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Teonea v Kaupule [2005] TVHC 2; HC CC No 23 of 2003 (11 October 2005)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Civil Jurisdiction

Case No. 23/03

Between:

Mase Teonea
Applicant

v

Pule o Kaupule
1st Respondent

And:

Nanumaga Falekaupule

2nd Respondent

BEFORE THE CHIEF JUSTICE

Seluka and Barlow for applicant
Apinelu and Malalau for respondent

Hearing: 6 October 2004 and 18 May 2005
Judgment: 11 October 2005

Judgment

The applicant seeks, by way of originating summons, various declarations pursuant to section 38(1) of the Constitution.

The applicant is a Tuvaluan from Niutao although he holds a Fiji passport having gone there as a small child with his parents. His wife is from Namumaga but also holds a Fiji passport.

The applicant obtained a Certificate in Biblical Studies from a Bible College in Auckland and joined the Dayspring ministry. During his service in that ministry he visited Tuvalu a number of times assisting in their mission to distribute bibles to the islands but he principally lived in Fiji. His visits to Tuvalu extended to a few months each time.

He came to Tuvalu in mid-2001 with the intention of establishing a Brethren Church and commenced bible studies to that end on Funafuti. From this came the Tuvalu Brethren Church in February 2002 and it was established as a trust on 25 June 2002. Application was made to register it under the Religious Bodies Registration Act and this was confirmed on 2 September 2002. The applicant is variously described in those documents as Pastor and Church Leader.

It would appear the church attracted a number of members on Funafuti and it was decided to expand its message to the outer islands. At first this was done by means of radio broadcasts but these were stopped by the Board of the Tuvalu Media Corporation as a result of complaints. However, it was felt by the church leaders that they had stimulated some awareness of the church in the outer islands and so it was decided they should tour the outer islands.

The first visit was to Nanumaga and the applicant, his wife and another of the leaders of the church, Sakaio Vakafua, from Kioia (and also a Fiji passport holder) went to the island in about June 2003.

It appears that, in about November 2001 and again shortly prior to the arrival of the applicant's church group, there had been a resolution by the Nanumaga Falekaupule that new religions other than the Ekalesia Kelisiano Tuvalu (EKT) should be banned from Nanumaga. Shortly after the arrival of the applicant, there was another meeting at which the resolution was again discussed. The applicant was at that meeting but he decided that he should continue with the bible studies notwithstanding. From their first arrival on the island their bible studies had attracted a group of up to 40 people (which rose to 59 by the time they left the island) and it was felt by the Brethren leaders that they were the people who should have been consulted; not the Falekaupule. The applicant explained in Court that he told the Falekaupule that, "we would decide whether to stop or not" and also stated that he did not really understand the traditional methods of governance on Nanumaga.

Sakaio described the position in his affidavit:

"The problem seemed to be that the effect of the [Brethren] Church growth was to deprive the main Church - the EKT - of part of its congregation. That has never been our intention - it has simply been to preach the Word of God and let the people themselves decide for themselves. I believe that it was this that lead to tension and to the problems that took place within the Kaupule....

I appreciate that this is a sensitive issue as Tuvaluans are a religious rather than a secular people. At no time has there been any intention to have or seek conflict. On the contrary, all that has been done is to preach the Gospel in accordance with our message. That is precisely the same as the EKT. It is our intention to spread the Word not to force people to join us. That is a matter of choice. The concern that the [Brethren] Church has is that [it] was stopped because of its growth not because of its message."

The applicant expressed similar views:

"I held bible studies which had between 30-40 people attending. At all times, the purpose of this was to share the contents of the bible and the Word of God as contained in the scriptures. I have never seen this as a competition to any existing Church nor would I want to. I do believe though that they have felt threatened and for that reason have been opposed to this. ... It was stated in the meeting [of 4 July 2003] that the Island was concerned that the effect of the growth was to deprive the Island Pastor of contributions for those who had left. This would mean that others would have to give more."

A day or two later, a group of young people stoned the building in which a meeting of the Brethren was being held. They were advised to stop holding meetings for their own safety and the applicant was advised to leave the island. He did so a short time later.

He now seeks the following declarations and orders:

1. that the decision of the second respondent on or about 4 July 2003 that the Kaupule prohibits any other Church on the island apart from the EKT be declared to be contrary to section 23(1) of the Constitution of Tuvalu 1986 as it hinders freedom of belief and worship and is therefore null and void;

2. that the above decision is in breach of section 24(1) and 25(1) in so far that it seeks to prohibit freedom of expression, and freedom of association as a gathering of Church members is therefore null and void;

3. that the above decision is discriminatory and contrary to section 27(1) in so far that it treats the Applicant in a way that gives him and his Church congregation less favourable treatment than other such groups and persons and is therefore null and void;

4. that constitutional redress be provided for at an amount to be assessed by the Court;

5. further and in the alternative that this resolution of the Falekaupule is ultra vires as it is in breach of section 40 and Schedule 3 Falekaupule Act 1997 and therefore should be quashed."

