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Most island states in the South Pacific have inherited a common law legal system as a consequence of their colonial history. After independence only a few of these countries have been active in replacing or amending the inherited laws. In the field of evidence, many countries are still reliant on introduced statutes from the 19th century. Commencing with a brief outline of legal systems in the small island states of the South Pacific, this article moves on to identify the legislation which governs criminal evidence in a representative sample of countries from Melanesia, Micronesia and Polynesia. It explains the complexities of this exercise in countries which still rely in whole or in part on legislation introduced during the colonial era. The article then moves on to discuss the application of the common law and the extent to which South Pacific courts have developed their own jurisprudence in this area. It considers how far these countries have come in developing their own rules of criminal evidence. The article concludes with a discussion of whether the prevailing criminal evidence laws are suitable for the circumstances of South Pacific island countries. [ABSTRACT FROM AUTHOR]

Adultery appears to provide a common link between divorce regimes. However, this does not necessarily mean that the rationale for the demonizing of adultery is the same in different parts of the world or that it is treated the same way in matrimonial regimes or under criminal laws. This article looks at the law of adultery in the South Pacific and seeks to place it in its historical and social context. It commences by exploring the historical approaches to adultery in selected South Pacific countries, with some reference to the development of the law in England, where most State law in this field originated. The article then looks at how adultery is treated under headings formed by the three legal responses to adultery: divorce; compensation; and criminal sanction, and the common law and customary law stances on each of these responses are compared. The article concludes with some comments on the significance of the similarities and differences highlighted in the article for law reform and the practice of transplantation. [ABSTRACT FROM PUBLISHER]

The interface between state legal systems and customary law is the site of a number of complex problems. A particular difficulty lies in accommodating customary law in formal common law court processes, which are typically driven by the adversarial system. An important but much neglected issue within this area is how best to approach the proof of customary law in courts. A threshold question that arises is whether it should be treated as law or fact. Few countries give any legislative guidance on this issue, nor has it been the subject of extensive consideration by the courts themselves. This article examines the issue of proof of customary law and a number of associated questions, focusing on the common law courts in Australia. Comparison is drawn with the position in neighbouring South Pacific Island States, which are also grappling with this issue. The article commences with a discussion of proof of customary law within the broader context of legal pluralism. It then moves on to a survey of the legislation that impacts on proof of customary law in civil and criminal proceedings in Australian courts. Some illustrative case law is then explored. The article assesses the adequacy of the current regime and considers some of the options for reform. [ABSTRACT FROM AUTHOR]

Throughout the world many former colonies are struggling with an inheritance of legal pluralism that gives recognition to both customary law and formal, written law. The interaction of such laws, which are very different in nature, often raises complex questions, especially because in practice the boundaries between them are often blurred. Each has had to adapt to accommodate the other, and in some cases hybrids have emerged. Questions of jurisdiction also arise, since recognition of a discrete legal system requires definition of the community to which it applies. This article explores the question of how, when state law gives recognition to custom, boundaries between different communities are determined within the State legal system for the purposes of legal jurisdiction. The geographical context of this examination is the South Pacific, and in particular Solomon Islands In many countries of the South Pacific, including Solomon Islands, the Constitution establishes a hierarchy of laws. In this customary law is placed below the Constitution and statute, but sometimes above common law and equity. However, in practice choice of law issues arise and are debated, as it is not accepted that customary law necessarily applies to every branch of substantive law or to everyone present in the country. Whilst most South Pacific countries give special treatment to customary land, in other areas the choice of law rules are unclear and cases are determined on an ad hoc basis. Frequently reference is made to the notion of a `personal law', determined according to whether a party is an `islander'. The interpretation of the term `islander', as used in various places and with various meanings in the statute law of Solomon Islands, is shown to raise complex problems. This is the case, whether or not choice of law rules are provided by statute or have to be developed by judicial action. It is argued that it is imperative to have clear definitions, or at least a clear process for identification, if a plural system is to flourish. It appears that in cases of uncertainty the rules underpinning the State system will be adopted by default. If South Pacific jurisprudence is to develop then more appropriate solutions must be found, but this will be best done through exploration of the boundaries of legal identity together with the communities themselves. [ABSTRACT FROM AUTHOR]

Independence constitutions in most small island countries of the South Pacific acknowledge the significance of customary law by giving it official status in the hierarchy of laws recognized by the state. More particularly, many of those constitutions make special provision for customary land, limiting its alienation and allowing it to be governed by customary law. However, in practice, the philosophy underlying these provisions has been betrayed. While paying lip service to customary law, changes have been introduced through the written law. In addition, more subtle changes have crept in through the inaccurate representation of customary concepts in common law terms. Using examples drawn mainly from Samoa and Solomon Islands, this paper seeks to demonstrate that, in spite of the constitutionally enshrined intention to protect customary land and the customary law governing it, the operation of the common law has led to significant changes in customary land concepts. It is argued that such changes have the potential to bring about dramatic and unplanned changes to customary society in the South Pacific. [ABSTRACT FROM AUTHOR]