Law of the Oan Isles
The law of the Oan Isles encompasses the Home Islands and the Kohatu Isles. However, the law of the Kohatu Isles is not always applicable in the Home Islands. The primary sources of law are The Constitution, statute, Royal Decree, delegated legislation, case law and traditional custom. The judiciary consists of the Supreme Court, High Court, Magistrate Courts, Traditional Courts and Military Courts. The Commission for Judicial Appointments oversees the selection of judges. Litigation happens per the adversarial system. Numerous rights such as protection from double jeopardy and from self-incrimination, ensure people have a fair and balanced trial. The Auroran law is binding on the Oan Isles.
Sources of law
The Constitution of the Oan Isles is the highest law in the land. All other laws are required to abide by the Constitution. The Constitution gives the National Assembly and the Emperor of Polynesia the power to pass statutory or primary legislation. The National Assembly and Emperor can delegate the power to male laws to other government bodies such as by-laws in the case of local government and regulations in the case of executive bodies. The Crown itself wields royal prerogatives which is exercises in the form of royal decrees. Because the Crown is required to abide by the advice of the Council of Ministers, the executive branch also has the power to issue royal decrees with respect to powers enumerated as royal prerogatives. Judges in turn interpret and apply the law. The decisions that arise from these cases become part of Oan jurisprudence via case law. Traditional customs of the Oan people which have been observed for century wield the force of law insofar as they do not conflict with other laws and are enforceable by the state. Nevertheless, disputes over what constitutes custom are resolved by case law (unless written into law via royal Decree or statute).
The Supreme Court of the Oan Isles is the final court of appeal of the country. All courts must abide by the interpretation of the Supreme Court and only a future bench of the Supreme Court may overturn a previous decision. It has the power to strike down laws which violate the Constitution.
The High Courts are courts of appeal and general jurisdiction on each major island or island group of the Oan Isles. Cases involving murder, rape, bankruptcy, mental capacity and so on, may only be heard by the High Court. In addition, all cases tried in lower courts can be presented to the High Court for appeal. The interpretation of the High Court is binding on all similar cases within the province of its jurisdiction insofar as that interpretation conforms to the Supreme Court. Thus, any interpretation by a High Court can be overturned by the Supreme Court. Nevertheless, most cases must be heard by a High Court before being heard by the Supreme Court.
The list of High Courts is as follows:
- Noapa High Court (Noamotu and Nga Motuere Raki)
- Anapa High Court (Manaakitangamotu)
- Tauranga a te Toka High Court (Tokamotu and Nga Motuere Tarutaru)
- Tongapa High Court (Tongamotu and Rawhitimotu)
- Maungapa High Court (Maungamotu and Nga Motuere Rakau)
- Koroipa High Court (Koroimotu and Waimotu)
- Moataone High Court (Ataahuamotu and Tokowha Nga Tuatana)
The Magistrate Courts handle the bulk of the workload in that they hear and adjudicated all trials not reserved for the high courts. These courts are ranked from most to least powerful as follows: regional, district and local. Each court can impose different punishments and listen to cases of a certain magnitude.
The Traditional Courts adjudicate matters which arise from traditional custom. Cases can be retried in the Magistrate Courts. Whereas, other courts consists of professional judges and magistrates, Traditional Courts consist of tribal Chiefs and local elders. Their jurisdiction includes rural land and fishing rights, bridal price, culturally significant sites and so on. Because most of the population live in the cities, the power of the Traditional Courts has waned significantly and their relevance in modern law has declined.
Military Courts enforce military discipline. This means that most cases involving a service member of the Military of the Oan Isles is subject to the military discipline system. The adjudicators are military officials such as commanding officers.
Judges are appointed by the Rangitanga-a-te-Moana on the advice of the Prime Minister of the Oan Isles from recommendations by the Commission on Judicial Appointments. The Commission consists of teachers of law, lawyers, serving and retired judges and magistrates. It opens and advertises judicial vacancies, receives applications, conducts interviews, develops training materials, appointment criteria and educational guidelines. Magistrates are appointed by the Department of Justice on professional merit in line with the guidelines set by the CJA. Chiefs are hereditary nobles and elders are people in good standing with a tribe who have some legal experience or training. The head of the judiciary is the Chief Justice. He presides over and orchestrates the selection process for Supreme and High Court judges.
Complaints against the competency and fairness of a judge can be brought to the CJA. In which case a trial process is initiated as would happen with a normal case. Safeguards exists to prevent judges from being bogged down in cases to prevent them from exercising their duties.
Trials in the Oan Isles are conducted according to the adversarial system. This means one person accused another of violating their rights. That person has the responsibility of providing evidence and arguments that their rights were violated. The judge will look at the evidence and arguments presented to determine both whether the violation occurred and what the correct remedy is.
