COOK ISLANDS
FEDERATED STATES OF MICRONESIA
REPUBLIC OF THE FIJI ISLANDS
KIRIBATI
NAURU
NIUE
PALAU
REPUBLIC OF THE MARSHALL ISLANDS
SAMOA
SOLOMON ISLANDS
TOKELAU
KINGDOM OF TONGA
TUVALU
VANUATU
AGO Attorney General’s Office
APT Association for the Prevention of Torture
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CERD Convention of the Elimination of All Forms of Racial Discrimination
CRC Convention of the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
DFAT Department of Foreign Affairs and Trade
EVAW Elimination of violence against women
FHRADC Fiji Human Rights and Anti-Discrimination Commission
FPF Fiji Police Force
FSM Federated States of Micronesia
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
LAC Legal Aid Commission
LRC Law Reform Commission
MFAT Ministry of Foreign Affairs and Trade
MLSC Micronesian Legal Services Commission
NHRI National Human Rights Institution
NNSP Niue National Strategic Plan 2016-2026
NSDP National Sustainable Development Plan
OHCHR Office of the High Commissioner for Human Rights
PacLII Pacific Legal Information Institute
PICP Pacific Islands Chiefs of Police
PICs Pacific Island Countries
PIFS Pacific Islands Forum Secretariat
PILON Pacific Islands Legal Officers Network
PJDP Pacific Judicial Development Programme
PJSI Pacific Judicial Strengthening Initiative
PLDO Public Legal Defence Office
PSO Public Solicitor’s Office
PSSG Pacific Security Sector Governance Project
RAMSI Regional Assistance Mission to Solomon Islands
REACH Rights Empowerment and Cohesion - for Rural and Urban Fijians
RMI Republic of Marshall Islands
RRRT Regional Rights Resource Team
SDG Sustainable Development Goal
SPC Pacific Community
TKIII Te Kakeega III
UDHR Universal Declaration of Human Rights
UN United Nations
UNCAT United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
UNDAF United Nations Development Assistance Framework
UNDP United Nations Development Programme
UNODC United Nations Office on Drugs and Crime
UNPRAC UN Pacific Regional Anti-Corruption Project
UNPS United Nations Pacific Strategy
UPR Universal Periodic Review
VPF Vanuatu Police Force
The legal systems of 14 Pacific Island Countries (PICs) are described in this mapping, capturing existing legislation and institutions relevant to the rule of law and access to justice; the recent and current major development initiatives in this area; and the technical and institutional gaps that challenge access to justice in the individual countries.
Through the lens of the Sustainable Development Goals (SDGs), this mapping seeks to provide a holistic guide of the rule of law situation across the 14 PICs. Further to the commitment to the SDGs, in particular to Goal 16 on Peace, Justice and Strong Institutions and Goal 5 on Gender Equality, a number of access to justice and rule of law initiatives have been designed, implemented and achieved success. These initiatives have spanned the justice sector and incorporate programmes relating to all justice sector stakeholders. In addition, efforts to eliminate sexual and gender-based violence have been consistent.
Programmes funded and implemented by Australia and New Zealand have substantial footprints in the field of justice, security and rule of law through their police cooperation programmes and other initiatives. These programmes have produced tangible results and several continue to do so. There are also numerous regional programmes and initiatives that have focused entirely or partly on rule of law, access to justice and human rights. Indeed, the Regional Rights Resource Team (RRRT) is implementing programmes on access to justice, supporting the establishment of National Human Rights Institutions (NHRI) and providing technical support with treaty reporting. Despite these initiatives, there are several areas that continue to present challenges and require innovative and enterprising approaches to sustain tangible progress. Such progress can have a consequential positive impact on the justice system as a whole and on specific areas of concern to the region, for instance, trafficking in persons. Furthermore, in light of the importance of measurable results and in an effort to assist PICs with their reporting towards the Sustainable Development Goal (SDG) Indicators, new approaches to data measurement should be considered for the future and indeed, woven into existing programming.
Challenge: Legal aid systems and delivery of legal aid services range in the Pacific between entirely absent to well-developed. On the whole, the sector is largely underfunded, eligibility for legal aid entitlements is not sufficiently clear or legally well-defined, and the timing of access to legal services differs greatly between PICs. Further, there are limited specialised professionals and services available and access to legal aid in civil matters is rare, though likely to be of high value to the populace.
Solution: A contextualised response for each PIC is required to develop and enhance sustainable, effective and efficient legal aid systems. PICs have diverse concepts of legal aid and eligibility thresholds and requirements. Contextualised approaches to legislative and institutional strengthening are necessary to support the development of the institutions in line with international best practices – ensuring the institutions are able to uphold citizens’ rights to access justice.
Challenge: Deficiencies in police forces, prosecution services, legal aid systems, judicial services, prison services and human rights institutions all contribute to delayed access to justice for arrested and detained persons. Such deficiencies are visible in most PICs covered in this mapping. International best practice has shown that early access to justice for suspects on arrest and detention results in increased efficiency of the entire justice system.
This mapping analysed the key access to justice and rule of law related challenges faced by PICs and the key findings of this analysis are outlined below. It is evident that progress in one area can have a consequential impact on the progress in another, hence the need for an integrated approach. A regional initiative designed to enhance early access to justice and the right to legal representation, leaving no one behind, would be of significant benefit to PICs and advance the 2030 Agenda. The Fiji Legal Aid Commission (LAC) is currently planning to host a regional Legal Aid conference- an initiative that may be the starting point of a regional effort to promote early access to justice and the use of technology and innovative approaches to improve justice services.
For those without the requisite means to secure private legal assistance, the availability and provision of free legal aid is essential. In this area, development of the human capacity for central and local legal aid institutions is required throughout the region, through trainings, mentorships, peer-exchanges and attachments in peer institutions within the region and beyond, networking, and distribution of knowledge products.
Additional areas of support could include supporting PICs in endorsing the UN Principles and Guidelines on the Access to Legal Aid in Criminal Justice Systems, the 2013 Johannesburg Declaration and the 2016 Buenos Aires Declaration; through technical support, advocacy and networking opportunities, as well as support to establish Commonwealth-Pacific sub-groups wherever appropriate. To that end, UNDP is already taking concrete steps in establishing a regional legal aid network of practice and knowledge in supporting the LAC of Fiji in convening a legal aid conference in Fiji including all state and civil society legal aid providers from the Pacific Region.
The range of legal aid systems and services available in the PICs are illustrated in Table 2. The findings illustrate the opportunities for development in terms of legislation, funding, availability and accessibility. Such opportunities for development can also encompass considerations to be given to identifying availability and accessibility to specialised services. As is evident from the table, the response required must be contextualised to ensure the suitability of an effective and efficient legal aid system. For example, each PIC may have an alternative interpretation of eligibility for legal aid depending on differing levels of income, the type or severity of the crime.
The opportunity under this heading and the successes to be gained have a ripple effect on the justice system as a whole and a tangible impact on early access to justice initiatives outlined below.
For this reason, future programming should include a comprehensive and systemic approach to improving disaggregated (sex, age, disability and populate group) data and information sources for SDG 16 targets related to programme activities; and focus on the development of innovative and cost-effective solutions for capturing data that support PICs’ ability to track progress on rule of law and access to justice, anti-corruption and effective institutions and ultimate progress on the SDGs.
The 2030 Pacific Roadmap for Sustainable Development, which was endorsed in Apia in September 2017 by Pacific leaders is a guide for the coherent implementation and accountability for global commitments, including the 2030 Agenda and the SAMOA Pathway. During the launch of the 2030 Pacific Roadmap, Pacific leaders called on the UN to support the Pacific’s interest in strengthening implementation of their Roadmap, particularly through the development of Pacific-relevant statistics as well as more meaningful accountability measures for partnerships under the SAMOA Pathway. The recently finalized UN Pacific Strategy covering 14 PICs and territories articulates the UN support for implementing the SDGs over the 2018-2022 programme cycle.
There is also a challenge in the availability of judicial, legal and police data. However, some indicative data is available. For example, both intimate partner violence and sexual violence in broader societal settings are reported at near epidemic levels in the Pacific, with over one third of women in the Pacific having experienced intimate partner violence. An average of 60%-70% of women in Kiribati, Fiji, Samoa, Tonga, the Solomon Islands and Vanuatu have reported experiences of sexual violence in their life. Most women who experience intimate partner violence do not seek help from police, other authorities or services.
Overall, supporting PIC governments to improve data and information resources, collection, reporting and analysis in judicial, legal and police institutions on related SDG 16 targets is a cross-cutting development impact multiplier. Such data and related results will inform institutional and development support programming across the board by both governments and development partners, help set the baseline, enable targets to be adequately set and measured, and generate visibility of feedback, which can be directly applied to enhance service and programme delivery.
The Cook Islands consists of 15 islands, scattered over a vast area. The population is approximately 15,000, the majority of whom are located on the island of Rarotonga. The Cook Islands faces the enormous challenges to access to justice for its small, widely-spread population, especially those of the Pa Enua, the outer islands.16 The main challenges are a lack of qualified human and financial resources, which need to be addressed to enhance access to justice and the correctional system.
The Cook Islands is a parliamentary democracy in free association with New Zealand. The Cook Islands’ defence and foreign affairs are the responsibility of New Zealand, but they are exercised in consultation with the Cook Islands.
The Cook Islands became self-governing in 1965, and adopted a Westminster parliamentary style government similar to that of New Zealand. Parliament consists of a single chamber of 24 elected members, 10 of whom are from the main island of Rarotonga and the rest are from the outer islands. The head of government is the prime minister, who is appointed by the governor general based on a majority vote in parliament. An advisory body of chiefs, known as the House of Ariki, advises the government regarding customary issues and land use.17
The Cook Islands recently introduced its 2016-2020 National Sustainable Development Plan (NSDP). Goal 16 of the NSDP aims to promote a peaceful and just society and practice good governance with transparency and accountability.18 The goal seeks to reduce domestic violence and motor vehicle accidents, and improve access to justice, corrective services, public service performance, sustainable public financial management and a parliament that serves the people.19 In its development, the NSDP used the SDGs as a model around which to construct the national priorities of the Cook Islands.
In 2016, a new outcome level United Nations Development Assistance Framework (UNDAF), entitled the United Nations Pacific Strategy 2018-2022, was developed. Emanating from preliminary consultations for the UNPS with government, civil society and the private sector, the Cook Islands is looking to use modern technology and public information platforms and explore E-governance. This is all in line with UNDP’s innovative thinking on how to support small countries that cover vast geographical areas. At the regional level, the UNPS will align with Pacific regional priorities identified in the Framework for Pacific Regionalism.
UN Women implements the Advancing Gender Justice Programme and supports the elimination of violence against women. UNDP and UNODC have a joint anti-corruption project, the UN Pacific Regional Anti-Corruption Project (UNPRAC). This project supports PICs to strengthen their capacity to address corruption and provide better service delivery and development outcomes for citizens.
16 Human Rights in the Pacific, a Situational Analysis, RRRT 2016
17 Human Rights in the Pacific, a Situational Analysis, RRRT 2016
18 Incidentally coinciding with the SDG goal 16
19 Cook Islands National Sustainable Development Plan, 2016-2020
The OHCHR is supporting the ratification of international conventions and provides training on treaty reporting. In addition, OHCHR is advocating for the establishment of a National Human Rights Commission (NHRC) together with the RRRT. In 2017, the Pacific Community, together with OHCHR, UNDP and the Asia Pacific Forum conducted a joint scoping mission for the establishment of a NHRC.
The New Zealand-funded PJSI (2016-2021) administered by the Federal Courts of Australia supports the judiciary. The programme provides capacity building and aims to increase efficiency of the judiciary. The programme is the successor to the previous Pacific Judicial Development Programme, funded and implemented by the same parties.
The 2012 Police Act provides the legislative framework in which the police service operates. The police force is responsible for both the internal and external security of the country, and operates closely with the New Zealand Police. According to a recent report, the police force requires “a significant injection of equipment and training.”20 This report was based on incidents from October 2016 when an escaped prisoner shot his partner, her friend and then killed himself. An independent report blamed failings in the country’s police and prison systems.
The DOJ is the highest legal office of the national government and mandated to enforce all laws of the country.
