1. Fiji Islands

Section 21(1) of the Constitution of Fiji Islands provides that its bill of rights chapter binds, ‘(a) the legislative, executive and judicial branches of government at all central, divisional and local [levels]; and (b) all persons performing the functions of any public office’. Prima facie, this sub-section restricts the application of the bill of rights to State actions. This interpretation is supported by the Report of the Fiji Constitution Review Commission (the ‘Reeves Report’), on which the Constitution of the Republic of Fiji islands 1997 is based.Footnote ²⁸ It also finds some support from the approach of the Fiji Human Rights Commission, which is an independent statutory body established by the 1997 Constitution, to its investigative functions.Footnote ²⁹ The Commission is empowered to investigate allegations of human rights violations and to investigate unfair discrimination in employment. However, the Commission's web site states that the complaints section does not have jurisdiction over, and therefore cannot investigate private disputes, domestic issues, land issues, landlord and tenant disputes.Footnote ³⁰

However, on further analysis, the reference to ‘judicial branches’ in s 21(1)(a) may give human rights a wider application in Fiji.Footnote ³¹ It has been argued, in relation to similar legislation in other countries, that the reference to the judiciary is significant and that the effect of making courts expressly bound is to give a greater degree of horizontal effect to fundamental rights.Footnote ³² Such interpretation would not necessarily be contrary to the intention expressed in the Reeves Report, as although the Commission stated that the bill of rights should not apply to private persons,Footnote ³³ it went on to say that, ‘[o]n the other hand, nothing should be put in the Constitution to exclude its interpretation through decisions of the courts, in ways that require private persons, as well as the state, to respect a particular right.’Footnote ³⁴

In New Zealand, where s 3(a) of the Bill of Rights Act 1990 is similar (and may have been the model s 21(1)(a)),Footnote ³⁵ it has been held to impose an obligation to exercise judicial discretion in accordance with the bill of rights.Footnote ³⁶ The New Zealand courts have been prepared to acknowledge that the reference to the judiciary allows a reinterpretation of the common law, although they have not gone so far as to suggest that it authorises direct horizontal application.Footnote ³⁷ Rather, courts in New Zealand, and also in South Africa, which has a similar provision,Footnote ³⁸ seem to have taken the approach that this form of wording imports indirect horizontality, requiring modification or development of the common law to achieve compatibility with human rights norms.Footnote ³⁹ In this indirect manner, these norms are to be applied to all existing law, but in the absence of direct horizontal effect, no new causes of action based solely on human rights can be created in private law. A similar clause in the Human Rights Act 1998 (UK) has been described as giving the Act ‘strong indirect horizontal effect’ and this view has largely been accepted by the UK courts.Footnote ⁴⁰

The courts in Fiji Islands have not dealt expressly with the meaning of s 21(1)(a), but they appear to support the liberal interpretation of this paragraph. In Prakash v Native Land Trust Board,Footnote ⁴¹ the respondent was a State body, rather than an individual. However, it was stated that ‘section 21 binds the legislative, executive and judicial branches of government at all levels central, divisional and local. The court understands this to mean that in exercising its judicial function it is obliged to apply the provisions of the Bill of Rights where relevant to all parties’. The court also stated that ‘provisions conferring rights must be given a broad and purposive interpretation’.Footnote ⁴² Perhaps, more instructive is the case of Pafco Employees Union v Pacific Fishing Company Limited,Footnote ⁴³ which involved non-State parties. In that case, the High Court held that it had jurisdiction to hear a trade dispute (notwithstanding that the Pacific Fishing Company argued that trade disputes should be heard by the Arbitration Tribunal, in accordance with the Trade Disputes Act, Cap 97) on the basis that s 41 of the Constitution conferred jurisdiction on the Court to hear matters where ‘a person considers that any of the provisions of [the Bill of Rights] Chapter has been, or is likely to be contravened in relation to him or her’.Footnote ⁴⁴ After hearing evidence in that case, the court made an order compelling the respondent to reemploy a number of dismissed employees in accordance with an earlier award of the Arbitration Tribunal.

Section 21(1)(b) also extends the reach of human rights beyond the direct vertical approach. Persons ‘performing the functions of any public office’ will be bound, whether or not they are State officers. This paragraph leaves it to the courts to decide whether an action amounts to the function of a public office, but they have not yet been called on to interpret its meaning. In New Zealand, the Court of Appeal has interpreted a similar provision widely.Footnote ⁴⁵ In the United States, the concept of ‘state action’, which is akin to public function, has been extended by the courts.Footnote ⁴⁶ It should be noted that the Reeves Report specifically stated that ‘[t]he courts in the Fiji Islands should be free to take account of the court decisions in other countries with similar legal systems and values’ as well as the ‘evolving jurisprudence of United Nations bodies’.Footnote ⁴⁷

In addition to s 21(1), the Constitution of Fiji Islands contains another hurdle for human rights applications. Section 41(4) provides that the court may decline to exercise its powers if it is satisfied that there are other adequate means of redress available.Footnote ⁴⁸ The rationale for this filtering provision has been said to be that the value of the constitutional remedy will be diminished if it is used as a general substitute for normal judicial review procedures.Footnote ⁴⁹

2. Papua New Guinea and Tuvalu

Papua New Guinea and Tuvalu have both expressly provided for direct horizontal application. Section 34 of the Constitution of Papua New Guinea, which governs the application of the ‘Basic Rights’ set out in Division 3, provides that each right applies ‘between individuals as well as between governmental bodies and individuals’ and ‘to corporations and associations’ except where the contrary intention appears in the Constitution. Section 12(1) of the Constitution of Tuvalu is couched in almost identical terms.Footnote ⁵⁰

