topic 3 - notes.pdf

8/19/2019 Topic 3 - Notes.pdf

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T O P IC

!

COMPONENT ELEMENTS OF

CONSTITUTIONAL LAW


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LW308: Constitutional Law 3.2

constitutional conventionsComponents of constitutional law

Legislation

The written

constitution

JudicialConstitutional

interpretations

Common

law

Subsidiary

legislation

Constitutional

conventions

Treaties

Customary

law

Equity

Explanation of diagram: The circle in the diagram above represents the body

of constitutional law in any particular country. The written constitution forms

the most significant element, and so is inside the circle, and judicial

interpretations of the constitution and constitutional conventions are in the

circle as they are also an internalised part of that body of constitutional law.

Legislation, subordinate legislation common law and treaties, customary lawand equity generally lie outside the box, but each is able to make some

contribution to the body of constitutional law generally

T o p i c 3 c o n c e p t m a p

This map represents the core concepts that we will be

covering in this unit, and the relationships between them.


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To p i c O v e r v i e w In this Topic we will look in more detail at the various kindsof laws and also established practices which make up

constitutional law in the broader sense. When we talk about

constitutional law in the broader sense we mean all those legalrequirements that influence or affect the system of governance

in a country. Together these components make up what we call

constitutional law.

There are many differences as to the way in which these components are

combined in any of the legal systemsof the South Pacific countries. Each

Plan your study

effectively

Do the readings as

they are due.

Don't leave things to

the last minute

legal system is to a certain extent a product of its own historical development.

The main types of law we will be looking at here are the following:

written Constitution; legislation;

subsidiary legislation;

common law;

treaties;

Customary law; and

Equity.

T o p i c O u t l i n e

1. Introduction

2. The written constitution

3. Changes to the written constitution

4. Different kinds of constitutional legislation

5. Subsidiary legislation

6. Common law7. Customary law

8. Constitutional conventions

9. Treaties

10. Conclusion


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L e a r n i n g O u t c o m e s Upon successful completion of this topic students will be able

to:

Describe the various kinds of laws and practices that can combine

to establish the constitutional law of a particular country;

Briefly explain the function of the courts in relation to interpretation

of the constitution;

Identify particular types of constitutional provisions;

Explain the way in which a written constitution interacts with

other sources of constitutional law; and

Analyse judicial decisions to identify specific ways in

which constitutional law is influenced by other sources of

law.

C h e c k l i s t o f A c t i v i t i es To complete this topic you

must:

1. Read the online lecture notes;

2. Read the listed reading materials for this topic listed below; and

3. Complete the exercises.


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Introduction In this topic we will explore the various laws and practices which contribute to

the general body of constitutional law as it is practiced in a country. This is

important because it will enable you to look beyond the principal written

constitution in a country to discover what other legal instruments and practicescontribute to constitutional law. The principal written document still remains by

far the single most important part of this complex picture, and nothing can alter

or override its plain and clear provisions, but what you will see is that the written

constitution is often silent or unclear on particular issues, and so all these other

sources combine to fill the gaps.

The Wr i t t e n C o n s t i t u t i o n As mentioned already in the preceding Topic, in all the countries of the USP

region there is a written law called the Constitution.

Each written Constitution contains provisions whichestablish the principal organs of central government

(i.e. the head of state, the legislature or law making

body, the ministers of government), the principal

courts (i.e. High Court or Supreme Court and the

Court of Appeal), and the basic structure for the

control of the public service and public finance.

Most Constitutions also contain provisions protecting

the rights and freedoms of people in the country. Somewritten Constitutions, e.g. Solomon Islands, Tonga and

Vanuatu, contain provisions regulating the ownership of

land, and some - e.g. Cook Islands and Vanuatu –

contain provisions recognising a council of customary

chiefs

Find one of theConstitution - on PacLII or

the Pacific Law Materials

section - and see for

yourself what it contains.

Why are human rights

guarantees important in a

Constitution?

Not all Constitutions

contain them; e.g. Australia

Tokelau was formerly a British protectorate but is now a territory of New

Zealand. It is to some extent self governing. Recently the people of Tokelau voted

to reject full independence from New Zealand. There are moves under way to

hold a further referendum in the near future. Public structures are largelydetermined under the Tokelau Act 1948 (N.Z.) as amended.

In the case of those South Pacific countries which do have constitutions the

Constitution is stated to be the supreme law of each country.

http://paclii.org.vu/http://paclii.org.vu/http://paclii.org.vu/http://www.vanuatu.usp.ac.fj/paclawmat/Paclawmat_MAIN.htmlhttp://www.vanuatu.usp.ac.fj/paclawmat/Paclawmat_MAIN.htmlhttp://www.vanuatu.usp.ac.fj/paclawmat/Paclawmat_MAIN.htmlhttp://paclii.org.vu/


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Activity 3.1

Go to the Paclii site and view the constitution of any South Pacific country and

identify each of the following types of provisions: Provisions establishing the legislature

Provisions establishing the higher courts

Provisions guaranteeing fundamental rights

We will be returning to them from time to time throughout the course but for the

moment we just want you to develop the skill of scanning constitutions and

recognising particular types of provisions

Look at more than one if you wish to. Go to the Pacific Islands Legal

Information Institute (PacLII) otherwise known as PacLII.

