Law of Vanuatu
Historical origins
Vanuatu did not exist as a politically, judicially or even conceptually unified entity prior to its being named the "
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
The French version of art.95 (labelled art.93), which has equal force with the English text, states that French and British laws in force at the time of independence continue to have effect insofar as they are compatible with custom.[5] Thus the English text gives pre-eminence to colonial statutes over custom, while the French text provides the reverse. This contradiction has not been resolved,[6] though in practice, courts have chosen to apply pre-independence statutes in preference to[7] custom.[8]
For the sake of clarification, in 1988, the Revised Laws of Vanuatu were adopted, intended to "have effect as a consolidation and as declaratory of the written laws" applicable in the country.[9]
Codes
adopted shortly after independence.Custom
Customary law in Vanuatu is, by its very nature, diverse, as each community has its own customs. Thus customary law is applied primarily by local courts. In 1983, the Island Courts Act created courts with jurisdiction to hear minor civil and criminal cases in accordance with local custom, "so far as the same is not in conflict with any written law and is not contrary to justice, morality and good order".[12]
Courts
Island Courts deal with minor civil and criminal cases, as well as all cases pertaining to ownership of land. Magistrate's Courts may hear certain criminal and civil cases in first instance, and hear appeals from Island Courts, except in land ownership cases (for which appeals lie directly to the Supreme Court). The
The Supreme Court has jurisdiction to provide binding interpretations of the Constitution, per art.53(3) thereof, which provides: "When a question concerning the interpretation of the Constitution arises before a subordinate court, and the court considers that the question concerns a fundamental point of law, the court shall submit the question to the Supreme Court for its determination."[4]
Public Solicitor of Vanuatu
In the original Constitution of Vanuatu, Article 54 called for the establishment of a Public Solicitor of the Republic of Vanuatu. The Public Solicitor's Act of 1984 made further provisions by ensuring that the person filling the position was a legal practitioner.[14] Chapter 177 (1988) of the Laws of the Republic of Vanuatu would further outline the functions of the Public Solicitor.[15] The Public Solicitor is to provide legal assistance to needy individuals or to any person when directed by the Supreme Court of Vanuatu.[16] The office is dependent on graduate lawyers who do not possess the two-year requirement necessary to practice before any court of law in Vanuatu.[17] The Public Solicitor Act was amended again in 2016.[18]
Name | Term |
---|---|
Oliver Saksak[19] | c. 1985-1986 |
Gerald Rissen[20][21] | c. 1987-1996 |
Henzler Vira[22][23]
Hillary Toa[24] |
c. 2007-2009 |
Jacob Kausiama[25][26][27] | c. 2011-2014 |
Public Prosecutor of Vanuatu
The Office of the Public Prosecutor of the Republic of Vanuatu commenced in 2003 and is governed by the Public Prosecutor's Act [CAP 293]. Whereas the Public Prosecutor has no authority to direct a police investigation, s/he can serve in an advisory capacity. The decision to prosecute is dependent upon the completion of the evidential test.[28]
Name | Term |
---|---|
Nicholas Mirou[29] | c. 2003-2005 |
Kayleen Tavoa[24][30] (1st female) | c. 2005-2014 |
Josiah Naigulevu | c. 2015- |
Co-existence of French and British law
In those rare cases in which French and British laws applicable in Vanuatu may contradict each other, Chief Justice Vaudin d'Imecourt reasoned in Banga v Waiwo (1996) that the courts should "find a solution in conformity with the rules of equity".[31]
In practice, courts have tended to strongly favour the maintaining of English legal procedures. Case law, an English legal principle, applies in Vanuatu, enabling judges to shape the law through their rulings and interpretations, and to create binding legal precedents. English common law precedents are applied in preference to other legal sources.[32] Chief Justice Vaudin d'Imecourt has explained this by the fact that an overwhelming majority of legal professionals in Vanuatu are trained in common law, and thus have little or no training in French law (or ni-Vanuatu custom).[33]
Co-existence of custom and other sources of law
Miranda Forsyth, of the
External links
- Selected case law and statute law of Vanuatu, Pacific Islands Legal Information Institute
See also
- History of Vanuatu
- Court of Appeal of Vanuatu
- Supreme Court of Vanuatu
- Law enforcement in Vanuatu
References
- ISBN 0-8248-2048-7, pp.15-16
- ^ Miles, op.cit., pp.33-7
- ^ a b "Vanuatu - Sources of Law", Pacific Islands Legal Information Institute
- ^ a b c Constitution of Vanuatu
- ^ Constitution of Vanuatu Archived 2011-02-16 at the Wayback Machine, French language version
- ^ Anthony Angelo, "L'application du droit français au Vanuatu", Pacific Islands Legal Information Institute
- ^ "Pacific Media Centre | articles: VANUATU: Public Prosecutor considers libel action against assaulted publisher". Pacific Media Centre. Pacific Media Centre. Retrieved 2018-03-13.
