The Relationship Between The Constitution Amendment Act 1997 and the International

Instruments on the Rights of Women and Children

By C Wickliffe1

Introduction

The international human rights system has been born from positive legal theory and the revolutions in

France, America, Russia and Mexico.2 It has taken its modern form through a cascade of international

treaties, instruments and national constitutions. Since 1948 there has been an explosion of human rights

activity resulting in the adoption of many treaties/instruments. The catalysts for the modern proliferation of

treaties/instruments in the field of human rights were:

the atrocities committed against humanity by the fascists during the Second World War;3 and

the UN Declaration on the Granting of Independence to Colonial Countries and Peoples 1960.4

These events inspired the International Bill of Rights5 and the International Bill of Rights has itself inspired

the elaboration of its terms into 90 or more international treaties/instruments dealing with civil and political

rights, economic, social and cultural rights, anti-discrimination instruments, collective rights of minorities,

sector rights such as the rights of the disabled and the interface between human rights, the environment

and development. Far from exhausting the range of human rights issues to be recognised by the

international community, standard setting on the rights of other maginalised or disadvantaged groups

continues. For example there is an international committee currently drafting an Optional Protocol to the

Convention on the Elimination of all Forms of Discrimination Against Women and a draft Declaration on the

Rights of Indigenous Peoples is before the Commission on Human Rights. This last instrument is expected to

go before the General Assembly by the end of the Decade for Indigenous Peoples 1994-2004.

This paper deals with the key features of the international human rights system, important international

treaties/instruments dealing with the rights of women and children, including the Convention on the

Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the

Child (CRC), regional developments in human rights, methods for incorporating international

treaties/instruments into domestic law, the Fiji constitutional review process and the link with international

human rights law affecting women and children. It concludes with the view that once the Constitution

Amendment Act 1997 comes into effect, Fiji will directly incorporate CEDAW and the CRC into its domestic

law and arguably it will also incorporate other international instruments such as the Universal Declaration of

Human Rights and the International Covenant on Civil and Political Rights, to the extent that they may be

useful aids in the interpretation of legislation inconsistent with the terms of the Constitution Amendment Act

1997.

THE IMPACT OF THE INTERNATIONAL HUMAN RIGHTS SYSTEM

International human rights law impacts on almost all aspects of human endeavour and throws up challenges

to old established international principles and norms. It does this by challenging the notion of state

sovereignty. The Charter of the United Nations 1945 and the Universal Declaration of Human Rights 1948

are important regulators of state activity in the field of human rights despite the rhetoric in the Charter

preventing the intervention of the United Nations in matters essentially within the domestic jurisdiction of

any state.6 The Charter of the United Nations requires that states submit to the authority of certain UN

organs including the Security Council and ECOSOC and its subsidiary bodies (such as the Commission on

Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities) and

many states have also agreed to participate in the work of associated international agencies such as the

International Labour Organisation.7 Once states sign an international treaty/instrument they may also be

subject to state reporting procedures and/or optional protocol procedures thereby exposing their national

legal systems to international scrutiny and political pressure for change. Traditional notions of state

sovereignty are thereby being reformulated within the internationalisation of human rights and the

globalisation of the world economies and communication systems.

Secondly, international human rights law reverses the previous orthodoxy which held the domestic affairs of

a state, including the treatment of nationals and non-nationals within state borders, was entirely its own

affair.8 The reversal of previous presumptions has transformed the individual from "an object of international

compassion into a subject of international right"9 and there are a number of international human rights

treaties/instruments that reflect the modern understanding that individuals and groups can be the subject of

international law and where procedures allow, they can invoke international complaint procedures.10

STATE PARTICIPATION - OPTIONAL OR MANDATORY

Through a combination of UN bodies, international treaties/instruments and the customary practice of the

majority of states, the international human rights system can be used to monitor and review how states

conduct themselves in the field of human rights. It is true that participation in the system is optional, but

there are several factors that impose obligations on states to conform to fundamental human rights

standards and these are:

1. The majority of states are members of the United Nations and they have acceded to the Charter of

the United Nations 1945. The preamble of the Charter inter alia reaffirms the faith of Peoples of the

United Nations "in fundamental human rights, in the dignity and worth of the human person, in the

equal rights of men and women and of nations large and small." Human rights law is made by the

organs of the United Nations such as the General Assembly, ECOSOC and its subsidiary organs

through resolutions, the development of standards and the negotiation of treaties.11 Law is also

made by the International Court of Justice which to date has not contributed greatly to modern

understandings of international human rights law.12

2. The Universal Declaration of Human Rights 1948 (though originally a non-binding declaration) is

now consistently referred to as a base standard for the promotion and protection of human rights

and is now considered part of customary international law thereby binding on all states, even those

who abstained or who did not exist in 1945.13

3. More than three-quarters of the world’s states have ratified the major human rights treaties14 and

these are:

the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) 1966;

the International Covenant on Civil and Political Rights (ICCPR) 1966;

the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966;

the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 1979;

the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(CAT) 1984 - only half of the states of the world have acceded to this convention;

the Convention on the Rights of the Child (CRC) 1989.

