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PACIFIC HUMAN
RIGHTS LAW DIGEST -
VOLUME 3
Editorial Committee
Editor:
Peter Creighton
(University of Western Australia & RRRT)
Editorial Committee
Members:
P Imrana Jalal
(former RRRT Human Rights Adviser & former Fiji Human Rights
Commissioner)
Gwen Phillips
(former Senior Trainer RRRT & former Judge of the High Court of
Fiji)
Jiten Singh
(former Judge of the High Court of Fiji)
© Pacific Islands Forum Secretariat (PIFS), 2011
All rights for commercial / for profit reproduction or translation, in
any form, reserved. PIFS authorises the partial reproduction or
translation of this material for scientific, educational or research
purposes, provided that PIFS and the source document are properly
acknowledged. Permission to reproduce the document and/
or translate in whole, in any form, whether for commercial / for profit
or non-profit purposes, must be requested in writing. Original PIFS
artwork may not be altered or separately published without permission.
ISSN 1817-6003
Pacific Islands Forum Secretariat,
Suva, Fiji
http://www.forumsec.org.fj/
CONTENTS
INTRODUCTION
ABOUT THE PACIFIC
ISLANDS
FORUM SECRETARIAT (PIFS)
ABOUT
SPC/RRRT
ADDRESS BY
TUILOMA NERONI
SLADE
USING
THE DIGEST
ACKNOWLEDGEMENTS
EDITORIAL REVIEW
PART I: PACIFIC ISLAND
CASES REFERRING TO CONSTITUTIONAL BILLS OF RIGHTS, HUMAN RIGHTS
CONVENTIONS, STANDARDS AND PRINCIPLES
PART II: INTERNATIONAL
CASES REFERRING TO
CONSTITUTIONAL BILLS OF RIGHTS, HUMAN RIGHTS CONVENTIONS, STANDARDS AND
PRINCIPLES
PART III: CASES FROM THE
PACIFIC DEALING WITH
DOMESTIC VIOLENCE AND FAMILY LAW ISSUES
INDEX BY NAME
Ali
v Hakim (Fiji Islands, 2008)
Arp v Arp (Samoa, 2008)
Attorney General v Vaai
(Samoa, 2009)
Attorney General v Yaya
(Fiji Islands, 2009)
Chand v Rattan (Fiji Islands,
2009)
Commissioner
of Police v A Mother (Fiji Islands, 2008)
Dalco
Engineering Private Ltd v Padhye (India, 2010)
Datt v Fiji
Television Limited (Fiji Islands, 2007)
Fangupo v R (Tonga, 2010)
FICAC v Devo (Fiji Islands, 2008)
Fiji
National Provident Fund v Fiji Television Limited (Fiji Islands,
2007)
Groupe
Nairobi (Vanuatu) Ltd v Government of the Republic of Vanuatu
(Vanuatu, 2009)
Jackson v Attorney
General (Samoa, 2009)
Kisekol v Kisekol (Papua New
Guinea, 2009)
Maharaj v Raju (Fiji Islands,
2008)
Marsters v Richards (Cook
Islands, 2008)
Minister of
Immigration v Khawar (Australia, 2002)
Navualaba v Commander of
Fiji Military Forces (Fiji Islands, 2008)
Naylor v Foundas (Vanuatu,
2004)
Naz
Foundation v Government of NCT of Delhi (India, 2009)
Nisha v Khan (Fiji Islands, 2008)
NK v ZMR (Fiji Islands, 2008)
Opuz v Turkey (Europe, 2009)
Police v Faiga (Samoa, 2008)
Police v Palemene (Samoa,
2007)
Police v Piuila (Samoa, 2010)
Police v Vailopa (Samoa, 2009)
President
of the Republic of Vanuatu v Speaker of Parliament (Vanuatu,
2008)
Proceedings
Commissioner, Fiji Human Rights Commission v Commissioner
of Police (Fiji Islands, 2006)
Public Prosecutor v
Nawia (Vanuatu, 2010)
R v Moti (Australia, 2010)
R v Setaga (Tuvalu, 2008)
R v Talanoa (Tonga, 2006)
R v Tang (Australia, 2008)
R v Teokila (Tuvalu, 2008)
Qarase v Bainimarama (Fiji
Islands, 2009)
Samoa Party v
Attorney General (Samoa, 2010)
Singh v State (Fiji Islands, 2008)
State v AV (Fiji Islands, 2009)
State v Krishna (Fiji Islands,
2007)
Takiveikata v State
(Fiji Islands, 2008)
Teonea v
Pule oKaupule of Nanumaga (Tuvalu, 2009)
Ulufa'alu v
Attorney General (Solomon Islands, 2004)
INDEX BY COUNTRY
INTRODUCTION
This is the third volume of Pacific Human Rights Law Digest (PHRLD)
which for the first time is being produced as a partnership between the
Pacific Islands Forum Secretariat and the
Pacific Regional Rights Resource Team of the Secretariat of the Pacific
Community.
In October 2005, Pacific leaders endorsed the Pacific Plan; a regional
framework for development. The Pacific Plan contains specific
objectives to advance human rights which are in support of the Leaders'
Vision stated as, "We
seek a Pacific region that is respected for the quality of its
governance, the sustainable management of its resources, the full
observance of democratic values and for its defence and promotion of
human rights".
Objectives 12.5 of the Pacific Plan supports the ratification and
implementation of international human rights norms and standards. In
support of this objective, this publication tracks the implementation
of international human rights standards through the Pacific courts.
The Pacific Islands Forum Secretariat works with SPC /RRRT due to its
years of experience working with and training human rights
non-governmental organisations (NGOs), law students, lawyers,
magistrates and judges in the Pacific region. Much of this training has
focused on encouraging the use of Conventions, international standards
and constitutional bills of rights in the courts, and in fact has
contributed to increased reliance on, and use of, these instruments by
magistrates, judges and lawyers across the region.
The overall purpose of this Pacific
Human Rights Law Digest is to disseminate for use by
Pacific law students, lawyers, magistrates, judges and human rights
advocates a collection of analysed recent human rights case law that
can be used in the courts as precedents and as tools for policy
initiatives. PIFS is mindful of the fact that the vast majority of the
law fraternity in Fiji and the Pacific does not have access to the
Internet and the useful website of the University of the South Pacific
School of Law's Pacific Islands Legal Information Institute
(www.paclii.org), which contains a large number of regional judgments.
The Digest might also be of value to those outside the Pacific who are
interested in the
development of human rights in our region.
The Digest is not just for lawyers but for human rights advocates and
stakeholders who are increasingly engaging in the law as a potential
arena of change. It is therefore not a simple compilation or compendium
of cases with headnotes as in law reports, but an analysed summary of
judgments pointing out the significant human rights issues. PIFS and
SPC /RRRT combined have a vast network of regional and local level
human rights actors , who are using the law as a tool for change in
governance and human rights.
A new legal precedent does more than create a standard to be applied in
the courts; it can also be used by human rights stakeholders to create
new policy or practice, whether at micro (community), meso
(institutional) or macro (policy) levels.
The vast majority of judgments in Pacific Island countries are not
published in volumes. The full text of the cases included in this
Digest can either be found on www.paclii.org or on request from SPC
/RRRT.
ABOUT
THE PACIFIC ISLANDS FORUM SECRETARIAT (PIFS)
The Pacific Islands Forum is a political grouping of 16 independent and
self-governing
states. The Pacific Islands Forum Secretariat is based in Suva, Fiji.
The Secretariat's mandate is delivered through the annual Leaders'
Communiqués and high level ministerial meeting decisions.
The Forum Secretariat is led by the Secretary General (currently
Tuiloma Neroni Slade of Samoa) who is directly responsible to the Forum
Leaders and to the Forum Officials'
Committee (FOC). FOC is the Secretariat's governing body comprising
representatives from all Forum members.
The Forum Secretariat is also mandated to coordinate the implementation
of the Pacific Plan
for strengthening regional cooperation and integration.
In 2004, leaders of the 16 Member States of the Pacific Islands Forum
adopted a Vision for 'a
region ...that is respected for the quality of its governance, the
sustainable management of its resources, the full observance of
democratic values and for its defence and promotion of human rights'.
A year later Forum Leaders agreed to give effect to their Vision
through the “Pacific
Plan for Strengthening Regional Cooperation and Integration"
(the Pacific Plan) through four pillars – Economic Growth, Sustainable
Development, Good Governance and Security.
Initiative 12.5 of the Pacific Plan, under the Good Governance pillar,
encourages the “appropriate
ratification and implementation of international and regional human
rights conventions, covenants and agreements, and support for reporting
and other requirements". Human rights are frequently
referenced in the Pacific Plan because they complement its strategic
objectives, ensuring a stable environment that will provide equal
opportunities and subsequent prospects for development of Forum Island
Countries and their citizens. In recognising the importance of human
rights Forum Leaders have created a conducive environment for Pacific
Islands Forum citizens to realise their full potential and
constructively contribute to the development of their countries.
ABOUT
SPC/RRRT
The Pacific Regional Rights Resource Team (RRRT) provides human rights
training, technical support, and policy and advocacy services. RRRT is
a programme of the Secretariat of the Pacific Community (SPC), an inter
governmental regional organisation that provides technical assistance,
policy advice, training and research services to 22 Pacific Island
countries and territories.
PIFS and SPC /RRRT acknowledges the financial assistance of the Australian Agency for
International Development (AusAID) in preparing and
publishing Volume Three of the Digest.
THE
ROLE OF LAWYERS IN ADVANCING HUMAN RIGHTS
ADDRESS by TUILOMA NERONI
SLADE
Secretary General,
Pacific Islands Forum Secretariat
at the PACIFIC REGIONAL
LAWYERS TRAINING WORKSHOP ON ADVOCACY/LITIGATION ON HUMAN RIGHTS
Auckland, 29 November 2010
The Project Manager,
Secretariat of the Pacific Community /
Regional Rights Resource Team
Distinguished Law
Officers and participants
Ladies and gentleman
First, may I thank the Secretariat of the Pacific Community through the
Regional Rights Resource Team (SPC/RRRT) for the very kind invitation
for me to provide a keynote statement at this important Regional
Workshop.
I have been asked to speak about the role of lawyers in advancing the
rule of law, democracy and human rights. By the nature of their
profession lawyers have a place of leadership and an essential and
fundamental role in the protection of human rights. They are the
natural guardians of international human rights law. The professional
independence and standards of their calling equip lawyers especially
well to ensure that human rights standards are properly advocated and
enforced within the judicial and governmental processes, and that
individuals whose rights have been violated can find effective remedy
domestically and, increasingly, to seek such remedies internationally.
It comes with their professional responsibility that lawyers be
properly informed on human rights standards, in particular those
universally proclaimed and agreed to in international legal instruments
and acknowledged under international law.
Universal Declaration
It is well known that the Universal Declaration of Human Rights of 1948
is the basic statement on human rights, and that together with the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
they provide comprehensive definitions and the pledge of humanity for
the promotion of universal respect for human rights and fundamental
freedoms and for their observance. What is perhaps less known is that
the Charter of the United Nations in 1945 had established the strong
and essential bond between peace, justice and development and the
rights of the human being.
Human rights are rooted in the nature and the condition of the human
person. There is no peace where human rights are denied or
systematically violated and where there is no development to bring
about poverty elimination. In contrast, respect and promotion of human
rights creates an environment favourable to both peace and development.
Read together, the Declaration provides greater clarity and definition
to the rather terse reference in the Charter to “human rights and
fundamental freedoms." Indeed, by virtue of articles 55 (c) and 56 of
the Charter, States are obliged to take action for the achievement of
“universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language or
religion."
The evolution of international human rights law has revealed that civil
and political rights and economic, social and cultural rights are two
sides of the same coin of universal human rights. In the Vienna World
Conference on Human Rights in 1993 it was concluded that, “all human
rights are universal, indivisible, interdependent and interrelated." It
is so because human rights belong to all cultures, and intrinsic to all
nations. They are not open to optional choices for one cannot pick and
choose among rights; rather we are bound by all. It is imperative
therefore that there be effective protection and effective promotion of
social progress and better living standards in larger freedom, for the
expression of human rights is about the desire of all people to live
free from the horrors of violence, famine, disease, torture and
discrimination. This has been the yearning of all people from time
immemorial, and remains a vital force today.
It is the same impetus ascribed for the Pacific Plan Vision of 2004. As
framed by Forum Leaders we seek for the Pacific a “region of peace,
harmony, security and economic prosperity, so that all of its people
can lead free and worthwhile lives." It is a vision of our Pacific
which in essence claims and reasserts universal rights and freedoms.
Progress and Development
The verdict of history is that the twentieth century – the span of our
own lifetime, for many of us in this room - has been the bloodiest in
the modern era. And we know that through the cauldron of the Second
World War, and the First World War before that, and as a result,
humanity was able to produce the Universal Declaration.
Today, with an ever-globalising world, we face even more serious
challenges, of urgent social change and development in order to tackle
global poverty, to arrest widespread environmental degradation and to
cool a warming planet. Meantime warfare and violation of people, woman
and children in particular, remain a scourge in too many places. In the
circumstances of our world today, the principles enshrined in the
Declaration are the yardstick by which we need to measure human
progress. These are principles which “lie at the heart of all that the
United Nations aspires to achieve in its global mission of peace and
development" .
Since its adoption in 1948, the Universal Declaration of Human Rights
has extended its reach far and wide. It has served as a model for
national constitutions and laws for many countries, including in the
Pacific. Its provisions have supplied countless guidelines for national
courts, parliaments, governments, lawyers and other professionals, and
non-governmental organisations
throughout the world. But, there remains a significant gap between the
high principles of the Declaration on paper and the facts on the
ground. Every day, hundreds of millions of people worldwide, including
the Pacific, experience serious violations of their human rights.
In some parts of the world there has tended to be a focus on violations
of civil and political rights even though economic and social rights
are daily concerns of the people. As it is said in the African Charter
on Human and Peoples' Rights the “satisfaction of economic, social and
cultural rights is a guarantee for the enjoyment of civil and political
rights". This is an aspect we in this region might bear in mind noting
that in more recent times, the link between the rule of law, effective
human rights protection and economic progress has been emphasised by
the United Nations in connection, for example, with the achievement by
member countries of the Millennium Development Goals (MDG/s).
Achievements of the MDGs would seem to be a potential problem area for
the Pacific in that there is no procedure in place for a human- rights
assessment of MDG performance; and yet, it is clear from the language
of the ‘tracking' MDG reports that regionally and in many member
countries of our region there are significant shortfalls with respect,
for instance, to social protection, to the need to reduce persistent
gender gaps and the needed improvements to governance standards and
systems. It would seem to be a matter that might require attention in
the next round of MDG assessments.
Rule of law
In all this the role of lawyers is fundamental, because they are the
advocates and practitioners of the law, trained and versed, as they
would be, in the technicalities and procedures of Government, of
Parliament and the Courts and the justice system. The recognition of
equality before the law in the Universal Declaration and the two
International Covenants means that everyone has the right to effective
remedy by competent national tribunals, to have full access to a fair
and public hearing by an independent and impartial tribunal, to be
presumed innocent until proven guilty, to exercise freely the right to
freedom of opinion and expression, to assemble peacefully, to take part
in the government of the country, and so on . Without the professional
interventions of lawyers, and of other actors, the prospects for
members of society in their exercise of rights would be illusory and
the high principles of the Declaration and the Covenants would more
likely remain sterile and unenforced.
Moreover, as emphasised in the Universal Declaration, “it is essential
... that human rights should be protected by the rule of law" . This
means that for the proper enjoyment of rights and for their effective
protection, human rights must be provided for and effectively protected
by domestic legal systems. Part of the richness and strength of the
European system and the jurisprudence of the European Court of Human
Rights is the fact that every Member State accepts as legally binding
the principle of the rule of law. In this respect as well, with the
legal profession in every Pacific country having an established role in
the national system of law and justice, Pacific lawyers have a natural
place for leadership and engagement – and, as warranted, activism in
the protection of human rights.
International human
rights norms
As the practitioners lawyers would, of course, be expected to
understand the national system of law and procedures. But, I would
imagine that for some if not for many Pacific practitioners the
situation with respect to international human rights law would be
different and more complex. Even with the reaches of the Internet, part
of the challenge would be access to information, for there is a great
deal of material on a significant range of international Courts and
tribunals, the Human Rights Council and various organs of the United
Nations system and about treaties and other international instruments.
There is also the fact that with the adoption of the Universal
Declaration the elaboration of human rights norms has proceeded more
rapidly at the international level than under national laws. The main
international instruments, along with the Declaration, are the two
International Covenants. There are, in addition, numerous instruments
which are more specific and detailed on certain rights, such as on the
rights of the child , the elimination of discrimination on the basis of
race and sex , the prohibition of torture and genocide , etc. In some
cases, these are supplemented by regional treaties like the African
Charter on Human Rights and People's Rights. Such treaties may affect
domestic law more directly, but generally international and regional
instruments do not automatically become effective in domestic legal
systems.
Domestic application and
ratification of international instruments
The domestic application of international norms in the national legal
system has assumed importance, partly through the increasing engagement
of Pacific countries with the affairs of the international community,
mainly through the United Nations, and the need to discharge particular
State obligations (in the struggle against global terrorism, or in the
practical implementation of the Rome Statute of the International
Criminal Court, for example). It is partly also because when a State
signs and ratifies an international human rights treaty, the State is
obliged to incorporate the treaty principles into domestic law. For
example, the International Covenant for Civil and Political Rights
requires member States to “respect and to ensure" the rights of
citizens and residents, to adopt necessary measures if not already
provided for by domestic law and to provide remedies. Most treaties are
not as specific and leave the implementation to the judgment of the
national authorities.
We know from various reports and studies initiated and facilitated by
the New Zealand Human Rights Commission that the ratification of
international human rights treaties and the related implementation and
reporting of obligations are significant concerns for the Pacific
States. Indeed, unless there has been dramatic improvement in recent
times, the Pacific region has been known to have the lowest
ratification rates worldwide of the nine core international human
rights treaties.
Regional mechanisms
In the consideration of international developments, necessary regard
must be given to the condition and realities of our countries and to
the framework of mechanisms now in place in the Pacific region. Human
rights is not entirely new to the regional agenda. In a variety of
ways we see the formulation of universal standards and norms in the
constitutions and bills of right of Forum countries. And the
possibility of a regional human rights institution has been turned over
and over again, and no doubt we need to continue to do so.
As I have noted, we have a Pacific Vision for a peaceful, secure and
prosperous region “so that all of its people can lead free and
worthwhile lives." It is a fine vision. And we have the declared
determination and commitment of Forum Leaders to make the Pacific a
region that is “respected for the quality of its governance, the
sustainable management of its resources, the full observance of
democratic values and for its defence and promotion of human rights."
What we need to ensure is to match vision and aspiration with serious
effort to ensure credible results on the ground.
We need also to acknowledge that our region faces significant human
rights issues, for example (to paraphrase from a report facilitated by
the New Zealand Human Rights Commission and the Pacific Islands Forum
Secretariat) in relation to employment, freedom from discrimination,
protection and equal treatment of people living with HIV/AIDS, violence
against women and children, the right to health (including to water and
housing), environmental degradation and associated climate change
concerns, the rights of those detained and incidents related to tribal
or land disputes .
In 2005, Forum Leaders agreed to give effect to their Pacific Vision
through the “Pacific Plan for Strengthening Regional Cooperation and
Integration" under the four pillars of economic growth, sustainable
development, good governance and security for the region. Human rights
is included in the “good governance" pillar in the manner of an
acknowledgement by Forum Leaders of the fundamental role of human
rights in creating a conducive environment so that citizens of the
Pacific are able to realise their full potential and constructively to
contribute to the development of all Forum countries. Specifically, the
Pacific Plan (initiative 12.5) calls for the “appropriate ratification
and implementation of international and regional human rights
conventions, covenants and agreements, and support for reporting and
other requirements." Furthermore, human rights are referenced
throughout the Pacific Plan as complementing its strategic objectives
for ensuring a stable environment for economic development based on
equal opportunities for all regardless of ethnicity, background or
religious convictions.
From another perspective, we have the Aitutaki Declaration on Regional
Security adopted in 1997 by which Forum Leaders accepted the need for
the region to take on a more comprehensive approach to regional
security consistent with the United Nation's Agenda for Peace. The
Agenda for Peace highlights respect for democratic principles at all
levels of society, and the importance of “democratisation" in nation
states for stability, respect for human rights and the need to
strengthen new democratic institutions to address conflict. The
Aitutaki Declaration recognises “good governance" as a guiding
principle for security cooperation in the region.
In the context of human rights, the Biketawa Declaration of 2000 would
rank as one of the key statements in the elaboration of earlier Forum
standards like those covered in the Aitutaki Declaration, and in the
reaffirmation by Forum Leaders and their commitment to a number of
guiding principles for the region, including the following:
• good governance in a
manner that is open, transparent, accountable, participatory,
consultative and decisive but fair and equitable;
• belief in the liberty of the individual under the law, in equal
rights for all citizens regardless of gender, race, colour, creed or
political belief and in the individual's inalienable right to
participate by means of free and democratic political process in
framing the society in which he or she lives; and
• upholding democratic processes and institutions which reflect
national and local circumstances, including the peaceful transfer of
power, the rule of law and the independence of the judiciary, just and
honest government.
