IS THERE HORIZONTAL OR VERTICAL ENFORCEMENT OF CONSTITUTIONAL RIGHTS IN VANUATU? FAMILY KALONTANO V DURUAKI COUNCIL OF CHIEFS
MIRANDA FORSYTH*
An important question to arise in relation to fundamental rights
provisions in constitutions is whether these rights may be enforced horizontally
(i.e. against private bodies and individuals) or just vertically against the
state. Some constitutions in the region specify whether the human rights
provisions are enforceable against private individuals and bodies or only
against the state. For example, section 21(1) of the Fijian Constitution
provides that the Bill of Rights chapter only binds the legislative, executive
and judicial branches of government and all persons performing the functions of
any public office.[1] In other
constitutions the matter is not directly addressed and it is left to the courts
to determine.[2] The Constitution of
Vanuatu falls into the latter category, merely providing in article 6(1) that
“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.”
The issue of whether article 6 should be held to apply
horizontally most recently came before the Supreme Court in the case of
Family Kalontano v Duruaki Council of
Chiefs.[3] The case was a
constitutional petition by a family against the Duruaki Council of Chiefs and
other individual chiefs. The petitioning family alleged that their rights under
article 5(1)(d), (g) and (k) of the Constitution, which are the rights to
protection of the law, freedom of expression and equal treatment under the law
or administrative action, had been breached by the respondents. The allegations
apparently arose in the context of the determination by the respondents of a
contest about chiefly title between the petitioning family and another family.
The respondents applied to strike out the petition and the court agreed to do
so. The court provided a number of different grounds for its decision, but
clearly stated that its ratio decidendi for the decision was that the
rights in article 5 could not be enforced against individual persons. This
decision is disturbing because the court did not consider in its judgment any
possibility that the rights may be applicable horizontally or review any
previous decisions before coming to this conclusion.
A review of previous
case law in relation to this issue shows that the approach of deciding the issue
without discussion and without reference to previous decisions is characteristic
of the various courts before which the issue has been raised. However, the
courts which have decided this issue previously have reached different
conclusions to that reached by the court in the Duruaki case. Prior to
the Duruaki case the issue had arisen once before the Court of Appeal and
twice before the Supreme Court. In all three instances it was held that the
rights could be applied horizontally. In the Court of Appeal case, In re the
Constitution of the Republic of Vanuatu, Infant
P,[4] the petitioners were a
mother and her child and they were petitioning against the child’s
adoptive mother and members of her family. The Court considered that article
6(i) “is extremely wide” and it ordered that the Supreme Court hear
the petition. Unfortunately there is no record of the rest of the history
concerning the case. Notably the court did not consider there to be any
difficulty with article 6 being used as against individuals, although there was
no indication that the court had considered the possibility that the rights are
only binding vertically.
The next time the issue came to court was in
the Supreme Court case of In re the Nagol Jump, Assal & Vatu v Council of
Chiefs of Santo.[5] The
petitioners claimed that their rights under section 5(1)(g), (h), (i) and (k) of
the Constitution had been breached by the Council of Chiefs of Santo in relation
to their determination of the issue as to whether the nagol jump, a
custom from Pentecost, could be performed in Santo. The court found that the
petitioners’ rights had not been breached, but accepted, again without any
discussion of the issue, that article 6 could be used to bring a petition
against a private body, which in this case was the chiefly council.
The
second time the issue arose in the Supreme Court was by way of obiter
dicta in a criminal case, Public Prosecutor v Walter Kota and Ten
Others.[6] That case concerned the
prosecution of some chiefs and their assistants for the kidnapping of a woman to
force her to return from Vila to Tanna in accordance with a chiefly decision. In
his reasoning, Justice Downing clearly envisaged that the powers of chiefs in
custom are limited by the Constitution as he stated “I think that the
Chiefs must realise that any powers they wish to exercise in Custom is subject
to the Constitution of the Republic of Vanuatu.”
This survey of
the existing case law demonstrates that the weight of authority is clearly in
favour of the enforceability of the rights against private persons and bodies as
well as the state. It is therefore unfortunate that such a survey was not
conducted in the Duruaki case in which the court reached a contrary
decision. It is to be hoped that next time this issue comes before the courts it
will be given the careful consideration that it deserves. It is an issue of some
significance in Vanuatu today where there are a number of private bodies that
have considerable importance in regulating the community, such as chiefly
councils, social organisations and churches. In particular, in the context of
calls for greater powers by chiefs it is relevant that three out of the four
cases involved petitions against chiefly councils. If chiefs are going to be
given more authority to resolve disputes and assist in the regulation of
society, either formally through legislation or informally through police
diversion policies as is presently occurring, it should be clear whether or not
in exercising their duties they are bound to comply with the fundamental rights
and freedoms in the Constitution. Duruaki suggests they should not be.
The weight of precedent and policy considerations suggests that they
should.
* Lecturer, School of Law, University of the South Pacific, Port Vila,
Vanuatu[.]
1 See the Constitution
of Tuvalu for an example of a constitution that specifies that the provisions
apply between individuals as well as between government bodies and
individuals.
[2] For a general
summary of other jurisdictions see Jennifer Corrin Care et al, Introduction
to South Pacific Law (1999),
86.
[3] [2002] VUSC 32
(“Duruaki
Case”).
[4] [1984] VUCA
2.
[5] [1992] VUSC
5.
[6] [1993] VUSC 8.