C h a n g e s t o t h e W r i t t e n C o n s t i t u t i o n

i ) L e g i s l a t e d c h a n g e s

It is important to note that the written Constitution of some countries, e.g. Cook

Islands, Fiji, Niue, Solomon Islands, Tonga and Vanuatu, have been amended by

laws made by the legislature so that some of their provisions are now different

from what appeared in the original Constitution. If the written Constitution has

been officially revised and reprinted after the amendments have been made, as in

the case of the Constitution of Cook Islands (which was revised in 1994), theConstitution of Tonga (which was revised in 1988) and the Constitution of

Vanuatu (which was revised in 1988) the amendments made prior to the revision

are incorporated in the revised text of the Constitution after it has been revised,

as, in for example the amendments made to the Constitution of Tonga in 2010,

and the three amendments made to the Constitution of Samoa in 1991.

More recent amendments made to written Constitutions of the region, may not

yet have been included in an official revised text of the various Constitutions. To

find these you need to consult the Paclii database and look for any constitutional

amendments since the last consolidation (reprint)

The written constitution, and the provision it contains, are the

primary source of what we refer to as the constitution of the

relevant country although, as we have said, there are several

other sources to be grappled with. The principles stated in the

document are taken to be the supreme law of the country. It is

important, when considering the written Constitution to

remember that some of the terms of these constitutions are

open to more than one meaning. Such is the nature of

language. Whilst the drafters of the constitution might have

attempted to formulate the principles in clear language they

Do you know how touse Westlaw and Lexis

Internet databases for

your research?

If not you had best find

out - because otherwise

you are missing out!!

Ask the librarian

http://paclii.org.vu/http://paclii.org.vu/http://paclii.org.vu/http://paclii.org.vu/http://paclii.org.vu/http://paclii.org.vu/http://paclii.org.vu/


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constitutional conventions

might not have been successful in doing so. Alternatively, circumstances in the

country and the society might have changed significantly since the constitution

was adopted.

i i ) C h

a n g

e d i n t

e

r p

r e t

a t

i

o n

s o

v

e r t

i

m

e Because these are regarded as provision that is legal in nature, it is a matter for

the courts to determine the meaning of them. It is the meaning of them which is

the law and this fall to the courts to determine. Legal dispute is, most often, a

dispute about the meaning of words. In a given constitutional case the courts may

have been directly called upon to determine what is the appropriate meaning of

particular words in the constitution. In most countries of the USP region there

have been decisions by courts defining what are the correct meanings of some

words in the Constitution. These decisions must be read in conjunction with the

Constitution to give an accurate understanding of its terms, even though they are

not directly incorporated, or referred to, in the written Constitution. As it is the

meaning of the constitutional provision which is the supreme law we mustunderstand the courts interpretations of these provisions to understand the scope

and meaning of these provisions themselves.

This is why courts interpretations have been represented as being inside the circle

with the body of constitutional law itself. Judicial interpretation of the sections of

the constitution are not extraneous, they are the way that the document will be

enforced in practice.

How constitutional change isincorporated into the body of law

The written

constitution

Later amendments

to the constitution

Judicial

Constitutional

interpretations


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E x a m p l e s o f s i g n i f i c a n t i n t e r p r e t i v e d e c i s i o n s b y t h ec o u r t s

In Cook Islands the Court of Appeal held in Clarke v Karika (Reading) that the

words in Article 6 of the C.I. Constitution recognising another right of the

individual to equality before the laws were to be interpreted as allowingindividuals or groups to be treated differently in cases where this was appropriate

for a constitutionally legitimate purpose, such as the avoidance of deep

dissatisfaction with a decision as to the ownership of land which was likely to

result in disorder and violence.

In Fiji, the Court of Appeal decided in Madhavan v Falvey (Reading) that section

57 of the 1970 Constitution was to be interpreted as not justiciable, at least when

the rights of people outside the legislature had not been affected.

In Kiribati the High Court held that the words another

Beretitenti or one-third of the members of the Maneaba may

advise the Speaker to summon the Maneaba at any times insection 77 (2) of the Constitution, were to be interpreted as

conferring a discretion upon the Speaker as to whether or not

he would accept such advice, but such discretion has to be

exercised on the basis of relevant considerations only:

In Tonga the Supreme Court has held that the word ‘another ’in section 109 of the Constitution is to be interpreted as

meaning another King with the advice of the Privy Council

or Cabinet: Tuita v Minister of Lands (Reading).

This process of interpretation of the constitution by the courtis known as judicial review. It falls to the court to interpret

constitutional provisions just as a court must do in relation to

any other piece of legislation. Obviously this puts the

judiciary of a country in a centrally important position.

