The Devil and the Deep Blue Sea

[Originally published in slightly different form in the Vanuatu Daily Post’s Weekender Edition.]

NOTE: Two days after this article was published, the Daily Post front page story is of a 25 year old woman who was picked up in town by her common-law partner, taken home and beaten over the head with a piece of firewood. The man then proceeded to inflict knife wounds on her feet before severing her right arm close to the elbow and cutting her left hand so badly that only the thumb remained intact. It unimaginable that her neighbours didn’t hear her screams. The assailant was arrested 2 hours after these events took place.

When president Kalkot Mataskelekele announced that he would refer the Family Protection Act to the Supreme Court, he undertook a perilous task.

The Act, which has been crawling its way through the legislative process for nearly a decade, was passed in the final session of Parliament before elections later this year. Now, the president’s desire to ensure the constitutionality of the Act might have the unintended consequence of killing it outright.

It may be that if the Supreme Court responds with anything less than unequivocal affirmation of the Act’s constitutionality, they will leave it in legal limbo. Even the tiniest change would force it to be reintroduced as new legislation when the new Parliament is convened. This leaves the justices caught between the devil and the deep blue sea: Their only options, effectively, are to strike it down outright or accept it in its entirety.

News reports have detailed the president’s concerns: aspects of the law might be contrary to the preamble of the constitution, which states that Vanuatu was ‘founded on traditional Melanesian values, faith in God, and Christian principles.’ Christian principles, he has stated, include the responsibility of a parent to discipline his child. Two other questions have been referred to the Court, concerning privacy rights in the home and the effects of new evidence rules on the defendant’s right to a fair trial.

The first question requires a bit of careful legal parsing by constitutional experts. Is the preamble of the Constitution justiciable; does a statement of principles have the force of law? Legal experts in the University of New South Wales Law Journal have described a preamble as ‘the first words of “the people”, their raison d’être and their cri de coeur.’ Judges in France, Canada, India and the US have all used the preamble of their respective constitutions to strike down laws. The 1999 Australian referendum on a new constitutional preamble, however, was accompanied by the promise that it would not have the force of law.

It’s more tenuous to argue that the preamble holds precedence over the articles of the Constitution itself. Allowing Scripture to be used to interpret law could cause real conflict with the enshrined right to individual freedom of conscience and religious belief. Likewise with the rights of the security of the person and freedom from inhuman treatment.

Concerns over one’s privacy in the home are more likely to be addressed in light of commonly accepted restrictions on rights of criminals. Essentially, if you ignore the rights of others, the law has the right to restrict your rights as well.

The admissibility of hearsay evidence was allowed in certain circumstances by the Act in order to protect the persecuted from their attacker – statistics show that this is often someone with a dominant relationship to the victim. It’s been demonstrated in the past that the mere presence of the attacker can silence the victim. Given that the accused has a right to be present at every part of their own trial, it was decided that the victim should not be forced to confront them directly in the court.

The reasoning looks sound, but this is relatively new ground, at least where Vanuatu is concerned.

But if the justices decide that even the slightest changes are required, they will have to do so in the knowledge that they can’t simply refer it back to government. It will have to be re-submitted as a new bill to the new Parliament. Given its tortuous passage in the last Parliament, marked by histrionics when the opposition walked out in protest, there’s every chance that it would die outright.

There is every indication that the law is substantially constitutional. We can quibble over interpretation of what Christian values actually are, but the right to safety of the person and protection against inhuman treatment are well understood, both in law and society.

The Justices do have one valid option. They can accept the Act’s constitutionality as it stands, and trust themselves and their successors to allow precedent to iron out niggling questions concerning evidence and the status and role of traditional counselors such as chiefs and pastors.

Few laws spend their entire existence un-amended. If changes are required, they can be made after the Act is promulgated. To suggest any further consideration by parliament at this time ensures that it will be years before it sees the light of day again, if it survives at all.

Whether intentionally or not, to reject even the smallest part of this law could have the effect of leaving yet another generation of women and children at risk of predation by the very people enjoined by society and the state to protect them.

It’s clear the president is trying to act in the best interests of the Republic. Nobody doubts that he takes this role seriously. One only hopes that those advising him on this matter were not counting on the tenuous status of the Act to further endanger it this way.

We can accept the law as it stands, or we can choose between the devil and the blue sea.