The respondents called a number of witnesses who explained the background to the Falekaupule resolution. The Pulefenua of Nanumaga told the Court that the Falekaupule had first passed a resolution in November 2001 to ban any introduction or spreading of new religions on the island. It had been felt that the introduction of new faiths had tended to break up the spirit of togetherness of the community as a whole especially where the adherents to the new orders refused to perform obligations to the community saying that it was forbidden under their new faith.

One of the Members of Parliament for Nanumaga was present at the meeting in 2001. He explained:

"One of the resolutions made during that meeting is a prohibition on any other new religion brought in and advocated by any person on Nanumaga. The Falekaupule resolved that the four existing religions on Nanumaga are enough. These religions are EKT, Jehovah's Witness, the Bahai faith and the SDA. This decision was made in pursuance of strengthening the social structure, traditions, peace and order on Nanumaga."

There is no dispute that, earlier in 2003 before the arrival of the applicant, a group of members of the Assemblies of God Church had arrived and sought permission to preach their faith to the people of Nanumaga. Permission was refused and they left the island.

Following the applicant's arrival, in June 2003, the Pulefenua said he had heard that the applicant had been saying bad things about the EKT and its Pastor in relation to the practice by the community of giving him gifts. The applicant dealt with this aspect of the case. He pointed out that there were in fact three separate entities on the island; the church, the community and the government. He agreed that his members should perform any obligation to the latter two but he saw no reason why they should have to contribute to another church.

The witnesses deposed that, at the meeting of the Falekaupule in July 2003, it was resolved that the applicant should stop advocating his religion. The minutes of the meeting on 4 July 2003 conclude:

"Resolution: New religions are restricted except the ones that are already on the island which includes Jehovah's Witnesses, Bahai and Seventh Day Adventist.

A letter from the Brethren Church followers addressed to the Falekaupule was read in the meeting and it stated their wish to join the religion and that they do not intend to change their mind. Their names were listed in the letter. Pasama asked the Falekaupule to reconsider their decision but the Falekaupule told him that the decision had been made. The Pulefenua mentioned his sympathy for this unfortunate situation but this could have been avoided would the leaders of the new religion had taken appropriate steps to get permission."

The Kaupule secretary and the police officer were asked to convey that decision to the applicant. They did so and it was after that the stoning occurred.

Exactly who carried out the stoning is not clear. Some suggested that it was done by the Talafai but others, including the applicant, do not agree. The Talafai was described by witnesses as the "strength and working arm of the Falekaupule" that "carries out its wishes and enforces its decisions". Most of its members, according to the Pulefenua, "belong to the EKT denomination but I am not sure if there are members for other minority denominations".

Although some of the Brethren were injured, including two who were taken to hospital for examination, and the building suffered some damage, no action has been taken to identify and charge the offenders. It must be said that the police officer made it clear in his evidence that he had no real intention of trying to pursue the complaint despite what would appear to be a clear offence under the criminal law of Tuvalu.

The overt hostility of those people was no doubt a strong factor in the applicant's decision to leave the island some days later.

The Member of Parliament told the court that he had seen that some people on the island had been converted to the applicant's new faith and stated,

"They have come up with excuses not to perform their moral and legal obligations towards the Falekaupule and community and say that they do not want to participate in communal matters except matters directed from the central government."

The first respondent, the Pule Kaupule of Nanumaga, deposed;

"I was born and raised on Nanumaga. ... Now for the first time in my life I have witnessed a strange incident like this happened on Nanumaga. That is seeing unrest and tension on the island because someone disobeyed the decision of the Falekaupule, which is a body of traditional leaders of Nanumaga. They have all the authority and power on the running of the affairs of Nanumaga and they deserve respect."

Referring to the decisions of the Falekaupule, the Pulefenua explained, "most of these decisions are made to maintain order, peace and welfare of the people of Nanumaga".

He continued that the police advised the applicant to leave the island:

"... because Talafai members have vowed that if Mase does not leave the island that will amount to disobedience to the decision of the Falekaupule and he will face the consequences. Mase did not want to leave but he finally decided to leave. ...

I really wanted Mase to leave as well. That is because I am very concerned about the men of my island who are going to commit serious offences if they do something to Mase who has disobeyed the Falekaupule. At the same time, my other concern is Mase's own life because he will not get enough protection if the Talafai decided to resolve the matter in a violent way.

