The relevance of culture in the interpretation of constitutional rights

Abstract

Almost all Pacific States have supreme law constitutions containing a Bill of Rights. Judiciaries have the power to invalidate legislation and executive action where it conflicts with constitutionally protected rights, and with it a responsibility to determine the scope and limits of those rights. In several recent cases, cultural values have been raised as a defence against alleged breaches of constitutional rights: in Tonga, the right of the press to criticize government; and in Samoa and Tuvalu, the right to practice different religions. These cases have highlighted a need to address the relevance of culture in interpreting constitutional rights. This paper examines the approach of the courts in those cases. It argues that even within a conception of universal rights, it is undeniable that what may be considered an acceptable or permissible limit to a right varies between societies. These permissible limits are established by balancing the values protected by the right against other values. This paper argues that in finding the values for that equation, it is both possible and necessary to give regard to the values of the cultures within the relevant society. This allows rights to be meaningfully located within the society whose constitution is being enforced. Approaches that fail to do so risk devaluing those cultural values and perpetuating the misconception of ‘culture’ as antithetical to modernity and the West. It further argues that because of the intimate link between culture and identity of a people, there is an obligation on judges in Pacific courts to engage with cultural values in constitutional interpretation, in order to ensure that there is legal recognition of the identity of the peoples to whom the Constitution applies. Meaningful engagement with cultural values requires a greater self-consciousness in constitutional interpretation.