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• 2015 Updates to Volume 1 Cases

Table of Contents

INTRODUCTION

ABOUT RRRT

USING THE DIGEST

ACKNOWLEDGEMENTS

EDITORIAL REVIEW

• Bangalore Principles on the Domestic Application of International Human Rights Norms (1988);
• Victoria Falls Declaration of Principles for Promoting the Human Rights of Women (1994);
• Hong Kong Conclusions on the Domestic Application of International Human Rights Norms Relevant to Women's Human Rights (1996);
• The Georgetown Recommendations and Strategies for Action on the Human Rights of Women and the Girl-Child (1997);
• Denarau Declaration on Gender Equality (1997);
• Pacific Island Judges Declaration on Gender Equality in the Courts (1997);
• The Tanoa Declaration on Human Rights in the Law (1999).

• There can be no undermining of Parliamentary sovereignty when laws are binding, clear and unequivocal. In such circumstances, international law cannot be used to undermine or overrule local law;
• Countries voluntarily submit themselves to international law through the process of ratification. This is not mere window dressing. If there is a gap, lacunae or ambiguity in the law then a convention may fill that gap;
• Many countries already have firmly established human rights international standards in their constitutions or legislation. Where local laws are ambiguous or in need of assistance in interpretation, it makes sense to utilise those international standards to provide that guidance.

• To explain and expound a constitutional principle, legislation or the common law;
• To support decisions to rule on gender discrimination and other violations of the Bill of Rights;
• As an aid to interpretation;
• To fill in a lacunae or to read in a provision to make sense of legislation;
• To justify increased sentences;
• To show judicial abhorrence of criminal behaviour or other behaviour and attitudes;
• To resolve an ambiguity; and
• To justify or increase the amount of damages.

PART I: PACIFIC ISLAND CASES REFERRING TO HUMAN RIGHTS CONVENTIONS

IMPRISONMENT / CHILDREN

1. He was under 18 years of age at the date of the offence, which should have been taken into consideration before he was sentenced to a mandatory life sentence;
2. Section 53(3) of the CYPA was applicable in Tuvalu as applied law, and therefore applied in this case. (The relevant provision provides that a convicted juvenile under 18 shall not be sentenced to life imprisonment or death);
3. The issue of age was reinforced by Article 37 of the CRC, which provides that no person under the age of 18 shall be imprisoned for life; and
4. Guidelines ought to be given by the Court for similar cases where a person under the age of 18 is convicted of murder and the appropriate length of time to be served if appropriate to do so.

1. Whether the Court should take into consideration the fact that A was below 18 years of age when he committed the offence; and
2. Whether the Court should take into consideration the age of A in accordance with the CRC and the CYPA.

CRUELTY / CHILDREN

DISCRIMINATION / WOMEN

1. What was the effect of a Court's misdirection on the law of corroboration, as it was understood at the time?
2. What was the correct approach to the need for evidence corroborative of complainants in rape cases?

ABDUCTION / CHILDREN

1. The Recovery Order of the Federal Magistrates Court of Australia was unenforceable as the Court was not listed as one of the courts in the REJA. The other recovery orders sought pursuant to the CA and the CACA, by virtue of the TCLA, were also denied because they were not applicable and were irrelevant to the facts in question;
2. The HC did not apply in Tonga because it had not been ratified. The related UK legislation, the CACA, was inapplicable because this Act simply ratified the Hague Convention 1980 for the UK. It also held that the only applicable law was the English common law prior to 1985, when the UK ratified the HC; any case law after 1985 would embody the principles of the HC, which rendered them inapplicable in Tonga;
3. Had Tonga ratified the HC, the Court would have had no discretion in the matter and provided that proceedings had commenced within 12 months of the abduction, the Court would have been obliged to order C's immediate return to Australia;
4. The Court applied the common law, In re H (infants) [1965] 3 All ER 906, in which the governing principle or chief consideration was "the welfare of the child" in deciding the appropriate forum to hear the custody of the child. Further, the Court ruled that it had the discretion to investigate fully or partially the merits of the case before making any order for the return of the child. At the same time, the Court was not bound to conduct any such investigation as well.

FAMILY LIFE / RIGHT TO MARRY

1. Did the reference in Article 3 of the CN to an entitlement to fundamental rights and freedoms of the kinds stated therein, i.e. the right to respect for private and family life, refer to a right to marry?
2. If the right to marry was not included in Articles 4 – 13 of the CN, could the Court enforce the right to marry as set out in Article 16 of the UDHR and rule that any law purporting to confer on any person or body a power to prevent any unmarried adult person from marrying was inconsistent with the CN?

