New Zealand Yearbook of International Law
The year 2005 saw relative stability in the South Pacific countries compared to the immediately preceding half decade. The Fiji Islands, the largest country economically and demographically appeared to be undergoing significant economic growth and the recipient of increasing foreign investment. Countries such as Samoa, Kiribati, Vanuatu and Tonga appeared also to be the beneficiaries of economic growth. The situation in the Solomon Islands continued gradually to improve.
Tonga was clearly an exception. The country experienced political unrest through strikes and demonstrations by members of the public service which expanded into protests against the monarchy or at least to demands for substantial political reform in the country. This development readily aligned itself with Tonga’s pro-democracy movement. The movement was established in the 1970s. Towards the end of the year the movement had laid demands before the ruling monarchy and the parliament which it controls for the introduction of substantial democratic reforms in the country with some fears expressed that further civil unrest would ensue if these demands were not accommodated.
In Fiji Islands there have been recent concerns raised about political instabilities which might emerge with the advent of the 2006 general election, particularly given the splitting of the indigenous vote Fijian by the creation of new parties. Considerable political tensions also arose with the introduction to Parliament of a bill entitled the Promotion of Reconciliation Tolerance and Unity Bill 2005. The Bill was objected to by several non-government organisations and especially by the Royal Fijian Military Forces, the latter engaged in an active programme of opposition to the Bill. Commodore Bainimarama the Commander of the Royal Fijian Military Forces openly challenged the Bill claiming intervention against the government if the enactment of the Bill were to lead to the release of convicted leader of the 2000 coup attempt George Speight and his other co-conspirators.
The Bill purports to set up a Reconciliation and Unity Commission and a Promotion of Reconciliation Tolerance and Unity Council. Other objectives include the establishment of mechanisms and procedures for the promotion of reconciliation, tolerance and unity between all groupings in the Fiji Islands and, amongst other things, the implementation of restorative rather than retributive justice principles relating to the grant of reparation to victims of gross abuses of human rights and the granting of amnesty to persons who make full disclosure of facts relevant to political as opposed to criminal objectives.
It is the last of these which has been perceived as the most objectionable by opponents of the Bill, which is still under consideration by a Joint Parliamentary Committee. In furtherance of it, section 7(a) of the Bill permits the Commission to establish an Amnesty Committee. Section 7(e) permits the Commission to make a recommendation to the President for the grant of amnesty in respect of any person whose application has been the subject of a full inquiry by the Amnesty Committee.
Restorative justice is a principle which is often promoted in the Pacific region as one which is consistent with or embodied in customary systems and therefore traditional customary values. The objective of it, put rather simply is the restoration of the offender to the community rather than the extraction of punishment for the wrongdoing. It is easily set off against the principles of retributive justice which are, rightly or wrongly taken to be indicative of what are variously described as introduced, received or colonial legal systems.
Towards the end of 2005 the Bose Levu Vakaturaga (the Great Council of Chiefs) in the Fiji Islands drafted a bill called the Customary Reconciliation Bill which was delivered to the Attorney-General for presentation to Parliament. Section 186 of the Constitution of Fiji states that the Parliament may enact legislation to provide for indigenous Fijian customs and traditions. This section falls short of the provisions of earlier constitutions which provided for the direct recognition of custom in the country. The intention of the draft bill appears to be to implement section 186. However, it will give rise to concerns as to the impact which legislation in this area might have on the formal adjudication process in the country as well as how far its provisions might conflict with the entrenched rights and freedoms provisions of the Fiji Constitution.
The adoption and development of strategies for the implementation of the Pacific Plan was a major event for the South Pacific region in 2005. The particular issues to be addressed under the Plan, as earlier proposed, include the likes of regional stability, economic development, elimination of corruption and the development of cooperation and integration between Pacific Island countries. These were the subject of commentary in the 2004 report.
The Pacific Plan was adopted at the meeting of the leaders of the Pacific Islands Forum in October 2005 at a meeting in Kalibobo Village, Madang, Papua New Guinea. The Plan, in the form finally adopted, was the product largely of work undertaken by a task force overseen by a Core Leaders’ Group and with assistance and input from the Pacific Islands Forum Secretariat.
The formal goal of the Plan is to enhance and stimulate economic growth, sustainable development, good governance and security for Pacific countries through regionalism. Regionalism is stated in clause six of the plan to involve countries working together for their joint and individual benefit without any challenge to their national sovereignty. It disclaims any intention to replace any national programmes, only to support and complement them. By clause ten of the Plan three different forms of regionalism are adopted. These are regional cooperation (dialogues and processes established between governments), regional provision of public goods and services (pooling of national resources for example in the areas of health and education) and regional integration (for example by lowering market barriers between countries, both physical and technical).