As so many states have acceded to these treaties it is possible to argue that they have become part of

international customary law capable of incorporation direct into national legal systems.

ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS LAW

Where states have agreed to the terms of these treaties the primary mechanisms for enforcement are

special Committees15 whose core business includes receiving and hearing state party reports on how the

national legal systems, practices and policies conform with the terms of each international treaty. Three of

the six committees created under these treaties are authorised to consider communications (a form of

petition against a state, which can include the judiciary, alleging human rights violations under the

treaty/instrument) but only where the relevant state party has recognised the competence of the

committees to do so. In this way states are made to account for their performance on human rights matters.

Optional protocols are also being developed in relation to ICESCR and CEDAW.16 The comments made by

Committees on country reports, in their decisions on communications and through their general comments

elaborating the meaning of articles of each treaty are an important source of law and should not be ignored

when considering a national case raising human rights issues. Often all these sources of law are neglected in

the implementation of human rights at the local level. Access to the Committees by way of the optional

protocol procedures requires that complainants first exhaust domestic remedies and there is a wealth of

case law on what this term means.

WOMEN AND CHILDREN IN INTERNATIONAL LAW

There are a number of international human rights instruments that recognise the rights of women and

children. The Charter of the United Nations and the Universal Declaration of Human Rights reaffirm the faith

of States in fundamental human rights and freedoms, in the inherent dignity and worth of the human

person, in the right to self-determination for peoples and in equality of human rights for all without

distinction on the grounds of sex or other status such as a child’s age.17 The ICCPR and the ICESCR also

declare the right to freedom from discrimination. All the major general international treaties and instruments

apply to women and/or children. General human rights enunciated in these instruments are there to protect

all people and therefore they may be utilised by women, children or advocates for children to pressure state

governments into complying with international standards found in instruments/treaties or customary

international law. This pressure may be generated through accredited NGOs reporting on state practices to

the relevant international agencies, United Nations organs or international committees or it may be by

complaining using the communication/petition procedures established under international and regional

treaties/instruments. There are a number of examples of women filing communications with the Human

Rights Committee established under ICCPR.18

Several international instruments/treaties specifically address the rights of women and children and they

include the instruments listed below.

1. Women

The Declaration on the Elimination of Violence Against Women; CEDAW; the Declaration on the Protection of

Women in Emergency and Armed Conflict; the Declaration on the Elimination of Discrimination against

Women; the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages;

the UNESCO Convention Against Discrimination in Education; the Convention on the Political Rights of

Women; the ILO Equal Remuneration Convention; and the Convention for the Suppression of the Traffic in

Persons and of Exploitation of the Prostitution of Others.

2. Children

The Declaration on the Rights of the Child; CRC; the Declaration on Social and Legal Principles Relating to

the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally

and Internationally; the Convention on the Prevention and Punishment of the Crime of Genocide 1948 which

defines genocide as inter alia forcibly transferring children of one group to another with the intent to

destroy, in whole or in part, a national, ethnic, racial or religious group.19

There are several UN bodies that have a mandate to deal with issues concerning women and they are

Commission on the Status of Women created in 1946 as a subsidiary organ of ECOSOC, the Committee on

the Elimination of Discrimination Against Women established in 1982 under CEDAW, the Division for the

Advancement of Women located within the Centre for Social Development and Humanitarian Affairs which

services the previous two bodies and the International Research and Training Institute for the Advancement

of Women which carries out research, training, seminars and studies pertaining to women.20

CEDAW AND THE CRC

There are very few fully independent countries in the Pacific who have acceded/ratified the two international

covenants that combined with the Universal Declaration of Human Rights make up the International Bill of

Rights. Therefore, the protections offered by these important instruments are available only to women of the

countries/territories still under colonial rule or in a self-governing relationship with their former

administrating/trustee/colonial power namely:

Tokelau through New Zealand (Aotearoa);21

New Caledonia (Kanaki), French Polynesia (Te Ao Maohi) and Wallis and Futuna through the

Republic of France;22

Guam, Hawaii, Northern Marianas and American Samoa through the United States of America;23

Pitcairn Islands through the United Kingdom;

