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FROM HORIZONTAL AND VERTICAL TO LATERAL: EXTENDING THE EFFECT OF HUMAN RIGHTS IN POST COLONIAL LEGAL SYSTEMS OF THE SOUTH PACIFIC

Published online by Cambridge University Press:  06 February 2009

Jennifer Corrin
Jennifer Corrin
Affiliation:
Dr Jennifer Corrin is Executive Director, Asia Pacific Law, in the Centre for Public, International and Comparative Law and Associate Professor in the TC Beirne School of Law, the University of Queensland, Australia.
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International & Comparative Law Quarterly , Volume 58 , Issue 1 , January 2009 , pp. 31 - 71
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Copyright © 2009 British Institute of International and Comparative Law

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References

1 Marshall, William P, ‘Diluting Constitutional Rights: Rethinking “Rethinking State Action”’ 80(3) Northwestern University Law Review 558.Google Scholar

2 Erwin Chemerinsky, ‘Rethinking State Action’ 80(3) Northwestern University Law Review 503; Murray Hunt, ‘The “Horizontal Effect” of the Human Rights Act’ [1998] Public Law 423.

3 For further discussion of the theoretical bases for each approach see, eg, Daniel Friedmann and Daphne Barak-Erez (eds), Human Rights in Private Law (2001) 1; Greg Taylor, ‘the Horizontal Effect of Human Rights Provisions, the German Model and its Applicability to Common Law Jurisdictions’ (2002) 13 KCLJ 187,191; Katherine E Swinton, ‘Application of the Canadian Charter of Rights and Freedoms’ in Justice Walter Tarnopolsky and Gerald A Beaudoin, The Canadian Charter of Rights and Freedoms: A Commentary (Toronto: Carswell, 1982) 44, quoted in Butler (n 6) 1; Woolman and Davis (n 5) (South Africa) O'Cinneide, ‘Taking Horizontal Effect Seriously: Private Law, Constitutional Rights and the European Convention on Human Rights’ (2003) 4 Hibernian Law Journal 77 and Siobhan Leonard, ‘The European Convention on Human Rights: A New Era for Human Rights Protection in Europe?’ in Angela Hegarty and Siobhan Leonard (eds), Human Rights: An Agenda for the 21st Century (Cavendish Publishing Ltd, London, 1999) (Ireland); Slattery, below n 6 (Canada); Peter W Hogg, Constitutional Law of Canada (2nd edn, Carswell, 1985) 677 in Butler (n 7).

4 See, eg Colm O'Cinneide (n 3); Clapham, Andrew, ‘Opinion: The Privatisation of Human Rights’ [1995] European Human Rights Law Review 20.Google Scholar

5 See, eg Van der Walt, Johan, ‘Progressive Indirect Horizontal Application of the Bill of Rights: Towards a Co-operative Relation Between Common-Law and Constitutional Jurisprudence’ (2001) 17(3) South African Journal on Human Rights 341CrossRefGoogle Scholar; Stuart Woolman and Dennis Davis, ‘The Last Laugh: Du Plessis v De Klerk, Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights Under the Interim and the Final Constitutions’ (1996) South African Journal on Human Rights 361, discussing Du Plessis and Others v De Klerk (1996) 3 SA 850.

6 See, eg Brian Slattery, ‘The Charter of Rights and Freedoms—Does it Bind Private Persons?’ (1985) 63 Canadian Bar Review 148; Erwin Chemerinsky, ‘Rethinking State Action’ (1985) 80(3) Northwestern University Law Review 503; William P Marshall, ‘Diluting Constitutional Rights: Rethinking “Rethinking State Action”’ (1985) 80(3) Northwestern University Law Review 558; David Dyzenhaus, ‘The New Positivists’ (1989) 39 University of Toronto Law Journal 361. See also Manning v Hill (1995) 126 DLR (4th) 129; Retail, Wholesale & Department Store Union, Local 580 et al v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174.

7 See, eg Butler, Andrew S, ‘Constitutional Rights in Private Litigation: A Critique and Comparative Analysis’ (1993) 22 Anglo-American Law Review 1CrossRefGoogle Scholar.

8 Deryck Beyleveld and Shaun D Pattinson, ‘Horizontal Applicability and Horizontal Effect’ (2002) 118 Law Quarterly Review 623; Sir William Wade, ‘Horizons of Horizontality’ [2000]116 LQR 217; Dawn Oliver, The Human Rights Act and the Public Law/Private Law Divide [2000] EHRLR 343; Tom Raphael, The Problem of Horizontal Effect [2000] EHRLR 393; Phillipson, Gavin, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: A Bang or a Whimper?’ (1999) 62(6) Modern Law Review 824–849CrossRefGoogle Scholar; Hunt (n 2). See also O'Cinneide (n 3) 102–107.

9 The Declaration of the European Union Council, Copenhagan, June 1993, contains the ‘Copenhagen political criteria’, the fulfillment of which is seen as a requirement for EU membership. This was a major issue during Turkey's campaign to join the EU, as the country's inability to conform with those criteria, particularly on matters such as restrictions on freedom of expression and association, torture and state violence, and the Cyprus conflict, was a major sticking point in Turkish–EU relations prior to the governmental reforms that began in Turkey in 1999: Thomas Diez and Bahar Rumelili, ‘Open the Door: Turkey and the European Union’ (2004) 60 (8/9) The World Today 33.

10 Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) 102; Andrew Geddis, ‘The Horizontal Effects of the New Zealand Bill of Rights Act, as applied in Hosking v Runting’ [2004] New Zealand Law Review 681; Charters, Claire, ‘Maori, Beware the Bill of Rights Act!’ (2003) New Zealand Law Journal 401–403Google Scholar.