EQUALITY / MATRIMONIAL PROPERTY

1. Could the courts use the equality provisions in the CV and CEDAW to make an order regarding the distribution of matrimonial assets?
2. Whether the SC had the power to make an order that had the effect of transferring any part of H's interest to W.

1. There was already a law in Vanuatu to deal with the manner in which an adjustment of proprietary interests between parties was to be made. The MCA (UK) was applicable by virtue of Article 95(2) of the CV. Part II of the MCA empowered the SC to make property adjustment orders to bring about a division or settlement of property. There was no lacuna in the law of Vanuatu. There was no need to have applied the CV and CEDAW to govern property settlements;
2. The Court referred to the CV and said that they were "broad aspiration statements" or "concepts" which could only be directly translated to allow for joint ownership. There must be respect for the separation of powers. It was for Parliament to apply these "broad aspirations" or "concepts" into law; and
3. Similarly, it was for Parliament to decide what, if any, changes to the social patterns of conduct of men and women in the country should occur, and how the country as a State Party to CEDAW would reflect it in its domestic laws.

CUSTOMARY LAW / MOVEMENT / CHILDREN

1. Which law ought to take precedence – that of the CS or fa'a Samoa also recognised in the CS and the VFA?
2. Did the rules of natural justice apply in the proceedings of a VC? Should the VC proceedings comply with the right to a fair trial or custom and usage in disciplinary proceedings?
3. Whether banishment was a reasonable restriction on the freedom of movement and right to reside freely pursuant to Article 13(4) of the CS?

EQUALITY / LEGAL AID

1. Whether a non-citizen is equally entitled to legal aid as a citizen; and
2. Whether the right in question is limited by the availability of resources.

CUSTODY / CHILDREN

1. Which parent was entitled to custody and on what basis?
2. Was the CRC relevant to the issue of custody?

CRUELTY / PRISONERS

1. Article 25(1): "Every person has the right to freedom from torture of any kind, whether physical, mental or emotional; and from cruel, inhumane, degrading or disproportionately severe treatment"; and
2. Article 29(3): "Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time."

1. Whether the treatment of N & Ors at the Natabua remand block amounted to cruel, inhumane, degrading or disproportionately severe treatment or punishment as provided in the CF, UDHR, ICCPR and CAT; and
2. Whether arrested or detained persons are entitled to a trial within a reasonable time as provided under Article 29(3) of the CF and in the ECHR; what was meant by "reasonable time"?

PRIVACY / SEXUAL MINORITIES

1. That ss.175(a) and (c) and 177 of the PC were invalid as they breached the constitutionally guaranteed and in this instance, unlimited, rights of privacy, equality and freedom from degrading treatment; and
2. M also argued that his guilty plea was equivocal. He had been misled by the police to refuse legal representation and plead guilty so he could be spared further embarrassment and sent home quickly.

1. Were ss.175(a) and (c) of the PC gender and sexual orientation neutral and therefore not in violation of Article 38 of the CF which prohibited discrimination on the grounds of gender and sexual orientation?
2. Were ss.175 and 177 of the PC in breach of the CF which protected privacy and if so, did this non-conformity make those provisions invalid?

CUSTODY / CHILDREN

1. Letters by 11 and 12 year olds might not be automatically accepted as relevant to the best interests principle;
2. The children's letters could not be filed by F's lawyer (who might naturally be inclined towards his client) as evidence without the Court exercising caution;
3. The children would be represented by an independent lawyer or other independent representative; and
4. They would be required to be heard by the presiding judge in the presence of an expert or someone experienced with children's issues who was trained to interview such young children.

CUSTOMARY LAW / LAND / EQUALITY / WOMEN

1. N is the custom owner of Land title 553, pursuant to Land Appeal Case L6/85;
2. N is equally entitled to any or all benefits arising from any or all activities connected with or conducted on or from the said land;
3. N is entitled to an account as to profits since the date of the earlier decision;
4. A declaration as to the appropriate management and financial control of the said land.

1. Whether the income derived from the land was due T as head of the family, or shared with other family members?
2. Was the distribution of income dependent on T's discretion as Head of the Clan?
3. If so, which of T's family was entitled to a share of the income and how was the distribution to be made?
4. Was the customary practice of differentiating between male and female ownership of land consistent with the CV?