In accordance with the clear mandate in s 34, courts in Papua New Guinea have enforced constitutional rights between individuals, as illustrated by the case of Re Miriam Willingal,Footnote ⁵¹ where it was found that a customary practice called ‘head pay’, which includes giving young women in marriage as part of a compensation payment, violated, inter alia, the constitutional right to freedom and equality of all citizens. Similarly, in Public Prosecutor v Apava Keru; Public Prosecutor v Aia Moroi,Footnote ⁵² the Supreme Court addressed the question of ‘payback’ killings,Footnote ⁵³ and whether a killing in such circumstances could be reduced to manslaughter because of custom. The court considered that the custom of payback was contrary to the right to life contained in s 35 of the Constitution. Although these were criminal cases, with the State as the prosecuting party, they are relevant as the applicability of the rights provision was being considered as between individuals, that is, between the accused and the victims. However, despite the recognition that fundamental rights apply horizontally, courts in both countries have placed other restrictions on their application, which have resulted in the refusal to grant relief against individuals. In Papua New Guinea, the courts have demanded that claimants exhaust other remedies before seeking constitutional relief.Footnote ⁵⁴ Further, the courts have required that the infringer be clearly identified.Footnote ⁵⁵ In Tuvalu, whilst the Constitution makes it clear that rights apply horizontally, in a provision that is unique amongst South Pacific countries, it also provides that human rights may ‘be exercised only … in acceptance of Tuvaluan values and culture, and with respect for them.Footnote ⁵⁶ In a controversial judgment, the High Court, whilst appearing to accept the horizontal applicability of human rights, held that those rights were limited by reference to this qualification, which the Chief Justice held to be an ‘overriding condition’ for the exercise of some rights. In Teonea v Pule o Kaupule and Nanumaga Falekaupule,Footnote ⁵⁷ the applicant, a church leader, had visited an outer island of Tuvalu to spread the Tuvalu Brethren Church faith. The respondents, a village leader and the falekaupule (village council), had passed a resolution that there should be no new religions on the island. However, some forty villagers attended meetings arranged by the applicant. During one of these meetings, the building was stoned and some of those who attended were injured. The applicant was advised to leave the island and did so. He then initiated proceedings claiming breach of his constitutional right to freedom of belief (s 23), expression (s 24), assembly and association (s 25), and freedom from discrimination (s 27). The Chief Justice refused to follow decisions from other countriesFootnote ⁵⁸ where attempts to prevent the introduction of new religions had been held to breach constitutional rights, pointing out that ‘our Constitution is different in that it is firmly founded on the desire of the legislature, as an expression of the wish of the people, to hold to their traditions even if to do so means that some individual rights may be curtailed or restricted.’ He pointed out that the freedoms set out in sections 23, 24 and 25 were ‘subject to’ the protection of Tuvaluan values under section 29. Further, they were limited by other provisions of the Constitution, in particular, s 11, which is referred to below, and the Preamble, paras 3–7 and ss 9, 10, 13 and 29, safeguarding Tuvaluan values and culture. On this basis, His Lordship refused the orders sought. This judgment counters the argument that horizontal application of human rights would result in erosion of customary law. However, the judgment turns on the unique provisions of the Constitution of Tuvalu. A similar decision is precluded in Papua New Guinea by the Underlying Law Act 2000, which provides that customary law will not apply if it is contrary to basic rights contained in Part III.3 of the Constitution.Footnote ⁵⁹ Neither does the decision in Teonea v Pule o Kaupule and Nanumaga Falekaupule accord with recent decisions in Samoa in cases based on similar facts, which are discussed below.Footnote ⁶⁰

3. Solomon Islands

Solomon Islands is currently considering the enactment of a new Constitution.Footnote ⁶¹ Should the draft Federal Constitution of Solomon Island Bill 2004 become law it would introduce textual indicators governing the application of rights. Clause 21(1)(a) states that the rights and freedoms ‘bind the branches and levels of government’. Footnote ⁶² Although paragraph (a) does not specifically refer to the judiciary, it is susceptible to the same argument regarding its authorisation of indirect horizontal application as s 21(1)(a) of the Constitution of Fiji Islands.

However, in this case, such argument is to some extent academic, as paragraph (c) binds ‘all other persons and bodies’, thus allowing direct horizontal application of human rights. However, application to ‘other persons and bodies’ is limited ‘to the extent that it is applicable taking into account the nature of the right and the nature of the duty imposed by the right’.Footnote ⁶³ This means that the extent of enforceability of particular rights will not be known until the courts have pronounced on this. Overseas precedents are unlikely to be helpful, given the important differences of context discussed later in this article.

1. Kiribati

The Constitution of Kiribati 1979 gives no guidance as to whether the rights it confers are to be applied against individuals as well as the State. However, the High Court of Kiribati has addressed this issue and it did so from the starting point referred to above, that is, that rights were designed to shield the individual from the power of the State. In Teitinnang v Ariong Footnote ⁶⁴ the plaintiff had been prohibited from entering the village after he refused to pay a fine for selling pandanus thatches, which was not allowed under custom. The plaintiff's application for a declaration that the defendants had violated his right to freedom of movement under s 14 of the Constitution was dismissed on the basis that ‘[t]he duties imposed under the fundamental rights provisions of the Constitution were owed by the government to the governed. No such duty was owed by an individual to another individual’.Footnote ⁶⁵ Although the constitutional application was denied, the court granted the accompanying application for an injunction on the basis that the defendants had committed the tort of unlawful interference with the exercise of the plaintiff's legal rights.