11 An example of the failure to devise regionally appropriate rights is illustrated by the fact that no regional constitution confers a right to recognition and application of customary law.

12 One reason for this is the lack of a clear distinction between the public and private spheres, which detracts from the arguments in favour of a purely vertical effect.

13 Hunt (n 2).

14 The United States' position on the application of human rights is closest to the vertical approach. The US requires a claimant to establish that there has been ‘state action’ for the bill of rights protections to apply. Hong Kong also follows this approach: Hunt (n 7) 427; Tam Hing-yee v Wu Tai-wai [1992] 1 HKLR 185. In 1997 the position was changed by the Bill of Rights (Amendment) Ordinance 1997 which stated:

(3) It is hereby declared to be the intention of the legislature that the provisions of this Ordinance, including the guarantees contained in the Bill of Rights, apply to all legislation, whether that legislation affects legal relations between the Government, public authorities and private persons, or whether it affects only relations between private persons.

However, the 1997 Act was repealed before coming into force by the Hong Kong Bill of Rights (Amendment) Ordinance 1998, thus restoring the status quo. The Court of Appeal has since held that, since 1997, it is no longer bound by Tam Hing-yee v Wu Tai-wai (n 14).

15 Ireland, with its developing body of sui generis constitutional torts, lies at the other end of the spectrum. Here, one private party can bring a cause of action against another private party based on their constitutional rights: Hunt (n 2) 428–429; T Kerr and T Cooney, ‘Constitutional Aspects of Irish Tort Law’ (1981) 3 Dublin University Law Journal 1.

16 Hunt (n 2) 431.

17 Douglas v Hello (No 1) [2001] QB 967, 1002 per Sedley LJ. This approach was followed by Baroness Hale in Campbell v MGN Ltd [2004] UKHL 22 at [132], but the other members of the House—there and in other cases—seem to be wholly ignorant of such an argument.

18 There may be some analogy with equitable estoppel, which in some countries, including the United Kingdom, may be used as a ‘shield but not a sword’.

19 This is the approach that has been taken to Canada's Charter of Rights and Freedoms and its application represents a hybrid position which is ostensibly vertical—requiring government action for rights to apply directly—but does permit a degree of horizontal application in private litigation. However, the charter rights do not affect the common law, although courts have allowed its values to guide the court in its ‘inherent jurisdiction … to modify or extend the operation of the common law in order to comply with prevailing social conditions and values’: Manning v Hill (1995) 126 DLR (4th) 129, 156: in Hunt, above n 2, 431; Jane Wright, Tort Law and Human Rights (Hart, Oxford, 2001): Hart 23. The South African Constitutional Court has arrived at a similar position in De Plessis v De Klerk (1996) BCLR 658. Hunt (n 2) 433.

20 See the dissenting judgment of Kriegler J in Du Plessis v De Klerk; Hunt (n 2) 434–435.

21 For further discussion and examples of government actions see: Andrew S Butler, ‘Constitutional Rights in Private Litigation: A Critique and Comparative Analysis’ (1991) Anglo-American Law Review 1, 2–5.

22 John Nowak and Ronald Rotunda, Constitutional Law (West Group, St Paul, 2000) 372–373.

23 Ian Leigh, ‘Horizontal Rights, the Human Rights Act and privacy: Lessons from the Commonwealth?’ 48 International and Comparative law Quarterly 57, 75–83.

24 On methods of constitutional interpretation in the South Pacific see, eg Re the Constitution, Attorney General v Olomalu [1980–93] WSLR 41; Henry v Attorney-General [1985] LRC (Const) 1149; Reference by the Queen's Representative [1985] LRC (Const) 56; Reference by Western Highlands Provincial Executive (unreported, Supreme Court of Justice, Papua New Guinea, Amet CJ, Kapi DCJ, Los, Brown and Sawong JJ, 20 September 1995), referring to Minister of Home Affairs v Fisher [1980] AC 319 and Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231, 236.

25 See further on the universality/cultural relativity debate Shashi Tharoor, ‘Are Human Rights Universal?’ (1999/2000) 16(4) World Policy Journal 1; Diana Ayton-Shenker, The Challenge of Human Rights and Cultural Diversity (1995) United Nations <http://www.un.org/rights/dpi1627e.htm>at 16 December 2005.

26 See, eg Solomon Islands, Reform of Solomon Islands Constitution, White Paper (November 2005). From 26 to 28 August, 2005 a conference on constitutional change in the region entitled, ‘Constitutional Renewal in the Pacific Islands’ was held at the University of the South Pacific's Emalus Campus, Port Vila, Vanuatu. Some of the papers are available from Pacific Institute of Advanced Studies in Development and Governance, The University of the South Pacific, Laucala Campus, Suva, Fiji Islands.

27 See further, Jennifer Corrin Care, ‘Off the Peg or Made to Measure: Is the Westminster System of Government Appropriate in Solomon Islands?’, in I Molloy (ed), The Eye of the Cyclone (2004, Pacific Islands Political Science Association and University of the Sunshine Coast, Sippy Downs, Qld, 2004) 156–170.

28 Towards a United Future, 1996, Parliamentary Paper 34/96, Suva: Government Printer, [7.14]. The Commission considered that ‘the application of the Bill of Rights should not be expressly enlarged to require, permit or encourage its application to private persons’ in contexts other than discrimination in giving access to public facilities, where it already applied to privately owned premises.

