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Hughes, B --- "Commentary on South Pacific Countries" [2005] NZYbkIntLaw 10; (2005) 2 New Zealand Yearbook of International Law 271


Bob Hughes[*]

The countries of the South Pacific region are small States by most international standards, both territorially and in terms of population. So far as the attainment of sovereignty and independence are concerned they are also relatively new, having emerged, for the most part peacefully, from periods of former colonial rule.[1] Complete independence, where that was in fact the case, was only achieved in the second half of the twentieth century[2]. Niue and the Cook Islands are self governing but remain dependent in varying degrees, both legally and economically, on New Zealand.

In some countries, particularly the Melanesian countries such as Vanuatu, Solomon Islands and Papua New Guinea, there is extreme ethnic, cultural and linguistic diversity. In order to accommodate this diversity much attention continues to be paid to the merits of customary law within the politico-legal systems established at independence. The alleged advantages of legal pluralist models, purporting to accommodate both the received legal system[3] and the local customary systems[4] within the countries concerned, is still a matter of conjecture and dispute. This is so particularly insofar as the interface between these two seemingly inconsistent spheres of authority is not as easy to reconcile, either in theory or in practice, as seems superficially to be the case. In practice there exists a degree of confusion of political and legal authority between the two; that is to say, whether it is custom or the centralised legal State system which has either the immediate or final application when a particular area of dispute arises.

During the period under report the South Pacific countries experienced instabilities of various kinds. In the legal context this has manifested itself as an issue regarding the effectiveness of the legal systems and the establishment of the rule of law. One major aspect of the development of the Pacific Plan by South Pacific Forum in consequence of the Auckland Declaration of April 2003 was to attempt to address these issues for the Pacific countries.

I. Instabilities Associated Directly with
Ethnic Dispute or Unrest

The most notable and extreme example has been the Solomon Islands where the effects of the ethnically related civil unrest which arose in mid 1999 continued to disrupt both social life in, and the running of, the country. This prompted intervention led by Australia at the request of the Solomon Islands government (by way of the so-called RAMSI project) in order to restore the order as well as some degree of effective government in the country. This also raised the concept of what the somewhat troubling concept of “a failed State” and the rights of possibly altruistically motivated neighbouring States to intervene, unilaterally or at the invitation of the remnants of the Government of the “failed” state, to restore legal, social and economic health to such a State.

The attempted coup in May 2000 in Fiji Islands still appeared to have significant consequences for the running of that country. Whilst the Qarase-led coalition of parties, with degrees of orientation towards indigenous Fijian support, were able to form a government and restore some degree of stability and economic well being to the country as well as a government with some prospect of continuity, many of the underlying issues raised by the unsuccessful coup remain unresolved. There have been numerous constitutional issues raised before the courts concerning the application of the 1997 Constitution of the country, the alleged inadequacy of which to protect the rights of indigenous Fijians was taken to have been the focus of the failed coup.

The most notable of these during the period in question was the case of Qarase v Chaudhary.[5] This was an action arising from the claims by the former Indian Prime Minister Chaudhary, ousted after the 2000 coup attempt, alleging the right of his opposition party, the Fiji Labour Party, to representation in the Qarase Cabinet. This claim might seem unusual for a system of government which purports in most respects to be based on the Westminster model. However section 99(2) of the Constitution of Fiji Islands, which appears to have been inserted as a last minute addition in the interests of achieving some Pacific style of political compromise, does, on the face of it, extend such a right of representation to the parties in opposition. The court held that it did and that members of a party in opposition were entitled to be members of the Cabinet in proportion to that party’s membership in the House of Representatives.