Easter Island (Rapanui) through Chile;24

Solomon Islands;25

Pitcairn through the United Kingdom.26

The two major enforceable instruments (as opposed to declarations) dealing specifically with the rights of

women and children are CEDAW and the CRC. Nearly all the countries in the Pacific have ratified the

CRC.27 However, only a hand full have acceded/ratified CEDAW.28 Fiji is one of the few countries who have

done so.29 The other countries/territories, excluding Australia and New Zealand, who have acceded/ratified

are Samoa, Vanuatu, Papua New Guinea, Cook Islands, Niue and Tokelau, the French Territories of New

Caledonia (Kanaki), French Polynesia (Te Ao Maohi) and Wallis and Futuna.30

IMPLEMENTING HUMAN RIGHTS IN THE REGION

In other regions the Universal Declaration of Human Rights has inspired the development of regional

charters of human rights and the establishment of regional Commissions and courts designed to hear

communications from individuals. The decisions of the European, African and Inter-American Commissions

and courts of human rights are therefore persuasive decisions that should be given some weight when

considering how to interpret international treaties/instruments in a national case involving human rights

issues. Good human rights advocates will refer to these cases in arguments before domestic courts.

There is no Pacific Charter of Human Rights and no forums such as a regional commission or court

established to monitor and review the practice of states in the field of human rights. There are many

constitutions in the region that contain provisions recognising the existence, without discrimination by

reason of race, national origin, colour, religion, opinion, belief, or sex, of fundamental human rights and

freedoms.31 Many of these Constitutions appear to follow a similar format32 and therefore decisions from

superior courts in the region on the interpretation of these Constitutions can be helpful and persuasive in

deciding cases at the national level. New Zealand, while it does not have a written Constitution, does have

the New Zealand Bill of Rights Act 1990 and through judicial activism in the Court of Appeal (lead by the

previous President, Lord Cooke of Thorndon) the 1990 Act now has assumed a quasi constitutional status.33

POLITICAL PARTICIPATION OF PACIFIC WOMEN

There are 21 governments (excluding Australia and New Zealand) in the Pacific region. Compared to the rest

of the world this number of governments is extremely high for a population of 6.5 million people.34 At least

until 1994, few of these governments ever had more than one women member of government at a

time.35 Through analysis, Drage has shown that as at 1994, in just under 60 per cent of the legislatures,

there was only one women member amounting to less than 10 per cent of members.36 Based on Drage’s

statistics very few Pacific women have been in a position (such as Minister of Justice) to appoint more Pacific

women to the judiciary, to the magistrates bench or to tribunals/commissions applying national law. While

there is greater participation within government departments/ministries, Pacific women in government very

rarely assume a prominent role in deciding what international or regional treaties/instruments should be

acceded to or ratified by States. This is only a role that Cabinet or the Executive can perform. As women are

achieving this status on rare occasions then it is likely that this trend will continue for some time. I suggest

that more countries in the region may have acceded to CEDAW by now had more women been involved in

decision making.

These matters require further study but research to date suggests tradition and cultural

constraints,37 religion and the attitudes of Pacific men and women38 may contribute to the lack of

participation by women in politics and their limited participation in regional and international affairs.

Women have been politically active, but it is a form of activism that has generally been confined to certain

government ministries such as Ministries of Women’s Affairs, Social Welfare etc. and to the civil society

sector.39 They have become the women’s NGOs, the chiefs, the village leaders, the lobbyists, the church

organisations, the peoples’ organisations who attempt to support women and their families at the local level,

who undertake gender training or who are campaigning against male violence towards women and

children.40 They have become the targets of the more that 30 international organisations who work in the

Pacific implementing programmes for the advancement of women including their advancement in

politics.41 This does not include the myriad of programmes sponsored by country donors in the Pacific.42

THE ROLE OF THE COURTS AND OTHER ORGANS APPLYING NATIONAL LAW

No country in the region has special provisions in their constitutions recognising all human rights of women

and children. In these circumstances the most effective way of implementing CEDAW or the CRC, other than

by direct action against a state in international forums, is through the amendment of national constitutions

and through the normal activity of national legislatures, national courts and other organs applying national

law.43 This requires:

reform of the state constitutions; and/or

passage of ordinary legislation such as the New Zealand Bill of Rights Act 1990; or

judicial activism.

Where amendment of national constitutions or the passage of ordinary statutes such as a Bill of Rights Act is

not possible, the ability of the judiciary to effectively implement CEDAW and the CRC may be hindered. This

is because of the common law rule that international treaties/instruments must be incorporated into

domestic law through legislation before they can be of legal effect.44 Fiji has not passed explicit legislation

incorporating either CEDAW or the CRC into domestic law. According to the orthodox view, because they

have not been explicitly ratified CEDAW and the CRC are of no legal effect in this jurisdiction.