When Mase left I see that the island has been relieved from tensions. However, Mase's followers are still secretly preaching their faith and the worst of it is that some of them have abstained from the community's gatherings and meetings. Nanumaga people have been divided and are no longer having the spirit of togetherness and oneness."

The applicant challenges the right of the Falekaupule to prohibit his church on Nanumaga on four grounds. Three of those allege its decision breaches the applicant's right to protection of their fundamental rights and freedoms under the Constitution.

The Constitutional Provisions

The Constitution is the supreme law and all other laws shall be interpreted and applied subject to it and, as far as is practicable, in such a way as to conform with it. The freedoms which the applicant claims he has been denied are those of belief under section 23 (declaration 1), of expression, assembly and association under sections 24 and 25 (declaration 2) and freedom from discrimination under section 27 (declaration 3). They are some of the fundamental rights and freedoms set out in Part II which contains the Bill of Rights.

The relevant passages in these sections provide:

"23 Freedom of belief

(1) Subject to the provisions of this Part, and in particular to –

(a) the succeeding provisions of this section; and

(b) section 29 (protection of Tuvaluan values, etc); ...

except with his consent no-one shall be hindered in the exercise of his freedom of belief.

(2) For the purposes of this section, freedom of belief includes –

(a) freedom of thought, religion and belief; and

(b) freedom to change religion or belief; and

(c) freedom, either alone or with others, to show and to spread, both in public and in private, a religion or belief, In worship, teaching, practice and observance.
...

(6) Nothing in or done under a law shall be considered to be inconsistent with this section to the extent that the law makes provision which is reasonably required -

(a) in the interests of - ...

(ii) public safety; or

(iii) public order; or ...

(b) for the purpose of protecting the rights or freedoms of other persons, including the right to observe and practice any religion or belief without the unsolicited intervention of members of any other religion or belief.

(7) Nothing in or done under a law shall be considered to be inconsistent with this section to the extent that the law makes reasonable provision -

(a) requiring a person who proves that he has a conscientious objection to performing some reasonable and normal traditional, communal or civic obligation, or to performing it at a particular time or in a particular way, to perform instead, some reasonably equivalent service of benefit to the community; or

(b) for the exclusion of such a person and his household from any benefit arising out of the performance of those obligations by others until the equivalent service has been performed.

(8) The protection given by this section to freedom of religion or belief applies equally to freedom not to have or hold a particular religion or belief, or any religion or belief.

(9) A reference in this section to a religion includes a reference to a religious denomination and to the beliefs of a religion or religious denomination.

24. Freedom of expression

(1) Subject to the provision of this Part, and in particular to-

(a) subsection (3); and

(b) section 29 (protection of Tuvaluan values, etc); ...

except with his consent no-one shall be hindered in the exercise of his freedom of expression

(2) For the purposes of this section, freedom of expression includes –

(a) freedom to hold opinions without interference; and ...

(d) freedom to communicate ideas and information without interference; ...

(3) Nothing in or done under a law shall be considered to be inconsistent with subsection (1) to the extent that the law makes provision -

(a) in the interests of - ...

(ii) public safety; or

(iii) public order; or ...

(b) for the purpose of -

(i) protecting the reputations, rights or freedoms of other persons; ...

25. Freedom of assembly and association

(1) Subject to the provisions of this Part, and in particular to –

(a) subsection (3); and

(b) section 29 (protection of Tuvaluan values, etc); ...

except with his consent no-one shall be hindered in the exercise of his freedom of assembly and association.

(2) For the purposes of this section, freedom of assembly and association includes -

(a) the right to assemble freely and to associate with other persons; ...

(3) Nothing in or done under a law shall be considered to be inconsistent with subsection (1) to the extent that the law makes provision -

(a) in the interests of -...

(ii) public safety; or

(iii) public order; or ...

(b) for the purpose of protecting the rights or freedoms of other persons.

27. Freedom from discrimination

(1) In this section, discrimination refers to the treatment of different people in different ways wholly or mainly because of their different - ...

(e) religious beliefs or lack of religious beliefs,

in such a way that one such person is for some such reason given more favourable treatment or less favourable treatment than another such person.

(2) Subject to the provisions of this Part, and in particular to –

(a) the succeeding provisions of this section; ... no-one shall be treated in a discriminatory manner.

(3) Subsection (2) does not apply to a law so far as it makes provision –
...

(f) by which any person or group may be given favourable treatment or unfavourable treatment which, having regard to the nature of the treatment and to any special circumstances of the person or group, is reasonably justifiable in a democratic society having a proper respect for human rights and dignity.

(6) Nothing in or done under a law shall be considered to be inconsistent with subsection (2) to the extent that the law provides that any person may be subjected to any restriction on the rights and freedoms guaranteed by - ...

