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State v Waqanivalu [2004] FJHC 442; HAC0001.2004L (2 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CCP NO. HAC0001 OF 2004L

THE STATE

V

WAISALE WAQANIVALU

Ms. A. Driu for the State
Ms. J. Nair for the Accused

Date of Hearing & Ruling: 2 August 2004

RULING ON CORPORAL PUNISHMENT

This matter has been referred to the court for confirmation of orders made by the Learned Magistrate at Nadi imposing 5 strokes of corporal punishment on the accused.

Section 34 of the Penal Code requires that no sentence of corporal punishment should be carried out unless it has been confirmed by the High Court.

The issue of the imposition of corporal punishment was considered by this court in Naushad Ali v State – Cr. App. No. HAA0083 of 2001 that appeal was argued on behalf of the appellant and the State and the Proceedings, the Commissioner of the Fiji Human Rights Commission appeared as an amicus.

His Lordship considered the provisions of section 34 of the Penal Code and the provisions of section 25 of the Constitution of the Fiji Islands. Section 25 of the Constitution provides and I quote: -

“Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.”

His Lordship concluded, after considering various authorities and International Conventions, that section 34 of the Penal Code could not sit with section 25 of the Constitution.

The imposition of corporal punishment is unconstitutional.

I see no reason to form a view different from that formed by and expressed by Prakash J. in Naushad Ali v The State and accordingly the Orders of the Court will be: -

1. That the confirmation of the Magistrate’s Order is refused;

JOHN CONNORS
JUDGE

AT LAUTOKA
2 AUGUST 2004