of independence, continue to apply "with such adaptations as may be necessary to bring them into conformity with the Constitution", and (in the English version of the Constitution) "wherever possible taking due account of custom", until and unless repealed by Parliament. Art.95(3) stipulates that "
stomary law shall continue to have effect as part of the law of the Republic of Vanuatu", without specifying any restrictive clauses thereupon.
[Constitution of Vanuatu](_blank)
/ref> Art.95 has been interpreted as recognising the continuance of English common law and principles of equity as well as British and colonial statutes.
The French version of art.95 (labelled art.93), which has equal force with the English text, states that French and British laws in force at the time of independence continue to have effect insofar as they are compatible with custom. Thus the English text gives pre-eminence to colonial statutes over custom, while the French text provides the reverse. This contradiction has not been resolved, though in practice, courts have chosen to apply pre-independence statutes in preference to custom.
For the sake of clarification, in 1988, the ''Revised Laws of Vanuatu'' were adopted, intended to "have effect as a consolidation and as declaratory of the written laws" applicable in the country.
Codes
Criminal and civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
procedures are codified in a Civil Procedure Code and a Criminal Procedure Code, adopted shortly after independence.
Custom
Customary law in Vanuatu is, by its very nature, diverse, as each community has its own customs. Thus customary law is applied primarily by local courts. In 1983, the ''Island Courts Act'' created courts with jurisdiction to hear minor civil and criminal cases in accordance with local custom, "so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order".
Courts
Island Courts deal with minor civil and criminal cases, as well as all cases pertaining to ownership of land. Magistrate's Courts may hear certain criminal and civil cases in first instance, and hear appeals from Island Courts, except in land ownership cases (for which appeals lie directly to the Supreme Court). The Supreme Court has "unlimited jurisdiction to hear and determine civil and criminal proceedings", and hears appeals from the Magistrate's Courts. The Court of Appeal "has the same power, authority and jurisdiction as the Supreme Court" and hears appeals from the latter. The Court of Appeal is "constituted by two or more judges of the Supreme Court sitting together", per art.50 of the Constitution.
The Supreme Court has jurisdiction to provide binding interpretations of the Constitution, per art.53(3) thereof, which provides: "When a question concerning the interpretation of the Constitution arises before a subordinate court, and the court considers that the question concerns a fundamental point of law, the court shall submit the question to the Supreme Court for its determination."
Public Solicitor of Vanuatu
In the original Constitution of Vanuatu, Article 54 called for the establishment of a Public Solicitor of the Republic of Vanuatu. The Public Solicitor's Act of 1984 made further provisions by ensuring that the person filling the position was a legal practitioner. Chapter 177 (1988) of the Laws of the Republic of Vanuatu would further outline the functions of the Public Solicitor. The Public Solicitor is to provide legal assistance to needy individuals or to any person when directed by the Supreme Court of Vanuatu. The office is dependent on graduate lawyers who do not possess the two-year requirement necessary to practice before any court of law in Vanuatu. The Public Solicitor Act was amended again in 2016.
Public Prosecutor of Vanuatu
The Office of the Public Prosecutor of the Republic of Vanuatu commenced in 2003 and is governed by the Public Prosecutor's Act AP 293 Whereas the Public Prosecutor has no authority to direct a police investigation, s/he can serve in an advisory capacity. The decision to prosecute is dependent upon the completion of the evidential test.
Co-existence of French and British law
In those rare cases in which French and British laws applicable in Vanuatu may contradict each other, Chief Justice Vaudin d'Imecourt reasoned in '' Banga v Waiwo'' (1996) that the courts should "find a solution in conformity with the rules of equity".
In practice, courts have tended to strongly favour the maintaining of English legal procedures. Case law, an English legal principle, applies in Vanuatu, enabling judges to shape the law through their rulings and interpretations, and to create binding legal precedents. English common law precedents are applied in preference to other legal sources. Chief Justice Vaudin d'Imecourt has explained this by the fact that an overwhelming majority of legal professionals in Vanuatu are trained in common law, and thus have little or no training in French law (or ni-Vanuatu custom).
Co-existence of custom and other sources of law
Miranda Forsyth, of the University of the South Pacific
The University of the South Pacific (USP) is a public research university with locations spread throughout a dozen countries in Oceania. Established in 1968, the university is organised as an intergovernmental organisation and is owned by the go ...
, has argued that custom (known in Bislama
Bislama (; ; also known by its earlier French name, ) is an English-based creole language and one of the official languages of Vanuatu. It is the first language of many of the "Urban ni-Vanuatu" (citizens who live in Port Vila and Luganville) ...
as ''kastom'') is ''de facto'' ignored by courts, and solely (and unofficially) "administered by communities and chiefs". She notes that judges have been reluctant to apply it not only because they are trained in common law, but also because they have considered custom, which is inherently local, to be ill-suited for application in national courts, where the principle of '' stare decisis'' might give one local custom binding force throughout the country.[Miranda Forsyth, ]
A Bird that Flies with Two Wings: The kastom and state justice systems in Vanuatu
', ch.5: "The relationship between the state and kastom systems", 2007
External links
Pacific Islands Legal Information Institute
See also
* History of Vanuatu
The history of Vanuatu spans over 3,200 years.
Premodern history
The pre-European history of Vanuatu can be reconstructed by combining insights from linguistics (particularly historical linguistics), anthropology, archaeology and human geneti ...
* Court of Appeal of Vanuatu
* Supreme Court of Vanuatu
* Law enforcement in Vanuatu
References
{{Oceania in topic, Law of