However, in the last few years we have been witnessing a revolution of legal thought in domestic courts of

other countries. There are three approaches to incorporation of international treaties/instruments into

domestic law that have manifested themselves in the region and these approaches may be appropriate to

adopt in Fiji.

1. Aid to the Interpretation of Ambiguous Constitutional Provisions/Statues

The House of Lords has been prepared to refer to international or regional treaties/instruments as

aids to the interpretation of ambiguous statutes.45 A New Zealand case is illustrative of this

approach. In Van Gorkom v Attorney-General46 the New Zealand Court of Appeal was required to

interpret regulations made under the education legislation in New Zealand. Under the regulations

the Minister of Education laid down certain conditions which discriminated against married female

teachers as they failed to provide the same transfer and house-hold removal benefits enjoyed by

married male teachers. Cooke J (as he then was) in the Supreme Court of New Zealand, referring to

high authority, used the Universal Declaration of Human Rights to influence his interpretation of the

legislation and the conditions adopted by the Minister.47 Although not all the judges agreed with his

Lordship’s approach, the Court of Appeal upheld the decision. Using the line of cases on statutory

interpretation, it would not be too difficult to argue that ambiguous constitutional provisions should

be interpreted in the same way. In both cases the justification would be that there is a judicial

presumption that states intend to comply with their international obligations. The result is that

statutes that are ambiguous or which are too general may be interpreted in a manner consistent

with international treaty obligations of states under CEDAW and the CRC.

2. Direct Implementation of Fundamental Human Rights and Freedoms

There are a number of cases that suggest that the courts may intervene to protect fundamental

rights and freedoms and that most international treaties/instruments or national constitutions add

nothing to the exiting protections provided in the common law.48 Other courts have gone further and

suggested that there may be limits to the power of the Executive to legislate where it seeks to

interfere with the constitutional arrangements of a country49 or where it seeks to interfere with

fundamental rights and freedoms of the individual.50 Whether specific fundamental rights of women

and children recognised in CEDAW or the CRC could be used to justify direct judicial intervention

remains to be argued.

3. Judicial Review

Other courts have found that international treaties/instruments are relevant considerations or could create

legitimate expectations capable of recognition in judicial review of administrative action cases. An example

from New Zealand is Tavita v Minister of Immigration51 where a citizen of Samoa visitor’s permit had

expired. He was faced with the prospect of removal by warrant executed by the New Zealand immigration

authorities. He appealed to the Minister of Immigration seeking cancellation of the warrant on humanitarian

grounds. The Minister refused the appeal. He then applied for judicial review of the Minister’s decision.

During this time he also married a New Zealand women and they had one child. One of the grounds on

review was that the Minister failed to take into account the CRC. The Court of Appeal found that

international treaty obligations might be an implied relevant consideration in administrative decision making.

In this case the Minister had not taken New Zealand’s obligations under the CRC into account and the case

was remitted back to the Minister for a new decision. Mr Tavita was eventually permitted to stay in New

Zealand and the immigration policies were reviewed for compliance with New Zealand’s international

obligations.52 In Australia, another immigration case involving a father of three children53 resulted in the

High Court of Australia finding that ‘Australia accession to the CRC gave rise to a legitimate expectation that

applications for resident status would be treated in accordance with the terms of the convention’.54 In this

way courts can be involved in ensuring that administrative decision makers take into account the

international treaty obligations of states under CEDAW and the CRC.

THE CONSTITUTIONAL REVIEW PROCESS

In 1996 the Reeves Commission completed its report for the Fijian Government on the Constitution.55 That

report recommended the continuation and adoption of new provisions on fundamental rights and freedoms

thus expanding the ambit of the old Bill of Rights.56 All the recommendations of the Reeves Commission in

relation to the Bill of Rights and the Social Justice Chapters were accepted by the Joint Parliamentary Select

Committee in their report to the Parliament of Fiji.57

1. The Constitution (Amendment) Act 1997

The Constitution (Amendment) Act 1997 of the Republic of the Fiji Islands heralds a new dawn in the

promotion and protection of fundamental human rights and freedoms. The Constitution of the Republic of Fiji

Islands, contained in the Act, reaffirms Fiji’s commitment to fundamental human rights and freedoms adding

to the previous Bill of Rights stronger guarantees for the prevention of discrimination, the establishment of a

Human Rights Commission and a social justice chapter akin to that incorporated into the Constitution of

Papua New Guinea.