Section 3 provides that the provisions of the rights chapter are subject to the limitations stated in the relevant sections and that those limitations are designed not only to protect the public interest, but also ‘to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others’. Although it might be argued that this provision suggests some degree of horizontal application, on the basis that it would not be necessary to limit the effect of guaranteed rights on individuals if they were not bound, such a suggestion misunderstands the issues. Even if only the State is bound, in certain circumstances rights of individuals will be limited in order to recognise the rights of others. Horizontal application amounts to more than that; it may, depending on the nature of the right, impose binding obligations on individuals through the bill of rights.Footnote ⁶⁶

Although the Constitution does not provide guidance on whether rights apply horizontally, like Fiji's Constitution, it does provide that the court may decline to exercise its powers if it is satisfied that there are other adequate means of redress available,Footnote ⁶⁷ and this could have formed an alternative ground for the decision in Teitinnang v Ariong.Footnote ⁶⁸

2. Samoa

The Constitution of Samoa 1962 does not expressly state whether the rights it confers are to be applied against individuals as well as the State. Section 4, which governs remedies and enforcement of rights says only that any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred by the Constitution and that the Court has power to make orders ‘as may be necessary and appropriate’ to secure the enjoyment of those rights. However, there is one provision of note, which might be relied on to support the horizontal approach, which has been adopted by the courts, at least when human rights have been applied against matai (chiefs). Article 3 of Part II of the Constitution, which deals with ‘fundamental rights’, contains the following definition of ‘State’:Footnote ⁶⁹

As the authority of matai (chiefs) is endorsed by statute (Village Fono Act 1990)Footnote ⁷⁰ in Samoa, they would appear to be ‘local’ or ‘other authorities established under any law’ and therefore to be within the definition of ‘State’ for the purposes of Part II of the Constitution. Accordingly, they would appear to be bound by the obligations contained in the bill of rights, even if such rights only apply vertically. The only flaw in this argument is that chiefs were not established as authorities by written law. Although there is some controversy as to the current status of chiefs and the legitimacy of some of the more recently created titles,Footnote ⁷¹ it is fairly clear that at least some chiefly authority pre-existed and was merely recognised by the legislation. However, even if this is correct, customary law is a formal source of law in Samoa, recognised by the Constitution,Footnote ⁷² so even if chiefs' authority emanates from customary law, it would still qualify within Art 3, as it includes ‘authorities established under any law’ within the definition of ‘the State’.

Although applications against individuals have appeared most frequently in the form of challenges to the authority of the Alii ma Faipule (village council of chiefs), the courts in Samoa have not resorted to this argument to justify horizontal application. In fact they have not expressly discussed the matter, but have shown no hesitation in applying human rights provisions horizontally. Challenges to chiefly authority have taken place in two contexts. The first is customary punishment, where banishment orders expelling villagers from their homes have been imposed by village councils on villagers who have opposed their authority. Such orders have been challenged on the basis that they infringe the right to freedom of movement enshrined in Art 13.Footnote ⁷³ The second context is religion, where individuals have sought to worship a different faith from that endorsed by the Alii ma Faipule. This has conflicted with the right to religion freedom in Art 11. In a number of cases, these two contexts have converged, as banishment has been the result of refusal to conform to the authorised religion. For example, in Sefo v The Attorney-General and the Alii and Faipule of Saipipi Footnote ⁷⁴ the decision of the Alii ma Faipule to limit the number of churches in their village and to prohibit the plaintiffs from conducting bible classes was held to be a breach of Art 11 of the Constitution. Similarly, in Lafaialii and Others v Attorney General and the Alii & Faipule of Falealupo,Footnote ⁷⁵ the Supreme Court held that the banishment of people from a village for conducting Sunday church services in contravention of orders by the Alii ma Faipule infringed Art 11.Footnote ⁷⁶ In Tuivaiti v Faamalaga,Footnote ⁷⁷ the Supreme Court considered that freedom of religion encompassed the right not to practice any religion and held that banishment for failure to attend church was also in breach of s 11 of the Constitution. Where banishment orders have been imposed for reasons other than religious intolerance, the courts originally took the view that the Constitution had to be interpreted in the context of the history and social structure of Samoa and refused to interfere with the exercise of customary authority. In Ta'amale and Ta'amale Toelau v The Attorney-General,Footnote ⁷⁸ for example, the appellants, a matai and his family, had been banished from the village for raising questions about other matai and their contributions to the village project. The Land and Titles Court upheld the banishment. The Court of Appeal referred to the declaration in the preamble to the Constitution, ‘that Western Samoa should be an independent State based on Christian principles and Samoan Custom and traditions.' The Court accepted that banishment was a long established custom, which was seen as an important sanction, essential to the authority of the village council. It was also accepted that it was a penalty imposed in the interests of public order and therefore came within the proviso in Art 13(4), which exempted reasonable restrictions in the interests of, inter alia, public order, from the guaranteed protection. The court therefore dismissed the appeal.

However, in the more recent case of Mauga v Leituala Footnote ⁷⁹ the Court of Appeal held that the custom of banishment contravened Article 13 of the Constitution, dealing with freedom of movement. The case arose after the banishment of the plaintiff and his family by the village fono (council) on the basis of his sons' bad behaviour towards the village pastor and his family. At first instance, Vaai J held that villa fonos (councils) were governed by the Village Fono Act Footnote ⁸⁰ and that this did not confer any authority on them to impose a banishment order.Footnote ⁸¹ Further, whilst banishment might have been necessary as a preventive measure in earlier stages of Samoan society, this was no longer the case. The Court of Appeal appeared to agree and held that it was ‘unthinkable that the legislature [in enacting the Village Fono Act] would have intended to endorse by silence as drastic a village power as banishment’.Footnote ⁸² According to this decision, the village fono is no longer entitled to make an order of banishment, but may only petition the Land and Titles Court to make such an order.