(b) section 23; and

(c) section 24; and

(d) section 25; and

(e) section 26 (freedom of movement); and

(f) section 28 (other rights and freedoms)

to the extent authorised in that section.

(7) Subject to section 12(2) and 15 and to any other law, no act that –

(a) is in accordance with Tuvaluan custom: and

(b) is reasonable in the circumstances,

shall be considered to be inconsistent with subsection (2)."

Interpretation of the Bill of Rights

The applicant's case in short is that the facts of this case demonstrate a clear breach of these rights. The respondents do not deny the events that took place on the island but rely on the special provisions in the law which deal both with the preservation of Tuvaluan values and customs and with the requirement that the rights of others who may be affected by the enforcement by another group of their rights should be safeguarded.

The reference in sections 23-25 to the protection of Tuvaluan values is a theme repeated many times throughout the Constitution.

The Preamble to the Constitution expresses the aspirations of the drafters in a number of Principles which are adopted and affirmed as the basis of the Constitution and "as the guiding principles to be observed in its interpretation and application at all levels of government and organised life". This aspiration finds legislative form in section 13:

"13. The Principles of the Preamble

The Principles set out in the Preamble are adopted as part of the basic law of Tuvalu, from which human rights and freedoms derive and on which they are based."

The following principles are relevant to this case:

"3. While believing that Tuvalu must take its rightful place amongst the community of nations in search of peace and the general welfare, nevertheless the people of Tuvalu recognise and affirm, with gratitude to God, that the stability of Tuvaluan society and the happiness and welfare of the people of Tuvalu, both present and future, depend very largely on the maintenance of Tuvaluan values, culture and tradition, including the vitality and the sense of identity of island communities and the attitudes of co-operation, self-help and unity within and amongst those communities.

4. Amongst the values that the people of Tuvalu seek to maintain are their traditional forms of communities, the strength and support of the family and family discipline.

5. In government, and in social affairs generally, the guiding principles of Tuvalu are -

agreement courtesy and the search for consensus, in accordance with traditional Tuvaluan procedures, rather than alien ideas of confrontation and divisiveness:

the need for mutual respect and co-operation between the different kinds of authorities concerned, including the central Government, the traditional authorities, local governments and authorities, and the religious authorities.

6. The life and the laws of Tuvalu should therefore be based on respect for human dignity, and on the acceptance of Tuvaluan values and culture, and on respect for them.

7. Nevertheless, the people of Tuvalu recognise that in a changing world, and with changing needs, these principles and values, and the manner and form of their expression (especially in legal and administrative matters), will gradually change, and the Constitution not only must recognise their fundamental importance to the life of Tuvalu but also must not unnecessarily hamper their expression and their development."

These are not justiciable in themselves but the Court must bear them well in mind when interpreting the provisions of the Constitution. Section 5 further emphasises this by requiring that in all cases, the Constitution shall be interpreted and applied consistently with the Principles set out in the Preamble. Similarly, rule 3(1) of the Rules for the Interpretation of the Constitution found in the first Schedule states:

"(1) The Preamble forms part of this Constitution, and establishes principles upon which this Constitution, and the conduct of the public affairs of Tuvalu, are to be based."

Section 9 provides a framework within which Part II should be interpreted and includes:

"(2) In this Part, a reference to the national interest includes reference to the public interest in - ...

(e) the protection and development of Tuvaluan values and culture"

Sections 10 to 15 form Division 2 of Part II which is headed, "The Principles of the Bill of Rights". It includes:

"10. Freedom under law

(1) Freedom based on law consists of the least restriction on the activities of individuals consistent with the public welfare and the maintenance and development of Tuvalu and Tuvaluan society in accordance with this Constitution and, in particular, in accordance with the Principles set out in the Preamble.

(2) Everyone has the right to freedom based on law, and accordingly, subject to this Constitution -

(a) everyone has the legal right to do anything that -

(i) does not injure others, or interfere with the rights and freedoms of others; and

(ii) is not prohibited by law: and

(b) no-one may be -

(i) legally obliged to do anything that is not required by law; or

(ii) prevented by law from doing anything that complies with the provisions of paragraph (a).

(3) This section is not intended to deny the existence, nature or effect of cultural, social, civic, family or religious obligations, or other obligations of a non-legal nature, or to prevent such obligations being given effect by law if, and so far as, it may be thought appropriate to do so."

Section 11 sets out the fundamental rights and freedoms of everyone in Tuvalu but they are qualified by subsections (2) and (3):

"(2) The rights and freedoms referred to in subsection (1) can, in Tuvaluan society, be exercised only -

(a) with respect for the rights and freedoms of others and for the national interest; and

(b) in acceptance of Tuvaluan values and culture, and with respect for them.