The Constitution is the supreme law of the State of Fiji.58 Therefore any law inconsistent with the

Constitution is invalid to the extent of that inconsistency.59 In interpreting a provision of the Constitution

regard must be had to the context in which the Constitution was drafted and to the intention that

constitutional interpretation should take into account social and cultural developments, especially:60

developments in the understanding of the content of particular human rights; and

developments in the promotion of particular human rights.

This is significant, as it potentially incorporates into Fiji’s legal system developments such as the

Government of Fiji’s accession to CEDAW and the CRC which combined with the impact of s 43 incorporates

these two international treaties into the domestic law of Fiji.

2. The Bill of Rights

The Constitution of the Republic of Fiji Islands contains a new Bill of Rights.61 The 1977 Act declares that

Chapter Four binds the following groups:

the legislative, executive and judicial branches of government at all levels: central, divisional and

local; and

all persons performing the functions of any public office.62

This means that the Bill of Rights binds all branches of government including local authorities, city councils

and all public officials. The rights guaranteed in the Bill of Rights are to apply according to their tenor. They

are subject only to limitations under laws of general application permitted by the Chapters Four and

Fourteen.63 The specification of rights and freedoms in Chapter Four is not to be construed as denying or

limiting other rights and freedoms recognised or conferred by common law, customary law, or legislation to

the extent that they are not inconsistent with Chapter Four.64

3. Application of the Bill of Rights

The Bill of Rights applies to all laws that are in force or that will be made following the

commencement of the Constitution.65 It applies to all administrative and judicial actions taken after

the commencement of the Constitution. The result is that judicial officers will be obliged to consider

Chapter Four in deciding cases before them.66 Failure to do so may result in their decisions be

overturned on appeal. Judicial officers must apply the Bill of Rights when they interpret legislation.

In doing so they must interpret the provisions of the Bill of Rights contextually, having regard to the

content and consequences of the legislation that is at issue, including that legislation’s impact upon

individuals, groups or communities.67 Where a law limits a right or freedom set out in the Chapter, it

need not be declared invalid if it is reasonably capable of a more restricted interpretation.68

When interpreting the provisions of the Bill of Rights, the courts must promote the values that

underlie a democratic society based on freedom and equality and must, if relevant, have regard to

public international law applicable to the protection of the rights set out in Chapter Four.69 This

would include CEDAW and the CRC. Fiji has thereby incorporated CEDAW and the CRC into its

domestic legal system.

The Bill of Rights addresses the rights of women and children when it declares that every one has

the right to equality before the law70 and that they can not be discriminated against, directly or

indirectly, on the grounds of their gender or their age.71 Accordingly no law or administrative action

taken under the law may directly or indirectly impose a disability or restriction on women or children

solely on the grounds of their gender or age.72 The Bill of Rights also declares their right of access,

without discrimination on the grounds of their gender or age, to shops, hotels, lodging houses,

public restaurants, places of public entertainment, public transport services, taxis and public

places.73 Those who provide services under s 38(4) must facilitate reasonable access to these public

places.74

Where people believe their rights under the Constitution have been contravened they may apply to

the High Court for redress.75 It is anticipated that test cases on the incorporation arguments relating

to CEDAW and the CRC will be run within the first decade of the 1997 Constitution coming into

effect.

4. Limitations on Rights

As with all constitutions, there are limitations placed on the extent to which rights recognised in

Chapter Four may be exercised. So, for example, the right to be free from discrimination may be

limited by a law or administrative action taken under a law for the purpose of providing for certain

Fijian and Rotuman customs in relation to land, fishing rights and chief titles or rank,76 or for

providing for the governance of Fijians, Rotumans or Banaban communities.77

5. The Human Rights Commission

The Bill of Rights authorises the establishment of a Human Rights Commission. When established its

functions will be:78

to educate the public about the nature and content of the Bill of Rights including its origins in

international conventions and other international instruments, and the responsibilities of the Human

Rights Committee, the Committee on the Elimination of Racial Discrimination and other organs of

the General Assembly of the United Nations for promoting respect for human rights;

to make recommendations to the Government about matters affecting compliance with human

rights, including the making of a recommendation that a particular question about the legal effect of

a provision of the Bill of Rights be referred to the Supreme Court for its opinion; and

to perform such other functions as are conferred on it by a law made by the Parliament.

6. Social Justice

In addition to the specific guarantees of equality in the Bill of Rights, the Social Justice Chapter empowers

Parliament to undertake programmes for disadvantaged people designed to achieve effective equality of

access to education and training, land and housing and participation in commerce at all levels and branches

of the state.79 Special programmes for women and children can be justified by reference to this section of

the Constitution.