The quick summation of the regional instruments and political
pronouncement of Forum Leaders is only a brief account. But I believe I
would have provided enough to convey a sense of the Forum's commitment
to participatory and democratic values and the key importance of human
rights. The principles and guidelines set for the region have developed
gradually and over time, informed and influenced by national and
regional standards, and certainly by international developments. While
pursuit of democratic principles in each Forum country will differ,
shaped by differing histories, unique cultures and diverse national
expectations, a core commitment to democratic values is, I believe, now
clearly evident from the Forum instruments and principles I have
referred to. By these principles the Forum stands as the primary
vehicle for promoting and protecting democratic norms and helping to
foster democratic practices in the region.
Forum Secretariat support
In this connection, I am happy to report that the Pacific Islands Forum
Secretariat has established a desk for human rights to support Forum
island countries with treaty ratification, reporting and
implementation; and also to say that we are now seeking from the
European Union and from others assistance to strengthen our capacities
in this area. I am very pleased and proud that Mr Filipo Masaurua is
now with the Secretariat to lead this important work.
We in the Secretariat do recognise that the capacity of legal
institutions is fundamental to the ability of our Member countries to
uphold and protect human rights. It is generally recognised that Forum
island countries face significant challenges in resourcing their legal
institutions, including the courts and tribunals. In light of
region-wide concerns, the Forum Secretariat is about to embark on a
study to examine the issues and causes in greater detail and with a
view to ascertaining feasible options for improvements. The study will
also examine legislative drafting services in the context of related
issues such as the incorporation of international human rights norms
into domestic law, and also the feasibility of, for example, regional
approaches where such approaches might be appropriate. The study will
involve wide consultation with public legal sector stakeholders and I
would encourage your cooperation and engagement in this process, which
we plan to commence early in 2011.
It would seem to me that one of the basic difficulties is not so much
the applicability or inapplicability of international human rights law,
but rather the general unfamiliarity with its provision and how little
is known of the international provisions in national systems – perhaps
even in traditional legal training as it was in my own time.
I believe that members of the legal profession, including the
judiciary, have a moral obligation to assist in the
development of the community along with civil society groups based upon
the rule
of law; and, at the more practical level, lawyers and judges have a
professional responsibility to maintain their educational and practical
proficiency through regular professional programmes.
I express to the RRRT and the organisers high commendation for this
training workshop. I also understand that a Pacific Human Rights
Lawyers Network has been established and I express appreciation for
that initiative as well. We know that within the United Nations system
Basic Principles on the Role of Lawyers have been developed in line
with the international human rights instruments. But, in truth, such
principles would need to be translated into practical standards for
their effective use in our region, including their support and
recognition by member Governments.
While only forty-eight States adopted the Universal Declaration in
1948, it was reaffirmed by 171 States at the Vienna World Conference on
Human Rights in 1993 when they declared “all human rights are
universal, indivisible and inter-dependent and inter-related". Within
the United Nations, many more countries are now engaged. Yet, serious
violations of human right occur constantly around the world, including
in our region. It is a matter of public record that pursuant to the
Bitekawa Declaration Forum Leaders have taken action to suspend the
participation of a Forum member country for its failure to comply with
Forum values and democratic principles, and that there are serious
concerns about the infringements under the prolonged Public Emergency
Regulations.
I have spoken of the growing awareness of the human rights dimensions
in important international work being carried out especially under the
global outreach of the Millennium Development Goals, and of the
significant shortfalls in the record of performance from countries of
our region. In the past two years Forum Leaders have given clear
direction of the need to address the disparities on gender issues and
for attention to sexual and gender based violence in particular. The
Forum region has responded to address the inequalities which exist for
persons affected by disabilities and who suffer from disabilities. But
there is serious inadequacy and inability to correct the
disproportionate under-representation of women in Parliament and in
other senior decision-making levels of Pacific society. We need to do
more to end racial discrimination in all its forms, to ratify
international human rights treaties, to adopt national plans of human
rights action and include human rights in national economic priority
setting, to ensure human rights education for all and to establish
national human rights institutions.
Conclusion
As I close, let me say that the way in which justice is administered in
a society is one of the basic indicators of its well-being. It is why
there is insistence in the Universal Declaration that human rights be
protected by the rule of law. The universality of the rule of law and
of fundamental human rights means that it is the sovereignty of the
people, which is the true
source of national power and legitimacy. Let me also say that I believe
the role of lawyers is to ensure the functioning of the rule of law and
the achievement of the purpose of the Universal Declaration of Human
Rights.
Thank you.
Tuiloma
Neroni Slade
USING THE
DIGEST
This is the third volume of the Pacific Human Rights Law Digest. It
continues the practice
of the previous volumes, in publishing summaries of leading cases from
the Pacific and from further abroad that illustrate important
developments in the judicial application of human rights standards.
This volume includes for the first time a section devoted to issues of
domestic violence and family law. This section has been added at a time
when many countries in the region are considering legislative reform in
these closely related areas, which have a special impact on the human
rights of women and children.
This volume is divided into three parts:
Part I contains summaries of cases from various Pacific Island
countries (PICs) that consider human rights principles and rights
contained in the bills of rights of PIC constitutions or in
international human rights instruments.
Although most are decisions handed down since the completion of Volume
Two of the Digest, several older decisions have been included. Some of
these have been referred to in recent cases or legal writing, and some
have only recently been sent to us by judges, magistrates or lawyers.
Although the collection is by no means exhaustive of all cases in the
Pacific that deal with human rights, it does contain a representative
sample of the range of current issues and the most important and
interesting cases from the region.
Part II contains some significant international human rights judgments
that discuss various fundamental rights and freedoms in bills of rights
or human rights Conventions, with particular attention given to cases
regarding violence against women.
Part III contains some significant and interesting cases from the PICs,
relating to family law and violence against women. Many of these have
been the subject of discussion by RRRT and its partner organisations as
part of RRRT's project entitled ‘Changing Laws; Protecting Women.' The
project seeks to provide the necessary information and technical
assistance, including legislative models, to enable key stakeholders
(government and civil society) within a country to make positive
decisions about addressing violence against women through legislative
change.
Within the three parts, the cases are arranged in alphabetical order
based on the subject matter of the heading. Each summary contains a
brief set of facts, the key human rights issue or issues in the case,
the decision and a commentary on the case. Each summary also lists the
laws and Conventions considered by the court in deciding the key
issues. Significant cases are mentioned, but not all the cases
mentioned in the full text of the judgment are included in the
text of the summary – only those cases that have some bearing on the
human rights issue being
discussed.
The Digest is modelled on the highly regarded Interights Commonwealth Human
Rights Law Digest, which RRRT greatly admires and
consistently uses in training. RRRT acknowledges Interights for
providing the inspiration to produce a publication specifically
focusing on the Pacific region.
This Digest is accompanied by the RRRT publication The Big Eight: Human Rights
Conventions & Judicial Declarations – a
compilation of core human rights instruments and judicial declarations.
The Big Eight
is a handy reference tool to complement the Digest.
ACKNOWLEDGEMENTS
The Pacific Islands Forum Secretariat and the Regional Rights Resource
Team of the Secretariat
of the Pacific Community would like to thank all law students, lawyers,
judges and magistrates who made unpublished judgments available to us.
We would also like to thank former staff members and interns who
assisted during the initial stages of this volume of the Digest.
EDITORIAL
REVIEW
Overview: Effective
remedies for human rights infringements
As with previous volumes, the cases in Volume Three of the Digest
illustrate the wide variety of contexts in which human rights standards
may be invoked and the extensive range of judicial responses and
remedies available within domestic legal systems where rights have been
infringed. The importance of effective remedies was recognised in
Article 8 of the Universal Declaration of Human Rights, which states:
Everyone has the right to
an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by
law.
This commentary begins by reviewing the cases in this volume in terms
of the judicial responses to proven breaches of human rights standards.
The picture that emerges is that the superior courts in the Pacific
have been impressive in applying traditional judicial remedies to
redress breaches of human rights in the cases before them. However,
they have generally not been invited to develop responses which impose
positive duties on governments to develop programmes and policies to
better protect rights. Precedents for these judicial remedies exist in
other jurisdictions. For example, in Minister of Health (South
Africa) v Treatment Action Campaign (2002) 5 SA 721, 1
PHRLD 86, the Constitutional Court in South Africa ordered the
government to devise and implement programmes to realise the right to
access health care in relation to HIV. In Swann v Charlotte-Mecklenburg
Board of Education 402 U.S. 1 (1971), the United States
Supreme Court affirmed orders made by lower courts requiring education
authorities to bring forward plans for removing unconstitutional racial
segregation in schools. In Mehta
v State of Tamil Nadu AIR 1991 SC 417, the Supreme Court
of India ordered the State to give effect to the constitutional and
statutory rights of children, by taking a range of steps to improve the
welfare of children working in match factories. Even without mandatory
remedies of this kind, the decisions reported in this volume can still
be viewed as posing a challenge to governments in the relevant
countries. In many cases, individual infringements
of human rights standards are not isolated events: they often highlight
or flow from systemic failures or widespread practices. Governments
committed to observing and protecting human rights need to be
pro-active in identifying the underlying conditions in which the
individual breaches have occurred and in implementing strategies to
reduce the likelihood of future infringements.
In a number of Pacific Constitutions, the courts have a power to give
an advisory
opinion regarding the constitutionality of proposed
legislation before a Bill becomes law. The case of President of the Republic of
Vanuatu v Speaker of Parliament provides an example: the
Constitution of Vanuatu allows the President of the Republic to refer a
Bill to the Supreme Court if the President considers that the Bill is
inconsistent with the Constitution. In this case, the Court delivered
its opinion that the Bill for the Family Protection Act 2008 was not
inconsistent with the Constitution and invited the President to assent
to the Bill. This advice was duly followed and the Bill became an Act.
If the advice is that part of the Bill is unconstitutional, that part
cannot be promulgated. Indeed, if that part in inseparable from the
rest of the Bill, the whole Bill proceeds no further: In re the President's Referral,
President of the Republic of Vanuatu v Speaker of Parliament
[2000] VUSC 43. This mechanism has the advantage that no- one's rights
need to be breached before the question reaches the courts. Provided
the President remains vigilant to possible infringements, it is a
useful means of preventing proposals that would undermine
constitutional rights from ever becoming law.
In other cases where the very subject of the litigation is the
constitutionality of legislation or the legality of an executive
decision, a judicial declaration
may provide an adequate remedy. A declaration is an order that merely
states what the legal position is; it does not order the parties to do
or refrain from any act. Provided both parties stand ready to act in
accordance with the law as declared by the court, a declaration will
resolve the immediate issue. For example, in the case of Teonea v Pule oKaupule of
Nanumaga, the Tuvalu Court of Appeal ruled that the
decision of the island council to prevent the establishment of new
religions on the island was contrary to the guarantee of freedom of
religion in the Tuvalu Constitution. That was the only relief sought in
the case, although claims for damages for those adversely affected by
the island council decision were expected to follow if the challenge
succeeded. Samoa Party
v Attorney General provides a further example, although in
this case the Court of Appeal in Samoa ruled that the legislation
limiting the right to challenge the validity of elections was not
unconstitutional. Similarly, in Jackson
v Attorney General, the application for a declaration
failed when the Supreme Court of Samoa held that the law switching road
traffic from the right hand side of the road to the left hand side was
not a breach of the constitutional right to life.
If the State is not willing to accept and abide by a judicial decision,
no judicial remedy, declaratory or otherwise, will be effective. In Qarase v Bainimarama,
the Court of Appeal for Fiji Islands granted declarations to the effect
that the dismissal of Prime Minister Qarase and the other Ministers and
the dissolution of Parliament were unlawful and in breach of the Fiji
Constitution; it declared that the appointments of Commodore
Bainimarama as Prime Minister and his Ministers were not validly made;
and it declared that it would be lawful for the President to appoint a
caretaker Prime Minister, for the purpose of advising a dissolution of
the Parliament and for advising that a general election be held. The
refusal of Commodore Bainimarama and his government to accept the
decision of the court effectively ended, at least for the time being,
the operation of the existing legal order.
Many other cases involve a collateral
challenge to the validity of a law or the legality of an
executive action. Typically, these arise where one party's case relies
on a provision in a law or on an executive action, and the other party
calls into question the legality of that provision or action. For
example, in State v AV,
a person convicted of a crime appealed on the basis that the statutory
corroboration requirement for the evidence of a child witness had not
been met. Although this was factually true, the State successfully
defended the conviction on the basis that the statutory requirement was
itself unconstitutional, so that there was no error in not applying it.
The same kind of argument can be made by the defence in a criminal
case, by demonstrating that the law establishing the crime alleged to
have been committed is unconstitutional, as occurred in Nadan v State
[2005] FJHC 252, 1 PHRLD, or by showing that the sentence is
unconstitutional, as was argued in Fangupo
v R. In that case, the Court of Appeal of Tonga indicated
that it was likely that a sentence of whipping would be
unconstitutional.
Groupe Nairobi (Vanuatu)
Ltd v Government of the Republic of Vanuatu illustrates
collateral challenge in a civil context. There, a company challenged
the decision of a tax authority to refuse the company a tax refund. The
refusal was justified under a later amendment to the tax law which
operated retrospectively, but the company argued that the amendment was
unconstitutional, as it amounted to an unjust deprivation of property.
The challenge failed, as the court held that the company's clam for a
refund was not ‘property', and even if it was, the deprivation was not
unjust.
Other judicial responses to unconstitutional action or human rights
infringements can be seen at various stages of criminal proceedings. In
Takiveikata v State,
the court granted a permanent
stay of proceedings as a remedy for an abuse of process,
arising when the accused was kept in detention for an excessive period
and denied access to a lawyer. In R
v Setaga, proceedings were also permanently stayed because
the excessive delay in commencing the prosecution against a child
created a distinct risk of an unfair trial. A similar outcome was
achieved at first instance in the Australian case of R v Moti, but
reversed on appeal when the court ruled that the prosecution conduct in
providing financial support for the complainant and her family was
neither improper nor unlawful.
In Police v Vailopa,
the court responded by excluding
evidence of a confession made by a child suspect when
questioned by the police in the absence of an independent adult.
Similarly, an argument for exclusion of evidence was made in Singh v State; it
was rejected because obtaining the evidence by a concealed recording
device was not considered unlawful or improper.
Courts also consider breaches of human rights standards to be relevant
to the sentencing
of convicted offenders. In Police
v Palemene and in R
v Teokila, the inhumane conditions of the offender's
detention pending trial justified a reduction in the sentence that
would otherwise have been applicable. By contrast, in both State v Krishna and
Police v Faiga,
the recognition in the Convention on the Rights of the Child of the
seriousness of crimes against children justified a stronger sentence
against an offender whose victim was a child.
Breaches of human rights standards in the context of criminal
investigations or detention can also give rise to civil liability for
the State or its agencies. In Navualaba
v Commander of Fiji Military Forces, the court awarded damages
to a suspect severely assaulted while in military custody. The claims
were based on the commission of the private law wrong (or tort) of
assault. Where the wrong is proved, a person can be compensated in
civil proceedings for resulting financial losses such as loss of income
or medical expenses and for pain and suffering. The court was also
prepared to award an additional sum as exemplary damages, which are
designed to punish the wrongdoer and deter future breaches. Common law
claims can also be based on wrongful detention, as illustrated by Commissioner of Police v A Mother.
An alternative strategy is to seek damages for breach of constitutional
rights. The availability of this public law remedy was recognised in
Fiji in Proceedings
Commissioner, Fiji Human Rights Commission v Commissioner of Police.
There are some differences in damages available in public law, as
compared to private law claims. Importantly, the Fiji Court of Appeal
indicated that exemplary damages would not generally be awarded for
breach of constitutional rights,
as the purpose of the damages was to compensate the plaintiff for any
losses suffered and to vindicate the plaintiff's rights; it was not to
punish the defendant. In Attorney
General v Yaya, public law damages were awarded for breach
of privacy after police published a list containing details of persons
suspected of committing serious crimes. The damages compensated the
suspect for his humiliation, loss of dignity and injured feelings.
As the court held in Navualaba,
it is not possible to recover both private law and public law damages
for the same wrongful conduct. Consequently, plaintiffs will need to
consider which type of claim will be more advantageous. In assessing
this, it should be recognised that not all human rights standards are
protected by private law: for example, the right to non- discrimination
has not traditionally been protected by the common law; nor has the
right to privacy (although that has changed in England since the
enactment of the Human
Rights Act 1998). So the only recourse may be an action
seeking constitutional damages, assuming that the rights to
non-discrimination or privacy are included in the country's Bill of
Rights. The action for constitutional damages may also be the only
option if there is statutory immunity for claims in tort, but not for
public law claims (see Simpson
v Attorney General [1994] 3 NZLR 667). On the other hand,
where there has been serious wrongdoing by agents of the State, the
availability of exemplary damages might make a claim for private law
damages more attractive, although the possibility of obtaining a
greater award of damages in this way may be more apparent than real,
since the seriousness of the wrongdoing will be taken into account in
the assessment of public law damages.
Human rights concerns can also be a consideration in deciding whether
to award discretionary
civil remedies such as injunctions. In Datt v Fiji Television Limited,
the court relied on the freedom of speech as a factor in refusing an
injunction to prevent the publication of allegedly defamatory
statements. Similarly, in Fiji
National Provident Fund v Fiji Television Limited, the
court took account of the right to free speech in refusing an
injunction to restrain publication of allegedly confidential
information.
PART I
This part of the Digest contains Pacific Island cases in which the
courts interpret human rights standards in their constitutions or
legislation, apply international standards in ratified or unratified
human rights Conventions, or consider how domestic and external
frameworks affect each other.
Arrest and detention
Several cases arise from the misuse of power by police or other
security forces in the context of arrest or detention of persons
suspected of committing crimes. In some cases, over-zealous or
insensitive investigative methods were used; in others, the security
forces were found to have inflicted harm as a form of punishment, even
though the suspect had not been charged and tried.
In Proceedings
Commissioner, Fiji Human Rights Commission v Commissioner of Police,
police investigating the abandonment of a new born baby required a
female suspect to undergo an invasive gynaecological examination. The
woman was under arrest at the time and had objected to the procedure.
The Court of Appeal confirmed that the woman's constitutional right not
to
be subjected to medical treatment or procedures without consent had
been infringed. There was no need to balance this right against the
public interest in investigating the crime, as the police simply had
never been given power to require a suspect to undergo a medical
examination or any other form of invasive forensic procedure. As it
happens, no such power was needed: the police could have used other
lawful investigative methods, such as questioning the woman's
co-workers as to whether she had recently appeared to be pregnant, or
examining the woman's medical file, which she had consented to. These
steps would have removed her from suspicion. In Commissioner of Police v A Mother,
the police kept a woman in custody for 10 hours longer than was
reasonably necessary, even though the detention was within the maximum
time permitted by the Constitution. The court emphasised that arrest
should not be used, as it was in this case, to try to bolster a case
against another person, by obtaining incriminating evidence from the
person in custody. A far more serious delay occurred in Takiveikata v State,
where the accused was detained under guard in hospital for over two
months, initially without proper access to a lawyer. The court
considered the denial of the accused's right to liberty and to legal
advice to be so serious that the proceedings against him should be
permanently stayed.
Navualaba v Commander of
Fiji Military Forces concerned the violent and degrading
treatment of a person who had surrendered himself to military officers
and admitted to serious crimes. The court stressed that it was not for
the military or police to determine issues of guilt and punishment –
that is the function of the courts. Regardless of what crimes a person
may have committed, he or she remains entitled to a fair trial and to
protection when kept in custody pending trial. The police had also
failed to provide such protection in R v Teokila, when
they allowed members of the public to assault a man accused of defiling
a young girl.
The conditions under which suspects are kept must also meet minimum
standards of humanity and decency: in Police v Palemene,
the accused was ‘punished' even before he was charged with an offence.
For seven days, he was kept naked, in a very dark cell, with no food
and only a small container to use as a toilet. The trial judge who had
visited the cell considered the conditions ‘beyond comprehension.' He
released the offender on the basis that he had suffered enough before
the trial.
All of these cases demonstrate the essential role of the courts in
insisting that those charged with upholding the law must themselves
observe its limits. However, the rights of citizens cannot be secured
by judicial decision alone. Governments also have a responsibility to
train their security forces to operate within the limits of their legal
authority, and to foster a culture within the forces that recognises
their proper role within the criminal justice system.
Children
The Convention on the Rights of the Child (CRC), which most Pacific
Island countries have ratified, contains a range of protections for
children who are caught up in different capacities in the criminal
process. In general, they require measures that will make allowance for
the special vulnerabilities of the child, and will assist in the
development of the child into adulthood. Several cases in the volume
demonstrate how these concerns have been addressed by Pacific courts.
