Topic 11 Tutorial & Forum Feedback

Sem. 1 / 2022

Navneel Sharma

General note: This is general feedback and not meant to be all conclusive answers. You should prepare all
answers for yourselves, based on the readings and all other materials such as the lecture and Topic Guide.
Various other aspects may be brought to light e.g. in the tutorial and forum discussions. In the tutorials and
forums, you should always formulate your own answers. Do not give generic answers based on last year’s
tutorial/forum questions. (MK)

Activity 11.1

1.) Look at the Samoan provision regarding fundamental rights. Locate the European HR
Convention in the Readings. See the similarity between the two. How are they similar?

The Fundamental Rights provision in the Samoan Constitution is similar to the one that is
provided for in the European Convention in that it is specific and detailed. These allows for a
more defined and gives an accurate understanding of the perception on Rights and Freedom.
An example is in the table here:

Samoa Article 8: Freedom from Article 4: EU Convention Prohibition of

forced labor
1) No person shall be required to
perform forced or compulsory
labour.
(2) For the purposes of this Article, 3. For the purpose of this Article the term
the term "forced or compulsory
labour" shall not include:
(a) Any work required to be done in
consequence of a sentence of a
Court; or
(b) Any service of a military
character or, in the case of
conscientious objectors, service
slavery and forced labor
1. No one shall be held in slavery or
servitude.
2. No one shall be required to perform
forced or compulsory labour.
“forced or compulsory labour” shall not
include:
a. any work required to be done in the
ordinary course of detention imposed
according to the provisions of Article 5
of this Convention or during
conditional release from such
detention;
b. any service of a military character or,
in case of conscientious objectors in
countries where they are recognised,
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 exacted instead of compulsory service exacted instead of
military service; or compulsory
military service;
(c) Any service exacted in case of an c. any service exacted in case of an
emergency or calamity threatening emergency or calamity threatening the
the life or well-being of the life or well-being of the community;
community; or d. any work or service which forms part
of normal civic obligations
(d) Any work or service which is
required by Samoan custom or
which forms part of normal civic
obligations.

2.) Compare these then with the Vanuatu- and Cook Islands provisions. Note the
differences in approach?
The provisions are organized in a general way, when comparing Part 1 of the
Constitution of Vanuatu which contains individuals’ fundamental rights and duties,
and Part IVA of the Constitution of Cook Islands. Whereby this leads to improved
development in future and can be easily read and interpreted by every individual.

Activity 11.2
Before going any further log on to Paclii and examine the constitutions of Kiribati,
Nauru, Solomon Islands, Cook Islands and Vanuatu. What you are asked to do is to
identify which approach is taken there and why? Once you have made you decision
then you can read on. Which approach is used in: (1) Kirabati; (2) Nauru; (3)
Solomon Islands; (4) Cook Islands; and (5) Vanuatu?

Country Approach Reason

Kiribati Detailed This is because constitutions are recognizing the
provision and existing Universal declaration of fundamental
general human rights and other international documents
provisions that exist, it gives such provisions a declaratory

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 combined- legal context to be applied locally. Ensuring that
Section 3 courts apply these provisions strictly and do not
expand the scope of these provisions as the words
are expressed.
Nauru Detailed Same as above
provision and
general
provisions
combined-
Section 3
Solomons Detailed Same as above
provision and
general
provisions
combined-
Section 3
Cooks General A general approach has been used to keep the
Provisions context open to courts interpretation according to
the situation and is easier to read. General
provisions allow flexible interpretation and a
purposing interpretation as well to give light to the
meaning or purpose if the provisions. The flexible
approach provides scope for adaption in the Pacific
region, sometimes enabling consideration of
cultural practices and norms when interpreting
these human rights provisions in context. Further,
these two constitutions have a recognition type of
approach, it provides for the protection and
enforcement of fundamental right and freedoms.
Both has the word 'recognizes' that implies an
acknowledgment of something that already exists.
Vanuatu General Same as above
provisions

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Activity 11.3
Refer again to Ayamiseba v Attorney General [2006] VUSC 21; CC 12-06 case
extract, available in the readings for this topic on Moodle. Compare the reasoning
and outcome in that case to the reasoning and outcome described above in Ong
Ah Chuan v Public Prosecutor [1981] AC 648.
1. Do you think Ayamiseba’s case has been decided consistently with the Privy
Council decision in Ong Ah Chuan v Public Prosecutor?
Yes, the Ayamiseba’s case has been decided consistently with the Ong case. As in
the Ayamiseba’s case, the courts held that the Section 17A of the Immigration Act
is not inconsistent or in conflict with section 17 of the Act and neither it was
inconsistent with the Constitution. Hence, the appeal was quashed. Similarly, in the
Ong case, the courts held law required that sentences of death should be imposed.
There was no substance in the contention that this requirement of the law was
inconsistent with the Constitution. Hence, the appeals was dismissed.

2. What is different about the constitutional provision under consideration in

Ayamiseba’s case?

The constitutional provisions were expressed in relation to Ayamiseba's case where

the fundamental rights could be subject to restriction by law for non-citizens under
section 5.1. meaning that non-citizens do not enjoy the same level of freedom as
citizens of Vanuatu, the rights of non-citizens can be restricted by written law and that
is exactly what the Immigration Act did in empowering the minister under S174 of the
Act. The court did not apply principles of natural justice.

3. How might this difference explain the different outcome in that case?

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When comparing both, it can be said it difference is seen as how fundamental
freedom of rights such as right to life, right to movement and freedom of speech is
imposed on certain individual weather non-citizens and citizens.

Activity 11.4
Finally, read Jennifer Corrin’s article ‘From horizontal and vertical to lateral:
Extending the effect of human rights in postcolonial legal systems of the South
Pacific’. This is available in your readings on Moodle for this topic.
1.) What is the writer referring to when she uses the terms ‘horizontal’, ‘vertical’
and ‘lateral’?
Horizontal- under horizontal approach the human rights may be enforced against
individuals. It also refers to that historical origins of human rights are irrelevant and
that rights involve fundamental norms. Therefore, it should apply across the whole
legal system.
Vertical- under vertical approach the constitutionally guaranteed rights apply only
to protect the individuals against violation of those rights by the state or by the
public bodies or officers acting under state authority.
Lateral- under lateral approach, it involves extending the application of human
rights beyond the state, to make them enforceable against traditional leaders.
Hence, it allows human rights to be enforced in customary societies. For instance,
in rural areas.

2.) What is meant by the cultural relativist- and the universalist approach to Human
Rights?
Cultural relativism has precise relevance in the field of human rights. It challenges the
‘universalist’ approach, which regards human rights as universally applicable across
cultural boundaries. Even if a universalist approach is taken, the distinguishing
features of local legal and social systems are still of relevance to a meaningful
deliberation on the scope of application of human rights, particularly where there are
no textual indicators available to guide the courts. For instance, in

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deciding whether rights impose obligations on private individuals generally, the
nature of a particular right may supply the answer.

3.) How would the approaches discussed in the above questions work or not work
in your own jurisdiction?

Fiji is signatory to the various Human Rights Conventions. Best practices are
incorporated into legislations making it mandatory for people, business,
communities and the government to comply with. Various avenues help protect
the citizen against violations of human rights i.e. the police, human rights
commission, various tribunals and the courts.