No Island is an Island Unto Itself

Reflections on human rights and contemporary issues

Keynote address

The Secretariat of the South Pacific
Pacific Regional Consultation for Judges on Human Rights and Contemporary Pacific Issues
Park Regis Hotel, Brisbane, Australia

Word version

It might be thought that there is something odd about an Australian judge being tasked with delivering a keynote address at the opening of a conference of Pacific judges on human rights and contemporary South Pacific issues.

It is not because Australia does not consider itself a Pacific nation. We most emphatically do.

Nor is it because of an absence of collegiate bonds across the South Pacific judiciary. These have never been stronger. At the individual level, I am living proof of that, having the privilege of an additional commission as a judge of the Supreme and National Courts of Papua New Guinea. The collegiate bonds are many. Our gathering here today is one example. More formal examples exist. There are memoranda of understanding between the two courts of which I am a member, another between the Supreme Court of Queensland and the Supreme and National Courts of Papua New Guinea. Later this month, on 19 June, another such memorandum will be signed between Allsop CJ of my court and Lunabek CJ of the Supreme Court of Vanuatu.

Nor is it because there is a want of legislative and administrative provision for human rights in Australia. We have long had a Human Rights and Equal Opportunity Commission, which exercises responsibilities under a plethora of Federal legislation^[2]. The Federal Court of Australia and the court now known as the Federal Circuit Court of Australia exercise jurisdiction under this legislation. The Commission today^[3] lists the following as its major areas of work:

• Aboriginal and Torres Strait Islander Social Justice
• Age Discrimination
• Children’s Rights
• Disability Rights
• Human Rights Scrutiny
• Race Discrimination
• Sex Discrimination

You will hear later in this conference from a member of the Commission, Commissioner Graeme Innes AM, Disability Discrimination Commissioner, on the subject of the challenge of disability rights.

The reason, I suggest, why, at least at first blush, it might be thought odd to ask an Australian judge to undertake the task is that, as the term "bill of rights" is used in a contemporary, populist sense,^[4] one is not to be found in the Australian constitution.

Further, although in 2009 the Australian government’s National Human Rights Consultation Committee (NHRCC), chaired by Father Frank Brennan AO, recommended^[5] the introduction of a Human Rights Act listing rights drawn from major human rights treaties, making provision that new legislation introduced into the Parliament was compatible with that Act and conferring jurisdiction on the High Court to declare existing legislation incompatible with the Act and to refer the legislation back to Parliament for possible amendment, that recommendation was not taken up by the then Australian Government. The government’s response, in April 2010, "Australia’s Human Rights Framework",^[6] eventually saw the introduction of the Human Rights (Parliamentary Scrutiny) Act 2011^[7] which, "introduced a requirement for Statements of Compatibility to accompany all new Bills and disallowable legislative instruments and established a new Parliamentary Joint Committee on Human Rights".^[8]

To use the term "bill of rights" to refer to a constitutional or a statutory recitation of internationally recognised human rights is, with all due respect to those who adopt it, apt to mislead about our constitutional heritage and development. For we do have a "Bill of Rights", the Bill of Rights 1689 (Eng) (1689 Bill of Rights).^[9] In the 1689 Bill of Rights are declared freedoms without which a "bill of rights" in a populist sense is in practice nothing more than pious cant.

It is not my purpose today to advocate, one way or the other, whether Australia should have a populist bill of rights. Instead, I want to recall and prompt the recollection of rights found in that 1689 Bill of Rights and to reflect and prompt reflection upon how in the South Pacific of the early 21^st century those and other rights of more contemporary recognition exist and interact in practice.  

Some of what is found in the 1689 Bill of Rights, was long ago superseded by later constitutional developments, notably the emancipation of Roman Catholics in the early 19^th century but other parts remain declaratory of freedoms which continue to shape the form of Australian society and of many contemporary societies in the South Pacific. Let me recall particular freedoms which were declared, not created, by the 1689 Bill of Rights and the related articles in that statute:

• Articles 1 and 2 - a freedom against the assumption and exercise by the executive of a power of dispensing with and suspending of laws, and the execution of laws, without the consent of parliament.
• Article 3 - a freedom against the creation of a court of justice by executive fiat, as opposed to constitutionally authorised means.
• Article 4 - a freedom against the levying of a tax for the use of the executive government by executive fiat, as opposed to with the approval of parliament.
• Article 6 - the absolute subjection of the military to parliamentary authority, as manifested by a freedom against the raising and keeping of a standing army by the executive without the consent of parliament.
• Article 8 - freedom of election of members to serve in parliament.
• Article 9 - freedom of speech in Parliament.
• Article 10 - freedom against excessive bail, excessive fines and cruel and unusual punishments.
• Article 11 - trial by jury.
• Article 12 - freedom against punishment otherwise than according to law.
• Article 13 - Regular holding of Parliament for "the redress of grievances, and for the amending, strengthening and preserving" of our law.