Although most applications that have come before the courts involve a challenge to traditional authority, they are not limited to such cases and the courts have been willing to apply rights provisions horizontally in cases between private individuals. For example, in Wagner v Radke,Footnote ⁸³ the Supreme Court used human rights principles as contained in the Hague Convention on the Civil Aspects of International Child Abduction to deal with a case concerning the abduction of an 8-year-old boy by his father. In Samoa, the courts have not insisted that parties must exhaust other remedies prior to applying for constitutional relief. In fact, comments by Sapolu CJ at first instance in Re the Constitution, Taamale v Attorney-General Footnote ⁸⁴ suggest that Constitutional remedies may be considered an alternative avenue, rather than a last resort.

3. Solomon Islands

Unlike the draft Federal Constitution of Solomon Islands Bill, discussed above, the Constitution of Solomon Islands 1978 contains no textual indicators. Section 18, which governs enforcement of protective provisions says only that any person whose rights have been or are likely to be contravened may apply to the High Court for redress and that the Court has power to make orders ‘as it considers appropriate’ to secure the enforcement of those rights.

In identical terms to the Constitution of Kiribati, s 3, provides that the provisions of the rights chapter are subject to the limitations stated in the relevant sections and that those limitations are designed not only to protect the public interest, but also ‘to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others’. As discussed above, this does not necessarily support an argument for horizontal application, as even vertical application will limit the rights of individuals in certain circumstances.

The courts in Solomon Islands have given express consideration to the question of horizontal application. Loumia v DPP Footnote ⁸⁵ is one of the few regional cases where counsel presented argument on the application of rights provisions. In that case, the defendant, from the remote Kwaio Footnote ⁸⁶ region, admitted killing members of a rival customary group, but argued that he was only guilty of manslaughter, on the basis of provocation. At the time of the killing, the defendant had just seen one brother killed and the other seriously wounded in the same fight. It was argued that the defendant had been provoked and that he came within s 204 of the Penal Code (Cap 26), which reduced the offence of murder to manslaughter if, inter alia, the offender ‘acted in the belief in good faith and on reasonable grounds, that he was under a legal duty to cause the death or do the act which he did’. Evidence was adduced from a local chief that Kwaio custom dictated the killing of a person who was responsible for the death of a close relative. As customary law was constitutionally recognised as part of the formal law of Solomon Islands, it was argued that s 204 included a ‘legal duty’ in custom. More pertinently to the current discussion, counsel for the appellant argued that s 4 of the Constitution, which protects the right to life, and most of the other fundamental rights provisions did not apply to relationships between private persons but only between the State and private persons.

The Court of Appeal upheld the defendant's conviction for murder. Whilst agreeing on the outcome, Connolly and Kapi JJA expressed different views on the applicability of the bill of rights Chapter. Connolly JA, with whom Wood CJ agreed, conceded that most of the rights guaranteed in Chapter II were principally concerned with the relationship between the citizen and the State. He referred in support of that view to two Privy Council decisions on appeal from the Caribbean, Maharaj v Attorney General for Trinidad and Tobago (No 2) Footnote ⁸⁷ and Thornhill v Attorney General for Trinidad and Tobago. Footnote ⁸⁸ However, His Lordship held that, ‘if the Kwaio customary duty to kill were part of the law of Solomon Islands [which, for other reasons, he did not think it was] it would be public law and therefore inconsistent with s4 of the Constitution'. In other words, His Lordship took the stance, akin to Hunt's fourth approach, that all law endorsed by the State is public law and is therefore subject to the rights Chapter and to the extent of any inconsistency with such rights it will be invalid.

In a separate judgment, Kapi JA took a different approach. His Lordship distinguished Maharaj v Attorney General for Trinidad and Tobago (No 2) Footnote ⁸⁹ as it was concerned with breach of the right to personal liberty rather than the right of life. Moreover, His Lordship considered that the fundamental rights provisions of the Trinidad and Tobago Constitution were different from the corresponding provisions in Chapter II of Solomon Islands' Constitution. Firstly, the provisions in the Trinidad and Tobago Constitution were based on rights secured by existing laws before the Constitution came into force whereas Solomon Islands' Constitution created independent rights and freedoms. Secondly, being contained in the Constitution, the Solomon Islands provisions were part of the supreme law to which all other laws were subordinate. Thirdly, the protection in the Constitution of Trinidad and Tobago was expressly directed against the State and public authorities, whereas the provisions in the Constitution of Solomon Islands were drafted in greater detail. The extent of their application should be taken from the fundamental rights provisions themselves. His Lordship stated that even though most of those provisions were principally concerned with relations between citizen and the State, there was nothing to confine the protection against deprivation of life to protection against the State only. His Lordship examined the words of s 4 itself and, referring to the words of Lord Wilberforce in Ministry of Home Affair v Fisher and Another,Footnote ⁹⁰ stated that the words, ‘No person shall be deprived of his life intentionally’ in s 4, ‘must be given a wide and generous application’. He pointed out that s 4 (2) (a) allowed a private person to kill another in defence of another person or property, which inferred that s 4 (1) prohibited deprivation of life by a private person.

Kapi AJ considered that examination of the other provisions of Chapter II also supported a horizontal application of fundamental rights. He pointed out that s 15(3) of the Constitution, which deals with protection from discrimination, prohibits certain types of treatment as between private persons and private bodies. His Lordship concluded that, ‘The essence of fundamental rights provisions in Solomon Islands is that they apply to all persons’ and that they are limited only by their terms and the qualifications set out in respect of each provision.