(3) The purpose of this Part is to protect those rights and freedoms, subject to limitations on them that are designed primarily to give effect to subsection (2)."

Section 15 was referred to by counsel as a further safeguard. It is a provision clearly applicable only to laws and acts done under a law. As I shall explain, I do not consider it is, therefore, relevant to the actions of the Falekaupule in this case.

"15. "Reasonably justifiable in a democratic society"

(1) Notwithstanding anything to the contrary in this Part, ... all laws, and all acts done under a law, must be reasonably justifiable in a democratic society that has a proper respect for human rights and dignity.
...

(5) In determining whether a law or act is reasonably justifiable in a democratic society that has a proper respect for human rights and dignity, a court may have regard to -

(a) traditional standards, values and practices, as well as previous laws and judicial decisions, of Tuvalu; and

(b) law, practices and judicial decisions of other countries that the court reasonably regards as democratic; and

(c) international conventions, declarations, recommendations and judicial decisions concerning human rights; and

(d) any other matters the court thinks relevant."

Section 29, which is referred to in sections 23-25, is set out in a separate subdivision headed 'Special Exceptions" and provides;

"29 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 nothing contained in a law or done under a law shall be considered to be inconsistent with section 23 or 24 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)."

Finally, the first Schedule to the Laws of Tuvalu Act 1987 provides the method of proof of matters of customary law. It allows the court to take such matters of its own motion and to use sources other than the usual legal sources in determining the nature and extent of custom in a particular case. The traditional practices which the respondents seek to assert may not amount to customary law but I accept the provisions in the Schedule as guidance on the manner in which the Court may determine the existence of traditional values and custom. Counsel have referred the Court to some historical and academic texts which I have read and which are consistent with the conclusions I have reached on the evidence.

The Effect of the Bill of Rights

If the Bill of Rights in the Constitution is to have any purpose, it must be to protect people from the erosion of those rights. Reported cases throughout the world are liberally sprinkled with authorities explaining and ruling on provisions very similar to those in Part II of the Constitution of Tuvalu. Counsel for the respondents has not sought to deny that the applicant and the members of his church are entitled to the protections of the fundamental rights and freedoms set out in Division 3 but rely on the qualifying provisions to justify the restriction imposed.

Consideration of cases from other jurisdictions including some from Tuvalu's near neighbours in the Pacific support the applicant's claim that the attempt by the Falekaupule to restrict new religions and, in particular, the applicant's church was a denial or restriction of the applicant's rights under the Constitution.

Counsel have cited a number of judicial decisions from Canada, Australia and Samoa and I accept the principles stated in those cases. Many of the passages from the relevant constitutions set out in those judgments bear a close similarity to passages from our own. In particular that of Samoa contains passages with identical wording and I have read with care the detailed and informative judgments from that jurisdiction especially Mau Sefo and Others v The Lands and Titles Court and the Alii and Faipule of Saipipi, per Wilson J, 12 July 2000 and Tapu Aeae Lafaialii and Others v The Lands and Titles Court, the District Court and others , per Sapolu CJ, 24 April 2003. However, whilst it is clear our constitutions contain many similarities, it is equally clear that, although Samoan society also values its traditions, the emphasis in our Constitution on the importance of traditional values as an over-riding condition for the exercise of some rights finds no parallel in the Samoan Constitution.

Clearly, that emphasis is no accident. Each of the eight island communities of Tuvalu has much in common with the others but each also has its own unique traditions. Some are preserved better that others and some communities hold to theirs more tenaciously than others. Clearly many will change, as the 7th Principle of the Preamble acknowledges and the inclusion of many of the human rights and freedoms themselves is testimony to the changing attitudes and demands of the wider world in which we live. Where our Constitution is different is that it is firmly founded on the desire of the legislature, as an expression of the wish of the people, to hold to their traditions even if to do so means that some individual rights may be curtailed or restricted.

That is the reason the Constitution emphasises and re-emphasises this aspect of Tuvaluan life and it is the reason that, helpful though constitutional decisions in other, even equally traditional, jurisdictions are, their conclusions have to be read against the additional requirement in our Constitution of the need to preserve the traditions as expressed in the Preamble and enacted in the provisions of the Bill of Rights.

Section 23 gives the applicant the right not to be hindered in the exercise of his freedom of belief which includes his freedom, either alone or with others, to show and to spread, both in public and in private, a religion or belief in worship, teaching practice and observance. 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. Similarly, the evidence shows a breach of the right to freedom of expression and of assembly and association under section 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. They base their defence on two qualifications of those rights in the Constitution. First, the emphasis, repeated in sections 23-25, on the need to protect the rights and freedoms of others and, second, the similarly repeated qualification that they are all subject to a requirement to protect Tuvaluan values as further set out in section 29. The respondents suggest that, if the Court is satisfied that the decisions of the Falekaupule were done for either of those reasons, they were justified and should not be declared to be contrary to the Constitution.