{{cite web}}
: CS1 maint: others (link) - ^ "Beyond Case Law: Kastom and Courts in Vanuatu" Archived 2012-03-05 at the Wayback Machine, Miranda Forsyth, University of French Polynesia
- ^ Revised Laws of Vanuatu 1988
- ^ Civil Procedure Code Archived 2011-02-21 at the Wayback Machine
- ^ Criminal Procedure Code[permanent dead link]
- ^ Island Courts Act 1983, s.10
- ^ "Vanuatu Courts System Information", Pacific Islands Legal Information Institute
- .
- ^ "Office of the Public Solicitor" (PDF).
- ISBN 9789820200432.
- ISBN 9781921536793.
- ^ "REPUBLIC OF VANUATU / BILL FOR THE PUBLIC SOLICITOR (AMENDMENT) ACT NO. OF 2016" (PDF).
- ^ "Hon. Justice Saksak Abraham Oliver - Judiciary of the Republic of Vanuatu". courts.gov.vu. Retrieved 2018-03-15.
- ^ Vanuatu law reports. 1996.
- ISSN 0458-3035. Retrieved 2018-03-14.
- ^ "REPUBLIC OF VANUATU / COUNTRY REPORT 26th PACIFIC ISLANDS LAWOFFICERS NETWORK( PILON) (Rarotonga, Cook Islands 5– 1O December 2007)".
{{cite web}}
: Missing or empty|url=
(help) - ^ REPUBLIC OF VANUATU / COUNTRY REPORT 28th PACIFIC ISLANDS LAW OFFICERS NETWORK MEETING (PILON) (Apia, Samoa, 12–16 December 2009)
- ^ a b "Induction Program for Members of the 9th National Parliament of the Republic of Vanuatu" (PDF). October 2008.
- ^ "REPUBLIC OF VANUATU / COUNTRY REPORT30th PACIFIC ISLANDS LAW OFFICERS NETWORK (PILON) ANNUAL MEETING 4-6 December 2011, Auckland, New Zealand" (PDF).
- ^ "EPUBLIC OF VANUATU / COUNTRY REPORT 31st PACIFIC ISLANDS LAW OFFICERS NETWORK MEETING (PILON) (Kokopo, Papua New Guinea, October 2012)" (PDF).
- ^ "Public Solicitor's Office Vanuatu / LAWYER HANDBOOK 2015" (PDF).
- ^ "Public Prosecutors Office". mjcs.gov.vu. Retrieved 2018-03-13.
- ^ "SOLOMON ISLANDS GOVERNMENT QUESTIONNAIRE FOR THE AUSTRALIAN FEDERAL DIRECTOR OF PUBLIC PROSECUTIONS, MR DAMIAN BUGG QC" (PDF).
- ^ "Vanuatu public prosecutor Tavoa quits over alleged negligence". Radio New Zealand. 2014-01-30. Retrieved 2018-03-13.
- ^ Vaudin d'Imecourt C.J., Banga v Waiwo, Supreme Court of Vanuatu, 1996
- ^ "Beyond Case Law: Kastom and Courts in Vanuatu" Archived 2012-03-05 at the Wayback Machine, Miranda Forsyth, University of French Polynesia
- ^ Vaudin d'Imecourt C.J., Banga v Waiwo, op.cit.
- ^ "Beyond Case Law: Kastom and Courts in Vanuatu" Archived 2012-03-05 at the Wayback Machine, Miranda Forsyth, University of French Polynesia
- ^ 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