More recently, the Court of Appeal again discussed the application of the rights provisions in Ulufa'alu v AG. Footnote ⁹¹ This case arose from the coup which took place in Solomon Islands in 2000, during the course of which the appellant, who was then Prime Minister, was forced to resign. The appellant claimed that his rights under s 3 (fundamental rights and freedoms of the individual),Footnote ⁹² s 4 (protection of right to life), s 5 (protection of right to personal liberty), s 8 (protection from deprivation of property), s 9 (protection for privacy of home and other property), 11 (protection of freedom of conscience), s 12 (protection of freedom of expression), s 13 (protection of freedom of assembly and association) and s 14 (protection of freedom of movement) of the Constitution had been contravened. He sought certain declarations from High Court under s 18(1) of the Constitution, including a declaration that the subsequent election of a new Prime Minister was invalid. At first instance, Palmer ACJ rejected the contention that Chapter II was enforceable between individuals as well as against the State. However, he did so on the basis that there were other means of redress available, rather than on the basis that the Chapter was restricted to a vertical application.

On appeal, the Court of Appeal gave more detailed consideration to the matter, although its comments are strictly obiter, as the case was decided on other grounds. The Court accepted the view of the majority in Loumia as applicable, thus, extending the ratio of that case from the right to life to the more extensive menu of rights relied on this case, which are set out above. In doing so, the Court relied for support on the Privy Council decisions in Maharaj v Attorney General for Trinidad and Tobago (No 2) Footnote ⁹³ and Thornhill v Attorney General for Trinidad and Tobago. Footnote ⁹⁴ and academic writing on the Canadian Charter by HoggFootnote ⁹⁵ and Swinton.Footnote ⁹⁶ However, whilst acknowledging that their stance was contrary to the view of Kapi JA in Loumia they did nothing to counter his assertion that the position under the Constitution of Trinidad and Tobago and the Canadian Charter was distinguishable on the basis explained above. However, in Ulufa'alu's Case the Court noted that ‘how far citizens can rely on fundamental rights inter se’ ‘is a developing area’. Accordingly, the Court was anxious not be taken as laying down a general inflexible rule that fundamental rights were only applicable vertically. The Court considered that the right relied on and the surrounding context would have to be examined in each case, stating:

Like the Constitutions of Fiji IslandsFootnote ⁹⁷ and Kiribati,Footnote ⁹⁸ Solomon Islands' Constitution, provides that the court may decline to exercise its powers if it is satisfied that there are other adequate means of redress available.Footnote ⁹⁹ The case of Pusi v Leni Footnote ¹⁰⁰ is worthy of mention here, although the decision predates Ulufa'alu's Case and the question of vertical versus horizontal was not expressly discussed. The case provides a less obvious example of another type of redress which might be available in some parts of the region, and thus lead to refusal to grant constitutional relief against individuals. The case arose after an argument between the plaintiff and members of the local chiefs committee in which the plaintiff shouted offensive words at them and told them to leave his property. The plaintiff made several attempts to apologise but the chiefs refused to accept these, as they were not offered in the proper customary manner. The plaintiff then applied to the High Court alleging that he had been banished from the village and that this breached his the right to personal liberty (s 5), protection from deprivation of property (s 8), freedom of assembly and association (s 13), and freedom of movement (s 14). Muria CJ, apparently proceeding on the common assumption of horizontality, referred to above, found on the facts that the plaintiff had not established that he was subject to a banning order and dismissed the application on that basis. However, His Lordship made it clear that, even if constitutional rights had been breached, they would not be enforced if they were being used as a way to ‘circumvent the lawful application of custom’ as this might ‘engender disharmony in society’. He regarded this limitation as being authorised by the Preamble,Footnote ¹⁰¹ s 76 and Sch 3 of the Constitution, which stressed the ‘worthiness, the value and effect of customary law’ in Solomon Islands. His Lordship pointed out that customary law was constitutionally recognised as a source of law and this led him to the view that customary law was on a par with constitutional law (and legislation) and that ‘one is no better than the other’. Which would prevail depended on the circumstances of the case.

Like the Tuvaluan case of Teonea v Pule o Kaupule and Nanumaga Falekaupule,Footnote ¹⁰² this case demonstrates that horizontal application does not necessarily lead to the erosion of customary law.

4. Tonga

Like the other constitutions discussed in this section, the Constitution of Tonga 1875 does not expressly state whether the rights it confers are to be applied against individuals as well as the State. In Tonga, the dynamics are different from most other regional countries, as customary law is not constitutionally recognised as a general source of law. Both customary laws and traditional institutions have been transferred into the public sphere, the former incorporated into statute law and the latter reinvented as the King and Nobles.Footnote ¹⁰³

For this reason conflict does not appear to arise so often between individuals and non-state parties and there is no direct judicial authority on whether rights may be enforced horizontally. However, in Pohiva v Prime Minister and Kingdom of Tonga,Footnote ¹⁰⁴ although the action was taken against the State, the Supreme Court, in holding that the Prime Minister (who had attempted to ban a ‘foreign’ newspaper that had been critical of him) had a duty to permit the exercise of the right to free of expression, stated that there was, ‘a duty on every person to permit exercise of that right’. This could be taken to mean that the Supreme Court regarded, at least, this particular right as applying horizontally as well as vertically. Perhaps even more persuasive is the more recent case of Pale v Pohiva. Footnote ¹⁰⁵ In considering whether to grant an interlocutory injunction in a defamation case between private individuals, the Supreme Court held that the principles differed from those applying to the grant of an injunction in other cases, as the right to freedom of speech had to be taken into consideration. Again, this suggests that the right to freedom of expression applies horizontally as well as vertically in Tonga.