29 The Commission is responsible for playing a leading role in the protection and promotion of human rights for the people of Fiji and in helping build and strengthen a human rights culture in Fiji: More specifically it is mandated to educate the public about human rights, to make recommendations to the government about matters affecting human rights and to perform such other functions as are conferred on it by a law made in Parliament: See further the Fiji Human Rights Commission's web site: <http://www.humanrights.org.fj/>.

30 Fiji Human Right Commission, Jurisdiction, http://www.humanrights.org.fj/protecting_human_rights/jurisdiction.html>accessed on 21 March 2007. These limitations are not expressly stated in the Fiji Human Rights Commission Act 1999.

31 See Hunt (n 2) 439 and Du Plessis v De Klerk (1996) (3) SA 850, 877–878, per Kentridge AJ.

32 Hunt (n 2) 439; Du Plessis v De Klerk (1996) (3) SA 850, 877–878, per Kentridge AJ.

33 Above (n 53).

34 Above (n 53) [7.14].

35 The Reeves Report (n 28) is based was compiled by a Commission chaired by a New Zealander, Sir Paul Reeves.

36 Police v O'Connor [1992] 1 NZLR 87, 97–99; R v Shaw [1991] 8 CRNZ 511.

37 Lange v Atkinson [1997] 2 NZLR 22, 45–47; upheld by the Court of Appeal in Lange v Atkinson (1998) 4 BHRC 573.

38 Constitution of the Republic of South Africa 1996, s 8(2).

39 Lange v Atkinson [1997] 2 NZLR 22, 32, 45–47; Du Plessis v De Klerk (1996) (3) SA 850, 877–878, per Kentridge AJ.

40 O'Cinneide (n 3) 104.

41 (Unreported, High Court, Fiji, Madraiwiwi, J, 6 October 2000), accessible via www.paclii.org at [2000] FJHC 141.

42 (Unreported, High Court, Fiji, Madraiwiwi, J, 6 October 2000), accessible via www.paclii.org at [2000] FJHC 141. This view is supported by The Minister of Home Affairs v Fisher [1980] AC 319.

43 [2002] ICHRL 4; (2003) 4 CHRLD 6.

44 The court was also influenced to act by the fact that the Constitution, s 33, deals with labour relations.

45 R v H [1994] 2 NZLR 143, 147–148.

46 Above (n 22).

47 Reeves Report (n 28) [7.14].

48 See also; High Court (Constitutional Redress) Rules 1998 (Fiji). The requirements in the Rules may be waived: Attorney-General of Fiji v Silatolu (Unreported, Court of appeal, Fiji, Barker, Ward and Davies JJA, 6 March 2003), accessible via www.paclii.org: [2003] FJCA 12.

49 Harrikissoon v Attorney-General of Trinidad and Tobago [1980] AC 265, 268; Attorney-General of Fiji v Silatolu (Unreported, Court of Appeal, Fiji, Barker, Ward and Davies JJA, 6 March 2003), accessible via www.paclii.org: [2003] FJCA 12.

50 Section 12(1)(a).

51 (1997) 2 CHRLD 57.

52 [1985] PNGLR 78.

53 ‘Payback’ is the word used in Melanesia to refer to the custom of avenging the death or injury to a relative by killing or maiming the perpetrator or one of his clan.

54 Brian Curran v the State; Minister for Foreign Affairs; Arnold Marsupial, Bernard Naracoopa and Lucas Wake, as Members of a Ministerial Committee of Review [1994] PNGLR 230. While this case considers state actions, it seems likely that the court will require that parties to private law disputes also exhaust their remedies prior to claiming under the Constitution.

55 Human Rights Application of Michael Xysters Tataki [1996] PNGLR 90.

56 Section 11(2), Constitution of Tuvalu 1986. It is significant that Tuvalu's current constitution was drafted and enacted in Tuvalu to replace the Independence Constitution drafted by England as the outgoing colonial power, which had no equivalent provision regarding the status of customary law.

57 (Unreported, High Court, Tuvalu, Ward CJ, 11 October 2005), accessible via www.paclii.org: [2005] TVHC 2.

58 In particular, Sefo v The Attorney-General and the Alii and Faipule of Saipipi (Unreported, Supreme Court of Samoa, Wilson J, 12 July 2000), accessible via www.paclii.org: [2000] WSSC 18; Lafaialii v Attorney General and the Alii & Faipule of Falealupo (Unreported, Supreme Court of Samoa, Sapolu CJ, 24 April 2003), accessible via www.paclii.org: [2003] WSSC 8.

59 Section 4(2)(c).

60 Sefo v The Attorney-General and the Alii and Faipule of Saipipi (Unreported, Supreme Court of Samoa, Wilson J, 12 July 2000), accessible via www.paclii.org: [2000] WSSC 18; Lafaialii and Others v Attorney General and the Alii & Faipule of Falealupo (Unreported, Supreme Court of Samoa, Sapolu CJ, 24 April 2003), accessible via www.paclii.org: [2003] WSSC 8. See also Mauga and Others v Leituala (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, March 2005).

61 See further, Solomon Islands, Reform of Solomon Islands Constitution, White Paper (November 2005).

62 Federal Constitution of Solomon Islands Bill 2004, section 21(b) binds ‘all persons performing the functions of any public authority or government office’.

63 Federal Constitution of Solomon Islands Bill 2004, section 21(c).

64 [1987] LRC (Const) 517.

65 ibid.

66 It should be noted that not all rights are matched by a corresponding duty. This depends on the nature of the right. For example, the right may be in the form of a liberty, which has no corresponding duty but only lack of a right, or an immunity, to which there is a correlative disability. See further the application of Hohfeld's analysis of private legal relations (WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1923)) to human rights in Ian Leigh, Horizontal Rights, the Human Rights Act and privacy: Lessons from the Commonwealth?' 48 International and Comparative law Quarterly 57, 60–61.