EMPLOYMENT / ASSOCIATION

1. The CF's Bill of Rights (BOR), Articles 33(2) and (3) respectively, gave the workers and employees the right to organise and bargain collectively as well as the right to fair labour practices;
2. Article 41(1) and (2) of the CF stated that if any person considered that any of the provisions of the BOR had been contravened in relation to him or her that person could apply to the High Court for redress. This right was without prejudice to any other action with respect to the matter that person may have;
3. Article 43(2) of the CF enabled the Court to apply international human rights conventions, where necessary, to assist in the interpretation of a constitutional provision;
4. The relevant international convention was the ICESCR. Article 8 gave the right to trade unions to act on behalf of their members and to function freely subject to the limitations necessary in a democratic society;
5. The combined effect of the above provisions (Article 8 of the ICESCR and Articles 33 (2)(3), 41, 43 of the CF), is that the right of employees to organise and bargain collectively as well as the right to fair practices included the right to enforce awards of the Arbitration Tribunal. It was the statutory body created to determine trade disputes between unions and employers and in so doing, to pronounce on what the tribunal considered to be fair labour practices. Consequently, the Court had jurisdiction to hear P's application for enforcement of Award 40 of 1996.

ABUSE / CHILDREN

1. The Judge in the Supreme Court proceedings had failed in sentencing K to take into consideration the CRC, which required protection of C from sexual abuse while in the care of parents and any other person who had the care of her;
2. This case was within the scope of the CRC, but the trial judge had failed to take note of it. The Court should send out a strong message, where appropriate as in this case, that offences of this nature by a grandfather on a granddaughter would not be tolerated and would be met with a sentence of imprisonment sufficient to reflect society's condemnation of such conduct;
3. The sentence of 9 months imprisonment was manifestly inadequate to condemn such conduct, punish K and serve as a deterrent to K and other future offenders.

ABUSE / CHILDREN

1. The Court was obliged to impose a deterrent sentence to reflect society's obligation to protect the rights of the child under the CRC. It required the protection of the child from sexual abuse while in the care of the parents or any other person who had care of the child;
2. 2. A precedent was set in the Court of Appeal case of Attorney General v Maumasi, where Lord Cooke in delivering the decision of the Court of Appeal said: "All Samoan Courts should have regard to this Convention in cases within its scope";
3. The deterrent sentence of 3 years was to impress upon T and other like-minded men that society had no place for such sexual offenders;
4. Despite the mother's plea for leniency on the basis that T was the sole breadwinner, the Court had to impose a deterrent sentence because of its obligation to protect children under the CRC.

CUSTODY / CHILDREN

1. Four sections of the CF were relevant to the case. Article 22 stated that every person had the right to life. Articles 3 and 2(4) both emphasised the need to take a broad and contextual approach to the interpretation of the provisions of the CF. The Judge stated that "the right to life is more than merely to draw breath; including the right to enjoy privileges and freedoms guaranteed by the Constitution".
2. Article 43(2) of the CF enabled the application of the CRC. Courts had an obligation under Article 3 of the CRC to have the best interests of the child as the primary consideration in all actions concerning children.
1. In Vishaka v State of Rajasthan the Court held that: "Any international convention not consistent with the fundamental rights and in harmony with its spirit must be read into the provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee."
2. In Minister of State for Immigration & Ethnic Affairs v Teoh the Court held that: "The judicial declarations also reflected the direction in which the tide of judicial opinion is moving as well highlighting the fact that human rights is truly a universal concept."
3. The CRC had also been applied locally by a magistrate in Seniloli & Attorney General v Voliti. The decision was upheld by the High Court.
4. When looked at from a broad contextual point of view (by virtue of Articles 3, 22, 21(4) and 43(2) of the CF and Article 3 of the CRC) a broader interpretation must be given to s.4(2) of the MAA to include the capacity (of magistrates) to make interim orders regarding all children.

BAIL / CHILDREN

1. The meaning of the phrase "exceptional circumstances" was not exhaustive and it was a concept that allowed for flexible and careful application of the principle on a case by case basis to meet the ends of justice. This aspect of the Hon. Chief Justice's Circular Memorandum was not given more careful attention.
2. When P committed the offence, he was only 17 years old and was therefore a child pursuant to the CRC, which was ratified by Fiji in 1993. By virtue of Article 43(2) of the CF, P was entitled to the protections afforded under the CRC. Article 3 of the CRC obliged the Courts of law to take into account "the best interest of the child" as a "primary consideration".
3. If the "best interest of the child " principle were followed, the Magistrate would have done the following:
1. Advised P of his rights, such as the right to counsel. The Court should question the unequivocal nature of the plea given that P had steadfastly pleaded not guilty to the charges until the date of the hearing in 2003;
2. Expedited the case to minimise any trauma to P; the case took over 3 years to be disposed of, which raised the question of P's right to have the case determined within a reasonable time pursuant to Article 29(3) of the CF; and
3. P's age at the time he committed the offences. His vulnerability because of his age might have entitled him to legal aid in the "interests of justice" pursuant to Article 28(1)(d) of the CF.

