A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

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CONSTITUTIONAL LAW Pacific Islands: Nauru Marriage and Family Life Marriage Dagabe Jeremiah (Petitioner) v Nauru Local Government Council (Respondent) Miscellaneous Cause No. 2 <strong>of</strong> 1971 Nauru <strong>Law</strong> Reports 1969-82 5 March 1971 Thompson CJ <strong>Law</strong>s and International Instruments Considered Births, Deaths and Marriages Ordinance 1957 – 1967, Section 23; Constitution <strong>of</strong> Nauru 1968, Articles 3, 4 -13, 14; Universal Declaration <strong>of</strong> Human Rights 1948, Article 16. This petition considered whether Nauru marriage laws requiring consent from the Nauru Local Government Council were unconstitutional. The Court considered whether the Births, Deaths and Marriages Ordinance 1957-1967 [“the Ordinance”], which limits the rights <strong>of</strong> Nauruan persons to marry, was contrary to Article 3 <strong>of</strong> the Constitution <strong>of</strong> Nauru 1948 [“the Constitution”] and international conventions that protect the rights and freedoms <strong>of</strong> men and women to marry and found a family. The petitioner, Dagabe Jeremiah, a Nauruan man, wished to marry a non-Nauruan woman. He applied to the Nauru Local Government Council [“the Council”] for its consent to the marriage under section 23 <strong>of</strong> the Ordinance. Consent from the Council is one <strong>of</strong> the prerequisites <strong>of</strong> a lawful marriage if one <strong>of</strong> the parties is Nauruan. The Council refused consent and the marriage could not be solemnised lawfully in Nauru. The Council provided no reasons for its decision. Dagabe Jeremiah claimed that the requirement <strong>of</strong> consent from the Council to a marriage before it can be solemnised lawfully in Nauru was contrary to Article 3 <strong>of</strong> the Constitution. He argued that apart from certain limitations, which could lawfully be imposed on the right to marry including consanguinity, immature age and medical unfitness, the right to marry is unlimited. Article 3 <strong>of</strong> the Constitution confers on everyone in Nauru a right <strong>of</strong> respect for their private and family life. The right to respect for a private and family life includes the right to marry and that right 72
Dagabe Jeremiah v Nauru Local Government Council (Pacific Islands: Nauru) is not limited by race or nationality. The petitioner further argued that this position was supported by Article 16 <strong>of</strong> the Universal Declaration <strong>of</strong> Human Rights 1948 [“UDHR”]. Article 16 provides that “men and women <strong>of</strong> full age, without limitation due to race, nationality or religion, have the right to marry and found a family.” The respondent, the Council, argued there was no “right to marry” that the Court could enforce. Article 3 <strong>of</strong> the Constitution does not confer any substantive rights other than those in Articles 4 to 13 and there was nothing in those Articles to support the arguments <strong>of</strong> the petitioner. Further, the Council submitted that there is no common law right to have a marriage solemnised and that none is conferred by the Constitution or any statute other than the Ordinance, which imposes certain conditions including obtaining the consent <strong>of</strong> the Council in the case <strong>of</strong> non-Nauruan persons. Decision The Court held that consent must be obtained from the Council before a marriage <strong>of</strong> a Nauruan to a non-Nauruan person can be legally solemnised in Nauru. The Court rejected the petitioner’s argument that the UDHR was applicable in this case. It did so on the basis that the UDHR was not adopted in its entirety in the Constitution as some <strong>of</strong> the rights in the UDHR were not considered necessary or suitable for Nauru. The Court held that Article 3, when it refers to fundamental rights and freedoms, refers only to those set out in Articles 4 to 13 and does not include any pre-existing rights and freedoms. The Court held that the legally enforceable rights in the Constitution were therefore only those specifically identified in Articles 4 to 13. The right to marry was not one <strong>of</strong> these rights. Therefore the petitioner’s application to marry a non-Nauruan woman was held to be lawfully refused by the Council. Commentary This case was detrimental for women’s rights since the Court took a very conservative approach in its interpretation <strong>of</strong> the interaction between the UDHR and the Constitution. The Court chose to interpret the meaning <strong>of</strong> Article 3 narrowly, finding that only those rights specifically identified in