P. Imrana Jalal: Legal Protection Against Discrimination in Pacific

Legal Protection against Discrimination in Pacific Island Countries

P. Imrana Jalal1

Introduction2

5 For the purposes of this paper, 3commentary tural rights, for instance the right to educa- is confined to most of the fully independent tion contained in the BOR. The principle of Pacific Island countries (PICs), which have equality is not firmly embedded in the con- largely inherited the British Westminster stitutions of most PICs even though some system of governance and the British com- Internationaloutlaw various Humanforms of Rights discrimination. Law mon law system. Some Pacific Island countries are still, wholly or partially, “colonised”, or under pacts of “free association” or other arrangements, by either France or the USA; All PICs have ratified the Convention of the or under the protection, or partial jurisdic- Rights of the Child (CRC); all but Tonga, Palau tion, of New Zealand. In those semi-auton- and Nauru have ratified the Convention on omous countries, some of the laws of the the Elimination of All Forms of Discrimina- metropolitan power prevail. In the French tion Against Women (CEDAW); only the Sol- occupied territories, the laws of the metro- omon Islands has ratified the International politan power wholly prevail. These legal Covenant on Economic, Social and Cultural nuances add a further layer of complexity to Rights (ICESCR); Samoa and Vanuatu recent- discrimination law. In this paper, therefore, ly (2008) ratified the International Covenant reference will be made mainly to those PICs on Civil and Political Rights (ICCPR); and Fiji, which are fully autonomous in passing legis- Nauru, Papua New Guinea, Solomon Islands them.lation;4 and where there is no extra-territorial and Tonga have ratified the Convention on jurisdiction of the metropolitan power over the Elimination of All Forms of Racial Dis- crimination (ICERD). The Pacific region has ties.by far6 the lowest ratification rates worldwide All independent PICs have written constitu- of the core international human rights trea- tions mostly granted to them after indepen- PIC governments generally perceive re- dence from the colonial powers during the porting requirements to be one of the most 1960s and 1970s. A number of them have immediate practical constraints to ratifica- made significant amendments to their con- tion. The majority of PICs that have ratified stitutions in the wake of civil strife, as in various international human rights treaties Fiji’s post-coup d’état Constitution in 1997. treaty.have struggled 7 to report on them in compli- Most PICs have a bill of rights (BOR) in their ance with the legal obligations defined in the constitutions, which contain basic civil and political rights. Only very few of them, such as Fiji, have some economic, social and cul- Some Pacific Island constitutions also have

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specific mandatory provisions which allow8 Despite these seemingly unequivocal em- for the use of conventions in the courts, ap- powering provisions,9 Tuvalu still generally parently without the need for ratification. follows the doctrine of non-enforceability of international law. Recently the court did not For example, Article 43 (2) of the Bill of uphold the principle of non-discrimination in Rights in“In the interpreting Constitution the of provisionsFiji states: of this religion when it outlawed the establishment Chapter, the courts must promote the values of a new Christian churchTeonea inv Pule deeply O Kaupule Christian & that underlie a democratic society based on NanumagaTuvalu, on Falekaupulethe basis that10 it was against Tu- freedom and equality and must, if relevant, valuan “values”. In have regard to public international law appli- the High Court said cable to the protection of the rights set out in that the equal right to freedom of religion this Chapter.” was subordinate to the cohesion of Tuvalu- an society as reflected in the constitutional recognition of Tuvaluan values and culture. In comparison, Samoan courts have11 consis- Tuvalu’s “InConstitution determining states whether in Article a law 15(5): or act tently ruled in favour of freedom of religion is reasonably justifiable in a democratic soci- Anti-discriminationon the basis of non-discrimination. Laws ety that has a proper respect for human rights and dignity, a court may have regard to: a) traditional standards, values and practices, No PIC has standalone, comprehensive an- as well as previous laws and judicial decisions, ti-discrimination legislation. However, the of Tuvalu; and constitutions of all Pacific Island states have broad provisions granting all citizens equal- b) law, practices and judicial decisions of oth- ity before the law on the basis of general er countries that the court reasonably regards non-discrimination provisions. Some PIC as democratic; and constitutions have a general equality provision with specific definitions of discrimina- c) international conventions, declarations, tion. In general, all citizens are entitled to recommendations and judicial decisions con- certain basic rights, regardless of their12 reli- cerning human rights; and gion, race, place of origin, political opinions, colour, religion or creed and so on. Apart d) any other matters that the court thinks rel- from Fiji, no PIC constitution specifically evant.” protects people living with disabilities. No PIC constitution includes “health status” as a prohibited ground, making it problematic for discrimination on the grounds of HIV status Section 17 of Tuvalu’s Interpretation and to be challenged. General Provisions“A construction Act (Capof a written 1A) also law states: which is consistent with the international obligations Fiji’s non-discrimination provision Section of Tuvalu is to be preferred to a construction 38 is the“(1) most Every advanced person providing has the that: right to which is not.” equality before the law.