The courts in common law countries following the British

tradition in the past have not interpreted the constitution as if

it were a political document. It has interpreted it as if it were

a legal document and they have used the methods of

interpretation as for any other piece of legislation. That is

Want to read more about

judicial review andadministrative law?

Can't find or get to a law

library?

The Internet is your law

library

Go to AustLII, BaiLII,

HKLII, CanLII, PacLII

or WorldLII

In the Search function

type in 'judicial review'

and select 'All of these

words'

Want something else -

try some different search

words.

generally still so even though the courts usually acknowledge that the constitution

is a special document. (more about this in later topics)

http://www.austlii.edu.au/http://www.austlii.edu.au/http://www.austlii.edu.au/http://www.austlii.edu.au/http://www.hklii.org/http://www.hklii.org/http://www.hklii.org/http://www.hklii.org/http://www.paclii.org/http://www.worldlii.org/http://www.worldlii.org/http://www.worldlii.org/http://www.worldlii.org/http://www.paclii.org/http://www.hklii.org/http://www.hklii.org/http://www.austlii.edu.au/http://www.austlii.edu.au/


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Activity 3.2

Look now at the judgment in In re the Constitution, Attorney-General v

Olomalu. http://www.paclii.org/ws/cases/WSCA/1982/1.html (in the readings for

this topic) In this case the Court of Appeal of (Western) Samoa was concerned in part with the interpretation of the Constitution. One of the issues argued before

the Supreme Court in the first instance was whether the provisions of the

Constitution were to be interpreted by fixing meaning to the words which

appeared in it or whether the Constitution was to be understood against an

underlying background of Samoan custom.

Consider these issues:

1. On what basis does the Court of Appeal allow that matai custom, tradition

and the historical circumstances of the Constitution’s coming into being,

affect matters of interpretation of some of its key provisions?

2. Is the difference between the Chief Justice and the Court of Appeal just adispute about the meaning of words or is it somehow more substantial?

3. Shouldn’t basic human rights provisions be treated as universal?

D i f f e r e n t k i n d s o f c o n s t i t u t i o n a l l e g i s l a t i o nThere are two different kinds of legislation that may make up parts of the

Constitution.

Specific constitutional legislation enacting or amending a constitution.

Ordinary legislation that deals with an important aspect of the governmental

structure of a country eg, electoral acts, laws about subordinate courts or

about provincial government.

The written

constitution

Constitutional

enacting or

amending

Legislation

Ordinary

legislation

about

aspects ofgovernance

http://www.paclii.org/ws/cases/WSCA/1982/1.htmlhttp://www.paclii.org/ws/cases/WSCA/1982/1.htmlhttp://www.paclii.org/ws/cases/WSCA/1982/1.htmlhttp://www.paclii.org/ws/cases/WSCA/1982/1.htmlhttp://www.paclii.org/ws/cases/WSCA/1982/1.htmlhttp://www.paclii.org/ws/cases/WSCA/1982/1.html


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( a ) L e g i s l a t i o n e n a c t i n g o r a m e n d i n g t h e w r i t t e n C o n s t i t u t i o n

The written Constitutions of many countries in the USP region, i.e. Cook Islands,

Fiji (1990 and 1997), Niue and Tuvalu (1986) were enacted or brought into force

by legislation. This is common where independence is being achieved for the first

time and the departing foreign power enacts the new nation's first constitution.

Australia, New Zealand, and nearly all former British colonies, first obtained

their constitutions as a result of 'enacting legislation' by the British parliament.

The Constitution of Cook Islands and Niue were brought into force by the Cook

Islands Act 1964, as amended in 1965, and the Niue Constitution Act 1974,

respectively, which were passed by the New Zealand Parliament. Both these Acts

contain some very important provisions relating to the Constitutions of these two

countries that continued to apply despite the new constitution; i.e. that the

countries are to be self-governing, and not independent, and that the New

Zealand is to have responsibility for their external affairs and defence.

Legislation that amends a constitution that has been passed in accordance with

the procedural requirements for constitutional change under the constitution also

becomes part of the constitution. Legislation enacting new constitutions often

contains transitional provisions that will apply in the country until such time as

all of the institutions of state established by the new constitution are fully

functioning.

The 1986 Constitution of Tuvalu

http://www.paclii.org/tv/legis/consol_act/cot277/ as brought into force by the

Constitution of Tuvalu Ordinance 1986 which contained a provision as to when

the Constitution should begin to operate i.e. on a day to be appointed by the new

Prime Minister.

The 1990 Constitution of Fiji was brought into force by a Presidential Decree

which contained some important provisions which stated that persons holding

certain public offices should continue to do so notwithstanding that they had not

been appointed or elected in accordance with the Constitution, and the laws that

were in existence at the time the Constitution came into force should, with certain

exceptions, continue to operate even though they were not made I accordance

with the Constitution, but subject to modification to bring them into conformity

with the Constitution.