67 Constitution of Kiribati 1979, proviso to s 17(2).

68 Teitinnang v Ariong [1987] LRC (Const) 517.

69 Constitution of Samoa 1962.

70 The legislation affirms the customary authority of the Village Council and confers further powers on it, but it also allows for an appeal to the Land and Titles Court, which arguably restricts its powers. For further discussion of the flaws in this legislation see Unasa Va'a, ‘Local Government in Samoa and the Search for Balance’, in Elise Huffer and So'o A (eds), Governance in Samoa (Asia Pacific Press, 2000) 151, 159.

71 See, eg Malama Meleisea, ‘Government, Development and Leaded, Court of appeal, Fiji, Barker, Ward and Davies JJA, 6 March 2003), accessible via www.paclii.org: [2003] FJCA 12.

72 Harrikissoon v Attorney-General of Trinidad and Tobago [1980] AC 265, 268; Attorney-General of Fiji v Silatolu (Unreported, Court of Appeal, Fiji, Barker, Ward and Davies JJA, 6 March 2003), accessible via www.paclii.org: [2003] FJCA 12.

73 Section 12(1)(a).

74 (1997) 2 CHRLD 57.

75 [1985] PNGLR 78.

76 ‘Payback’ is the word used in Melanesia to refer to the custom of avenging the death or injury to a relative by killing or maiming the perpetrator or one of his clan.

77 Brian Curran v the State; Minister for Foreign Affairs; Arnold Marsupial, Bernard Naracoopa and Lucas Wake, as Members of a Ministerial Committee of Review [1994] PNGLR 230. While this case considers state actions, it seems likely that the court will require that parties to private law disputes also exhaust their remedies prior to claiming under the Constitution.

78 Human Rights Application of Michael Xysters Tataki [1996] PNGLR 90.

79 Section 11(2), Constitution of Tuvalu 1986. It is significant that Tuvalu's current constitution was drafted and enacted in Tuvalu to replace the Independence Constitution drafted by England as the outgoing colonial power, which had no equivalent provision regarding the status of customary law.

80 (Unreported, High Court, Tuvalu, Ward CJ, 11 October 2005), accessible via www.paclii.org: [2005] TVHC 2.

81 In particular, Sefo v The Attorney-General and the Alii and Faipule of Saipipi (Unreported, Supreme Court of Samoa, Wilson J, 12 July 2000), accessible via www.paclii.org: [2000] WSSC 18; Lafaialii v Attorney General and the Alii & Faipule of Falealupo (Unreported, Supreme Court of Samoa, Sapolu CJ, 24 April 2003), accessible via www.paclii.org: [2003] WSSC 8.

82 Section 4(2)(c).

83 Sefo v The Attorney-General and the Alii and Faipule of Saipipi (Unreported, Supreme Court of Samoa, Wilson J, 12 July 2000), accessible via www.paclii.org: [2000] WSSC 18; Lafaialii and Others v Attorney General and the Alii & Faipule of Falealupo (Unreported, Supreme Court of Samoa, Sapolu CJ, 24 April 2003), accessible via www.paclii.org: [2003] WSSC 8. See also Mauga and Others v Leituala (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, March 2005).

84 See further, Solomon Islands, Reform of Solomon Islands Constitution, White Paper (November 2005).

85 Federal Constitution of Solomon Islands Bill 2004, section 21(b) binds ‘all persons performing the functions of any public authority or government office’.

86 Federal Constitution of Solomon Islands Bill 2004, section 21(c).

87 [1987] LRC (Const) 517.

88 ibid.

89 It should be noted that not all rights are matched by a corresponding duty. This depends on the nature of the right. For example, the right may be in the form of a liberty, which has no corresponding duty but only lack of a right, or an immunity, to which there is a correlative disability. See further the application of Hohfeld's analysis of private legal relations (WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1923)) to human rights in Ian Leigh, Horizontal Rights, the Human Rights Act and privacy: Lessons from the Commonwealth?' 48 International and Comparative law Quarterly 57, 60–61.

90 Constitution of Kiribati 1979, proviso to s 17(2).

91 Teitinnang v Ariong [1987] LRC (Const) 517.

92 Constitution of Samoa 1962.

93 The legislation affirms the customary authority of the Village Council and confers further powers on it, but it also allows for an appeal to the Land and Titles Court, which arguably restricts its powers. For further discussion of the flaws in this legislation see Unasa Va'a, ‘Local Government in Samoa and the Search for Balance’, in Elise Huffer and So'o A (eds), Governance in Samoa (Asia Pacific Press, 2000) 151, 159.

94 See, eg Malama Meleisea, ‘Government, Development and Leadership in Polynesia’, in Elise Huffer and So'o A (eds), Governance in Samoa (Asia Pacific Press, 2000) 188, 198; Abdul Paliwala, ‘Law and Order in the Village: the Village Courts’ in David Weisbrot, Paliwala, A and Sawyer, A (eds), Law and Social Change in Papua New Guinea (Butterworths, Sydney, 1982) 191–218.

95 Constitution of Samoa 1962, Art 111(1).

96 Ta'amale and Ta'amale Toelau v The Attorney-General (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, 18 August 1995, 31), accessible via www.paclii.org: [1995] WSCA 12; digested in [1996] 2 CHRLD 257; Jennifer Corrin Care ‘A Green Stick or a Fresh Stick: Locating Customary Penalties in the Post-Colonial Era’ (2006) 6(1) Oxford University Commonwealth Law Journal 27–60.

