Law of Vanuatu
Encyclopedia
Law
in the Republic of Vanuatu
consists of a mixed system combining the legacy of English common law, French civil law
and indigenous customary law. The Parliament of Vanuatu
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.
" by James Cook
in 1774, and subsequently its joint colonisation by France
and the United Kingdom
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
stated to apply to the New Hebrides, or to French colonial territories
generally, Acts of the British Parliament
stated or deemed to apply to the colonies
, and "English rules of common law
and equity", all except where inappropriate to the specific circumstances of the New Hebrides.
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.
, 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
as the Republic's legislative body. Art.47 establishes the judiciary
, 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
." 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 "[c]ustomary law shall continue to have effect as part of the law of the Republic of Vanuatu", without specifying any restrictive clauses thereupon. 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.
and civil
procedures are codified in a Civil Procedure Code and a Criminal Procedure Code, adopted shortly after independence.
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."
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).
, has argued that custom (known in Bislama 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.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
in the Republic of Vanuatu
Vanuatu
Vanuatu , officially the Republic of Vanuatu , is an island nation located in the South Pacific Ocean. The archipelago, which is of volcanic origin, is some east of northern Australia, northeast of New Caledonia, west of Fiji, and southeast of the Solomon Islands, near New Guinea.Vanuatu was...
consists of a mixed system combining the legacy of English common law, French civil law
Law of France
In academic terms, French law can be divided into two main categories: private or judicial law and public law .Judicial law includes, in particular:*civil law ; and*criminal law ....
and indigenous customary law. The Parliament of Vanuatu
Parliament of Vanuatu
The Parliament 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 France and the United Kingdom....
is the primary law-making body
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
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 HebridesNew Hebrides
New Hebrides was the colonial name for an island group in the South Pacific that now forms the nation of Vanuatu. The New Hebrides were colonized by both the British and French in the 18th century shortly after Captain James Cook visited the islands...
" by James Cook
James Cook
Captain James Cook, FRS, RN was a British explorer, navigator and cartographer who ultimately rose to the rank of captain in the Royal Navy...
in 1774, and subsequently its joint colonisation by France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
in 1906. The French and British established a Condominium
Condominium
A condominium, or condo, is the form of housing tenure and other real property where a specified part of a piece of real estate is individually owned while use of and access to common facilities in the piece such as hallways, heating system, elevators, exterior areas is executed under legal rights...
, 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
British Western Pacific Territories
The British Western Pacific Territories was the name of a colonial entity, created in 1877, for the administration, under a single representative of the British Crown, styled High Commissioner, of a series of relatively minor Pacific islands in and around Oceania...
, 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
Parliament of France
The French Parliament is the bicameral legislature of the French Republic, consisting of the Senate and the National Assembly . Each assembly conducts legislative sessions at a separate location in Paris: the Palais du Luxembourg for the Senate, the Palais Bourbon for the National Assembly.Each...
stated to apply to the New Hebrides, or to French colonial territories
French colonial empire
The French colonial empire was the set of territories outside Europe that were under French rule primarily from the 17th century to the late 1960s. In the 19th and 20th centuries, the colonial empire of France was the second-largest in the world behind the British Empire. The French colonial empire...
generally, Acts of the British Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
stated or deemed to apply to the colonies
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
, and "English rules of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and equity", all except where inappropriate to the specific circumstances of the New Hebrides.
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 VanuatuConstitution of Vanuatu
The Constitution of Vanuatu is the supreme law of the Republic of Vanuatu. It was enacted in 1979, and came into force upon the country's independence on 30 July 1980....
, 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
Parliament of Vanuatu
The Parliament 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 France and the United Kingdom....
as the Republic's legislative body. Art.47 establishes the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
, 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
Substantive law
Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments , civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process.Substantive law stands in contrast to procedural...
and whenever possible in conformity with custom
Custom
Custom may refer to:* Convention , a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom* Customization , anything made or modified to personal taste...
." 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 "[c]ustomary law shall continue to have effect as part of the law of the Republic of Vanuatu", without specifying any restrictive clauses thereupon. 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
CriminalCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and civil
Civil law (area)
Civil law in continental law is a branch of law which is the general part of private law.The basis for civil law lies in a civil code. Before enacting of codes, civil law could not be distinguished from private law...
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 CourtSupreme Court of Vanuatu
Supreme Court of Vanuatu is the supreme court of Vanuatu. As of 2011 the Chief Justice is Vincent Lunabek....
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."
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
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, an English legal principle, applies in Vanuatu, enabling judges to shape the law through their rulings and interpretations, and to create binding legal precedents
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
. 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 PacificUniversity of the South Pacific
The University of the South Pacific is a public university with a number of locations spread throughout a dozen countries in Oceania. It is an international centre for teaching and research on Pacific culture and environment. USP's academic programmes are recognised worldwide, attracting students...
, has argued that custom (known in Bislama 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
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
might give one local custom binding force throughout the country.
External links
- Selected case law and statute law of Vanuatu, Pacific Islands Legal Information Institute
See also
- History of VanuatuHistory of VanuatuThe history of Vanuatu begins obscurely. The commonly held theory of Vanuatu's prehistory from archaeological evidence supports that peoples speaking Austronesian languages first came to the islands some 4,000 to 6,000 years ago. Pottery fragments have been found dating back to 1300 B.C...
- Court of Appeal of Vanuatu
- Supreme Court of VanuatuSupreme Court of VanuatuSupreme Court of Vanuatu is the supreme court of Vanuatu. As of 2011 the Chief Justice is Vincent Lunabek....
- Law enforcement in VanuatuLaw enforcement in VanuatuVanuatu has a small mobile military force as well as a national police service, the Ni-Vanuatu Police or Vanuatu Police Force , headquartered in Port Vila....