WHEN UNWRITTEN CUSTOMARY AUTHORITY OVERRIDES THE LEGAL
EFFECT OF CONSTITUTIONAL RIGHTS: A CRITICAL REVIEW OF THE TUVALUAN DECISION IN
MASE TEONEA V. PULE O KAUPULE & ANOTHER
’DEJO
OLOWU[*]
INTRODUCTION
That the legal systems of the independent states and the self-governing territories of the South Pacific are steeped in customs and traditional values is no longer in debate. One phenomenon that has however been problematic in these countries is the harmonisation of the indigenous customary values of these territories with the tenets of the human rights guarantees contained in their own constitutions.[1]
As many writers have observed, all the small island countries of the South Pacific, with the exception of Niue, have written constitutions that stipulate the fundamental freedoms and human rights that are enforceable in the law courts.[2] Tuvalu is not an exception.
The Constitution of Tuvalu contains a Bill of Rights[3] that comprises of the fundamental right to life;[4] the right to personal liberty;[5] the right to freedom from slavery and forced labour;[6] the right to freedom from inhuman treatment;[7] the right to freedom from deprivation of property;[8] the right to privacy of home and property;[9] the right to the protection of the law in criminal and civil proceedings;[10] the right to freedom of thought, religion and belief;[11] the right to freedom of expression;[12] the right to freedom of assembly and association;[13] the right to freedom of movement;[14] and the right to freedom from discrimination.[15]
One must not fail to observe however that despite these elaborate provisions of the Tuvaluan Constitution which are akin to the civil and political rights found in numerous human rights treaties and the constitutions of many nations of the modern world, the same Constitution prescribes the “protection of Tuvaluan values” as a unique limiting clause on the legal effect of some of these rights.[16]
It was the effect of these stated exceptions that constituted the gravamen of the decision in Mase Teonea v. Pule O Kaupule & Another,[17] and opens a new vista to understanding the delicate relationship between human rights and customary law in the context of constitutionalism in Tuvalu.
What were the issues for determination before the court? How did the court resolve those issues? Of what value is the judicial approach in this case to the development of human rights jurisprudence in Tuvalu and by extension, to other domestic legal systems of the South Pacific? This review examines the facts of the case, the textual significance of the Tuvaluan Constitution and its implications for human rights protection in Tuvalu where customary paradigms hold significant constitutional implications.[18]
BRIEF FACTS OF THE CASE
The applicant, Mase Teonea, was a holder of Fiji Passport but a Tuvaluan by origin. He was married to a woman from one of the component communities of Tuvalu who also carried a Fiji Passport. By virtue of his theological training in New Zealand and Fiji, the applicant had started a Bible Study group in Funafuti in 2001 with the ultimate objective of setting up a church. The church materialised in 2002 and was duly registered under the Tuvaluan Religious Bodies Registration Act as the Tuvalu Brethren Church in the same year.
Once the church stabilised in Funafuti, the applicant and his group decided to expand their missionary activities to the outer islands of Tuvalu in 2003. However, prior to their arrival there, the Falekaupule of Nanumaga (i.e. the Council of Elders that functions as a local government council for the Nanumaga atoll of Tuvalu)[19] had adopted a resolution in 2001 banning “new religions” other than the Ekalisia Kelisiano Tuvalu (EKT), the Jehovah’s Witnesses, the Bahai Faith, and the Seventh Day Adventist Church from the Nanumaga atoll.
Upon the arrival of the applicant and his group on Nanumaga in 2003, the Tuvalu Brethren Church soon attracted members of the community who later refused to make further “contributions” to the EKT that had for long enjoyed the support of the entire community. Based on the recalcitrant attitude of the members of the Brethren Church towards community obligations, the Falekaupule adopted another resolution expressly ordering the applicant to “stop advocating his religion.”
Through various overt and covert acts, including the stoning of the church and its members and advice from some Nanumaga youths, the Police, and the Pulefenua of Nanumaga Falekaupule,[20] the applicant had no choice but to leave the community as his security could no longer be guaranteed.
The applicant later instituted an action through originating summons challenging the prohibition of his church work as a violation of his rights under Sections 23(1), 24(1), 25(1) and 27(1) of the Tuvaluan Constitution.[21] As an additional and alternative ground, the applicant claimed that the resolution of the Falekaupule prohibiting his church was ultra vires the powers conferred on the body under Section 40 and Schedule 3 of the Falekaupule Act of 1997.