5. Vanuatu

The only guidance on the scope of human rights protection in the Constitution of Vanuatu 1980 is in section 6, which governs enforcement of rights and freedoms. This states only that any person whose rights have been or are likely to be infringed may apply to the Supreme Court for enforcement and that the Court has power to make orders ‘as it considers appropriate to enforce the right’.Footnote ¹⁰⁶

Until recently, although the courts had not expressly discussed the issue, they appeared willing to apply human rights provisions horizontally. For example, in Nagol Jump, Assal and Vatu v Council of Chiefs of Santo Footnote ¹⁰⁷ the petitioners claimed that their right to freedom of expression, freedom of assembly and association, freedom of movement, and equal treatmentFootnote ¹⁰⁸ had been infringed when the council of chiefs determined that they were not allowed to perform the nagol jump (a custom ceremony involving land diving originating in Pentecost) in Santo. Although the court concluded that their rights had not been breached it took no issue with the fact that there was no State party to the matter.

The Supreme Court has also granted relief in cases involving claims against individuals, rather than the council of chiefs. In John Noel v Obed Toto Footnote ¹⁰⁹ a land dispute raised the question of whether family members had individual rights to the use of land and to the benefits that arose from any activity related to, or conducted on that land. Under custom, it is generally the case that family members have to ask the head of the family (who holds the land in a representative capacity) to approve any individual rights with respect to land. However, female family members who marry lose their ‘rights’ to the land, or at the very least have their rights made subordinate to that of any male family members. The Court stated that, while custom was the proper means through which to determine land rights, it was subject to the fundamental rights recognised by the Constitution.

Similarly, in The Constitution of the Republic of Vanuatu and the Infant P and her Natural Mother S,Footnote ¹¹⁰ which arose on the island of Santo, the Court of Appeal appears to have assumed that rights applied horizontally. In that case, the Petitioner alleged that her brothers had forced her to allow her sister to adopt her illegitimate child. When she complained they kidnapped her and took her to the family village where she was effectively held captive for nearly six months. The Court of Appeal, commented that, if proved, the actions of the woman's male relatives, namely using threats of force to induce the Petitioner to agree to the adoption; false imprisonment; interference with her employment to the extent of tendering a false resignation purporting to come from her, represented, ‘a gross interference with the fundamental rights of a citizen as detailed in the Constitution, chapter 2, part 1’. The matter was remitted to a single judge of the Supreme Court for further evidence to be taken. Unfortunately, the outcome of the hearing is not reported.

However, these cases all precede Family Kalotano v Duruaki Council of Chiefs,Footnote ¹¹¹ which is the only case in Vanuatu that appears to address the matter directly. In that case, the Supreme Court made a complete about-face on the issue of horizontal application. The Kalotano family was disputing the title of custom chief. They alleged that, in dealing with the dispute, the Council of Chiefs and a number of individual chiefs had breached the family's rights under Art 5(1)(d) (the right to protection of the law), (g) (the right to freedom of expression) and (k) (the right to equal treatment), of the Constitution. Lunabek CJ struck out the Petition, stating as his ‘substantive reason’ which ‘on its own [could] dispose of the entire case' that ‘The allegations of constitutional rights breach are levelled against individual persons. There is no legal remedy available to the Petitioner by way of constitutional petition such as in the present case’. The decision does not contain any further reference to this point and there is no indication that the parties had the opportunity to submit argument on this point.

1. Plurality and traditional authority

For the majority of people in many parts of the region, the social system within which they go about their daily lives is far removed from the realms of central or even, in some cases, provincial government. The continuing strength of traditional authority is illustrated in many of the cases discussed above, including the banishment cases from Kiribati, Samoa and Solomon Islands and the kidnapping case from Vanuatu.Footnote ¹²² In rural areas, traditional authority is far more relevant than the State system of government embodied in the Constitution.Footnote ¹²³ The State system brings with it the distinction between the public and private sphere, which has been used as an argument against horizontal application of rights.Footnote ¹²⁴ Whilst there does not appear to be any specific authority on point, ‘public authority’ has generally been taken to refer to State authorities established under the framework provided by the constitution or constituent laws. Accordingly, traditional leaders and institutions are not regarded as ‘public’ authorities, unless they have been given statutory recognition.Footnote ¹²⁵

Where such individuals or bodies are not formally endorsed by the State in some way, they are not bound by rights that apply only vertically. However, if traditional authorities are in reality a de facto form of local government, as they have been demonstrated to be in cases such as Teitinnang v Ariong Footnote ¹²⁶ and Pusi v Leni, discussed above, the private and public divide becomes blurred. As mentioned above, there are no firm boundaries between ‘custom’ and ‘customary law’.Footnote ¹²⁷ The authority of traditional leaders extends to both areas and accordingly includes matters categorised by the State as private as well as public.

The most common argument used to support the vertical application of human rights derives from their original conception. Historically, rights were developed as a means of shielding the individual from the power of the State. Consequently, it has been argued that to extend the application of rights and freedoms would be to take them out of their original context.Footnote ¹²⁸ Although this may provide persuasive argument against horizontal application in countries which share that history, this justification has little force in Pacific Island countries. This is not part of their story; rights did not develop historically but were transplanted, often as part of a Westminster-style Constitution. If the political reality is that traditional leaders wield as much or more power than the State, the historical justification for applying rights vertically has a hollow ring.

2. Status-based, patriarchal society

Generally speaking, customary societies in many parts of the region are patriarchal and status-based. For example, as illustrated by Re Willingal,Footnote ¹²⁹ discussed above, women may be regarded as chattels, capable of being disposed of as part of compensation arrangements. Leadership and major decision-making may be regarded as a male domain.Footnote ¹³⁰ Applying Bills of Rights provisions across the board without reference to these norms may result in disrespect for human rights, and this may be seen as dictating against a horizontal approach.