ABUSE / CHILDREN

TORTURE / CHILDREN

1. Common assault;
2. Assault causing bodily harm;
3. Assaulting a person under 15 years of age in a manner likely to cause suffering or injury; and
4. Ill-treating a person under 15 years of age.

1. If the common law defence of reasonable punishment existed, the punishment in this case was unreasonable.
2. The SIC abrogates the right of parents, teachers or other people to administer corporal punishment as Article 7 renders corporal punishment unlawful per se.

1. Is corporal punishment a violation of Article 7 of the Constitution? (Article 7 of the SIC provides that "no person shall be subjected to torture or to inhuman or degrading punishment or other treatment".)
2. Is s.226(4) of the PC, which provides for the defence of reasonable punishment, in contravention of Article 7 of the SIC? (Section 226(4) provides that: "Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person, having the lawful control of a child or young person to administer reasonable punishment to him." Section 226 relates to the charges of cruelty to a person under 15 years of age.)

TAXES / MOVEMENT

1. Whether the Controller of Inland Revenue had powers under the s.201 of the ITA to restrain S from leaving the Cook Islands; and
2. Whether the ICCPR had any application in the Cook Islands in relation to the freedom of movement of an individual from one country to another given that NZ had ratified the Convention on behalf of the Cook Islands in 1978.

ADEQUATE FOOD / PRISONERS

RULE OF LAW / DEMOCRACY

1. That the attempted coup of 19 May was unsuccessful;
2. That the declaration of emergency by the President of Fiji, Ratu Sir Kamisese Mara, in the circumstances then facing the nation, though not strictly proclaimed within the terms of the CF, was granted validity ab initio under the doctrine of necessity;
3. That the revocation of the 1997 CF was not made within the doctrine of necessity and such revocation was unconstitutional and of no effect, thus the 1997 CF was the supreme and extant law of Fiji;
4. That the Parliament of Fiji consisting of the President, the Senate and the House of Representatives was still in being, and that owing to uncertainty over the status of the government, it would remain for the President to appoint as soon as possible as Prime Minister, the member of the House of Representatives who in the President's opinion could form a government that had the confidence of the House of Representatives pursuant to Articles 47 and 98 of the CF and that government shall be the Government of Fiji.

1. Did the Court of Appeal hearing this appeal have the jurisdiction to decide whether a new regime, set up in defiance of the 1997 Constitution, had become legal and thus entitled to rule the country?
2. Whether or not the 1997 Constitution was still in force after its purported abrogation by the Military.
3. How and when can a constitution be abrogated?
4. What was the legality of the regime of the Interim Civilian Government?
5. What was the status of the decrees made under martial law?

1. The burden of proof of efficacy lay on the de facto government seeking to establish that it was firmly in control of the country with the agreement (tacit or express) of the population as a whole;
2. Such proof had to be to a high civil standard because of the importance and seriousness of the claim;
3. The overthrow of the constitution had to be successful in the sense that the de facto government was established administratively and there was no rival government;
4. In considering whether a rival government existed, the enquiry was not limited to a rival wishing to eliminate the de facto government by force of arms. It was relevant in this case that the elected government was willing to resume power, should the Constitution be affirmed;
5. The people had to be proved to be behaving in conformity with the dictates of the de facto government. In this context, it was relevant to note that a de facto government (as occurred here) frequently reaffirmed many of the laws of the previous constitutional government (e.g. criminal, commercial and family laws) so that the population would notice little difference in many aspects of daily life between the two regimes. It was usually electoral rights and personal freedoms that were targeted. As one of the deponents said, civil servants such as tax and land titles officials worked normally throughout the coup and its aftermath. Their functions were established and needed no ministerial direction. The Court derived little proof of acquiescence from facts of that nature;
6. Such conformity and obedience to the new regime by the populace as can be proved by the de facto government had to stem from popular acceptance and support as distinct from tacit submission to coercion or fear of force;
7. The length of time in which the de facto government had been in control was relevant. Obviously, the longer the time, the greater the likelihood of acceptance;
8. Elections were powerful evidence of efficacy. It followed that a regime where the people had no elected representatives in government and no right to vote was less likely to establish acquiescence;
9. Efficacy was to be assessed at the time of the hearing by the Court making the decision.