The 1997 Constitution of Fiji Islands came into force by virtue of the Constitution

Amendment Act 1997, after initial reports from the Reeves Commission followed

by processes involving the Government, the political parties, the Great Council of

Chiefs, and others involved in the political process. The courts of Fiji played no

part in the creation of the 1997 Constitution although they have played a major

part in upholding and reinforcing it since then.

After the Speight-led attempted coup in May 2000 the commander of the Fiji

Military Forces purported, on 19th May 2000, to abrogate the 1997 Constitution

in the interests of necessity to achieve order and stability in the country. However

in The Prasad case the Court of Appeal held that such abrogation was ineffective

and the Constitution of Fiji remained in legal effect throughout. Review the

decision as it contains a valuable commentary on the process of constitutionaldevelopment in that country.

http://www.paclii.org/tv/legis/consol_act/cot277/http://www.paclii.org/tv/legis/consol_act/cot277/


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Activity 3.3

Read Prasads case (Republic of Fiji Islands v Prasad 2001)

http://www.paclii.org/fj/cases/FJCA/2001/2.html This is an important case that we will come back to many times during this

course. Each time you may be perusing it to obtain different insights. So this

time, just try to read it lightly to form an overall idea of what the case is about,

and look particularly for the parts of the case that look back over Fiji’s

constitutional history since independence.

1. What did the court decide about the legality of the 2000 coup?

2. Do you find it surprising that the 1997 Constitution which is treated as

legitimate was also produced following a period of upheaval in the major

institutions of government?

3. Think about the decision in Prasads case and ask yourself what bearing it

could have in relation to the coup in 2006?

It remains uncertain what approach the courts in Fiji will take to any attempts bythe more recent coup leaders to introduce a new constitution.

( b ) O r d i n a r y L e g i s l a t i o n

Where there is no written Constitution, as in Britain, New Zealand and Israel

outside the USP region, most of the constitution of the country will be found in

legislation and subsidiary legislation in force in the country.

In Tokelau, the Tokelau Act 1948 and subsequent amending Act passed by the

New Zealand Parliament make up much of the constitution of that country and

they have been consolidated into a document call the 2006 Constitution of

Tokelau. In Britain much of the constitution of that country is to be found in

legislation such as the following:

Petition of Rights 1627, Bill of Rights 1688, Act of Settlement

1700, Succession to the Crown Act 1707, Royal Marriages Act

1722, Registry Act 1937, Royal Titles Act 1953, Parliamentary

Commissioner Act 1967, Representation of the People Act 1974,

Supreme Court of Judicature Act 1925, European Community Act

1972, Minister of Crown Act 1975, Human Rights 1998, Local

Government Act 1999.

Where there is a written Constitution in operation in a country - as in all countries

of the USP region - most of the Constitution is usually to be found in that law,

and it is only relatively limited aspects of the constitution that are to be found in

legislation or subsidiary legislation. The principal exception to this is New

Zealand where more to the constitution of that country is found in legislation and

subsidiary legislation than in the New Zealand Constitution Act 1852, which has

been substantially truncated over the years by amendments deleting many

significant provisions, and replacing them by provisions in different Acts.

http://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.htmlhttp://www.paclii.org/fj/cases/FJCA/2001/2.html


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It is not always possible or convenient to set out every fine detail in a

constitution. For example, the constitution may provide that there will be

elections and that everyone will have the right to vote, but it may not detail the

intricate ways in which votes may be cast, counted, or the method by which

members are elected to parliament. These procedural matters are often contained

in ordinary legislation known as electoral Acts.In countries of the USP region the main aspects of the constitution that are to be

found in ordinary legislation rather in the written Constitution include:

Electoral legislation;

Legislation establishing subordinate courts; and

Legislation establishing provincial and/or local government.

Electoral legislation

Most of the written Constitutions describe the basic qualifications of the right tovote at elections of the legislature, but most allow for legislation to be enacted to

place additional restrictions or conditions on the right to vote, and in Samoa, the

Constitution does not provide even the basic qualifications of the right to vote. In

Samoa the Electoral Act 1963 contains the main legal provisions defining the

right to vote at election, and the like.

It is important to remember in relation to legislation which contain provisions

relating to the constitution of the country, may be of uncertain meaning, and that

there may be decisions of the courts which define the correct meaning of such

terms, and that these decisions must be read in conjunction with the legislation

or subsidiary legislation, although they will not be included, or even referred to,in such legislation or subsidiary legislation.

Subordinate courts

The Constitutions of Fiji (1970, 1990, 1997 and 2013), Nauru, Solomon Islands,

Tuvalu (1978 and 1986), Vanuatu and Western Samoa establish only the High

Court or Supreme Court and a Court of Appeal. Other courts (subordinate courts)

further down the court hierarchy are able to beRead effectively. Itis the quality of your

reading which is

important, not somuch the volume.

established by ordinary legislation.

In Fiji under the 2013 Constitution established a

Supreme Court which is at the apex of the superior

court hierarchy. The Constitutions do not generally

establish courts subordinate to such superior courts,

such as magistrate’s courts, island courts or local

courts, nor state their jurisdiction. The Constitution of Vanuatu article 52 does

provide for Village and Island Courts but it is left to specific legislation to

implement.