It is notable that in these cases, the courts took account of the
Convention even though no legislation had been enacted to give domestic
effect to the relevant Convention obligation. This underlines
the increasing willingness of Pacific courts to draw on international
human rights standards in the determination of legal questions.
Police v Vailopa
established that in Samoa, a statement obtained by police from a child
in the absence of the child's parent or other supporting adult could
not be used in evidence against the child, unless it was a truly
spontaneous statement. This rule serves not only to assist a child in a
highly stressful and possibly confusing situation, but also to provide
an independent witness to what is said and done in the interview. The
latter is most important if the interview is not recorded, and the
police account of events is unreliable, as happened in this case.
R v Setaga
concerned an inexplicably long delay in bringing an accused child to
trial. The alleged offence had occurred when the child was 13, yet
proceedings were not commenced until 4½ years later. Such a delay would
be unacceptable for an adult accused, but is even more harmful for a
child. The risks of an unfair trial as a result of the delay were
great, especially as one of the issues was whether the accused
appreciated the nature of his action at the time of the alleged
offence. Assessing his understanding in such distant hindsight would
have been difficult, if not impossible. The court permanently stayed
the prosecution.
The special vulnerability of children is also recognised as an
aggravating factor in sentencing an offender who has committed a crime
against a child. This was recognised in Fiji in State v Krishna in
relation to the use of corporal punishment by a teacher on a child, and
in Samoa in Police v
Faiga, a case of indecent assault on a child. In both
cases, the courts referred specifically to the CRC in justifying a
sterner sentence. In the Samoan case, the court also called for a
review of the available penalties in such cases, to better implement
the obligation to protect children arising under the CRC. The reported
cases are illustrative of the increasing reference to the CRC in the
context of sentencing of persons convicted of crimes against children.
Children should also ultimately be better protected as a result of the
decision in State v AV. There, the High Court of Fiji struck down the
statutory rule that no one could be convicted on the uncorroborated
evidence of a child who testified without taking an oath. It also
abolished the common law requirement requiring a warning that it was
dangerous to convict on the uncorroborated evidence of a child
testifying on oath. The corroboration rules were not only highly
technical and confusing; they proceeded on the unfounded assumption
that some classes of witnesses are inherently less reliable than
others. The Fiji Court of Appeal had already struck down a similar
requirement for the evidence of female complainants in sexual offence
cases (Balelala v State
[2004] FJCA 49, 1 PHRLD 4). In State
v AV, the court concluded that the rule in relation to
children was also discriminatory and contrary to the Fiji Constitution.
The result is that the trier of fact will still need to assess the
reliability of the particular child's evidence, and have regard to any
demonstrated weaknesses in it. It will still be necessary to establish
guilt beyond reasonable doubt, which will remain a formidable task,
particularly where children are abused in private. Even so, the removal
of the corroboration rules will assist by avoiding an unnecessary and
confusing distraction and by treating child witnesses with the same
dignity and respect as adults.
In Public Prosecutor v
Nawia, the accused had been convicted of causing death by
reckless driving.As part of the sentencing process, the court had to
consider whether to order compensation to the families of the deceased.
It was in this context that the court had to consider the customary
reconciliation ceremony performed by the accused, which had included
the offering of a young girl as reparation. The court expressed its
strong disapproval of this customary practice that treats girls as a
commodity: it was contrary to the Vanuatu law, the CRC, and to
Christian principles. The court ordered that the girl be returned to
her parents.
The other case in this grouping concerns the issue of child abduction.
The Hague Convention 1980 seeks to ensure the prompt return of children
who have been wrongfully removed from, or retained outside, the country
of their normal residence. State parties to the Convention are expected
to order the return of the children without a detailed examination of
whether the parenting arrangements in the home country are the most
appropriate for the child. As such, compliance with the Hague
Convention may at first seem to be at odds with the CRC, which requires
the child's best interests to be a primary consideration in all actions
affecting the child. However, as the decision of the Cook Islands court
in Marsters v Richards
recognises, prompt return is generally in the best interests of the
child: it will often re-establish the child's contact with both
parents; it promotes continuity in the child's life; and it allows
decisions about contact and custody to be made in the jurisdiction
which is likely to have the most relevant information about the child.
It is also likely to deter further wrongful abductions. Indeed, the
CRC, in Articles 11 and 35, contemplates that States will take
multilateral measures to prevent the abduction and non-return of
children. Consequently, even in a State not a party to the Hague
Convention, it will still be appropriate for a court to apply the
spirit of the Convention, by ordering the return of the abducted child
to the home country in all but exceptional cases. In doing so, it will
be acting in the best interests of the child.
Liberty
The withdrawal of liberty inherent in imprisonment is a serious step,
not to be taken without sound justification. Both the Universal
Declaration of Human Rights and the International Covenant on Civil and
Political Rights recognise that failure to meet civil obligations (such
as a contractual duty or a debt) do not justify the imposition of
criminal penalties, including imprisonment. To do so would in effect
criminalise poverty. Naylor
v Foundas affirms these principles by holding that it is
not permissible under the Vanuatu Constitution to imprison a person for
failure to pay a debt. It is necessary to show that the person has the
means to pay, and has wilfully refused to do so, before imprisonment
even becomes an option.
Life
The right to life is perhaps the most basic right of all, but the scope
of a State's duty to protect the right will depend in part on how the
right is expressed in the relevant Convention or constitution, and how
the language is interpreted. Does the provision merely prohibit the
arbitrary taking of life by the State, or does it create a positive
duty on the State to do what it reasonably can to reduce or eliminate
known threats to life? Different answers have been provided in
different jurisdictions, depending partly on the wording of the
applicable guarantee of the right to life. For example, decisions under
the European Convention on Human Rights recognise that States may have
a duty to take reasonable steps to avoid a real and immediate risk to
the life of an identified person from the criminal acts of other
persons, where the State knows or ought to know of the risk: see Opuz v Turkey,
discussed in the commentary to Part III
under the heading ‘Violence against Women.' The duty to take positive
steps to protect life may also arise where the State is engaged in
activities which might unintentionally put lives at risk, such as
conducting nuclear testing (see LCB
v United Kingdom, (1998) 27 EHRR 212). These derive from
the particular language of the Convention, which begins with an
explicit assertion in positive terms that ‘Everyone's right to life
shall be protected by law.'
In other instruments the language is more limited. For example, in
Article 5(1) of the Constitution of Samoa, the right is expressed in
less expansive terms: ‘No person shall be deprived of his life
intentionally, except in the execution of a sentence of a court
following his conviction of an offence for which this penalty is
provided by Act.' This difference of language prompted the Supreme
Court of Samoa in Jackson
v Attorney General to distinguish the cases based on the
European Convention as inapplicable in Samoa. The case involved a
challenge to a government decision to change the national traffic laws,
from driving on the right hand side of the road to driving on the left
hand side. The applicants sought to demonstrate that the change posed a
real risk to the lives of road users, so that the law effecting the
change infringed the constitutional right to life. They relied on the
European Convention cases to support their argument for a positive duty
on the part of the State to avoid foreseeable risks to life. However,
the court relied on the express language of Article 5(1) to confine the
right to life to cases of intentional deprivation. The court considered
that there was no scope for a broader interpretation of the kind
permitted by the different language in the European Convention.
Limits on Rights:
Privacy/Religion/Speech
Few constitutional or human rights are absolute. Some rights have their
own internal limits: for example, the freedom from arbitrary arrest
contains an internal limit in terms of when an arrest is arbitrary.
Additionally, most rights may be restricted in pursuit of other
legitimate public interests, provided the restrictions are reasonably
justifiable in a free and democratic society. Several cases in Part I
required the courts to identify the internal limits of a right, or to
engage in the process of balancing the competing claims of public
interest and constitutional rights. In one case, the balancing was
required to decide the constitutionality of a rule of law; in another
to decide the legality of police conduct and in three others, it was
required as part of the application of a discretionary rule.
In Singh v State,
the Fiji Supreme Court had to decide whether the use of evidence
obtained by the secret recording of a conversation infringed the
constitutional guarantee of privacy. The court ruled that the evidence
could be used. It reasoned that the right to privacy only protects
matters that can reasonably be expected to be private, according to
community standards. In modern life, people must be aware of the
possibility of conversations being recorded, and those engaged in
serious criminal activity cannot reasonably expect that any recording
of a conversation will not be used against them. Hence there was no
interference with the right to privacy arising from the use of the
evidence obtained by a participant in the conversation, which revealed
serious criminality. The court further held that even if there had been
interference with the right, it was justifiable in the public interest,
by providing reliable evidence of serious criminality.
By contrast, the Court of Appeal in Fiji did find an unjustifiable
infringement of privacy in
Attorney General v Yaya.
The respondent had brought proceedings after his name, address and
image were published in a list of men wanted by the police. The list
received extensive coverage in the media in Fiji. At the time, the men
were all suspected of involvement in serious offences of robbery. The
court held that the publication had interfered with the respondent's
right of privacy, as he could reasonably expect that the information
that he was a suspect would not be made public, at least until he had
been arrested and charged. It therefore fell to the State to justify
the interference with the right. While it would be legitimate for the
police to disclose the information in circumstances where it was the
only option reasonably available to them to detect and apprehend the
suspects, the evidence before the court did not establish that such a
situation had arisen. As the police had not shown that other less
intrusive methods were not available, the court concluded that
publishing the list was a disproportionate response and so not
justifiable in a democratic society.
Teonea v Pule o Kaupule
of Nanumaga required the Tuvalu Court of Appeal to balance
the freedom of religion against the right of an island council to
preserve traditional Tuvaluan tradition and culture by forbidding the
establishment of new faiths on the island. The arguments were finely
balanced, but the majority of the court found that the freedom of
religion should prevail in this case. Any restriction on a protected
freedom must be a proportionate response to a perceived problem. In
this case, the ban on new religions was not proportionate, as the court
found that less extreme measures were available to address any threats
to the cohesiveness of the small island community. The islanders had
already demonstrated their capacity to manage diversity, by allowing
four other faiths to co-exist peacefully. Issues of proportionality
also figured in the balancing exercise conducted in Samoa Party v Attorney General,
which is discussed under the heading of ‘Political Rights.'
Datt v Fiji Television
Limited illustrates the reluctance of courts to restrain
in advance the publication of material that is alleged to be
defamatory. Courts generally allow publication to occur, and then
compensate any persons who can prove that they have been defamed. This
approach does limit the right of persons to protect their reputation,
but it is done in the interests of the freedom of expression. In the
particular case, the argument for publication was strengthened by the
need to have allegations of wrongdoing by public officials brought to
public attention, at a time when the Parliament was in abeyance as a
result of a military coup. For similar reasons, the court in Fiji National Provident Fund v
Fiji Television Limited declined to restrain the
publication of a report alleged to contain confidential information
about the working of a government agency.
In Attorney General v
Vaai, the Supreme Court of Samoa had to weigh the
interests of free expression against the need to maintain public
confidence in the courts. The court found the accused guilty of
contempt of court on account of allegations which unreasonably
suggested bias on the part of the Chief Justice. The court concluded
that the accused had exceeded the limits on free speech. While this
restriction on free expression is recognised in the Samoan
Constitution, it is one that must be applied carefully, lest the courts
be seen as too robust in protecting themselves from criticism.
Political Rights/Rule of
Law
Courts face a range of sensitive issues in deciding whether and, if so,
how to adjudicate disputes involving the ‘political' branches of
government, namely the legislature and the executive. Not all such
disputes are matters for judicial decision. In Ulufa'alu v Attorney General
the court declined to rule on the validity of the election of the Prime
Minister of Solomon Islands, because the Constitution required that
issue to be determined by the Governor General, not the judiciary. The
court also declined to consider whether the constitutional rights of
certain Members of Parliament had been infringed, as those Members were
not parties to the litigation.
However, where the plaintiff's constitutional rights in the political
process have been affected, the courts have an important role to play.
In Samoa Party v
Attorney General, the Court of Appeal in Samoa recognised
that the measures taken by Parliament to restrict challenges to the
validity of elections posed some risk to the implied right to free and
fair elections. However, it accepted the judgment of Parliament that
these restrictions were reasonably necessary or proportionate to
curtail excessive electoral challenges.
The Fiji Court of Appeal took a bolder approach in Qarase v Bainimarama,
where more fundamental issues were at stake. (The issue of the
President's power to make law by Proclamation had been sidestepped in FICAC v Devo,
pending determination of the issues in the Qarase case.) The
Court of Appeal was called upon to decide whether the elected
government of Prime Minister Qarase had been lawfully deposed by the
military commander, whose actions were later ratified by the President.
It was accepted by the parties that this was a matter for judicial
determination, however difficult the implications might be. The Court
of Appeal held that nothing in the 1997 Constitution authorised the
dismissal of the Prime Minister in 2006 or the appointment of the
interim government. Given that the interim government had by then been
in control of Fiji for more than two years, the court proposed a course
of action to promptly restore the country to democracy, without
reinstating the deposed Qarase government. Presumably, it considered
this the most pragmatic solution in the circumstances, judging that it
was the most it could do to uphold the Constitution and the rule of
law. The following day, the President announced that the 1997
Constitution had been abrogated. The President then purported to
appoint himself as Head of State and, a day later, to appoint the
military commander as Prime Minister. The legal status of the
abrogation, appointments and the ensuing actions of the government
remain to be tested. If and when they are, the Qarase decision
will provide a clear statement of orthodox constitutional principles
and their application to the facts of 2006.
Property
In Groupe Nairobi
(Vanuatu) Ltd v Government of the Republic of Vanuatu the
Court of Appeal of Vanuatu drew heavily on European Court of Human
Rights precedents in deciding that a retrospective change in a tax law
did not amount to the unjust deprivation of property. The case
illustrates the extent to which courts are likely to defer to
legislative or executive assessments of the public interest where the
raising and spending of public revenue is concerned. In this case, the
court accepted the need for the retrospective law, to protect the
revenue from an unanticipated and potentially crippling liability to
pay VAT refunds.
Torture
Certain human rights standards are now so well recognised in
international instruments and case law that they are generally regarded
as forming part of customary international law. While it is difficult
to define all of the rights protected in customary international law,
there is broad agreement that the list includes torture in all its
forms, which include cruel, inhuman and degrading treatment or
punishment. Further, the prohibition on torture is thought to have the
status of ‘jus cogens', meaning that States may not derogate from it
(that is, limit or suspend the right) in any circumstances. It follows
that all Pacific countries, whether or not they have ratified the
Convention against Torture, have an obligation in international law to
refrain from torture.
In Fangupo v R,
the Court of Appeal of Tonga gave a strong indication, without finally
deciding, that the prohibition on torture could also be read into the
national law. It appeared to suggest that the Constitution of Tonga
should be read in the light of the customary international law rule
prohibiting torture. Consequently, the general protections of ‘freedom'
and ‘fair trial' in the Constitution might be interpreted so as to make
unconstitutional a law allowing for a sentence of whipping. The case
illustrates one way in which domestic law may be brought into
conformity with fundamental international standards, without the need
for executive or legislative action.
PART II
This part of the Digest contains cases from outside the Pacific raising
human rights issues of interest and relevance to the Pacific.
Abuse of Process
R v Moti
has already been discussed in conjunction with Pacific cases where the
courts ordered a permanent stay in proceedings because of serious
impropriety or illegality by the prosecution or law enforcement
agencies. The decision of the Queensland Court of Appeal is of interest
because of its finding that substantial payments to the complainant and
her family were not sufficient reason to stay proceedings against the
accused, a former Attorney General of the Solomon Islands.
Discrimination
Dalco Engineering
Private Ltd v Padhye may at first sight appear to retreat
from the generally progressive position taken by the Supreme Court of
India in human rights cases. In this case, the court held that the
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act 1995 only applied to statutory corporations and not
private corporations. However, this decision did not deny the
possibility of horizontal application of human rights provisions; it
simply recognised that the clear language of the Act made such an
application impossible in this instance.
Privacy
Naz Foundation v
Government of NCT of Delhi provides an interesting
instance of the potential
for the Pacific to influence the development of human rights thinking
in the rest of the world.
In deciding that it was unconstitutional to criminalise sexual acts
between consenting adults of the same sex, the High Court of Delhi
cited in support of its conclusion the decision of the Fiji Islands
court in Nadan v State
(2005) FJHC 500, 1 PHRLD 22, where an identical conclusion had been
reached.
The remaining cases in Part II deal with issues of violence against
women and are discussed
below, together with the Pacific cases on the same issue in Part III.
PART III
This part of the Digest contains cases from the Pacific dealing with
issues of domestic violence
and family law.
Constitutionality of
Family Protection Law
One of the more significant developments in advancing protection from
domestic violence was the enactment in Vanuatu of the Family Protection Act 2008.
The Act creates a new offence of domestic violence, punishable by
imprisonment for up to five years or by fine. The offence extends to a
wide range of acts of physical, psychological or sexual abuse within
the family, which is defined to include parties to a legal, de facto or custom
marriage, as well as their children, siblings and parents. The Act also
provides for the making of protection orders to prevent future acts of
domestic violence, with infringement of orders punishable by
imprisonment for up to two years. The payment of ‘bride price' provides
no defence to an offence under the Act, nor is it relevant to the
making of a protection order.
Following arguments from some opponents that the proposed Act was
un-Christian, against Melanesian values and otherwise unconstitutional,
the President of Vanuatu referred the Bill to the Supreme Court. In President of the Republic of
Vanuatu v Speaker of Parliament, the court advised that
there was nothing unconstitutional in the Bill: the provisions of the
new law provided a proper balance between the rights of family members
to be protected from violence, the rights of parents to reasonably
discipline for their children and the rights of those subject to
protection orders. The President then signed the Bill into law.
Family Law
The distribution of property following a divorce is the subject of
detailed provisions in Fiji's Family Law Act 2003. Nisha v Khan
provides an extensive review and application of the principles,
demonstrating the recognition of non-financial contributions by a wife,
usually on an equal footing with financial contributions by the
husband; a broad view of the marital property available for
distribution; and the general irrelevance of ‘marital fault' in
allocating the property.
By contrast, the statutory law in Samoa does not make explicit
provision for property distribution on divorce. Arp v Arp therefore
offers a new approach, by effectively adopting the English case law,
which in turn gives effect to the Matrimonial Causes Act 1973 (UK).
This replaces the previous approach adopted in Elisara v Elisara,
under which the Samoan courts were confined to determining the existing
property entitlements of the parties under principles of common
law and equity. The new approach allows for a more explicit
redistributive function, focusing not just on past contributions to the
acquisition of matrimonial property, but also considering the future
needs of the parties and their future earning capacities. As with Fiji,
the approach taken in Samoa gives equal value to financial and
non-financial contributions to a marriage, and generally ignores
‘fault' issues such as marital infidelity in determining the property
distribution.
Kisekol v Kisekol
is an example of the approach taken in jurisdictions where there is no
express power to redistribute property on divorce: the court determines
the existing rights of the parties, but in doing so, is not bound by
the terms of the legal title to the asset in question. As the case
shows, equitable principles may make it unjust for the husband to rely
on his legal title to deny a share in the property to his wife, if she
acted to her detriment in reliance on a common intention that she
should share in the property. The court prevented that injustice by
imposing a constructive trust in favour of the wife. As a result, she
obtained a half share in the property, as both husband and wife had
acted on that basis before the marriage broke down. The case can also
be used as a precedent in working out the entitlements of parties to a de facto
relationship which has come to an end.
Enforcement of maintenance orders is a perennial difficulty in the
Pacific and elsewhere. As Chand
v Rattan shows, deliberate non-compliance with a
maintenance order amounts to a contempt of court, and is punishable as
such. A maintenance order has the same status as any other court order,
and cannot simply be varied by the parties without recourse to the
court.
In order to obtain an order to pay maintenance for a child, it may be
necessary to prove that the defendant is in fact the father of the
child. Maharaj v Raju
shows that common law or statutory presumptions may assist in proving
paternity, but they are only aids, and need not be relied on, if there
is alternative proof such as an admission of paternity or DNA evidence.
NK v ZMR
illustrates the interaction between the human rights standard that
people, especially women, must be free to marry and to choose their
spouse, and the custom of some religious and ethnic communities, where
arranged marriages are the norm. Although not suggesting that arranged
marriages will always infringe human rights standards, the court
indicated some of the factors that will allow parties to such a
marriage to obtain a decree of nullity on the grounds that there was no
real consent to the marriage.
Finally, in Ali v Hakim
the court applied the non-discrimination principle to rule that a
person may apply for the revocation of his own adoption order, even
after he has reached the age of majority. The court relied on its
inherent parens patriae
power, which is normally limited to making orders for the benefit of
children. In this case, the court made the order for the benefit of an
adult person who had been properly adopted as a child, reasoning that
it should not discriminate against the applicant because of his age.