Other significant issues dealt with by the courts in Fiji in the period included those concerned with the rights of redress in respect of breaches of the human rights provisions in the 1997 Constitution which have become the focus of increasing litigation in that country.[6] This has extended, for example, to the constitutional rights to a fair trial of a soldier before a court martial arising out of issues pertaining to the November 2000 rebellion within the military.[7]

II. Economic and Resource Constraints

The small and relatively undeveloped economic and resource bases (including both human and natural resources) of the South Pacific countries have raised issues about their viability as States. They vary somewhat in this regard. Fiji Islands, despite the setbacks brought by the 2000 coup attempt, has been largely able to recover economically through tourism and some commercial and industrial development. Samoa has been able to achieve a great deal in terms of economic management and by fostering its largely remittance based economy. Yet other countries, whilst they do have significant natural resources, particularly those which are ocean based, have not been able to harness those resources effectively. Nauru is a special case in that its major economic resource to date of phosphate mining is rapidly dwindling. Niue’s population has declined to something approximating 800, and has suffered the devastating effects of a major cyclone.[8]

Some countries have endeavoured to open themselves to international investment through, for example, the establishment of international company and trusts regimes which carry particular tax advantages and exemptions or facilitate profit shifting exercises such as transfer pricing. Vanuatu, for example, has promoted itself since independence in 1980 as a tax haven with no income tax and no disclosure provisions relating to international companies and banks. This has attracted the ire of the OECD countries claiming that tax havens of this nature lend themselves to money laundering practices. Similarly so with other small countries such as Nauru which, in their efforts to attract often questionable international banking and foreign investment, failed to fall into line by the enactment of legislative measures associated with anti-money laundering and mutual co-operation measures in respect of international criminal law regimes. This has now been rectified to a large degree by the enactment by the South Pacific countries of packages of legislation in areas such as Anti-Money Laundering, Proceeds of Crime and Financial Transactions Reporting.

III. Law and Culture and Law Reform Issues

As already noted, the South Pacific countries were left at independence with legal systems modelled on the law of the former colonial country applicable at a fixed point in time - usually at or in some cases before the time of independence. This is what has been termed “received law” and sometimes “introduced law”. In the case of Vanuatu the body of received law was both French and British, reflecting the former condominium status of the New Hebrides. In large part it was assumed that received law would provide a kind of backdrop for the further development of an autonomous legal system for these countries under which common law (i.e. received law) would be adapted to meet local circumstances and conditions. For one thing it left open the possibility of development of a “localised” legal system which integrates features of local custom and culture.

The reality has been otherwise, however. The seemingly irresolvable dichotomy between customary and received law has contributed to this in many ways. Other factors include the absence of effective law reform agencies and ineffective parliamentary structures (including committee systems). In Fiji there is a Law Reform Commission which has acted effectively in reforming key areas of law. In some other cases, such as Solomon Islands and Vanuatu, law reform bodies have been formally created but have not been assigned resources to enable them to function effectively. Rather than address fundamental law reform issues, parliaments of the region often tend to concern themselves with issues other than law making or law reform and have not contributed very effectively to the transformation of the law in accordance with original expectations at the time of independence.

IV. Ongoing Corruption and Governance Issues

Corruption continued to be a key issue for government in the South Pacific region generally, although instances where this was subject to specific litigation seemed to have declined somewhat in this period compared to earlier periods. The prosecution of corrupt public officials was a key element of the RAMSI taskforce in the Solomon Islands where corruption was seemingly endemic in that country. Allegations of corruption have covered a broad range of types of corruption extending from election fraud[9] to abuse of public office.

The quality of governance is another, though not entirely dissimilar, issue. As mentioned above, parliaments of the regional countries are not particularly well resourced. They often experience difficulties in functioning according to the assumptions of the model (usually the Westminster model) which was adopted at the time of independence. There has been confusion as to compliance with key institutional aspects of the parliaments and their procedures. The constitutional role of the Speaker, for example, was a recurrent theme which was the subject of litigation, for example, in Kiribati and in Vanuatu.[10] Constitutional challenges relating to the pardoning power of the Head of State or the manner of all too frequent processing no confidence are frequent matters for litigation.[11]

V. Land Issues

Land issues continue to be a constant source of both dispute and litigation in the South Pacific countries. This is a seemingly inevitable consequence of the shortage of land in these countries. As well there are challenges put on customary systems of land ownership as members of customary groups in Pacific countries move away or inter-marry.[12] Another factor which frequently leads to dispute is the pressure put on customary land ownership systems by development and commercialisation of land use and ownership.

