32 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 coun- tries 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 The Equal Rights Review, Vol. Two (2008) 33 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 provi- sion 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. The Equal Rights Review, Vol. Two (2008) 34 (2) A person must not be unfairly discrimi- nated 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 investi- gate 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 McCosckarorientation,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. The Equal Rights Review, Vol. Two (2008) 35 “5. (1) The Republic of Vanuatu recog- nises that, subject to any restrictions imposed by law on non-citizens, all persons