LW331/LW431 Human Rights - Lecture 3 – Friday 3 March 2023

CONSTITUTIONAL
PROVISIONS AND
PROTECTIONS: BRINGING
RIGHTS HOME

Dr Morsen Mosses,
Lecturer
USP School of Law
OVERVIEW

 Learning outcomes for the topic

 Human Rights at home – Where?
 Constitutional statements on Fundamental Rights and Freedoms
 Fundamental Rights and Freedoms as Cornerstone of democratic
nations
 The Rights and Freedoms commonly found in Countries’
Constitutions
 Interpretation of Constitutional provisions on Human Rights
 Constitutional provisions on Human Rights and their application –
Vertical or Horizontal effect?
 Constitutional provisions on Human Rights and their enforcement

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LEARNING OUTCOMES

 Discuss why it is important to bring Human Rights

home through the constitutional provisions

 Discuss your country's constitutional statements on

fundamental rights and freedoms

 Discuss the interpretation and application of such

rights by the courts of the region

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HUMAN RIGHTS AT HOME – WHERE?

 The Constitution – Main purposes

 Body of laws on the basis of which a state is governed
 Body of laws that protect fundamental rights and freedoms

 Legislation (Acts and regulations, Penal Codes…)

 Case law

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CONSTITUTIONAL STATEMENTS ON
FUNDAMENTAL RIGHTS AND
FREEDOMS
 Many countries (including South Pacific countries) have included
provisions on Human Rights protection in their national
Constitutions – Different rights and freedoms are provided.
Additional details related to the ways in which Rights may be
restricted are also provided

 Statements modelled on European Convention and the UDHR

(Fiji, Kiribati, Nauru, Solomon Islands, Samoa and Tuvalu…) –
Statements are much more detailed. The Rights are listed either in a
‘Bill of Rights’ or in a section of ‘Fundamental Rights and Freedoms’.

 Statements modelled on the Canadian Charter of Rights and

Freedoms (Vanuatu and Cook islands) – The Rights are relatively
brief and are expressed in general terms, including the exceptions to
them.

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FUNDAMENTAL RIGHTS AND
FREEDOMS AS CORNERSTONE OF
DEMOCRATIC NATIONS
 Respect for Human Rights and Freedoms is one of the essential
elements of democracy – Freedom of opinion and expression for
instance is important in any democratic country. Why?

 The Fundamental Rights and Freedom require States to respect,

protect, promote and fulfill the rights provided in the
Constitutions - This requires more that basic protection from neglect,
abuse and mistreatment. - It also requires concrete actions to ensure
that States live up to their positive obligations to ensure that
fundamental rights are respected, promoted and protected.

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THE RIGHTS AND FREEDOMS
COMMONLY FOUND IN COUNTRIES’
CONSTITUTIONS
 Equality – Everyone is equal before the law and has the rights to equal
protection and benefit of the law
 Life – Everyone has the right to life, Freedom and security of the person
 Slavery, security and forced labour – No one may be subjected to
slavery or forced labour
 Privacy – Everyone has the right to privacy
 Freedom of religion, belief and opinion – Everyone has the right to
freedom of conscience, religion, thought, belief and opinion
 Freedom of expression – Everyone has the right to freedom of
expression (including freedom to seek, receive and impart information
and ideas of all kinds)
 Freedom of Assembly, demonstration and petition – Everyone has the
right, peacefully and unarmed, to assemble, to demonstrate and to
present petitions

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THE RIGHTS AND FREEDOMS
COMMONLY FOUND IN COUNTRIES’
CONSTITUTIONS
 Political rights – Every citizen is free to make political choices
 Citizenship – No citizen may be deprived of citizenship.
 Freedom of movement – Everyone has the right to freedom of
movement
 Property – Right to own, use and bequeath his or her lawfully
acquired possessions. No one may be deprived of property except in
terms of law of general application, and no law may permit arbitrary
deprivation of property
 Housing/Food/Water? – Everyone has the right to have access to
adequate housing/adequate food and water?

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THE RIGHTS AND FREEDOMS
COMMONLY FOUND IN COUNTRIES’
CONSTITUTIONS
 Education – Everyone has the right—to a basic education, including
adult basic education; and to further education, which the state,
through reasonable measures, must make progressively available and
accessible
 Access to courts – Everyone has the right to have any dispute that can
be resolved by the application of law decided in a fair public hearing
before a court or, where appropriate, another independent and
impartial tribunal or forum
 Fair trial– Everyone who is arrested for allegedly committing an
offence has the right—to a fair trial (fair and public hearing, within a
reasonable time, by an independent and impartial court), right to
remain silent; to be informed promptly of their other rights.

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THE RIGHTS AND FREEDOMS
COMMONLY FOUND IN COUNTRIES’
CONSTITUTIONS
 Cultural, religious and linguistic communities – Persons belonging to
a cultural, religious or linguistic community have the right to participate
in cultural life/practice their religious faith/use their languages, but no
one exercising these rights may do so in a manner inconsistent with any
provision of the Bill of Rights.
 Environment? – Everyone has the right—to an environment that is not
harmful to their health or wellbeing…

Generally, most South Pacific Countries’ Constitutions provide for

civil and political rights, and also cultural rights. Only a few provide
for economic and social rights.