On the other hand, horizontal application may be regarded as imperative if human rights are to be upheld.Footnote ¹³¹ The cases discussed above, where customary laws relating to head pay and banishment were found to violate human rights, provide clear examples of the need to apply these rights against individuals.Footnote ¹³²

3. Emphasis on collective rights and duties

Another relevant factor is the significance of collective rights, statusFootnote ¹³³ and duties, which have more resonance in the Pacific than individual rights, freedoms and equality, which are emphasised in human rights provisions.Footnote ¹³⁴ For example, in Tonga, ‘Alisi Taumoepeau, the Solicitor General recently said:Footnote ¹³⁵

The emphasis on collective rights within the region may be seen as supporting the restriction of human rights to a vertical application, rather than allowing individuals to challenge traditional practices by constitutional means. On the other hand, as illustrated by Re Willingal Footnote ¹³⁶ and The Constitution of the Republic of Vanuatu and the Infant P and her Natural Mother S,Footnote ¹³⁷ the fact that traditional leaders are making decisions on the basis of the collective good, without reference to individual rights, may be viewed as increasing the need to provide for horizontal application.

4. Legal pluralism

A more specific and obvious distinction lies in the plural system of laws. There is a stark distinction between formal, written law on the one hand and customary, unwritten law on the other. The relationship between these two distinct systems is often unclear. So too is the relationship between the different customary laws of different groups. The existence of customary law in regional legal systems belies the assertion that all law is dependant on State organs for interpretation and enforcement.Footnote ¹³⁸ This is an argument advanced by supporters of the horizontal approach to reject the assumption of verticalists that there is a rigid distinction between public and private law in this context;. that human rights are an inappropriate legal source for regulation and restriction in the private sphere;Footnote ¹³⁹ and that human rights concepts cannot be properly translated into the field of private law. Although customary law has been given formal recognition in some regional countries,Footnote ¹⁴⁰ it does not depend on the State for its validity. It remains important throughout the region, whether or not it has been given formal effect.Footnote ¹⁴¹ There is potential for the development of an indigenous jurisprudence based on customary law under the auspices of the State, as envisaged, for example, by the framers of the Constitution of Papua New GuineaFootnote ¹⁴² and the Underlying Law Act,Footnote ¹⁴³ and by some regional scholarsFootnote ¹⁴⁴ and judges.Footnote ¹⁴⁵ However, that does not detract from the fact that customary law is regarded as binding by those within its sphere, without reference to the State.Footnote ¹⁴⁶ Customary law remains important throughout the region, whether or not it has been given formal effect.

In this context, the rationale that the State is constitutive of all legal relations because law is a State construct,Footnote ¹⁴⁷ which is often advanced in favour of the horizontal approach, is inapplicable.

It is also important to note that, as well as recognizing customary law, some regional constitutions also emphasise the importance of customary law by shielding it from human rights provisions, either generally, as in Tuvalu,Footnote ¹⁴⁸ or specifically in the case of selected rights, as in SamoaFootnote ¹⁴⁹ and Solomon Islands.Footnote ¹⁵⁰ This emphasis puts a different spin on the horizontal versus vertical debate, as deliberate limitation of rights strongly suggests an intention by the framers of those constitutions to confine the application of rights.

5. Plural dispute resolution forums

In addition to plurality of substantive law, there is another relevant distinction within legal systems arising from the separate dispute resolution forums and the adjectival law applying to them. In many cases, disputes will not be resolved by a formal court, but by a village leader or elder or by a group of traditional leaders in a customary forum. For example, in Teitinnang v Ariong Footnote ¹⁵¹ the decision-making in the village was by the elders committee rather than a court. This distinction raises an additional question to the one that divides verticalists and horizontalists elsewhere. There the argument is about whether human rights law is relevant in a dispute between private parties governed by common law, where the only public authority is the court itself. In the South Pacific, there is the additional question of the relevance of human rights where the dispute resolution forum is a customary body not established by the State.Footnote ¹⁵²

6. Disparity in socio-economic circumstances

The disparity in the socio-economic circumstances of those within the region may also cast a different light on human rights provisions. At one end of the spectrum there are sophisticated commercial entities engaged in development and natural resources, which are seen as necessary for economic success. At the other, there are villagers living a subsistence lifestyle, substantially unaffected by many of the social and cultural changes brought by industrialisation. In between there are a variety of groups and individuals.Footnote ¹⁵³ For some villagers, at the far end of the spectrum, living in remote rural areas, the written law, including the constitution, has little meaning. This could be seen as another reason for restricting human rights to the State sphere. On the other hand the disparity between the groups at either end of the spectrum might be seen as all the more reason for providing constitutional protection, for example, from exploitation by multi-national companies, who would not be restrained from breaches of human rights under a vertical approach. This has particular application in industrial relationsFootnote ¹⁵⁴ and in resource exploitation.

7. Level of development

The different level of development in emerging States is also a relevant factor. Countries where, for example, infant mortality rates are highFootnote ¹⁵⁵ and literacy and education levels are lowFootnote ¹⁵⁶ may have different priorities. The priorities driving values may be very different in less developed countries where basic education, and even survival, cannot be taken for granted.Footnote ¹⁵⁷ The relative importance of certain customary laws and the human rights with which they may conflict may change as a society evolves and this is a fact that South Pacific countries themselves have already recognised. In Ta'amale and Ta'amale Toelau v The Attorney-General,Footnote ¹⁵⁸ discussed above, the Court of Appeal of Samoa refused to set aside a banishment order even though it contravened the constitutional guarantee of freedom of movementFootnote ¹⁵⁹ because it was a long established custom, which was seen as an important sanction, essential to the authority of the village council. However, the Court commented that, although banishment was at that time a reasonable restriction imposed by law, this would not necessarily always be the case. As society developed the court envisaged that there might come a time when it would no longer be justifiable. Nine years later, in Leituala v Mauga,Footnote ¹⁶⁰ the Supreme Court of Samoa held that that time had come.Footnote ¹⁶¹