The High Court, the Court of Appeal, and the Privy Council make up the judicial system. The High Court is established under article 47 of the constitution, is the court of first instance and is divided into three branches; civil, criminal and land. The Court of Appeal has jurisdiction to hear appeals from the High Court when the High Court certifies that a substantive question of law is involved, including in cases of life imprisonment, and when a question of law arises as to the interpretation of the constitution. The Privy Council in the United Kingdom is the final Appellate Court and hears both civil and criminal appeals from the Court of Appeal in cases where there are ‘questions of great general or public importance’. Justices of Peace perform an important role in the delivery of justice in Cook Islands, and the exercise of their jurisdiction depends on the seriousness of the case.21
The Ministry of Justice annual report 2015/2016 concludes that the ministry continues to face challenges, in particular regarding access to the courts, crime reduction and the integrity of land information. The ministry is unable to meet the need for increased court days with the current budget, which is slowing down the judicial process. The report also expresses concern regarding crime prevention, and suggested that more should be done in terms of rehabilitation of prisoners. Lastly, the Land and Title Registry is in need of an upgrade.22
The Prison Services Division of the Ministry of Justice is governed by the Prisons Act, 1967 and is responsible for the management of the Arorangi Prison. The main challenges to the prisons services is the lack of personnel, affecting the provision of rehabilitation programmes,23 and services to prisoners with mental health issues. The prison service has initiated discussions with the Ministry of Health to address the need for staff training to24 deal with prisoners with mental health problems adequately.25
20 http://www.pireport.org/articles/2017/03/23/cook-islands-police-urgently-need-equipment-training
21 Cook Islands Ministry of Justice Annual Report 2015/2016
UN Women advise that reliable data regarding violence against women is unavailable and the low number of reported domestic violence cases suggest under-reporting as opposed to less frequency. There are a high number of teenage pregnancies, many of which are the results of abuse, rape and incest.32 The Family Protection and Support Act was passed July 2017, and contains a specific section on domestic violence.33 The impact of the legislation is awaited, but assumptions suggest the 2017 Act could result in a radical change to how domestic violence is managed.34
An Australian Aid-funded gender project provides community legal services through local lawyers supported by the Law Society. The service focuses on offering mediation services for women who have a history of, or are living through, violence at home, before seeking non-molestation orders, child maintenance or child custody. The service also provides advice for court procedures.35
As in other PICs, traditional law remains influential and eminent. The House of Ariki is a parliamentary body that consists of the High Chiefs of the Cook Islands. It is recognised in the constitution that the House of Arikis shall have the power to, “Consider such matters relative to the welfare of the people of the Cook Islands as may be submitted to it by [Parliament] for its consideration, and it shall express its opinion and make recommendations thereon to [Parliament]; and to have such other functions as may be prescribed by law”.36 By way of example, the Family Protection and Support Act, 2017 takes into account the cultural norm of calling a family meeting, but formalises it into law to ensure the best interests of Cook Islands’ children are put first.
• Prison overcrowding, prison conditions and services.
• The legal mechanisms and sustainability of legal aid funding.
• Court resources to meet the need of additional court sessions.
• The need for increased use of technology to reach the rural communities as suggested by the NSDP.
• Support for prison expansion, rehabilitative focused training and implementation of efficient case management systems.
• Support for establishment of a National Legal Aid Scheme, including with legislation on free legal aid, based on the model law for legal aid.
• Provide access to justice and legal awareness for vulnerable groups, such as women and youth through outreach activities.
• Develop options and mechanisms for early access to justice and access to legal counsel within the first hour of arrest.
• According to the NSDP, the Government of Cook Islands is keen to use modern technology to increase outreach and provide services for the citizens. Development of innovative approaches using modern technology to reach out to poor and vulnerable groups that are far from urban areas may be utilised, such as e-Government and online portals.
32 http://asiapacific.unwomen.org/en/countries/fiji/co/cook-islands
33 http://www.paclii.org/ck/legis/num_act/fpasa2017340.pdf
34 http://www.cookislandsnews.com/national/politics/item/51038-new-bill-targets-domestic-violence
35 http://www.cookislandsnews.com/item/51975-free-legal-advice-for-women/51975-free-legal-advice-for-women
36 Cook Islands Constitution 2004, part I section 8
The Federated States of Micronesia (FSM) comprise 607 islands and four states: Chuuk, Pohnpei, Kosrae and Yap. The population of FSM is currently approximately 103,000 – one of the larger PICs.
FSM has a constitutional government in free association with the United States, with the president as head of state and government. FSM became independent in 1986 after having been a part of the Trust Territory of the Pacific Islands. The Compact of Free Association with the United States has economic, military, immigration and health implications with the partnered countries and is due to expire in 2023.37
The judicial branch is independent and the Supreme Court is the highest court of the country, and has exclusive jurisdiction in cases involving disputes between states, foreign officials, admiralty and maritime cases, FSM Constitution, national laws or treaties and other domestic laws.38 Under the Supreme Court are the State Courts, one for each of the states and independent of each other. The power to govern is shared between the national and state governments and each state has its own independent judicial system.
While the FSM’s total land area is quite small and amounts to approximately 270 square miles, it occupies more than one million square miles of the Pacific Ocean.39 The physical distance between islands and lack of communication infrastructure are some of the challenges facing the state institutions in delivering services with access to justice difficult outside the urban areas, particularly for women and the youth.
In 2016, a new outcome level UNDAF, titled the UNPS 2018-2022, was developed and agrees to common strategic outcomes that provide the foundation for UN support at both national and regional levels. At the regional level, the UNPS aligns with Pacific regional priorities identified in the Framework for Pacific Regionalism. At national level, the UNPS works to establish an FSM Country Strategy that aligns with priorities outlined in the Strategic Development Plan (SDP) 2004-2023. The SDP focuses on three major components, but does not contain a specific strategy on rule of law and access to justice.
However, the Federated States of Micronesia, as all Member States of the UN, adopted the 2030 Agenda for Sustainable Development with 17 SDGs in 2015. The SDG 16 on Peace, Justice and Strong Institutions clearly endorses the fact that the rule of law and development are mutually reinforcing and are essential for sustainable development at the national and international level.
Through the Advancing Gender Justice in the Pacific (AGJP) Programme, UN Women continues to build capacity with its government and civil society partners for CEDAW implementation and reporting, particularly when it comes to adopting a harmonised human rights reporting and implementation approach. In terms of women’s political participation, UN Women is undertaking advocacy initiatives through its Empowerment Series. UN Women implements the Advancing Gender Justice Programme in FSM, and supports the elimination of violence against women. UNDP and UNODC have a regional joint anti-corruption programme and UNODC has initial plans for programmes against transnational crimes. The OHCHR and the RRRT support the ratification of international conventions and provide training on treaty reporting. In addition, they are advocating for the establishment of a National Human Rights Commission.
37 https://thediplomat.com/2016/02/americas-micronesia-problem/
38 http://www.paclii.org/fm/courts.html
The PILON reports that the FSM Department of Justice needs assistance in establishing domestic laws addressing cybercrime, and technical assistance to pilot legal drafting of appropriate legislation. Being a new area for FSM, training for police and prosecutors will be required to understand what cybercrime is and how to address it. Legal drafting assistance to develop cybercrime legislation will be required as well. PILON is also providing litigation and prosecution training for national and state government attorneys to improve the litigation skills and confidence of young lawyers working for the government. FSM has also put in place a Judicial Education Plan (2008-2017) in order to address capacity gaps within the judiciary.
The former PJDP 2010-2015 has been replaced by the PJSI 2016-2021, both funded by the Government of New Zealand and administered by the Federal Courts of Australia. The PJSI has, among other things, conducted a three-day Access to Justice/Enabling Rights Workshop in Kolonia, Pohnpei in cooperation with the FSM Supreme Court. A week prior to the workshop, FSM Supreme Court staff and the PJSI Technical Director conducted an Access to Justice Assessment to assist courts in identifying justice needs within the FSM, planning their work, allocating resources and responding to community concerns, with the aim of improving service delivery. One major concern arising from the assessment was the limited access to the courts for victims of domestic violence, child and spousal abuse, human trafficking, people with physical and mental disabilities, and the need for translation as a barrier to justice for many FSM citizens. It was also noted that citizens need to be more aware of their rights.
The close relationship between FSM and the United States, and the similarities in their legal systems, has resulted in steady streams of US attorneys working within the Department of Justice in FSM.
The national police sit under the Department of Justice and their conduct with citizens is regulated by Article IV of the Declaration of Rights in the constitution. The national police service is the law enforcement arm of the FSM national government, with a specific mandate to enforce fishery laws, the Controlled Substance Act, the Weapons Control Act, search and rescue, protection of government officials and visiting foreign diplomats and laws that are national in nature and crimes against the government. Each state has its own police force under the Department of Public Safety, which includes the Division of Police and Security, the Division of Corrections and Rehabilitation, the Division of Fish and Wildlife and the Division of Fire and Emergency Services. FSM has provided police officers to the Regional Assistance Mission to Solomon Islands (RAMSI) since March 2006.
The FMS Department of Justice is the highest legal office, mandated to enforce all laws of the country.
The Judiciary is provided for under Article XI of the constitution. FSM has a two-tier judicial system with a trial division and an appellate division. There are currently four justices on the bench: a chief justice and three associate justices. The trial division is a court of limited jurisdiction that hears matters affecting foreign relations, admiralty, or maritime cases; and matters arising under the constitution regarding national law or treaties, and disputes between citizens and their states and/or other states. The appellate division is the highest court and the court of last resort. It may consider cases litigated in the trial division and local courts. It is also responsible for interpretation of the constitution, national laws, or treaties. Each of the four states in FSM have separate Judicial systems.
Each state also has an Attorney General’s Office (AGO) which represents the public. As the people’s lawyer, the attorney general may bring suit to protect the state, to be the authority of the legal representative and counsel of the state in litigation etc. The attorney general also has the exclusive authority involving the rights of the state or citizens against any violations of public right or duty.40
Gender discrimination is prohibited under both the FSM Constitution and the constitutions of each state. All four states provide legislation which prohibit sexual assault with girls under 13. However, in Pohnpei, sexual assault is inadmissible if the complainant and the perpetrator live together in a voluntary sexual relationship.
Domestic violence is a serious problem with the number of reported cases on the rise. The Government has acknowledged the need for concrete data on the nature and incidence of domestic violence against women. The UN country team urged FSM during the UPR process to introduce federal legislation criminalising violence against women and the international community and human rights organisations have encouraged the four states to criminalise domestic violence.48 So far, Kosrae State has passed the Family Safety Act, 2014. Pohnpei State has been unsuccessful in its attempts to pass similar legislation on a number of occasions. Chuuk and Yap do not have legislation criminalizing domestic violence.49 Furthermore, there is no sexual harassment legislation in place and fault-based divorce is still practiced. Despite the government acknowledging that the elimination of domestic violence is a priority issue, the absence of official gender policies and strategic development action plans make it difficult for policy and decision-makers to take women’s affairs seriously. Women continue to be underrepresented in the legislature, cabinet, highest levels of corporate sector, and other economic and social institutions.
The traditional justice system plays a significant role in FSM. Indeed, the constitution states that nothing in the constitution takes away a role or a function of a traditional leader as recognized by custom and tradition, or prevents a leader from being recognized, honoured and given forma or functional roles at any level of government as may be prescribed by the constitution or statue. Further, the Congress may establish, where required, a Chamber of Chiefs consisting of traditional leaders from each state having such leaders, and of elected representatives from states having no traditional leaders. The constitution of a state having traditional leaders may provide for an active, functional role for them. In fact, there have been rulings upheld by the Supreme Court on traditional leaders “acting as police officers” claiming they had the right to do so under traditional law.
• FSM has limited access to justice and legal awareness and services – particularly in rural areas and islands.
• National legislation on free legal aid stands to be enhanced and clarified.
• There is no Prison Ombudsman to investigate complaints of inhuman prison conditions.
• Provide access to justice and legal awareness for women and youth through outreach activities and modern technology – including direct delivery of government services.
• Develop options and mechanisms for early access to justice – including access to legal counsel within the first hour of arrest.
• Increase access to legal services through innovative solutions and harnessing modern technology – especially given the geographic challenges.
• Support the country/states in developing legislation on free legal aid, based on the model law for legal aid.
• Support for the establishment of a Prison Ombudsman to investigate complaints of inhuman conditions.
Fiji is an archipelago of more than 300 islands, of which 110 are permanently inhabited. The majority of the population live on the two largest islands, Viti Levu and Vanua Levu (87%). The total population is estimated at 860,000.
Fiji joined the Commonwealth of Nations in 1970, and then re-joined in 1997 after a ten-year lapse. Fiji returned to democracy on 17 September 2014 through general elections after eight years of a military-led government. The election result made history in terms of a significant increase in female Members of Parliament (MPs) from three female MPs in 2006, to eight in 2014. The president of Fiji is the head of state and commander-in-chief of the armed forces. The prime minister heads the government. Fiji is divided into three main branches, the Executive, the Judiciary and the Legislature.
The Fiji National Development Plan comprises both a 20-year (2016-2036) long-term development plan and a five-year (2016-2020) short-term development plan.
The 20-year plan is based on the assessment of the current development situation, emerging trends and the outcome of nationwide public consultations. The development plan is twofold. Part one focuses on inclusive development, and spells out the provision of basic services to facilitate social development such as water, energy, housing, food security, education, health, security; social empowerment; youth; women culture and heritage. Part two supports sustainable economic development to create a pathway for growth and a modern regional economic hub.
The five-year development plan (2016-2020) is the first phase of the long-term development strategy, which clearly outlines the programmes and projects under each sector to be implemented by 2020. The vision of the Plan is A Better Fiji for All, comprising:
• Improved quality of life
• Achievement of SDGs
• Progressive realization of the socio-economic rights enshrined in the Fiji Constitution, 2013
• Doubling of per capita income from FJ$7,500 to FJ$15,000
• Reduction in income inequality, levels of hardship and poverty, particulatly in rural areas
• Improved welfare for all, especially the most vulnerable
• A clean and healthy environment
In 2016, a new outcome level UNDAF, namely, the UNPS 2018-2022 was developed. The UNPS has agreed common strategic outcomes that provide the foundation for UN support at both national and regional levels.
The five-year development plan includes sector plan and goals set against an analysis of sector context, including challenges and opportunities to justify priority policies and strategies. The Inclusive Socio-Economic Development sector includes National Security and the Rule of Law. The goals for this sector are to modernize the operation of the criminal justice system (law enforcement, legal representation, courts and corrections) to ensure “an inclusive, safe, secure, stable and prosperous Fiji”. The goal is also to pursue community engagement and public awareness on crime prevention. A prime focus will be placed on protecting Fijians from environmental risks and natural disasters, transnational crime (human and drug trafficking), food security and public health risks and financial and cybercrimes. Boarder security will be maintained through improved interagency coordination and modernisation of facilities. Fiji will continue to support international humanitarian efforts through UN peacekeeping operations.50
Suva, the capital city of Fiji, is the main hub for many regional organisations and regional initiatives, including the UN Pacific Office. UN Women implements the Advancing Gender Justice Programme in Fiji, and supports the elimination of violence against women. UNDP and UNODC have a joint anti-corruption project, UNPRAC, which aims to support PICs in strengthening their capacity to address corruption to provide better service delivery and development outcomes for their citizens.