Some Pacific Constitutions also provide for duties of individuals (art.7

Constitution of Vanuatu)

CHECK CONSTITUTIONAL PROVISIONS ON HUMAN RIGHTS IN

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YOUR COUNTRY (FIJI AND VANUATU EXAMPLE)
INTERPRETATION OF
CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS
 Interpretation and application falls to the courts– It has been generally
suggested that fundamental rights provisions based on UDHR and the European
Convention should be subject to a liberal interpretative approach (in
consideration of the changing nature of the society and with a vision to the
future)

 In the Pacific a variety of interpretative approaches have been adopted – ‘a

generous and purposive construction’ should be used (Cook Islands – Police v
Tutakiau, 2001); ‘a fair and liberal’ construction approach (Samoa – Malifa v
Sapolu, 1999); ‘Fundamental Rights should be construed with all the generality
which the words used admit’ (Vanuatu – Timakata v Attorney General, 1992);
Need to be ‘dynamic and creative, sensitive to popular expectations and
democratic values’ (Fiji – Naba v The State, 2001); a more restrictive
interpretation has been adopted in Solomon Islands where it is held that a ‘literal
interpretation’ is to be preferred (Ulufa’alu v Attorney General, 2001); In FSM,
it has been held that if the words ‘are clear and permit only one possible result,
the court should go no further (In Re Paul, 2002)…
- More to come on this (see topic 3 tutorial questions)
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INTERPRETATION OF
CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS
 In the Pacific a variety of interpretative approaches have been
adopted – In the situation of conflict between Human Rights and
customary law, custom may be held to be invalid if it is inconsistent
with human rights law.

 However, in some circumstances, given the importance of custom in

South Pacific countries, cultural considerations and interests of the
local groups and communities may be taken into consideration rather
than applying human rights laws which do not necessarily suit the local
context (In Re MM Adoption Application by SAT, Vanuatu Supreme
Court, 2014; Tepoulolo v Pou, Tuvalu High Court, 2005; Minister for
Provincial Government v Guadalcanal Provincial Assembly,
Solomon Islands Court of Appeal, 1997…).

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CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS AND THEIR
APPLICATION – VERTICAL OR
HORIZONTAL EFFECT?
 Vertical Effect – Constitutional provisions on Human Rights have a
vertical effect when they are only enforceable against the State, its
agents and representatives

 Horizontal Effect – Constitutional provisions on Human Rights have a

horizontal effect when they are enforceable between or against
individuals or private parties. Therefore, individuals or private parties
would be required to take positive actions to give effect to rights or
refrain from doing something which should have been done to give
effect to the right

 To the exception of Tuvalu, it is not clear whether constitutional

provisions for Human Rights have a vertical or horizontal effect –
Article 12(1) of the Constitution of Tuvalu provides: ‘Each provision of
this Part applies…(a) between individuals as well as between
governmental bodies and individuals; (b) to and in relation to
corporations and associations (other than governmental bodies) in13the
same way as it applies to and in relation to individuals…’.
CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS AND THEIR
APPLICATION – VERTICAL OR
HORIZONTAL EFFECT?
 Section 6(1) of Fiji Constitution indicates that Rights are
enforceable against the State and its agents. However, it does not
clearly exclude horizontal effect – Section 6(1) of the Constitution
provides: ‘This Chapter binds the legislative, executive and judicial
branches of government at all levels, and every person performing the
functions of any public office’.

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CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS AND THEIR
APPLICATION – VERTICAL OR
HORIZONTAL EFFECT?
 What really happens in Practice?

-In practice, regardless of whether or not there are textual indicators in the
Constitution, like other constitutional provisions, the ones on this are open
to quite different interpretations.

-The Courts in South Pacific island countries have taken an ad hoc

approach to this question, often making a decision without reference to the
relevant theories (vertical or horizontal) or considering the distinctive
features of the legal and social systems within which rights operate (see
Jennifer Corrin, Reading 3.3 on Moodle).

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CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS AND THEIR
APPLICATION – VERTICAL OR
HORIZONTAL EFFECT?
 What really happens in Practice?
-In Fiji prima facie, the sub-section 2 of article 6 of the Constitution
restricts the application of the bill of rights to State actions.
However, the courts have held that section 6 of the Constitution (formerly
section 21 of the 1997 Constitution) binds the legislative, executive and
judicial branches of government at all levels (see Prakash v Native Land
Trust Board, High Court, Fiji, 2000). ‘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 case of Pafco Employees Union v Pacific Fishing Company Limited
(2002) which involved non-State parties (Pacific Fishing Company and a
number of employees), after hearing evidence, the High Court of Fiji
made an order compelling the respondent to reemploy a number of
dismissed employees in accordance with an earlier award of the
Arbitration Tribunal.

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CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS AND THEIR
APPLICATION – VERTICAL OR
HORIZONTAL EFFECT?
 What really happens in Practice?

-In Vanuatu, the courts have not been consistent in their decisions. In
Family Kalontano v Duruaki (2002) the Supreme court of Vanuatu held
that article 5 of the Constitution could not be enforced against individual
persons. However, in Re the Nagol Jump (1992) and in Public prosecutor v
Walter Kota and Others, (1993) the Court accepted that articles 6 and
article 5 of the Constitution of Vanuatu could be used against a private
body (see Miranda Forsyth, Reading 3.5 on Moodle).

-In Samoa and Solomon Islands (where there is no clear provisions on this
question), the courts have held that in some circumstances there may be
horizontal effect (Loumia v DPP, 1986; Tuivaiti v Sila, 1980).

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CONSTITUTIONAL PROVISIONS ON
HUMAN RIGHTS AND THEIR
ENFORCEMENT
 Enforcement of Rights – Citizens have the right to approach a
competent court, alleging that their fundamental rights, in the
constitution have been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights

 Section 6(1) of Vanuatu Constitution provides: ‘(1) Anyone who

considers that any of the rights guaranteed to him by the Constitution
has been, is being or is likely to be infringed may, independently of any
other possible legal remedy, apply to the Supreme Court to enforce that
right. (2) The Supreme Court may make such orders, issue such writs
and give such directions, including the payment of compensation, as it
considers appropriate to enforce the right’.

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