97 (Unreported, Supreme Court of Samoa, Wilson J, 12 July 2000), accessible via www.paclii.org: [2000] WSSC 18.

98 (Unreported, Supreme Court of Samoa, Sapolu CJ, 24 April 2003), accessible via www.paclii.org: [2003] WSSC 8.

99 While, strictly speaking, this case was a review of a decision of the Land Titles Court, it considered the decisions of the Alii ma Faipule (on which the decision of the Land Titles Court was based) and held that they too were unconstitutional.

100 [1980–93] WSLR 19.

101 (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, 18 August 1995), accessible via www.paclii.org: [1995] WSCA 12; digested in [1996] 2 CHRLD 257.

102 (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, March 2005), accessible in Leuluaialii Tasi Malifa, Samoa's Democracy has Come of Age (2005) Samoa Observer Online <http://www.samoaobserver.ws/news/opinions/op0305/2005op001.htm> at 29 August 2005.

103 1990.

104 Leituala v Mauga [2004] WSSC 9 (13th August, 2004); Mauga v Leituala (March 2005) full judgment in Leuluaialii Tasi Malifa, Samoa's Democracy has Come of Age (2005) Samoa Observer Online <http://www.samoaobserver.ws/news/opinions/op0305/2005op001.htm> at 29 August 2005.

105 Above n 79, 6.

106 (Unreported, Supreme Court of Samoa, Sapolu, CJ, 19 February 1997), accessible via www.paclii.org at [1997] WSSC 2.

107 (Unreported. Supreme Court, Samoa, Sapolu CJ, 1995).

108 [1985/6] SILR 158, 169.

109 The Kwaio region is in a remote area on Malaita Island.

110 [1979] AC 385; 2 WLR 902.

111 [1981] AC 61; [1980] 2 WLR 510.

112 [1979] AC 385; 2 WLR 902.

113 [1979] All ER 21.

114 [2005] 1 LRC 698.

115 Section 3 is a preamble or introductory section to the rights chapter.

116 [1979] AC 385; 2 WLR 902.

117 [1981] AC 61; [1980] 2 WLR 510.

118 Peter Hogg, Constitutional Law of Canada (4th edn, 1977) 858–861.

119 Catherine Swinton, The Canadian Charter of Rights and Freedoms: Commentary (1982) 44–49.

120 Constitution of Fiji Islands 1997, s 41(4). See above (n 60) and (n 61).

121 Constitution of Kiribati 1979, proviso to s 17(2). See above (n 77) and (n 78).

122 Constitution of Solomon Islands 1978, proviso to s 18(2).

123 (Unreported, High Court, Solomon Islands, cc 218/1995, 14 February 1997). This case is discussed in Care, J Corrin, ‘Customary Law and Human Rights in Solomon Islands—A commentary on Remisio Pusi v James Leni and Others’ (1999) Journal of Legal Pluralism 135CrossRefGoogle Scholar.

124 Whilst Muria CJ uses the term ‘preamble’, this terminology is not found in the Constitution itself. As the paragraphs in question contain underlying principles and philosophies and use the words ‘declare’ ‘agree and pledge’ in capital letters, they might perhaps be more correctly referred to as the ‘Declaration, Agreement and Pledge’. Notwithstanding, the term preamble has been used to identify the opening passages of regional constitutions in this paper.

125 [2005] TVHC 2.

126 The customary rules of succession to chiefly titles have been entirely replaced by rules of succession contained in the Constitution: Constitution of Tonga 1875, Clauses 32, 35, 60 and 67. See further, Powles, ‘The Place of Chiefly Systems in Constitutions’ in Fiji and the World, 1997, Suva: SSED, USP, 323.

127 [1988] LRC (Const) 949.

128 [2006] TOSC 16.

129 Section 6(2).

130 [1989–1994] 2 VanLR 545.

131 See Art 5(1)(g), (h), (i), and (k) respectively.

132 (Unreported, Supreme Court, Santo, Vanuatu, 1998), cited in Imrana Jalal, Law for Pacific Women (Fiji Women's Rights Movement, Suva, 1998) 65.

133 [1980–88] 1 VLR 130. See also Public Prosecutor v Silas [1989–1994] 2 Van LR 659, where a man was convicted of abducting his sister and forcing her to go to live with another man, which was an offence under the Penal Code (Cap 135) but permissible under customary law.

134 (Unreported, Supreme Court, Vanuatu, Lunabek CJ, 24 May 2002), accessible via www.paclii.org: [2002] VUSC 32.

135 The idea was developed by the anthropologist Franz Boas, Race, Language and Culture (Macmillan, New York, 1948). See further Ben-Ami Scharfstein, The Dilemma of Context (New York University Press, 1989).

136 See further, Jennifer Corrin Care (n 73) 27–60. The doctrine has perhaps achieved its greatest notoriety in debates on the legitimacy of the ‘cultural defence’, which seeks to have cultural beliefs and practices taken into account in assessing culpability for a crime. See, eg Alison Dundes Renteln, ‘Culture and Culpability: A Study of Contrasts’ in Renteln and Dundes (eds), Folk Law (University of Wisconsin Press, 1994) 863; Carolyn Choi, ‘Application of a Cultural Defense in Criminal Proceedings’, (1990) 8 UCLA Pacific Basin Law Journal 80. Compare R v Loumia and Others [1984] SILR 51, where the court refused to take into account the cultural context of a killing, with R v Rumints-Gorok [1963] P&NGLR 203, where the court considered it a relevant factor.