It should be noted that those two qualifications differ from each other in one important aspect. The need to consider the protection of other peoples' rights is a requirement placed on any "law". Although law is not defined in the Constitution, the manner in which it is used in the definition, for example, of "alteration" shows it is used to describe written laws. If such a law includes a provision that encroaches on another's constitutional rights, it may not offend the Constitution if the encroachment is necessary to protect the rights of others.

However, for reasons I shall give later, I do not consider the resolution of the Falekaupule had the status of a law and so I do not accept that provision assists the respondents.

On the other hand, the right to the freedoms set out in sections 23, 24 and 25 is clearly stated to be "subject to" the protection of Tuvaluan values under section 29. This is a far stronger qualification and these three sections are the only freedoms in Part II which are specifically stated to be subject to it. The effect is that the exercise by an individual of his rights under these sections must be exercised with a regard both to the rights or feelings of other people and to the effect on society. If that is done, the Constitution protects the exercise of such a right but it is still subject to the provision, in section 29, that, in certain circumstances, the exercise of those rights may be restricted if such exercise may be divisive, unsettling or offensive to the people or may directly threaten Tuvaluan values or culture.

Counsel have also made submissions on the effect of section 15 which provides that all laws and acts done under any law must also be reasonably justifiable in a democratic society that has a proper respect for human rights and dignity. Again, this is a provision which relates to a law or an act carried out under that law and does not apply in this case.

As has been pointed out, the specific subjection of the exercise of rights in those sections to the provisions of section 29 does not appear in relation to the other rights and freedoms. Thus, the right to life, personal liberty, property, privacy free movement and protection of the law and freedom from slavery, forced labour and inhuman treatment and any form of discrimination are not stated to be subject to that qualification.

The Court must accept that the inclusion of the need to conform with section 29 in relation to the freedoms under sections 23-25 was intentional. I believe the reason for that is plain. Exercise of the freedoms in the other sections of the Bill of Rights is likely generally to be a personal matter and will rarely if ever impinge on the rights of others. Thus, for example, the assertion by an individual of his right to life or to privacy or to freedom from inhuman treatment will not, in normal circumstances, affect the extent or manner in which another individual is able to exercise the same right. However, whilst the exercise of one's religion is frequently a private matter, the spreading of your beliefs to others may well have a much wider effect.

The Issue

The declarations the applicant seeks would mean that, once there is a breach of a fundamental right per se, the decision that gave rise to the breach must be null and void. The respondent suggests that the Court must, once the breach is proved, determine whether the manner in which the Falekaupule acted was part of the traditional culture of Nanumaga and, if so, whether the passing by it of the resolution of 7 July 2003 and, indeed the earlier resolutions to similar effect, were done because the meeting feared and had reason to fear that the introduction of the applicant's new denomination to the community may be divisive, unsettling or offensive to the people of Nanumaga or may directly threaten the island's values or culture. If so, the restriction of the applicant's rights are not unconstitutional.

The Preamble emphasises the belief that the stability of Tuvaluan society and the happiness and welfare of the people depend very largely on the maintenance of Tuvaluan values, culture and tradition and specifically the sense of identity of island communities and unity amongst those communities. It is clear that the identity of the community on Nanumaga has, for many decades, been based on the unity of a single denomination, the EKT. The evidence the Court has heard has demonstrated that the erosion of that unity of belief by the introduction of new religions has resulted in a corresponding loss of unity in the community as a whole. This effect had already been seen in relation to the other denominations which have been allowed on the island and was the reason for the first resolution in November 2001. The evidence has clearly demonstrated that the actions of the applicant in 2003 have also been divisive and unsettling to the large majority of the people of Nanumaga.

Counsel for the applicant suggests that, even if the traditions of Nanumaga have been rooted in the presence of a single church, the earlier introduction of three other denominations has shown that the present culture of the island is one of religious tolerance. I cannot agree. There is no evidence of the manner in which those other churches were able to establish a presence on the island but there is evidence that their presence has already caused some erosion of the communal spirit previously accepted there. If the Falekaupule has the traditional right to decide these matters, the fact it has allowed a change does not mean that is then automatically the new culture. The evidence was that it was partly because of the community's experience with the previous churches that the Falekaupule took the decision to assert its traditional leadership role in the community in relation to the applicant's church also.

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 of the 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 applicants 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.