Articles 4 to 13 were protected by the Constitution. It refused to “read in” other rights such as the right to marry without consent, stating that only some <strong>of</strong> the principles <strong>of</strong> the UDHR were applicable to Nauru. This view fails to appreciate that the UDHR applies to all nations regardless <strong>of</strong> ratification and that its norms and standards cannot be divided or separated in applications under international law. Unfortunately, the Court did not accept that the UDHR should provide an overarching guide to the form <strong>of</strong> the rights and freedoms recognised in international law and accepted in many other nations. However, despite the outcome this is a progressive case as it was the first time in Nauru (1971) that a human rights instrument was used to argue a case before the courts. It marks a positive recognition <strong>of</strong> the increasing importance that such instruments play in the domestic law <strong>of</strong> many nations. 73
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A Digest o
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A Digest o
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Acknowledgements APWLD would like t
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Contents ARTICLE 16(f): MARRIAGE AN
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Contents MARRIAGE AND FAMILY LIFE -
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Introduction regional groups - an i
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Part I CEDAW Cases
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Imelda Romualdez-Marcos v Commissio
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Imelda Romualdez-Marcos v Commissio
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Article 9 Nationality and Citizensh
Page 23 and 24:
Sayeeda Rahman Malkani and others v
Page 25 and 26:
Mr Benjamin Peter, Mrs Mina Kumari
Page 27 and 28:
Nurhatina Hasibuan v Pt. Indonesia
Page 29 and 30:
Article 11 Employment Teikoku Zouki
Page 31 and 32:
Article 16.1(a) Marriage and Family
Page 33 and 34:
to clarify paternity suggested by t
Page 35 and 36: Humaira Mehmood v The State and oth
Page 37 and 38: Humaira Mehmood v The State and oth
Page 39 and 40: Ms Githa Hariharan and another v Re
Page 41 and 42: Article 16.1(f) Marriage and Family
Page 43 and 44: Surya Prakash v Shirley Reshmi Nara
Page 45 and 46: Madhu Kishwar and others v State <s
Page 47 and 48: Madhu Kishwar and others v State <s
Page 49 and 50: Article 16.1(h) Marriage and Family
Page 51 and 52: C. Masilamani Mudaliar and others v
Page 53 and 54: Article 16.1(h) Marriage and Family
Page 55 and 56: Meera Kumari and Mira Khanal v His
Page 57 and 58: Apparel Export Promotion Council v
Page 59 and 60: Apparel Export Promotion Council v
Page 61 and 62: A safe working environment is funda
Page 63 and 64: General Recommendation 19 Violence
Page 65 and 66: Chairman, Railway Board and others
Page 67 and 68: with the complainant. He also state
Page 69 and 70: The Republic of Ki
Page 71: Part II Constitutional Law<
Page 74 and 75: Public Prosecutor v Walter Kota and
Page 76 and 77: CONSTITUTIONAL LAW Nepal Nationalit
Page 78 and 79: CONSTITUTIONAL LAW Japan Employment
Page 80 and 81: Iwate Bank Case (J
Page 82 and 83: CONSTITUTIONAL LAW Republic <strong
Page 84 and 85: CONSTITUTIONAL LAW Nepal Discrimina
Page 88 and 89: CONSTITUTIONAL LAW Bangladesh Marri
Page 90 and 91: CONSTITUTIONAL LAW Pacific Islands:
Page 92 and 93: Patricia Molu v Cidie Molu (Pacific
Page 94 and 95: Prakash Mani Sharma v His Majesty
Page 96 and 97: John Noel (as representative <stron
Page 98 and 99: John Noel (as representative <stron
Page 100 and 101: Hee Jung Woo v Jung Hue Shin, Jong
Page 102 and 103: CONSTITUTIONAL LAW Japan Violence A
Page 104 and 105: Al-Amin and 5 others v The State (B
Page 106 and 107: Al-Amin and 5 others v The State (B
Page 109 and 110: A Article APWLD Asia Pacific Forum
Page 111 and 112: 95 Glossary In criminal proceedings
Page 113 and 114: 97 Glossary television or film (or
Page 115 and 116: countries. Sharia is a religious co
Page 117 and 118: Bangladesh CEDAW Country Ratificati
Page 119 and 120: Government is discriminatory. Some
Page 121 and 122: CEDAW Country Ratification Report:
Page 127 and 128: of the Republic an
Page 129 and 130: Status of Ratifica
Page 131 and 132: COUNTRY CEDAW CEDAW-Op Polynesia 1.
Page 133 and 134: FAMILY LAW 1. Marriage and custom C
Page 135 and 136: • A.26 - equality under and befor
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UDHR • A.7 - equality before and
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Notes
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Notes Asia Pacific Forum on Women,
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