The UNDP Fiji Access to Justice Project supports access to justice for impoverished and vulnerable groups through empowering people to access legal rights and services through key justice institutions, while strengthening those institutions to undertake improved service delivery.
The LAC and the Judicial Department are identified as key justice institutions providing entry points for access to justice, and are thus being strengthened under this project. Non-governmental organisations are also being strengthened to deliver complementary access to justice services, particularly for impoverished and vulnerable groups.51
UNDP is also implementing Project REACH, which promotes peace building, social cohesion and inclusiveness for all Fijians. Project REACH conducts awareness raising of the social, economic and legal rights enshrined in the constitution, provides access to the services associated with these rights, including access to legal aid, and also strengthens institutional capacity to deliver these services. Awareness raising and service delivery is undertaken through the provision of mobile teams.52 A mobile service delivery approach is undertaken to reach communities throughout Fiji with an emphasis on reaching the furthest behind first. The REACH Project further aims to enhance delivery of the services provided by the Ministry of Women, Children and Poverty Alleviation and the LAC through the provision of mobile teams visiting urban, rural and maritime communities, and to strengthen capacity of these institutions through support to strategic planning, monitoring of results, and support of coordination for effective and coordinated service delivery to all communities.
Following the ratification of UNCAT in 2016, the Fiji Police Force (FPF) introduced training and capacity building on human rights together with a number of community policing initiatives.53 In 2016, the FPF, together with the LAC, implemented an early access to justice initiative by way of a pilot project supported by UNDP. The Pilot of the First Hour Procedure and Video Recorded Interviews, under UNDP’s Pacific Security Sector Governance (PSSG) Project, mandates collaboration between the FPF and the LAC whereby the FPF liaise with the LAC to ensure that those in detention are afforded the right to legal advice and information within the first hour of arrival at the station and that suspects’ interviews are video recorded. The training material under the pilot project together with material relating to investigative interviewing will form part of the syllabus for police recruits in the Fiji Police Academy in 2018. The PSSG project is also supporting the FPF and wider justice sector as they consider the introduction initiatives designed to protect vulnerable persons, victims and witnesses, such as one way glass identification parades and victim video recorded interviews.
The PSSG project is funded by UNDP with in-kind support from the British High Commission in Suva; International Security Sector Advisory Team/ Democratic Control of Armed Forces; Department of Peacekeeping Operations; and the UNDP Rule of Law Global Programme. The project also engages the Association for the Prevention of Torture (APT), leading practitioners in the area of torture prevention, to provide training for custody officers and in 2017, provision of a confidential comprehensive report to the FPF following an inspection of the FPF’s detention facilities. On receipt of APT’s report, the FPF have taken significant steps to upgrade detention facilities.
51 http://www.pacific.undp.org/content/pacific/en/home/operations/projects/democratic_governance/Fij_A2J.html
52 http://www.pacific.undp.org/content/pacific/en/home/operations/projects/democratic_governance/rights--empowerment-andcohesion--reach--for-rural-and-urban-fij.html
53 http://www.police.gov.fj/index.php/community-policing
Bulubulu is the traditional justice mechanism currently in operation in Fiji.68 The custom of bulubulu is accepted as a form of dispute resolution, where parties to the conflict apologise and reconcile. The community hears both sides of a dispute and acts as a safety and negotiating partner to the aggrieved party. In previous years, bulubulu was utilised to resolve cases of sexual violence, including rape. The rationale for its use included the avoidance of a criminal action for the perpetrator. However, in recent years, increasing numbers of domestic violence cases have been brought to the formal system.
• Similar to many PICs, Fiji is a geographically large nation, which makes providing legal and other basic services to all its citizens is a challenging task. The REACH project is a step in the right direction; as the government is providing mobile services. However, government ownership of service delivery is crucial to ensure long term sustainability.
• Access to justice, particualrly in rural and remote areas.
• Early access to justice in criminal proceedings.
• High rates of domestic violence against women.
• Inadequate prison conditions and services.
• UNDP’s REACH project has proved hugely successful in raising awareness and delivering public services to Fijians across the country. The technical team at UNDP has a strong working relationship with the various government agencies and is best placed to ensure a transition to a government led project which delivers public services in the four divisions across Fiji.
• Fiji is in many ways leading by example when it comes to innovative ways to provide early access to justice and basic legal services. Continued support should be provided to the Judicial Department and the LAC through outreach and innovative measures and continue to suport Fiji.
• The Pilot of the First Hour Procedure and Video Recorded Interviews has proven highly successful in enhancing early access to justice in Fiji. In November 2017, 20 members of the Fiji Police Force qualified as trainers in the subject matter of the pilot together with investigative interviewing with the aim of training all officers by 2019. In June 2018, UNDP supported a round table with all key justice stakeholders to discuss initiatives designed to protect vulnerable persons, victims and witnesses. The stakeholders are currently considering methods of implementation of victim of video recorded interviews and revisions to the procedure of identification parades. This support should be continued.
• Intoduction and implementation of a comprehensive programme adressing prison conditions and services to bring them into line with international standards.
Kiribati’s population of approximately 120,000 reside on the country’s 32 atolls and one island, which are scattered across all four of the earth’s hemispheres in an ocean area equivalent to the United States mainland. Kiribati is constrained by geographic isolation, high transport and shipping costs, and a low population base.69
The Republic of Kiribati, previously the Gilbert Islands, gained independence in 1979 and became a member of the Commonwealth of Nations. The Constitution of Kiribati provides that the country is a Sovereign Democratic Republic.
The President of Kiribati is the head of state and the head of government. In the multi-party government system, the executive power is exercised by the ruling government and legislative power is vested in both the government and the House of Assembly, who are elected parliamentarians.70 The Kiribati Judiciary is an independent arm of the system.
The unicameral parliament, or ‘Auti ni Maungatabu’ is based on a fusion of the Westminster and presidential model. It has 44 members elected every four years from 23 constituencies. Elected members of parliament are nominated as presidential candidates in a secret ballot. The candidates subsequently compete in a national presidential election.
The Kiribati Development Plan 2016-2019 considers various obligations of the government71 and includes a review and assessment all SDG targets and indicators together with initial country conditions in each key priority area. The Kiribati Government adopted a pathway approach towards achievement of the SDGs, considering national realities, capacities, levels of development and respecting national policies and priorities. Key priority area five of the plan is related to governance.
One of the strategies for the outcome is to finalise and endorse the National Gender Equality and Women Development Policy by 2017. A separate strategy is an improvement to the police service, including response levels; correction skills; proper maintenance of records; data collection; analysis and reporting; intelligence gathering and analysis through the establishment of a command centre; discipline and ethical standards; investigation and prosecution skills and case management; community dispute resolution and crime prevention; domestic violence.
Attention is drawn to the Judiciary whereby the plan makes specific provision for a new court complex to cater for judicial officers of the high court and magistrates’ court, archives for both the high court and magistrates’ courts, sheriff’s archives, and a library. A library is crucial to the justice system to provide the means for judges, magistrates, lawyers and the court’s officers to research cases or other legal documents and publications. Other matters requiring attention are the security of the premises; transparency; accountability; and the capacity of staff.
69 Kiribati Development Plan 2016-2019
70 UNDP Country Snapshots Kiribati 2016
71 The Istanbul Plan of Action for Least Developed Countries (LDCs); SIDS Accelerated Modalities of Action (S.A.M.O.A.) Pathway, Outcome of the Third International Conference on Small Island Developing States; and Framework for Pacific Regionalism.
The development plan also addresses the required upgrade to facilities and equipment for councils in the outer islands 72 and the unavailability of policy and tools for urban management.
The UN undertook a country consultation in Kiribati in 2016 in preparation for the UNPS.
Areas identified for development included advancing gender equality at all levels with effective strategies to combat gender-based violence and child abuse; access to justice and promotion of human rights and basic needs; need for partnerships within country and between countries; and relevant capacity building programmes for central and local authorities. Violence against women was raised as a high priority. It was noted that more needs to be done to empower women economically, promote and strengthen human rights, ensure accountability, and strengthen the justice system.73
RRRT has a judicial strengthening programme that provides training to justice sector providers, including judges, magistrates, police and prosecutors. The training focuses on family protection legislation, civil protection orders, and what processes should be used to adjudicate civil and criminal cases. Some of the common issues the RRRT focuses on are rules of evidence, corroboration, adjournments and sentencing guidelines. RRRT also develops tools (practice directions and checklists) to help the justice institutions apply the legislation. In addition, RRRT will lead implementation of the Pacific Commonwealth Equality Project in collaboration with the Commonwealth Secretariat, the UK Equality and Human Rights Commission, the Commonwealth Parliamentary Association, and national human rights institutions across the Commonwealth. The three main components are to support emerging national human rights institutions through cross-Pacific and cross-Commonwealth learning and exchange; provide technical support to Pacific states to develop National Human Rights Action plans to meet their human rights and gender equality commitments; and to create platforms for Members of Parliament and civil society leaders across the Pacific to champion and advance human rights.
UN Women implements the Advancing Gender Justice Programme and supports the elimination of violence against women. UNDP and UNODC have a joint anti-corruption project, UNPRAC. This project aims to PICs to strengthen their capacity to address corruption to provide better service delivery and development outcomes for their citizens.
The OHCHR is supporting Kiribati with the UPR process and treaty-reporting, as well as advocating for the establishment of a national human rights commission.
The Judiciary of Kiribati is currently supported by the PJSI 2016-2021, funded by New Zealand and implemented by the Australian Federal Court, replacing the earlier PJDP 2010-2015, which has, among other things, conducted training and workshops for the judiciary seeking to enhance access to rights within the judicial administration. The main goals of the programme are to ensure:
• citizens live in fairer societies with enhanced access to justice;
• judicial leaders direct the delivery of more substantive justice outcomes;
• the public is enabled to demand judicial integrity, transparency and accountability;
• courts administer and deliver justice more efficiently; and,
• there are continuing improvements and transformation in court performance.
New Zealand is also providing regional funding to support community policing across the Pacific. In Kiribati, New Zealand supports the police service to address domestic violence against women. In addition, the five-year programme under the Pacific Partnership to End Violence Against Women and Girls (Pacific Partnership), from January 2018 to December 2022, brings together governments, civil society organisations, communities and other partners to promote gender equality, prevent violence against women and girls (VAWG), and increase access to quality response services for survivors.
The customary laws are recognised in the Kiribati legal framework. The high court has ruled over the application of customary law and it is accepted that written law prevails. Many incidents of village rule which ‘forced’ individual family’s removal on outer islands have been declared unlawful by the high court, illustrating the primacy of state law, over custom. However, custom is considered necessary in certain areas. For instance, custom allows for larger shares of land to be given to male inheritance to safeguard family lands.96
• A lack of training and equipment in the police force.
• A lack of human resources and institutional capacity in the Courts system.
• The lack of funding and human resources in the People’s Lawyer’s office.
• Inadequate physical prison conditions and human resources.
• Deliver options for early access to justice, particularly the first-hour procedure, video recorded interviews and investigative interviewing – in addition to a suite of support options for police.
• Support courts in circuits visiting outer islands.
• Support the establishment of a mobile people’s lawyer and capacity building in the Office of the People’s Lawyers.
• Support improvements to prison conditions and implementation of comprehensive programme to build capacity of human resources.
Nauru is spread over 21 square-kilometres on which its 10,000-strong population resides. Nauru obtained independence in 1968, when it also joined the Commonwealth of Nations.
The President of Nauru is the head of state as well as head of government and is elected by the parliament from among its members. Executive authority is vested in the cabinet, which consists of the president and four or five members of the parliament chosen by the president. The cabinet is collectively responsible to parliament. The Constitution of the Republic of Nauru came into force in January 1968. It provides for a unicameral parliament, which is elected by universal adult suffrage in multi-seat constituencies.97
In 2005, the Government of Nauru drafted the National Sustainable Development Strategy (20052025), led by the Government of Nauru with strong support from a team of UN Agencies. The NSDS vision is: a future in which individual, community, business and government partnerships contribute to a sustainable quality of life for all Nauruans. The development plan was drafted during a time of crisis, financial mismanagement and an overall lack of good governance practices. It paved the way for the re-strategizing of the country’s development priorities according to the aspirations of the people of Nauru and set a platform for close collaboration with the Pacific Regional Assistance to Nauru. Nauru has made remarkable progress in the last four years of NSDS implementation.98 One of the sector goals of the NSDS is that the judiciary, Justice Department and police operate effectively. The longterm goal for the sector is to have an efficient and effective law and order system by 2025. Other midand long-term goals in the sector are to have the parliamentary secretariat and committee system operating effectively, the leadership code enacted, and establishment of an Ombudsman Commission and Leadership Tribunal. The long-term aim is to have an efficiently operating Commission and Leadership Tribunal, updated legislation and an efficient and a productive public service.99
UN Women implements the Advancing Gender Justice Programme in Nauru and supports the elimination of violence against women. UNDP and UNODC have a joint anti-corruption project, UNPRAC. This project aims to support PICs to strengthen their capacity to address corruption in order to provide better service delivery and development outcomes for their citizens.
The OHCHR is supporting the nation with the UPR process and treaty-reporting as well as advocating for the establishment of a national human rights commission. OHCHR and the RRRT have expressed concern about the treatment of the detained refugees.