8. Fragility of the rule of law

Another differentiating factor in some countries of the region is the fragility of the rule of law. At the time of writing both Tonga and Vanuatu have declared a state of emergency in response to rioting;Footnote ¹⁶² Fiji Islands has just suffered its fourth coup since 1987;Footnote ¹⁶³ and Solomon Islands is still dependent on the Regional Assistance Mission to Solomon Islands (‘RAMSI’) to enforce law and order.Footnote ¹⁶⁴ In these circumstances human rights abuses may commonly be inflicted not by the State or by traditional chiefs or elders, but by self-appointed leaders. For example, following the most recent coup in Fiji Islands human rights abuses were perpetrated by members of the armed forces acting not under State authority but as part of a rebel force.Footnote ¹⁶⁵ Similarly, in Ulufa'alu v AG Footnote ¹⁶⁶ the main allegations of contravention of human rights were levelled against members of the joint Malaita Eagle Force, a paramilitary rebel group. In Vanuatu, human rights abuses have occurred in the context of inter-tribal violence between rival groups from Tanna and Ambrym islands, after allegations of murder by ‘nakaimas’ (black magic).

In these cases, power lies neither with the State nor with traditional leaders. Rather it is in the hands of individuals or groups who have taken advantage of the ambiguity of political frameworks and the lack of support for the State system.Footnote ¹⁶⁷ The fact that this is Fiji's fourth coup since 1987Footnote ¹⁶⁸ demonstrates that these are not isolated occurrences. The vertical application of human rights provides inadequate protection for victims of insurgent forces in ‘fragile States’.

1. The coordinate model

An approach which has not yet been considered in the South Pacific, but which might have potential is that referred to by Canadian constitutional commentator, Brian Slattery, as the co-ordinate model.Footnote ¹⁸² According to this model, bills of rights are not merely concerned with reviewing government action in the courts. They impose equal responsibilities of all three branches of government to act in accordance with a ‘constitutional code of behaviour directly regulating governmental activities as a whole’.Footnote ¹⁸³ Thus government institutions must, and according to Slattery by and large do, act in accordance with the bill of rights standards when formulating policy and the law. The model calls on courts to investigate whether an existing legislative, administrative or common law scheme actively and fully protects and vindicates the constitutional right in question. However, it dictates that the courts should only accept a constitutional application based on alleged infringement of human rights where there is no adequate statutory, administrative or common law action or remedy.Footnote ¹⁸⁴ The merit of this approach is that is allows courts to consider the merits of the actions, rather than the identity of the actors, but still maintains the primacy of alternative schemes to protect the right.Footnote ¹⁸⁵

The co-ordinate model may be particularly useful in the South Pacific where there are plural sources of law that often include avenues for protecting rights. Between them, customary law, common law and legislation frequently offer claimants at least one avenue for protection of human rights. For example, in Pusi v Leni,Footnote ¹⁸⁶ discussed above, the court denied the plaintiff relief on the facts, but was clearly of the view that there were existing remedies for the alleged breach of freedom of movement, specifically, those in custom. This model may help to obviate the cultural clashes inherent in the application of transplanted human rights norms to regional circumstances, but would provide recourse if an individual's rights were not adequately protected, as in the banishment cases discussed above. This could enhance trust and respect for the courts and legal system and, in the long term, provide the stability required for foreign investment and development. The emphasis on the equal responsibilities of all branches of government might also encourage good governance practices in a region that has not always enjoyed a smooth path to democracy either before or after independence. This model also circumvents the problems of deciding who is and who is not a state actor, which is a difficult task in countries where customary institutions have quasi-governmental functions, and often perform several different law making and interpretive functions.

2. The nuanced model

The diversity of social circumstances and the gulf between the theory and practice of the rules governing law and the State, which makes the coordinate model attractive also suggests another approach, referred to here as the ‘nuanced model’. As opposed to the ‘all or nothing’ approach of the kind warned against in Ulufa'alu's case,Footnote ¹⁸⁷ the nuanced model is based on flexibility. However, this does not mean that the courts would be left floundering in the dark; clear textual indicators would be provided, expressing the boundaries within which the courts are to carry out clearly defined tasks. This nuanced approach would acknowledge that the applicability of human rights provisions may depend on the right relied on in the case in question, the circumstances in which the alleged breach arises and any relevant cultural considerations. This would be accompanied by a provision akin to s 8(3) of the Constitution of the Republic of South African 1996. Section 8(3) clarifies s 8(2), which in effect introduces a nuanced approach, by providing that the bill of rights binds a natural or a juristic person if, and ‘to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right’. Subsection (3) expressly states that in giving effect to subsection (2), a court must, if necessary, develop the common law ‘to the extent that legislation does not give effect to that right’ and ‘may develop rules of the common law to limit the right’. Such limitation must not exceed the boundaries set out in s 36(1), which states that limits may be ‘only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. In considering whether a limitation qualifies under this provision, a non-exhaustive list of factors to take into account is provided. These are:

1. (a) the nature of the right;

2. (b) the importance of the purpose of the limitation;

3. (c) the nature and extent of the limitation;

4. (d) the relation between the limitation and its purpose; and

5. (e) less restrictive means to achieve the purpose.

With regard to (a), the nature of a right often suggests whether or not it is capable of being applied horizontally. Some rights are usually violated by state actors, such as right to fair trial, false imprisonment etc. However, in the context of the Pacific, there may need to be a second level of analysis, as non-state actors often take on these functions, for example, when resolving disputes at a village level and imposing customary penalties.Footnote ¹⁸⁸ A suggested approach to all issues of constitutional rights would be to ask: who is capable of exercising this right? Has the exercise been lawful?