Many disputes which have come to be dealt with by customary courts, such as by Island Courts in Vanuatu and similar courts in other Pacific countries[13], are frequently subject to further appeal to the superior courts. This is usually on natural justice grounds which leads, in turn, to a clogging up of the superior court system and consequent delays. The irony here is of course that in the customary court situations, those who are qualified to adjudicate on custom are most often related to one or more of the parties and hence subject to potential bias according to common law concepts of natural justice. There are also largely unresolved issues in respect of land (as indeed for many other customary law issues) where customary practices come into conflict with human rights principles, either as enshrined in many of the Pacific constitutions or by way of adopted international treaties and conventions. In Samoa, for example, the issue of the rights of village leaders to banish family members from the village was held to constitute a breach of constitutional rights and damages were ordered against the village.[14]

VI. The Effects of Globalisation and International Relations

Most of the South Pacific countries were engaged in ongoing negotiations in relation to admission to the World Trade Organisation. To date only Fiji has concluded such negotiations. The other countries are experiencing various difficulties in the negotiation processes, again attributable in some degree to lack of human resources and particularly to that of experienced negotiators. There are also serious reservations in many quarters about the merits of WTO membership so far as smaller countries are concerned.

In the area of international trade the Pacific Island countries have been grappling with the ratification and implementation of the Pacific Island Countries Trade Agreement (PICTA) and the Pacific Agreement on Closer Economic Relations (PACER), both of which were executed in Nauru 2001 and include Australia and New Zealand as parties. Both purport to implement a free trade zone for the Pacific region as a response to the effects of globalisation and the absorption of the South Pacific countries into the global economy.

[*] Head of the School of Law, University of the South Pacific.

[1] For the most notably from Britain.

[2] Tokelau has not yet achieved independence.

[3] Referring to the residue of the former colonial legal system usually pegged at a particular cut-off date.

[4] Usually identified with the highly diverse customary practices existing in the country prior to independence.

[5] [2002] FJCA 6; final judgment July 2003.

[6] See Abhay Kumar Singh v DPP, unreported, High Court of Fiji, Criminal Appeal No AAU0037 of 2003; State v Khan [2003] FJHC 55.

[7] Naduaniwai v The Commander Republic of Fiji Military Forces and the State, unreported, High Court of Fiji, Misc. Case No. HBM 32 of 2004.

[8] Countries such as Tuvalu, Tonga, Samoa and Tokelau are all such that large numbers of their citizens reside in countries such as New Zealand, Australia, and the United States. In the case of atoll states, such as Marshall Islands, Cook Islands, Tuvalu and Kiribati, there is the additional threat of the rise in sea levels as a result of global warming.

[9] See for example, Tatireta v Tong [2003] KIHC 1.

[10] See for example Sope Maautamate v Speaker of Parliament [2003] VUCA 5; Vohor v Abiut [2004] VUSC 5; Teangana v Tong [2004] KICA 17; and In re the Constitution, Application by Te Beretitenti [2003] KIHC 91.

[11] See for example, In the Matter of the Constitution of Tuvalu; Application by the Attorney General for the interpretation of the Constitution, unreported, Supreme Court of Tuvalu, 2004.

[12] For a discussion of some of the problems in this context, see Majoria v Jino [2003] SBHC 29.

[13] For example the Native Land Court and Native Land Appellate Court of Cook Islands and Niue, and the Lands and Titles Court of (Western) Samoa; Land Courts in Tuvalu, Local Courts at first instance, and Customary Land Appeal Courts in Solomon Islands. For a more extensive survey of the development and jurisdiction of these courts see Donald Paterson, ‘Some Thoughts about Customary Land Working Paper’ (2001) 5 Journal of South Pacific Law 17.

[14] Leituala v Pitamoa and others, unreported, Supreme Court of Samoa, Vaai J., 13th August 2004.

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