Violence against women
States have responsibilities in International Law to take appropriate
measures to protect women from violence. The duty may arise from a
number of sources. In Opuz
v Turkey, the European Court of Human Rights recognised
that Turkey, as a party to the European Convention on Human
Rights, was obliged to take preventive measures to protect an
individual whose life was at risk, at least where the State knew of the
risk. It must also act positively to prevent a person from suffering
torture, inhuman or degrading treatment at the hands of another private
individual. The obligation is not met merely by enacting laws – there
must be effective enforcement by the police and the courts, and it must
operate without discrimination between men and women. In this case, the
court found that Turkey had failed in its duty, as the legal system was
too complacent or accepting of domestic violence perpetrated against
women. It was also acknowledged that similar obligations arise under
the Convention of the Elimination of All Forms of Discrimination
against Women (CEDAW), making the finding of direct relevance to
Pacific countries, most of which have ratified that Convention. This
message was reinforced in Police
v Piuila where the Supreme Court of Samoa emphasised that
violence against a woman by her husband could not be tolerated. Nor
could it be justified on the ground that the wife had failed to perform
her ‘wifely duties' in domestic work or child care.
Where a country systematically fails to perform its duty to protect
women from domestic violence, the affected women may qualify for
protection under the Refugees Convention. In Minister of Immigration v Khawar,
the High Court of Australia accepted that gender-based persecution,
perpetrated by private persons but acquiesced in by the State, could
form the basis of a claim to refugee protection for women from
Pakistan.
Protection obligations can also arise under the International
Convention to Suppress the Slave Trade and Slavery (the Slavery
Convention). In R v Tang,
the High Court of Australia held that offences of intentionally
possessing a slave and exercising a power of ownership over a slave,
enacted to implement the Slavery Convention, could properly be applied
to a situation where women sex workers were recruited in Thailand to
work in an Australian brothel. The women worked under terms and
conditions which so restricted their freedom and autonomy that they
could properly be described as slaves within the meaning of the Act.
In the absence of applicable human rights standards, discriminatory
laws and practices may survive. In R
v Talanoa, the Supreme Court of Tonga continued to apply
the traditional common law rule that requires a warning about the
danger of convicting on the basis of the uncorroborated evidence of a
complainant of a sexual offence. Even though the court acknowledged
that the practice proceeded from ‘highly questionable assumptions' with
‘their highly gendered construction,' it did not see fit to reform this
judge made rule. The impetus for reform would have been greater if
Tonga had ratified CEDAW or had an explicit constitutional freedom from
sex discrimination: contrast the decision in Balelala v State
[2004] FJCA 49, 1 PHRLD 4, where a different result followed from the
application of the Fiji Constitution and CEDAW.
PART
I: PACIFIC ISLAND CASES REFERRING TO CONSTITUTIONAL
BILLS OF RIGHTS, HUMAN RIGHTS CONVENTIONS, STANDARDS AND PRINCIPLES
ARREST AND DETENTION
ARREST AND
DETENTION /
DAMAGES FOR BREACH OF CONSTITUTIONAL RIGHTS
Courts in Fiji have the power to
award damages for breach of a person's constitutional rights.
PROCEEDINGS COMMISSIONER, FIJI
HUMAN RIGHTS
COMMISSION v COMMISSIONER OF POLICE
| Court of Appeal |
Fiji Islands |
| Ward, Wood, |
[2006] FJCA 75 |
| McPherson JJ |
24 November 2006 |
Laws considered
Constitution of Fiji 1997 (CF)
Human Rights Commission Act 1999 (HRCA)
Facts
The Proceedings Commissioner (PC) sued on behalf of one Joti
(J). She was employed at a cinema in Suva. She found a new-born baby in
a toilet cubicle at the cinemas. She reported her find to the police.
A few days later police took J from her workplace to the
police station. At the police station she was asked if her breasts were
discharging. J agreed that they were discharging but said it was due to
a medical reason and invited police to inspect her medical folder at
the hospital. The senior officer in-charge then instructed some
officers to take J to the hospital for a medical check despite her
protests. At the hospital she was subjected to invasive vaginal
examination using an instrument. At the conclusion of the examination
the doctor reported that she had not given birth recently.
The police refused to apologise to her for their actions. She
sought assistance from the Fiji Human Rights Commission which brought
proceedings on her behalf under the HRCA. She sought damages for breach
of her Constitutional rights. The High Court ruled that damages could
be awarded for breach of Constitutional rights in a proper case and
awarded her $4,500 but refused to award exemplary damages. (That
decision is reported in 2 PHRLD 39.)
J appealed to the Court of Appeal.
Issues
• Whether damages are
available for breach of a right under the Bill of Rights
provisions in the CF.
• If so, the measure of such damages.
Decision
The Court of Appeal confirmed that there had been a violation of
J's right not to be subject to medical treatment without her informed
consent, under CF s25(2), and her right to treated with humanity and
respect for her dignity while in detention, under CF s27(1)(f). It
increased the award to $15,000.00 but held that exemplary damages were
not generally awarded for breach of Bill of Rights provisions.
The court ruled that on some occasions, declaratory orders to
stop an existing breach were enough to satisfy the objectives of the
Bill of Rights. In other cases, such orders may not be an adequate
remedy, so an award of damages becomes necessary. It went on to state
that the level of such awards ought not to be based on awards in
foreign jurisdictions but according to costs and values prevailing in
Fiji. The damages awarded must be restrained or modest or what the
Court described as ‘prudent damages.' However, the awards must not be
so low that they devalue the respect for the policies which underpin
the Bill of Rights.
The aggravating features of this case were that it was the
police, who are supposed to uphold the law, who flouted the applicant's
rights, together with their failure to offer a timely apology or engage
in meaningful conciliation. For these reasons the award was increased.
Comment
This was the first case in Fiji where an action had been
brought under the HRCA for breach of a Bill of Rights provision. The
court favoured the view that the remedy for breach of such rights was a
public law remedy and therefore the general principles for assessment
of damages in tort do not necessarily apply, although they can provide
guidance. Importantly, the court considered that the purpose of
awarding damages was not to punish the party that violated the right,
but to compensate the victim and vindicate that person's rights. Even
so, the seriousness of the breach would be reflected in the amount of
damages awarded. In this case, the Court of Appeal regarded the breach
as a serious one, which was aggravated by the refusal of the police to
acknowledge or apologise for the ‘high-handed' conduct of their
investigation.
ARREST AND DETENTION
/
DAMAGES FOR PERSONAL INJURIES / BREACH OF CONSTITUTIONAL RIGHTS
A person severely assaulted while
in military custody is entitled to damages for personal injury as well
as exemplary damages if the behaviour of the military was oppressive.
NAVUALABA v COMMANDER OF FIJI
MILITARY FORCES
Law considered
Common law damages for assault
Facts
In August 2000, the plaintiff (P) surrendered himself to the military
forces and was placed under arrest for having committed murder and
robbery. While in custody at the military camp, P was punched and
kicked by soldiers, hit with an iron rod and a rifle butt, and had hot
water poured over him. He was also forced to eat horse manure. As a
result, he suffered fractures to a finger and his left forearm, a
swollen face and black eyes, swollen limbs and body pains with
tenderness on his back and chest walls. P required hospital care for 47
days. He also suffered post traumatic stress disorder, insomnia and
irritability for years after the assault.
Issues
• Was P entitled to
damages for the assault committed by the military
forces?
Decision
The conduct of the military forces clearly amounted to a tort or civil
wrong against P. A person in the custody of the police or the military
is entitled to protection, regardless of what crimes he may have been
committed. The punishment of criminal conduct is a matter to be
determined by a court, after a proper hearing. It is not a matter for
the police or armed forces.
The court rejected P's claim for damages for his loss of income as he
had failed to prove the
extent of his prior income and what he had done to mitigate his losses.
However, P was awarded
$45,000 in damages for pain and suffering and a further $18,000 for
exemplary damages, to punish the defendant for the ‘oppressive and high
handed' acts of the soldiers.
A claim for damages for breach of P's constitutional rights was
rejected as it had not been raised in P's statement of claim. In any
event, he could not claim damages twice for the same wrong.
Comment
Exemplary damages are only awarded in exceptional cases, to punish the
most serious misbehaviour and to deter repetition of the conduct. In
this case, the soldiers' flagrant abuse of their position warranted the
award of such damages, as a mark of the seriousness with which the
wrongdoing was viewed and to try to deter any similar conduct in
future.
The decision also shows that a person who has suffered loss as a result
of unconstitutional conduct by public officials may have to elect
whether to claim damages for breach of constitutional rights, or common
law damages in tort (that is, damages for the commission of a civil
wrong.) The availability of exemplary damages to punish particularly
reprehensible conduct in cases like the present may make a common law
claim more attractive, given the decision in Proceedings Commissioner, Fiji
Human Rights Commission v Commissioner of Police (reported
earlier in this volume), that exemplary damages are not available for
breach of constitutional rights. However, as the seriousness of the
wrongdoing is a factor in the assessment of ‘constitutional damages,'
the distinction may be more apparent than real.
ARREST
AND DETENTION /
DAMAGES FOR UNLAWFUL DETENTION
Police must not keep an arrested
person in detention for longer than is reasonably necessary. A person
has a right to damages if detained for longer than can be justified.
COMMISSIONER OF POLICE v A MOTHER
Laws considered
Constitution of Fiji 1997 (CF)
Criminal Procedure Code (Cap 21)
Common law damages for unlawful arrest
Facts
The complainant (C) and her four year old child were taken into custody
by the police (P) over a break-in at the Magistrate's Court Registry
where C was an assistant court officer. C was held for questioning over
an evening and the next day with short breaks, ten hours longer than
could be reasonably justified, but for less than the 48 hour limit in
CF s27. During this time, attempts were made to implicate C's
boyfriend. C sued P for damages. The Magistrate's Court awarded C
$3,000 dollars for the excessive detention and a further $1500 dollars
for injuries to feelings,
$1500 for solicitor-client costs and $6000 dollars for C's child, who
had been detained with her mother for five hours. The Police appealed.
Issues
• Whether the police
actions were justified.
• The extent of the police detention powers, given CF s27.
• Whether the award for damages was excessive or appropriate.
Decision
The court upheld the decision. It found the actions of the police
unreasonable and excessive and confirmed the amount of damages awarded
by the Magistrate. Notwithstanding that CF s27 permitted a maximum
detention period of 48 hours, the police were still required to act
promptly and diligently. They could not detain a person under arrest
just to bolster the case against that person or some third party. That
is what P had done in this case.
Comment
The court was concerned to protect the liberty of citizens against the
wide powers of the state. The powers of search and arrest were not
arbitrary; they had to be exercised reasonably. Subjects should not be
deprived of their liberty unless it is essential and within the ambits
authorised by law. There was also an acute sensitivity to the situation
within the country and the extra legal nature of the political
environment.
ARREST AND
DETENTION /
ABUSE OF PROCESS
An unreasonably long period of
detention and denial of confidential access to a lawyer may be so
serious a breach of the accused's rights and the rule of law as to
justify a permanent stay of proceedings.
TAKIVEIKATA v THE STATE
Laws considered
Constitution of Fiji 1997 (CF)
Criminal Procedure Code (Cap 21) (CPC)
Facts
The applicants were all facing three counts of conspiracy to murder the
acting Prime Minister, the acting Minister of Finance and the acting
Attorney General. The charges related to events that occurred between
September and November 2007 after the military coup in December 2006.
One of the accused was a businessman, Ballu Khan (K). K was arrested on
3 November 2007, after which he was detained under police guard in a
public hospital from 3 November to 14 November. During that time, K was
allowed to see his lawyer only for very short periods and only with a
military officer present. On 14 November, K was taken to the Central
Police Station and detained there until 16 November. On 16 November he
was admitted to a private
hospital, and remained there under police guard until 8 January 2008
when he was taken before a Magistrate.
K and the other applicants also alleged that they were subject to
numerous other forms of unfair treatment at the hands of the military
and the police before, during and after their arrest and detention.
All the applicants sought a permanent stay of the proceedings.
Issue
• Was the conduct
established on part of the police and military so wrong that it would
be an affront to the conscience of the court to allow proceedings
against the accused to continue?
Decision
The court granted K's application, on the basis of his excessive
detention and denial of confidential access to a lawyer. The other
allegations were either not sufficiently substantiated, or were not
sufficient to justify a stay of proceedings. Accordingly, the
applications by all the other accused were refused.
The court has the power to stay proceedings as an abuse of process
where:
(1) circumstances are such
that a fair trial of the proceedings cannot be had; or
(2) there has been conduct established on the part of the Executive
which is so wrong that it would be an affront to the conscience of the
court to allow proceedings brought against that background to proceed.
A stay is only granted in exceptional circumstances; otherwise the
charges brought before the court must be tried.
Here, K's detention was wholly unreasonable and in breach of CPC ss23
and 25, which require that an arrested person must be taken before a
Magistrate without unnecessary delay. It infringed his right of
personal liberty under CF s23. Overall, this breach was sufficient in
itself to justify a stay.
The denial of confidential access to a lawyer also violated K's right
under CF s27(1)(c) to consult his lawyer in private. Privacy is of the
essence of consultation with a lawyer, and the presence of a military
officer effectively prevented K from exercising his right. By its
conduct, the Executive had substantially threatened basic human rights
and the rule of law.
Comment
Generally, the community has the right to see that all crimes are
prosecuted and it is only in very exceptional circumstances that a
court grants a stay. Not every violation of a Constitutional or common
law right will result in a stay, particularly as there may be
alternative remedies available to the person affected, or procedures
available to the court to counteract the effects of the breach. In this
case, the court viewed the conduct of the security forces as so
intolerable that it would bring the system of justice under law into
disrepute if the case against K were allowed to proceed.
ARREST AND DETENTION /
INHUMANE TREATMENT
An offender convicted of
possessing narcotics was released without further punishment because of
the inhumane conditions he had suffered in custody while awaiting trial.
POLICE v PALEMENE
Laws considered
Constitution of Samoa
Crimes Ordinance 1963
Facts
The accused (A) was charged with possession of narcotics. While in
police custody, and before being charged, A was locked up in a
‘punishment' cell for seven nights. He was kept naked, in a very dark
cell, with no food and only a small container to use as a toilet. The
trial judge, out of curiosity, visited the cell and found out it was
impossible for any human being to live in such confinement.
Issues
• Was treatment of the
defendant while incarcerated inhumane?
• Should such treatment have any impact on A's sentence?
Decision
The defendant pleaded not guilty but the court found otherwise. In
determining the sentence, the court had regard to the condition in
which A was kept while awaiting trial. The court described his
treatment as ‘beyond comprehension, unthinkable to say the least and
inhumane indeed.'
The court said for a country that prided itself on its Christian
beliefs and a Constitution which protected the human rights of
everyone, the treatment received by the defendant while in custody
should not be condoned. His Honour ruled that the defendant had
suffered enough and that was his penalty for the possession charge.
Comment
Despite being in possession of narcotics, a serious offence, the court
treated Awith some leniency because of the degrading conditions of his
custody while awaiting trial. Of great concern was the evidence given
by a prison officer that it was standard procedure to keep prisoners
naked in the punishment cell. Individuals are entitled to be treated
with dignity and respect as human beings irrespective of their status
or what they may have done.
CHILDREN
CHILDREN / ABDUCTION
In deciding whether to enforce an
order from a foreign jurisdiction to return an abducted child, a court
should presume that it is in the best interests of the child to be
returned to its home country so that issues regarding custody and
access can be determined there.
MARSTERS v RICHARDS
| High Court |
Cook Islands |
| Williams CJ |
DP 4/2008 |
|
9 May 2008 |
International instruments
and law considered
Hague Convention on Civil Aspects of International Child Abduction 1980
(HC)
Convention on the Rights of the Child (CRC)
Infants Act 1908 (New Zealand) (IA)
Facts
The applicant (A) was the father and the respondent (R) the mother of a
child (C) who was two years old at the time of the application. In
2007, a court in New Zealand ordered that R have custody of C, provided
R resided in Nelson or Auckland New Zealand, and that A have access
rights, under which C would stay with him for specified periods each
year. Soon afterwards, R took C to Rarotonga and advised A that C would
remain there. A obtained a warrant from the Family Court in New Zealand
requiring C to be returned to New Zealand.
A then applied in the Cook Islands for an order enforcing the New
Zealand warrant. R in turn applied for custody of C, to be exercised in
the Cook Islands. She alleged that this would be in C's best interests,
as A was violent and mentally unfit to be a responsible father.
Issue
In determining the application, should the court have regard to the HC,
even though the Cook Islands is not a party to it?
Decision
The court took as its starting point that the welfare of the child
should be the paramount consideration in deciding the application. That
was required by the IA. However, in interpreting that requirement, the
court should have regard to the international law obligations of the
Cook
Islands, including those arising under customary international law. It
was at least arguable that the HC formed a principle of customary
international law against child abduction, in which case its principles
would be relevant to the court's decision, since customary
international law automatically forms part of the domestic law.
In any event, independently of the HC and the existence of orders in
the home jurisdiction, it will often be in the best interests of the
child to have questions of custody determined in the home country.
Therefore, there is a presumption in favour of returning the child to
the home country unless the remover can prove it is not in the best
interests of the child to do so.
On the facts, the court found that R had failed to rebut the
presumption in favour of returning C to her home country, New Zealand.
It took note of the fact that the allegations made by R against A had
been carefully scrutinised and dismissed by the New Zealand court. It
also took account of the injustice to A caused by R's breach of the New
Zealand court orders, and the undesirability of allowing R to benefit
from her breach. The court ordered that C be returned to New Zealand.
Comment
The question of the applicability of the HC in countries which have not
ratified that Convention has provoked different responses in different
Pacific jurisdictions. In Wagner
v Radke [1997] WSSC 6, 1 PHRLD 67, the
Supreme Court of Samoa took account of the HC principles as a matter of
customary international law, which forms part of the domestic law of
the country without any need for ratification or implementing
legislation. However, in Gorce
v Miller [2003] TOSC 46, 1 PHRLD 8, the
Supreme Court of Tonga considered that the HC was not applicable in
that country, as Tonga had not ratified it. Even so, it found it was in
the best interests of the child to be returned to her home country,
Australia.
In Marsters v Richards,
the court avoided having to rule conclusively
on whether the principles of the HC had become part of the domestic law
of the Cook Islands as a matter of customary international law. Its
finding suggested that the result would have been the same either way,
because even if the HC were not applicable, it would still be in the
best interests of C to be returned to New Zealand. It also indicated
that it should generally be in the best interests of the child to be
returned to the country of normal residence. This approach reduces the
difference between decisions made under the HC and those applying a
general test of the best interests of the child.
The court was also spared the need to decide whether a parent who
merely had access rights could invoke the HC. Williams CJ noted the
more liberal view of New Zealand courts which extends HC protection to
a parent with access rights, and the strong criticism from commentators
and the English courts that this applies the HC more broadly than was
intended. In the final event, A did not need to rely on HC principles,
as the case was determined on general ‘best interests' principles.
CHILDREN / ABUSE OF
PROCESS
A lengthy delay in prosecuting a
person can amount to an abuse of process where the delay would
prejudice the defence. Where the accused is a child, the need for
urgency is even greater. In such cases, a court may permanently stay
the prosecution.
R v SETAGA
International instrument
and laws considered
Convention on the Rights of the Child (CRC)
Constitution of Tuvalu (CT)
Interpretation and General Provisions Act (Cap 1A)
Facts
The case concerned a boy alleged to have defiled a girl under the age
of 13. The victim was 7 years old when the offending occurred. The
accused was 13 years old at that time. The case was committed for trial
in the High Court some 4½ years after the commission of the alleged
offence, by which time the accused was 18 years old. He applied to have
the proceedings permanently stayed on the basis of unreasonable delay
in prosecuting the case.
Issue
• Should the court
exercise its discretion and stay proceedings permanently due to
unreasonable delay?
Decision
The court found that the accused boy had been interviewed by the police
in October 2003 and again in December 2003. The victim's statement had
been taken in October 2003. An eye witness had given her statement
before the end of 2003. The police re- interviewed the accused in 2004.
He was not committed to trial until 2008. No valid reason was offered
for the delay.
The court held that a person must be prosecuted within a reasonable
time. Reasonableness in any case depends on the nature of the offence
and of the person involved. In cases where a child is involved or is
the accused, the need for promptness is very important.
The court concluded that it had the inherent right to prevent abuse of
process and to stop the prosecution of an action if the prosecution has
manipulated or misused the process of the court. It can also do so
where there has been inexcusable delay which has prejudiced the accused
in defending the proceedings. This being an example of the second
category, the court stayed the proceedings.
Comment
CT s22 provides that a person should be given a fair hearing within a
reasonable time. CRC Article 40 provides that every child accused of an
offence should have the matter determined without delay by a competent
and independent tribunal in a fair hearing. Reasonableness, when it
applies to the trial of children, must be read with the CRC in mind. At
the end of the day, the court considers whether a fair trial is
possible. If there is a significant risk of prejudice or injustice, and
the delay was due to the actions of the police, that would amount to
abuse of process and the court will stay proceedings.