The one bringing the case in a civil trial is a complaint while the one against whom the case is brought is the respondent. In criminal matters, this is the plaintiff and the defendant respectively. In criminal cases, the Crown is charged with upholding the rights of its people, thus Crown prosecutors will represent the plaintiff. Some plaintiffs can elect to have their own prosecutor, but the Crown prosecutor is kept abreast of the case.
In most cases, a pretrial is held to determine whether a case should be heard by the court. The purpose of this exercise is to determine that a material violation of rights has occurred. Then a trial follows. There are two types of trials: a civil application is the presentation of written facts and arguments while an oral trial involves the cross examination of witnesses in front of a judge and oral presentation of arguments and facts. In an appeal, most of the adjudication happens by civil application. Nevertheless, oral presentations can be requested by the judge or judges hearing the case. There is no arguing between sides in an appeal. An appeal's main function is to display that the decisions of a lower court were procedurally or substantially inerrant. The aim is not to retry the case.
Litigants have the rights:
- To a fair trial before an impartial and qualified judge
- To present their case in public
- Not to be tried for the same matter twice
- Not to be tried for something which was legal when it was carried out but would be illegal of carried out under a new law.
- To competent representation
- To state representation when they cannot afford it (criminal cases),
- To a speedy and efficient trial
- To fair and just compensation
- To protection from degrading or humiliating punishment
- To confirm that a person is being held by the police.
There are many others but these few forms the basis of the legal system.
There are two recognised legal professionals: attorneys and advocates. These are called lawyers in common lexicon. All legal professionals require a minimum of a Bachelor of Laws degree from an Oan university or equivalent qualification at a recognised institution.
- Attorneys: To become an attorney, one needs to intern under an admitted attorney and write the Board Exams. All attorneys must be members of the Oan Law Society. Attorneys advise their clients on legal issues. Attorneys work in a law firm. Attorneys may not present cases before the Supreme Court or High Courts.
- Advocates: To become an advocate, one needs to intern under an advocate and write the Bar Exams. All advocates must be members of the Oan Bar Association. Advocates do not work with the public directly. They are employed by the state or by attorneys to present oral arguments to the courts. Only advocates may speak before the Supreme Court and the High Courts. Advocates work as individuals, but they can form chambers which are essentially affiliations of advocates operating as a law firm. Usually, only advocates can become Supreme or High Court justices.
The Oan Isles is a member of the United Nations of the Auroran Continent, thus it is subject to the jurisdiction of the Auroran Court of Justice. This court has the power to determine whether the Oan Isles has violated the rights of another nation or whether the rights of the Oan Isles have been violated by another nation. The decisions of the ACJ are binding on all courts of the Oan Isles. The Auroran Court Justice has the power to interpret human rights legislation at a continental level. Thus, Oan courts are obligated to enforce decisions made by the ACJ. An Oan judge, currently Pounamu Waitangi, serves on the bench of the present ACJ.
The statutes of the UNAC Parliament are binding on the Oan Isles insofar as that statute is passed in areas over which the Oan Isles has ceded legislative authority to the UNAC. Special provisions in the Oan Isles' membership give it more latitude than mainland nations because of its unique geographical position and economic and social considerations. Thus, not all law that applies on mainland Aurora is automatically applicable to the Oan Isles. Similar provisions apply to insular members of the UNAC such as Dragonia.
Specific fields of law
The following section gives a brief overview of specific fields of law (also known as species of law) and is not meant to be taken as a comprehensive overview.
Nationality law governs citizenship and permanent residence. According to this law any child born in the Oan Isles or the Kohatu Isles, anyone who was a citizen of Gemica upon its annexation in 2017, anyone who was born to at least one Oan parent is automatically a citizen of the Oan Isles. Anyone who has Oan or Kohatuan heritage to the second degree (i.e., one grandparent is Oan or Kohatuan) but lives in another country is automatically granted citizenship upon application. The Oan Isles permits dual citizenship. Oan citizens may renounce their citizenship without cost. Permanent residency is granted to anyone who has lived in the Oan Isles or the Kohatu Isles for 10 years by default or after 5 years of they have an investment in the Oan Isles of 500,000 KRB or more (as determined by the Minister of Home Affairs). Citizenship by naturalisation is granted to permanent residents upon application after living in the country for 15 years or for 10 years if they have an investment in the country of 500,000 KRB or more as determined by the Minister of Home Affairs. Citizens of Great Morstaybishlia who are also ethnic Oan i.e., they can trace their ancestry to the third degree to the area of the Oan Isles that was ruled by the Rangitanga-a-te-Moana prior to 1855 namely the Morstaybishlian West Pacific Territories, are eligible for Oan citizenship after applying.