A number of regional initiatives are identified ‘priority areas’ in the Plan. These fall into the general areas of economic growth, sustainable development, good governance and security. Some particular initiatives within this framework are put forward for immediate implementation; some are agreed in principle whilst others are stated to require further analysis. Particular attention is to be given to the needs of Small Islands States.
The Plan sets out a ten year implementation framework. One of the targeted strategies is for the development of appropriate regional policies by member countries. Regional organisations are expected to play a central role in the implementation of the Plan. A key strategy is the building of strong partnerships with regional and national stakeholders. The Pacific Islands Forum Secretariat is to have general charge of implementation of the Plan, although provision is made for a Pacific Plan Action Committee to provide input to and oversight of the work of the Forum Secretariat.
The Plan creates clear expectations for regional legal organisations as much as it does for economic and social organisations. One example is the Pacific Islands Law Officers Meeting (PILOM). PILOM is the annual meeting of the senior governmental law officers from the Pacific region (including Australia and New Zealand). In the past PILOM has been a forum essentially for the exchange of information and for development of cooperation between participants, although it has always functioned in an unstructured way in this regard.
At the September 2005 annual meeting held in Port Vila Vanuatu, PILOM resolved, partly in light of the expectations of Pacific Plan, to adopt a more structured approach to its business. It commissioned a review of its role by an established subcommittee and coordinated by the Forum Secretariat with a report to be presented to its 2006 meeting. In particular it resolved to establish a permanent secretariat, to establish an online network for continuing cooperation and support for its members and to play an enhanced role in legal development in the region.
The Pacific Judicial Conference held its biannual meeting in Port Vila, Vanuatu in July 2005. One of the matters considered by the Conference was a draft report of the future of judicial training and development for the Pacific region as a whole. This followed completion and review of the former Pacific Judicial Education programme funded by various donor agencies which terminated at the end of 2004. A draft review report has been prepared relating to the establishment of what will be known as the Pacific Judicial Development Programme which could be implemented in 2006.
Some Pacific countries are still reliant on unqualified and untrained magistrates, although in the case of customary courts, such as the Island Courts in Vanuatu, knowledge of custom rather than formal professional legal qualifications is more appropriate. In Nauru the position is more desperate in that the absence of qualified magistrates in that country goes hand in hand with the absence of qualified government legal officers and legal practitioners.
Continuing legal education and training for legal practitioners remains a concern within the region. The Fiji Islands has until recently been the only country in the region with a scheme of mandatory continuing legal education for its practitioners. In late 2005 however the Parliament of Vanuatu passed legislation to impose such a requirement for legal practitioners in that country. Some countries in the region have received support for training and assistance in the government legal sector particularly. In Papua New Guinea, the Solomon Islands, Fiji and Vanuatu the Australian government has established Legal Sector or Law and Justice support programmes providing both training and assistance to this sector. Similar limited support programmes are provided by other donor agencies.
The Pacific Islands Legal Information Institute (PacLII) operated by the University of the South Pacific School of Law received confirmation during 2005 of a extended financial support for its operation over the period 2006-2010. The main supporting agencies were NZAID and AusAID. PacLII is an online law reporting agency for the Pacific region. At the end of 2004 it took on the role of official law reporting agency for Papua New Guinea. PacLII has established a database of international treaties and conventions affecting Pacific Island countries. This is known as the Pacific Islands Treaty Series and this is fully accessible via the PacLII site.
The regulation of the use and ownership of land continued to be a key area of concern within all of the Pacific countries. This is to be expected in situations which involve growing populations and limited availability of land. In all countries some formal recognition is given to the customary regulation and use of land, although there are differences as to the way in which customary law in respect of land or other areas interfaces with formal or received legal systems.
In Vanuatu some doubt was cast on the constitutional validity of the Customary Land Tribunal Act 2001 which purported to establish independent land tribunals designed to deal with customary land disputes. This arose in a decision of the Court of Appeal of Vanuatu in Livo v Boetara Trust and Valele Family v Touru. Although the comments were obiter they throw some doubt on the continuing operation of the Land Tribunal system which was created to alleviate the burden of dealing with the plethora of customary land disputes away from both the Island Courts and the Supreme Court.
The question of formalising customary land dispute resolution processes in the Pacific region is dogged by a number of issues, not the least of which is that of articulating how natural justice provisions are to be applied to the proceedings which require the application of customary law. The composition of customary courts is one issue which gives rise to frequent claims of bias, bearing in mind that the adjudicators must be knowledgeable in custom and, at the same time, this often gives rise to close familial relationships with one or both of the litigants. Just how far the received legal rules relating to apparent bias are to be applied in this context remains a difficult question.