DETERMINATION OF THE ISSUES BEFORE THE COURT
Apart from the affidavit evidence before the court, the honourable High Court also relied on the oral testimonies of witnesses for both parties to the case. Even though the learned trial judge neither reproduced the issues formulated by the opposing counsels in their addresses nor explicitly set out the issue or issues arising for determination in this case, it is discernible from the face of the Judgment that the learned Chief Justice was strongly persuaded that only one issue came up for his determination, namely, the constitutionality of the restriction placed on the applicant’s rights.
In determining this singular issue, the learned trial judge copiously relied on the Preamble and the non-justiciable Principles of the Tuvaluan Constitution in holding that the Falekaupule’s actions limiting the applicant’s constitutional rights were not contrary to the Constitution. In the words of the learned Chief Judge:
I consider that the express subjection of the rights under sections 23-25 to the provisions of section 29 means that, if the court is satisfied the actions of the Falekaupule were taken as part of the traditional manner of decision making in that community and were taken because of a reasonable belief that the circumstances arising from the introduction of a new religion to the island might have one or more effects in section 29(4), it must accept that the Falekaupule was entitled to consider some restriction of the applicant’s rights was necessary. In that case, although there was an infringement of the applicant’s rights per se under sections 23-25, the Court cannot declare the restriction was contrary to the Constitution if interpreted consistently with the Principles set out in the Preamble.[22]
With
due respect, the learned court applied a narrow view of the broader fundamental
issues that demanded his determination in this case. For purposes of clarity,
and to highlight the court’s misdirection on the law, I set out some of
the more germane questions that call for resolution in this case:
1. Whether it was within the powers of the Falekaupule to determine the extent to which anyone may enjoy the fundamental rights and freedoms prescribed in the Constitution of Tuvalu.
2. Whether the protection of certain religious groups comes under the definition of Tuvalu values and culture as stipulated in Section 29 of the Tuvaluan Constitution the provisions of which qualify the fundamental rights and freedoms contained in that Constitution.
3. Whether there is a legal basis for classifying all the rights guaranteed under the Tuvaluan Constitution as rights subject to the limiting clauses contained in Section 29(1) of the same.
4. Whether the right to freedom of movement under Section 27(1) of the Tuvaluan Constitution is predicated on citizenship.
It is of critical
importance that one examines the considerations of the learned trial Chief
Justice on these points.
There was no controversy before the court about
the actions of the Falekaupule and its agents or officials constituting overt
breaches of the fundamental rights of the applicant under the Tuvaluan
Constitution. According to the learned Chief Justice:
Clearly the resolution of the Falekaupule and the consequential actions by the Talafai, or whoever was responsible for stoning the meeting house, constituted a clear attack on that freedom [of religion and belief]. Similarly evidence shows a breach of the right to freedom of expression and of assembly and association under sections 24 and 25 and the applicant and his followers have undoubtedly been treated in a less favourable manner than other members of the Nanumaga community which amounts to discrimination under section 27. The respondents do not dispute that.[23]
While
the court therefore believed that there had been gross violations of fundamental
human rights as alleged, the court nevertheless accepted the plea that the
violations of sections 23, 24, and 25 of the Tuvaluan Constitution were all
excusable under the qualification in section 29. It is curious that the court
avoided mentioning that the right to freedom from discrimination under section
27 was a right NOT subject to any qualification of culture or value, the
violation of which should warrant a remedy as claimed by the applicant, and as
envisaged by section 40 of the Tuvaluan Constitution.
On the
“effect of the Falekaupule Act, 1997” under which the Falekaupule of
Nanumaga purportedly acted against the applicant, the court held that the
Resolutions adopted by the Falekaupule did not amount to bye-laws as envisaged
under the Falekaupule Act, and therefore, the Act was inapplicable in
this case. The learned Chief Justice erroneously held that “Nowhere does
the Act limit or remove any traditional powers of the
Falekaupule.”[24] It is
difficult to justify the reasoning of the learned court in holding that a body
constituted by statute can act outside the statute. The only legal basis for the
existence of any Falekaupule in Tuvalu is the Falekaupule Act of
1997.[25] It is a trite maxim of
statutory interpretation that expressio unius est exclusio alterius. Once
a statute expressly stipulates the powers conferred, any other power not so
stated cannot be read into it.
