MBK LW308 TUTORIAL/FORUM ACTIVITIES SEM.1.

2022

LW308: Constitutional Law

Semester 1, 2022
Tutorial / Forum Exercise
Topic 8: General Structure of Constitutions
FEEDBACK

Question 1 – The Bill of Rights

1.1. To warm-up, look up four (4) Constitutions from the USP region. What is the systemic
location and structure of those Constitutions’ Bill of rights within the Constitution? (Make
simple reference to the Chapters etc. where the Bill of Rights are systemically situated
within each Constitution).

For example:

- Vanuatu Ch.2;
- Fiji Const. Ch.2: Bill of rights should be respected in all areas and the court must interpret
them carefully.
- Solomon Islands-draft constitution Ch.II. The bill of rights protected under the constitution under
Chapter 1 (3) (3) (e) of the federal constitution. s3-Values governing power and authority under
the Constitution. S3 (3) everyone exercising authority under this Constitution must always - (e)
Uphold the fundamental rights and freedoms of the individual as recognised and protected by
this Constitution;
( - Similar to Solomon Islands: Kiribati.)
- Tuvalu constitution is also recognising the bill of rights as stated in Part II, division 2 and
division 5 which states the enforcement of the bill of rights in the constitution.
- For Tonga, the Constitutional provision concerning fundamental rights is found in Part 1.

1.2. Do you think that a Bill of Rights should be systemically separate from the Constitution /
placed outside the Constitution? What could be the arguments for and against such an
assumption?

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This may depend on the nature of the Constitution as written or unwritten. Ordinarily, a Bill of
Rights may be vested within the Constitution. However, an argument could be made that a
Bill of Rights should exist also, in addition, outside the Constitution, as a separate document,
because of its importance. One may argue that individual rights are crucial for all other
aspects of the Constitution to exist and function. Another argument could be that the Bill of
Rights is simply another element of a Constitution and that it is supported by other
Constitutional elements anyhow, such as the Rule of Law or Separation of Powers.

Question 2 – Institutionalist vs. Rights-Based Approach

2.1. What is the difference between the British 'institutionalist' approach to constitutional law
and the American 'rights based' approach? List and discuss some of the benefits and
shortcomings of each approach. Which approach would you choose and why?

- British ‘institutionalist’ = a Monarchist Model, institutions governed for the Crown as sovereign.
Citizen ‘subjects’ owing loyalty, power with state, individual rights no constraint on state power.

- The American ‘rights based’ approach based on Republican/Presidential model. Institutions

are designed to reflect popular will and citizens have certain constitutional ‘rights’. ‘Citizens’
empower government only on their behalf. Popular sovereignty viewed as the only basis for
constitutional legitimacy and fundamental rights of citizens of great importance. Today’s
changes, ie. see Presidential orders. Revolutionary constitutions: Powers of the citizens and the
rights constraining/limiting the powers of the state.

2.2. Find two (2) Constitutions in the USP region that combine elements of both the British
institutionalist model as well as the American rights-based model. Do you think combining
these different models has worked well the context of the two constitutions selected?
Provide reasons.

- Solomon Islands and Fiji both apply the monarchist model but also include fundamental rights.
Solomon Islands: Customary law is found irreconcilable with the fundamental rights provided in
the constitution. Courts refer to both elements of British and American model.

- Part I of the Constitution of Tonga, it provides the rights under the American right-based model
while as Part II provides the forms and regulations of government under the British institutionalist
model.

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- PNG Division 3 provides the fundamental rights under the American right-based model and
Part V, VI, VII and VIII provides for the regulation and government institutions under the British
institutionalist model.

Continued next page....

Question 3 – The Preamble

3.1. What do you think is the nature of a Constitutional Preamble? Is the Preamble enforceable
at law? Why do Preambles exist, what is their use and purpose? Is their nature political
or legal or perhaps both?

Some thoughts on the Preamble:

A Preamble symbolises the vision of the Constitution. This is normally an unenforceable part of
the Constitution which is, however, often referenced in other parts and sections of the
Constitution which may in turn be enforceable. Somewhat akin to a corporate vision and / or
mission statement, a Preamble is setting the course for the Constitution. There may be
significant overlap between the Preamble and the actual constitutional provisions, however,
there may likewise be detachment. The Preamble may function as a litmus test whether the
Constition is living up to its own goals. The Preamble may be viewed as legal provision that is
of political aspiration. For its political nature speaks that it is itself not readily enforceable.

3.2. In your answer, now make reference to the court of appeal judgment in Minister of
Provincial Government v. Guadalcanal Provincial Assembly (1997). The case can be found
in this link http://www.paclii.org/cgi-
bin/sinodisp/sb/cases/SBCA/1997/1.html?stem=&synonyms=&query=Preamble (If this link does not
work, please use a search engine / online library access to allocate the case).

a) Does the constitution of Solomon Islands specifically refer to the introductory part of
the constitution as a Preamble? If not, then how did the court instead determine that it
is a Preamble?

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b) What is the position of the appeal judges on whether the preamble form part of the
constitution or not?
c) How did the judges come to the determination in (b) above?

a. No, Constitution of Solomon Islands does not specifically refer to the introductory part of
the Constitution as a preamble. Court determined that it is a preamble because the
Constitution of Solomon Islands consists of the introductory words, for convenience sake
is a ‘preamble’. For interpretive purposes the preamble may assist in clarifying ambiguous
wording. Court did not find anything that is ambiguous.

b. & c.

Appeal Judges: Preamble are as much a part of the Constitution as any other provision
although it is found at the beginning. Functions as a guide, it can be referred to to
determine the meaning or effect of particular provisions in the Constitution. ‘Preamble’
Solomon Islands being no different to the nature of preambles in other constitutions: A
general statement of underlying principles or beliefs by the people as the basis of the new
nation. Permissible for interpreting courts to having regard to preambles in construing
provisions of Constitutions. Must not be read as constituting legal principles on their own.
Comparing other jurisdictions: Certain terms which are not expressly stated in the
Commonwealth Constitution may be implied (HC Australia). Court may have regard to
and give meaning to the Preamble to the Constitution. Report presented during the
drafting of the constitution in London using title “preamble” allowing to referring to the
whole introductory part of the Constitution as "Preamble" to the Constitution even where
not so stated.

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