Approaches to Constitutional Interpretation

The Reeves Commission declared that the purpose of the Bill of Rights:80

is to protect the rights and freedoms of individuals, and sometimes of groups, from undue interference by

the state. It sets standards against which the executive and legislative branches of government should

measure their policies, administrative action and legislation. The judicial branch has the responsibility of

determining whether the other two branches have acted consistently with those standards. This means that

the validity of both the laws made by Parliament and the government’s administrative actions can be tested

in the courts.

On the courts rests the task of interpreting and maintaining the integrity of the Constitution. This is

important for the people and for the Government as a reflection of the people. This is an enormous

responsibility requiring sustained and concerted effort from both practitioners and the judiciary to keep

abreast of international, regional and national developments in the field of human rights.81 It is not enough

to know the provisions of the Bill of Rights in a constitution. What is needed is a professional bar and a

judiciary that can research and then incorporate into their submissions or decisions similar provisions in

international and regional treaties, decisions of international and regional human rights bodies, relevant

constitutions, relevant court decisions from comparable jurisdictions, and national cases upholding the

importance of judicial vigilance in relation to state constitutions. It is now the case that general principles of

interpretation of constitutions containing Bills of Rights are being discussed all over the world. While it is

accepted that national courts must make decisions in light of the special circumstances of their countries,

broad principles from superior courts can be persuasive and compelling and they should not be ignored. In

most common law countries it is now accepted that there are certain fundamental principles for the

interpretation of Bills of Rights and these are explained in detail in Steven’s book, The Interpretation of

Fundamental Rights Provisions - International and Regional Standards in African and Other Common Law

Jurisdictions.82 Included in these principles is the notion that ratified treaties provide a legitimate guide in

interpreting constitutional provisions.83 In the case of Fiji the application of this principle coupled with

sections 3 and 43 of the Fiji Constitution would result in CEDAW and the CRC being capable of direct

enforcement in domestic law. There is also case law to indicate how breaches of the Bill of Rights can result

in the courts providing effective remedies including damages for an aggrieved citizen.84

CONCLUSION

When considering the relationship between the Constitution of the Republic of the Fiji Islands 1997 and the

international instruments on the rights of women and children it is always important to review the context

within which international treaties/instruments and national constitutions are made, their binding or non-

binding status, the implications of ratification and their implementation and interpretation at the national

level.

This paper attempts to provide this review. In addition, the disappointing commitment of Pacific states to

human rights is noted, as many have not ratified major international human rights treaties/instruments such

as the two international covenants that combined with the Universal Declaration of Human Rights comprise

the International Bill of Rights. Many Pacific constitutions are in need of reform in light of our contemporary

understanding of fundamental human rights and freedoms. This state of affairs and the political

marginalisation of Pacific women has lead to a situation where important treaties such as CEDAW have not

been adopted in most Pacific countries.

Fiji, however, is one of the few countries who have acceded to CEDAW and the CRC. It has recognised the

need for constitutional review and it is to be commended for the successful adoption of one of the most

progressive Constitutions (and Bill of Rights) in the Pacific. In enacting the Constitution (Amendment Act)

1997, the Fiji Parliament has recognised the importance of international human rights treaties/instruments

affecting women and children and arguably all human rights developments including non-ratified treaties by

the explicit references to developments in human rights and public international law in sections 3 and 43 of

the 1997 Act. Therefore it is concluded that CEDAW and the CRC are directly enforceable in the domestic law

of Fiji and it is further suggested that even treaties/instruments that have not been ratified by Fiji but which

form part of customary international law may be incorporated through the Constitution.

By way of conclusion it is suggested that the continuing effort in Fiji to protect the fundamental rights and

freedoms of women and children will now shift its focus from the politicians to the practitioners of law and to

the judiciary as they rise to meet the challenge of making this Constitution come alive in a real and

meaningful way for the women and children of Fiji.

ENDNOTES:

1. CFTC Fellow in Human Rights Education, Institute of Justice and Applied Legal Studies, University of the

South Pacific.

2. Nariman F, ‘Trends in Internationalisation of Human Rights Law’, in Rishworth P (ed) The Struggle for

Simplicity: Essays for Lord Cooke of Thorndon, 1997, Butterworths: Wellington, 237.

3. Imre Szabo, ‘Historical Foundations of Human Rights and Subsequent Developments’, in Vasak K and

Aston P (eds), The International Dimensions of Human Rights, Vol 1,1982, UNESCO, Greenwood Press:

Connecticut, 21.

4. UN GA Resolution 1514 (XV), 14 December 1960.

5. The International Bill of Rights is the term used to refer to the Universal Declaration of Human Rights

1948, the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant

on Economic, Social and Cultural Rights (ICESCR) 1966.

6. See, for example the Charter of the United Nations 1945 Art 2(7).

7. See, for example Art 13 (re: the powers of the UN General Assembly) and Arts 61-62 (Re: the powers of

ECOSOC).