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(2) A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her: right to privacy for sexual minorities in Fiji. The Court made it clear that its decision was (a) actual or supposed personal characteris- based on the privacy provisions of the Con- tics or circumstances, including race, ethnic stitution rather than relating to the equality origin, colour, place of origin, gender, sexual provisions stipulated in Section 38. Although orientation, birth, primary language, econom- equality was raised in submissions, it was ic status, age or disability; or not canvassed in the judgment. The issue of whether the relevant provisions are discrim- (b) opinions or beliefs, except to the extent that inatory awaits further argument. There is those opinions or beliefs involve harm to oth- some basis for suggesting that the apparently ers or the diminution of the rights or freedoms neutral character of Sections 175 and 177 of of others; or on any other ground prohibited the Penal Code is contradicted by the actual by this Constitution.” practice of applying them only in sodomy cases involving males. (The Director of Public 1999 Prosecutions could not point to any example of prosecution against a heterosexual person The Fiji Human Rights Commission Act for sodomy and the Court accepted the argu- also contains the specific grounds of un- ment raised by the Fiji Human Rights Com- lawful discrimination found at Section 38 mission that the lawBalelala was selectively v State15 where enforced the of the Constitution, in the areas of employ- against homosexuals.) Reference is made ment, professional accreditation, training, also to the case of the provision of goods, services13 or facilities, Court held that the corroboration rule in sex- public access, land, housing or other accom- ual assault trials was discriminatory on the modation and education. The same section factual basis that although the law appeared makes sexual harassment a civil offence by to be gender-neutral, in reality, women were providing that “…sexual harassment, for the the main complainants of rape. Thus the cor- purposes of this section, constitutes harass- roboration warning was ruled unconstitu- ment by reason of a prohibited ground of dis- tional on gender discrimination16 grounds. In crimination.” this case CEDAW was also invoked to support and justify the Court’s decision. The Commission is empowered to investigate allegations of unfair discrimination and The 1875 Constitution of the Kingdom of violations of the rights and freedoms set out Tonga, a semi-authoritarian state, grants humanin the Bill rights. of Rights of the 1997 Constitution equality “4.in theThere most shall interesting be but one terms: law in Ton- and to investigate other alleged violations of ga for chiefs and commoners for non-Tongans and Tongans. No laws shall be enacted for one class and not for another class but the The Fiji Constitution is also one of a very law shall be the same for all the people of this small number of constitutions in the world land.” that explicitly protectsNadan sexual v McCosckar orientation,14 and is certainly the only one in the Pacific. In the landmark case of the Fijian High Court ruled that the Bill of In Vanuatu, the anti-discrimination provision Rights, supported by international human is found in Section 5(1) of the Constitution of rights standards, granted protection of the Vanuatu.