Go to http://www.paclii.org/vu/legis/consol_act/cotrov406/

Generally these matters are dealt with only by legislation not by the Constitutions

in these countries e.g. the Magistrates Court Act of Fiji, Kiribati, Solomon Islands

and Tonga; and the Courts of Nauru and Vanuatu.

http://www.paclii.org/vu/legis/consol_act/cotrov406/http://www.paclii.org/vu/legis/consol_act/cotrov406/


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Provincial government and/or local government

The Constitutions of Solomon Islands and Vanuatu refer to provincial

government, but make no provision for it themselves. This has been done by the

Provincial Government Act, cap 118, Solomon Islands, and the Decentralisation

Act, Cap. 127, Vanuatu respectively.

None of the written Constitutions in USP region makes any provision for local

government i.e. town councils, district councils, provincial councils. The

establishment of local government is in all countries to be found in legislation

e.g. Local Government Act in Solomon Islands, Town and District Officers Act,

Tonga, Municipalities Act, Vanuatu.

S u b s i d i a r y L e g i s l a t i o n As with legislation, there are two different kinds of subsidiary legislation that

may from parts of the constitutional law of a country:

Subsidiary legislation enacting a constitution.

Subsidiary legislation enacting transitional provisions.

The writtenconstitution

Subsidiary

legislation

enacting a

constitution

Subsidiary

legislation

enacting

transitional

provisions


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S u b s i d i a r y l e g i s l a t i o n e n a c t i n g t h e w r i t t e n C o n s t i t u t i o n

It became the practice of the British government to enact written constitutions for

dependent countries that did not contain a substantial number of British settlers,

by way of an order-in-council made by the Queen with the advice of the Privy

Council under the powers given by the Foreign Jurisdiction Act 1890 (U.K.). Theadvantage of this method over that of enacting a written constitution by Act of

Parliament is that it could be easily implemented, or amended without public

scrutiny or criticism, including that of the United Kingdom parliament.

Accordingly, the written Constitutions of Fiji of 1963 and 1966 were enacted by

orders-in-council made by the Queen by an order of the Privy Council. Such

order in council might, and certainly did, contain provisions that supported, and

sometimes overrode, the terms of the written Constitution. Even as Fiji

approached independence, and a written Constitutions was being drafted by

British draftsperson after discussion with local political leaders, and although the

principle of independence was provided by an Act which could be debated anddiscussed, the provisions of the written Constitution were enacted by orders in

council made under the Independence Act. This thus avoided the possibility that

provisions which had been agreed to with local leaders might be overturned by a

reluctant House of Common or House of Lords in Britain.

Accordingly, the written Constitution providing for the first moment of

independence of Fiji in 1970, that of Kiribati in 1978, Solomon Islands and

Tuvalu in 1979 were all enacted by orders-in-council order by the Queen on the

advice of the Privy Council. There were the Fiji Independence Order 1979,

Kiribati Independence Order 1979, Solomon Islands Independence Order 1978,

and the Tuvalu Independence Order 1978.

S u b s i d i a r y l e g i s l a t i o n e n a c t i n g t r a n s i t i o n a l p r o v i s i o n

Each of these Orders-in-Council contained some very important provisions

relating to the constitutions of these countries that were not contained in the

written Constitutions: for example, that persons holding certain public offices

should continue in office notwithstanding that they were not appointed or elected

in accordance with the Constitution, and that the laws were in existence at the

time the Constitution came into force should, with certain exceptions, continue to

operate even though they were not made in accordance with the Constitution (but

subject to modification to bring them into conformity with the Constitution: see

e.g. Kiribati Independence Order 1979.As with legislation, the terms of subsidiary legislation may be open to more than

one interpretation. It is important to keep in mind that there may have been

judicial decisions which have provided an authoritative interpretation to the terms

of subsidiary legislation.

C o m m o n L aw In all countries of the University region the principles of common law and equityas developed by the courts in England have been applied or adopted subject to

two qualifications: (1) that they are not inconsistent with the written Constitutionor legislation or subsidiary legislation in force in the country; and that (2) they


15/24


are not inappropriate to the circumstances of the country; and, as well in Solomon

Islands (3) that they are not inconsistent with custom.

These common law provisions will apply in the country either because they were

preserved at the time of commencement of the constitution or because they have

developed since and are not inconsistent with the constitution.


Common

law rules

preserved

at

commence

-ment

Common

law rules

that

continue to

develop

When a country does not have a written Constitution, as in Tokelau and theUnited Kingdom, or where the written constitution is silent on such matters, there

may be important aspects of the constitution of the country that are regulated by

principles of common law. Probably most important aspects of the common law

in this respect are:

The common law rules providing and defining the prerogative powers of theCrown; and

Common law principles regulating exercises of discretion of officials

exercising governmental powers.