A delay in bringing a child to trial may harm the child's wellbeing or
development while he or she is waiting to have their case determined;
it may also mean that memories of the event in question will be
impaired. In this case, a critical issue at trial would have been the
capacity of the accused when 13 to appreciate the criminality of his
conduct. The 4½ year delay would have made that very difficult to
assess in hindsight.
CHILDREN / CORPORAL
PUNISHMENT
Violence against children in any
form should attract serious criminal penalties, to recognise the
infringement of the child's rights and to deter others.
STATE v KRISHNA
International instrument
and law considered
Convention on the Rights of the Child (CRC)
Penal Code (Cap 17)
Facts
The respondent was a Head Teacher. He was found guilty of common
assault. He had inflicted corporal punishment on a 14 year old student
by caning her palm with a wooden stick. The Magistrate granted the
accused an absolute discharge but gave no reasons for the decision. The
State appealed.
Issue
• Whether the absolute
discharge could satisfy the sentencing principle
of deterrence.
Decision
Because of their vulnerability, children need to be protected from any
form of violence. The CRC comprises international standards for
ensuring the rights of children including protecting children from
violence. The court said that addressing violence against children
requires us to
recognise children as fully-fledged rights holders. He said that
children have to be guaranteed their right to physical, mental and
sexual integrity as well as their dignity. The belief that adults have
unlimited rights in the upbringing of a child compromises any approach
to prevent violence being committed within the home, school or state
institution. For lasting change, attitudes that condone or normalise
violence against children need to be challenged. Taking into
consideration that background, the judge held that the prime sentencing
principle for this case was deterrence. His Lordship stated that ‘the
punishment that fits this crime is for you and others to know and be
constantly reminded by the sentence imposed that violence against
children is unacceptable.'
An absolute discharge is an exceptional order and is reserved only for
those cases where the offender had no moral culpability or where there
was only a technical breach of law and the consequences of a conviction
were disproportionate to the gravity of the offence. Even though the
respondent had unselfishly devoted his working life to educating
children, this was not a technical breach of law but a deliberate act.
The judge held that there could be no dispute that the accused and
others should be deterred from such violence against children by the
entry of a conviction. As the absolute discharge was not supported by a
reasoned judgment it was in error and was quashed. The respondent was
convicted and fined $300.
Comment
The sentence imposed reflected the court's complete abhorrence of any
violence against children. In closing, the court was at pains to stress
that those who inflicted harm on children would be given harsh
sentences, with imprisonment being the usual consequence of their
actions.
See also the decision of the Samoa Court of Appeal in Attorney General v Maumasi
1 PHRLD 2.
CHILDREN / CUSTOMARY
RECONCILIATION
The custom of offering a young
girl as reparation to the family of a person killed by an offender was
contrary to the Convention on the Rights of the Child and should no
longer be practised.
PUBLIC PROSECUTOR v NAWIA
International instrument
and law considered
Convention on the Rights of the Child (CRC)
Constitution of Vanuatu (CV)
Facts
The accused (A) was convicted of causing death by reckless driving and
driving under the influence of alcohol, after the truck he was driving
left the road, and two of the five passengers riding on the open tray
of the truck were killed. He appeared in the Supreme Court for
sentencing. In the course of the sentencing proceedings, the court was
informed of the elaborate customary reconciliation ceremony that A
performed to the chiefs and relatives of the deceased. Along with
quantities of food, cloth, mats and cash, A had also offered a young
girl as part of the compensation, in accordance with custom on Tanna.
Issues
• What was the appropriate
sentence?
• Was it appropriate to include a child as part of the compensation?
Decision
The court sentenced A to two years imprisonment, suspended for two
years, and to two years disqualification from driving. In light of the
custom compensation already handed over, A was not required to pay any
further compensation.
However, the court expressed its strong disapproval of the practice of
offering a girl as compensation, which it likened to child trafficking.
It said that the practice ‘objectifies and devalues the women of Tanna
and denies them their fundamental rights to humane and equal treatment,
to life, liberty and security of the person.' Having referred to the
CRC and CV Article 5, the court went on to state:
Young girls must not be
treated as mere objects or commodities that can be swapped or exchanged
under any circumstances and for whatever reason, and a customary
practice that treats them in that abject manner is inhuman and cannot
be founded on Christian principles. Such practices should not be
sanctioned by the law which exist (sic) for the protection of all.
The court directed that the girl be returned forthwith to her parents.
Comment
Although the practice of providing a girl child as compensation or
reparation only came to notice incidentally, the Supreme Court took a
strong stand in condemning the customary practice and ruling that it
was unlawful. Previously, the Vanuatu Court of Appeal had expressed the
view in Public
Prosecution v Mulonturala [2009] VUCA 38 that such use of
a child to deal with the responsibilities of adults was ‘abhorrent and
unacceptable.' However, that court had not specifically declared it
unlawful; it only declined to take the practice into account in
mitigation.
Perhaps because of the way in which the matter arose in the Nawia case, the
court did not address some of the assumptions that underpinned its
conclusions. In particular, it did not explain why the CRC and CV were
thought to have ‘horizontal application' – that is, that they applied
to private individuals in their dealings with other private
individuals. This issue is discussed further in the comment on Ulufa'alu v Attorney General
(reported later in this volume). Nor did the court explain how it had
power to direct the persons in control of the girl, who were not
parties to the proceedings, to return the girl to her parents.
CHILDREN / EVIDENCE
A statutory requirement that a
conviction cannot be based solely on the uncorroborated unsworn
evidence of a child was contrary to the guarantees of equal protection
of the law and non-discrimination in the Fiji Constitution.
Accordingly, the requirement was struck down as unconstitutional.
STATE v AV
International instrument
and laws considered
Convention on the Rights of the Child (CRC)
Constitution of Fiji 1997 (CF)
Criminal Procedure Code (Cap 21) (CPC)
Juvenile Act (Cap 56) (JA)
Facts
The accused was convicted in the Magistrates Court for rape of a four
year old girl. The case was transferred to the High Court to impose an
adequate sentence. When the case was called before the judge, he noted
that the accused had been prosecuted and convicted on the
uncorroborated evidence of a child witness, which was expressly
prohibited by JA s10. The State submitted that this provision in the JA
was unconstitutional because it discriminated against children of a
certain age and prevented equality before the law. The accused
submitted that the provision was constitutionally valid and that
non-adherence to its procedural requirements rendered the conviction
unsafe.
Issue
• Does the different
treatment of children's unsworn evidence under JA s10 infringe the
guarantee of equality before the law and the right to
non-discrimination on the grounds of age in CF s38 (1) and (2)?
Decision
The court ruled that JA s10 was unconstitutional and should be struck
down. Further, the common law requirement to give a corroboration
warning in relation to the evidence of children was also
unconstitutional. The conviction entered against the accused was
confirmed.
The court pointed to the discriminatory treatment of children as
witnesses, compared to adults. JA s10 required a magistrate to assess a
child's competency before allowing the child to give evidence. If the
child gave unsworn evidence, the accused could not be convicted on that
evidence if it was uncorroborated. Further, the common law required a
warning to be given about the dangers of convicting on the
uncorroborated evidence of a child, when giving sworn evidence. By
contrast, adults are presumed competent to be witnesses, have the
option of giving evidence on oath or affirmation, and are not subject
to a corroboration warning.
The court held that this differential treatment was based on myths and
stereotypes about children, which are not supported by judicial
experience or social science research. Different treatment without a
rational reason offends the requirements of equal protection of the law
and non-discrimination in CF s38(1) and (2).
The impact of the discrimination was grossly unjust to children who
were violated but denied access to justice. A law that prohibits the
conviction of those who commit crimes against children deprives the
children of their right to due process of law. It should therefore be
struck down. To do so is consistent with the CRC which Fiji ratified in
1993. By ratifying the Convention, the State is obliged to take all
appropriate legislative measures to protect children in Fiji from all
forms of physical or mental violence, injury or abuse, or exploitation
or sexual abuse. The Convention also allows for judicial involvement to
carry out the protective measures for children.
The court's only obligation in relation to children's evidence is to
remind child witnesses of the importance of telling the truth before
receiving their evidence. Their evidence should then be assessed like
the evidence of any other witness without the requirement for
corroboration or a warning.
Comment
The court drew a parallel with the former requirement to issue a
corroboration warning in relation to the evidence of the complainant in
the trial of sexual offence. In Balelala v The State 1PHRLD 4, the Fiji
Court of Appeal struck down this requirement on similar grounds – that
it was based on myths and stereotypes which could not be justified and
which operated in a discriminatory way against female complainants.
JA s10 had been derived from an English provision which was repealed in
England in 1988. The law in England has been reformed so that children
under 14 are presumed competent to give unsworn evidence, and there is
no requirement for corroboration, or a corroboration warning, in
relation to their evidence. Similar legislative reforms had taken place
in most common law countries. In Fiji, these reforms have effectively
been achieved by the court applying provisions in the Bill of Rights.
The ruling should lead to the better protection of children, or at
least the prosecution of those who violate them. Sexual crimes against
children are more often than not committed in stealth when no one is
around. The removal of the corroboration requirements will rightly
focus on the primary issue – whether the particular child's evidence,
set against the totality of the evidence, is to be believed.
CHILDREN / EVIDENCE
An admission to a crime made by a
child in police custody in the absence of a parent or other appropriate
adult will be inadmissible in the trial unless it was a truly
spontaneous statement.
POLICE v VAILOPA
| Court of Appeal |
Samoa |
| Baragwanath, Fisher, |
[2009] WSCA 11 |
| Slicer JJ |
9 October 2009 |
International instrument
and laws considered
Convention on the Rights of the Child (CRC)
Young Offenders Act 2007 (YOA)
Evidence Ordinance 1961
Facts
The accused (A), a 16 year old boy, was charged with murder. The trial
judge ruled inadmissible the police evidence of three admissions of
guilt allegedly made by A following his arrest and detention. The first
and third statements were excluded because the trial judge did not
accept the police evidence as to what had occurred. The second
statement was excluded because it was made in the absence of a
supporting adult. The Attorney General appealed against the exclusion
of the statements.
Issue
• Whether the admissions
should have been admitted.
Decision
The Court of Appeal affirmed the decision of the trial judge to exclude
all three statements. The court broadly followed the reasons of the
trial judge in relation to the first and third statements.
On the second statement, the court ruled that the statement taken in
the absence of a parent or other supporting adult must be excluded for
a number of reasons:
(1) YOA s9 gave a child
the right to have a parent or family member present at the hearing of
proceedings against the child. This policy should be considered by the
courts when determining the common law applicable to analogous
situations such as the prior investigation of the offence.
(2) New Zealand criminal procedure law, which is applicable in the
absence of Samoan provisions, excludes the admissions of children not
made in the presence of a lawyer, parent or other supporting adult
unless the admission is a truly spontaneous statement.
(3) The overall thrust of the CRC, which Samoa has ratified, points in
the same direction as New Zealand law. The courts' presumption is that
a state's domestic law is construed in a manner that will align with
its international obligations.
(4) The law in Australia and other Pacific countries is similar to that
in New Zealand.
Comment
The case strongly endorsed the point that the provisions of the CRC
should be used to support children's rights. The Court of Appeal cited
with approval the extensive Pacific case law set out by the trial
judge, Nelson J, which showed the application of CRC and its
philosophies in a wide range of circumstances.
CRC does not explicitly provide that children should only be
interviewed in the presence of a parent or other appropriate adult.
However, the High Court of Tuvalu in Simona v R [2002]
TVHC 1 implied such a right from Article 40 (2)(b)(ii) which states:
Every child alleged as or
accused of having infringed the penal law has at least the following
guarantees:
(ii) To be informed promptly and directly of the charges against him or
her, and, if appropriate, through his or her parents or legal
guardians, and to have legal or other appropriate assistance in the
preparation and presentation of his or her defence.
This case sends a timely message to arresting authorities that they
cannot simply obtain confessions from young persons in the absence of
parents or other supporting adults and expect the court to allow them
to be used in evidence. Children are particularly vulnerable in the
stressful situation of an interview in custody and need the assistance
and support of an adult who has their interests at heart.
CHILDREN / SEXUAL ABUSE
The State's obligation to protect
children from sexual abuse, arising under the Convention on the Rights
of the Child, justified a stern sentence for a person convicted of
child abuse.
POLICE v FAIGA
International instrument
considered
Convention on the Rights of the Child (CRC)
Facts
The accused (A) lured an 8 year old girl (C) to a vacant property where
he used his index finger to fondle her genitals and buttocks. A was
found guilty on a charge of indecent assault. He showed no remorse,
although his mother apologised to C's aunt. A was banished from his
village because of the incident.
Issue
• What was an appropriate
sentence for the offence?
Decision
The court sentenced A to a three year custodial sentence after noting
the provisions of the CRC and the need to protect children against the
prevalence of sexual abuse. The court viewed offending against young
and vulnerable children as serious and deserving of stern sentences.
The court also took into account the effect imprisonment would have on
A's family and the apology by A's mother to C's aunt.
Comment
There are some uncomfortable aspects of the decision such as the weight
given by the court to the effect a prison sentence would have on A's
family and the apology or ifoga made to the relative of C. This
undermines the strength of the court's remarks about the need to
protect children and to review the maximum penalties for child abuse.
Given the circumstances, the sentence A received was lenient.
Even so, the court's questioning of the adequacy of the current
penalties for child abuse was welcome. Although Samoa ratified the CRC
in 1994, it has not yet revisited the maximum penalties for offences
against children. There was a clear suggestion that the recently
established Law Reform Commission might undertake such a task, to
ensure that Samoa fulfils its obligations to protect children as
required by Articles 19(1) and 34 of the CRC.
CHILDREN / SEXUAL ABUSE
In sentencing an offender for a
sexual offence against a child, the court's primary duty is to protect
children. However, it may also take account of the offender's guilty
plea, harsh treatment in detention and previous good character.
R v TEOKILA
Law considered
Penal Code (Cap 8)
Facts
The accused (A) pleaded guilty to one count of defilement. A was 21
years old. The complainant
(C) was 6 years old. A was second cousin of C's father. The offence was
committed when the accused was very drunk. That there was a forcible
assault was very clear from the evidence. The little girl suffered
serious injuries to her face and head including a cut beneath the right
eye and a black eye. She was bleeding from both ears. The forced sexual
intercourse had left her with three tears to her genital area including
tearing from her vagina through to her anus.
Issue
What was the appropriate sentence for a first offender convicted for
such an offence against a very young victim?
Decision
A was sentenced to imprisonment for a term of six years, reduced by six
months for the time already spent in custody prior to sentencing. The
court's primary duty was to protect children from abuse and the
sentence must reflect this. However, A had pleaded guilty and shown
remorse. He had been handcuffed to a tower and abused by members of the
public whilst in police custody. He received injuries during this
episode of being tied to the tower. The court took into account his
previous clean record and the fact he acted out of character.
Comment
The facts could easily have resulted in a charge of rape and conviction
for rape. However, as this was a case of a young girl who could not
have consented to sexual intercourse due to her tender age, the accused
was sentenced on that basis. Both offences carried a maximum penalty of
life imprisonment.
The sentence might on paper appear unduly lenient but the court had the
advantage of seeing the accused and hearing mitigation first hand. In
particular, it took into consideration remorse shown by the accused. He
was also likely to be shunned by the community and live an isolated
life after release.
Interestingly, the court considered that getting drunk and then
committing a crime as a serious
aggravating factor.
The court did not approve of the police allowing members of the public
to assault A while he was in custody. It took that into account in
determining A's sentence. It referred the matter to the Commissioner of
Police with a direction to investigate the police conduct and report
back to the court.
LIBERTY
LIBERTY
A defaulting debtor should not be
imprisoned unless proved to have
the ability to pay and to have deliberately defied a court order to pay.
NAYLOR v FOUNDAS
| Court of Appeal |
Vanuatu |
| Lunabek CJ; Robertson, |
[2004] VUCA 26 |
| von Doussa, Fatiaki, |
5 November 2004 |
| Treston, Saksak JJ |
|
International instruments
and laws considered
Universal Declaration of Human Rights
International Covenant on Civil and Political Rights (ICCPR)
Constitution of Vanuatu (CV)
Debtors Act 1869 (UK) (DA)
Facts
The respondent (R) obtained judgment against the appellant (A) for a
sum in excess of VT2.5 million, together with interest at the rate of
5% and costs on a party and party basis. A was ordered to pay VT100,000
per month until the judgment debt was wholly paid. A made no payments
under the order for over three years. The court then ordered A to pay
the full amount due (almost VT4.5 million) within 5 days, and that in
default of payment A should be arrested and detained. A appealed
against the order for her detention in the event of default of payment.
Issue
• Whether the court should
have ordered A's detention for default in
payment of a debt.
Decision
The appeal was allowed. The court held that imprisonment for making
default in payment of a sum of money has never been the law in Vanuatu.
That position had been established by DA which was in force in Vanuatu
at Independence and continued to form part of domestic law.
Imprisonment for inability to pay a debt is also recognised as a
serious breach of the international human right to liberty, recognised
in the UDHR and ICCPR Article 11, which states that ‘no person shall be
imprisoned merely on the ground of inability to fulfil a
contractual obligation.' Although Vanuatu had not ratified ICCPR, the
same conclusion could
be drawn from CV Article 5 (1)(b) (c) and (e), which recognise the
fundamental rights and freedoms of liberty, security of the person and
freedom from inhuman treatment.
The court has a power to punish for civil contempt, where there has
been a deliberate failure to do something that is in the power of the
defendant to do, but which the defendant, in defiance of the order,
chooses not to do. A judgment debtor who is too poor to pay the
judgment debt is not deliberately defying the order to pay, so
imprisonment should not be ordered. That would only be appropriate
where there is clear evidence that the debtor had the means to pay, but
chose not to pay. Here A clearly did not have the means to meet the
judgment debt.
Comment
There was little doubt that the court had been wrong to order detention
in the event of non- payment. That response must be confined to cases
of deliberate defiance of a court order to pay. See, to similar effect,
In re Eroni Delai
[2000] FJHC 56, 2 PHRLD 65.
LIFE
LIFE / DISCRIMINATION
The constitutional guarantee of
life in Samoa only prohibits the intentional deprivation of life; it
does not prohibit State action which might have an unintended harmful
impact on human life.
JACKSON v ATTORNEY GENERAL
International instruments
and laws considered
International Covenant on Civil and Political Rights (ICCPR)
European Convention on Human Rights (ECHR)
Constitution of Samoa (CS)
Road Transport Reform Act 2008 (RTRA)
Facts
The majority of vehicles in Samoa were designed to be driven on the
right hand side of the road (‘left hand drive vehicles'). The effect of
the RTRA was that from 7th September 2009, drivers
in Samoa would be required to switch from driving on the right hand
side of the road to driving on the left hand side. The applicants (A)
were citizens who objected to the proposed switch. They brought
proceedings seeking a declaration that the provisions in the RTRA
requiring the switch were unconstitutional. They argued that the switch
‘poses a known and real risk of direct and immediate threat to life'
and as such infringes the guarantee of the right to life expressed in
CS Article 5(1). Further, the switch was said to discriminate against
the drivers of left hand drive vehicles, by requiring them to drive on
the side of the road for which their vehicles were not designed, so
infringing the guarantee against discrimination in Article 15.
Both A and the Attorney General called evidence from experts as to the
likely impact of the switch on fatalities arising from traffic
accidents. The court concluded that many factors combined to cause an
accident, and the switch would at most be one of many causes of future
accidents. The evidence established that there would probably be an
increase in the number of accidents, but that it was not proved that
this would mean an increase in the number of fatalities, as there was
no necessary correlation between accidents and fatalities. Further, the
remedial measures already taken or to be taken by the government would
reduce but not eliminate the increased risk of more accidents arising
from the switch.
Issues
• Did CS Article 5(1)
apply to unintentional taking of life?
• Was there discrimination of the kind prohibited by CS Article 15?
Decision
The court ruled that Article 5(1) only applied to intentional
deprivation of life. The language of
the provision was clear:
No person shall be deprived of his life intentionally, except in
execution of a sentence of a court following his conviction of an
offence for which this penalty is provided by the Act.
It was also clear from the Constitutional Convention Debates that the
framers of the Constitution
intended this clause should only apply to intentional deprivation of
life.
Although there are cases decided under the ECHR which conclude that
Article 2 of that Convention includes protection from unintended death (Osman v UK (2000)
29 EHRR 245 and Makaratzis
v Greece (2005) 41 EHRR 49), those cases were based on the
different language of Article 2. In any event, Osman was a
controversial decision which has not been followed in some other
countries such as the USA and Ireland. While the court should have
regard to international Conventions when construing the rights
protected in the Constitution, in this case it was constrained by the
clear words of the section.
The court also declined to imply a right to be free from unintended
deprivation of life, as there was nothing in the terms or structure of
the Constitution to require such an implication. Even if there were
such a right, it could not be absolute. Otherwise the State would have
endless obligations which it could not practicably meet.
