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Legal Systems and Courts in the USP Region

Textbook discussion focuses on the Australian

Legal System- limited use.

The Westminster System and Separation of Powers Doctrine


Westminster System- system of

government used in USP regional countries Origins in England Three arms of government: Legislature Executive Judiciary

The Legislature
The Parliament (Fiji, Vanuatu, Solomon

Islands) Elected representatives Legislation-making arm (Statutes and Acts of Parliament)

The Executive
The Cabinet (PM and Ministers) Also includes Head of State and may

also include the Public Service. Policy-making arm

The Judiciary
Courts, court personnel, magistrates

and judges Function is to interpret and apply laws made by the legislature Also creates common law

Doctrine of Separation of Powers


The arms of government under the

Westminster System are to operate independently of each other.


The Executive makes public policy and

initiates law-making function;


The Legislature considers proposed laws

and approves or rejects them;


The Public Service applies and enforces the

laws; and
The Courts interpret and apply the laws to

individual cases without interference from either the Legislature or Executive

Court Procedure in the USP Region


The Adversary System

Court procedure used in USP regional countries as well as those countries using the Englishbased common law system.

So, how does the adversarial court

process work?
2 parties argue their case before a

magistrate/judge Lawyers for parties call their own witnesses After hearing submissions from both sides, judge/magistrate makes a decision. Judge/magistrate takes little part in the presentation of the case Complex rules of evidence followed Win-lose system

The Inquisitorial System


Some countries in Europe use this

system
Judge takes active role Special judge appointed to take

charge of criminal investigation before court proceedings Adversarial system- Police take charge of investigation Concerned with the search for truth

Burden (onus) of Proof


Adversarial system- party making the

claim/allegation has burden of proving the claim/allegation Criminal cases: the prosecution carries the burden of proof Civil cases- the plaintiff carries the burden of proof

Standard of Proof
Refers to how strong the evidence has

to be for the party making the claim/allegation to win their case Criminal cases- the standard is beyond reasonable doubt (a very high standard) Civil cases- the standard is on the balance of probabilities (more likely than not i.e. 50% likelihood of being true)

Alternative Dispute Resolution


Courts criticized for lengthy delays, complex

procedures and high costs Outside the region, diversion towards other forms of resolving disputes Aim of ADR- to get parties to resolve disputes amongst themselves within a controlled environment. Presided by third party- arbitrators/mediators E.g. pre-trial conference- allows parties to reach agreement on large number of facts and matters (reduces trial time and costs)

In Pacific societies- traditional forms of

dispute resolution. E.g. disputes resolved in villages and areas outside large towns. (Think of how disputes are resolved traditionally in your communities) Law reform bodies need to consider traditional forms of dispute resolution for efficiency in judicial system

Court Hierarchies in the Region


Judiciary- one of the three key

institutions under Westminster system.


Courts- mouthpiece of the judiciary in

interpreting and applying laws.


Various levels of Court in USP regional

countries These various levels of court ranging from the lowest to the highest is known as the court hierarchy

Regional Court Hierarchy


Further Appellate Court Appellate Court Principal Court This is the highest court for appeals Appeals from the High Court or the Principal Court can commence here This is the main court of the country, normally known as the High Court. It has unlimited civil and criminal jurisdiction This is the Magistrates Court or District Court, where most claims below a certain amount are filed and proceedings on less serious criminal offences take place Some countries have Tribunals to

Subordinate Court

Lower Subordinate

Jurisdiction of Courts
Jurisdiction- may have number of meanings

depending on the context It could refer to the geographical area over which the court has authority to hear cases It could refer to the type of cases that the court may hear. E.g. legislation in some countries states which types of criminal matters subordinate courts may hear. It could also refer to the penalties or remedies the court may order. E.g. Magistrates Courts may have jurisdiction to impose sentences of 5 years only.

Regional Courts and their Jurisdiction


Further Appellate Court Judicial Committee of Privy Council: Cooks, Kiribati, Tuvalu Supreme Court: Fiji Jurisdiction: To hear appeals from Appellate Court Appellate Court Court of Appeal: Cooks, Fiji, Kiribati, Nauru, Niue, Solomons, Tokelau, Tonga, Tuvalu, Vanuatu, Samoa Jurisdiction: to hear appeals from the Principal Court

Principal Court

High Court: Cooks, Fiji, Kiribati, Niue, Solomons, Tuvalu Supreme Court: Nauru, Tonga, Vanuatu, Samoa
Jurisdiction: All principal courts have unlimited civil and criminal jurisdictions Subordinate Court Magistrates Court: Fiji, Kiribati, Solomons, Tonga, Tuvalu, Vanuatu, Samoa District Court: Nauru Jurisdiction: various Fiji- Monetary limit: $50,000 for most claims and unlimited for trespass or recovery of land Solomons: SI$6,000 Principal Magistrates Court, SI$12,000 First Class Magistrates Court

Lower Subordinate Court Island Court: Tuvalu, Vanuatu Local Court: Solomons

Tribunals
Semi-judicial bodies Set up in some regional countries to divert case

loads of courts Simple procedures with restricted powers, lawyers do not represent clients (may use representatives), rules of evidence need not be followed. Decision-maker: Referee Decisions appealable to subordinate courts (procedural grounds) E.g. Small Claims Tribunal (Fiji) Set up in 1991 by the Small Claims Tribunal Decree Jurisdiction: hears civil claims with monetary limit of

Civil and Criminal Cases


Sharp distinction between criminal and civil

cases under adversarial system


Criminal cases: State(represented by the Police, public officer

or govt lawyer) is a party to the proceedings Wrongdoing seen as being done against the society as a whole Parties- Prosecution and Accused/Defendant Victim (if any) is not a party to the case Accused if convicted- is sent to prison or fined.

Civil Cases Usually between private individuals,

companies, businesses Police or public officials not involved Govt could be a party (to sue in its own capacity) Parties- Plaintiff and Defendant If claim is proven- defendant ordered to pay compensation to Plaintiff

For your own Reading


Read up on major sources of law from

Chapter 1 of your text.


Read up on common law rules of statutory

interpretation from your text: Literal Rule, Golden Rule, Mischief Rule, Purpose Approach