T h e c o m m o n l a w r u l e s p r o v i d i n g a n d d e f i n i n g t h ep r e r og a t i v e p o w e r s o f t h e C r o w n ;

The prerogative powers are the powers that the King or Queen possesses under

the common law, in particular to make and terminate appointments of officials, toconduct foreign relations, to grant honours, and to take necessary action in

emergency situations to restore order (recall the debate in Fiji on this issue post

May 2000).


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When a country has a written Constitution, as do all the countries of the USP

region except Tokelau, there is not so much room for aspects of the constitutions

to be left to be dealt with by common law and equity, since most important

aspects will be dealt with in the Constitution.

A potentially very important aspect of the constitution of countries of USP regionin which the Queen is the Head of State, which would seem also to be regulated

by the common law, (although no case has arisen in which the courts have had to

rule on this matter) is with regard to the prerogative powers of the Queen and her

representatives to take action to deal with an emergency situation in the country

when the provisions of the Constitution and legislation cannot themselves

effectively operate.

The Constitutions of the Cook Islands, Niue, Solomon Islands and Tuvalu provide

that the Queen shall be the Head of State and shall be represented in the country

by a Governor-General or Queen’s Representative who shall act in accordance

with the advice of Ministers of Government. If, however, the Governor-General

or Queen’s Representative, is assassinated or kidnapped, and there is no deputy in

office, or if the ministers of governments are assassinated or kidnapped and

unable to give advice to the Governor-General or Queen’s Representative, the

principles of common law may well apply. They could apply with regard to the

powers of the Crown to act in a public emergency and could be relied upon to

provide the Queen or her representative with power to take what action is

necessary to restore order, and for her, or her representative to authorise persons

to take such actions in the country.

In countries where the Queen is not Head of State i.e. Fiji Islands, Kiribati,

Nauru, Vanuatu and Western Samoa, it may also become necessary for the courts

to determine whether the Heads of State of these countries possess powers underthe common law, similar to the common law powers which may be possessed by

the Queen, to deal with an emergency situation in the country when the

Constitutional and legislative provisions cannot operate to deal with the situation.

At the present time the position is somewhat unclear.

C o m m o n l a w p r i n c i p l e s r e g u l a t i n g e x e r c i s e s o f d i s c r e t i o nby o f f i c i a l s e x e r c i s i n g g o v e r n m e n t a l p o w e r s .

As you will lean more fully in Administrative Law the courts in the

Commonwealth have developed a number of principles of common law to control

the exercise of discretion by officials in the exercise governmental powers. Ofthese the most important are:

a discretion must not be exercised for improper purposes or according to

improper principles;

a discretion must be exercised without taking into account any p or improper

considerations and without omitting any consideration that was required to be

taken into account; and

a discretion must not be exercised in a way which is clearly or potentially

unreasonable.

These principles of common law place very important restrictions upon the

exercise of powers by governmental officials. Thus in Willie v Public ServiceCommission (1993) 1 Van LR 673 the Supreme Court of Vanuatu held that a

decision by the Public Service Commission of Vanuatu to require a director in the


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Post Office to take early retirement was invalid because it was made for purpose

of penalising a supporter of the opposition political party. Thus it was motivated

by factors which were foreign to the proper purpose for which the public power

was conferred on the Commission.

Again, in the case of Korovulavula v Public Service Commission (unreported)

AJR4 1988 Court of Appeal, Fiji, 23 August 1994http://www.paclii.org/fj/cases/FJCA/1994/43.html the Court of Appeal held that a

decision of a minister of Transport in Fiji to terminate a man’s employment was

invalid because it was taken for the purpose of punishing the man for refusing to

carry out an invalid direction from the minister.

Again in the case of Apia Bottling Co Ltd v Attorney-General [1970-79] WSLR

227 http://www.paclii.org/ws/cases/WSSC/1979/1.html the Supreme Court of

Samoa held that a decision made by the Director of Economic Development that

an application for financial measures for a new business did not need to be

advertised although the legislation required public advertisements of any

application which would affect an existing identity, was invalid, the applicationwas for the establishment of a brewery and soft drinks business in Apia and there

was already an existing soft drinks business in Apia.

Again as you will learn more fully in LW309 Administrative Law, where we deal

with issues in administrative law, the courts in the Commonwealth have

developed a number of principles of common law to control the way in which

governmental officials interfere with the rights and legitimate expectations of

individuals.

Of these the most important for you to understand are:

governmental officials must not close their minds to objections and must

genuinely consider then;

governmental officials must not be critically biased against an individual, nor

must there be a real likelihood of bias; and

governmental officials must allow an adequate opportunity to an individual to

respond to accusations and allegations made against him or her.