8. Nariman F, above n2, 238-239.

9. Idem, 239.

10. Idem, 239, and see for example the First Optional Protocol to the International Covenant on Civil and

Political Rights 1966; see also ECOSOC Resolution 1503 (XLVIII) 27 May 1970 which authorises procedures

for the Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and

Protection of Minorities to examine communications from individuals and NGOS which appear to reveal ‘a

consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’.

11. The list includes the Commission on Human Rights and its Sub-Commission; the Commission on the

Status of Women (CSW); the Commission on Sustainable Development (CDS); the Commission for Human

Settlements; and the Commission on Crime Prevention and Criminal Justice.

12. Nariman F, above n2, 251.

13. Idem, 240.

14. Idem, 242-244.

15. Committee on the Elimination of Racial Discrimination (Art 8, CERD); the Human Rights Committee (Art

28, ICCPR); ECOSOC and the Commission on Human Rights (Art 16-22 ICESCR) which has established the

Committee on Economic, Social and Cultural Rights; Committee on the Elimination of Discrimination Against

Women (Art 17 CEDAW); Committee Against Torture (Art 17 CAT); Committee on the Rights of the Child

(Art 42, CRC).

16. There is some pessimism about the political acceptability of these draft protocols (see, for example

Nariman F, above n2, 247 but other commentators are optimistic that they will receive support (see, for

example Chen M, ‘Improving Enforcement of the Women’s Rights Convention’, Vo1 2(1), 1996, Human

Rights Law and Practice, Brookers: Wellington, 23-28).

17. See, for example the Charter of the United Nations 1945 preamble, Art 1 and the Universal Declaration

of Human Rights preamble, Art 1, Art 2 (rights to apply without distinction).

18. See for example Lovelace v Canada, United Nations Human Rights Committee, 30 July 1981 (Views

under article 5(4) of the Optional Protocol to ICCPR concerning Communication No. r6/24).

19. See Convention on the Prevention and Punishment of the Crime of Genocide 1948, Art II.

20. See discussion in the Human Rights Defenders Manual, 1995, Diplomacy Training Programme Ltd,

UNSW: Sydney, 7.

21. New Zealand ratified the ICCPR and the ICESCR on 28 December 1978. It ratified the two Optional

Protocols of the ICCPR on 5 May 1989. Note also that Australia ratified the ICCPR on 13 August

1980 and the ICESCR on 10 December 1975. Australia ratified the First Optional Protocol to the

ICCPR on 24 September 1991and the Second Optional Protocol on 1 October 1990.

22. The Republic of France acceded to the ICCPR and the ICESCR on 4 November 1980 but it has not

acceded to the Optional Protocols.

23. The USA signed the ICESCR on 5 October 1977 but has not ratified it. It signed and ratified the

ICCPR (5 October 1977/8 January 1992) but it has not acceded to the two Optional Protocols of the

ICCPR.

24. Chile ratified the ICCPR and the ICESCR 10 February 1972.

25. Solomon Islands acceded to the ICESCR by succession on 17 March 1976 but not the ICCPR.

26. The United Kingdom ratified the ICCPR and the ICESCR on 20 May 1976.

27. There are 191 parties to the CRC. The dates of ratification and/or accession for Pacific

countries/territories, excluding Australia and New Zealand, are Cook Islands (6 June 1997, with

reservations); Fiji (2 July 1993/13 August 1993); Kiribati (11 December 1995, with reservations);

Marshall Islands (14 April 1993/4 October 1993) Federated States of Micronesia (5 May 1993)

Nauru (27 July 1994); Niue (20 December 1998); Palau (4 August 1995); Samoa (30 September

1990/29 November 1994, with reservations); Solomon Islands (10 April 1995); Tokelau through

New Zealand (1 October 1990/6 April 1993 with reservations); Tonga (6 November 1995); Tuvalu

(22 November 1995); Vanuatu (30 September 1990/7 July 1993); the French Territories of New

Caledonia (Kanaki), French Polynesia (Te Ao Maohi) and Wallis and Futuna (26 January 1990/7

August 1990, with reservations). NB an amendment to art. 43(2) of the CRC has been acceded to

by Fiji 20 August 1997 but is not yet in force.

28. This is to be compared to their commitment to the CRC. At the end of 1997 there were 162 State

Parties to CEDAW, a number no too far below the number of State Parties to the CRC.

29. Fiji acceded on 28 August 1994 with reservations to arts. 5(a) and (9).

30. Samoa (25 September 1992); Vanuatu (8 September 1992); Papua New Guinea (12 June 1995);

Cook Islands, Niue & Tokelau through New Zealand (17 July 1980/10 January 1985); the French

Territories through the Republic of France (17 July 1980/14 December 1983).