The evidence of the events on Nanumaga in mid 2003 are largely undisputed. On the other hand, custom has been referred to by the respondents' witnesses mainly as an assertion simply that the Falekaupule has the authority to take the action it did but it was largely unanswered because the applicant and his witness did not claim any knowledge of the traditions of Nanumaga. As a result, I asked counsel to file further submissions on that topic and speak to them at the next sitting of the Court and this was done.

The role of the chiefs or traditional leaders in Tuvaluan society has already been recognised by this Court. In Alama v Tefasa [1987] SPLR 385, Donne CJ commented at 393:

"The authority of the matais is founded in the values and cultures of Tuvalu. It is the linch pin of the life and laws of Tuvalu protected by the Constitution. The authority of the matais requires them to make decisions to guide the people and foster their welfare. This means that ... in Tuvalu the matais necessarily and legitimately exert great influence and their decisions carry great weight."

He then found as a fact that the actions of the chiefs (in that case from Nukulaelae) were in accordance with the customs and traditions of Tuvalu.

The traditional method of decision making on Nanumaga is determined by the people entitled under the Aganu of the island to participate in such decision making process at a meeting in the ahiga or island meeting house. That includes the chiefs and the older members of the community. Since the first conversion of the Island to Christianity in the mid nineteenth century by the London Missionary Society and the development from the LMS of the EKT, the island community has also accepted and been based on the concept of a single church. The pastor has traditionally had a role and has received contributions ever since the Ulu Aliki after his conversion directed that his share should go to the pastor. I am satisfied on the evidence that the decision making role of the Falekaupule is part of the traditional manner of guiding the community and caring for the people's welfare.

The Effect of the Falekaupule Act 1997

I also find as a matter of law that the traditional form of decision making on Nanumagasss is vested in the Falekaupule. The effect of the Falekaupule Act, 1997, is to formalise many of the powers, duties and obligations on the Falekaupule but it was not the intention of Parliament to replace that body's traditional role of decision making nor the manner in which it is done. The explanatory memorandum which accompanied the bill for the Act states:

"The main purpose of this Act is to give further and comprehensive statutory recognition for the Falekaupule and to vest in them greater control over the activities and affairs of the islands by transferring to them the functions of the local government councils... "(my emphasis).

That is not, of course, part of the Act but a reading of the provisions of the Act show that purpose was achieved. Nowhere does the act limit or remove any traditional powers of the Falekaupule. What is does is to give them more powers in order to have a greater control of the affairs of the island by transferring to them the powers and procedures previously held by the local government councils.

Some of the powers in the Act overlap the traditional role in, for example, the maintenance of law and order because the Third Schedule includes some matters which were already the responsibility of the elders. Whilst the Act purports, in section 4, to "establish" the Falekaupule on each island, the definition in section 2 shows that it is first and foremost a formal recognition of the traditional systems of decision making:

"Falekaupule' means -

a) the traditional assembly in each island of Tuvalu which, subject to this Act, is composed in accordance with the Aganu (is the traditional local customs and usages, section 2) of each island; and

b) a Falekaupule established by section 4(1)."

An innovation introduced by the Act is the power given to the Falekaupules to make by-laws. Any such by-laws will be written laws subject to the provisions of the Constitution relating to such laws referred to above. Resolutions made in relation to the general management of the community are not by-laws and so those provisions in the Constitution, which relate to the effect of laws and acts done under such laws do not apply to them.

I find as a matter of fact that the manner in which the Falekaupules reached the decision expressed in the resolutions of 2001 and 2003 was in accordance with their traditional role and not in exercise of any power under the Act. I must, therefore, decide whether the reason for its decision was the preservation of Tuvaluan, or in the context of this case, Nanumagan traditional values.

I have no doubt that was the reason for the decision. Whilst in July 2003 it was applied to the applicant and the people who wished to join his bible group, it had already been decided a year and a half before in light of the circumstances on the island arising from the previous introduction of additional denominations. The resolution of July 2003 simply reiterated the earlier decision in the light of the applicant's request to introduce his church. It is also clear that the violence by some people on the island was not the result of the introduction of the applicant's denomination per se but a reaction to his clearly shown determination not to abide by the decision of the Falekaupule.

When he arrived on the island, the evidence is that he sought the permission of the Ulu Aliki to start bible studies but, despite an earlier assertion by the applicant that such permission was granted, it became clear that it was not. I have little doubt, he genuinely believed his religious calling required him to refuse to accept the decision of the Falekaupule but the fenua of the island simply saw that, having been present at the meeting, he deliberately disobeyed its resolution.

The rights and wrongs of the Talafai's use of violence to enforce the decisions of the Falekaupule have not been canvassed in this case and I do not rule on them. However, the existence of a separate criminal code with its own provisions for the infliction of punishment on behalf of the state means that the right to take such actions may be questionable.

