BY SUSAN BOTHMANN
Title: Introduction to South Pacific Law
Authors: Jennifer Corrin Care, Tess Newton Cain & Don Paterson
Published by: Cavendish Publishing Limited, London (1999)
ISBN: 1 85941 431 1
Pp: 402 & lxi
This valuable introductory volume makes an important contribution to the scant supply of legal texts concerning South Pacific law. For many years practitioners in the region have struggled to locate source material for the laws of the various South Pacific jurisdictions in which they may practice. In the case of practitioners of Vanuatu, for example, heavy reliance has been placed on photocopies of Official Gazettes to find legislation, upon unreported case notes and snippets collected by themselves and their colleagues rather than texts. Since the Law School was set up in 1994 the need for introductory material in text book form has becoming increasingly apparent to the university lecturers, as it was already to local legal practitioners, and this book goes a long way towards filling that need. The book's prime focus is students, and in particular the students studying law and associated programmes at the University of the South Pacific (USP). It is avowedly introductory and the pitch is student oriented but as a road map for young players, in whatever capacity, it is truly timely.
The authors are all currently lecturers at the USP. Taking into account their varied backgrounds and experience they have achieved an interesting mix in the selection of academic and practical material.
The sweep of the content is extremely broad and concentrates on providing an overview rather than giving specific detail. In so doing it presents a worthwhile point of departure for students, practitioners and academics alike to discover where and how they should look further.
At first blush it could seem overly ambitious to include material on criminal and civil law, legislation, constitutional law as well as customary laws. However this wide ambit is really necessary in an introduction of this type, so that the pieces of the South Pacific legal puzzle can be better understood. The legal systems operative in the region at present are collectively like a giant jigsaw, with some of the pieces going in more than once and others seeming deceptively similar. Whilst most of the jurisdictions covered in the book have laws based loosely on the Westminster system (due largely to the individual histories of those countries) there are marked differences in practice and outcome which are not immediately obvious until a vehicle allows meaningful comparisons to be made.
Teaching students from as many as twelve different but related jurisdictions in the one course, as is done at USP, can be quite taxing for teacher and student alike. The students tend, with the best will in the world, to want, naturally enough, to concentrate on their own domestic situation. Nevertheless, the valuable contribution of comparative study is highlighted in a text of this sort. From a more practical point of view, the comparative approach of the book offers the reader a ready reference for other ways of approaching the same legal problem. It is easy to anticipate it being used in this way by personnel engaged in the work of various government departments, and the like, throughout the region. This will make legal knowledge more accessible to those interested in legal issues who are not necessarily lawyers themselves. The style of writing and layout of the material is clear and straight forward and would lend itself to that type of wider readership.
The first chapter dealing with the origins of South Pacific legal systems and their jurisprudence provides a most helpful overview of the interlinking laws and ideas about laws that currently exist in the predominant South Pacific countries. Whilst that coverage is necessarily superficial in terms of examining the reasons for those developments it helps put the later material into context. Further historical material would need to be sought by those seeking a greater understanding of the underlying influences but for a stranger to, or a young student of, South Pacific jurisprudence the outline and analysis offered here is still unique.
Chapter two covers matters to do with colonial legacies, independence movements and developing the post independence constitutions of the various countries. The authors pinpoint the broad divisions in the region between Melanesian, Polynesian and Micronesian and also the fact that a national identity tends to be an imposed colonial concept in most Pacific communities. Again this material is brief but important in providing a framework for understanding the context in which the paramount legislation or constituent laws, upon which domestic laws are pegged, came to be.
The chapter headed 'Local Laws' touches on the role of legislation but otherwise concentrates on an examination of the role of customary law in South Pacific legal systems. Here the specific jurisdictions are delineated and tabulated in a useful way, such as in the table on page 26 which sets out the provisions for recognizing customary law in ten jurisdictions. Customary law remains, practically and philosophically, an issue of major importance in the South Pacific region and it is given brief but relevant attention in this part of the book.
The following chapter dealing with 'Received Law' also outlines on a country by country basis the relevant enabling provisions for 'saving' the operation of parts of the colonial legal legacy. The extent to which mainly English common law and legislation can and does remain part of the jurisdiction of the South Pacific countries is a complex and vexed question that is still being actively worked out in many of the now post colonial jurisdictions. This chapter is particularly important in highlighting the uniqueness of South Pacific legal systems and reinforcing the image of these jurisdictions being a jigsaw of interlinking concepts and ideas.
The chapter on 'Constitutional Law' tends to be more generalist than some of the earlier chapters, picking up on overarching themes rather than specifying actual provisions from individual systems. Given the obvious constraints and natural restraints constituted by the need to limit length and complexity this is not surprising in an introductory text. Deeper understanding of South Pacific constitutional law can only be gleaned from other sources. Nevertheless the book provides a helpful matrix for comparing the similarities and highlighting the differences in the changing models of the South Pacific constitutional frameworks.
Administrative law is a burgeoning field in the South Pacific just as it is elsewhere in the Westminster legal world. The developments in these jurisdictions follow some of the trends evidenced elsewhere but also have many aspects that are peculiar to the individual countries. The relevant chapter again gives a creditable overview of the subject and provides interesting specific random examples of cases and issues. Such vast area of legal interest as judicial review, natural justice and the role of Ombudsmen can only be superficially considered in a book of this type and so they have been. The chapter provides flavour rather than full verse but is no less interesting for that. Rapid developments taking place in the field should be much more readily understood by any student who has digested the overview provided here.
The material on criminal law gives a sampling in relation to more serious offenses. It moves from the general to the more particular in a clear and concise way that is laudable given the complexity of the substantive material and the wide range of jurisdictions considered. The author acknowledges her aim is to provide 'an insight into the way that the criminal law is framed and interpreted in South Pacific countries' (page 163) and the material lives up to the aim.
Again the material to do with criminal and civil procedure provides a sampling and an overview which would require the specialist student or reader to look elsewhere for greater detail.
Similarly the material dealing with civil law is handled with a broad brush which assists the student reader in focussing on the important elements of the systems rather than becoming hemmed in with detail. Contract Law, Torts and Land Law are singled out for specific treatment.
Chapter 11 provides a comparative summary of the structure of the court systems throughout the region in tabulated form. Again the material is clear and precise and structured so that any reader can find relevant source material to learn more if they wish.
The writers are specialists in their respective fields and each has managed to distill the essence from a wealth of material and present it in a most manageable and lucid form. Style differences from chapter to chapter and author to author are apparent but are not disruptive of the narrative and they are acknowledged by the writers and explained in the Preface. Footnotes are peppered throughout the text but seem to have been kept to a minimum while still providing enough background sources to assist any further research. Clearly Don Paterson has been the major contributor of material which is unsurprising given the depth of his experience in the field. It is welcome that he and his co-writers have found this opportunity to present this valuable material to the reading public in this form. One can only hope that this book will constitute an incentive to other writers and to the university and other publishers to extend the availability of legal materials and contribute actively to the development of a South Pacific jurisprudence.