Law Commission suggests harmonisation
16 October 2006
Law Commission suggests harmonisation of Pacific custom and human rights
Although custom and human rights are commonly seen as conflicting in the Pacific region, the two can often be harmonised, the Law Commission suggests in a study paper released today.
The study paper Converging Currents: Custom and Human Rights in the Pacific provides an overview of issues that arise from the interface between custom and human rights across the Pacific region. It also suggests strategies that may help to resolve apparent conflicts.
Justice Edward Taihakurei Durie and Helen Aikman QC were the Commissioners leading the Pacific project. Justice Durie said today that both custom and human rights are recognised and protected in many constitutions and statutes in Pacific states. It is therefore important to find ways in which they can enhance and not undermine each other.
“Some customary practices will need to change to accommodate human rights, but this does not mean getting rid of custom”, Justice Durie said. “In fact, human rights can be strengthened in the Pacific by expressing internationally-recognised rights in terms of local custom and culture.”
“The key to harmonising custom and human rights is to look at their underlying values. For example, both emphasise the inherent dignity of all people, although the ways in which expression is given to this value may differ”.
The study paper examines some of the issues that cause particular difficulties for attempts to harmonise custom and human rights, including issues relating to the rights of women, children and minorities, and freedom of speech, religion and movement.
An important role is played by community-level bodies such as village courts and councils responsible for the bulk of dispute resolution in Pacific Island countries. The Commission suggests that this role can often be better accommodated within the state legal system, and that such community bodies need assistance to take greater account of human rights.
On the other hand, higher-level courts need assistance with understanding custom law. The Commission sees the creation of custom law commentaries to inform judges, officials and others about the nature and content of local custom law as a particular priority. Such commentaries are preferable to recording custom in prescriptive codes.
In the Commission’s view, courts have an important role to play in harmonising custom and human rights. They can do this by applying human rights in ways that take account of the local customary and cultural context, and by building closer relations with community justice bodies. Legislation could also direct the courts to seek harmonisation of custom and human rights in cases that come before them.
The Commission hopes that Pacific courts develop an indigenous common law or a “Pacific jurisprudence” based on the values underlying custom law and human rights, as well as the legal traditions inherited through colonisation. The ideas put forward in the study paper are intended to lead to further research and discussion about custom and human rights by Pacific people.
“Pacific countries face many challenges as they attempt to maintain and develop their rich cultural traditions while adapting to a rapidly-changing world”, Justice Durie said. “They will be in a stronger position to meet these challenges if they can draw both on ancestral wisdom and on international human rights principles, rather than being forced to choose between them.”
The report is embargoed until Monday 16 October 2006.
A copy of the publication is available under embargo on request, and will be on the Law Commission website http://www.lawcom.govt.nz from 16 October 2006.