It is convenient to deal at this stage with one other issue raised by counsel for the applicant. He suggested that the reason the Falekaupule acted as it did was in the interests of public safety and order. Undoubtedly, the stoning of the meeting and the underlying threat of a repetition was an important factor in the Pulefenua's and the police officer's advice that the applicant should leave the island even though, as counsel has asserted, any breach of public order and safety which occurred was at the hands of those people who carried out the attack and certainly not of the members of the Brethren church. However, it must be borne in mind that the resolutions were passed before that incident and I am satisfied on the evidence that the resolutions were the result of the concern of the elders of the community at the threat to the traditional unity of the island community by the introduction of a further religion. Their concern about public safety only arose subsequently to the passing of those resolutions.

Conclusion

I am satisfied there were grounds for the Falekaupule's decision that the introduction of the applicant's church was likely to be divisive and unsettling (as, indeed, it subsequently demonstrably was) and constituted a direct threat to the values and culture of the vast majority of the approximately 800 members of the island community. There was clear evidence that the result of a failure to act would allow a situation that would be divisive and would threaten the traditional values of Nanumaga. As a result, the Falekaupule was entitled to consider imposing such a restriction on the applicant's rights under sections 23-25.

The Court is not ruling on the merits of that decision. The question is whether the Falekaupule had a right to make such a decision and, if so, whether there were reasonable grounds for such a decision. Having found that the resolution did hinder the applicant's rights under these sections, I have also found that there were reasonable grounds for considering such a decision was necessary. That means it was not unconstitutional and neither, therefore, is it null and void.

I decline therefore to make the first two declarations.

The third declaration sought relates to the freedom from discrimination under section 27. Subsection (2) does not include the preservation of Tuvaluan values in the provisions to which the section is specifically subject. There is no doubt that the applicant was treated less favourably than others on the island. However, the actions which fell within that description of discrimination were the same actions which I have found were justified under section 23-25. Thus, despite the words of subsection (2), it would be inconsistent to find that those same actions were unconstitutional because they were discriminatory. I am satisfied that, 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. Subsection (6) allows such a conclusion in relation to a law and I accept the same logic must apply to the resolution of the Falekaupule.
I decline to make the third declaration.

The request for constitutional redress in paragraph 4 of the originating summons is, therefore, not relevant.

The fifth paragraph questions the vices of the resolution under the Falekaupule Act. I have already found that it did not amount to a law and that, on the evidence before this Court, it was not made under the powers granted by that Act but under the traditional powers of the Falekaupule as the representatives of the island community. I refuse the application to quash the decision on the ground that it was ultra vires.

During the hearing, counsel for the applicant also raised the question of a breach of the applicant's constitutional right to freedom of movement. No objection was raised by the respondents to its late inclusion and, whilst no formal request for a declaration has been filed, I consider the Court should deal with it. I do so briefly.

Although not specifically included in the list of fundamental rights and freedoms in section 11, the right to freedom of movement is protected under section 26 and is therefore one of the "other rights and freedoms" referred to in section 11 (1).

Section 26 provides, subject to certain provisions that are not relevant to the present case, that:

"... no-one shall be deprived of -...

(g) the right to move freely throughout Tuvalu; or (h) the right to reside anywhere in Tuvalu; or

(i) the right to enter and to leave Tuvalu,

and no-one shall be expelled from Tuvalu."

There are numerous qualifications to this right and, in particular, nothing done under a law will be considered inconsistent to the section in relation to the entry into, movement within or residence in Tuvalu of a person who is not a citizen of Tuvalu. I mention that because, although the applicant deposed that he was from Niutao, he also stated that he held a Fiji passport. However, the Court has heard no further evidence or submisisons about his citizenship.

The basis upon which this aspect of the case was presented to the Court by the applicant was that he was ordered to leave or was banished from Nanumaga and this was, therefore, a clear deprivation of his right to move freely and to reside anywhere in Tuvalu. I have considered the evidence and I am satisfied that he left as the result of the advice of the Pulefenua and the police officer on the island. Although the Pulefenua deposed that the Falekaupule resolved to order the applicant to leave, that is not supported by the other witnesses or by the minutes of the meeting. I am satisfied there was no order of banishment or compulsion made by the Falekaupule.

I am sure the applicant's decision to go was strongly influenced by the violent actions of part of the island community but I do not find he was banished or ordered to leave and his rights under section 26 were not hindered by the respondents.

Thus the result is that I decline to make the declarations sought in paragraphs 1-3 and refuse the orders sought in paragraphs 4 and 5.

Dated: 11th day of October 2005.

CHIEF JUSTICE.