The claim for unconstitutional discrimination also failed: ‘there is no
inequality between the driver of a left hand drive vehicle and the
driver of a right hand drive vehicle. Both are subject to the same set
of rules, the same set of laws.' Further, A was unable to show that the
disability or restriction of a left hand drive driver was based on
‘descent, sex, language, religion, political or other opinion, social
origin, place of birth or family status' as required by CS Article
15(2).
Comment
While the court accepted that a liberal interpretation of
constitutional rights should generally be adopted, and that
international human rights standards should be considered, the process
of interpreting the constitution must still respect the language in
which rights are expressed. Here it was clear that the constitution
expressly protected against intentional
deprivation of life. As there was no suggestion that the new law
allowed for or caused an intentional deprivation of life, the argument
could not succeed on the express terms of Article 5(1).
It was also difficult, given the language used, to establish an implied right to be
protected from unintentional deprivation of life. The court explained
when an implied right might be recognised. It acknowledged that
implying a right should not be done lightly; it required ‘clear and
persuasive reasons and a basis for doing so.' The language used in the
Constitution is the result of long and carefully considered process,
and it should not be readily added to by implication. ‘If such a course
of action be necessary in order to give [the Constitution] working
effect, the court will not hesitate to do so but the case for that must
be clear, obvious and without question.'
Implying a right to protection from the unintended deprivation of life
is difficult where the Constitution expressly protects against intended
deprivation. If both were intended, then why was only one mentioned?
But in other circumstances, rights may be based on implication. See for
example the decision of the Court of Appeal of Samoa in Samoa Party v Attorney General,
reported immediately below this comment. There the court found implied
rights to participate in and to enforce free and fair elections.
POLITICAL RIGHTS
POLITICAL RIGHTS /
DISCRIMINATION
A law that limited the rights of
unsuccessful candidates to dispute the validity of an election did not
interfere with the rights of the candidates to a fair trial to
determine their civil rights, deprive them of the equal protection of
the law, nor infringe an implied constitutional guarantee of free and
fair elections.
SAMOA PARTY v ATTORNEY GENERAL
| Court of Appeal |
Samoa |
| Baragwanath, Slicer, |
[2010] WSCA 4 |
| Fisher JJ |
7 May 2010 |
International instrument
and laws considered
European Convention on Human Rights Constitution of Samoa (CS)
Electoral Act 1963 (EA)
Facts
The appellants (SP) were a political party and unsuccessful candidates
at a general election. They challenged the proviso to EA s105(c) on the
basis that it breached the CS. The proviso prohibited losing candidates
from challenging the results of an election if they received less than
50% of the votes received by the successful candidate. SP alleged that
it encroached on their right to a fair trial to determine their civil
rights and obligations under Article 9; that it breached Article 15 in
being discriminatory and so deprived SP of equal protection under the
law; and that it was contrary to an implied constitutional right of
voters to participate in elections which are free and fair and an
implied constitutional right to bring an election petition to ‘enforce'
free and fair elections. The case was dismissed at first instance by
Sapolu CJ. SP appealed to the Court of Appeal.
Issue
• Did the proviso to
s105(c) of the EA breach Articles 9 and 15 of the CS and the implied
constitutional rights alleged by SP?
Decision
The court dismissed the appeal.
It held that the right to vote and the right to challenge an election
were statutory rights created by EA rather than constitutional rights.
If EA did not give rights to SP to challenge these elections (because
SP did not satisfy the proviso) then they had no justiciable rights
protected by Article 9 of the CS.
The court concluded that there was no breach of Article 15(1) because
there was no relevant discrimination. When read with Article 15(2), it
was clear that Art 15 is concerned with discrimination based on
deep-seated personal characteristics such as descent, sex, language or
religion, rather than discrimination based on failure to meet a certain
percentage vote at a particular election.
Finally, the court accepted that the CS implicitly required adequate
systems calculated to secure free and fair elections. This was a matter
of ‘public entitlement' rather than human rights. The requirement was
to be assessed on a test of ‘substantial adequacy.' Overall, the court
was not persuaded that the measures in EA failed that test. The court
acknowledged the existence of other mechanisms in Samoa for challenging
an election: election petitions could be brought by candidates who met
the proviso requirements or by the Election Commissioner, and criminal
prosecutions could also be brought under EA s103. Given the limited
public resources in Samoa,
the restrictions in the proviso, intended to limit expenditure on
election petitions, were not
disproportionate.
Comment
The court apparently felt some discomfort with the nature of the
unusual restrictions imposed in
the proviso to s105(c). It commented:
It is at first sight
striking that there should be removed from the Samoan electoral regime
the general right to bring an election petition that entered the law of
England in 1769 and for which counsel for the Attorney could offer no
equivalent in any comparable jurisdiction. Every state must equip
itself with safeguards against the election of persons who are
disqualified from standing or who engage in corrupt practice. How can a
system provide meaningful protection against infringement if not merely
voters but even some candidates are not free to bring an election
petition? (Footnotes omitted.)
Later, having upheld the measure, the court gently invited a
reconsideration of the law when it
remarked:
Certainly to restore to
voters, or even to runners-up, the right to bring an election petition
would provide still greater protection of the public interest in free
and fair elections.
The proviso is certainly unusual, and probably unique. It could even be
said to promote greater irregularities in the voting system, in that a
massive victory procured improperly will be more secure than a modest
one. It might also be expected that other more rational means might
have been available to deter unmeritorious challenges, such as by
awarding costs. However, the court deferred to the judgment of the
legislature in accepting that the measure was not disproportionate to
the goal of reducing the number of electoral petitions. While it is
widely accepted that the courts should allow a ‘margin of appreciation'
to the legislature in determining appropriate responses to national
issues, a more critical approach can be justified in relation to
electoral matters: unless the legislature has been freely and fairly
chosen to represent the people of the country, its legitimacy is
diminished, and so, in a democracy, is less deserving of deference.
The case has broader significance in showing that Pacific courts may be
willing to imply constitutional limitations or rights additional to
those expressly set out in the Bill of Rights. These are likely to be
of a relatively general nature, with imprecise standards, but they
present new opportunities for creative counsel.
PRIVACY
PRIVACY / UNLAWFUL SEARCH
AND SEIZURE
A secret recording by a
participant in a conversation relating to serious criminal activity was
not a breach of the right to privacy nor an unlawful search or seizure;
accordingly, the recording was
admissible in evidence in the criminal trial of the other participant
in the conversation.
SINGH v STATE
| Supreme Court |
Fiji Islands |
| Mason, Handley, |
[2008] FJSC 52 |
| Weinberg JJ |
18 December 2008 |
International instrument
and laws considered
European Convention on Human Rights Constitution of Fiji 1997 (CF)
Constitution of United States of America
Canadian Charter of Rights and Freedoms
New Zealand Bill of Rights
Facts
The appellant (A), who practised law in Fiji, was charged with
attempting to pervert the course of justice. He was representing a
client (K) who was an officer employed by the Land Transport Authority.
K was charged with corruptly seeking $200 from an owner of a vehicle
(N) so the vehicle could be registered with the Authority
N had informed the police that A had approached him, asking him to
alter his evidence against
K. After consulting the Director of Public Prosecutions, the police
gave a digital recording device to N. The next day A met N and
suggested that N change some of his evidence. Without A's knowledge, N
taped the conversation.
It was on the basis of this conversation that A was charged with
attempting to pervert the course of justice. The High Court ruled that
the taped conversation was admissible. A then pleaded guilty on an
agreed basis that he could contest the admissibility of the recorded
conversation on appeal. A's appeal to the Court of Appeal was
dismissed. A then appealed to the Supreme Court.
A argued that the recording was an unreasonable search and/or an
unreasonable seizure of his property contrary to CF s26(1) and
therefore the evidence was inadmissible under CF s28(1)(e). Further he
argued that the secret taping of the conversation at the instigation of
the police was a violation of his right to privacy guaranteed by CF
s37. The State denied that such rights were violated. In any event, if
the recording was unlawfully obtained, the interests of justice
required it to be admitted.
Issue
To what extent is the State permitted or justified in conducting covert
surveillance with or without a warrant having regard to the provisions
of CF ss26, 28(1)(e) and 37 of the Constitution of Fiji?
Decision
The court held the tape recording was admissible.
The court considered that there had been no search or seizure in this
case, and so CF s26 was not applicable.
Nor had there been a breach of A's right to privacy under CF s37. The
right is not unlimited, and its scope is informed by the standards of
the community. It depends on what degree of privacy can reasonably be
expected. One aspect of that assessment is the state of the law. In
this regard, it was noted that Fiji has no statutory prohibition on the
use of surveillance devices. The court concluded that participant
recording in relation to serious criminal activity does not entail an
unconstitutional breach of the privacy of the accused person in light
of current standards of Fijian society.
As there was no illegal or unconstitutional conduct in obtaining the
recording, there was no valid objection to its admission in evidence.
Comment
In the United States, Canada and New Zealand, the legality of
‘participant recording' is considered under the guarantees against
unreasonable search and seizure. Yet in the Fijian context, the Supreme
Court adopted a narrower view of search and seizure, implying that it
only applied to the ‘taking of property or other form of trespassory
conduct.' Apparently, it considered that the express protection of
privacy, present in the Fijian constitution but not in the other Bills
or Charters of Rights, precluded the need for the broader
interpretation of search and seizure found elsewhere.
Even so, when dealing with the right of privacy, the court still
considered the overseas cases on search and seizure to be relevant, as
they were influenced by privacy considerations. The court noted that
not all cases speak in unison. In Canada, such evidence would be
regarded as obtained by an unlawful search or seizure, since people may
reasonably expect that their private conversations are not recorded
without their consent. Even so, such evidence may still be admissible
under the exercise of judicial discretion. By contrast, the law in both
New Zealand and the United States would not regard the evidence as
having been unlawfully obtained.
Ultimately, the court preferred the view applied by the courts in New
Zealand, where the crux of the enquiry is whether the intrusion of
privacy was unreasonable. That involved considering the public interest
as well. It is in the public interest that serious crime should be
detected. An attempt to pervert the course of justice is a serious
crime: it strikes at the heart of the rule of law. Recording provides
for an accurate account of a conversation and, therefore, reliable
evidence. These factors were seen to outweigh the right of the
individual to determine who hears what he or she has to say.
In the present case there was no illegality involved in obtaining the
evidence, as A had invited N into his car; whether the same principles
will apply where police trespass onto property to record a conversation
is still to be seen.
PRIVACY / PUBLICATION OF
SUSPECT'S PERSONAL DETAILS
Police may only publish the name,
address and image of a suspect where that is the only reasonably
available means of performing their duty to detect and detain suspected
offenders.
ATTORNEY GENERAL V YAYA
| Court of Appeal |
Fiji Islands |
| Byrne, Powell, |
[2009] FJCA 60 |
| Shameem JJA |
9 April 2009 |
International instruments
and laws considered
European Convention on Human Rights (ECHR)
Human Rights Act 1998 (UK) (HRA)
Quebec Charter of Human Rights and Freedoms (QC)
Constitution of Fiji 1997 (CF)
Police Act (Cap 85) (PA)
Facts
In 2003, the police published a list of ‘10 most wanted persons', who
were suspects in a series of violent robberies. The list included the
name, address and image of the respondent (R). The list appeared for
several days in news reports on television and radio and in a daily
newspaper. R subsequently pleaded guilty to a charge of robbery with
violence and faced other serious charges, including charges relating to
murder, rape, arson and robbery.
In 2005, R commenced proceedings for a declaration that, by authorising
the publication of the list of suspects, the Commissioner of Police had
breached R's right to personal privacy, and damages for humiliation,
loss of dignity and injury to his feelings. In defending the
publication, the Commissioner stated that it was the only option
available to the police ‘to get to the suspect persons and to enable
criminal investigations to commence.' The High Court found in R's
favour
and awarded damages for breach of constitutional rights, in the sum of
$4,000. The Attorney
General appealed against that decision.
Issues
• Did the publication of
the list breach R's right to privacy?
• If so, was it justifiable in the public interest?
Decision
The Court of Appeal upheld the decision of the High Court.
In determining the scope of the right to privacy protected by CF
Article 37, the court had regard to international human rights law,
including the ECHR, the HRA and the QC and decisions applying them. The
court acknowledged that human rights law had transformed the common law
right of privacy. It held that CF s37 protects information in respect
of which there is a reasonable expectation of privacy. The right to
privacy extends to information obtained by public bodies such as the
police. In this case, the information that R was a suspect in a violent
robbery was information which any reasonable person would expect would
not be disclosed to the public, at least until he had been questioned
and charged.
The right to personal privacy may be subject to such limitations
‘prescribed by law as are reasonable and justifiable in a free and
democratic society.' Those limitations can be prescribed by the common
law or by statute. In this case, the police purported to act under PA
17(3), which requires police to detect and bring offenders to justice,
and to apprehend persons for whose apprehension sufficient ground
exists. However, it was not enough that the police were acting for a
legitimate purpose:
It must be shown that the publication was proportionate to that aim. In
simple terms, was it necessary, was it justifiable, was it a
proportionate step to publish in this manner? The test of
proportionality must be narrowly construed once an intrusion into
privacy has been established.
Here, the Police Commissioner's evidence failed to explain why
publication was the only available option. It did not explain why other
options, such as going to R's known addresses, speaking to his
relatives or contacting the local police station to see if he could be
located there, were not available. If publication was the only option,
then it would have been justifiable, but this had not been proved.
Hence publishing the list could not be brought within a permissible
limitation on the right to privacy; the means used had not been shown
to be proportionate.
Once the breach of R's privacy was established, it was not necessary to
show that R had suffered harm or distress as a result of the breach. R
was therefore entitled to damages, as determined in the High Court.
Comment
The case illustrates how, once an interference with a right has been
shown, the burden shifts to the State to justify the infringement. The
courts increasingly use the test of proportionality to assess whether
the interference with rights is justifiable in a democratic society.
That test will
examine whether the State action was done for a legitimate purpose,
whether the means adopted to pursue that purpose were reasonably
necessary, and whether the benefits achieved by the State action
outweigh the harm caused by the interference with the rights. In
assessing ‘reasonable necessity,' courts are unlikely to simply accept
an assertion that there were no other available means of pursuing the
objective – there needs to be some evidence to support such a claim. If
the evidence is not conclusive one way of the other, the court will
generally accept a judgment by a legislature or the executive that is
at least reasonable. But there needs to be a factual foundation for the
judgment. In this case, the evidence of the Commissioner did not show
the police had tried all reasonable alternatives to detect and
apprehend the suspects. Consequently the court was justified in
concluding that the Attorney General had not adequately justified the
infringement of R's right of privacy. For decision makers, the lesson
is that they should look for solutions to problems that involve the
least possible intrusion on rights. For litigators, the case highlights
the need to ensure that the evidence reveals the factual basis for
assessing whether a response was proportionate.
PROPERTY
PROPERTY / RETROSPECTIVE
OPERATION OF LAW
A legislative amendment to a
taxation law which retrospectively extinguished a claim to a tax refund
did not amount to an unjust deprivation of property.
GROUPE NAIROBI (VANUATU) LIMITED
v
GOVERNMENT OF THE REPUBLIC OF VANUATU
| Court of Appeal |
Vanuatu |
| Lunabek CJ; Robertson, |
[2009] VUCA 35 |
| von Doussa, Saksak, |
16 July 2009 |
| Dawson JJ |
|
International instruments
and laws considered
Universal Declaration of Human Rights (UDHR)
First Protocol to the European Convention on Human Rights (FPECHR)
Constitution of Vanuatu (CV)
Value Added Tax Act (Cap 247) (VATA)
Facts
In April 2005, the appellant company (A) agreed to purchase leasehold
land from another company. It then sought a refund of approximately
VT14.6 million in Value Added Tax (VAT).
The claim was made on the basis that the land constituted ‘second hand
goods', for which a refund was payable under the VATA, even though A
had not yet incurred any liability to pay VAT. The refund was refused,
although the claim appeared to fall within the terms of the VATA. On 1
January 2006, Parliament passed an amendment to VATA, which purported
to exclude land from the definition of VAT, with effect from 1 August
1998, the date when the VATA came into force. The amendment, if valid,
gave legislative support for the refusal of the refund.
A argued that the retrospective change to the VATA infringed CV Article
5(j), which recognises the right to protection from unjust deprivation
of property. The trial judge ruled that there was nothing ‘unjust' in
the amendment, and dismissed the claim.
A appealed to the Court of Appeal.
Issue
• Did the amendment bring
about an unjust deprivation of property?
Decision
The Court of Appeal ruled that the amendment was valid, and provided
legal justification for
the refusal of the refund.
In interpreting the meaning of CV Article 5(j), the court referred to
UDHR Article 17 and cases decided under FPECHR Article 1. The latter
states:
Every natural or legal person is entitled to the peaceful enjoyment of
his possessions. No one shall be deprived of his possessions except in
the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties.
The court considered that Article 1 was in substance a protection
against unjust deprivation of property. It noted that Article 1
recognises that a State may interfere with the right under certain
circumstances, so long as the interference was lawful, served the
public interest, and complied with general principles of international
law. Further, the court said, Article 1 recognises that the levying of
taxes will not constitute a breach of the protection of property which
is otherwise guaranteed.
Relying on National and
Provincial Building Society v United Kingdom (1998) 25
EHRR 127, the court held that at the time of the amendment, A had no
enforceable right to a refund, as such a right only arose once a
favourable assessment had been made under the VATA. Therefore A's claim
for a refund was not ‘property' under CV Article 5(j).
Even if A's claim did amount to property, and there had been a
deprivation, it would still be necessary to consider whether the
deprivation was lawful, whether it was in the public interest,
and whether a reasonable and fair balance had been struck between the
public interest and individual rights. The court must allow Parliament
a wide margin of appreciation in determining where the public interest
lies, particularly in the allocation of public resources, as is the
case with taxation and welfare laws: James v United Kingdom
[1986] 8 EHRR 123. Although issues of compensation will sometimes
arise, in the case of tax laws this is unlikely, as changes in tax
rates and the scope of tax liability are necessary to meet changing
circumstances. In this case, the amendment was considered necessary to
protect the revenue from potentially large claims that had not been
anticipated. The balance of competing interests was a reasonable one,
and thus there was no ‘unjust' deprivation.
Comment
The case shows the value of resorting to international human rights
jurisprudence to clarify the meaning of the constitutional rights,
which are often expressed in rather general and imprecise terms. The CV
simply provided for protection from ‘unjust deprivation' of ‘property';
the meaning of those terms obviously required interpretation. Here, the
court found valuable guidance in the terms of the UDHR and FPECHR and
highly relevant decisions of the European Court of Human Rights in
interpreting them. The court justified their use by saying:
The fundamental human
rights recognised in these instruments have a common base, and
decisions from international human rights tribunals, and from the
Courts of countries which have human rights charters contribute to the
growing understanding of the protection which these rights afford. As
fundamental human rights are recognised by international law to be
universal in their application, the domestic courts of UN Members
States will look to decisions about fundamental human rights in other
States for assistance.
The court was alert to the need to ensure that the international
analogies were appropriate. In particular, it recognised that
Australian cases on the acquisition of property on just terms were
decided in a different context, as they were not concerned with a
guarantee of a fundamental right. By contrast, the European cases did
raise essentially the same issues, and provided useful guidance to the
court. The implication is clear: a sound knowledge of international
human rights law can prove invaluable to lawyers and judges in the
resolution of Pacific cases.
RELIGION
RELIGION / CUSTOMARY LAW
A restriction on the
establishment of any new religion on an island infringed the
constitutional guarantee of freedom of religion, notwithstanding the
constitutional protection of national values and culture.
TEONEA v PULE O KAUPULE OF
NANUMAGA
| Court of Appeal |
Tuvalu |
| Fisher and Paterson JJA; |
[2009] TVCA 2 |
| Tompkins JA (dissenting) |
4 November 2009 |
Law considered
Constitution of Tuvalu (CT)
Facts
Nanumaga is a Tuvaluan Island with a population of approximately 800
people. The majority are members of the Christian Church of Tuvalu
(EKT), with smaller numbers practising the Seventh Day Adventist,
Jehovah's Witnesses and Baha'i faiths. The appellant (A) was born in
Tuvalu but became a citizen of Fiji. He was a pastor in the Brethren
Church. He went to Nanumaga with his wife and another church leader.
Forty people from Nanumaga converted to the Brethren Church. On 4 July
2003 the Falekaupule (traditional assembly of elders) passed a
resolution banning new religions from being established on the island,
so that members of the Brethren Church were effectively prohibited from
practising their religion in Nanumaga.
The Brethren Church continued preaching, the upshot of which was that a
number of young men attacked the congregation and the church leaders
were finally forced to leave the island, leaving behind 59 converts.
A brought proceedings in the High Court seeking a declaration that the
resolution of the Falekaupule breached the CT and was therefore void.
The High court dismissed the application (see 2 PHRLD 83). A appealed
to the Court of Appeal.
Issue
• Whether the resolution
was a valid restriction on the freedom of
religion in the CT.