137 Peter Schwab and Adamantia Poliis (eds), Towards a Human Rights Framework (Praeger Publishers, New York, 1982).

138 Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, Ithaca, 1989; John Tilley, ‘Cultural Relativism’, Human Rights Quarterly, May 2000, 22(2), 501–547.

139 See further Jennifer Corrin Care, ‘Negotiating the Constitutional Conundrum: Balancing Cultural Identity with Principles of Gender Equality in Post Colonial South Pacific Societies’ (2006) 5 Indigenous Law Journal 51.

140 Kahn-Freund, Otto, ‘Uses and Misuses of Comparative Law’ (1974) 37 Modern Law Review 1, 5–6.CrossRefGoogle Scholar

141 See, eg Constitution of Samoa 1962, s 6(3).

142 There are about 740 different languages in Papua New Guinea, 65 in Solomon Islands and 100 in Vanuatu. Whilst only 0.1 per cent of the world's population lives in the Pacific region, it contains one-third of the world's languages: Pacific Island Populations, Report prepared by the South Pacific Commission for the International Conference on Population and Development, 5–13 September 1994, Cairo.

143 In fact it has been argued that the whole concept of custom is not objective or distinct, but is often subjectively interpreted to serve symbolic and political ends See further, eg Roger Keesing, Cultural Anthropology: the Science of Custom (Rhinehart & Co, New York, 1960) 384; Roger Keesing and Robert Tonkinson, ‘Reinventing Traditional Culture: The Politics of Kastom in Island Melanesia’ (1982) 13 (4) Mankind, 300, 302–305, 336, 357–373; Margaret Jolly and Nicholas Thomas, ‘The Politics of Tradition in the Pacific’ (1992) 62(4) Oceania (Special Issue) 241–243.

144 See further, eg Roger Keesing, Cultural Anthropology: the Science of Custom (Rhinehart & Co, New York, 1960) 384; Roger Keesing and Robert Tonkinson ‘Reinventing Traditional Culture: The Politics of Kastom in Island Melanesia’ (1982) 13 (4) Mankind, 300, 302–305, 336, 357–373; Jolly and Thomas (n 120) 241–243.

145 Teitinnang v Ariong [1987] LRC (Const) 517; Pusi v Leni (Unreported, High Court, Solomon Islands, cc 218/1995, 14 February 1997); eg Sefo v The Attorney-General and the Alii and Faipule of Saipipi (Unreported, Supreme Court of Samoa, Wilson J, 12 July 2000), accessible via www.paclii.org: [2000] WSSC 18; The Constitution of the Republic of Vanuatu and the Infant P and her Natural Mother S [1980–88] 1 VLR 130.

146 See, eg the comments in the Law Reform Commission of Solomon Islands, 1996 Annual Report, 1996, para 10.11, where it was said that for Solomon Islanders, ‘Whiteman law is not their business’.

147 See further, O'Cinneide (n 3) 79–80.

148 See, eg the Village Fonos in Samoa, which have been endorsed by the Village Fonos Act 1990 (the legislation is controversial and it has been held to restrict the authority of fonos. See further Jennifer Corrin Care (n 73) 32 to 33. Another example is the Great Council of Chiefs (Bose Levu Vakaturaga), which has been given a formal role by the Constitution of Fiji Islands 1997, s 116. See further, Geoffrey White, and Lamont Lindstrom, Chiefs Today (Stanford University Press, 1997). In Alama v Tevasa [1987] SPLR 385, it was held, obiter, that in the culture of Tuvalu, matais were required to make decisions to guide the people and foster their welfare. It was consistent with their traditional role for them to be concerned with politics and express their views to the people. This did not make them an agent of a political candidate for whom they spoke: at 393.

149 [1987] LRC (Const) 517.

150 Above (n 136).

151 Daniel Friedmann and Daphne Barak-Erez (eds) (2001) Human Rights in Private Law 1; Greg Taylor, ‘The Horizontal Effect of Human Rights Provisions, the German Model and its Applicability to Common Law Jurisdictions’ (2002) 13 KCLJ 187,191.

152 (1997) 2 CHRLD 57.

153 See further K Brown and J Corrin Care, ‘Conflict in Melanesia—Customary Law and the Rights of Melanesian Women’ (1998) 24 (3 & 4) Commonwealth Law Bulletin 1334; J Corrin Care, Negotiating the Constitutional Conundrum' (2006) 5 Indigenous Law Journal 51. For a contrary view, see Narokobi, B, ‘There's No Need for Women's Lib Here, because “Melanesian Women are already Equal”’ in The Melanesian Way (Institute of Papua New Guinea Studies, Port Moresby, 1980) 70.

154 See, eg Martin, Penny, ‘“Implementing Women and Children's Rights”: the case of domestic violence in Samoa’ (2002) 27 Alternative Law Journal 227CrossRefGoogle Scholar.

155 See, eg In Re Miriam Willingal (1997) 2 CHRLD 57; Italia Ta'amale and Ta'amale Toelau v The Attorney-General (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, 18 August 1995).

156 See, eg CJ Muria, ‘Conflicts in Women's Human Rights in the South Pacific; The Solomon Islands Experience’ (1996) 11(4) Commonwealth Judicial Journal 7, where he observes that modern regimes in the domestic sphere are categorized as ‘foreign’ by ordinary islanders.

157 See further M Hartney, ‘Some Confusions Concerning Collective Rights’ in W Kymlicka (ed), The Rights of Minority Cultures (Oxford University Press, New York, 1995).

158 Matangi Tonga, Vol 18, No 2 (2003) <http://www.matangitonga.to/scripts/artman/exec/view.cgi?archive=3&num=282>at 26 January 2007.

