AF 108

INTRODUCTION TO LAW SAFE

Lecture 1
FOR COMMERCE
COURSE OUTLINE

An overview of the course

outline
CRITICAL THINKING IS
ESSENTIALLY ABOUT
ASKING THE QUESTIONS:

- Why is Justice represented

by a woman?
- Why are the scales of
justice uneven?
- Why is she blindfolded?
- What is the meaning of the
sword?
 TOPIC 1

Legal systems and

courts in the USP
region
LET’S BEGIN

WHAT IS THE LAW? NOTE DOWN YOUR

ANSWERS.
 SOME QUESTIONS:

1. How do we settle disputes in the

region?
2. Is money or costs a factor in
settling disputes?
3. What about the time it takes to
settle disputes?
4. How are family and community
disputes settled?
5. Are social relations a factor in
deciding the best method to
settle a dispute?
 TOPIC 1:
LEGAL SYSTEMS AND COURTS IN
THE USP REGION
Learning outcomes:
1. describe the basic legal systems in the region.
2. understand the hierarchy of courts in the region.
3. explain why there is separation of powers between the various
divisions of government.
4. explain the structures of various courts in your country.
LAW
Your text states

“that the law is the systems of

rules that operates in our society
to control and influence the
conduct of individuals and
groups”.
WORDS
MATTER:
Interpretation plays a crucial
role in resolving legal
disputes. When different
parties have conflicting
interpretations of a law or
legal provision, courts or
other adjudicating bodies
engage in interpretation to
determine the correct
meaning and application of
the law.
 COMMERCIAL
LAW
There are many facets to
commercial law.
Very succinctly put “it involves
legal principles that affects the
operation of a business”.
It accounts for risk, liabilities, and
issues that may arise to the parties
involved and how to mitigate or
solve those issues.
 Legal systems

It is a very broad concept.

INTRODUC Difficult to encapsulate .

TION
How would you define the term
legal systems.
Note down your own definitions.
LEGAL SYSTEMS

All USP regional countries’ legal systems are

transplants from their former colonial masters.

Legal system of a country can be defined as all the

law and all the institutions which create and
administer law.

Make a list of all the intuitions which create and

administer law in your respective countries.
THE WESTMINSTER
SYSTEM
Westminster System-system of government used in USP
regional countries.
 Origins in England
 Three arms of government:
1. Judiciary
2. Executive
3. Legislature
THE WESTMINSTER SYSTEM

Originates in England.
The Westminster System Three arms of
is a democratic system of government:
government modelled Judiciary
after that of the United
Kingdom. Executive
Legislature
SEPARATION OF POWERS

the political authority of a country is divided into legislative,

executive and judicial powers.

Westminster system.

Constitution of United States.

SEPARATION OF POWERS:
WHY?
to most effectively promote liberty,

these three powers must be separate and act independently.

(In practice, there is only a very limited separation between the

legislature and the executive).
SEPARATION OF POWERS

The functions of the legislature, judiciary and executive should

be independent of one another.

The intent is to prevent the concentration of power and provide

for checks and balances.
 Westminster System are to operate independently of
each other.

 The Executive makes public policy and initiates law-making

function;

SEPARATION  The Legislature considers proposed laws and approves or

OF POWERS 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
THE LEGISLATURE

The Parliament (Fiji, Vanuatu,

Solomon Islands).

Elected representatives.

Legislation-making arm (Statutes

and Acts of Parliament).
THE EXECUTIVE

THE CABINET (PM AND ALSO INCLUDES HEAD OF POLICY-MAKING ARM.

MINISTERS). STATE AND MAY ALSO
INCLUDE THE PUBLIC
SERVICE.
THE JUDICIARY

Courts, court personnel, Function is to interpret and Also creates common law.
magistrates and judges. apply laws made by the
legislature.
 Under the
Westminster
system which What are the
three institutions functions of the
carry out the parliament?

REVIEW
functions of the
government?

