[1969-1982] NLR (A) 11

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 2 of 1971

IN RE the Constitution of Nauru

DAGABE JEREMIAH

v

NAURU LOCAL GOVERNMENT COUNCIL

5th March, 1971.

Article 3 of the Constitution - whether it confers substantive rights - if so, whether section 23 of the Births, Deaths and Marriages Ordinance 1957-1967 is ultra vires Article 3.

Evidence - record of debates of the Constitutional Convention - admissible to show basic principles accepted as the foundations of the Constitution.

Petition for the Supreme Court to exercise its jurisdiction and power under Article 14 of the Constitution to enforce a right or freedom conferred by Part II of the Constitution. The petitioner, a Nauruan man, wished to marry a non-Nauruan woman. He applied to the Nauru Local Government Council for its consent to the marriage to be given under section 23 of the Births, Deaths and Marriages Ordinance 1957-1967. The Council refused to give its consent in consequence the marriage could not be solemnized lawfully in Nauru. The Council gave no reasons for its decision. The petitioner claimed that the requirement of consent of the Council to a marriage before it can be solemnized lawfully in Nauru was ultra vires Article 3 of the Constitution.

Article 3 reads:

“3. Whereas every person in Nauru is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following freedoms, namely:

(a) life, liberty, security of the person, the enjoyment of property and the protections of the law;

(b) freedom of conscience, of expression and of peaceful assembly and association; and

(c) respect for his private and family life,

the subsequent provisions of this Part have effect for the purpose of affording protection to those rights and freedoms, subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by a person does not prejudice the rights and freedoms of other persons or the public interest.”

The petitioner tendered as evidence part of the record of the debates of the Constitutional Convention which framed the Constitution.

Held:	(1) The reference in Article 3 to an entitlement to fundamental rights and freedoms of the kinds stated therein is intended to refer not to any pre-existing rights and freedoms, but only to those set out in detail in Articles 4 to 13 inclusive.

(2) The Constitutional Convention differed from a normal legislature in that is was creating the Constitution out of nothing and deciding upon first principles, not altering or adding to existing law. The record of the Convention’s deliberations is admissible to show, where it does so, the basic principles accepted by the Convention as the foundations of the Constitution.

K.R. Adeang for the petitioner
P.H. MacSporran for the respondent

Thompson, C.J.:

The petitioner is a Nauruan; he wishes to marry a lady who is not a Nauruan. He has applied to the Nauru Local Government Council for the Council’s consent to the marriage. Such consent is, by virtue of the provisions of section 23 of the Births, Deaths and Marriages Ordinance 1957-1967, one of the prerequisites of the lawful solemnization of a marriage in Nauru if either of the parties to it is a Nauruan. The Council has refused to give its consent. It has assigned no reasons for doing so.

The petition asks this Court, in the exercise of its jurisdiction and power under Article 14 of the Constitution to enforce a right or freedom conferred by Part II of the Constitution, to declare -

“(1) That the only valid reason for which an application to marry may be refused by the Nauru Local Government Council acting under the Births, Deaths and Marriages Ordinance 1957-1967 is that the parties are within prohibited degrees of consanguinity or that one or both of the parties to the marriage are medically unfit for marriage.

(2) That it is not proper ground for refusal to give consent to a marriage that one of the parties is not the same race or is of a different nationality to the applicant.

(3) That the decision of the Nauru Local Government Council referred to in this petition was made in contravention of the provisions of Article 3 of the Constitution.

(4) That the decision of the Nauru Local Government Council aforesaid was absolutely void.”

Mr. Adeang, who represents the petitioner, has submitted that Article 3 of the Constitution confers on everyone in Nauru a right to respect for his private and family life which is independent of the provisions of Articles 4 to 13. He contends that the right to respect for private and family life includes the right to marry and that that right is without limitation as to race or nationality. He has drawn attention to the Universal Declaration of Human Rights, Article 16 of which provides that “men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”. He admits that certain limitations can lawfully be imposed, e.g. relating to consanguinity, immature age and medical unfitness, but asserts that otherwise the right to marry is unlimited and that any law purporting to confer on any person or body a power to prevent any unmarried adult person from marrying is inconsistent with the Constitution and invalid to the extent that the power is exercisable on any grounds other than those three. It is clear that the power could not have been exercised on the ground of consanguinity. Whether it could properly have been founded on either of the other two grounds, this Court cannot know as no evidence of age or medical fitness of the petitioner and the lady he wishes to marry have been adduced.