On the second issue, the court neglected
to juxtapose the favourable disposition of the Falekaupule of Nanumaga to the
four existing religious outfits with the unqualified guarantee of the right to
freedom from discrimination under section 27. In the wisdom of the court, the
entry of the applicant’s church onto the religious landscape of the
Nanumaga community was capable of being “divisive and unsettling to the
large majority of the people of Nanumaga” whose identity had “for
many decades been based on the unity of a single denomination, the EKT.”
This reasoning is self-contradictory as the existence of other religious
bodies in Nanumaga is an evidence of the religious plurality of the Nanumaga
community. Even though the court established that three other religious bodies
– Bahai Faith; Jehovah’s Witnesses; and Seventh Day Adventist Church
had also come onto the religious landscape of Nanumaga at different times and
had all recorded separate numbers of followers in Nanumaga, it ignored the
patent discrimination involved in denying the establishment of the
applicant’s church. The allegation by the Pulefenua that the
applicant’s church threatened unity in Nanumaga is an unhelpful denial of
the fact of religious plurality and diversity in Nanumaga.
What more? The
Tuvaluan Constitution accentuates the recognition of the dynamics of custom and
societal values in its Seventh Preambular Principle to which the learned Chief
Justice even alluded,[26] and these
dynamics have been reflected in the Nanumaga community with the advent of
diverse religious bodies at various times. Furthermore, the statutory definition
of “customary law” under the Laws of Tuvalu Act, 1987,
strengthens my contention that the customs and values of Tuvalu are dynamic and
evolving.[27] It therefore defeats
the intendment of the constitution to uphold a rule established by the
Falekaupule against the tide of social pressures. Perhaps the honourable court
also overlooked the inevitable incursions of globalisation.
On the third
issue, the honourable court simply declined to recognise the freedom from
discrimination as a self-executing right. According to the Chief Justice,
“where actions restricting an individual’s right to other freedoms
are justifiable under the Constitution, any discrimination arising from the same
actions must also be considered
justifiable.”[28] The
court’s reference to subsection (6) of section 27 was superfluous as that
subsection excluded freedom from discrimination from those rights that may be
subject to restriction. How could a law court read into a constitution what it
intentionally excludes? It is extremely difficult to see how the learned court
would simply extend its justification of the Falekaupule’s actions to any
other provision of the supreme Constitution of Tuvalu.
On the final
issue, in addressing the alleged violation of the applicant’s right to
freedom of movement as guaranteed under section 26(1), the learned Chief Justice
erroneously interpreted this right as attaching only to citizens of Tuvalu.
There is nothing in the text of the Constitution of Tuvalu that makes only
citizens of Tuvalu the beneficiaries of the provisions of its Bill of Rights.
One cannot but discern the court’s error on this point as it made this
pronouncement in ignorance of Section 11(1) of the Constitution which makes
“every person in Tuvalu” the beneficiaries of those rights. It will
be apt to add here that in contemporary human rights drafting, both at municipal
and international levels, the trend has been to make all human beings
beneficiaries of the rights recognised in the constitutions of any country or
the human rights treaties binding on any country in whose territory they find
themselves.[29] Tuvalu certainly
wanted to vindicate its deep-seated desire to “take its rightful placer
among the community of nations” as envisaged in the Preambular Principle 3
of its Constitution when it employed the terminologies “everyone”,
“a person”, and “every person” in all the provisions on
fundamental rights. No judicial interpretation must abridge explicit
constitutional intentions.
IMPLICATIONS FOR HUMAN RIGHTS
JURISPRUDENCE
If this were to be the judgment of an ordinary high
court, one would have nursed the hope that recourse to some higher authority
would produce some foreseeable reconsideration of its justice. However, the
high-level source of this judgment makes it worrisome for the future of human
rights adjudication in Tuvalu since the learned trial judge also happens to be
the Chief Justice of Tuvalu who invariably is the arrowhead of the judicial
process in Tuvalu.[30]
It is interesting to observe that despite the rigorous references to the decisions of superior courts in other notable jurisdictions, including Australia, Canada and Samoa, on some of the similar legal controversies involved in this case, the learned trial judge refused to be persuaded, and never even bothered to mention any of those foreign decisions relied upon by Counsel to the Applicant in his judgment.[31] A law court cannot properly distinguish a foreign decision cited for the purpose of persuasion without showing how such a decision stands as an unhelpful guide in deciding a case for which there is no local precedent.