EQUALITY / CHILDREN

1. The EA by s.11(1) abolished the court practice of requiring corroboration in sexual cases. However, the current offence was committed prior to the EA coming into force. Hence, the Court would apply the common law which was in force at the time of the commission of the offence;
2. The Court held that it was dangerous to convict on the uncorroborated evidence of the victim and accordingly warned itself so. Corroboration was a requirement in indecent assault cases except when the Court was satisfied that a complainant was speaking the truth;
3. The CRC did not form part of the laws of Kiribati, unless it was given the force of law in Kiribati.

DISCRIMINATION / WOMEN

UNLAWFUL DETENTION / CHILDREN

1. In considering the issue of quantum and aggravated damages, whether the breaches of the plaintiff's rights under the CF and the CRC justified the award to V, particularly that of punitive damages; and
2. Whether the CRC was in conformity with the JA and the CF in relation to the custody of children.

1. The breaches of V's rights under the JA, the JR, the CF and the CRC justified an award for aggravated damages;
2. This was not a case of an honest error of judgment by the police. Instead, it was a case of deliberate flouting of the law and of conscious acts on a vulnerable and a young member of the public, causing distress and humiliation to V;
3. The CRC was in conformity with the JA and the CF in relation to the issue of custody of children. It was intended to ensure that children in conflict with the law, and who are vulnerable because of age and powerlessness in relation to the administration of law enforcement agencies, were accorded special protective measures;
4. The rights of juveniles were protected together with adult suspects, by Article 27 of the CF. Those rights included the right to be told of the reasons for the arrest and detention, the right to prompt release if no charge was brought, the right to consult a legal practitioner, the right to communicate with next of kin, and the right "to be treated with humanity and with respect for his or her inherent dignity". None of these rights were accorded to the plaintiff; and
5. The JA provided for special measures to be taken in the detention of juveniles, the emphasis being to avoid detention except in exceptional circumstances. The spirit of the JA was not observed by the police officers.

DUE PROCESS / CHILDREN

1. Whether the accused had a right to contact his parents or to seek legal advice before questioning; and
2. If there was such a right, did the police have a legal obligation to advise the accused in custody of that right before questioning him?

1. Whether a combination of Article 17 of the CT and Article 40(2)(b) of the CRC gave the accused the right to consult his parents or seek legal advice?
2. Whether the CRC was applicable to Tuvalu's domestic law?

1. Article 17(2)(a) of the CT allowed the police to detain a child according to law for the purpose of proper discipline. Article 17(2)(a), however, did not provide guidance as to the terms of such detention or custody;
2. Where there was an inconsistency, ambiguity or lacuna in the written laws of Tuvalu, Article 15(c) of the CT and s.17 of the IGPA enabled the Court to interpret the written law in a manner that was consistent with Tuvalu's international treaty obligations. As Tuvalu was a party to the CRC, the terms of the convention were applicable in interpreting the provisions of the CT. There was no dispute that Tuvalu is a State Party to the convention and by the provisions of s.17 of the IA, a construction of a written law which is consistent with the international treaty obligations of Tuvalu is to be preferred to a construction which is not;
3. The relevant international convention was the CRC. Under Article 40(2)(b), a child's rights in police custody are as follows: "…be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have the legal or other appropriate assistance in the preparation and presentation of his or her defence."
4. The meaning of Article 17 of the CT was to be interpreted in accordance with the terms of the CRC (by virtue of Article 15(c) of the CT and s.17 of the IGPA). The combined effect was that an accused child had the following rights under the CT:
1. The right to have a parent or guardian present before/while police take an accused child's statement (unless impractical);
2. The right to be informed by police of this right, and for the Police to take any reasonable steps to secure such attendance before taking any step which could result in the child making a statement against his/her interests.
3. The Chief Justice noted: "I am satisfied that the Constitution read in accordance with the terms of the Convention gives any child in the custody of the police the right to have a parent or guardian present unless that is impractical. The perception that a child needs special protection arises from the immaturity and vulnerability of children. That is the foundation upon which the Convention was construed."

DISCRIMINATION / WOMEN

1. Whether the fact that B was intoxicated at the time of the offence was a proper defence; and
2. Whether the parties' previous relationship was relevant.