Australian and New Zealand donors allegedly cut funding to Nauru’s justice system in 2014 due to concerns over civil rights and rule of law abuses, and in particular the sudden dismissal of an Australian magistrate by the Minister of Justice.100 However, Nauru is again one of the countries benefitting from the PJSI 2016-2021, funded by New Zealand and implemented by the Australian Federal Court.101 The programme is clustered around five themes: Leadership (national judicial development
97 UNDP Country Snapshot Nauru, 2016
98 United Nations Pacific Strategy, Country Consultation 2016
99 Nauru National Development Strategy 2005-2025
100 https://www.theguardian.com/australia-news/2017/may/26/how-nauru-ousted-its-judicial-leaders
101 http://www.fedcourt.gov.au/pjsi/about-us/themes
committees, project management), Access to Justice (empowerment, unrepresented litigants, public information), Professionalism (training in court craft, decision-making, sentencing and orientation), Substantive justice (fair trial, human rights, gender and domestic violence) and Procedural justice (case delay and backlog reduction, data collection and reporting).102
RRRT will lead implementation of the Pacific Commonwealth Equality Project in collaboration with the Commonwealth Secretariat, the UK Equality and Human Rights Commission, the Commonwealth Parliamentary Association, and national human rights institutions across the Commonwealth. The three main components are to support emerging national human rights institutions through cross-Pacific and cross-Commonwealth learning and exchange; provide technical support to Pacific states to develop National Human Rights Action plans to meet their human rights and gender equality commitments; and to create platforms for Members of Parliament and civil society leaders across the Pacific to champion and advance human rights.
The police force, under the Minister for Police and Emergency Services, maintains internal security and, as necessary, external security. The country has no military force. Nauru’s police force was established by the Police Force Act of 1972, which lays down the structure of the force and rules of recruitment. Nauru’s police force is currently composed of approximately 150 officers and a small volunteer reserve contingency. The UN country team urged the government to develop the capacity on human rights of law enforcement officials as a matter of priority, so as to prevent violence against women and children, torture and other acts of ill-treatment. The police have created a domestic violence unit.103
The constitution protects fundamental rights and freedoms. The supreme court is presided over by the chief justice and has original and appellate jurisdiction. The district court, which hears civil and criminal cases and acts as the coroner, and the family court are both chaired by magistrates.104
During the last few years there has been concern around the rule of law situation in Nauru. The last published Judiciary Annual Report is from 2010. The former Australian resident magistrate was suddenly deported 2014, allegedly because the Minister of Justice did not agree with one of his decisions. The magistrate felt that the minister tried to influence his decision. When the chief justice (also Australian) tried to fly back into Nauru to handle the situation, he was denied a visa to enter the country and resigned a couple of months later.105 There are also reports that MPs have been prevented from leaving the country, and that passports have been confiscated to this purpose. Various websites have been blocked, including Facebook. Visa costs for journalists have risen from $200 to $8,000, restricting access to information.106
In 2010, the total number of prisoners in Nauru was 20, including five remand prisoners.107 Prison conditions generally met international standards. Prisoners and detainees did not have an ombudsperson to address complaints. However, prisoners and detainees were permitted to submit complaints to the judicial authorities and the officer in charge, who addressed all complaints.108
102 http://www.fedcourt.gov.au/pjsi/about-us/themes
103 US Department of State Human Rights Report 2015
104 http://www.commonwealthgovernance.org/countries/pacific/nauru/judicial-system/
105 https://www.theguardian.com/australia-news/2017/may/26/how-nauru-ousted-its-judicial-leaders
106 http://www.southpacificlawyers.org/files/uploads/newSPLAsh%20Issue%2012_web.pdf
107 https://www.state.gov/documents/organization/186504.pdf
108 US Department of State Human Rights Report 2015
reported use of illegal corporal punishment against children at the camps.117 The Crimes Act 2016 decriminalizes same-sex relations and abortions carried out by medical professionals and criminalizes marital rape. However, the authorities allegedly took no steps to protect women and girls from gender-based violence or to ensure their access to sexual and reproductive health information and services, particularly affecting those in remote locations and/or in marginalized communities.118
According to the EVAW database, the rate of women who had experienced physical or sexual violence by an intimate partner was 48%; 22% of the women in the survey had experienced physical and/or sexual violence in the last 12 months; 47% of women in Nauru had experienced non-partner sexual violence. The rate of child marriage was 27%.119 The Nauru Crimes Act, passed in 2016, criminalises domestic violence. However, there is no evidence that the legislation has been implemented accordingly. Rape is a crime punishable by a maximum of life imprisonment.120
Nauru does not have a formal mechanism for traditional justice, although traditional forms of reconciliation do play an informal role in criminal proceedings, including as a mitigating factor in sentencing.121
• Key justice challenges in Nauru are related to the uncertainty and instability of the judiciary itself and a lack of capacity.
• The Public Legal Defenders Office is not independent or established through separate legislation.
• The many refugees being held in detention centres in need of access to free legal representation – for offences alleged to have been committed in Nauru unrelated to asylum and immigration status for cases with Australia.
• Although the number of prisoners in Nauru is small, in 2014 the percentage of remand prisoners was 25%. All arrested and detained persons should have options for early access to justice akin to the Pilot of the First Hour Procedure, Video Recorded Interviews and support should be provided to the relevant stakeholders in establishing such an initiative.
• Support to the Public Legal Defender’s Office in terms of policy and legislative development to ensure its establishment as an independent body with its own budget, and general institutional and capacity support. 117 https://www.amnesty.org/en/countries/asia-and-the-pacific/nauru/report-nauru/
Niue’s population of 1,792 people is stable and shows small signs of growth. The number of Niueans living in New Zealand is much greater than the country’s population itself, as Niueans are New Zealand citizens. Niue has 14 villages with the capital town Alofi located on the western coast of the island.122
Niue is a self-governing state comprising a single island in the Pacific Ocean. Formerly a British Protectorate, Niue was annexed to New Zealand in 1901; however, since 1974 Niue has been self-governing in free association with New Zealand. As per the Constitution of Niue, New Zealand provides economic assistance and defence (including surveillance of the island’s Exclusive Economic Zone).
The Niue National Strategic Plan 2016-2026 (NNSP) encourages economic growth and details the government’s vision of “A Prosperous Niue” and the mission “Working Together to Protect the People and the Environment”. The NNSP contains seven national development pillars. The second pillar is related to governance,123 and commits Niue to the development of a fair and accessible justice system that respects the rule of law, including cultural and traditional justice systems. Niue is striving to continue to meet its commitments to international standards and frameworks.
Niue, as with all UN Member States, adopted the 2030 Agenda for Sustainable Development with 17 SDGs in 2015, and works towards SDG 16 on Peace, Justice and Strong Institutions However, the main reference to governance and human rights in the UNPS for Niue is related to Outcome 6: “Retention of Vagahau Niue in all forms of Niuean life without prejudice.”
UN Women implements the Advancing Gender Justice Programme in Niue, and supports the elimination of violence against women. UNDP and UNODC have a joint anti-corruption project, UNPRAC. This project aims to support PICs to strengthen their capacity to address corruption to provide better service delivery and development outcomes for their citizens.
The OHCHR is supporting the nation with the UPR process and treaty-reporting as well as advocating for the establishment of a National Human Rights Commission.
Niue also benefits from the PJSI 2016-2021 (which replaced PJPD 2010-2015), funded by New Zealand and implemented by the Australian Federal Court.124
122 United Nations Pacific Strategy 2018-2022
123 http://www.gov.nu/wb/media/PRESS%20RELEASE%202016/niue_national_strategic_plan_2016-2026_launched_ pr4522102016.pdf
124 http://www.fedcourt.gov.au/pjsi/about-us/themes
The population of Palau is currently estimated at 21,000. About 70% of Palauans live in the former capital city of Koror on Koror Island. Palau consists of more than 340 islands, of which nine are permanently inhabited. The capital moved from Koror to Ngerulmud in 2006.135
Palau is a constitutional republic in free association with the United States, having gained independence in 1994. The Compact of Free Association with the United States has economic, military, US immigration and health implications with Palau.
The president, vice president and members of the legislature are elected by public vote. The president is both head of state and head of government. The government exercises executive power, while the legislative power is vested in both the government and the Palau National Congress (the Olbiil era Kelulau). The government has recently made some progress in legislative development. The judiciary is independent of the executive and the legislature power.
At the national level, the UNPS will work to establish a Palau Country Strategy that aligns with priorities outlined in Palau’s National Development Plan (Palau 2020 National Development Master Plan). The Master Plan was drafted in 1996, and sets out the development policy until 2020. The NMDP covers virtually all sectors, institutions and policies in Palau that were relevant at the time, but does not have a strong policy related to rule of law. Instead, the direction of the development work on rule of law is linked to the SDGs, in particular SDG 16.
Palau is a small country with capacity gaps and generally weak institutions. Palau is one of the countries that benefited from the PJDP 2010-2015, funded by the Government of New Zealand and administered by the Federal Courts of Australia. Under the PJDP, the courts developed the first annual reports, containing useful data and indicators for the country.
Australia and New Zealand have, over several years, been supporting programmes in the justice sector. The PJSI 2016-2021, funded by the Government of New Zealand and administered by the Federal Courts of Australia, provides training for magistrates and judicial officers and technical advice for court staff. PJSI is establishing a mentoring system and a regional training team, and is working to improve case management systems and access to justice.
Other, smaller programmes have provided support to the justice system in Palau. The US Department of Interior funded educational and professional training programmes for judges and court personnel, conducted by the Ninth Circuit Pacific Islands Committee.136 The Republic of China, Taiwan supported the installation of a Management Information System and the new Pablo Ringang Building in 2014.137
135 Palau Judiciary Annual Report 2015.
136 Palau Judiciary Court Annual Report 2014
137 Ibid
The Pacific Islands Chiefs of Police are working with Palau Department for public safety in improving forensics in crime scene investigations, transnational crime and crime prevention.The UN is present in Palau through UN Women’s Advancing Gender Justice Programme; UNODC/UNDP’s joint anti-corruption programme; and RRRT/OHCHR’s support for the establishment of a national human rights commission and the ratification of key human rights instruments.
Critical gaps that remain to be addressed are related to accessibility and service delivery. Justice services must reach the entire population. Solutions can be sought through innovation and harnessing technology to increase access to justice in remote areas. A consultant report from 2015 recommended that UNDP provide support to spread information about peoples’ rights under the Freedom of Information Act, including disseminating information and establishing an e-government platform.
The national police, the Bureau of Public Safety under the Ministry of Justice, consists of approximately 160 police officers. The Bureau of Public Safety maintains internal security, emergency response and coastal law enforcement through the Marine Police Rangers. The Bureau of Public Safety has been supported through various initiatives, including the Pacific Islands Chief of Police, New Zealand, Australia and the US.
The judiciary comprises a four-member supreme court, a court of common pleas, and a land court. The supreme court has a trial division and an appellate division and is presided over by the chief justice, assisted by three associate justices and a number of ad hoc, part-time associate justices.138 Because of its long history as a de facto U.S. territory, Palau remains heavily dependent upon the United States as a source of law and a source of legal professionals. As a result, Palau’s judiciary is composed of lawyers trained in the United States.139 In March 2016, 50% of the eight judges in Palau were female.140 In 2016, approximately 1,900 cases were filed, and 2,200 disposed.141 The judiciary has the last few years published its annual report, which contains information about its vision and mission, organisational chart, information about the courts, case statistics, and the result of a public perception survey on access and fairness. The average duration of cases is: land cases 993 days; juvenile cases 399 days; and civil cases 556 days.142
The AGO in Palau prosecutes approximately 500 criminal cases annually. The attorney general is the chief legal counsel to the executive branch of the government, providing legal services to the president and all the ministers in the Republic of Palau. The AGO also drafts and reviews contracts; considers draft legislation and regulations; advises in relation to international treaty obligations; and provides legal opinions as requested by the executive. According to the AGO’s website, the office is understaffed.143
The Ministry of Justice has responsibility for the 72 prisoners (4% pre-trial detainees; 4% women, 2014) in the corrections system. 144 Prison conditions are considered grossly inadequate and indeed the supreme court has on numerous occasions ruled that the conditions constitute a violation of prisoners’ human rights.
The most recent supreme court ruling came in 2015, following a prison visit by the judge. The judge
138 http://www.palausupremecourt.net/
139 Law and Investment in Palau: A Brief Overview for Prospective Foreign Investors. Colin P.A. Jones
140 Palau Judiciary Court Annual Report 2015
141 Ibid
142 Ibid
143 http://palaugov.pw/executive-branch/ministries/justice/office-of-the-attorney-general/
144 palaugov.pw/wp-content/uploads/2016/09/2015-Statistical-Yearbook-1.pdf
ruled that the conditions failed to meet the minimum standard of human decency; the cells had no sinks, toilets or ventilation, no bed and the smell of urine and faeces was described as “overpowering”.145 The court ruled that the conditions constituted a breach of the Constitution of the Republic of Palau, with particular reference to the provisions prohibiting torture, cruel, inhumane or degrading treatment. In addition, the court ordered the Bureau of Public Safety to cease the practice of solitary confinement.