Again, while the trial court was indeed entitled to decide against all the
persuasive authorities cited based on the distinctive provision of Section 11(2)
of the Tuvaluan Constitution, the court deliberately failed to take cognisance
of the qualification placed on this provision by Section 12(2) which says an
action shall be unlawful, even though undertaken under a valid law, if such an
action “(a) is harsh or oppressive; or (b) is not reasonable in the
circumstances; or (c) is otherwise not reasonably justifiable in a democratic
society having a proper respect for human rights and dignity.”
The
disposition of the learned Chief Justice indeed conveys the message that any
action purportedly done in the guise of “Tuvaluan customs and
values” would find judicial validation in the superior courts of
Tuvalu.
This observation certainly presents an urgent need for a
restatement of the scope of customary law and its overbearing influence on
constitutional notions that have been accorded unquestionable legal validation
in the comity of nations. That remarkable international political statement, the
Vienna Declaration and Programme of Action (the Vienna Declaration), which was
unanimously adopted by all the participating 171 member states of the United
Nations at the World Conference on Human Rights in 1993, had sought to dismantle
the age-long stereotype about the fiction of cultural relativism. In unequivocal
terms, the instrument proclaims that:
“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”[32]
Just
as the Tuvaluan Constitution itself rightly anticipated dynamic social changes,
its judiciary cannot afford to stagnate the relevance of Tuvalu in the global
movement towards a more effective protection of human
rights.
CONCLUSION
Having highlighted some of the conclusions
and inferences narrowly drawn by the trial judge from the facts available in
this case, it might be possible for the first time reader of this piece to
postulate that this is one decision that must be subjected to an appellate
review. Such a suggestion is, however, beyond the scope of this essay and lies
within the exclusive prerogative of the applicant.
It is obvious that the
task of balancing the guaranteed rights of the Tuvaluan Constitution and
customary law and values is a difficult one which would require sustained
rethinking and repositioning for the judiciary and other stakeholders in the
dispensation of justice in Tuvalu.
However, while rigorous efforts
continue in finding equilibrium between these competing social demands, focus
should not be lost on eschewing any overzealous or extensive protection of
alleged “Tuvaluan customs and values” particularly where such are
blatantly discriminatory or lacking verifiable legal basis. This is the view
canvassed in this short write-up, flowing from the judicial pronouncements in
the case under examination.
The desire to preserve traditional norms and
practices must not be allowed to trample on the need to recognise the Tuvaluan
society as a dynamic entity. Tuvaluan customs and values will indeed be better
protected and preserved when that pursuit is carried out with respect for the
supreme law of the land that supersedes all other rules, laws, and powers. That
is the quintessence of a law-ordered society.
Far from being an ex
cathedra pronouncement on all the dynamics that would inform the
reconciliation of Tuvaluan customs and values with the express constitutional
provisions on human rights, this short essay would have achieved its purpose if
it stimulates further intellectual discourses on its broader themes.
[*] LL.B (Hons.), LL.M (Ife);
LL.M Human Rights & Democratisation (Pretoria); PG Dip. Int’l Hum.
Rts., (Åbo Akademi); JSD cum laude (Notre Dame); Barrister &
Solicitor (Nigeria); Lecturer, University of the South Pacific School of Law,
Port Vila, Vanuatu. E-mail: olowu_o@vanuatu.usp.ac.fj. This author is grateful
to Professor Robert Hughes who furnished him with this landmark decision and
encouraged this contribution, to Albert Seluka, Counsel to the Applicant in this
case, and also to Cathy Quigley of the Australasian Legal Information Institute,
Sydney, for their helpful comments.
[1] For some insightful
discussions on the tension between human rights and customary values in the
island states of the South Pacific, see Jennifer Corrin Care, ‘Reconciling
Customary Law and Human Rights in Melanesia’ (2003) 4(1) Hibernian Law
Journal 53-76; Don Paterson, ‘New Impulses in the Interaction of Law
and Religion: A South Pacific Perspective’ (2003) Brigham Young
University Law Review
593-623.
[2] See, for example,
Alison Quetin-Baxter, ‘The Constitutions of Niue and the Marshall Islands:
Common Traits and Points of Difference’ in Peter Sack (ed.), Pacific
Constitutions (Australian National University, Canberra) 97, 112; A. H.
Angelo, ‘Lo Bilong Yumi Yet’ (1992) 22(3)
Victoria University of Wellington Law Review 33, 37; Jennifer Corrin
Care, Tess Newton & Don Paterson, Introduction to South Pacific Law
(Sydney: Cavendish Publishing Limited, 1999) 85; Jennifer Corrin Care,
‘Customary Law and Human Rights in Solomon Islands: A Commentary on
Remisio Pusi v. James Leni & Others’ (1999) 43 Journal of
Legal Pluralism and Unofficial Law 135-144; Paterson, above n 1,
606.