1. Rejected the defence of drunkenness to excuse rape. Sexual intercourse without consent fell within the definition of rape under s.149 of the PC. B was reckless because he was aware that the other party might not have been consenting but proceeded to have intercourse with her anyway;
2. Rape is a direct violation of a woman's fundamental human rights embodied in the 1997 Constitution and international instruments, particularly CEDAW;
3. Noted that: "Women are your equal and therefore must not be discriminated against on the basis of gender. Men should be aware of … CEDAW which our country ratified ... Under the Convention the State shall ensure that all forms of discrimination against women must be eliminated at all costs. The Courts shall be the watchdog of this obligation. The old school of thought that women were inferior to men or part of their personal property, that can be discarded or treated unfairly at will, is now obsolete and should no longer be accepted by our society."

TORTURE / PRISONERS

1. If the accused were subjected to extrajudicial punishment upon apprehension, and their confessional statements were obtained at that time, would they be admissible?
2. If the accused were further assaulted and threatened prior to and during interviews, would their statements be admissible?

FAIR TRIAL

1. A declaration to the extent that the trial was not within a reasonable time; and
2. An order that the charges laid against him be dismissed and he be acquitted.

ABUSE / CHILDREN

1. Though the PC had ample provisions to deal with sexual offences committed on children, the Court was prepared to apply the principles of the CRC where it was appropriate to justify or support a decision; and
2. Where any actions concerning children were brought before the Court, it was the accepted rule as provided in the CRC that "the best interests of the child" would be a primary consideration.
3. M should be sentenced to 7 years imprisonment.

CRUELTY / MANDATORY SENTENCING

CUSTOMARY LAW / EQUALITY

1. Whether assessors must be selected from persons of equivalent rank and paramount chiefly status despite the guarantee of equality in Article 38 of the CF; the place of traditional rank in the courts; and whether the denial of this would prejudice T's right to a fair trial.
2. What was the relevance of the non-justiciable Compact (Article 6(j)) which secured the paramountcy of indigenous Fijian interests as a protective principle?
3. The status of customary law and the right to retain culture and traditions in relation to the CF; the potential conflict between customary law and the Bill of Rights; the relevance of the affirmative action provisions to the assertion by T.
4. The relevance of international human rights law.

EMPLOYMENT / ASSOCIATION

SENTENCING / CHILDREN

DISCRIMINATION / CUSTODY

1. Did the CT forbid gender discrimination?
2. Were CEDAW and the CRC applicable in domestic law?
3. Was it mandatory for the Land Court to follow the orders in s.20(2) of the NLO, thereby precluding the Court from making any other order consistent with the paramount principle of "best interest of the child"? If that were so, was it a contravention of s.3(3) of the CCO as well as the CRC?

1. Both men and women were afforded the protection of constitutional freedoms, including the freedom from discrimination. However, as sex was not listed as a prohibited ground of discrimination under Article 27(2) of the CT, unequal treatment because of a person's gender was not discrimination. Accordingly, s.20(2) of the NLO, which granted the custody of the child to F, was not in breach of Article 27 of the CT;
2. The CRC and CEDAW were not applicable to the laws of Tuvalu unless an Act of Parliament was passed to implement their provisions. The Court however, might take cognisance of their terms as an aid to the determination of the true construction of a provision of written law where there was any difficulty in interpretation;
3. The measure in assessing custody of the welfare of a child was the first and paramount consideration, which arose clearly from s.3(3) of the CCO but not from any consideration that it must accord with the CRC. The "best interest of the child" principle applied in every child custody proceeding of every Court in Tuvalu, including the Land Court and Island Court. The Island Court was not bound to follow the NLO;
4. The orders under s.20 of the NLO were not mandatory; the wording demonstrated that they were discretionary. The Land Court could make orders other than those in s.20(2) of the NLO provided that they were in accordance with native customary law. The Land Court was obliged to apply the best interest of the child principle when it dealt with s.20(2) of the NLO because it dealt with issues of custody and access. If in its decision it considered that the best interest of the child was best served under s.20(2) of the NLO then it could so order. But if it was not satisfied that the best interest of the child was served under these orders, then it could make such an order, as custom allowed, that would best accommodate the welfare of the child. However, if it found that it was in the best interest of the child to make no such order then it could take that course, and leave it to the parties to make an application to any Court under s.3 of the CCO to ensure the child's best interest was served.

