Many Pacific Island nations’ jurisprudence hired foreign lawyers to establish independent legal systems, while other Pacific countries have stressed that ‘foreigners should be required to sit an exam before being admitted to practice’ (Corrin and Paterson, 2007, p.8).
Hiring foreign lawyers and judges has worked well in many nations.
To understand this phenomenon, it has become pertinent to understand the historical discourse of the emergence of the legal system and its sources in the Pacific Islands. This op-ed refers to Corrin and Paterson’s book Introduction to South Pacific Law (2007) as a major source of this article.
Broadly Pacific Islands are divided into three divisions — including Melanesia, Polynesia and Micronesia — with separate racial categories, traditions, practices and customs.
Thus, their legal history needs to be discerned. In the beginning, each community was governed based on its tradition under the control of its respective leaders. Before the knowledge of writing, the social order was based on oral customs and regulations.
Man-made or natural disturbances disrupted this social order, but with the coming of the 19th century, the leaders became powerful to establish control over these islands. Gradually the introduction of laws was made by the rulers by adopting it from European settlers.
The written laws and constitutions came into existence to establish control over the territories.
The written laws supplemented the existing customs and practices and helped to establish control even before the colonisation of the Pacific Islands by the Europeans (Corrin and Paterson, 2007). By the late 1800s, the Europeans (English, French, Spanish, Americans and German) contested to establish control over the Pacific Islands and gradually colonised the Pacific.
They used written laws to establish their authority and administer the colonies. Legislature developed new laws to control; constituent laws, and metropolitan laws and other daily administrative laws were laid down (Corrin and Paterson, 2007).
The indigenous customs were allowed to be implied by customary leaders on the masses to establish control, as permitted by the colonial masters. Gradually, the custom was given higher priority in the legal system of some nations, but they were not implied in the legal system of other countries.
Movement towards Self-Governance and Written Constitutions
According to Corrin and Peterson (2007), when the colonies began to become independent, the transfer of power was done in the hands of local leaders, and internal self-government was established in many island nations.
The colonial power made written constitutions that became the premise of legality to form upcoming self-government, while other colonial powers preferred to make laws in their legislature. None of the countries renounced their prior laws altogether at the time of independence.
The laws that were included consisted of: common law, equity and colonial legislation. Many nations incorporated the customary laws, and many countries proposed to use these customary laws in all courts.
Many customary laws were passed on orally by the leaders and chiefs that were not in written form. In the discourse of forming a constitution, the written constitution was made the highest form of law to be observed in all independent nations.
Some independent nations gave importance to customary law that became part of the law of respective islands and implied in all courts.
The written constitution became the supreme law of the nations, the legislation made by the legislature during the colonial and post-colonial periods, and subsidiary legislation was incorporated as state laws.
In anutshell, the Pacific Islands have various legal systems derived from numerous sources.
With the evolution of the history of law, it is pertinent to explain the concept that developed before the colonial period. The notion of ‘rule of law’ believed that royalty is above the law and only subject to the law of God, but late this notion was challenged.
The concept of ‘rule of law’ was adopted by some Bar associations expressing that no one is above the law, and everyone is treated equally in the eyes of the law under the independent and transparent legal system.
Source of laws
Concerning the sources of Law, Corrin and Peterson (2007) highlighted different ‘sources of law’ (authorities by which law is made) consisting of the constitution (supreme law), colonial legislation and subsidiary legislation (Order, Ordinance, Regulation, notice or rule) enacted by former colonial powers from outside during the colonial phase (from outside by outsiders); and also from similar laws made from within the country during the post-colonial period; the principles of ‘common law’ and equity (legal thinking within English law) are derived from English people and judges; and unwritten customs and customary law formed from the usages and practices by people from within the nations.
Sources of law shall refer to the rules that can either have binding authority (must be followed in the adjudication of the courts/ primary source of law), or persuasive authority (sources that may be used in decision making of the courts based on a different level of discretion, but never have binding on the courts to follow), e.g. books, journals, and other secondary sources of law.
The court has some binding laws made or taken from the constitution; legislation; subsidiary legislation; customary laws (to some extent); and common law and case laws (based on judicial decisions used for future precedent, mostly higher court decisions are binding on lower courts but also may be persuasive).
The national jurisprudence gradually emerged in every island nation, based on their respective societies and cultures.
This led to the development of regional jurisprudence based on the former colonial legal system or the regional legal system based on regional customs and traditions.
Some nations tried to incorporate the indigenous values in developing national, regional and sub-regional jurisprudence.
Conclusion
As per Anna Dziedzic (2021), foreign judges of the Pacific are identified as the agent of global constitutionalism: ‘as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer’.
Moreover, Horizontal (relationship of the central government to local institutions of government) and vertical (relationship between legislature, executive and judicial powers with separation of powers that establishes checks and balances among them) division of powers under the political-legal system helps to maintain an equilibrium in the legal system.