Scotland, at the time, was a separate country and had its own parliament. In 1689 that parliament, too, enacted legislation, the Claim of Right 1689 (Scot)^[10] declaratory of freedoms that the Scots, even then, regarded as their birthright. These were very similar to those of the English but notably also expressly included the independence of the judiciary.^[11] In England, express statutory recognition of the independence of the judiciary came with the Act of Settlement 1701 (Eng).^[12]

Without freedoms such as a parliament elected by free and fair elections, an independent judiciary and the subjection of the military to civil authority, rights such as those found in the Universal Declaration of Human Rights (1948)^[13] do not count for much.

In 1936, the constitution of the Soviet Union provided that justice was to be administered by the courts.^[14] It also contained a provision^[15] which recognised freedom of speech; freedom of the press; freedom of assembly, including the holding of mass meetings; and freedom of street processions and demonstrations. None of this prevented the "Great Purge" which occurred later that decade or the execution by a bullet in the back of the neck of thousands in the basement of the Lubyanka after a show trial or no trial at all.

At independence, Chapter III of the Constitution of Zimbabwe^[16] contained a Declaration of Rights which incorporated in its preamble the supremacy of the rule of law under that constitution and, in Chapter VIII, provision for the independence of the judiciary. None of this prevented the arbitrary ousting of that country’s Chief Justice, Gubbay CJ, or the progressive erosion, after independence in 1980, of the rule of law.^[17]

Earlier this year, a select committee charged with "ensuring a people-driven constitution" produced the final draft of a new constitution for Zimbabwe.^[18] That draft contains an impressive statement of "national objectives"^[19] and an entrenched declaration of rights,^[20] which incorporates rights found in the Universal Declaration of Human Rights. It also makes provision for the independence of the judiciary and declares that the independence, impartiality and effectiveness of the courts are "central to the rule of law and democratic governance".^[21] An overwhelming majority of electors agreed to that constitution at a referendum in March this year,^[22] as did President Mugabe on 22 May 2013. Last week, on 31 May 2013, in a unanimous judgment,^[23] Zimbabwe’s Constitutional Court ordered the President to hold elections by 31 July 2013 for the election of a government to govern under that constitution.^[24] Whether that order is implemented remains to be seen. If it is, and a free and fair election and orderly assumption of power follows, that will be eloquent proof that scepticism^[25] as to whether the authoritarian political culture of that country will change is overstated.

What has this to do with the South Pacific?

Fiji became independent on 10 October 1970. Its post-independence constitution made elaborate, entrenched provision in respect of fundamental rights and freedoms, a parliament and an independent judiciary.^[26] None of this prevented Lt Col Rabuka, on 14 May 1987, at the head of an armed party of members of what was then the Royal Fiji Military Forces, from entering and closing Fiji’s parliament while it was in session. When the Governor-General, Ratu Sir Penaia Ganilau, whose bravery, integrity and loyalty to constitutionalism Rabuka completely misjudged, sought to reinstate the 1970 constitution, notwithstanding that he had in the meantime affirmed his own loyalty to the Queen of Fiji, Rabuka then staged a second coup on 28 September 1987, forced Sir Penaia to resign and declared Fiji a republic.

Sir Penaia and his great contemporary, Ratu Sir Kamisese Mara, had been identified by Fiji’s great leader of the late colonial era, Ratu Sir Lala Sukuna, as young men of promise. Each in his lifetime amply demonstrated the soundness of Sir Lala’s judgment. One of the most poignant and dignified letters I have ever read is the letter sent by Sir Penaia to Her Majesty The Queen resigning his office as Governor-General.^[27]

Fiji had further coups, in 2000 and, yet again, in 2006.

Rabuka, who I think had come to regret his actions, established a Constitutional Review Commission and held elections which, in 1997, saw the adoption of a new constitution.^[28] This constitution, not only contained a "Bill of Rights"^[29] but also express provision in respect of "social justice" and "affirmative action".^[30] It also made provision for an elected parliament^[31] and for an independent judiciary.^[32] I saw something of the justice system in the higher courts in Fiji under that 1997 Constitution in the interval between those two later coups. I practised there on a number of occasions on a case specific basis in the last few years prior to my appointment to the Federal Court. Fiji, then, to my direct observation, had a first rate, independent judiciary.