31. See, for example Constitution of Tuvalu, Part II; Constitution of the Cook Islands, Ss 64-66;

Constitution of Easter Island (Rapanui); Constitution of the State of Hawaii, Art 1; Constitution of

the Independent State of Western Samoa Part II; Constitution of the Independent State of Papua

New Guinea, Art 5; Constitution of Solomon Islands, chap II; Constitution of Vanuatu, chap II;

Constitution of Kiribati ch II; Constitution of Nauru Part II; cf New Zealand Bill of Rights Act 1990.

32. See, for example Constitution of the Independent State of Papua New Guinea, Art 5; Constitution of

Solomon Islands, ch II Constitution of Vanuatu, ch. II; Constitution of Kiribati, ch II; Constitution of

Nauru.

33. Rishworth P, ’Lord Cooke and the Bill of Rights’ in Rishworth P. (ed), The Struggle for Simplicity:

Essays for Lord Cooke of Thorndon. 1997, Butterworths, Wellington, 295 for a discussion on the

nature and extent of this activism 330.

34. Drage J, ‘Women’s Representation in the Pacific Islands’ in Busch W, Crocombe M & Ors (eds), New

Politics in the South Pacific, 1994, Institute of Pacific Studies: Suva, 1994, 158.

35. Ibid.

36. Idem, 165.

37. Idem, 166-167.

38. See Crocombe M, ‘Women and Politics in Polynesia’ in Busch W, Crocombe M & Ors (eds) New

Politics in the South Pacific, 1994, Institute of Pacific Studies: Suva, 187-188, 207; and Drage J,

above n34, 167.

39. Drage J, above n 34, 177.

40. Idem, 175-177.

41. See Crocombe M, above n 38, 186.

42. One of the best examples of this is the Pacific Regional Human Rights Education Resource Team

(RRRT) British Aid/DFID.

43. See Nariman F, above n1, 249.

44. See for example Te Heuheu Tukino v The Aotea District Maori Land Board [1941] NZLR 590, 596.

21. Attorney-General v BBC [1981] AC 303, 354 and Garland v British Rail Engineering Ltd [1983] 2 AC

751, 771.

21. Van Gorkom v Attorney-General [1978] 2 NZLR 387.

21. Van Gorkom v Attorney-General [1977] 1 NZLR. 535, 542-543.

22. See for example Attorney-General v Guardian Newspapers Ltd (Spycatcher No 2) [1990] AC.

21. Bohams Case (1610) 8 Co Rep 114a; Brader v Ministry of Transport [1981] 1 N.Z.L.R. 73, 78; and

see Rishworth P, above n 32, 297-298.

21. Fraser v State Services Commission [1984] 1 NZLR 116; Taylor v New Zealand Poultry

Board [1984] 1 NZLR 394; and see Allan T. Constitutional Rights and Common Law (1991) 11 Ox

JLS 453.

22. [1994] 2 NZLR 257.

23. See Nariman F, above n 1, 252.

21. Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 C.L.R. 273

22. Nariman F, above n1, 252.

23. Report of the Fiji Constitution Review Commission, PP(F)34/1996.

24. Idem, 681-698.

25. Report of the Joint Parliamentary Select Committee on the Report of the Fiji Constitution Review

Commission, PP(F)17/1997, 16.

26. Constitution of the Republic of Fiji Islands 1997,s 2(1).

27. Section 2(2).

28. Section 3.

29. Chapter 4.

30. Section 21(1).

31. Section 21(2).

32. Section 43 (1).

33. Section 21(3) & (5).

34. Section 21(3).

35. Section 21(4).

36. Section 43(3).

37. Section 43(2).

38. Section 38(1).

39. Section 38(2)(a).

40. Section 38(3). Note that in relation to age, a law or administrative action is not inconsistent with

the right to freedom from discrimination during the period of two years after the commencement of

the Constitution.

41. Section 38(4).

42. Section 38(5).

43. Section 41(1).

44. Section 38(8).

45. Section 38(9).

46. Section 42.

47. Chapter 5.

48. Report of the Fiji Constitution Review Commission, PP(F)34/1996, 117.

49. The Fiji Magistrates have issued the Denarau Declaration 1997, declaring their commitment to

upholding the rights of women and children.

50. Stevens J, The Interpretation of Fundamental Rights Provisions - International and Regional

Standards in African and Other Common Law Jurisdictions, 1997, International Centre Against

Censorship: London.

51. Idem, 12.

52. See, for example Simpson v Attorney General [1994] 3 NZLR 667 (Baigent’s case).