ALRC CONFERENCE PANEL 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 rights in the South Pacific Constitutionally enshrined rights Constitutionally enshrined rights International Law International Law Human Right Commission Human Right Commission Ombudsmen Ombudsmen Human Rights Education Human Rights Education

LIMITATIONS ON HUMAN RIGHTS REGIMES Failure to embrace rights at an international level Failure to embrace rights at an international level Failure to follow up with domestic legislation Failure to follow up with domestic legislation Constitutional provisions shielding Customary Law from Human Rights Constitutional provisions shielding Customary Law from Human Rights Vertical application of human rights Vertical application of human rights Restricted access to justice, problems of proof, and the pyrrhic victory of a judgment Restricted access to justice, problems of proof, and the pyrrhic victory of a judgment Lack of judicial activism and narrow interpretation of rights provisions Lack of judicial activism and narrow interpretation of rights provisions Lack of resources Lack of resources Fragility of the Rule of Law Fragility of the Rule of Law The Mandate to Promote Customary law The Mandate to Promote Customary law

Horizontal v Vertical Application ‘vertical’ approach: rights apply to protect the individual against violations by the State ‘vertical’ approach: rights apply to protect the individual against violations by the State ‘horizontal’ approach: rights may also be enforced against individuals ‘horizontal’ approach: rights may also be enforced against individuals

Conflict with Custom and Culture Conflict with Custom and Culture Plurality and Status Based Authority Plurality and Status Based Authority Eg Re Willingal (1997) 2 CHRLD 57 Emphasis on Collective Rights and Duties Emphasis on Collective Rights and Duties We don't believe in individual rights…The Tongan way of life is not based in the right of the individual but that of the extended family, the church and the whole country. We have a collective peoples value, and that is where our strength is, and we do not want to give that up. ('Alisi Taumoepeau, Solicitor General (now Attorney General), 2003)

Key areas of conflict: the right to life has conflicted with the custom of ‘payback’ the right to life has conflicted with the custom of ‘payback’ the right to freedom of religion and the right to freedom of expression have conflicted with traditional authority the right to freedom of religion and the right to freedom of expression have conflicted with traditional authority the right to protection from discrimination and the right to freedom of movement have conflicted with the patriarchal and status based norms of customary law the right to protection from discrimination and the right to freedom of movement have conflicted with the patriarchal and status based norms of customary law

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

Lo Bilong Yumi Yet, 138, Narakobi: [B] alanced human development requires a commitment to human rights, not as positivistic legal norms conferred by a sovereign upon its subjects, enabling each to do as he or she pleases, but with even greater emphasis on social obligations or responsibilities. If I have a right to education, I also have a duty to educate others, if not directly, then indirectly. If I have a right to life, I also have a duty to make sure others do not starve or suffer out of want which is beyond their ability to alleviate and which I am able to avert. … In sum, there is a need to balance individual rights with group rights on the one hand, and personal obligations with group obligations on the other

Human Rights and African Customary Law, 1995, Bennett: It is necessary to remember that for many people the constitution is an alien transplant, and without advance publicity, careful education, and a serious attempt to make legal forums more accessible, people at whom the fundamental rights were aimed will be in no position to act on them.