In 2001, the Fiji Court of Appeal dismissed an appeal^[33] against a judgment of the High Court^[34] which had declared that the 1997 Constitution remained the supreme law of Fiji and had not been abrogated. The judge who constituted the High Court, Gates J, had this to say about the role of the judiciary in his judgment:

What is the Duty of the Judiciary upon the occurrence of extra-constitutionality?

Judges are required to uphold lawfulness and to apply justice. Upon being appointed they swear both the oath or affirmation of allegiance to the Republic of Fiji and the oath or affirmation for the execution of judicial office [section 135 Constitution]. The judicial oath as set out in Schedule D at page 112 reads:

"I, A.B., do swear that I will well and truly serve the Republic of the Fiji Islands, in the office of []. I will in all things uphold the Constitution and I will do right to all manner of people in accordance with the laws and usages of the Republic, without fear or favour, affection or ill will [So help me God!]

The oath is two pronged. First the judge swears to uphold the Constitution, and second he swears that he will do right (i.e. will do justice) to everyone in accordance with the laws and usages of the Republic (that is he will not go against the law or make a perverse decision or one not in accordance with the law). Finally he will so act, with courage, without bias, without favouring anyone, and without malice or spite towards anyone. A judge's first duty is to uphold the Constitution.

Who here today would dispute the correctness of that pronouncement?

The judgment should have led to the restoration of the pre-2000 coup government. Instead, an election was held in 2001, which saw the return of a government which then took up government under the 1997 Constitution.

There is a certain irony about the pronouncement made by Gates J in 2001. After the 2006 coup he eventually became Chief Justice of Fiji. He presides over a judiciary of questionable independence in a country where, "Since the coup, human rights defenders, activists, media representatives and lawyers have been harassed, intimidated and, in some cases, tortured by security personnel."^[35] He does so even after the Fiji Court of Appeal, in 2009,^[36] made the following declaration, after allowing an appeal from a bench of the High Court over which he presided:

The court hereby:

'(1) Declares that:

(a) the assumption of executive authority and the declaration of a state of emergency by the first respondent [Cdre Bainimarama];

(b) the dismissal of the first appellant [Mr Qarase] from the office of Prime Minister and the appointment of Dr Jona Baravilala Senilagakali as caretaker Prime Minister;

(c) the advice that Parliament be dissolved by Dr Senilagakali;

(d) the order by the first respondent that the Parliament be dissolved;

(e) the appointment on 5 January 2007 of the first respondent [ Cdre Bainimarama]as interim Prime Minister and of other persons as his ministers by President Uluivuda;

(f) the purported Ratification and Validation of the Declaration and Decrees of the Fiji Military Government Decree of 16 January 2007, subsequently renamed as a promulgation of the Interim Government of the Republic of Fiji, by which decree President Uluivuda purported to validate and confirm the dismissal of the first appellant [Mr Qarase]as Prime Minister of Fiji, the appointment of Dr Senilagakali as caretaker Prime Minister and the dissolution of Parliament;

were unlawful acts under the Fiji Constitution.

(2) Declares that in the events that have occurred it would be lawful for the President acting pursuant to s109(2) of the Fiji Constitution, or as a matter of necessity, to appoint a caretaker Prime Minister to advise a dissolution of the Parliament and the issuance of writs for the election of members of the House of Representatives.'

Elections of the kind contemplated by this order have never been held. In 2007, in a speech to the United Nations General Assembly, Commodore Bainimarama explained his motivations for the 2006 coup in this way:

"[I]n 1970, Fiji started its journey as a young nation on a rather shaky foundation, with a race-based Constitution, one which rigidly compartmentalised our communities. The 'democracy' which came to be practised in Fiji was marked by divisive, adversarial, inward-looking, race-based politics. The legacy of leadership, at both community and national levels, was a fractured nation. Fiji's people were not allowed to share a common national identity.

Of the two major communities, indigenous Fijians were instilled with fear of dominance and dispossession by Indo-Fijians, and they desired protection of their status as the indigenous people. Indo-Fijians, on the other hand, felt alienated and marginalised, as second-class citizens in their own country, the country of their birth, Fiji. [...]

Fiji's overall situation by 2006 had deteriorated sharply, heightened by massive corruption and lawlessness [...].