The minister of justice and the vice president appointed a new chief of corrections in 2016, after accusations of poor conditions, overcrowding and corrections officers allegedly accepting bribes following the stabbing death of a prisoner in Koror Jail.146
Access to Justice – Legal Aid
Palau has a Public Defender’s Office under the Ministry of State. According to section 7 of the constitution, it is the role of the public defender to represent all indigent persons charged with a crime. The Public Defender’s Office also takes a limited number of civil and family law cases, resources depending. In 2016, the office employed three full-time attorneys, an investigator and two administrative staff and financial resources were granted for an additional attorney and a satellite office. The office currently represents approximately 95% of all criminal cases in the republic.147 In 2015, the Public Defender’s Office handled 127 criminal cases, eight juvenile cases, 351 citation cases and one common plea.
The Micronesian Legal Services Commission (MLSC) is also present in Palau. The mission of MLSC is to provide equal access to justice and free high quality civil legal assistance to low income people. The MLSC office provides legal services for: child support; marriage; divorce; probation; contracts; land matters; small claims; and wills. The court can also appoint lawyers to represent people if the Public Defender’s Office has insufficient capacity. In 2015, MLSC represented clients in 24 court-appointed criminal cases, 8 juveniles, 76 common pleas and 45 civil actions.148
The judiciary provides court fee waivers for people that cannot afford the costs of filing a lawsuit. The fee waiver form is available on the judiciary’ website and at the Office of the Clerk of Court; however, no fee waivers were requested in 2014 or 2015.149
Palau has a national Ombudsman Office; however, its independence is questionable as it is not established by law. The country currently does not have a NHRI.
Palau signed the CRC in 1995, the CRPD, the ICCPR and UNCAT in 2011. However, only the CRC and the CRPD have been ratified so far.150 Although conventions have not been ratified yet, the latest UPR commended Palau for advancing human rights, and in particular on domestic and sexual abuse by passing the Family Protection Act in 2012.151
The RRRT is currently supporting Palau with the inclusion of participants into regional training for lawyers, MPs, civil society and judicial officers and provides national level training on human rights ratification and reporting to NGOs and government, as well as on UPR reporting. Past support included support to CEDAW and CRPD ratification. OHCHR is working according to its mandate in training and technical assistance on treaty body follow up and advocating for ratification of treaties and the establishment of NHRIs.
145 http://www.pireport.org/articles/2015/01/12/palau-court-orders-prison-temporarily-end-solitary-confinement
146 http://www.oceaniatv.net/2016/08/06/president-requests-80000-to-settle-pablo-max-family-lawsuit-against-the-Government/
148
149 Ibid
150 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=132&Lang=EN
151
• The rights holders and duty bearers could stand to benefit from a reform drive in sentencing models/approaches, corrections system and facilities.
• Support should be provided to the Public Defender’s Office to ensure all arrested persons have access to a lawyer.
• Support could see the development of a system-wide early access to justice framework of cooperation between justice institutions.
• Technical support should be provided to increase efficiency of legal aid providers and improve capacity building measures, technical professionalism and case management systems.
• Although the judiciary has created a website for information, forms and publications, there remains significant room to develop and expand outreach and awareness raising. For example, the court fee waivers are not used, and awareness could be increased about this service.
• Support should be provided to the Judiciary and the Public Defender’s Office in designing outreach activities and awareness raising components.
• Support should be provided to enhance service delivery through outreach to remote areas and providing opportunities for communities using modern technology in outreach and access to justice programmes, such as mobile phone applications, legal aid helpline, establishment of e-government platform. This could be provided through a mobile model that sees awareness raising of government services and justice services, and provides direct access thereafter.
The population of the Marshall Islands was estimated at 53,000 in mid-July 2016.159 The geography consists of 29 atolls and approximately 1,230 islands spread over 750,000 square miles of the Western Pacific. Some atolls have internet and cell phone access, while other atolls can only communicate by radio and mail.160
RMI formally became independent in 1986. RMI has a constitutional Government in free association with the United States, with the President as Head of State and Head of Government. The Compact of Free Association with the United States has economic, military, US immigration and health implications for RMI and indeed, RMI utilises the United States dollars as its currency.
The government operates under a mixed parliamentary-presidential system as provided for in the constitution. The majority of the elected presidents have been traditional paramount chiefs. Executive power is exercised by the government and legislative power is vested in both the government and the Nitijela (legislature). The judiciary is independent of the executive and the legislature.161 RMI aims to harmonise domestic legislations with international treaties and protocols, despite the obstacles and impediments to implementing particular treaties.
In 2016, a new outcome level UNDAF, titled the UNPS 2018-2022 was developed. The UNPS has agreed common strategic outcomes that provide the foundation for UN support at both national as well as regional levels. At the regional level, the UNPS will align with Pacific regional priorities identified in the Framework for Pacific Regionalism.
The RMI National Strategic Plan (2015-2017) provides development direction for RMI within the 3-year period. The National Strategic Plan Vision considers both the RMI Constitution and Vision 2018. The development of the National Strategic Plan Vision focuses on continuing to build a resilient, productive and self-supportive RMI which is evident from the vison statement, “in our own hands is our future”. The National Strategic Plan includes five sectors, with each sector broken down into several related strategic areas.162 Law, Justice and Public Safety, and Legal and Regulatory are strategic areas included in Sector 5, Good Governance.
The main challenges listed in the strategic area related to law, justice and public safety are linked to a lack of electronic immigration database/capacity; limited human resources and capacity; equipment; time-consuming citizen-processes; and a backlog of cases. According to the plan, there is also a need for improved coordination between PSC and the attorney general on the hiring processes; the need for improvement of prison conditions; the need to address the capacity of human resources of the police force; and the need to address the harmonization between the local and the national police. The lack of capacity in the existing workforce particularly, the limited number of lawyers and Judges should also be addressed.163
The plan suggests that there is a need to ensure that the legal and regulatory framework is compatible with regional and international standards, and improve enforcement of the current framework and increase local capacity requirements.164
The main objectives of the National Strategic Plan are to maintain quality law and order enforcement, have an ethical and accountable police force, improve community safety and maintain an impartial and equitable court system. The objectives also include reviewing the efficiency and capacity of prosecutions and enforcement of cases.
The Judicial Department is supported by the PJSI 2016-2021 (formerly the PJDP 2010-2015), funded by the Government of New Zealand and administered by the Federal Courts of Australia. Among other things, the programme supported the courts with the establishment of indicators for an efficient justice system, which have been used in constructing the Judicial Department’s Annual Report.
UN Women implements the Advancing Gender Justice Programme and supports the elimination of violence against women. In addition, the five-year programme under the Pacific Partnership to End Violence Against Women and Girls (Pacific Partnership), from January 2018 to December 2022, brings together governments, civil society organisations, communities and other partners to promote gender equality, prevent violence against women and girls (VAWG), and increase access to quality response services for survivors.
UNDP and UNODC have a joint anti-corruption project, the UNPRAC. This project aims to support PICs to strengthen their capacity to address corruption in order to provide better service delivery and development outcomes for their citizens.
The OHCHR is supporting the nation with the UPR process and treaty-reporting, as well as advocating for the establishment of a national human rights commission.
RRRT has a judicial strengthening programme that provides training to justice sector providers, including judges, magistrates, police and prosecutors. The training focuses on family protection legislation, civil protection orders, and what processes should be used to adjudicate civil and criminal cases. Some of the common issues the RRRT focuses on are rules of evidence, corroboration, adjournments and sentencing guidelines. RRRT also develops tools (practice directions and checklists) to help the justice institutions apply the legislation.
Notably, given the close relationship with the United States, there may be unreported ad hoc and inkind programming support provided by US justice institutions to RMI, but these are not included here.
The National Police Force falls under the Ministry of Justice. The Department of Public Safety (DPS) seeks to achieve high quality law and order; security services and socio-economic development; teamwork within and across the police force; close consultation with the community and its representatives of women, youth, churches and business groups; partnerships with stakeholders in customs, health, education and immigration to detect crime and enforce laws; and deterrence and prevention of unlawful activity by identifying and addressing the underlying causes.
The DPS is committed to continue to work in partnership with regional and other international police forces to ensure the security of the nation by improving specialist policing skills and related capabilities, identifying and implementing best practices in the quality delivery of professional law, order and security services, and sharing intelligence to detect and deter trans-national crime.165
The 2016 Samoa census recorded the population at 194,320, three-quarters of whom live on the main island of Upolu.184 There are two main islands, Savai’I and Upolo, with four smaller islands surrounding them. Samoa has eleven administrative divisions, and each district has its own constitutional foundation (faavae) based on the traditional order of title precedence found in the traditional salutations (faalupega). Samoa unitary parliamentary democracy and a member of the Commonwealth of Nations since 1970.
Samoa has a Westminster system as adopted by many of the commonwealth countries. It is a parliamentary democracy, where its parliament is elected through universal suffrage every five years and a prime minister and cabinet manage the day-to-day affairs of the country. The supreme court of Samoa is the court of highest jurisdiction and its chief justice is appointed by the head of state based on the recommendation of the prime minister. The national human rights commission (which is a government organisation) is the only one in the region that has been given A-status as an NHRI. Samoa also has an Office of the Ombudsman.
In 2016, a new outcome level UNDAF, titled the UNPS 2018-2022 was developed. The UNPS has agreed common strategic outcomes that provide the foundation for UN support at both national as well as regional levels. Samoa as all UN Member States, adopted the 2030 Agenda for Sustainable Development with 17 SDGs in 2015. The SDG 16 on Peace, Justice and Strong Institutions clearly endorse the fact that the rule of law and development are mutually reinforcing and are essential for sustainable development at the national and international level. Some of the key recommendations that came out of these consultations were:
• UN to focus on vulnerable groups particularly through promoting employment creation, increasing political participation and strengthening social protection
• Establish an entity which deals with justice and inequality185
The Samoa Law and Justice Sector Plan (SLJS) 2012–2016 details the sector’s four-yearly objectives, goals and primary strategies.186 The SLJS is part of sector wide approach to implementation of the Samoa Strategy for Development.
The New Zealand government is funding the PJSI 2016-2021. The programme is focusing on strengthening the formal justice system. New Zealand Aid has in the past funded several programmes on Justice and Court strengthening (2004-2012), Law and Justice Sector Support (2010-2012) and is currently funding the Samoa Corrections Partnership, which started in 2014, focusing on technical assistance aiming to achieve an effective and quality corrections service.
184 http://www.sbs.gov.ws/index.php/153-uncategorised/76-census-2017
185 United Nations Pacific Strategy, Samoa country consultation
186 Samoa Law and Justice Sector Plan 2012-2016
Australia’s DFAT funds the Samoa-Australia Police Partnership on several initiatives including an electronic case management system for the police; police neighbourhood watch; police outposts; providing training and technical support to the police; providing inter-connected criminal intelligence; and investigative capacity building. DFAT is also providing support to the Ministry of Justice and Courts administration with provision of court recording equipment, victim support and initiatives supporting the DFAT has provided a guide for parliament. Australian Aid also provided training of police, prosecutors, court administration staff, crimes act training, secondment of ombudsman, mentoring programme for government lawyers and the establishment of the NHRI.
USAID provides training to the Samoan Maritime Police and permits Samoa to use US Coast Guard and Navy vessels for policing in Samoan water. USAID also has capacity building projects in multiple government departments. The European Union, through its Civil Society Programme supports individual NGOs working on rule of law and access to justice. The PILON provides capacity building on environmental crimes, corruption, and sexual and gender-based violence. Samoa is also cooperating with the legislative drafter forums and a joint project with the Pacific Island Police.
The Samoan government, through the Samoa Law Reform Commission, is currently working on updating and modernizing a number of laws including the Civil Procedures Act, the Criminal Procedures Act and the prisons. This will entail capacity building and awareness raising to ensure that all relevant actors are familiar with the legislation once it has been passed.
UN Women implements the Advancing Gender Justice Programme in Samoa, and supports elimination of violence against women in through several initiatives. UN Women are also working on establishing a family court. In addition, the five-year programme under the Pacific Partnership to End Violence Against Women and Girls (Pacific Partnership), from January 2018 to December 2022, brings together governments, civil society organisations, communities and other partners to promote gender equality, prevent violence against women and girls (VAWG), and increase access to quality response services for survivors.
UNDP and UNODC have a joint anti-corruption programme. UNDP is funding and supporting the Universal Periodic Review Project through the roll out of an innovative IT system, assisting the NHRI with the reporting on the status of Human Rights and supporting the institution’s advocacy work. The OHCHR and RRRT are providing support to the NHRI in terms of capacity building, training and reporting.187 In addition, RRRT will lead implementation of the Pacific Commonwealth Equality Project in collaboration with the Commonwealth Secretariat, the UK Equality and Human Rights Commission, the Commonwealth Parliamentary Association, and national human rights institutions across the Commonwealth. The three main components are to support emerging national human rights institutions through cross-Pacific and cross-Commonwealth learning and exchange; provide technical support to Pacific states to develop National Human Rights Action plans to meet their human rights and gender equality commitments; and to create platforms for Members of Parliament and civil society leaders across the Pacific to champion and advance human rights.
The national police force is governed under the Ministry of Police and has a domestic violence unit that works closely with NGOs active in this area. The police are currently collaborating with other public and community entities to maintain law and order such as the Ministry of Land and Transport and village council chiefs. The police is well connected to regional policing agencies and Interpol and has participated in peace keeping activities under UN (and RAMSI in the past). Twenty-two percent of the police force is women, which is a slight increase from 15.6% in 2005.188
The judiciary is the independent third arm of governance in Samoa. The system incorporates English common law as well as local customs.
The judiciary is made up of the court of appeal (which sits once annually and is overseen by foreign judges), the supreme court (presided over by five Samoan judges), the magistrates court, the land and titles court, and a number of specialised district courts that include the family court and the youth court. The land and titles court presides over matters relating to customary land ownership and “matai” (chief) titles.