Kalo v Public Service Commission (1987) 1 Van LR 305

http://www.paclii.org/vu/cases/VUCA/1988/1.html

In Kalo’ s case the Supreme Court of Vanuatu held that a decision to dismiss a public servant made by the public service commission of Vanuatu, which is

established by the Constitution of that country, must be set aside because there

was a real likelihood that a member of the Commission was biased against the

public servant.

d'Imecourt v President of Vanuatu

http://www.paclii.org/vu/cases/VUSC/1998/59.html

In D’ imecourt ’ s case the Supreme Court held that a decision by the Minister of

Immigration made a deportation against the then Chief Justice, and a decision by

the Judicial Services Commission to remove the Chief Justice from office, were

both invalid for failure to allow the Chief Justice an adequate opportunity to

http://www.paclii.org/fj/cases/FJCA/1994/43.htmlhttp://www.paclii.org/fj/cases/FJCA/1994/43.htmlhttp://www.paclii.org/ws/cases/WSSC/1979/1.htmlhttp://www.paclii.org/ws/cases/WSSC/1979/1.htmlhttp://www.paclii.org/vu/cases/VUCA/1988/1.htmlhttp://www.paclii.org/vu/cases/VUCA/1988/1.htmlhttp://www.paclii.org/vu/cases/VUCA/1988/1.htmlhttp://www.paclii.org/vu/cases/VUCA/1988/1.htmlhttp://www.paclii.org/vu/cases/VUSC/1998/59.htmlhttp://www.paclii.org/vu/cases/VUSC/1998/59.htmlhttp://www.paclii.org/vu/cases/VUSC/1998/59.htmlhttp://www.paclii.org/vu/cases/VUSC/1998/59.htmlhttp://www.paclii.org/vu/cases/VUSC/1998/59.htmlhttp://www.paclii.org/vu/cases/VUCA/1988/1.htmlhttp://www.paclii.org/vu/cases/VUCA/1988/1.htmlhttp://www.paclii.org/ws/cases/WSSC/1979/1.htmlhttp://www.paclii.org/fj/cases/FJCA/1994/43.html


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respond to the allegations against him, and also for a failure to give reasons for

the decision.

C u s t o m a r y L aw


Customary lawincorporated

into the

constitution eg;

land ownership

Customary law

influencing

judicial

interpretation

.

In some countries of the USP region, i.e. Kiribati, Nauru, Samoa, SolomonIslands, Tuvalu and Vanuatu, customary law is recognised by the Constitution or

by legislation as part of the law of the country to be applied by the courts, subject

to the qualification that it is not inconsistent with any provision in the

Constitution or legislation or subsidiary legislation. In Vanuatu for example the

constitution specifically provides that land ownership will be based upon

customary law.

In Kiribati, Nauru and Tuvalu the scope of customary law is stated to be limited

to certain specified matters which did not include matters relating to the

constitution of the country. In Solomon Islands and Vanuatu the scope of

customary law is not so limited, but so far no situation seems to have arisen inwhich customary law has been claimed to be applicable to any aspect of the

constitution of these countries. It is unlikely that such a situation will arise

because custom was developed at a time when the present institutions of

government did not exist in those countries, and so no appropriate custom was

involved.

What if customary law appears to breach fundamental rights provisions of a

constitution? Can fundamental rights provisions be rendered consistent with local

customs and culture?


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Activity 3.4

Read the extract of the Samoan banishment case that is provided in your readings

or access the full case at In re the Constitution: Taamale V Att Gen

http://www.paclii.org/ws/cases/WSCA/1995/1.html.

1. What does the court decide about the relevance of custom to interpretation

of the constitution?

2. What is the practical effect of this decision for the person involved?

3. Does this mean that banishment will always be exempt from the relevant

section of the constitution in all future cases?

Please consult the moodle site for feedback on these questions.

C o n s t i t u t i o n a l C o n v e n t i o n s

The written

constitution

Constitutionalconventions

The term convention can be used in English to mean several ratherdifferent things such as a formal assembly, a formal agreement,

or a customary practice.

In relation to the constitution of a country, the word convention is usually used to bear its first or its last meaning. The term convention may be used in its firstsense to mean a formal assembly convened or brought together to make aconstitution. In this sense, it is usually spelt with a capital C a“ConstitutionalConvention. More commonly the word is used in the second sense, to mean awell-established practice. When used in relation to the constitution of a country,it is a well-established practice with regard to the governance of a country. Such

practices are often referred to as constitutional conventions.

http://www.paclii.org/ws/cases/WSCA/1995/1.htmlhttp://www.paclii.org/ws/cases/WSCA/1995/1.htmlhttp://www.paclii.org/ws/cases/WSCA/1995/1.html


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Constitutional conventions are initially developed by people with regard to the

governance of a country, not just because they are thought to be logically

justifiable, or morally right, but because they are found to be convenient and to

avoid difficulties. Thus the constitutional convention in Britain, where the Queen

acts in accordance with the advice of a Prime Minister acceptable to Parliament

evolved, not because the Kings and Queens of England thought that this waslogical or that it was morally right and “indeed many thought that it was morally

wrong“ but because they found that it was the only way in which they could

avoid being blamed for errors of government and retain their position.

Once a practice has become well-established it acquires a certain aura of

respectability. What originally started as a matter of convenience thus becomes in

time a matter of moral obligation and it is expected to be followed. How long a

period of time must elapse before a practice becomes a convention, and before a

matter of convenience becomes a matter of moral obligation, is not specified or

laid down anywhere. However, it will obviously depend to some extent on the

number of occasions that the practice is exercised.