[P]olicies which promote racial supremacy [...] must be removed once and for all. [...] Fiji will look at making the necessary legal changes in the area of electoral reform, to ensure true equality at the polls. [...] [E]very person will be given the right to vote for only one candidate, irrespective of race or religion." ^[37]

The prevention of racism and the promotion of an equal electoral franchise are actions consistent with the Universal Declaration of Human Rights. The harassment, intimidation and torture of those who seek to promote human rights are not. Lord Protector Oliver Cromwell’s ending of Royal tyranny was a boon but his regime evolved into a military dictatorship led by the New Model Army. The prohibition in the 1689 Bill of Rights against the maintaining of a standing army without parliamentary consent was a direct response to what had proved to be the replacement of one tyranny by another.

Papua New Guinea offers an instructive contrast to Fiji. In 2011, a controversy emerged as to whether Grand Chief Sir Michael Somare had vacated his seat in parliament and his office as Prime Minister by his absence from the country. That controversy was twice taken to the Supreme Court, which twice ruled that he had not forfeited his office.^[38] The Chief Justice of Papua New Guinea, Sir Salamo Injia presided over each of these cases. Sir Salamo in particular and the judiciary in general were contemporaneously subjected to a sustained period of harassment by elements within the then executive government. The Chief Justice was twice arrested, on the latter occasion after armed, rogue elements of the PNG Defence Force and the Royal Papua New Guinea Constabulary (RPNGC), led by the then Deputy Prime Minister, the Honourable Belden Namah, stormed into a court room where the Chief Justice was presiding during a hearing, demanding his resignation.^[39]

Injia CJ did not resign. The misconceived charges upon which he was arrested were stayed and later dismissed. Save for the rogue elements mentioned, the PNG Defence Force stayed in barracks, emerging only at the request of the civil power to assist in the conduct of the election due under the PNG Constitution. As good neighbours do when requested by another neighbour, Australia and New Zealand assisted in the conduct of that election. As I can attest, PNG retains a robustly independent, respected judiciary.

A practical, if dramatic, example of the human rights benefits of a robustly independent judiciary was offered last week by my PNG judicial colleague, Justice Cannings. On Sunday, 26 May 2013, a large number of men were reportedly wounded in Port Moresby by some officers of the RPNGC. That report came to the attention of his Honour. The PNG Constitution contains many entrenched freedoms and rights.^[40] Judges have a special, constitutional responsibility in relation to the enforcement of these rights.^[41] Cannings J has initiated a court proceeding concerning the reported incident and ordered that the police commander of the National Capital District and the officer in charge of the Gordon Police Station to appear before him later this week and to file affidavits concerning the reported incident.^[42] His Honour has also ordered the PNG Public Solicitor to provide legal advice to and otherwise assist the alleged victims of the assaults.^[43]

Senior police officers, including the Commissioner have roundly condemned this violence and vowed to deal with those allegedly concerned by criminal and administrative process.^[44] One might expect that, if confidently assured that such due process will diligently be prosecuted, the court will not further the proceeding initiated, for the jurisdiction is an exceptional one.

You may well think that the contrast between the position in relation to human rights and the independence of the judiciary as between Fiji and Papua New Guinea is stark.

What lies at the heart of that difference is not just a determination on the part of the PNG judiciary to uphold the rule of law under the PNG Constitution, important though that determination is. Instead, it is the respect by all branches of government, honouring the expectations of the people of PNG they serve, for government according to law under that constitution. Truly, evil does only triumph if good men stand by and do nothing.

By the wonders of modern communications, those expectations are now informed as never before by an awareness of international human rights norms.

In her work, International Law Contemporary Principles and Practices, Professor Triggs observes that, "Many of the classical attributes of sovereignty are under challenge by contemporary international law, which has significantly modified the role of the modern state."^[45] She also observes, "While states were once the only actors on the international stage, contemporary international law has recognised roles for other international persons. International organisations and trans-national corporations, along with national liberation movements and non-governmental organisations, have certain, albeit limited capacities to make claims and engage with other persons in the international sphere."

In the 19^th century, sovereign states were afforded a right of independence which included a right "of establishing, altering, or abolishing its own municipal constitution of government".^[46] In the early 21^st century, with the experience of the awful carnage, loss of property and denial of basic liberties wrought over the course of the 20^th century by two world wars and lesser conflicts, such independence is no longer absolute. That is why, for example, there exists a United Nations Office of the High Commissioner for Human Rights Regional Office for the Pacific with a direct, internationally accepted concern in relation to the process of government and internal affairs of Fiji and elsewhere in the South Pacific. It is also why there exists a South Pacific Community to convene a regional consultation such as this.

It is why no island is an island unto itself in relation to human rights.

When, over the course of this consultation, you discuss and share experience in relation to particular human rights, I urge you to remember, continue to insist upon and cherish the freedoms declared in that more ancient "bill of rights". They underpin all other human rights.