[3] Constitution of Tuvalu, 1
October 1986, as amended by the Constitution of Tuvalu (Amendment) Act, Act No.
2, 1992.
[4] Section
16.
[5] Section
17.
[6] Section
18.
[7] Section
19.
[8] Section
20.
[9] Section
21.
[10] Section
22.
[11] Section
23.
[12] Section
24.
[13] Section
25.
[14] Section
26.
[15] Section 27. It is worthy
to note that the Tuvaluan Constitution also contains an obscure provision
recognising “other rights and freedoms retained by law” even though
these are nowhere enumerated or defined in the constitutional text. There is no
known decision where the content of this provision has received judicial
interpretation.
[16] Section 29 of the
Constitution provides:
“Protection of Tuvaluan values, etc.
(1)
The Preamble acknowledges that Tuvalu is an Independent State based on Christian
principles, the Rule of Law, Tuvaluan values, culture and tradition, and respect
for human dignity.
(2) This includes recognition of-
(a) the right to
worship, or not to worship, in whatever way the conscience of the individual
tells him; and
(b) the right to hold, to receive and to communicate opinions,
ideas and information.
(3) Within Tuvalu, the freedoms of the individual can
only be exercised having regard to the rights or feelings of other people, and
to the effect on society.
(4) It may therefore be necessary in certain
circumstances to regulate or place some restrictions on the exercise of those
rights, if their exercise-
(a) may be divisive, unsettling or offensive to
the people; or
(b) may directly threaten Tuvaluan values or culture.
(5)
Subject to section 15 (definition of “reasonably justifiable in a
democratic society”) nothing contained in a law or done under a law
shall be considered to be inconsistent with section 23 (freedom of
belief) or 24 (freedom of expression) to the extent that the law
makes provision regulating or placing restrictions on any exercise of the
right-
(a) to spread beliefs; or
(b) to communicate opinions, ideas and
information;
if the exercise of that right may otherwise conflict with
subsection (4).”
[17] Unreported Case No: 23/03,
High Court of Tuvalu, Funafuti, 11 October 2005 (hereinafter ‘the
Judgment’) (Copy on file with
author).
[18] There is one other
area of this epic judgment which I consider to warrant critical discussion but
since it will not be appropriate to becloud the focus of this write-up, it might
just suffice to mention it in passing: Although the title heading of the
judgment shows that it was delivered by the “Chief Justice”, the
name of that Chief Justice was never mentioned anywhere in the judgment, not
even in the signature column. It is always proper for judgments to exhibit the
identities of their givers. I however appreciate the assistance of Barrister
Albert Seluka, Counsel to the Applicant, who gave the name of the Chief Justice
as Gordon Ward.
[19] See Sections
4 and 40, Falekaupule Act (Act No. 8),
1997.
[20] The
“Pulefenua” is synonymous with the “Pule o Kaupule” and
refers to the Head of the Falekaupule under the
Falekaupule Act. See section 2(1) Falekaupule
Act. The two titles were used interchangeably throughout the
Judgment.
[21] The
applicant’s counsel added section 26(1) during the
hearing.
[22] Page 15 of the
Judgment.
[23] Page 13 of the
Judgment.
[24]
Page 16 of the
Judgment.
[25] See Section 4(1)
Falekaupule Act.
[26] Page
9 of the Judgment.
[27] See
Section 5(1) Laws of Tuvalu Act (Act No. 8), 1987 defining
“customary law” as comprising “the customs and usages,
existing from time to time, of the natives of Tuvalu” (emphasis
added).
[28] Page 18 of the
Judgment.
[29] See Allan Rosas
& Martin Scheinin, ‘Categories and Beneficiaries of Human
Rights’ in Raija Hanski & Markku Suski (eds.), An Introduction to
the International Protection of Human Rights: A Textbook, 2nd Revised
Edition (Åbo: Institute for Human Rights, 1999) 49,
56-60.
[30] See Jennifer Corrin
Care, Tess Newton & Don Paterson, above n 2,
318.
[31] Page 12 of the
Judgment.
[32] Vienna Declaration
and Programme of Action (the Vienna Declaration), June 1993, U.N. Doc. A/CONF.
157/23, Part I [5] (emphasis added).