Lecture on Legal Systems 2013

8/12/2019 Lecture on Legal Systems 2013

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Textbook discussion focuses on the AustralianLegal System- limited use.

Legal Systems and Courts in

the USP Region


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The Westminster System and

Separation of Powers DoctrineWestminster System- system of

government used in USP regionalcountries

Origins in England

Three arms of government:Legislature

Executive

Judiciary


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The Executive

The Cabinet (PM and Ministers)

Also includes Head of State and may

also include the Public Service. Policy-making arm


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The Judiciary

Courts, court personnel, magistratesand judges

Function is to interpret and apply lawsmade by the legislature

Also creates common law


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Doctrine of Separation of Powers The arms of government under the

Westminster System are to operateindependently 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 thelaws; and

The Courts interpret and apply the laws toindividual cases without interference fromeither the Legislature or Executive


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Court Procedure in the USP Region

The Adversary System

Court procedure used in USP regionalcountries

as well as those countries using theEnglish-

based common law system.


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So, how does the adversar ial court

process work?

2 parties argue their case before a

magistrate/judgeLawyers for parties call their ownwitnesses

After hearing submissions from both sides,

judge/magistrate makes a decision.Judge/magistrate takes little part in the

presentation of the caseComplex rules of evidence followed

Win-lose system


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The Inquisitorial System

Some countries in Europe use thissystem

Judge takes active role

Special judge appointed to take

charge of criminal investigation before

court proceedings

Adversarial system- Police takecharge of investigation

Concerned with the search for truth


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Burden (onus) of Proof

Adversarial system- partymaking theclaim/allegation has burden of proving

the claim/allegation Criminal cases: the prosecut ion

carries the burden of proof

Civil cases- the plaint i f fcarriestheburden of proof


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Standard of Proof

Refers to how strong the evidence hasto be for the party making theclaim/allegation to win their case

Criminal cases- the standard isbeyond reasonable doubt(a very highstandard)

Civil cases- the standard is on thebalance of probabilities (more likelythan not i.e. 50% likelihood of being

true)


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Alternative Dispute Resolution

Courts criticized for lengthy delays, complexprocedures and high costs

Outside the region, diversion towards otherforms of resolving disputes

Aim of ADR- to get parties to resolve disputesamongst themselves within a controlledenvironment.

Presided by third party- arbitrators/mediators E.g. pre-trial conference- allows parties to

reach agreement on large number of factsand matters (reduces trial time and costs)


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In Pacific societies- traditional forms ofdispute resolution.

E.g. disputes resolved in villages andareas outside large towns. (Think of howdisputes are resolved traditionally inyour communities)

Law reform bodies need to considertraditional forms of dispute resolution forefficiency in judicial system


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Court Hierarchies in the

Region

Judiciary- one of the three keyinstitutions under Westminster system.

Courts- mouthpiece of the judiciary ininterpreting and applying laws.

Various levels of Court in USP regional

countriesThese various levels of court ranging

from the lowest to the highest is knownas the court hierarchy


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Regional Court HierarchyFurther Appellate

Court

This is the highest court for appeals

Appellate Court Appeals from the High Court or the

Principal Court can commence here

Principal Court This is the main court of the country,

normally known as the High Court. Ithas unlimited civil and criminal

jurisdiction

Subordinate Court 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

Lower Subordinate Some countries have Tribunals to


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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 thecourt may hear.

E.g. legislation in some countries stateswhich 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.


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Jurisdiction

Further Appellate Court

Judicial Committee of Privy Council: Cooks,Kiribati, TuvaluSupreme Court: Fiji

Jurisdiction:To hear appeals from AppellateCourt

Appellate Court

Court of Appeal: Cooks, Fiji, Kiribati, Nauru,Niue, Solomons, Tokelau, Tonga, Tuvalu,Vanuatu, Samoa

Jurisdiction:to hear appeals from the Principal

Court


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Principal Court

High Court: Cooks, Fiji, Kiribati, Niue, Solomons, Tuvalu

Supreme Court: Nauru, Tonga, Vanuatu, Samoa

Jurisdiction:All principal courts have unlimited civil andcriminal jurisdictions

Subordinate CourtMagistrates Court: Fiji, Kiribati, Solomons, Tonga, Tuvalu,Vanuatu, SamoaDistrict Court: Nauru

Jurisdiction: variousFiji- Monetary limit: $50,000 for most claims and unlimited fortrespass or recovery of landSolomons: SI$6,000 Principal Magistrates Court, SI$12,000

First Class Magistrates Court


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Lower Subordinate Court

Island Court: Tuvalu, VanuatuLocal Court: Solomons


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Tribunals

Semi-judicial bodies

Set up in some regional countries to divert caseloads 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


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Civil and Criminal Cases Sharp distinction between criminal and civil

cases under adversarial system

Criminal cases:

State(represented by the Police, public officeror govt lawyer) is a party to the proceedings

Wrongdoing seen as being done against thesociety 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.


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Civil Cases

Usually between private individuals,companies, businesses

Police or public officials not involved

Govt could be a party (to sue in its owncapacity)

Parties- Plaintiff and Defendant

If claim is proven- defendant ordered to pay

compensation to Plaintiff


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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

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Lecture on Legal Systems 2013

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