145. A Pacific Island Decision. Similar arguments have been used by courts in other comparable jurisdictions in upholding laws relating to indigenous minorities or to customary rules or procedures. A good example is the decision of the Cook Islands Court of Appeal in Clarke v Karika. The case involved legislation relating to a long-running dispute over customary land in the Cook Islands. In 1908 the Cook Islands Land Titles Court decided that certain customary land disputed between two clans belonged to the respondent’s clan (although life interests in the land were awarded to the appellant). However disputes over the land continued and were a significant cause of unrest. Eventually the Cook Islands legislature passed a private Act entitling any person affected to apply to the Lands Division of the Cook Islands High Court to have the matter reheard. The respondents claimed that the private Act violated the principles of non-discrimination and equality before the law as protected by s 64 of the Cook Islands Constitution. The Court of Appeal held unanimously that the Act did not violate these principles. After articulating a concept of equality and non-discrimination by virtue of which discrimination exists where a law ‘singles out persons for reasons not consonant with a legitimate and apparent legislative purpose’, the Court held that the purpose of the Act was legitimate and that its effect — providing for a rehearing on the merits — was not disproportionate to its purpose. The Court said:
It is only [particular] lands … for which Parliament has decided to allow rehearings of questions of title. To widen the possible reheatings to cover other lands might well have been to invite arguments that Parliament was going further than could be justified by the particular problem which evidently led to the legislation. It could even be said that by treating similarly people not necessarily in the same position Parliament would deny equality before the law. Moreover, an Act extending to a wider area , such as a whole tribal district, would tend to undermine security of title generally. The Courts would not be justified in interpreting the Constitution as requiring Parliament, if legislating for rehearings, to do so on a wider scale than Parliament thinks necessary. And we do not think that the Constitution could possibly be interpreted as altogether denying Parliament any power to legislate for any reheating. An attempt to pass a series of private Acts providing for reheatings of a series of individual cases not legitimately capable of being regarded as in any special category would raise different issues. It might conceivably be open to successful challenge under the Constitution. But there is no evidence before the Court of any proposal on those lines … [C]ounsel for the respondent did seek to place some reliance on [the fact] that the owners affected by the Act are a bloodrelated group. Insofar as this is a claim of discrimination or unequal treatment because of family origin, the answer is that the family relationship is inherent in the land tenure system. The terms of the 1980 Act indicate that the essential reason why that group of people is affected is that titles to a particular tract of land are in dispute; it is not their relation to one another. The Court cannot impute to Parliament a hidden intention to legislate against a particular family.
146. Decisions in Other Jurisdictions. A similar approach was taken, in rather different circumstances, by the Western Samoan Court of Appeal in a case which involved the consistency of the matai system of representation with the principle of ‘equal protection under the law’. And analogous forms of the ‘reasonable classification’ test have been adopted, for example, under the Constitutions of the Republic of India, the Republic of Ireland, and of Singapore.
Unreported, 25 February 1983 (Court of Appeal of the Cook Islands (Cooke P, Speight CJ, Keith J)).
Attorney-General of Western Samoa v Saipa’ia Olomalu unreported, 26 August 1982 (Cooke P, Mills, Keith JJ)). See BH Arthur, ‘The Significance of Twenty Years’ (1984) 14 Vict U Well L Rev 295.
Polyviou, 85-133; AM Katz, ‘Benign Preference: An Indian Decision and the Bakke Case’ (1977) 25 AJCL 611.
For a review see FX Beytagh, ‘Equality under the Irish and American Constitutions: A Comparative Analysis’  Irish J 56.
cf Ong Ah Chuan v Public Prosecutor  AC 648, 673-4 (PC): ‘Provided that the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears as reasonable relation to the social object of the law, there is no inconsistency with [equality before the law under] art 12(1) of the Constitution’. cf Ross-Spencer v Master of the High Court (unreported, Swaziland Court of Appeal, 17 April 1972), noted by A Aguda, ‘Discriminatory Statutory Provisions and Fundamental Rights Provisions of the Constitutions of Botswana, Lesotho and Swaziland’ (1972) 89 S African LJ 299.