Kiribati Sources of Law Information

KIRIBATI

INTRODUCTION

by Professor Don Paterson

PRE-INDEPENDENCE

Before Kiribati, which was then called Gilbert Islands, attained independence on 12 July 1979, it had been part of the British protectorate 1892-1916, later the British colony of Gilbert and Ellice Islands 1916-1975, and then from 1975-1979 it was the separate British colony of Gilbert Islands.

Accordingly before independence its laws comprised:

• British Proclamations or Orders in Council - made by the Queen under her prerogative powers applying to the Gilbert and Ellice Islands protectorate or colony, and to the Gilbert Islands colony e.g. Gilbert and Ellice Islands Order 1916.

• British Acts of Parliament

-applying as part of "the substance of the laws for the time being in force in England" until 1 January 1961 (s.20 Pacific Order in Council 1893);

-"statutes of general application in force in England on the 1 ^st day of January 1961 so far as appropriate to the circumstances of the country" (s.15 Western Pacific (Courts) Order 1961);

- British statutes applying to the Gilbert and Ellice protectorate or colony, or Gilbert Islands colony, in accordance with their terms, e.g. Kiribati Act 1979 (UK) or extended to the protectorate or colony by order in council e.g. Fugitive Offenders Act 1967 (UK), Nuclear Installations Act 1965 (UK);

• British subsidiary legislation

- applying as part of "the substance of the laws for the time being in force in England" until 1 January 1961 (s.20 Pacific Order in Council 1893);

- "statutes of general application in force in England on the 1 ^st day of January 1961" so far as appropriate to the circumstances of the country (s.15 Western Pacific (Courts) Order 1961).

- British subsidiary legislation applying to the Gilbert and Ellice Islands protectorate or colony or to the Gilbert Islands colony in accordance with their terms e.g. Gilbert and Ellice Islands Order in Council 1915; Gilbert Islands Order in Council 1975; Kiribati Independence Order 1979: or extended to the protectorate or colony e.g. Civil Aviation (Investigation of Accidents) Regulation 1965; Emergency Powers Order in Council 1939.

• Queen's (King's) Regulations - made by the High Commissioner of the Western Pacific, 1893-1916 (s.108 Pacific Order in Council 1893)

• Ordinances made by

- High Commissioner of Western Pacific, 1916-1972 (cl. 8 Gilbert and Ellice Islands Order in Council 1915);

- Resident Commissioner with the advice and consent of the Advisory Council; 1963-1967, later the Governing Council 1967-1974;

- Governor with the advice and consent of the elected House of Assembly 1974-1979 (Gilbert and Ellice Islands Order 1974).

• Subsidiary legislation - made under the above King's Regulations and Ordinances.

• Custom

- for determination of boundaries of, and title to, customary land (s.3 Native Lands Commission Ordinance 1922, s.58 Magistrates Court Ordinance 1978).

- for determination of civil and criminal proceedings in Island Courts 1965-1978, and in Magistrate's Courts 1978-1979 provided the custom was not repugnant to natural justice, equity and good conscience or inconsistent with any ordinance or other law for the time being in force in the country (s.16(2) islands Courts Ordinance; s.42(2) Magistrates' Courts Ordinance 1978).

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POST-INDEPENDENCE

When Kiribati attained independence on 12 July 1979 by the Kiribati Independence Order 1979 made by the British Privy Council, it was provided with a written Constitution which was stated to be the supreme law and a new elected legislative body but the existing laws were retained until repealed by the legislative body. Ten years later the laws of Kiribati Act 1989 was enacted to define the laws of the country, and to provide for the extended application of customary law.

Consequently after independence the laws of Kiribati comprise:

• Constitution of Kiribati - which is stated to be the supreme law.

• English common law and equity - 1893-1961, as part of "the substance of the law for the time being in force in England (s.20 Pacific Order in Council 1893) and, 1961-1979, as "the substance of the English common law and doctrines of equity" (s15(1)(b) Western Pacific (Courts) Order 1961) so far as appropriate to the circumstances of the country.

• Acts of the Maneaba ni Maungatabu - enacted with the assent of the President (s.66 Constitution);

• Subsidiary legislation - made under Acts of the Maneaba ni Maungatabu.

• Customary law

- for the determination of boundaries of, and titles to, customary land (s.58 Magistrates Ordinance 1978);

- for the determination of civil and criminal proceedings in Magistrates' Courts, 1979 - 1989, provided the custom was not repugnant to natural justice, equity and conscience or inconsistent with any Ordinance or other law for the time being in force in the country (s.42(2) Magistrate's Courts Ordinance 1978);

- for all civil or criminal proceedings in all courts except to the extent that it is inconsistent with the Constitution, or legislation or subsidiary legislation in force in Kiribati (s.5 Laws of Kiribati Act 1989).

• Common law and equity - except to the extent that it is inconsistent with the Constitution or legislation or subsidiary legislation in force in Kiribati, or with customary law or inappropriate to the circumstances of the country (s.15(1)(b) Western Pacific (Courts) Order 1961; s.6 Laws of Kiribati Act 1989).

• British Acts of Parliament, Orders of the Queen in Council and subsidiary legislation - in force in Kiribati immediately before 12 July 1979 until repealed by Act of the Maneaba ni Maungatabu (s.7 Laws of Kiribati Act 1989).

• Queen's (King's) Regulations made by the High Commissioner of the Western Pacific 1893-1916, and Ordinances made by the High Commissioner of the Western Pacific 1916-1978, by the Resident Commissioner 1963-1974, and by the Governor 1974-1979 and subsidiary legislation made under such Regulations and Ordinances until repealed by an Act of the Maneaba ni Maungatabu (s.7 Laws of Kiribati Act 1989).

© 1999 Professor Don Paterson, USP.

For more information on this topic see Introduction to South Pacific Law (1999) Cavendish - by J. Corrin Care, T. Newton & D. Paterson
Available from all good legal book shops, at  Stop Press in Vanuatu or by ordering from Cavendish .