In Samoa in Peniamina v The Lands and Titles Court and Others this was one of issues which arose in respect of an application for judicial review of a decision of the Lands and Titles Court. This Court has exclusive jurisdiction with respect to customary land matters in Samoa. The Court held that there was no positive and substantial injustice arising out of the fact that one of the current judges formally appointed to the Court was both related to the parties, and, originally, one of the potential parties to the proceedings. The Court of Appeal commented that in the case of the Land and Titles Court if the affinity of judges with each other leads to disqualification, then every Land and Title Court Judge in Samoa would have to disqualify him or herself for the same reason. Thus, it was said, no case could ever be heard, because that Court has exclusive jurisdiction over matters relating to matai titles and customary land. Any sitting must include at least two Samoan Judges, and their qualification for appointment is the holding of a matai title, which is one registered under the Land and Titles Act itself. It held that it would not be reasonably possible or practicable to bring in overseas Judges to take their place, as they would lack this necessary qualification.
In Kiribati issues were raised in Attorney General v Nakau as to the validity of the acquisition by the government of title over lands formerly held under customary title. The question was whether the takeover of the lands and the subsequent establishment of a system of indefeasible title might be impugned some 36 years after it had occurred, thereby opening the way for the recognition of customary ownership claims. The court declined to open the way for such claims.
Somewhat similar issues arose in Vanuatu in the Court of Appeal decision in Kalomtak Wiwi Family v Minister of Lands. Again the claims were decided adversely to the customary owners seeking compensation in respect of the appropriation of the lands under the government regime for dealing with such lands under an earlier version of the Land Acquisition Act 1992.
In Tonga the decision of the Court of Appeal in Tukuafu v Latu concerned the position of the registered holder of a tax allotment to assert his title and right to possession against another party to whom rights of use and possession were subsequently granted by the Monarch. A tax allotment is one which, like town allotments, is created out of a Royal Estate and in respect of which rights of hereditary succession might apply. The Monarch had purported to grant rights to another to build a resort on the land in question in effective denial of the rights of the registered holder of the land. The appellant’s claim in the Land Court had been denied.
The court held that this was a matter which could legitimately be dealt with by the Court of Appeal on appeal from the Land Court. It also held that the Land Court had erred in holding that the appellant’s title obtained by right of succession required some intervening act of legitimation on the part of the Monarch or the Minister. Additionally the fact that it was once part of the Royal Estate did not prevent it being created as a tax allotment with the availability of consequent rights of succession.
In Toailoa Law Office v Duffy the Court of Appeal of Samoa held that article 9(1) of the Constitution of that country granting the right to a fair trial was infringed. In proceedings in the District Court the appellant had been served with process papers a couple of days before the hearing and some parts of the papers were illegible. The court had failed to grant an adjournment on request.
In Fiji Islands the provision granting the right to a fair trial under section 28 of the Constitution was held by the Court of Appeal in Barbados Mills and Ors v The State to be infringed by the establishment of a general court martial which proceeded to convict certain members of the Counter-Revolutionary Warfare Unit who had allegedly been involved in a mutiny in 2000. The grounds included: firstly that the Commander of the Royal Fiji Military Forces was both the convenor of the court martial and the person alleged to be the object of the mutiny; secondly, the Commander had chosen the members of the court martial; and, thirdly, the members of the court martial were all subordinate in rank to the Commander himself.
In Nadan and McCoskar v the State the High Court of Fiji declared unconstitutional certain provisions of the Penal Code of that country which prohibited sexual acts between male persons; sub nom, offences against the order of nature. It was found that the purported establishment of such offences breached section 38 of the Constitution of Fiji Islands protecting unfair discrimination on the grounds, inter alia, of sexual orientation.
[∗] Professor and Dean, Faculty of Arts and Law, University of the South Pacific, Vanuatu.
 On this issue see Jennifer Corrin, ‘The Status of Customary Law in Fiji Islands after the Constitutional Amendment Act 1997’ (2000) 4 Journal of South Pacific Law 37.
 PacLII, online: <http://www.paclii.org> (last accessed on 7 December 2005).
  VUCA 10.
  VUCA 3 (26 April 2002).
  WSCA 1 (Court of Appeal of Samoa).
 Meaning ‘chiefly’.
 See the definition in s 2 of the Act.
  KIHC 51 (23 August 2005).
  VUSC 15.
  TOCA 12; CA 05 of 2005 (15 August 2005).
  WSSC 7 (17 May 2005).
 Unreported, Criminal Appeal Nos 35, 43, 46 and 40 of 2004.
  FJHC 1 (26 August 2005).