ALRC CONFERENCEPANEL SESSION ON

REFORMING THE LAW AND LEGAL INSTITUTIONS TO PROMOTE HUMAN

RIGHTS

ONLY SKIN DEEP? LAW REFORM AND THE REALITY OF HUMAN

RIGHTS IN THE SOUTH PACIFIC

Dr Jennifer Corrin, The University of Queensland, Executive Director, Asia Pacific Law, in the Centre for Public, International and

Comparative Law, Associate Professor, TC Beirne School of Law.

Promotion of human rightsPromotion of human rights in the South in the South PacificPacific

• Constitutionally enshrined rightsConstitutionally enshrined rights

• International LawInternational Law

• Human Right CommissionHuman Right Commission

• Ombudsmen Ombudsmen 

• Human Rights Education Human Rights Education 

LIMITATIONS ON HUMAN RIGHTS REGIMESLIMITATIONS ON HUMAN RIGHTS REGIMES

• Failure to embrace rights at an international Failure to embrace rights at an international levellevel

• Failure to follow up with domestic legislationFailure to follow up with domestic legislation

• Constitutional provisions shielding Customary Constitutional provisions shielding Customary Law from Human RightsLaw from Human Rights

• Vertical application of human rightsVertical application of human rights

• Restricted access to justice, problems of proof, Restricted access to justice, problems of proof, and the pyrrhic victory of a judgmentand the pyrrhic victory of a judgment

• Lack of judicial activism and narrow Lack of judicial activism and narrow interpretation of rights provisionsinterpretation of rights provisions

• Lack of resourcesLack of resources

• Fragility of the Rule of LawFragility of the Rule of Law• The Mandate to Promote Customary lawThe Mandate to Promote Customary law

Horizontal v Vertical ApplicationHorizontal v Vertical Application

• ‘‘vertical’ approach: rights apply vertical’ approach: rights apply to protect the individual against to protect the individual against violations by the State violations by the State

• ‘‘horizontal’ approach: rights may horizontal’ approach: rights may also be enforced against also be enforced against individualsindividuals

Conflict with Custom and CultureConflict with Custom and Culture  • Plurality and Status Based AuthorityPlurality and Status Based Authority

Eg Re Willingal Eg Re Willingal (1997) 2 CHRLD 57(1997) 2 CHRLD 57

• Emphasis on Collective Rights and DutiesEmphasis on Collective Rights and DutiesWe don't believe in individual rights…The Tongan We don't believe in individual rights…The Tongan way of life is not based in the right of the individual way of life is not based in the right of the individual but that of the extended family, the church and the but that of the extended family, the church and the whole country. We have a collective peoples value, whole country. We have a collective peoples value, and that is where our strength is, and we do not and that is where our strength is, and we do not want to give that up.want to give that up.

('Alisi Taumoepeau, Solicitor General (now Attorney ('Alisi Taumoepeau, Solicitor General (now Attorney General), 2003)General), 2003)

Key areas of conflict:Key areas of conflict:

• the right to life has conflicted with the the right to life has conflicted with the custom of ‘payback’custom of ‘payback’

• the right to freedom of religion and the the right to freedom of religion and the right to freedom of expression have right to freedom of expression have conflicted with traditional authorityconflicted with traditional authority

• the right to protection from discrimination the right to protection from discrimination and the right to freedom of movement have and the right to freedom of movement have conflicted with the patriarchal and status conflicted with the patriarchal and status based norms of customary lawbased norms of customary law

The right to The right to frefreedom of movement v the edom of movement v the patriarchal and status based norms of patriarchal and status based norms of customary lawcustomary lawPusi v Leni and Others (unreported, High Court, Muria CJ, Pusi v Leni and Others (unreported, High Court, Muria CJ,

14 Feb 199714 Feb 1997 0 0Lest it may be forgotten by anyone else and those who Lest it may be forgotten by anyone else and those who intend to [respond to] the proper and lawful authority of intend to [respond to] the proper and lawful authority of community leaders with constitutional challenges would community leaders with constitutional challenges would be advised not to lose sight of the Preamble of the be advised not to lose sight of the Preamble of the Constitution as well as section 76 and Schedule 3 of the Constitution as well as section 76 and Schedule 3 of the Constitution. Those provisions clearly embrace the Constitution. Those provisions clearly embrace the worthiness, the value and effect of customary law in this worthiness, the value and effect of customary law in this country. The Constitution itself recognises customary law country. The Constitution itself recognises customary law as part of the law of Solomon Islands and its authority as part of the law of Solomon Islands and its authority therefore cannot be disregarded. It has evolved from time therefore cannot be disregarded. It has evolved from time immemorial and its wisdom has stood the test of time. It is immemorial and its wisdom has stood the test of time. It is a fallacy to view a constitutional principle or a statutory a fallacy to view a constitutional principle or a statutory principle as better than those principles contained in principle as better than those principles contained in customary law. In my view, one is no better than the other customary law. In my view, one is no better than the other is. It is the circumstances in which the principles are is. It is the circumstances in which the principles are applied that vary and one cannot be readily substituted applied that vary and one cannot be readily substituted for the other.for the other.

Lo Bilong Yumi Yet, Lo Bilong Yumi Yet, 138138, Narakobi, Narakobi::

[B][B]alanced human development requires a alanced human development requires a commitment to human rights, not as commitment to human rights, not as positivistic legal norms conferred by a positivistic legal norms conferred by a sovereign upon its subjects, enabling each to sovereign upon its subjects, enabling each to do as he or she pleases, but with even do as he or she pleases, but with even greater emphasis on social obligations or greater emphasis on social obligations or responsibilities. If I have a right to education, responsibilities. If I have a right to education, I also have a duty to educate others, if not I also have a duty to educate others, if not directly, then indirectly. If I have a right to directly, then indirectly. If I have a right to life, I also have a duty to make sure others do life, I also have a duty to make sure others do not starve or suffer out of want which is not starve or suffer out of want which is beyond their ability to alleviate and which I beyond their ability to alleviate and which I am able to avert. … In sum, there is a need to am able to avert. … In sum, there is a need to balance individual rights with group rights on balance individual rights with group rights on the one hand, and personal obligations with the one hand, and personal obligations with group obligations on the othergroup obligations on the other

Human Rights and African Customary Human Rights and African Customary LawLaw, 1995, , 1995, Bennett:Bennett:

It is necessary to remember that for It is necessary to remember that for many people the constitution is an many people the constitution is an alien transplant, and without alien transplant, and without advance publicity, careful advance publicity, careful education, and a serious attempt to education, and a serious attempt to make legal forums more accessible, make legal forums more accessible, people at whom the fundamental people at whom the fundamental rights were aimed will be in no rights were aimed will be in no position to act on them.position to act on them.