By Dr Sakul Kundra
The masses approach the court for dispute resolution, but in pre-colonial eras, the settlements were done by warfare or by traditional authorities/leaders. The Europeans introduced the court system in the Pacific during the colonial period.
This court system saw modifications and regional inclusions, but most of the colonial drafted system remained in the post-independence phase. Many Pacific communities try to resolve their disputes via alternative dispute resolutions. The op-ed refers to one of the popular readings, Introduction of South Pacific Law by Jennifer Corrin and Don Paterson, 2007 to explain the complexity of the court of hierarchy in the Pacific Islands.
Many are unaware of the court hierarchy and their general jurisdiction, Original and Appellate jurisdiction, unlimited and limited jurisdiction, ordinary and special jurisdiction, Concurrent and exclusive jurisdiction, and review jurisdiction.
The Pacific Islands’ court structure or organisation has been shared with Anglo-American jurisdiction about the hierarchy of courts and the legal system. Some nations have a single court hierarchy, while others have dual court hierarchies (especially in Australia and FSM). The op-ed begins to discern the classification of courts followed by Pacific nation case studies.
Classification of courts
Generally, the hierarchy of courts is based on a three-tiered level, where the highest is the Appeal/Appellate courts (including Court of Appeal, Supreme Court or Privy Council), followed by the Superior court (including High Court). The last is Inferior Courts (including Magistrate courts/specialised Courts and tribunals set up by Legislation). The variety of cases heard by these courts differs.
The higher courts have binding authority over the lower courts. The appeals courts do not exist permanently in every Pacific nation, and it meets between one to four times a year to hear the appeals (Corrin and Paterson, 2007). As the highest courts, their decisions usually have a binding effect on the lower courts. Most Pacific nations have a single appellate court, known as the Court of Appeal.
Foreign-appointed judges sit on the Court of Appeal in certain countries. Some nations have two types of appeals that courts of appeal handle: ‘first appeals’ from judgments made by superior courts in their original jurisdiction, and ‘further appeals’ from decisions made by superior courts operating in their appellate jurisdictions (Corrin and Paterson, 2007). Some nations allow an additional level of appeal to the Privy Council in England.
The superior courts have the authority to handle petitions submitted under the constitution or concerning interpretation. These are usually below the appellate courts and above inferior courts. They are mostly referred to as High Courts, whereas nations like Nauru, Samoa, Tonga and Vanuatu refer to them as Supreme Court, while Fiji and some other nations have ‘Supreme Court’ is the highest appellate courts.
They are authorised to consider various cases, including civil, criminal and other concerns. The appeals from the lower courts are heard in the Superior courts. These courts have original, appellate and review jurisdictions’ powers.
In addition, some Pacific nations established separate courts to handle the customary and administer customary law. The inferior courts are subordinate or lower courts with limited jurisdiction. These courts preside over minor civil and criminal cases, whereas higher courts hear complicated cases. Some Pacific nations have Special Courts that hear over cases of special nature (mostly about land disputes) that ordinary courts do not hear.
Pacific Nations: Court of Hierarchy
It is pertinent to discuss the hierarchy of courts in the Pacific; Fiji’s final appellate is the Supreme Court (the Highest Court of Fiji hears appeals from lower appellate and also provides constitutional interpretations if requested; has ‘exclusive jurisdiction to hear and determine appeals from all final judgments of the Court of Appeal, with leave of the Court of Appeal or special leave of the Supreme Court’ (Corrin and Paterson, 2007).
Below is the Court of Appeal (appellate), which hears and determines appeals from the High Court’s judgements. It also has civil and criminal jurisdiction. Next is the High Court (Superior with substantial civil and criminal jurisdiction) has original, inherent, Exclusive, concurrent, summary, Appellate and review jurisdiction. This has unlimited original jurisdiction to hear and determine civil cases and also has similar powers in criminal matters.
These courts also have specialised divisions. The cases of serious nature can be heard here at first instance. Followed by Magistrate Court (Inferior with limited civil and criminal jurisdiction). This nation also has special courts with limited jurisdiction that deal with specialised subject areas.
Corrin and Paterson (2007) explained that
the Cook Islands has a three-tier Court hierarchy that includes the Privy Council, Court of Appeal, High Court (presided over by a judge) and High Court (presided over by judges of the peace);
Kiribati has a Privy Council (in England on a limited range of matters) (Appellate), Court of Appeal (Appellate), High Court (Superior) and Magistrates’ Courts(inferior);
The hierarchy of the courts of Samoa includes the Court of Appeal, Supreme Court, District Courts and Village fonos;
The Solomon Islands has a Court of Appeal, High Court, and Magistrate Courts, and additional separate courts are set up to deal with customary land and minor local disputes. Also, they have the Local Court (a case may usually be brought to a local court when all traditional means have been used to resolve the dispute).
The court of Tokelau has the Court of Appeal of New Zealand, High Court of New Zealand and Village courts.
In contrast, Tonga consists of the Privy Council (of Tonga), Court of Appeal, Supreme Court, separate Land Court (consider cases relating to land disputes in the kingdom), and Magistrates Courts.
Vanuatu has a Court of Appeal, Supreme Court, Magistrate Courts and Island Court.’
Conclusion
The awareness of the hierarchy of courts makes the citizens of the Pacific Islands much more informed about the law and will certainly help them to take their assistance to resolve their disputes.
Author: Dr Sakul Kundra is an Associate Dean (Research) and Assistant Professor at the College of Humanities and Education at Fiji National University. The views expressed are his own and not of his employer. Email dr.sakulkundra@gmail.com
Disclaimer: The Australia Today is not responsible for the accuracy, completeness, suitability, or validity of any information in this article. All information is provided on an as-is basis. The information, facts, or opinions appearing in the article do not necessarily reflect the views of The Australia Today and The Australia Today News does not assume any responsibility or liability for the same.