159 (1997) 2 CHRLD 57.

160 [1980–88] 1 VLR 130.

161 See, eg Woolman and Davis (n 5) (South Africa) O'Cinneide (n 3) and Siobhan Leonard, ‘The European Convention on Human Rights: A New Era for Human Rights Protection in Europe?’ in Angela Hegarty and Siobhan Leonard (eds), Human Rights: An Agenda for the 21st Century (Cavendish Publishing Ltd, London, 1999) (Ireland); Slattery (n 6) (Canada).

162 O'Cinneide (n 3) 79–80.

163 See further Jennifer Corrin Care and Don Paterson, Introduction to South Pacific Law (2nd edn, 2007) chap 3.

164 See, eg Gordon R Woodman, ‘Problems and Techniques in the Adoption of Customary Laws as Underlying Law’ (1993) 21 Melanesian Law Journal 28, 29–35.

165 1975. See further Jean Zorn and Jennifer Corrin Care, Proving Customary Law in the Common Law Courts of the South Pacific (British Institute of International and Comparative Law, London, 2002) 17.

166 2000. See further Jean Zorn and Jennifer Corrin Care, ‘Everything Old is New Again: the Underlying Law Act of Papua New Guinea’, [2002] LAWASIA Journal 61–97.

167 See, eg Bernard Narakobi, Lo Bilong Iumi Yet (University of the South Pacific, Suva, 1989).

168 See, eg Madaha Resena v PNG [1991] PNGLR 174 at 187–189, where the court discussed the development of an indigenous common law being based on customary traditions and life.

169 See, eg J Rivers and HA Amankwah, ‘Sovereignty and Legal Pluralism in Developing Nations: A New Appraisal of the Papua New Guinea Case’ (2003) 10 James Cook University Law Review 85.

170 See, eg Hunt (n 2) 424.

171 Constitution of Tuvalu 1986, s 11 (2). See Teonea v Pule o Kaupule and Nanumaga Falekaupule (Unreported, High Court, Tuvalu, Ward CJ, 11 October 2005), accessible via www.paclii.org: [2005] TVHC 2.

172 Constitution of Samoa 1960, Art 13(4) restricts the right to freedom of movement.

173 Constitution of Solomon Islands 1978, s 15(d) restricts protection from discrimination.

174 [1987] LRC (Const) 517.

175 See Kenneth Brown, ‘Indigenous forums: laughed out of court?’ (2000) 25(5) Alternative Law Journal 216 for a discussion of the attitude of common law to plurality and nexus with indigenous forums.

176 Bruce L Ottley, “Reconciling Modernity and Tradition: PNG's Underlying Law Act” (2002) 80 Reform 22, 24–25.

177 Pafco Employees Union v Pacific Fishing Company Limited (2002) 4 CHRLD 6.

178 Vanuatu has the 55th highest infant mortality rate and Papua New Guinea 59th, out of 221 countries listed: CIA, The World Factbook, https://www.cia.gov/cia/publications/factbook/rankorder/2091rank.html accessed 11 May 2007.

179 The literacy rate is 90 per cent (Kiribati), 64.6 per cent (Papua New Guinea), 99.7 per cent (Samoa), 24 per cent (Solomon Islands), 53 per cent (Vanuatu); compared to 100 per cent (Australia), 99 per cent (United Kingdom), 97 per cent (United States): CIA, The World Fact Book http://www.cia.gov/cia/publications/factbook/fields/2103.html accessed on 5 May 2005; The Flag Company <http://www.flagco.com/kiribati.shtml> accessed on 5 May 2005.

180 The 2005 estimate of infant mortality rates (deaths/1,000 live births) is 48.52 (Kiribati), 51.45 (Papua New Guinea), 27.71 (Samoa), 21.29 (Solomon Islands), 55.16 (Vanuatu); compared to 4.69 (Australia), 5.16 (United Kingdom), 6.5 (United States): CIA, The World Fact Book <http://www.cia.gov/cia/publications/factbook/rankorder/2091rank.html> accessed 5 May 2005. The literacy rate is 90 per cent (Kiribati), 64.6 per cent (Papua New Guinea), 99.7 per cent (Samoa), 24 per cent (Solomon Islands), 53 per cent (Vanuatu); compared to 100 per cent (Australia), 99 per cent (United Kingdom), 97% (United States): CIA, The World Fact Book http://www.cia.gov/cia/publications/factbook/fields/2103.html accessed on 5 May 2005; The Flag Company <http://www.flagco.com/kiribati.shtml>accessed on 5 May 2005.

181 (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, 18 August 1995).

182 Art 13(1)(d).

183 (Unreported, Supreme Court of Samoa, Vaai J, 13 August 2004), accessible via www.paclii.org: [2004] WSSC 9.

184 This decision was upheld by the Court of Appeal in Mauga v Leituala (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, March 2005).

185 In Tonga, a State of Emergency was declared on 6 November 2006 and extended four times: In Vanuatu a State of Emergency was declared by the Council of Ministers on 5 March 2007 and came to an end on 18 March 2007.

186 See further Brij Lal, ‘Anxiety, Uncertainty, and Fear in Our Land: Fiji's Road to Military Coup’ (unpublished, 2006).

187 See further, Jonathon Fraenkel, The Manipulation of Custom: From Uprising to Intervention in the Solomon Islands (Victoria University Press, Wellington, New Zealand, 2004); Clive Moore, Happy Isles in Crisis: The Historical Causes for a Failing State in Solomon Islands 1998–2004 (Asia Pacific Press, Australian National University, Canberra, 2006). Although RAMSI has officially moved from phase 1 (restoring law and order) to phase 2 (long term capacity building), events in April 2006, when rioting destroyed China town, have emphasised that law and order has not yet been restored. These phases are outlined in Elsina Wainwright, Our Failing Neighbour: Australia and the Future of Solomon Islands (ACT: Australian Strategic Policy Institute, 2003).