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“5. (1) The Republic of Vanuatu recog- nises that, subject to any restrictions imposed by law on non-citizens, all persons are entitled ulterior purpose in this decisionKwaio was to pre- to the following fundamental rights and free- vent the infringement of fundamental freedoms of the individual without discrimination doms and the incorporation of custom on the grounds of race, place of origin, reli- law as part of the Solomon Islands law, being gious or traditional beliefs, political opinions, inconsistent with the Constitution. The Con- language or sex, but subject to respect for the stitution of Fiji together with the Fiji Human rights and freedoms of others and to the legiti- Rights Commission Act 1999, would appear mate public interest in defence, safety, public to allow for the horizontal enforceability of order, welfare and health… rights. However, this interpretation is yet to be properly tested. (k) equal treatment under the law or administrative action, except that no law shall be There are very few avenues for reporting inconsistent with this sub-paragraph insofar rights violations in most PICs and very rarely as it makes provision for the special benefit, are human rights violations reported at all. welfare, protection or advancement of fe- Both issues have a bearing on each other. males, children and young persons, members Apart from Fiji, which has a Human Rights of under-privileged groups or inhabitants of Commission, the only avenues to obtain less developed areas.” remedies in most PICs are the mainstream courts. Thus the structures and mechanisms 17 for promoting and protecting human rights are extremely limited. Existing mechanisms In Vanuatu, the Penal Code also makes un- like Ombuds offices have limited and poor lawful discrimination a criminal offence, an enforcement powers and are inadequately unusual “Noprovision person in shall PICs. discriminate against resourced and funded. Most Ombuds’ pow- another person with respect to his right to the ers are also restricted to investigating lim- supply of any goods or services, or to gain or to ited administrative malfeasance. continue in any employment, or to be admit- ted to any public place, by reason of the sex, On the rare occasion where rights violations ethnic or racial origin or the religion of any come before the courts, they have generally such person.” been enforced. Most PICs have independent judiciaries in general and more often than not the courts have demonstrated a willing- ness to make findings consistent with the bill The anti-discrimination provisions of the of rights where civil or political rights viola- bill of rights in most PICs appear to cover tions are concerned and where victims have the public sector and not the private sector, been persistent about asserting their rights. therefore limiting their application to that of the relationshipLoumia between v DPP state18 and citizen. Many PICs have traditional courts which ex- Courts have generally opted for a horizontal ercise minor jurisdiction over village, family application. In the majority and personal matters. These informal courts of the Court of Appeal held that human rights often, unofficially and indirectly, adjudicate concerned the relationship between the state alleged human rightsfono violations. For in- and the individual exclusively; therefore stance, many civil and criminal matters are rights are only enforceable vertically. The handled by village (councils) in Samoa,

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matai which vary considerably both in their deci- Solomon Islands permitted the use of custom sion making Fono style and in the number of law even if it discriminated against women. (chiefs) involvedfono in the decisions. The 1990 In that case, pension funds were paid to the Village Act gives legal recognition to the father of the deceased, rather than to the de- decisions of the and provides for limited ceased’s widow. The father then distributed appeal to the Lands and Titles Fono Court and to the funds in his discretion, giving nothing to the Supreme Court. In 2000, the Supreme the widow. The court ruled that this was in Court ruled that the Village Act may not accordance with the relevant custom, where be used to infringe upon villagers’ freedom inheritance was by patrilineal succession. of religion, speech,fono assembly, or association. The widow could not object on the ground More recent court decisions reinforced this that the custom was discriminatory, as Sec- principle. The concept sits uncomfortfa’a- tion 15(5)(d) of the Constitution specifically Samoaably within the formal legal system because exempted custom law from the general pro- of its dual role in administering both hibition on discriminatory laws. (customs) and village matters under ultra the fono Act. Although its formal jurisdiction is viresIn comparison, a custom not allowing wid- circumscribed by the Act, the reality is that ows to have relationships wasRaramu held to be v Yowe exercises far more power than it is Village the.22 equality provisions of the Constitu- legally empowered to. Samoa citizens are un- tion of Papua New Guinea in successfullyclear about itschallenging place in the their legal rulings. system19 and Raramu was a widow convicted there have been a significant amount of cases and sentenced by a village court to a term of Exceptions to Anti–discrimination Law six months imprisonment for being involved with another man. The customary practice in many areas did not allow widows to have subsequent relationships. One of the issues The general limitation on equal rights is that for consideration was whether the custom of what is “reasonable and justifiable in a contravened the Constitution of Papua New free and democratic society”. This general20 Guinea in that it was discriminatory towards limitation is either explicitly stated in some women. The court refused to recognize such PIC constitutions as in Papua New Guinea, a practice because it was oppressive and or read in by the courts as a matter of com- discriminatory towards women. Prohibit- mon law. However, almost all PIC constitu- ing widows from relationships struck at the tions also provide for specific exceptions to equality provision provided at Section 55 of the principle of non-discrimination on the the Constitution. The custom failed to recog- grounds of custom, titles for chiefs and ar- nise the inherent dignity of humankind. The istocracy or land rights for indigenous peo- village court erred in imprisoning people ples. for breach of what was only custom and not codified as law. Accordingly, Raramu was to Custom is accepted as an exception to the be released forthwith together with her four principle ofTanavalu non-discrimination v Tanavalu & Solomon on the month Attorney-General old child. v Olamalu23 Islandsgrounds National of sex by Providend the courts Fund in ,21some juris- dictions. In In a Samoan the court electoral law limiting candidacy in national took the view that the Constitution of the elections and voting rights to title holders/