Mr. MacSporran, who appeared or to watch over the interests of the Republic but subsequently undertook the representation of the respondent Council also, denies that there is any right to marry which the Court can enforce. He has submitted that Article 3 does not confer any substantive rights independent of Articles 4-13 but has to be read with each of them in order to ascertain what rights are conferred by Part II. He has pointed out that there is no common law right to have a marriage solemnized and submits that none is conferred by the Constitution or any statute other than the Births, Deaths and Marriages Ordinance which imposes certain conditions of which, in the case of a Nauruan, the consent of the Council is one.

Mr. Adeang has referred the Court to the minutes of the Constitutional Convention. Normally, in construing a statute, evidence of the debates in the legislature on the Bill cannot be taken into account and should not be admitted. I admitted the evidence of the deliberations of the Convention with the reservation that, if it became necessary to have recourse to matters external to the text of the Constitution, it would be necessary to consider whether that evidence could properly be taken into account. The first task, therefore, is to consider Article 3 of the Constitution and to decide whether or not its meaning is clear. If it is, then the Court cannot look to matters outside the text; if it is not clear, then the Court may be able to do so.

In my view, Article 3 is not free from obscurity. Although the first part of it is in the form of a preamble and the second part purports to relate the contents of the first part to the provisions of the next ten Articles, the opening phrase of the preamble contains a statement that ‘every person in Nauru is entitled to the fundamental rights and freedoms’ which the preamble goes on to enumerate. The entitlement to those fundamental rights and freedoms is apparently not specifically created by Article 3; it appears to be assumed that they pre-exist the Constitution, even though there is no statutory or common law basis for some of those enumerated. There is, therefore, sufficient ambiguity to necessitate the Court looking outside the text of the Constitution for assistance in interpreting Article 3.

I return, therefore, to the question whether account can properly be taken of the record of the deliberations of the Constitutional Convention. In my view it can; the framing of the Constitution by the Convention for the new state of Nauru which was shortly to come into existence, while similar in many ways to the debating of a Bill by Parliament has, I think, one fundamental difference, namely that it is not the alteration of, or addition to, existing law but the creation of the bedrock of the future law of the new state. It is created out of nothing and involves the examination of first principles. For that reason, the record of the deliberations can, I consider, properly be admitted to show what basic principles the Convention accepted as the foundations of the Constitution.

The most important part of the deliberations of the Convention so far as the construction of Article 3 is concerned is the speech by Mr. Detudamo on 9th January, 1968, outlining the basic principles accepted by the Steering Committee in its preparation of that Article. He said “Firstly, the Universal Declaration of Human Rights is a declaration of the standard to be aimed at. The words of the Proclamation make it clear that the Declaration is only a statement of aims of the various States and not a declaration of rights to be included in the Constitution of those States”; and “...may think that the Committee has included no more than a small proportion of the rights set out in the Declaration. The reason for this is that many of these statements of rights deal with matters on which a Court could not effectively adjudicate. When considering the contents of the draft Constitution, the working party in Canberra had the Universal Declaration of Human Rights constantly before it. It included in Part II, most of those which, it considered, could be made the basis for legal protection in the Constitution and which were appropriate in the circumstances of Nauru. One of these, such as the right to a nationality, is covered in other parts of the Constitution. One of the others, that is ‘the right to freedom of movement on Nauru’ was not included because it seemed unnecessary in the circumstances. The non-inclusion of other rights set out in the Universal Declaration but not suitable for enforcement by the Court, does not in any way indicate that these rights will not be implemented.”

On the same day Professor Davidson, the Advisor to the Convention, said “Rights should be ones that it is easy to define, so that, when they are brought before the Court, the Court will have no doubt at all of the action to be taken”; and “Article 3 contains a brief reference to this Part of the Constitution”. On 4th January, 1968, he had said “This Article was intended only as a summary the general principles underlying the specific rights to be conferred by the succeeding Articles in Part II”.

It is clear that there was no acceptance by the Constitutional Convention of the whole of the Universal Declaration of Human Rights as establishing a substructure of legally enforceable rights more extensive than those spelled out in Articles 4 to 13 of the Constitution. In the light of that knowledge it is possible to resolve the apparent ambiguity of Article 3. The reference in the preamble in Article 3 to an entitlement to fundamental rights and freedoms of the kinds stated is clearly not intended to refer to any pre-existing rights and freedoms but only to those set out in detail in Articles 4 to 13.

It is, I think, common ground between the parties that no right to marry is conferred by any of Articles 4 to 13. That being so, as none is conferred by Article 3 there is no such right which this Court can enforce on the petitioner’s behalf and the petition must be dismissed.