DUE PROCESS / CHILDREN

1. Although the CRC was only enforceable by an enactment of legislation, the need for the CRC arose (inter alia) from the widely accepted realisation of the need for children to be treated differently from adults in relation to police and Court proceedings. Even without the domesticating legislation, the Court was entitled to refer to the terms of the CRC as a guide on what was the acceptable form of treatment for children;
2. Article 37 of the CRC set the standard for treatment of children in police custody as follows: "… every child in who is deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance…"; and
3. Failure to conform to those terms might result in the Court excluding evidence or reversing a decision on appeal.

ABDUCTION / CHILDREN

1. That the appropriate court to determine the question of C's custody was the court in Germany;
2. That interim custody be granted to M on the condition that she travel with C to Germany within 7 days of the decision;
3. That F deliver C forthwith with all travel documents to M.

1. Had C settled in his new environment (in Samoa)? The Court found no evidence to suggest this. C had not even attended school in the 15 months he had spent in Samoa. Additionally, C's permit to remain in Samoa had expired, which meant that in any event he had to leave the country;
2. Was M exercising custody rights in respect of C at the time of his removal and whether she had consented or acquiesced in his removal? The Court found on the evidence that M had been exercising her custody rights, and that she had not consented or acquiesced in the removal of her child;
3. Was there a grave risk that the return of C to Germany would expose him to physical or psychological harm or otherwise place him in an intolerable situation? The Court did not find this to be so; and
4. Did C object to his return to Germany with M? The Court found that the child was too young to decide this issue, although it did take note of the fact that C said he was happy in Samoa and wished to stay with F.

PART II: PACIFIC ISLAND CASES CONSIDERING BILLS OF RIGHTS

DISCRIMINATION / PENSIONS

CUSTOMARY LAW / RELIGION

1. An order for certiorari to quash the decision made by the Land and Titles Court on 23 March, 2000;
2. An order for the District Court not to enforce the decisions of the Land and Titles Court;
3. A declaration that the Land and Titles Court did not have jurisdiction to limit the number of churches in the village of Falealupo;
4. A declaration that the VC of the village of Falealupo had no jurisdiction to limit the number of churches in the village or prohibit L from conducting bible services in the village; and
5. A declaration that the VC of Falealupo contravened the right to freedom of religion provided in Article 11 of the CS.

1. Whether the VC of Falealupo village had the authority to banish L from the village; and
2. Whether the Land and Titles Court had the jurisdiction to stop L from exercising his group's right to freedom of religion.

1. The decisions and actions of the VC of Falealupo in ordering the bible classes to cease, in dismantling the building where the bible classes were taking place and in banishing the members of the bible class amounted to a violation of L's right to freedom of religion under Article 11 of the CS;
2. An order of certiorari was to issue to quash the decision of the Land and Titles Court on 23 March 2000 and on 7 September 2000 as it contravened L's right to freedom of religion provided in Article 11 of the CS;
3. All prosecutions currently before the District Court, the second defendant, against L for contempt for alleged disobedience of the decisions of the Lands and Titles Court mentioned in (2) above were permanently stayed;
4. The actions of the VC, the third defendant, in dismantling the bible class building which belonged to L were in violation of L's right to freedom of religion provided in Article 11 of the CS and therefore declared unconstitutional;
5. The banishment by the VC of Falealupo, the third defendant, of L and their families from the village of Falealupo because of their religious beliefs was a violation of L's constitutional right to freedom of religion and therefore declared void and of no effect;
6. Ownership of customary land carried with it the right to prevent or exclude a religion being practiced upon such land given the definition of customary land in Article 101 of the CS. In this case the owner of the land where the bible studies were being held had given his permission.

CUSTOMARY LAW / EQUALITY

1. Whether the defendants' actions were illegal in light of the customary law defence provided; and
2. Whether W was forced to go from Port Vila to Tanna against her will.

LEGAL AID / FAIR TRIAL

1. Should the State meet the costs of the defence for these two accused?
2. Would the trial miscarry if the two accused were unrepresented?
3. Would they lose their constitutional right to a fair trial if they had no counsel?
4. Even if such a right does not insist upon their being given counsel, nonetheless is it in the interests of justice that each be given the services of a legal practitioner for this particular trial, the right under Article 28(1)(d) of the CF?
5. By having no counsel provided to them, were they denied their right to equality before the law?

CRUELTY / CHILDREN

1. The 10 strokes inflicted for gross disobedience and wilful misconduct might be excessive abroad but not in Tonga;
2. However, to hit a child on the thighs with a solid object, as the teacher did, whether deliberate or negligent, was actionable if measurable injury resulted. It did in this case and U was entitled to an award of damages.