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matai matai chiefs or Samoan , and excluding non- to be chiefs, the Court of Appeal held that (orfa’a commoners) Samoa was held to be non- discrimination against women was not un- discriminatory on the grounds of, broadly constitutional if the Constitution itself legiti- speaking (the custom of Samoa), mated that gender discrimination. There is despite Samoa’s Constitution having a stan- very little discussion in the Solomon Islands dard anti-discrimination provision. The court courts of the discriminatory effect of laws made the point that Samoans had themselves and practices on women. In this case, two chosen this form of discrimination know- members of the court recognised the effect ingly, and that change had to be evolutionary of the particular constitutional provisions in and would come in good time. reinforcing the traditional power structures. At the same time there was an acknowledge- On the other hand, the right to equality guar- ment that society was changing and not stat- anteed in the Constitution of Fiji was held not ic and in time there was every likelihood that to entitle or permit a traditional titled chief the question of male traditional chiefs would to argue that he must only be tried before a be re-evaluated. Solomon Islands has ratified jury or assessors of his peers. The court said CEDAW. Although there was no reference to that jury members do24 not have to be selected international instruments ratified by the Sol- from persons of equivalent rank and para- omon Islands, these conventions would have mount chiefly status. been modified by the constitutional provisions in place. Notably missing from the prohibited grounds in some constitutional definitions of discrim- The exclusion of sex discrimination from the ination, however, is sex discrimination. In definition of discrimination in the constitu- Nauru, Kiribati, Tonga and Tuvalu, it appears tion, being the supreme law, allows citizen- to be lawful to discriminate against women ship and immigration laws to discriminate on the basis of their gender. In Tuvalu, it is against women in Kiribati, Nauru, Tonga and not an oversight that Section 27 of the Tuvalu Vanuatu. Citizenship and immigration laws Constitution defines discrimination, but does prohibit citizenship and automatic residency not forbid sex discrimination. It is an omis- for female citizen’s foreign husbands, forcing sion deliberately made since the definition women to leave their countries. Similar leg- does forbid discrimination on the grounds of islation in Kiribati and Tonga discriminates race or religion. Similarly, in Kiribati, Section against their26 children, if born abroad to for- 15 of the Constitution defines discrimination, eign husbands, by denying their children citi- although one class of discrimination notably zenship. The same restrictions do not apply missing is sexual discrimination. The result to malethe Fiji citizens Human of thoseRights countries. Commission v Suva of this omission is that it has been virtually City Council27, Fijian Teachers Association v impossible to challenge the legislative-based AGIn of Fiji28 Kirisome v AG & Police29 (Sa discrimination against women in the courts in theseMinister countries. for Provincial Government v Gua- and - dalcanal Provincial Assembly,25 moa) Pacific Island courts finally ruled on In the legality of retirement ages which had in discussing no specific link to an employee’s fitness, or the possibility that women were discrimi- any other reason. Age discrimination is pro- nated against because they were not able hibited in the constitutions of both Fiji and

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Fijian Teachers Association

Samoa. In the test to determine whether a limitation on case, the defendant had arbitrarily made the the prohibition on age discrimination could decision to reduce the retirement age pur- be justified on an objective and reasonable suant to a policy made by the unelected In- basis. It said that the inequality challenged terim Government. The equality provisions must exist for a legitimate purpose, and the of Section 38 of the Constitution of Fiji had manner in which those ends are achieved been found to be breached and the justifica- must be proportionate. In practice, a bal- tion for the policy made by the respondent ancing exercise is undertaken; therefore, was rejected. It was held not to have met the the relationship or connection between the threshold requirement in that the justifica- two (i.e. the means and the ends) have to be tion for the decision, i.e. savings and employ30 - reasonable or affect the other in a way that ment generation, was not proportional or bears relevance to what is appropriate in the sufficiently connected to those ends. Previ- circumstances.32 Where this cannot be estab- ously, in 2000, the court had briefly referred lished then the apparent inequality will be to the fact that under Section 16 of the Fiji struck down. Constitution 1990, restriction based on age was not unlawful,31 as it is the case under Sec- Surprisingly, despite the racial polarisation tion 38(6)(d) of the Constitution Amend- of Fiji’s two major racial groups, indigenous ment Act 1997. Fijians and ethnic Indian Fijians, racial dis- Kirisome v AG & Police crimination cases do not appear to make it In considering discrimination in Samoa in to the courts, at least on the basis of alleged , the courts applied a race discrimination.

2 P. Imrana Jalal is a Human Rights Advisor, Pacific Regional Rights Resource Team (RRRT), Suva, Fiji Islands.

The paper covers the following PICs: Cook Islands, Fiji, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga,3 Tuvalu, and Vanuatu.