QUIZ How would you

What is the
describe the
significance of
administrative
separation of
arm of the
powers doctrine?
government?
 The Adversary System:
COURT
PROCEDURE Court procedure used in USP regional countries as well as
IN THE USP those countries using the English-based common law system.
REGION
ADVERSARIAL
SYSTEM

 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.
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.

INQUISITORIAL
SYSTEM
COMMON LAW

Applied to or
Principles that
Decisions of adopted in
form the core of
courts. British
the English law.
dependencies.
BURDEN OR (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.
 Refers to how strong the evidence has to be
for the party making the claim/allegation to
win their case.

STANDARD Criminal cases- the standard is “beyond

OF PROOF 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).
 What is common law?

REVIEW What is case law?

QUIZ What is the adversary system?
What is the inquisitorial
system?
 Courts criticized for lengthy delays, complex procedures
and high costs.

Outside the region, diversion towards other forms of

resolving disputes.

ALTERNATIVE
Aim of ADR- to get parties to resolve disputes amongst
DISPUTE themselves within a controlled environment.
RESOLUTION
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.

TRADITIONAL E.g. disputes resolved in villages and areas

FORMS OF outside large towns. (Think of how
DISPUTE disputes are resolved traditionally in your
RESOLUTION 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
Appeals from the High
This is the highest court
Further Appellate Court Appellate Court Court or the Principal
for appeals
Court can commence here

This is the Magistrates

This is the main court of Court or District Court,
the country, normally where most claims below
Principal Court known as the High Court. Subordinate Court a certain amount are filed
It has unlimited civil and and proceedings on less
criminal jurisdiction serious criminal offences
take place

Some countries have

Lower Subordinate Court Tribunals to deal with
trivial matters
 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

JURISDIC
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
TION OF only.

COURTS
REGIONAL COURTS AND
THEIR JURISDICTION

Judicial Committee
Jurisdiction: To hear
Further Appellate of Privy Council:
Supreme Court: Fiji appeals from
Court Cooks, Kiribati,
Appellate Court
Tuvalu

Court of Appeal:
Cooks, Fiji, Kiribati,
Jurisdiction: to hear
Nauru, Niue,
Appellate Court appeals from the
Solomons, Tokelau,
Principal Court
Tonga, Tuvalu,
Vanuatu, Samoa
LOWER SUBORDINATE
COURT

ISLAND COURT: LOCAL COURT:

TUVALU, VANUATU. SOLOMONS.
TRIBUNALS

Simple procedures with

restricted powers, lawyers
Set up in some regional
do not represent clients
Semi-judicial bodies countries to divert case Decision-maker: Referee
(may use representatives),
loads of courts
rules of evidence need not
be followed.

Decisions appealable to Set up in 1991 by the Jurisdiction: hears civil

E.g. Small Claims
subordinate courts Small Claims Tribunal claims with monetary
Tribunal (Fiji)
(procedural grounds) Decree limit of $5,000
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.

CIVIL  Govt could be a party (to sue in its own capacity).

 Parties- Plaintiff and Defendant.

CASES  If claim is proven- defendant ordered to pay compensation to

Plaintiff.
REVIEW QUIZ

What are the

How do parties
advantages and
What is ADR? resolve disputes in
disadvantages of
your society?
ADR?

Identify and note the

In your country what Why do countries difference between
is at the apex of the have tribunals to criminal legal
court hierarchy? hear matters? proceedings and civil
legal proceedings?
Vickery, R. and Flood, M. (2012) Australian Business Law: Compliance and Practice (7th Ed) Pearson Australia

Jennifer Corrin Care, T Newton and D Paterson, “Introduction to South Pacific Law,” 1999.

Websites

Parliament of the Republic of Fiji <http://www.parliament.gov.fj/fijis-system-of-government/>

Judicial Department of Fiji <http://www.judiciary.gov.fj/>

Fiji Mediation Centre http://fijimediation.org/about-us/#mediation-approach

<http://thoughtundermined.com/2013/06/30/the-westminster-system-of-parliamentary-government/ >

REFERENCES
THE END

Any questions?