188 Coups took place in 1987, 1990, 2000 and 2006.

189 [2005] 1 LRC 698.

190 For further commentary on the causes of recent coups within the region see Jennifer Corrin Care, ‘Off the Peg or Made to Measure: Is the Westminster System of Government Appropriate in Solomon Islands?’, in I Molloy (ed) The Eye of the Cyclone (Pacific Islands Political Science Association and University of the Sunshine Coast, Sippy Downs, Qld, 2004) 156–170; Jonathon Fraenkel, The Manipulation of Custom: From Uprising to Intervention in the Solomon Islands (Victoria University Press, Wellington, New Zealand, 2004); Brij Lal, ‘Anxiety, Uncertainty, and Fear in Our Land’: Fiji's Road to Military Coup, 2006 (unpublished); Clive Moore, Happy Isles in Crisis: The Historical Causes for a Failing State in Solomon Islands 1998–2004 (Asia Pacific Press, Australian National University, Canberra, 2006).

191 See above (n 165).

192 Clifford Geertz, The Interpretation of Cultures (=Hutchinson, London, 1975) 40–41.

193 Kahn-Freund, O, ‘Uses and Misuses of Comparative Law’ (1974) 37 Modern Law Review 1.CrossRefGoogle Scholar

194 Samoa, Kiribati, Federated States of Micronesia, Fiji Islands, Marshall Islands, Papua New Guinea, Tuvalu, Solomon Islands and Vanuatu have all acceded to CEDAW. Cook Islands, Niue and Tokelau are bound by New Zealand's ratification and French Polynesia, New Caledonia and Wallis and Futuna by France's. See further Jennifer Corrin Care (n 73).

195 See, eg Re Miriam Willingal (1997) 2 CHRLD 57; Italia Ta'amale and Ta'amale Toelau v The Attorney-General (Unreported, Court of Appeal of Samoa, Cooke P, Casey and Bisson JJA, 18 August 1995).

196 Pafco Employees Union v Pacific Fishing Company Limited (2002) 4 CHRLD 6.

197 See, eg Laws of Kiribati Act 1989, s 6(b)(2) (Kiribati); Civil Law Act 1966, ss 3 and 4(b) (Tonga). See further Jennifer Corrin and Don Paterson, Introduction to South Pacific Law (2nd edn, 2007) chap 2.

198 New Zealand Law Commission, Converging Currents: Custom and Human Rights in the Pacific, 2006, NZLC SP17, Wellington, New Zealand, Suggestion 14.2, 216.

199 NZLC SP 17 (n 175) [14.42].

200 NZLC SP 17 (n 175) [14.40].

201 NZLC SP 17 (n 175) [14.43].

202 See, eg Powles, ‘The Place of Chiefly Systems in Constitutions’ in Fiji and the World (SSED, USP, Suva, 1997) 323.

203 Friedmann and Barak-Erez (n 2) 3.

204 Aharon Barak in Friedmann and Barak-Erez (n 2) 30–31.

205 Slattery (n 6) 707.

206 Slattery (n 6) 712–713.

207 Slattery (n 6).

208 Butler (n 8) 13–14.

209 Unreported, High Court, Solomon Islands, cc 218/1995, 14 February 1997. This case is discussed in J Corrin Care, ‘Customary Law and Human Rights in Solomon Islands—A commentary on Remisio Pusi v James Leni and Others’ (1999) Journal of Legal Pluralism 135.

210 [2005] 1 LRC 698.

211 See further, Jennifer Corrin Care (n 73).

212 NZLC SP 17 (n 175) [14.41].

213 See above, text at n 28 to 49 [does this mean sections from the footnote ref 28 to 49? If so, use another way of saying it???).

214 See Charters (n 10) 403.

215 See above (n 125) for examples.

216 Art III.

217 Art 100.

218 Sections 60 and 67.

219 Section 114(2)(b).

220 See further, G White and L Lindstrom, Chiefs Today, (Stanford University Press, 1997).

221 See further, Jennifer Corrin Care, ‘Wisdom and Worthy Customs: Customary Law in the South Pacific’, (2002) 80 Reform 31–36.

222 See above (n 162)–(n 168).

223 (Unreported, High Court, Solomon Islands, cc 218/1995, 14 February 1997). This case is discussed in Corrin Care J, ‘Customary Law and Human Rights in Solomon Islands- A commentary on Remisio Pusi v James Leni and Others’ (1999) Journal of Legal Pluralism 135.

224 [2005] TVHC 2.

225 House of Lords Select Committee, Report of the Select Committee on a Bill of Rights, HL 176 (1977–78), para 41, referred to in Ian Leigh, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?’ 48 International and Comparative Law Quarterly 57, 59, n 10.

226 Above (n 57) [17.12–7.15].

227 Ulufa'alu v AG [2005] 1 LRC 698.

228 See further, Jennifer Corrin and Don Paterson, Introduction to South Pacific Law (2nd edn, London: Routledge Cavendish, London, 2007) chap 1.

229 See, eg Family Kalotano v Duruaki Council of Chiefs (Unreported, Supreme Court, Vanuatu, Lunabek CJ, 24 May 2002), accessible via www.paclii.org: [2002] VUSC 32.

230 Ulufa'alu v AG [2005] 1 LRC 698.