The larger grouping recognized by the South Pacific Community includes American Samoa, Cook Islands, FSM, Fiji Islands, French Polynesia, Guam, Kiribati, Marshall Islands, Nauru, New Caledonia, Niue, Northern Mariana Islands (CNMI), Palau, PNG, Pitcairn Islands, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and Wallis &4 Futuna. Good Practices in Legislation on Violence Against Women: A Pacific Islands Regional Perspective,

Jalal, P. Imrana. Undaw/Unodc Expert Group Meeting On Good Practices In Legislation On Violence Against Women, Vienna, 26-30 May5 2008.

6 Section 39.

Includes also the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their7 FamiliesRatification (ICRMW). of International Human Rights Treaties: Added Value for The Pacific Region

Jalal, P. I. , Paper prepared

The Equal Rights Review, Vol. Two (2008) 39

for8 the Office of the High Commissioner for Human Rights, 2006.

Article 43(2) of the Constitution of Fiji, Article 15(5)(c) of the Constitution of Tuvalu and Section 17 of the Tuvalu Interpretation9 and General Provisions Act (Cap 1A) and Article 39(3) of thePacific Constitution Human Rights of Papua Law New Digest Guinea.

This section is extracted directly from Jalal, P. I. and Madraiwiwi J. (eds) , Pub- lished by the Pacific Regional Rights Resource Team (RRRT), Suva, Fiji, Volume 1, p. 10. See the Digest for comprehensive summaries of Pacific Island cases that have applied international human rights conventions in domestic courts.10

11 CivilLafaialii Case & No: Ors 23/03,v Attorney 11th General October 2005.

12 , Civil Case No. 8 of 2003, 24 April 2003, High Court of Samoa.

Cook Islands 1975 (s. 64); Fiji 1997 (s.38); Solomon Islands 1978 (Art. 15); Kiribati 1979 (Art. 15); Nauru 1968 (Art.3);13 Tonga 1875 (Art. 4); Tuvalu 1978 (Art. 27); Vanuatu 1980 (Art. 5); Samoa 1960 (Art. 15); PNG 1975, s. 55.

14 Fiji Human Rights Commission Act 1999, Section 17. Pacific Human Rights Law Digest Criminal Appeal Case Nos: HAA 85 & 86 of 2005, 6 August 2005 (Fiji) analysed in Jalal, P. I. and Madraiwiwi J. (eds) , Published by the Pacific Regional Rights Resource Team (RRRT), Suva, Fiji, Volume15 1, p. 30.

16 Criminal Appeal No. AAU0003 OFPacific 2004S, Human 8 November Rights 2004, Law Digest Court of Appeal, Fiji Islands.

Jalal, P. I. and Madraiwiwi J. (eds) , Published by the Pacific Regional Rights Resource17 Team (RRRT), Suva, Fiji, Volume 1, p. 16.

18 Penal Code, Cap.135: Offenses against the public interest, s. 150.

19 [1986] SBCA 1; [1985-1986] SILRPacific 125, 24 Human February Rights 1986. Law Digest

Jalal, P. I. and Madraiwiwi J. (eds) , Published by the Pacific Regional Rights Resource20 Team (RRRT), Suva, Fiji, Volume 1.

21 Section 39, PNG Constitution.

22 [1998] SBHC 4, affirmed [1998] SBCA 8.

23 [1994] PNGLR 486 N1262, 22 November 1993.

24 1980-93]State v Ratu WSLR Takiveikata 41.

25 , Cr Case 005.04S, 20-22 October 2004, High Court, Fiji Islands.

26 (1997) SBCALaw 1, for 11 Pacific July 1997. Women: a Legal Rights Handbook

27 Jalal, P. I. , Fiji Women’s Rights Movement, 1998, p. 38.

28 Civil Action No 73 of 2006, Fiji High Court.

29 Judicial Review No HBC 3J of 2007S, 20 December 2007.

30 [2002] WSSC 3, 25 February 2002. Pacific Human Rights Law Digest

See Jalal, P. I. and Madraiwiwi, J., (eds) , Published by the Pacific Regional31 Susana RightsTusawau Resource v Fiji Institute Team (RRRT), of Technology Suva, Fiji, Council Volume 2 (2008).

32 [Court of Appeal],Pacific Civil Appeal Human No. Rights ABU Law 0044 Digest of 2000S.

For a recent analysis of case law see Jalal, P. I. and Madraiwiwi, J. (eds) , Pub- lished by the Pacific Regional Rights Resource Team (RRRT), Suva, Fiji, Volume 2 (2008).

The Equal Rights Review, Vol. Two (2008)