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Law Reform in the South Pacific (Working Paper) [2005] JSPL 8; (2005) 9(1) Journal of South Pacific Law

LAW REFORM IN THE SOUTH PACIFIC

PETER MACFARLANE*  AND CHAITANYA LAKSHMAN**

INTRODUCTION

Modernisation of the law is a fundamental operational principle for law reform.  The Pacific constitutions need to be looked at in this connection, in part to check on the progressive development of particular constitutional provisions like those relating to the electorate and to human rights.  The desire for improved provisions for the better expression and protection of human rights has been raised from time to time on a Pacific-wide basis, and will continue to be raised.  It is a matter that calls for attention, clearly with the most careful regard to the cultural sensitivities and traditional nature of Pacific societies, but also with regard to the fact that the Pacific is one of those few areas of the world not yet governed by an international or regional framework, instrument or arrangement on human and cultural rights. ^[1]

For a long time now, law reform has been one of those “catch-cries” going hand in hand with “good governance” and “transparency” and yet, apart from the work being done by the Fiji and Papua New Guinea Law Reform Commissions, there is little commitment to law reform by South Pacific states.  The purpose of this article is to outline the work of law reform agencies, demonstrate how the legitimacy of law and good governance can be enhanced by having an active law reform commission and to suggest that consideration be given to a regional, South Pacific Law Reform Commission.  Law reform is generally defined as the systemic development of the law, with a view to simplifying, modernizing and consolidating the law and finding more effective methods for the administration of the law so as to improve access to justice.^[2]

THE NEED FOR LAW REFORM COMMISSIONS

There are a number of reasons that justify the formation and work of law reform commissions.  The first is that these commissions or agencies can assist in the removal of anachronisms, anomalies and inconsistencies in the law.  This is not a task that the courts generally embrace.  Although it is true that one sometimes sees in a judgment a reference to a need for a change in the law or a suggestion that government should correct an anomaly or inconsistency in the law, the role of the courts is not to get involved in the doing of law reform in any systematic way. The role of the courts is to decide cases according to existing law and this leaves little room for a decision based on what the law ought to be. Law reform is the role of governments; however the fact is that governments generally do not have the time or (in most cases) the expertise or in some cases the political will to engage in this work.

This leads us to the second reason for having law reform commissions, namely that they assist in the development of new approaches to the law in response to changing social, economic and political circumstances. Governments are often slow to respond (if they do so at all) to issues that impact directly on the social and/or cultural traditions of a people.  There are no votes in tackling unpopular social issues. In Australia this was aptly demonstrated in the last (2004) federal elections where abortion was taken off the election agenda because of its divisive nature so far as the public is concerned and the fact that it would likely alienate a large number of voters. This is not to say that the law concerning abortion in the South Pacific is necessarily in need of reform; however it is a potent example of what we mean. 

Less controversial but nevertheless important issues that could be the subject of inquiry by a law reform commission in the South Pacific include the assessment of damages for women in cases of wrongful death,^[3] the treatment of the mentally ill, laws concerning family protection, the relationship between custom and introduced law, the taking of evidence from children especially in relation to sexual offences or offences of violence, social issues such as HIV/AIDS and how the law should respond in terms of testing, confidentiality and other health matters.^[4]  However if governments do not address these issues and if there is no law reform agency in place then they will likely remain un-addressed despite the pain, suffering, hardship and prejudice they may cause to those who may be affected. 

Apart from this, the fact is that in times of rapid change, legislatures are unable to give detailed consideration to many important issues due to a lack of expertise or a political timetable which does not allow for an independent, detached and consultative approach to the issues.  Law reform commissions provide this expert and independent advice based on consultation (inclusiveness) and legal principles and can make recommendations based on best practice rather than on political expediency. This is the reason why law reform agencies or commissions should not be attached to State Law offices or Attorneys General offices. Their recommendations must come from an expert and independent assessment of the law based on relevant policy considerations and informed by wide consultation. Only in this way can they be of assistance to government and hold the confidence of the people. 

From Australia to Zambia most of the jurisdictions of the Commonwealth of Nations have established Law Reform agencies of some kind, to help lawmakers with the reform, modernization and simplification of the law.^[5]

The capacity of a law reform commission to engage in wide public debate and consultation is an important aspect of their work.

Law Reform Commissions have long recognized the need to conduct both wide and targeted consultation to maximize participation in law reform by members of the community.^[6]

As noted by Atkinson, public consultations and meetings serve two important purposes; to provide members of the public with an opportunity to raise concerns and express their views and to enable the Commission to perform an educational role.

It is the authors’ view that law reform agencies contribute to the strengthening of good governance and legitimacy by engaging communities in public debate over important social, legal, economic and political concerns and by recommending to legislatures areas of law that impede good governance and/or which are inequitable, discriminatory or otherwise in need of reform.

THE EXISTENCE OF LAW REFORM COMMISSIONS IN THE SOUTH PACIFIC

In the South Pacific, law reform agencies have been established in Papua New Guinea, Samoa, Fiji, Vanuatu and the Solomon Islands.  In Vanuatu the Law Commission has never been constituted.  In Samoa a Commission was established in 2002 but has never been formalized.  In the Solomon Islands the Law Reform Commission is reported to have been  inactive since the departure of its first chairman over five years ago.^[7]