Women?s dignity and rights: situating Pacific experiences

• Author: Mere Pulea
• Pages: 107-123

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Part II: Towards Gender Equality

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10. Women’s dignity and rights:

situating Pacific experiences

Mere Pulea

Introduction

All Pacific countries are part of the global movement to improve women’s rights and to

end gender discrimination and violations. Most Pacific countries have ratified key human

rights conventions, including the Convention on the Elimination of All Forms of Discrimi-

nation against Women (CEDAW).

The Universal Declaration of Human Rights 1948 (UDHR), which served as a model

for the development of most Pacific constitutions, sets out in article 1 that ‘All human

beings are born free and equal in dignity and rights.’ The UDHR gives recognition to

the ‘inherent dignity’ and ‘equal and inalienable rights’ to all members of the human

family as the foundation of freedom, justice and peace in the world.

Dignity therefore provides the rationale to the requirement of respect of persons.1 It

has also been described as ‘the shaping principle…’2 that reinforces the intrinsic worth

and dignity of human beings.

Discrimination against women is incompatible with human dignity. Given the many

examples in the Pacific of deep-rooted traditional customs that place women in subor-

dinate positions and practices that prevent women’s equal participation with men in

political, economic, social and cultural life, there are equally many examples of strat-

egies developed to end unfair treatment and discrimination against women.

There is a great deal to learn from comparative analysis of the directions Pacific

countries are taking in relation to gender equality. The following is a review of the

attempts and achievements of the legislature and the judiciary.

Non-discrimination on the ground of sex

To gain a fuller sense of the progress made in the last quarter of a century, it would

be prudent to begin with the fundamental constitutional principle of equality. The core

element of respect for women’s human dignity is grounded in this principle. All consti-

tutions give content to the principle of equality by prohibiting any distinction in the

1. Mette Lebech (2004) ‘What is Dignity?’ Maynooth Philosophical Papers, Volume 2,

pp.59–69, Faculty of Philosophy, National University of Ireland.

2. Roberto Andorno (2009) ‘Human dignity and human rights as a common ground for a global

bioethics’. Journal of Medicine and Philosophy, Volume 34, Issue 3, p.223–240.

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enjoyment of human rights on such grounds as race, colour, creed or sex. There are,

however, qualifications to the anti-discrimination clauses which give preferential treat-

ment to certain classes of persons to ensure equality. For example, the constitutions of

Papua New Guinea (PNG), Samoa and Vanuatu3 exempt the making of ‘… laws for

the … protection or advancement of females, children and young persons…’ from its

anti-discrimination provisions. Customary law in some countries is also exempt from the

ambit of the anti-discrimination clauses.4

Most constitutions, except for Kiribati, Tonga and Tuvalu prohibit discrimination on the

ground of sex. This issue has been highlighted in the Tuvalu High Court’s decision of

Tepulolo v. Pou5 where the mother of an ex-nuptial child had difficulty in trying to

enforce the right to non-discrimination on the ground of sex.6

Positioning of customary law in the legal system

Customary law is recognised as an important aspect of our identity, but culture and

customary law does not change the law. Law is developed to accommodate culture and

customary practices in society.

The law of marriage accommodates both customary as well as civil marriages. Whilst

most countries have a single statutory marriage regime, dual marriage regimes are also

recognised in Solomon Islands, Vanuatu and Papua New Guinea.7 In all three coun-

tries, where parties have married under custom and who undergo a civil marriage are

bound by the rules of monogamy. This ultimately affects those societies that practice

polygamy, as adultery is a matrimonial offence and a ground for divorce.

The constitutions of all Pacific countries, except Tonga, make specific provisions for

custom and customary laws to be applied and legislations have been passed providing

for its recognition.8

3. PNG Constitution article 55(2); Constitution of Samoa article 15(3)(b); Constitution of

Vanuatu article 15(1)(k).

4. Solomon Islands Constitution s.15(5)(d); Kiribati Constitution s.15; Constitution of Samoa

s.15.

5. Tuvalu Family Appellate Court Case 17/03, 12 January 2005. See pp.63–65, Pacific

Human Right Law Digest volume 1. Pacific Regional Rights Resource Team (RRRT).

6. Case details in this volume, see chapter 12.

7. PNG The Marriage Act 1963 s.3; ‘A native, other than a native who is party to a subsisting

marriage … enters … into a customary marriage in accordance with the custom prevailing

in the tribe or group to which the parties to the marriage or either of them belong or belongs’.

8. For example, Laws of Kiribati Act 1989, Laws of Tuvalu Act 1987, Customs and Adopted

Laws Act 1971 (Nauru). See Kenneth Brown (1999) ‘Customary Law in the Pacific: an

endangered species’. Journal of South Pacific Law, article 2 of volume 3. See also D E

Paterson (1995) ‘South Pacific Customary and Common Law: Their Interrelationship’.

Commonwealth Law Bulletin, Volume 21, No. 2, pp.660–671.