The Samoa law and justice sector, comprising government bodies such as the Office of Attorney General, Ministry of Justice and Courts Administration, Samoan Law Reform Commission and the Office of the Ombudsman, oversee the administration of justice in Samoa.
According to the 2012/2013 annual report (most recent published report), the courts registered 4,276 lands and title cases; 1,794 civil and criminal court cases; and 2,763 general cases. Samoa has digitalised all land and title cases in a database to assist in the administration of these cases. Samoa has also introduced mediation as a way of solving land disputes. There was a noticeable increase in the number of cases resolved through mediation during the reporting period compared to that of the previous year.
2016/2017 has been a turbulent time for the National Prosecution Office after the director of national prosecution was suspended from her duties after alleged traffic offenses.189 The cabinet appointed a tribunal to determine the future of the National Prosecution Office. Ultimately, the National Prosecution Office was dissolved and moved under the umbrella of the Attorney General’s Office. The changes came after the parliament passed the Constitution Amendment Bill, June 2017.190
As of 2016, there were a total of 500 prisoners in Samoa.191 Accurate data192 on pre-trial detainees is difficult to obtain. In 2007, it was reported to be at 14% of the overall prison population. There are reports of overcrowding, particularly in the Tafaigata men’s prison, which has held over 400 prisoners including pre-trial detainees, despite prison capacity of less than 300 inmates. According to the same report, authorities provided only basic provisions for food, water and sanitation and lighting and ventilation remained poor.193 The Samoan Government has plans to invest approximately USD $8 million in Tanumalala Prison project and in June 2018, it was reported that almost USD$4 million has been spent on the first phase of the project.194
The Samoan probation and parole services have attempted to reform the sentencing system through the introduction of a new programme as a precursor to sentencing or as a component of a sentence.
The court has found that imprisonment does not address rehabilitation and on release from prison, offenders often re-offend resulting in many offenders being caught in a cycle of imprisonment.195The rehabilitation programmes include sessions on the effect of alcohol and drugs, anger management, life skills, cultural reconnection; spiritual awareness couples counselling, suicide counselling and grief counselling.
189 PACNEWS 2: Tue 28 Feb 2017
190 http://www.pireport.org/articles/2017/06/11/samoa-national-prosecution-office-has-been-dissolved
191 https://www.state.gov/documents/organization/265580.pdf
192 http://www.prisonstudies.org/country/samoa
193 US State Department Human Rights Report on Samoa 2015
194 https://www.radionz.co.nz/international/pacific-news/359341/samoa-halts-funding-for-prison-project
195 Email from Assistant CEO - Corrections, Enforcement & Maintenance Division Ministry of Justice & Courts Administration
The Samoa National Policy for Gender (2016-2020) acknowledges and recognizes that gender equality and equity are requisites to achieving the goals for the strategy for the development of Samoa and 2030 sustainable goals agenda and aspirations. According to the same policy, there is still a considerable level of acceptance of domestic violence even among women themselves in Samoa. This acceptance is evident from the statistics which reveal that 46.6% of Samoan women who have been in a relationship have experienced abuse by their partners203; and 37% of women agree that ‘wife beating’ can be justified. One of the priority outcomes of the new strategy is to ensure safe families and communities including ending violence against women and children. The Samoan Family Safety Act was passed in 2013. Although it’s too early to measure impact of the law, recorded domestic violence cases have steadily increased and indeed, almost quadrupled from 2012 to 2015 according to the Samoan Ombudsman.204 The Samoan State of Human Rights’ Report focuses on three interrelated issues surfaced related to women’s rights: tackling gender role stereotyping, recognizing the unequal participation in political and economic life, and preventing high rates of violence against women.205 In November 2016, the ombudsman committed to launch a commission of inquiry into domestic violence.
In Samoa, some civil and criminal and customary matters are handled by village “fonos” (traditional courts), which apply a considerably different procedure than that used in the official western-style courts. The Village Fono Law of 1990 affords legal status to the decision of the village fono and allows appeal from fono decisions to the lands and titles court and to the supreme court. In July 2000, the supreme court ruled that the Village Fono Law could not be used to infringe upon villagers’ freedom of religion, speech, assembly, or association.
• Prisons are overcrowded and prison conditions do not meet international standards.
• The delay in progress of the Community Law Centre is impeding the provision of legal aid, presently only guaranteed for serious crimes.
• Youth and women face barriers to access to justice and are in need of increased attention and protections.
• There are significant numbers of pre-trial detainees and early access to justice for detained persons remains a challenge.
• As part of a comprehensive programme to enhance the prison system, support capacity building of the judiciary in utilising rehabilitative approaches to sentencing; support the introduction of services for convicts and pre-trial detainees to include psychological services; and support probation and parole services in developing guidelines and training community stakeholders on effective monitoring and reporting for ex-convicts returning to their communities.
• Develop a model of support to see the full establishment of free legal aid, support the government in drafting of legal aid act based on UNODC Model Law on Legal Aid; including any requisite support for the policy and legislative framework, and capacity building and institutional support to the Community Law Centre.
• Support the development of an early access to justice whole-system approach, modelling the first hour procedure, including immediate access to legal advice/counsel, video recorded interviews and investigative interviewing training for police;
• Support for the development of a comprehensive programme of mobile government knowledge and awareness raising and direct delivery of such services – including legal aid – would prove invaluable in serving the population;
• Adoption of modern technology such as legal aid helpline as out-reach tools as appropriate;
• Provide initiatives related to outreach and education; funding; policy; and data collection for increased protection of women, disabled persons and youth;
• Awareness raising in communities; with NGO counsellors; and community justice supervisors in rehabilitation counselling.
Around 600,000 Solomon Islanders reside on the PIC’s 900 island. The Solomon Islands has been a member of the Commonwealth of Nations since 1978. The country has a high unemployment rate and a high marginalized youth population with one of the highest rates of violence against women globally. Solomon Islanders main justice concerns are related to grievances related to land and natural resources.206
The government provides annual funding (recurrent and development) for key government agencies in the justice sector such as, Ministry of Police, National Security and Correctional Services, Ministry of Justice and Legal Affairs, the High Court of Solomon Islands, and the Ministry of Women, Youth, Children and Family Affairs in coordinating the implementation of the Family Protection Act.207 However, access to justice and legal awareness remain a challenge. The geography of the Solomon Islands alone creates formidable barriers to accessing the formal justice system.
The Solomon Islands is a parliamentary democracy, with Queen Elizabeth II as head of state. The politics have been characterized by compliant coalitions of parties and independents. The Solomon Islands has a formal justice system as well as traditional dispute resolution mechanisms. The traditional justice actors decide cases according to Kastom, and matters are decided either by churches or local chiefs.208 The Solomon Islands does not have a NHRI.
The Solomon Islands launched its National Development Strategy 2016-2035 in 2016. The ongoing drafting of the UNPS 2018-2022 is in line with the National Development Strategy Objective 5, which also relates to SDG 16 in terms of creating a “unified nation with stable and effective governance and public order.” One of the medium-term goals is to improve national security, law and order.209
The Solomon Islands has seen a number of past and ongoing development initiatives related to justice and security. However, most of them have had a strong focus on Honiara, and have not reached outside of the capital.210
A key development partner in this sector is the Australian DFAT, initially through the RAMSI efforts. RAMSI arrived in Solomon Islands in July 2003 at the request of the Solomon Islands government. Since then, RAMSI has been helping the Solomon Islands lay the foundations for long-term stability, security and prosperity. From mid-2013, RAMSI was solely a policing mission. Following the conclusion of RAMSI on the 30th of June 2017, both Australia and New Zealand’s work continues to build on the impact of RAMSI211
206 Toward More Effective and Legitimate Institutions to Handle Problems of Justice, Solomon Islands, World Bank Justice for the Poor 2015
207 Information provided by UNDP colleagues in Honiara
208 Strengthening Access to Justice from the People’s Perspective in Solomon Islands, Concept Note, 15.11.2016
209 Solomon Islands, National Development Strategy 2016-2035 – Improving the social and economic livelihoods of all Solomon Islanders
210 Institutional and Fiscal Analysis of Lower-level Courts in Solomon Islands, World Bank, 2015
211 https://www.mfat.govt.nz/en/aid-and-development/our-work-in-the-pacific/solomon-islands/
More recent bilateral programs include the Australian funded Solomon Islands Justice Program, which works with Solomon Islands government agencies and local organisations across the sector towards an overall vision “communities in Solomon Islands have greater access to a credible justice system that supports the rule of law”. Australia’s work in relation to police development continues with delivery by the Australian Federal Police. The New Zealand funded Pacific Judicial Strengthening Programme has been involved in supporting the judiciary.
UNICEF supports justice initiatives for children, victims, offenders and the traditional courts. UNDP and UNODC are implementing a joint programme on anti-corruption, UNPRAC. UNDP are also supporting an access to justice assessment and are a member of the technical working group coordinating the assessment. UN Women have the regional Advancing Gender Justice in the Solomon Islands and Supporting Peaceful and Inclusive Transition in Solomon Islands. The Pacific Community RRRT is developing pilot projects to increase women’s access to justice in accordance with the country’s individual family violence legislation. Specifically, this looks at increasing women’s access to protection orders under family violence legislation. The three-year pilot project in the Solomon Islands (funded by the UNTF and DFAT) will train authorised justices (local court justices) to issue protection orders. UN agencies, in particular UN Women, UNICEF and RRRT have already given considerable support to both government and CSOs on treaty body reporting.
In addition, the five-year programme under the Pacific Partnership to End Violence Against Women and Girls (Pacific Partnership), from January 2018 to December 2022, brings together governments, civil society organisations, communities and other partners to promote gender equality, prevent violence against women and girls (VAWG), and increase access to quality response services for survivors.
RRRT has a judicial strengthening programme that provides training to justice sector providers, including judges, magistrates, police and prosecutors. The training focuses on family protection legislation, civil protection orders, and what processes should be used to adjudicate civil and criminal cases. Some of the common issues the RRRT focuses on are rules of evidence, corroboration, adjournments and sentencing guidelines. RRRT also develops tools (practice directions and checklists) to help the justice institutions apply the legislation. Specifically in the Solomon Islands, RRRT is training authorised justices on the relevant laws and legal processes so that issue protection orders. The programme is also training community facilitators to educate women on their rights and facilitate the access women have to the formal justice sector and accompany them through the process.
In addition, RRRT will lead implementation of the Pacific Commonwealth Equality Project in collaboration with the Commonwealth Secretariat, the UK Equality and Human Rights Commission, the Commonwealth Parliamentary Association, and national human rights institutions across the Commonwealth. The three main components are to support emerging national human rights institutions through cross-Pacific and cross-Commonwealth learning and exchange; provide technical support to Pacific states to develop National Human Rights Action plans to meet their human rights and gender equality commitments; and to create platforms for Members of Parliament and civil society leaders across the Pacific to champion and advance human rights.
The World Bank has a pilot project on traditional justice in two provinces. The Community Governance and Grievance Management Project, which began at the end of last year, is piloting the appointment of community officers in two provinces, selected by and coming from the communities they serve, but who have the status of provincial government officers. It is hoped that this will support community-level dispute resolution by facilitating access to state law-enforcement and helping citizens to negotiate appropriate pathways to dispute resolution as well as supporting traditional dispute resolution mechanisms themselves. Early results of the project are said to be promising, although after only eight months of implementation, it is premature to assess impact. After two years of implementation, the project will be extended to two further provinces.
The Constitution of the Solomon Islands states that customary law shall have effect as part of the law of the Solomon Islands. Under the Magistrates Court Act, in criminal cases the court may promote reconciliation. Unsurprisingly, therefore, most disputes are settled through traditional methods of dispute resolution rather than the formal justice system. The 2013 Justice Delivered Locally (JDL) study,237 which focused on traditional dispute resolution in rural communities, found that the most common disputes related to public order, land ownership (including disputes related to logging and, increasingly, mining) and local development projects. The study found that disputes were resolved principally through traditional mechanisms involving chiefs (in particular for land disputes) and church leaders (in particular for family issues). It noted a strong correlation between these disputes and the overall cohesion and stability of the community, particularly in relation to cases arising out logging and mining and that unresolved land conflicts had been key drivers of the recent conflict. Local courts have jurisdiction to hear land cases only after the parties have first tried to resolve the matter before the Council of Chiefs, and local courts apply the tribe’s customary rules in deciding the case.
The Traditional Governance Kastom Bill to be tabled in 2018 is thought to empower traditional leaders and assist in the focus of the crime prevention strategy.238
• The Solomon Islands have serious problems with land disputes. Many of these cases can become conflict drivers if not addressed in a satisfactory way.
• Several groups are specifically vulnerable, and experience limited legal awareness and access to justice especially for women, youth and LGBTQ persons.
• Domestic violence is wide-spread in the country, and despite the passing of the Family Protection Act, a lot of measures remain to be done in terms of awareness raising and training;
• The Solomon Islands struggle with large numbers of remand prisoners with no access to legal aid.
• Backlogs in cases before the Courts.
• Based on recommendations from earlier UNDP assessments and the World Bank analysis, access to justice for the rural areas are the main challenge.
• Outreach initiatives should be supported to improve delivery of legal services outside of the capital. Considering the vulnerability of women, youth and LGBTQ population, special efforts should be made to support their rights through tailored initiatives.
• Legal awareness and access to justice for youth leaders (expand Youth Group Programme) Law clinics/street law.
• Support the introduction of a PSO operated Legal Aid Helpline to process applications for interim and final protection orders for service by the police. Strengthen the outreach of PSO through development of community-based paralegals.