A convention is not a law; that is, it is not a rule which will be applied and

enforced by the courts, so that a breach of a constitutional convention does not

necessarily result, at least directly, in a breach of the law. But a convention may

be used as the basis upon which the courts develop principles of common law, or

interpret the terms of a written Constitution or legislation or subsidiary

legislation.

So, a convention may thus form the basis of, and be merged into, a law. In Tuta v

Minister of Lands TLR Vol II (1923-1962) 18 for example, the Supreme Court of

Tonga relied upon a constitutional convention in Tonga that the King did not act

alone, but acted with the concurrence of the Privy Council or the Cabinet, as oneof the bases for interpreting the term another Kanga which appeared in section

109 of the Constitution of Tonga as meaning another King with the consent of the

Privy Council or Cabinets. Accordingly, it held that a grant of land made by the

King alone was unlawful and void.

Constitutional conventions tend to play a more important role in the constitution

of a country, where, as in Britain, there is no written Constitution, and in that

country, as is indicated in Readings 1/2, there are some conventions which

regulate very important aspects of the constitution. In countries where there is a

written Constitution there is, as with regard also to legislation, subsidiary

legislation and common law and equity, also to legislation, subsidiary legislation

and common law and equity, not so much room or need for the development ofconstitutional conventions, since when a written Constitution is drafted an effort

is taken to include in the text of the Constitution express provisions to regulate as

many matters of importance as possible. That there may still be room, however,

for constitutional conventions to develop even in a country where there is a

written Constitution is demonstrated by the convention referred to in Tuita v

Minister of Lands, above, and in the statement by the Prime Minister of Fiji in

1979.

In the diagram above constitutional conventions are presented as being internal to

the body of constitutional law (the big circle) because they do not arise from an

outside source but are internal practices that gather force and respectability overtime.


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T

r

e

a

t

i

e

s


Sometreaties

specifically

affect

governance

Some treaties

remain

separate from

constitutional

law

Treaties are agreements made between the governments of different countries.They are not normally regarded by the courts as being part of the law of a country

unless they have been incorporated into the law of a country by legislation, but

even if they are not part of the law of a country, they may affect the way in whichthe law is applied or operated.

Many treaties do not have any significance so far as the constitution of a country

is concerned, but there are some which have been entered into by countries in the

USP region which have, or have had, some constitutional significance.

The Treaties of Friendship between Tonga and the Unite Kingdom which have

been in existence since 1879, contained, prior to 1970, some important provisions

of constitutional significance: that the United Kingdom would be responsible for

the external affairs and defence of the country, and the courts established by the

Constitution would no have jurisdiction to deal with criminal offences committed

by British subjects and other foreigners which would be dealt with instead by theHigh Court of the Western Pacific and “ see Treaty of Friendship between Great

Britain and Tonga, 1958.

The Protocol between France and the United Kingdom with regard to the New

Hebrides, signed in 1914 and ratified in 1922, contained many important

provisions with regard to the constitution of New Hebrides which remained in

operation until independence in 1980: that the two European countries would be

responsible for the government of the country and would act jointly in making

laws, in all administering them and in enforcing them in the courts.

The Exchange of Notes between France and the United Kingdom in 1979

provided that the Constitution for Vanuatu drafted by New Hebrideans earlier that


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year was to have the force of law as the Constitution of the country, at a date to

be set (1980). As from that date the Protocol was to cease to have effect .

C o n c l u s i o n You have now had the opportunity to examine each of the various components

that can make up the body of constitutional law in a country, that is, laws that

affect how governance operates. Now you should refer to the diagram below

again and see if it makes more sense to you than it did when you first

encountered it.

Remember, the big circle represents the body of constitutional law in its broad

sense; some components remain entirely internal, whilst others arise from outside

the circle but can still contribute something to the body of constitutional law.


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K e y T e r m s a n d P h r a s e s

Constitutional

amendments

Special enactments made according to special requirementsthat enact changes to a country’s written constitution.

Ordinary legislation Legislation passed in the ordinary way by parliament that

does not have the supreme force of constitutional law even

though it may still deal with important issues of

governance (elections, subordinate courts, provincial

government).

Subsidiary legislation usually refers to legislation that is made by a power

delegated to a body below the parliament. In the context of

constitutional law it may refer to subsidiary laws made by

a colonial power to enact the first constitution of a newly

independent country.

Common law usually for our purposes refers to the body of judge made

law that is recognised as having legal force in countries

with a British derived legal system.

Customary law In the Pacific context refers to time honoured custom

practices that are legally recognised in the country. Often

this refers to practices related to land ownership, marriage

or dispute resolution.

Constitutional

conventions

The term convention can be used to mean several rather

different things such as a formal assembly or a customary practice. More commonly the word is used in the second

sense, to mean a well-established practice.

Treaties are agreements made between the governments of differentcountries


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