Intellectual property law
Intellectual property refers to invention of the mind such as design. Patent, copyright and trademark law govern the use of and rights pertaining to intellectual property. Works of art, photography, cinematography, literature and software are protected by copyright law meaning that the author enjoys exclusive rights for their lifetime plus 50 years. Only natural persons have automatic rights over their works however they may sell or lease their rights including to juristic persons for a period falling within the duration of the copyright. Patent law applies to the schematics, formulae, designs or instructions concerning the invention of a new product or technology. Recognition of the novelty of the invention is granted by the Oan Patent Office upon successful completion of the application documentation. In some cases, a working prototype is required to validate the patent. The Oan Isles is an examining country meaning that the Patent Office will verify the patent. There are limitations on the recognition of patents for certain discoveries. Furthermore, indigenous knowledge is not considered patentable.
Marital and matrimonial property law
According to Oan law, any adult can enter into a monogamous marriage with another consenting adult. The conditions are that the people wanting to marry must have the capacity to do so and must do so of their volition and full knowledge. In the event that one person defrauded another into entering the marriage, the courts may grant and annulment. In all other circumstances, a marriage may be ended via divorce due to illness or imprisonment of one or both partners or irretrievable breakdown of the relationship. All couples are married by community of property (i.e., the assets they accrued before and during the marriage are split evenly upon divorce and both are equally bound by the insolvency of the other). However couples may opt for out of community of property marriage whereby all assets accrued prior to the marriage remain separated and the insolvency of the one is not the insolvency of the other. Furthermore, couples may opt for a prenuptial agreement which overrides all other marital regimes. This is the preferred regime for most couples. Custody of children is granted evenly or based on agreement unless the one spouse can prove that the other has some issue such as severe illness, lack of financial resources, criminal charge etc., that makes them unfit to be granted custody. Marriage is open to all genders and religions and couples need a certificate from a marriage officer for their marriage to be recognised. All children born in a marriage either by sperm or ovum donation and artificial insemination or surrogacy belong to the couple equally. All children adopted in the marriage belong to the couple equally.
Upon the death of one person, their possessions form part of an estate that is distributed to the beneficiaries according to law or a will. If the estate is left intestate upon death of the principal, the estate is divided per stirpes as follows: half to the spouse and half to the children divided equally, minus liabilities and costs. The executor shall by default be the spouse, the descendants by order of birth if they are of majority or one appointed by the state (especially if one or more potential heirs presents a challenge to another acting as the executor). On death of a testate estate, the property is divided according to a will minus liabilities and costs which include support for spouses and minor or disabled children as deemed appropriate by the court. In a noble estate, the title shall fall to the eldest heir and their spouse as determined by absolute primogeniture for a hereditary title or shall return to the Crown for a life title.
Any verbal or written agreement between two person to act or withhold from acting is a binding contract. A contract may be overturned if the terms material to the agreement were not agreed upon or known by one of the actors, if one of the signatories was under duress or was coerced into entering the contract, if the contract is impossible to enforce or if the terms on which the contract is predicated are unlawful. The signatory claiming that the contract or a term thereof must prove that an impropriety exists. This can be a procedural or substantive matter relevant to the case. Caveat subscriptor refers to the obligation by the signatories to ensure that they fully understand the terms of the contract if they sign a written agreement. Such an obligation can be overturned if a iustus error or another discrepancy arises.
Law of delict
Law of delict refers to the actual or potential harm arising from the failure to act or action by one party they should have reasonably known that some harm would arise. This is tried as a civil matter and explicitly excludes criminal matters. Delictual responsibility fails at the age of 14 years old.
Any citizen of a member state of the United Nations of the Auroran Continent shall be permitted to enter the Oan Isles and stay freely. In terms of their treaty obligations, the Oan Isles may not arbitrarily discriminate against citizens of member states. However, the Oan Isles may prevent citizens of member state from entering the state due to criminal activity, a sanction as mandated or under Auroran law or due to legitimate concerns of overpopulation. At the moment, the Oan Isles does not impose restrictions on citizens of UNAC member states. Citizens of Antora, Mexregiona, Atlae, Vekaiyu, South Hills, Volkia, Kuthernburg, Latianburg, Atiland, Nacata, Vistaraland, Tretrid, Peregrinia and others get a tourist visa on arrival. Commercial and study visas and work permits must be applied for prior to arrival. A commercial visa grants the bearer the right to conduct business in the Oan Isles for a specified period, study visas are granted for students wishing to study at an Oan institution for the duration of their study (but it must be regranted every year once the university or school confirms that the student is eligible to continue studying) and a work permit is required to undertake full-time work. Unless applying for asylum or refugee status, citizens of Fortuna, Packilvania, Nystatiszna, and Stratarin face considerable challenges. Unless they belong to a protected group under the vulnerable peoples list, applicants for refugee status must prove that they face persecution. For example religious, species and gender minorities in Packilvania, vulpines from Stratarin and Fortuna, and Nekomimis from Nystatiszna are considered vulnerable. It is not possible to apply for asylum or refugee status from a UNAC member state unless that nation has been placed on a blacklist.