Decision
The Court of Appeal, by majority, declared that the resolution was
unconstitutional.
The court had to balance the competing interests of freedom of religion
and the preservation of Tuvaluan values or culture. Freedom of religion
is protected by CT s23. This freedom is subject to s29(4) and (5),
which allow for restrictions on the exercise of this right if the
exercise may be divisive, unsettling or offensive to the people; or may
directly threaten Tuvaluan values or culture. However, any such
restrictions must be reasonably justifiable in a democratic society
that has a proper respect for human rights and dignity. Similar
questions may arise in relation to freedom of expression (protected by
s24) and freedom of assembly (protected by s25).
The court concluded that in this case the constitutional freedoms
should take priority. It relied on a number of factors: the importance
of freedom of religion in a free society; the fact that the ‘culture'
on Nanumaga is an evolving one, and already subject to many outside
influences; the culture already recognised four foreign-sourced
religions or denominations; the measures
adopted by the Falekaupule went further than necessary to deal with any
intrusive conduct by the new churches; and more moderate measures were
likely to remove the threat of further violence from opponents of the
new church. Overall, the restrictions imposed by the resolution were
not reasonably justifiable in a democratic society.
Comment
This is an important decision dealing with the collision between
freedom of religion and the right of traditional leaders to preserve
the cohesiveness and traditional values of their communities. The
decision allowing a new church to be established is consistent with the
decision of the Samoan court in Lafaialii
v Attorney General 1 PHRLD 71.
It is important to appreciate that the court did not find that the
right to establish a new religion will always override the maintenance
of culture or traditional values. It is a question of finding an
appropriate balance between the competing interests. In this case, the
judges in the majority found that the measures taken by the Falekaupule
effectively negated A's freedom of religion; but less restrictive
measures may have been acceptable. For example, the Falekaupule could
have prohibited any religion from unsolicited proselytising – going to
people's homes uninvited, to try to convert them.
The third member of the court, Tompkins J, took a different view of the
effect the measures. He held that the elders had not stopped A and
others from practising their religion in private but only stopped them
from converting others. This made it easier to conclude that the
balance favoured the protection of traditional values.
There is always a danger that newcomers to a community, or new
practices within the community, may provoke a hostile response. But the
threat of a violent reaction to a lawful activity should not be used to
justify a ban on the lawful behaviour. Instead, measures need to be
taken on all sides to build acceptance, or at least tolerance, of
difference within the community.
RULE
OF LAW
Rule of Law / Criminal
Procedure
The Fiji Independent Commission
against Corruption had the same power as any other person to institute
criminal proceedings in the Magistrates' Court, but not in the High
Court.
FICAC v DEVO
Laws considered
Constitution of Fiji 1997 (CF)
Criminal Procedure Code (Cap 21) (CPC)
Penal Code (Cap 8) (PC)
Facts
The accused (A) was charged by the Fiji Independent Commission against
Corruption (FICAC) with five offences under the PC. A challenged the
laying of the charges on the basis that the power to prosecute lay
exclusively in the Director of Public Prosecutions (DPP) under CF and
that the purported conferral on FICAC of powers of prosecution was
unconstitutional – either because the President did not have the power
to make law by Promulgation, or because the Promulgation was
inconsistent with the terms of CF. The information containing the
charges should therefore be quashed.
Issue
• Could FICAC lay an
information against D in the High Court?
Decision
The court declined to rule on the power of the President to make law by
promulgation, as that issue was being considered more fully by another
court. It did find that under CF the DPP's powers to prosecute were not
exclusive. However, the information was quashed as the CPC only
provided for the laying of an information in the High Court by the DPP.
Unless and until the FICAC promulgation was determined to be valid,
FICAC had no power to do so. It would be up to the DPP to decide
whether to lay an information in the High Court. If not, FICAC could
proceed in the Magistrates' Court.
Comment
The decision was a careful balancing act by the court, as the legal
capacity of the President to legislate was yet to be determined at that
time. The court sought to resolve the case without relying on the
validity of the FICAC proclamation. It did so by finding that FICAC had
the same common law power as any other person to bring a prosecution in
the Magistrates' Court. However, only the proclamation gave FICAC the
power to do so in the High Court and the court declined to give effect
to that. Curiously, the court did not consider the argument that
without the proclamation, FICAC would not exist as a legal person, and
therefore would have had no capacity to initiate proceedings even in
the Magistrates' Court.
RULE OF LAW / DEMOCRACY /
HORIZONTAL APPLICATION OF RIGHTS
A person seeking redress for
breach of constitutional rights under the Solomon Islands Constitution
must show that the breach relates directly to or affects him or
herself; it is not enough that the rights of others have been breached.
ULUFA'ALU v ATTORNEY GENERAL
| Court of Appeal |
Solomon Islands |
| Lord Slynn of Hadley, |
[2004] SBCA 1 |
| McPherson and Ward JJA |
2 August 2004 |
Law considered
Constitution of Solomon Islands (CS)
Facts
The applicant (A) was the Prime Minister of the Solomon Islands in June
2000. On 5 June, members of the armed group known as the Malaita Eagles
Force, together with disaffected police officers, placed A under house
arrest and threatened his life if he did not resign. Acting under
duress, A tendered his resignation to the Governor General, who then
called a meeting of Members of Parliament (MPs) to elect a new Prime
Minister. On 30 June, the meeting elected Hon Manesseh Sogovare (S) as
Prime Minister.
In June 2001, A sought orders in the High Court declaring that A was
entitled to continue to act as Prime Minister until replaced in
accordance with the CS; that MPs and their families had been deprived
of their rights to liberty, security of the person and the protection
of the law under the CS; and that S had not been validly elected as
Prime Minister on 30 June 2000.
Palmer ACJ dismissed the application. A appealed to the Court of
Appeal. Before that court heard the appeal, a further Parliamentary
election was held, following which S was replaced as Prime Minister.
Issues
• Whether A had standing
to raise the alleged infringements of the
rights of MPs
and their families.
• Whether the election of S as Prime Minister was valid.
Decision
The Court of Appeal ruled that under CS s18(1), A could only allege a
breach of the Bill of Rights provisions in relation to acts done or
threatened to him. It was not enough that acts done or threatened to
third parties would have an effect on him. So A could not argue that
threats made against the MPs and their families infringed their
constitutional rights; the MPs and their families would need to bring
their own actions to protect their rights. Consequently, it was not
necessary to decide whether the provisions in the Bill of Rights had
horizontal application – that is, whether the provisions could be
relied on as between citizens, rather than simply between citizens and
the State (which is referred to as ‘vertical application').
As to the election of S, CS schedule 2 paragraph 10 made it clear that
any dispute in connection to the election of the Prime Minister was to
be determined by the Governor General and could
not be questioned in the courts. There was nothing to suggest that the
Governor General had failed to properly exercise his powers in relation
to the election. Therefore the validity of the elections was not a
matter that a court could consider.
Comment
The case is of interest for the comments made by the court on the issue
of whether provisions in the Bill of Rights have horizontal
application. Prima facie, the matter appeared to have been settled in Loumia v DPP [1986]
SBCA 1, [1985-1986] SILR 158, 2 PHRLD 24, where the Court of Appeal
took the view that the Bill of Rights provisions only had vertical
application. (The same approach had also been adopted in Kiribati in Teitinnang v Ariong
[1986] KIHC 1; [1987] LRC (Const) 517.)
However, the court in the instant case took a more nuanced approach. It
acknowledged that ‘this is a developing area as to how far citizens can
rely on fundamental rights inter se' (between each other) and doubted
that the answer was a clear cut one of ‘always horizontal' or ‘never
horizontal.'
The court suggested that much will depend upon an analysis of the
rights relied on: ‘It is necessary to consider the precise rights
sought to be relied on and the context in which they are relied on.'
However, as A's case failed on other grounds, it was not necessary for
the court to conduct such an analysis here.
It is unfortunate that the court did not expand further on the issue,
as clearer guidance would have been most welcome. A number of
jurisdictions have moved beyond a purely vertical application of human
rights. For example, Irish courts have applied a robust horizontal
approach, allowing private parties to rely directly on some fundamental
rights in litigation against other private parties: see Lovett v Gogan
[1995] ILRM 12. In Canada, a middle position has been adopted: although
private individuals cannot ground their cause of action on the Charter
of Rights when litigating against another private person, they may rely
on the common law, which the courts must interpret and develop
consistently with Charter values. In that way, some Charter rights
indirectly govern the relations between individuals. But on any of
these approaches, it is necessary for the court to examine the right in
question to see whether it is of a kind that is capable of applying as
between private persons, or whether the right in question is of a type
that can only be enforced against the State.
RULE OF LAW / DEMOCRACY
The President of Fiji did not
have a prerogative power to dismiss the Prime Minister and dissolve the
Parliament. His purported exercise of power in 2006 to dismiss the
elected government was unlawful.
QARASE v BAINIMARAMA
| Court of Appeal |
Fiji Islands |
| Powell, Lloyd and Douglas JJA |
[2009] FJCA 9 |
|
9 April 2009 |
Law considered
Constitution of Fiji 1997 (CF)
Facts
On 5 December 2006 the Fiji Army took control of the streets of Suva
and the Commander of the armed forces, Commodore Bainimarama (CB)
assumed executive power of the State. He declared himself to be the
President in place of President Uluivuda (PU) and dismissed Mr Qarase
(Q) as the Prime Minister of Fiji. He appointed one Doctor Senilagakali
as the
caretaker Prime Minister. The next day, 6 December 2006, Doctor
Senilagakali advised CB to
dissolve Parliament. CB followed the advice.
On 4 January 2007, the caretaker Prime Minister tendered his
resignation to CB and later on the same day CB purported to hand back
executive authority to PU. PU ratified the actions of CB as being in
the interest of the nation.
On 5 January PU appointed CB as the Interim Prime Minister. Other
Ministers were appointed by PU acting on the advice of the Interim
Prime Minister.
Q challenged the lawfulness of PU's ratification of his dismissal as
Prime Minister and of the dissolution of the Parliament. In October
2008, the High Court ruled that PU had acted lawfully, using his
prerogative powers as head of State. Q appealed to the Court of Appeal.
Issues
• Was it lawful in the
prevailing circumstances to dismiss the Prime Minister and dissolve the
Parliament?
Decision
The Court of Appeal unanimously ruled that the President did not have
the power to dismiss Q and his Ministers or to dissolve the Parliament.
Consequently, the purported appointments of CB as Interim Prime
Minister and of his interim Ministers were invalid.
The appeal judges concluded that CF s109 prescribed the circumstances
in which the president may dismiss a Prime Minister; there was no
additional ‘prerogative' power of the kind found by the High Court. It
was questionable whether any such prerogative power continued to exist
after Fiji became a republic. In any event, they did not continue to
exist in Fiji after the 1997 Constitution. The language of CF clearly
excluded the availability of a prerogative of dismissal: s109 provided
that the President may not dismiss a Prime Minister unless he does not
have the confidence of the House of Representatives and he does not
resign or get a dissolution of the Parliament.
National security is not a reason for the President to dismiss a
government. The express provisions in CF for dealing with a state of
emergency are inconsistent with the existence of an implied
Presidential power in these circumstances. Indeed, CF contemplates it
is the government which
is expected to address the issue of national security.
The President may have additional powers to act under the doctrine of
necessity, but it was not proved that the prevailing circumstances
justified the use of that power. In any event, the purpose of that
power is to enable the President to restore the Constitution, not to
supplant it.
Having concluded that Q and his government had been unlawfully removed,
the court did not order its reinstatement. It took into account
political reality in that Q and some Ministers had opted to take
pensions and therefore had resigned. It also took into account that CB
had been in power for close to two and a half years. It took a
pragmatic approach by suggesting that the President appoint an
independent caretaker Prime Minister who should advise the dissolution
of Parliament and direct the issuance of writs for an election.
Comments
The court reasoned that the 1997 Constitution was drafted with Fiji's
history in mind. Fiji had experienced an abrogation of a Constitution
in 1987. It had experienced military rule. The drafters of the 1997 did
not want Fiji to go through the same experiences again. They wanted
certainty and therefore deliberately set out the parameters of power of
the President with respect to dissolution of Parliament and appointment
of a caretaker Prime Minister.
The court endorsed the supremacy of the Constitution and that
usurpation of the reins of government by use of force cannot be
justified by relying on some vague reserve powers. It also endorsed
that in the final analysis it is the courts which decide on the
legality or otherwise of the abrogation of the Constitution.
The President did not act as the Judges had suggested but purported to
abrogate the Constitution and put in place a new legal order. He went
on to appoint CB as Prime Minister and appoint other Ministers on the
advice of CB.
SPEECH
SPEECH / DEFAMATION
The court emphasised the
importance of freedom of expression by applying a high threshold of
proof before it would restrain
publication of allegedly defamatory material prior to the trial of the
plaintiff's action for defamation.
DATT v FIJI TELEVISION LIMITED
Laws considered
Constitution of Fiji 1997 (CF)
Common law on injunctions in defamation cases
Facts
The plaintiff (P) was granted an interim injunction to prohibit the
defendant (D) from airing news that while employed at the Fiji Inland
Revenue and Customs Authority (FIRCA) he defrauded FIRCA of $5000
dollars. The allegation was based on a draft audit report on FIRCA. D
applied to dissolve the injunction of the basis that the allegation was
not defamatory, or else it was justified and fair comment.
Issue
• Where was the balance to
be determined between protecting P's reputation and the right of D to
air matters of public interest?
Decision
Dissolving the injunction, the court held that an interlocutory
injunction to restrain allegedly defamatory material would not be
granted unless it was clear that no defence would succeed at trial.
Here, the issues raised in D's report were matters of public interest.
They concerned FIRCA, the body responsible for tax collection on which
the economic wellbeing of the country depended. At the time of the
draft report P was a FIRCA employee. He had since been appointed to the
board of FIRCA. The background of persons sitting on high statutory
bodies was a matter of public interest. Also freedom of the press
assumed greater importance in the absence of a sitting Parliament and
the usual ministerial accountability.
Comment
The court upheld the right of the media to air matters on the basis of
the public interest. The determination of whether or not the
allegations were true was a matter for trial. The inclusion of freedom
of expression in the CF's Bill of Rights gave it high priority, and in
circumstances where there was an extra-legal situation, the court would
lean towards disclosure.
SPEECH / CONFIDENTIAL
INFORMATION
The rights to freedom of
expression and freedom of the media impose a heavy burden on government
to justify a restriction on the publication of allegedly confidential
information regarding the performance of a public body.
FIJI NATIONAL PROVIDENT FUND v
FIJI TELEVISION LIMITED
| High Court |
Fiji Islands |
| Coventry J |
CA 464/2007 |
|
19 October 2007 |
Laws considered
Constitution of Fiji 1997 (CF)
Fiji National Provident Fund Act (Cap 219)
Common law on confidential information
Facts
Fiji National Provident Fund (FNPF) is a statutory body into which
employers are required to pay an equivalent of 16% of the monthly wage
of all workers. Half of this contribution comes from the workers and
half from the employers. In June, 2007, the Fund had more than 330,000
members. It was the largest financial institution in Fiji with a base
fund in excess of one billion dollars. It controlled 40% of Fiji's
financial system.
On 5 December 2006 the Fiji Military Forces executed a coup and removed
the Executive and the Legislative arm of the Government of Fiji. In
January 2007, the CEO and the Deputy CEO of the FNPF Board were removed
and new appointments made.
In March 2007 the FNPF commissioned a report from an accounting firm
over the functioning of the Board from 2002 to 2006. The report found
its way to Fiji Television Limited (FTL) which televised portions of
the report on three prime time news bulletins. FNPF sought an order to
stop FTL from continuing to televise the report. It obtained an ex
parte injunction, that is, a provisional order, restraining FTL from
telecasting the report for a limited time. It relied on the argument
that the report was confidential. FTL sought to have the injunction
lifted, arguing that it was in the public interest to disclose how this
public body operated and how it invested the funds it held. It argued
that to suppress the report would breach the constitutional right to
freedom of expression.
Issue
• Should the court allow
continuation of the injunction? Or should it dissolve it in the public
interest as it infringed the freedom of expression and the freedom of
the media?
Decision
The court discharged the ex parte injunction.
The court assessed the claim to confidentiality in the light of the
constitutional right to freedom of expression. CF s30 guarantees to
every person the right to freedom of speech and expression and to
freedom of the press and media. These freedoms may be limited on the
grounds listed in s30(2) which protect other interests such as
confidentiality, but only to the extent that the limitation is
reasonable and justifiable in a free and democratic society.
The court accepted that freedom of expression and of the media
constitutes one of the cornerstones of democratic society. The freedom
of the press and media is not for the benefit of the press or media but
for the benefit of the public as a whole. The court noted that at the
time of the judgment, Parliament was no longer sitting, so freedom of
the press assumed a greater significance in matters of public interest.
For these reasons, a higher standard is applied before a court will
restrain publication of government information. Not only must the
government show the information is confidential; it must also show that
restraint is necessary in the public interest for one of the
permissible grounds in CF s30(2). Where these conditions have been met,
the court will only restrict publication to the extent that is
reasonable and justifiable in a free and democratic society.
The court found that FNPF had not shown that the information was
sufficiently confidential nor that there was a public interest in
suppressing it. The fact that disclosure would generate public debate
and criticism of government action was not a sufficient reason to
stifle publication of the report.
Comment
The case is an important endorsement of the right of the media to
publish matters regarding the working of governmental agencies. The
right is not for the benefit of the media companies; it exists to
enable members of the public to get information which will enable them
to assess how well government is being carried on. The right of the
media to publish this information is even more critical where other
means of political accountability are not functioning.
In its judgment, the court also referred to CF s173, which directs the
Parliament to enact a law giving the public a right to access official
government documents. As Parliament has not yet passed such a law, the
court called for a Freedom of Information Act to be passed at the
earliest opportunity.
SPEECH / CONTEMPT OF
COURT
Written allegations from an
experienced lawyer and politician suggesting actual bias by a judge
amounted to the offence of contempt of court.
ATTORNEY GENERAL v VAAI
Law considered
Common law offence of contempt of court
Facts
The accused (A) was the leader of the SDUP, a political party which was
involved in litigation about its recognition as a party in the
Parliament of Samoa. The SDUP and seven of its members, including A,
were unsuccessful in the first of two proceedings on the issue, heard
by the Chief Justice of Samoa. A was subsequently charged with two
counts of contempt of court for statements he reportedly made after the
Chief Justice handed down his decision. The first count arose from a
newspaper article in which A was reported as saying that the Chief
Justice was ‘biased towards the Government.' The second count arose
from a letter to the editor written by A and published in a national
newspaper. The letter set out various concerns about the perception of
bias, and concluded that it was ‘very difficult to have any confidence
that the Chief Justice will act justly, fairly and independently in the
determination of the substantive hearing in this matter involving the
SDUP.'
Issue
• Whether the reported
comments amounted to the offence of contempt of court.
Decision
A was not guilty on the first count. There was conflicting evidence as
to what, if anything, A had said to the newspaper reporter who wrote
the article in question. The court was not satisfied beyond reasonable
doubt that A had made the comments reported in the newspaper.
A was guilty on the second count. The quoted statement in A's letter
was likely to create, in the minds of reasonable readers, misgivings as
to the integrity, propriety and impartiality of the Chief Justice.
Further, it did so with no reasonable basis, and could not be regarded
as fair comment.
Comment
Courts must be cautious in applying the common law of contempt to
punish those who express disapproval or disappointment of court
processes or decisions. As the court itself acknowledged, contempt
proceedings should not be used ‘to interfere with freedom of speech,
the accountability of the administration of justice and the right of
members of the public to criticise decisions of the court.'
Additionally, the fact that the boundaries of acceptable criticism are
unclear makes it difficult for a person to know how to stay on the
right side of the line. In this regard, it is important to remember
that it is no defence that the accused did not intend to interfere
with the administration of justice, or undermine respect for the
judiciary – it is enough that the conduct was likely to have that
effect.
The court carefully considered A's long and rather complicated letter.
For the most part, the court found that the language used did not
clearly amount to an allegation of bias. But the final comments were
seen to go far, as they suggested actual bias by the Chief Justice. As
such, the comments impugned the integrity and partiality of the court
and constituted the offence of contempt. Perhaps an impromptu remark to
similar effect by a disappointed litigant might have been excused. But
here, the assertion was made in a considered letter, written by a well
qualified, well-known lawyer and politician. This factor added to the
seriousness of the allegations and apparently tipped the balance in
favour of the finding of contempt.
Although the charge of contempt was found proven, A was subsequently
discharged without
conviction.
TORTURE
TORTURE / SENTENCING
Sentencing offenders to be
whipped is contrary to a principle of customary international law, from
which a State may not depart, even if it is not a party to those
international Conventions which forbid it.