• Support PSO to develop a strategy on establishing a paralegals system that could operate to support PSO lawyers in their different functions and support paralegal training; followed by support to the policy and legal framework, setting a training regime, and training for paralegals and law students.
• Support the development of a manual for the interpretation and application of the Family Protection Act and training of Judicial officers, civil society, the Public Solicitors officer (and paralegals if established) on the Family Protection Act.
• Develop a whole of system approach to guarantee early access to justice, including access to legal counsel within the first hour of arrest, video recorded interviews and victim statements together with investigative interviewing, inter alia.
• Judicial training on rehabilitative approach to sentencing and support to enhancement of current sentencing model
Tokelau is a small island country comprising three coral atolls 3-5 meters above sea level, namely Atafu, Nukunonu, and Fakaofo. Access to the country is via a 480km/30-hour boat trip north of Samoa. Developing infrastructure and access to Tokelau, particularly through air services, is one of the key priorities of the government.
A non-self-governing Polynesian Territory of New Zealand, since 2004 Tokelau’s administrative and legislative powers have been delegated to the Taupulega (village council) and issues of national interest to the General Fono (national assembly). Tokelau has no capital or decentralized governance system.
Tokelau is gradually moving towards an act of self-determination and is seeking a greater role in global and regional fora.239 The Parliament of New Zealand can make laws for Tokelau as regulated by the Tokelau Act (1948). However, Tokelau has its own constitution and bill of rights.
The Tokelau National Strategic Plan 2016-2020, ‘Healthy and active communities with opportunities for all’, places good governance as the first strategy goal. Although the goal does not solely focus on justice or rule of law, it sets out to strengthen governance institutions and public services.
The UNPS has agreed common strategic outcomes that provide the foundation for UN support at both national as well as regional levels. At the regional level, the UNPS will align with Pacific regional priorities identified in the Framework for Pacific Regionalism. At national level, the UNPS will work to establish a country strategy. However, Tokelau as all UN member states, adopted the 2030 Agenda for Sustainable Development with 17 SDGs in 2015. The SDG 16 on peace, justice and strong Institutions clearly endorse the fact that the rule of law and development are mutually reinforcing and are essential for sustainable development at the national and international level. According to the UNPS, Tokelau’s focus under the governance outcome is related to adopting a ONE UN approach to help Tokelau refine its good governance programme to strengthen institutions.
UN Women implements the Advancing Gender Justice Programme in Tokelau, and supports the elimination of violence against women. UNDP and UNODC have a joint anti-corruption project, UNPRAC. This project aims to support PICs to strengthen their capacity to address corruption in order to provide better service delivery and development outcomes for their citizens.
The judicial sector of Tokelau has been supported by the PJSI 2016-2021 (Formerly PJDP), funded by New Zealand and implemented by the Australian Federal Court, which has provided NZD$10,00030,000 in small grants to Tokelau. These have assisted in funding the development of the Tokelau Benchbook; training of law clerks; and development of annual reports; and will support upcoming workshops for law commissioners, law clerks and the Tokelau Commission of Appeal.240
The Partnership for Pacific Policing has provided support to the Tokelau Police through training of police officers. Tokelau is also part of the Pacific Prevention of Domestic Violence Programme. The New Zealand Police sends a police officer three times per year to assist in capacity building, leadership and training.241
239
The police fall under the respective village councils242 of the atolls and each atoll has a sergeant. There is no police commissioner and prosecutions are undertaken by the police. The police have recently indicated their intention to reform and recruit additional female officers. The force undergoes regular training provided by New Zealand and Samoa.243
The Department of Justice is the highest legal office of the national government and is mandated to enforce all laws of the country. The Chief Justice of New Zealand is also the Chief Justice of Tokelau and liaises from time to time with the Senior Legal Adviser of the Government of Tokelau on any relevant developments.244
Tokelau has inherited New Zealand’s legal system by default however, over the years New Zealand and Tokelau have worked together towards an increasingly self-governing system. This makes Tokelau’s judicial system slightly different from others in the region, as there is only one level of court within the country; the village councils. Although there are provisions in the legislation for major criminal and civil cases including appeals, to be handled by New Zealand courts, to date, no cases have been taken.245 Each village in Tokelau has a law commissioner’s court, with the commissioner appointed by the Governor General of New Zealand on advice of the Minister of Foreign Affairs (New Zealand) in consultation with the respective Taupulega. However, the commissioners are usually appointed without legal experience and qualifications.246
The Tokelau village councils have jurisdictions in both criminal and civil cases. The commissioner of the council has jurisdiction over the island for which they are appointed including territorial and sea boundaries for civil disputes under NZ$1,000 and criminal cases punishable by a maximum fine of NZ$150 and/or three months’ imprisonment. The commissioner may also choose to order community work, police supervision, publicly reprimand the convicted person or order retribution of the victim’s property.247 Serious criminal matters such as murder, manslaughter, treason, or appeals are dealt with by the High Court and the Appeal Court of New Zealand. Civil matters relating to adoption and divorce applications are dealt with by the Council for the Ongoing Government of Tokelau.248
There are no prisons in Tokelau. New Zealand provide prison facilities where required.
Rule 96 of the Crimes, Procedure and Evidence Rules 2003249 provides the legislative basis for legal aid however, it is rarely used in practice. Suspects have the right to ask someone (whether a teacher, lawyer etc.) to represent and assist them however, guilty pleas are entered in most cases. According to the Senior Legal Adviser to the Government of Tokelau, lay judges and police are trained to inform the accused about their right to have assistance/representation. However, there are only three admitted Tokelau lawyers, and they all work for the government.
242 Information from UN representative
243 http://www.radionz.co.nz/international/pacific-news/270062/tokelau-aims-to-build-police-capacity
244 http://www.paclii.org/tk/courts.html
245 http://www.paclii.org/tk/courts.html
246 Tokelau Judicial Annual Report 2014/2015
247 http://www.paclii.org/tk/courts.html
248 Tokelau Judicial Annual Report 2014/2015
249 These are available for download on PACLII.
Seventy percent of the 103,000 population resides on Tongatapu, the largest of the 136 islands that make up the PIC, 36 of which are inhabited. Tonga faces challenges in providing access to services to rural areas.
Tonga has a unitary parliamentary system that is governed by a constitutional monarchy (26 MPs [9 nobles and 17 people’s representatives] including one female Member of Parliament). The political structure in Tonga is based on the European monarchical systems, although since 2004, it started shifting to a more modern style of government where power is transferred to the people through parliament.253 Tonga has been a member of the Commonwealth of Nations since 1970. In 2010, Tonga undertook constitutional reform that led to the country’s first democratic elections (91% turnout) however, the executive power remains with the monarch.
The UNPS provides common strategic outcomes that act as the foundation for UN support at both national as well as regional levels. Tonga as all member states of the UN, adopted the 2030 Agenda for Sustainable Development with 17 SDGs in 2015. SDG 16 on peace, justice and strong institutions clearly endorses the fact that the rule of law and development are mutually reinforcing and are essential for sustainable development at the national and international level.
Tonga’s National Strategic Framework II (TNSF II) 2015-2025, ‘A more progressive Tonga: Enhancing Our Inheritance’ guides the development of the kingdom over the period to 2025 under five pillars: economic; social; political; infrastructure & technology; and national resources and environment inputs.
The political pillar of the TSDF II includes the development of rule of law and states that “improved law and order and domestic security appropriately applied rule of law, from policing to justice, that is applied without fear or favour to all is an essential aspect of a high quality of life”. The strategic outcome on rule of law in the political pillar is: Strengthened implementation and enforcement of law and order in a more inclusive, fair and transparent manner which helps resolve disputes between different people and groups, more effectively punishes and rehabilitates those who have broken the law, while leaving the rest of the people to go about their legitimate daily business without fear or favour from government.254
New Zealand is a key donor in the Tongan justice sector. The MFAT currently funds the salary of one full-time and one part-time Supreme Court judge, and contributes to the positions of the commissioner of the Tongan police and the director of public prosecutions.
In addition, MFAT supports the justice sector through the Tonga Police Development Programme (Phase II) (TPDP). The TPTD with the Australia Federal Police and Tonga Police Service aims to upskill police including in community engagement and leadership, improve the organisational structure and upgrade infrastructure and equipment. MFAT also supports the justice sector through regional programmes such as the PJSI, which replaced the PJDP 2010-2015, funded by the Government of New Zealand and administered by the Federal Courts of Australia.
Further, New Zealand is funding the Pacific Prevention of Domestic Violence Programme (PPDVP), the Pacific Litigation Skills Programme, and the Judicial Pacific Partnerships Fund. In May 2017, New Zealand carried out an evaluation of its support and formulated future support in the Tongan justice sector.255 The Aide Memoire identified components where it suggested new or continued support in Tonga, including: Strengthening individual and organisational capacity in the magistrate’s court, supporting the provision of legal aid by private lawyers in criminal matters, and the development of a youth diversion scheme. In 2018, the MFAT Tonga Justice Sector Support Programme will commence. The three year programme focuses predominantly on the Judiciary, case management systems, training, policies and procedures with the overall objective of improving access to fair and effective justice in Tonga.256
UN Women implements the Advancing Gender Justice Programme in Nauru, and supports the elimination of violence against women. In addition, the five-year programme under the Pacific Partnership to End Violence Against Women and Girls (Pacific Partnership), from January 2018 to December 2022, brings together governments, civil society organisations, communities and other partners to promote gender equality, prevent violence against women and girls (VAWG), and increase access to quality response services for survivors.
UNDP and UNODC have a joint anti-corruption project, UNPRAC. This project aims to support PICs to strengthen their capacity to address corruption in order to provide better service delivery and development outcomes for their citizens.
OHCHR is supporting the nation with the UPR process and treaty-reporting as well as advocating for the establishment of a national human rights commission.
RRRT has a judicial strengthening programme providing training to justice sector providers, including judges and magistrates. The training centres on their obligations under family protection legislation, including what processes should be used to adjudicate civil and criminal cases. Some of the common issues the RRRT focuses on are rules of evidence, corroboration, adjournments and sentencing guidelines. RRRT also develops tools (practice directions and checklists) to help the justice institutions apply the legislation. In Tonga, RRRT worked with the Ministry of Justice to open a free legal aid centre for victims of domestic violence, providing direct legal representation as well as advisory services on other areas of family law protection where needed. The centre was officially launched on the 8th of December 2017257. The Family Legal Aid and Protection Centre is administered by the Ministry of Justice, with technical support from the RRRT team, and links domestic violence survivors with the larger rule of law chain.
In addition, RRRT will lead implementation of the Pacific Commonwealth Equality Project in collaboration with the Commonwealth Secretariat, the UK Equality and Human Rights Commission, the Commonwealth Parliamentary Association, and national human rights institutions across the Commonwealth. The three main components are to support emerging national human rights institutions through cross-Pacific and cross-Commonwealth learning and exchange; provide technical support to Pacific states to develop National Human Rights Action plans to meet their human rights and gender equality commitments; and to create platforms for Members of Parliament and civil society leaders across the Pacific to champion and advance human rights.
256 https://www.mfat.govt.nz/en/aid-and-development/our-work-in-the-pacific/tonga/
257 http://www.mic.gov.to/news-today/press-releases/7056-tonga-launches-community-legal-aid-centre-for-survivors-of-domestic-violence
10.5 of the Tongan police are to maintain law and order, preserve the peace, protect life and property, prevent and detect crime, provide community support and reassurance, uphold the laws of Tonga, undertake the service and execution of court processes and to carry out land and marine search and rescue operations.258 The main challenges for the Tongan police are capacity investigation skills, ethics and resources, prosecutions skills, discipline and external interference with Tonga police operational independence.259
The privy council has jurisdiction to hear appeals from the land court on issues regarding hereditary states and titles.260 It operates as a defacto advisory council to the king. The court of appeal has jurisdiction to hear criminal and civil appeals from the supreme court. It has jurisdiction in civil cases regarding disputes exceeding TOP$1,000, orders made by consent, interlocutory decisions, or in cases that require leave of the supreme court judge or court of appeal. In criminal cases, it has jurisdiction in cases involving question of law, with leave of the court on any ground of appeal and with leave of the court against sentence that are not fixed by law.261
The supreme court has the powers of and appellate jurisdiction over the magistrate’s courts. The court has jurisdiction in civil cases exceeding TOP$500, divorce, probate and admiralty matters, cases that are not allotted to other tribunals, and appeals as of right from the civil judgement or order of a magistrate. It also has the power to try all indictable offences and all offences with a maximum penalty of TOP$500 or one year imprisonment. Magistrates have jurisdiction in the districts they are assigned to and can make orders for maintenance, issue subpoenas, enforce payments, affidavits, temporary orders and to try matters up to TOP$1,000 in civil cases, or in cases with the chief police magistrate, TOP$2000. Magistrates have jurisdiction in criminal matters punishable by a fine of TOP$1000 or less or a period of three years’ imprisonment, or in cases with the chief police magistrate, fines of up to TOP$1500. Tonga’s land courts apply the Land Act 1927 and address all questions related to land.262 The Judicial Annual Country Report for 2016 reports the main challenges for the judiciary as the state of the court facilities, the lack of magistrate training, adequate magistrate remuneration, and the magistrates’ court case backlog.263
The attorney general is the crown’s first law officer and is vested with wide common law powers that include: filing of ex efficio information of a nolle prosequi in certain criminal prosecutions, and maintaining relator actions in matters affecting the general public. These powers are exercised by the granting of the attorney general’s fiat. As such, the attorney general decides whether and in what precise circumstances, he will issue a certificate.264 The core functions of the AGO are to provide legal advice to the government; represent the crown in civil litigation, criminal prosecution, legislative drafting; and implement the government’s community law initiatives. The main challenges for the AGO, according to the 2016 report, were interference with independence, maintenance of government confidence, retention of staff, and continued legal education for the crown’s councils and prosecutors.265
258 http://www.police.gov.to/index.php/about-us/82-tonga-police/79-who-we-are.html
259 Kingdom of Tonga Country Report 35th Pacific Islands Law Officer’s Network Meetings October 2016
260 http://www.paclii.org/to/courts.html
261 http://www.paclii.org/to/courts.html
262 http://www.paclii.org/to/courts.html
263 Kingdom of Tonga Country Report 35th Pacific Islands Law Officer’s Network Meetings October 2016
264 http://www.pmo.gov.to/policies-by-department/attorney-generals-office/
265 Kingdom of Tonga Country Report 35th Pacific Islands Law Officer’s Network Meetings October 2016
• While family violence remains a serious problem throughout Tonga, there are many development organisations working in the area.