PART III: INTERNATIONAL CASES HAVING REGARD TO HUMAN RIGHTS CONVENTIONS

DISCRIMINATION / WOMEN

1. Whether on a proper interpretation of the CB, the legislature had contravened the guarantee against discriminatory treatment in the CA. The CA stated that a child born of a marriage between a citizen mother and an alien father would not qualify for citizenship whereas citizenship was conferred on the child of a marriage between a citizen father and an alien mother; and
2. Whether the CB allowed the legislature to discriminate on the ground of sex given that "sex" was omitted from a list of prohibited grounds in the CB.

DISCRIMINATION / TRUSTS

1. Did the provisions of the charitable trust contravene public policy or were they void for uncertainty?
2. If the answer to that question was in the affirmative, could the doctrine of cy-pres be applied to save the trust? 3. Did the Bill of Rights apply only to the State or to everyone?

DISCRIMINATION / WOMEN

HOUSING / CHILDREN / JUSTICIABILITY OF ECONOMIC, SOCIAL & CULTURAL RIGHTS

1. Was the right to adequate housing in Article 26 and the right to shelter for children in Article 28(1)(C) of the CSA enforceable?
2. What was meant by the requirement of a "progressive realisation of rights" in the CSA (Article 27(2)) and the ICESCR (Article 2)?

1. The obligation to achieve progressively the full realisation of rights requires State parties to move as expeditiously as possible towards the realisation of the rights. Under no circumstances shall this be interpreted as implying for States the right to defer indefinitely efforts to ensure full realisation. On the contrary, all State parties have the obligation to begin immediately to take steps to fulfil their obligations under the Covenant;
2. Some obligations under the Covenant require immediate implementation in full by all State parties such as the prohibition of discrimination in Article 2 (2) of the Covenant;
3. The obligation of progressive achievement exists independently of the increases in resources; it requires effective use of resources available;
4. Progressive realisation can be effected not only by increasing resources but also by the development of societal resources for the realisation by everyone of the rights recognised in the Covenant.3

HEALTH / JUSTICIABILITY OF ECONOMIC, SOCIAL & CULTURAL RIGHTS

1. Was the prohibition on the prescription of nevirapine where medically indicated at public health institutions unconstitutional?
2. Was the Government constitutionally obliged to plan and implement a nationwide, comprehensive programme for MTCT?

1. Economic and social rights were justiciable rights under the CSA. It followed the case of Grootboom, where the State had failed to comply with its obligations to fulfil a housing right. There was a negative obligation on the State not to prevent or impair the right of access to health care services.
2. The minimum core obligations approach as set by the ICESCR Committee in determining the obligation of State to fulfil the economic, social or cultural right was inapplicable. The better approach was to apply the principle of "reasonableness" to evaluate government action or lack thereof towards fulfilling the economic right in issue. However, the Court was not institutionally equipped to make the wide ranging factual and political enquiries necessary for determining what minimum- core standards should be, nor for how public revenues should most effectively be spent.

RELEVANCE OF INTERNATIONAL HUMAN RIGHTS LAW TO DOMESTIC LAW

1. Whether the decision to reject T's application for resident status failed to give proper consideration to the rights of his children under the CRC; and
2. Whether the ratification of the CRC by the Australian Government meant that the executive arm of government had to abide by the principles of the CRC.

RELEVANCE OF INTERNATIONAL HUMAN RIGHTS LAW TO DOMESTIC LAW

1. The Court did not accept the argument that M was able to ignore its international obligations. The Court said it was "an unattractive argument, apparently implying that NZ's adherence to international instruments has been at least partly window- dressing". A failure to give practical effect to international instruments to which NZ was a party might attract criticism. If the NZ Court were to accept that the executive had a discretionary power to ignore international human rights and norms, the NZ Courts could be subjected to legitimate criticism;
2. The Court stated that the judiciary had a duty to interpret and apply national constitutions, ordinary legislation and common law in the light of the universality of human rights as affirmed in the Bloemfontein Statement of 1993 and Balliol Statement of 1992;
3. NZ's accession to the Optional Protocol of ICCPR meant that the UN Human Rights Committee was in a sense part of NZ's judicial structure in that individuals subject to NZ jurisdiction had direct rights of recourse to it;
4. As M had no opportunity to consider T's application in the light of the rights of the child, the universal human rights and international obligations involved and discussed above, it would be appropriate that M be given the opportunity to reconsider T's case in the light of an up-to-date investigation and assessment.

DISCRIMINATION / WOMEN

INDEX BY SUBJECT

INDEX BY COUNTRY