• The lack of a free legal aid scheme or a public defender for indigent persons creates serious access to justice and procedural right challenges for an accused.
• Although Tonga has not signed the ICCPR or the UNCAT, arrested and suspect persons should have the right to legal aid.
• Tonga’s organogram of the Judiciary includes a legal aid commission however, it does not seem to exist other than on paper.
• Although several initiatives focus on legal aid, none focus on establishing a formal state-led national legal aid scheme. For reasons of sustainability and access to justice, the country should consider development an independent legal aid system – including full development of a policy, requisite legislation and staffing/capacity building; considering the relatively small number of prisoners in the country, affordability should not be a barrier.
• To ensure affordability and sustainability, Tonga could also consider developing a strategy on ‘paralegals’ or to provide information and assistance.
• Tonga should also be supported in ensuring early access to justice for arrested persons, namely focusing on police practice with regard to access to legal counsel/advice, interviewing techniques and video recorded interviews.
• There remains room for development of a comprehensive programme of mobile government knowledge and awareness raising and direct delivery of such services – including legal aid.
Tuvalu consists of nine islands with a population of approximately 11,000. Tuvalu became fully independent in 1978, when it also became a member of the Commonwealth of Nations.274
Tuvalu is a constitutional parliamentary democracy with 15 MPs. Tuvalu also has another form of parliamentary accountability mechanism in existence, namely, the Falekaupules (House of Chiefs). The Tuvalu Constitution states that Tuvalu is an independent state based on Christian principles, the rule of law, Tuvaluan values, culture and tradition, and respect for human dignity. Some of the Tuvaluan values and traditions are manifested in the Falekaupule Act (1997). All parliamentary bills are referred to the falekaupule for consideration and comment after their first reading in parliament. This is mandatory before bills can undergo their second and third readings.275
The government’s judicial branch consists of the court of appeal, the high court, a magistrate’s court, island courts, lands courts, and the lands courts appeal panel. The highest court of appeal is the privy council in Great Britain.276 Tuvalu has an Office of the Ombudsman, but is also aiming at setting up a NHRI before 2020. The Office of the Ombudsman is established under the Leadership Code Act.277 According to the Laws of Tuvalu Act 1987, there are five sources of law in Tuvalu: 1) the constitution, 2) acts of parliament, 3) customary law, 4) applied laws, and 5) common law. Tuvalu also recognises and applies international law in its rulings.278
In 2015, the Tuvaluan government developed the new National Sustainable Development Plan, the Te Kakeega III,279 which is directly aligned with the goals of the UN SDGs based on the achievement of the Te Kakeega I and II. The Te Kakeega III (TKIII) provides the strategic direction for development work in Tuvalu and guides donors, development partners, private sector and NGOs who are interested in engaging with Tuvalu on development intervention work. The guiding principles of the TKIII are good governance and sustainable development.
At the national level in Tuvalu, the UNPS works directly with the TKIII and the SDGs. SDG 16 on peace, justice and strong institutions clearly endorses the fact that the rule of law and development are mutually reinforcing and are essential for sustainable development at the national and international level.
Goal 2 in the TKIII is related to good governance and it specifically expresses that the recently established ombudsman needs support in order to function more efficiently. In addition, TKIII plans to conduct a review of the judiciary, both its professional and administrative staffing in order to determine how to improve efficiency. Tuvalu is also planning on constructing a new permanent courthouse. The building, which had funding appropriated in the 2016 budget, will include a courtroom, offices for the senior magistrate, people’s lawyer, lands court, and support staff. The TKIII also acknowledges women’s need for access to justice.
274 UNDP Country Snapshot Tuvalu, 2016
275 Falekaupule’s Act 1997
276 http://www.paclii.org/tv/courts.html
277 Country Report of the Office of the Attorney General Tuvalu October 2015
278 Human Rights in the Pacific; A situational Analysis RRRT, 2016
279 Tuvalu National Sustainable Development Plan, the Te Kakeega III 2016-2020
UN Women implement the Advancing Gender Justice Programme in Tuvalu, and supports the elimination of violence against women. In addition, the five-year programme under the Pacific Partnership to End Violence Against Women and Girls (Pacific Partnership), from January 2018 to December 2022, brings together governments, civil society organisations, communities and other partners to promote gender equality, prevent violence against women and girls (VAWG), and increase access to quality response services for survivors.
UNDP and UNODC have a joint anti-corruption project, UNPRAC. This project aims to support PICs to strengthen their capacity to address corruption in order to provide better service delivery and development outcomes for their citizens.
OHCHR is supporting the nation with the UPR process and treaty-reporting as well as advocating for the establishment of a national human rights commission.
In 2015, RRRT supported the Tuvalu government in the development of the Tuvalu national human rights action plan. Support to the action plan was also provided by UN Women and the UNICEF Pacific Office.
In addition, RRRT will lead implementation of the Pacific Commonwealth Equality Project in collaboration with the Commonwealth Secretariat, the UK Equality and Human Rights Commission, the Commonwealth Parliamentary Association, and national human rights institutions across the Commonwealth. The three main components are to support emerging national human rights institutions through cross-Pacific and cross-Commonwealth learning and exchange; provide technical support to Pacific states to develop National Human Rights Action plans to meet their human rights and gender equality commitments; and to create platforms for Members of Parliament and civil society leaders across the Pacific to champion and advance human rights.
The judicial sector has been supported by the PJSI 2016-2021 funded by New Zealand and implemented by the Australian Federal Court. The police force has received support with equipment from Australia.
The Office of the Prime Minister oversees the country’s national police service, which is governed under the Police Powers and Duties Act and the Police Powers and Duties Regulation. The police force includes prison services, immigration, customs and maritime surveillance. The Tuvalu police force has provided police to RAMSI. The Police have a “no-drop” evidence–based prosecution policy in domestic violence cases and operate a 24-hour emergency hotline for victims of domestic violence.280
Tuvalu’s prison is managed under the Prison’s Act. In 2014, there were a total of 11 prisoners in the Fongafele Isle on Funafuti, all male and there were no remand prisoners.281 According to the 2016 Human Rights Report, there were no significant reports regarding prison conditions that raised human rights concerns and the people’s lawyer is available to respond to prisoner complaints.282
According to the constitution, the attorney general is the principal legal advisor to the government, and also represents the government in all civil suits against it.283
280 US Department of State Human Rights Report Tuvalu 2014
281 https://www.state.gov/documents/organization/236698.pdf
282 https://www.state.gov/documents/organization/265594.pdf
283 The Constitution of Tuvalu, part V Section 79
In 2015, RRRT supported the Tuvalu government in the development of the Tuvalu National Human Rights Action Plan. The plan demonstrates Tuvalu’s commitment to implementing its human rights treaties as well as its commitment to the UPR process. The next UPR is scheduled for 2018. The Human Rights Action Plan is linked to the TKIII and the SDGs and refers to the recommendations of the last UPR. According to the plan, Tuvalu will work towards the ratification of core human rights treaties and optional protocols. It also aims to strengthen institutions dealing with human rights, such as the ombudsman’s office, the judiciary and the AGO and to work towards the establishment of a NHRI before 2020.
According to the EVAW Global Database, in 2010, 37% of women have been physically or sexually abused by a partner; and 25% of the women had experienced physical and/or sexual intimate partner violence in the last 12 months of the survey.293 The CEDAW report in 2015 commended Tuvalu on the passing of the Family Protection and Domestic Violence Act (2014), which prohibits domestic violence and provides enhanced protection for women and girls. However, the CEDAW Committee expressed several concerns related to women’s lack of access to justice, in particular on the outer islands. The committee also expressed concerns about the use of customary laws and practices and women’s difficulties in getting redress in the formal justice system despite an increase in women having access to the people’s lawyer’s office.
Despite the passing of the Family Protection and Domestic Violence Act, marital rape is still not criminalised in the Penal Code, there is a lack of women’s shelters and a lack of both legal and psychological counselling for victims of domestic violence.294 The Human Rights Action plan commits to review laws which are discriminatory against women.295
Traditional customs and patterns are important in Tuvaluan culture, including traditional justice. Some of these traditions and customs represent social patterns that perpetuate discrimination against women.296 The Falekaupule is based on the ulu-aliki (high chiefs) and the alikis (sub-chiefs). These together make up for the traditional assembly using the traditions and customs in decision-making. The creation of the falekaupule is an important example of the integration of traditional institutions into the formal structure of local Government administration.
• The key challenges to access to justice and rule of law in Tuvalu are spelt out in the TKIII and the National Human Rights Action Plan and it is noted that the government is committed to improve the efficiency of the judiciary.
• Access to justice is a challenge, particularly for those on outer islands.
• Women’s rights, women’s access to justice and domestic violence all require support.
• Support the people’s lawyer in increasing and improving outreach activities with the use of modern technology, with a special focus on women and other vulnerable groups.
• Develop options and mechanisms for early access to justice and support the police force with standard operating procedures on the right to remain silent and the right to a defence lawyer (similar to the Pilot of the First-Hour Procedure and Video Recorded Interviews).
• There remains potential for development of a comprehensive programme of mobile government knowledge and awareness raising and direct delivery of such services – including legal aid – would prove invaluable in serving the population, and with such a small population, every person in the country could be reached.
293 http://evaw-global-database.unwomen.org/en/countries/oceania/tuvalu
294 Concluding Observations of the Committee on the Elimination of Discrimination against Women, March 2015.
Vanuatu is a Y-shaped archipelago consisting of about 82 relatively small islands (65 of them inhabited), with almost 1,300 kilometres between the most northern and southern islands. In 2017, population of Vanuatu was approximately 273,000297 with over 176,000 people living in rural areas.298 Vanuatu is considered one of the most diverse countries in world, with 100 distinct linguistic and cultural groups.
Vanuatu became an independent republic and a member of the Commonwealth of Nations in 1980. Parliament elects the president for a five-year term together with the presidents of the regional councils. The single-chamber parliament has 52 members, directly elected every four years. Parliament appoints the prime minister from among its members and the prime minister appoints a council of ministers from among the MPs. Women are represented in the municipal councils of Port Vila and Luganville through a quota system;299 however, there are no female MPs.
The overarching justice and community services sector includes the police, judiciary, all justice agencies, correctional services, law reform, customary land issues, public safety, land valuation, accountability bodies (ombudsman, auditor general), women, children, disability, and the elderly. The Ministry of Justice and Community Services Sector released its first three-year corporate plan in 2016. Vanuatu maintains strong links to its customs and traditions, or kastom 300
According to the Ministry of Justice and Community Services Sector, some of the biggest challenges in Vanuatu are internal capacity and resources to enhance public sector efficiency, effectiveness and service delivery; supporting the implementation of the various justice sector objectives and overarching goal for ensuring “access to justice”; strengthening law and justice through the policy objectives and implementation in the community; and strengthening accountability and transparency in internal and external relationships and work.301 There are significant issues around physical access to justice institutions, with many people believing that the magistrates are fairer in their dispute resolution than the chiefs.302
Vanuatu released its National Sustainable Development Plan in 2016 - Vanuatu 2030, The People’s Plan. It sets the strategic direction for all new government ministry and sector planning, and guides the overall strategic course for government activities to ensure it meets the long-term national vision. The national vision is a statement that every Ni-Vanuatu can believe in: “A stable, sustainable and prosperous Vanuatu.” Pillar 5 focuses on security, peace and justice, and commits to create a society in which the rule of law is consistently upheld, and access to timely justice is available to everyone. The main goals are to ensure all people have timely and equitable access to independent, well-resourced justice institutions; establish and implement a national anti-corruption framework; build the institutional capacity of national security forces and ensure they are adequately resourced to meet performance targets and to protect Vanuatu’s Exclusive Economic Zone through effective maritime
297 http://countrymeters.info/en/Vanuatu
298 https://vnso.gov.vu/index.php/social-statistics
299 Vanuatu Country Snapshot, UNDP 2016
300 For the purposes of this mapping- Kastom is a multitude of traditions and practices used to describe the traditional justice system in relation to police, justice and conflict resolution. In its broader articulation, kastom represents language, group identity, values, and a vast range of practices from house building to dancing, art forms and design, fishing and gardening techniques, social rules and relationships, food preparation, and understandings of ownership, governance and economics, particularly around land and communally managed resources: Conflict Management and Access to Justice in Rural Vanuatu, Pacific Women, Ministry of Justice and Community Services and Australian Aid, 2016
301 MJCS corporate plan 2016-2018 – Towards a Vibrant and High Performing and Service Centric Ministry
302 Conflict Management and Access to Justice in Rural Vanuatu, Pacific Women, Ministry of Justice and Community Services and Australian Aid, 2016