FANGUPO v R
| Court of Appeal |
Tonga |
| Ford CJ; Salmon, |
[2010] TOCA 17 |
| Moore JJ |
14 July 2010 |
International instrument
and law considered
Convention against Torture and other Cruel Inhumane or Degrading
Treatment or Punishment (CAT)
Constitution of Tonga (CT)
Criminal Offences Act (Cap 18) (COA)
Facts
The appellants (A) each pleaded guilty in the Supreme Court to three
charges of escape from lawful custody, and multiple charges of
housebreaking and theft. They were each sentenced to a total of 13
years imprisonment. For the third escape, they were also sentenced to
six lashes of either the cat or the rod, to be supervised by a Doctor
and magistrates, as authorised by COA s31. Due to an oversight, A had
already been convicted and sentenced in the Magistrates Court for the
first and third escapes.
A appealed against sentence.
Issue
• Whether the sentences
were excessive.
Decision
The Court of Appeal set aside the sentences imposed in the Supreme
Court. Instead, it imposed sentences totalling six years, of which the
final two years were suspended for three years.
The sentence of whipping was set aside, as it was imposed for crimes
for which A had already been sentenced in the Magistrates Court. The
court also made observations suggesting that
whipping would now be considered unlawful in Tonga. In reaching that
conclusion, the court made the following observations:
(1) the prohibition
against torture is part of customary international law and is a rule
from which states cannot derogate, whether or not they are a party to
the various treaties such as CAT which prohibit it.
(2) a purposive interpretation of CT clauses 1 (the declaration of
freedom) and 14 (fair trial) may lead to the conclusion that the
whipping provision in COA s31 is unconstitutional.
(3) COA s31(6) requires certification by a doctor that the offender has
no mental or physical impairment to render him unfit to undergo
whipping. It is arguable that it would be unethical for a doctor to
participate in the infliction of a whipping sentence, making the
sentence impracticable.
(4) the UN Human Rights Committee, the Inter-American Court of Human
Rights and the European Court of Human Rights have all described
whipping or flogging as cruel, inhumane and degrading.
Comment
The Court of Appeal did not need to make a final ruling on the legality
of whipping, as the Supreme Court sentence could not stand for the
reason that A had already been convicted and sentenced in the
Magistrates Court for the offences in question. CT clause 12 prohibits
trying a person twice for the same offence.
However, the court gave a strong indication that it was likely that
whipping would now be regarded as unconstitutional in Tonga. It noted
that a prohibition on torture, including cruel, inhuman and degrading
treatment or punishment, now exists as part of customary international
law. It is regarded as ‘jus
cogens,' meaning that it is a rule that no State can opt
out of. (See Tavake v
Kingdom of Tonga [2008] TOSC 14.) Consequently, the fact
that a State has not ratified and implemented the CAT makes no
difference for this purpose – it still has a duty in international law
to avoid the use of all forms of torture.
The court was apparently suggesting that the Constitution be read in
the light of this binding international obligation. The broad
guarantees of freedom (Article 1) and fair trial (Article
14) could be interpreted to include a right not to be subject to
torture or cruel, inhuman or degrading treatment. If so, then it would
be beyond the power of the Tongan legislature to make a law authorising
whipping as a criminal penalty.
PART
II: INTERNATIONAL CASES REFERRING TO CONSTITUTIONAL
BILLS OF RIGHTS, HUMAN RIGHTS CONVENTIONS, STANDARDS AND PRINCIPLES
ABUSE OF PROCESS
ABUSE OF PROCESS
The court may permanently stay a
criminal prosecution where the conduct of the prosecution would bring
the legal process into disrepute.
R v MOTI
| Court of Appeal |
Queensland, Australia |
| Holmes, Muir, |
[2010] QCA 178 |
| Fraser JJA |
15 December 2009 |
Laws considered
Crimes Act 1914 (Commonwealth)
Criminal Code 1899 (Queensland)
Facts
Moti (M) was an Australian citizen. He was alleged to have engaged in
sexual intercourse with the complainant (C), a girl under the age of 16
years, whilst he was outside Australia, namely in Port Vila, Vanuatu
and at Noumea, New Caledonia. He was charged in Australia for these
offences. Although the Australian authorities had commenced proceedings
for M's extradition from Solomon Islands, the Government of Solomon
Islands chose to deport M to Australia in a manner that prevented M
from exercising his rights under the Deportation Act.
After C and members of her family had provided statements to the
prosecution, C's father requested assistance from the Australian
authorities in meeting the family's living expenses, suggesting that
otherwise C might reconsider her commitment to the case. Payments
totalling
$A81,639 were then made to the family between February 2008 and
November 2009.
M applied to the Supreme Court of Queensland for a stay of the
indictment on grounds of abuse of process. The trial judge granted the
stay on the basis that the level of the financial
support provided by the prosecuting authorities pending trial to C and
her family brought the
administration of justice into disrepute. The prosecution appealed this
decision.
Issue
• Was the trial judge in
error in granting the exceptional remedy of a
permanent stay?
Decision
The Court of Appeal allowed the appeal and set aside the stay. The
court emphasised that the financial support had not been offered to
obtain statements from the potential witnesses, and had not created an
expectation of reward conditional upon giving satisfactory evidence;
rather, it has been given to ensure the continued willingness of the
recipients to give evidence. The trial judge had also failed to
consider that the payments were not illegal, even if they went beyond
the existing guidelines for payments to witnesses.
The Court of Appeal affirmed other findings made by the trial judge. In
particular, it affirmed that the deportation of M from Solomon Islands
to Australia was not a disguised extradition by Australia, as the
Australian government did not connive or collude in the decision of the
Solomon Islands Government to deport M. It also affirmed the finding
that the prosecution had not been politically motivated.
Comment
A fair judicial system is guided by certain policy considerations. One
such policy is that it must ensure that its process is used fairly by
all litigants, be they state or private individuals. The second is that
unless the courts uphold the first principle, public confidence in the
court system may suffer because the public might consider that the
court process can be used for oppression.
It is also a policy that courts grant a permanent stay of criminal
proceedings only in exceptional cases. This is because it is in the
public interest that those who are charged for an offence have the
issue of their guilt determined by a court. Where these policies
conflict, the court must engage in a balancing act between the right of
the State to have all offenders tried by courts and the right of all
citizens to be subject only to eminently fair proceedings.
The trial judge had viewed as an affront to the public conscience the
level of financial support pending trial given to C's brother and her
parents. The Court of Appeal considered that there were other available
responses to any unsatisfactory aspects of the prosecution conduct: if
the concern was a lack of transparency as to the basis of the payments,
that had been met by an order for disclosure. If the concern was the
effect of the payments on the credibility of the witnesses, that could
be assessed through cross-examination at trial. Payments to secure
attendance of witnesses at trial are not improper, and while the amount
paid to these potential witnesses may have been unwise, the payments
were not of a kind to warrant the stay of prosecution of the serious
offences alleged to have been committed by M.
DISCRIMINATION
DISCRIMINATION /
DISABILITY/APPLICATION TO PRIVATE COMPANIES
Indian legislation protecting
people with a disability from discrimination was intended only to apply
to State corporate entities and not to private companies.
DALCO ENGINEERING PRIVATE LTD v
PADHYE
| Supreme Court |
India |
| Raveendran, Lodha JJ |
Civil Appeal No.1886 of 2007 |
|
31 March 2010 |
Laws considered
Constitution of India (CI)
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act 1995 (DA)
Companies Act 1956 (CA)
Facts
The appellant (A) was a private limited company incorporated under CA.
The respondent (R) was employed by A as a telephone operator for more
than twenty years until his employment was terminated because of an 85%
hearing impairment that R had developed while working for A.
The High Court held that A was bound by DA s47 which provided that no
establishment shall dispense with an employee who acquires a disability
during his service. The court ordered A to re-instate R in a suitable
position.
A appealed to the Supreme Court of India, arguing that it did not meet
the definition of establishment in DA s2(k), since it was not a
‘corporation established by or under a Central, Provincial, or State
Act'.
Issue
Was A, a private company, bound by DA?
Decision
The Supreme Court allowed the appeal. It held that DA did not apply to
private companies
incorporated under CA. Therefore A was not required to reinstate R.
The court accepted that in interpreting social welfare and human rights
legislation, a broad and liberal approach is needed. However, express
limitations on the application of the statute could not be ignored. In
this case, the definition of ‘establishment' used in DA was the same as
that used in other statutes to refer to statutory corporations, in
contrast to companies in the private sector. The same distinction is
also made in CI in the enforcement of fundamental rights.
Comment
The case was not concerned with the complex question of whether human
rights set out in a Convention or national Bill of Rights are capable
of being applicable as between private
persons (including companies) or whether they only impose duties on the
State and its agents (see commentary in 2 PHRLD ix.) In this case, the
only question was whether national legislation imposed duties on
private corporate employers. There is no doubt that legislation giving
effect to a human right is capable
of applying between private persons; the only question is
whether it was intended
to apply between them.
In cases of ambiguity, courts should read human rights legislation
broadly to give effect to the beneficial purposes of the Act. However,
in this case, DA was stated to apply to ‘establishments' – defined in
terms which the Supreme Court had held in 1981 to mean
statutory, not private, companies. If the 1995 DA was meant to apply to
private companies, it was reasonable to expect the legislature to make
that intention clear by using other language.
PRIVACY
PRIVACY / SEXUAL
MINORITIES
Criminalising same sex acts in
private between consenting adults contravened the right of privacy that
was implicit in the Indian Constitution. It was also discriminatory,
and so contrary to the right to equality.
NAZ FOUNDATION v GOVERNMENT OF
NCT OF DELHI
| High Court |
Delhi |
| Shah CJ, |
WPC 7455/01 |
| Muralidhar J |
2 July 2009 |
International instruments
and law considered
Universal Declaration of Human Rights
International Covenant on Civil and Political Rights
European Convention on Human Rights
Constitution of India (CI)
Indian Penal Code 1860 (PC)
Facts
Naz Foundation is a non-governmental organization (NGO). It works in
the field of HIV and AIDS intervention and prevention. It works with,
among others, the gay community, a section of the community recognised
to be extremely vulnerable to HIV and AIDS. It brought this action in
the public interest because it claimed its work was seriously impaired
by State agencies' attitudes towards the gay community and by their
enforcement of PC s377, which criminalised same sex acts as unnatural
offences. It challenged the validity of s377 on the ground that by
criminalising sex acts between consenting adults in private, it
infringed the provisions of CI by abridging the right to privacy and
dignity.
Issue
• Did PC s377 infringe the
provisions of CI?
Decision
The court held that the right to privacy is implied from the freedom of
speech and of movement in Article 19 and from the right to life and
personal liberty in Article 21 of CI. A citizen has a right to be left
alone. The right to be left alone included the right to make
fundamental decisions about one's sexuality and any invasion of that is
an invasion of privacy, at least if one acts consensually and without
harming another. The court took note of global trends and protections
of privacy rights of homosexuals. It found that s377 was a serious
impediment to successful public health intervention: high risk groups
were reluctant to reveal same sex behaviour due to fear of law
enforcement agencies, thereby pushing cases of infections underground.
This made access to them more difficult.
The court also held that s377 breached CI Article 14 (the right to
equality); public revulsion towards a particular group was not a valid
ground to deny equality. It found that the discriminatory treatment of
the gay community was unfair and unreasonable and in breach of the
equality provisions of the CI. It also found that s377 amounted to
discrimination on the basis of sexual orientation, an aspect of sex
discrimination which was prohibited by CI Article 15.
The court concluded that s377 in so far as it criminalised consensual
sexual acts between adults in private violated CI Articles 14, 15 and
21.
Comment
The court did not totally strike down s377. Non-consensual sexual acts
and sexual acts with those under 18 (minors) would still be caught
under s377. A person under 18 cannot validly consent. This result is
similar to that in the Fiji case of Nadan v State
(2005) FJHC 500, 1 PHRLD 22, which was cited by the Delhi High Court.
VIOLENCE AGAINST WOMEN
VIOLENCE AGAINST WOMEN /
STATE FAILURE TO PROTECT WOMEN
The discriminatory failure of a
State to take action against perpetrators of domestic violence against
women can be the basis of a claim to refugee status.
MINISTER OF IMMIGRATION v KHAWAR
| High Court |
Australia |
| Gleeson CJ, McHugh |
[2002] HCA 14; (2002) 210 CLR 1 |
| Gummow, Kirby JJ; |
11 April 2002 |
| Callinan J (dissenting) |
|
International instruments
and law considered
International Covenant on Civil and Political Rights
Convention on the Elimination of All Forms of Discrimination against
Women
Convention relating to the Status of Refugees (Refugees Convention)
Migration Act 1958 (Commonwealth)
Facts
Ms Khawar (K), a Pakistani national, was married with two young
children. In 1997 she and the children arrived in Australia and K
sought protection as a refugee on the ground that she had been a victim
of serious and prolonged domestic violence on the part of her husband
and members of his family, that the police in Pakistan refused to
enforce the law against such violence or otherwise offer her
protection, and that such refusal is part of systematic discrimination
against women which is both tolerated and sanctioned by the state.
Accordingly, it was argued, she satisfied the definition of a refugee:
she held a well founded fear of persecution on the basis of her
membership of a social group: the social group was ‘women in Pakistan'
and K feared persecution on that basis because the state tolerated or
permitted domestic violence against women.
The Immigration authorities refused K's application for a protection
visa. She appealed to the Refugee Review Tribunal (the Tribunal), which
affirmed the decision made by Immigration. In coming to their decision,
the Tribunal concluded that K was the subject of private harm inflicted
for personal reasons by her husband and his family, rather than
persecution by the state. The Tribunal therefore declined to make any
finding as to whether K fell within a social group, or whether the
state did tolerate or condone domestic violence, as these allegations
could not assist her case.
The matter was eventually considered on an appeal to the High Court of
Australia.
Issues
• Whether the failure of a
country to provide protection against domestic violence to its women
nationals, in circumstances where the motivation of the perpetrators of
the violence is private, can result in persecution of the kind referred
to in Article 1A(2) of the Refugees Convention.
• Whether women in Pakistan constitute a particular social group within
the
meaning of the Refugees Convention.
Decision
By a majority of 4 to 1, the Court sent the matter back to the Tribunal
to make findings on the two outstanding issues. On the material
available to it, it would be open to the Tribunal to find in K's favour
on both issues and this would be sufficient to establish her claim to
protection.
It held that the protections contained in the Refugees Convention
addressed in the main persecution by the State or agents of the State
on grounds specifically prescribed, namely race, religion, nationality,
political opinion or membership of a particular social group. However
the Court went on to say that Australia could owe protection
obligations to victims of serious violence inflicted by non-state
agents where the State had a duty to act and protect but for some
reason or another was unwilling to act. In other words, persecution
could consist of the harm inflicted by the husband and his family
together with the failure of the State to protect K from such harm.
The court further held that the harm to the victim or unwillingness to
act or protect must be due to the victim's membership of one of the
groups specifically referred to in Article 1A(2). It found that
Pakistani women could constitute a particular social group and that the
size of the group was not material to this finding. It is power not
numbers that creates conditions in which persecution may occur.
Comment
The High Court of Australia recognised the failure of the state to
protect women from family violence and other forms of gender violence
as a basis of asylum. The case is similar to the UK House of Lords
case, R v Immigration
Appeal Tribunal; Ex parte Shah [1999] UKHL20, which
recognised gender-related persecution in granting asylum for a woman
who was subject to violence from her husband and his political
affiliates. In that case, the court found that Pakistan did in fact
tolerate and sanction domestic violence, as K had alleged in the
Australian case.
This approach is consistent with the European Human Rights Court
decision in Opuz vs
Turkey, recognising that the State can be liable for
failing to provide an effective remedy for victims of gender-based
violence committed by non-state actors. It challenges the traditional
‘vertical application' of Human Rights – that only States are bound to
observe human rights standards – which previously limited States'
responsibility for women survivors of domestic violence.
The failure to protect women in these cases is also discriminatory, and
so contrary to the principle of non-discrimination set out in the
International Bill of Rights (UDHR, ICESCR and ICCPR)
and CEDAW. The United Nations Commissioner for Refugees (UNHCR) has
also recognised
that the Refugee Convention was not intended to discriminate on the
basis of gender.
Pacific statistics generally show high rates of domestic violence that
is tolerated and legitimised through community attitudes, gaps in the
legal framework and often lack of action by state mechanisms. If these
gaps in the legal framework and lack of action by the responsible
mechanisms are discriminatory, then Pacific governments may also be in
breach of their obligations. These obligations may arise under national
constitutions, at least where they prohibit sex or gender
discrimination. Alternatively, most Pacific island countries have
ratified CEDAW or one of the instruments that make up the International
Bill of Rights and therefore in principle are committed to eliminating
gender-discriminatory practices in law, policy and practice.
VIOLENCE AGAINST WOMEN /
SLAVERY
Women who consented to engage in
prostitution could still be regarded as held in a condition of slavery
where they were in fact subject to powers of control generally
associated with ownership.
R v TANG
| High Court |
Australia |
| Gleeson CJ, Gummow, Hayne, |
[2008] HCA 39; (2008) 237 CLR 1 |
| Heydon, Crennan, Kiefel JJ |
28 August 2008 |
| (Kirby J dissenting) |
|
International instruments
and law considered
International Convention to Suppress the Slave Trade and Slavery
(Slavery Convention)
Supplementary Convention on the Abolition of Slavery, the Slave Trade
and Institutions and
Practices similar to Slavery
Criminal Code (Commonwealth) (CC)
Facts
The respondent (T) operated a licensed brothel in Melbourne, Victoria.
Victorian law permits the operation of licensed brothels. She was
charged and convicted under CC s270.3(1)(a) for five offences of
intentionally possessing a slave and for five offences of exercising
power of ownership over a slave.
The charges related to five women who were recruited from Thailand to
work in a Melbourne brothel. Under the terms of an oral agreement, each
woman owed a debt of about $45,000 to T. This debt was based on the
price paid by T to ‘purchase' the women from their Thai recruiters, as
well as travel, accommodation and other expenses.
To pay this debt the women were required to work six nights a week in a
brothel servicing clients. For every client serviced the debt was
reduced by $50. The women were provided
accommodation and food. They were to earn nothing from their work until
the debt was paid off. The seventh day was a free day when they could
work and keep earnings for that day. The women's passports and return
air tickets were kept by T. Their movements were also supervised, and
they were effectively confined to the brothel.
All five women had voluntarily travelled to Australia on the
understanding that once their debt was paid off, they would have the
opportunity to earn money on their own account by working as
prostitutes. They knew about the general nature of the work they were
going to perform.
The convictions were quashed in the Court of Appeal of the Supreme
Court of Victoria, from
which there was a further appeal to the High Court of Australia.
Issue
• Whether T's conduct was capable of falling within s270.3(1)(a).
Decision
The court found there was evidence on which a jury could have found T
guilty, and reinstated
the convictions.
In deciding whether the five women could be regarded as slaves, the
court made reference to the definition of slavery in CC, namely the
‘condition of a person over whom any or all of the powers attaching to
the right of ownership are exercised including where such a condition
results from a debt or contract made by the person.' This definition,
which is derived from the Slavery Convention, assumes that no one can
be a slave in a legal sense in Australia, as ownership of a person is
not possible. Instead, the CC targets conduct which treats a person as
if they were a slave. In short, it prohibits de facto slavery.
The High Court had to distinguish between slavery and other harsh
employment conditions which may not amount to slavery. Gleeson CJ held
that this depended on the nature and extent of the powers exercised
over the women. Of particular relevance here was T's capacity to deal
with the women as objects of sale and purchase, her extreme control
over their movements, and the lack of payment for their services.
Gleeson CJ also accepted that lack of consent was relevant, but not
essential – it was possible for a person to have agreed to enter the
condition of slavery.
Hayne J agreed with Gleeson CJ. His approach was that a person may be
said to enslave another human being where one person has ‘requisite
dominion' over the other. Hayne J concluded that a slave is someone
‘deprived of choice.' He said that ‘asking what freedom a person has
may shed a light on whether the person was a slave.'
Hayne J concluded that even if the five women came to Australia
voluntarily, knowing well the nature of work they had to perform, the
central question was whether they had ‘any freedom to choose what was
done with them in Australia.' They had arrived in Australia with little
money and hardly any knowledge of English. They were ‘bought and sold'
and required to pay off a debt that was arbitrarily imposed on them.
They had no effective choice about their movements or working hours.
His Honour also cast doubt on the reality of the women's consent,
suggesting that factors such as the power imbalance with their
recruiters may have well have precluded real consent.
Comment
The discussion endorsed the principle that domestic legislation should
be interpreted, as far as possible, to be consistent with a nation's
international obligations, including obligations in relation to human
rights. The High Court interpreted the definition of slavery in CC in
line with the definition in Article 1 of the Slavery Convention. It
also supported the broader interpretation of slavery adopted by the
International Criminal Tribunal for the former Yugoslavia in the Kunarac case, Case
No IT-96-23 and IT-96-23/1-A (12 June 2002) (Judgment) rather than the
more restrictive interpretation of the European Court of Human Rights
in Siliadin v France
(2005) VII Eur Court HR 333.
This case is an important landmark in that it recognises the realities
of contemporary forms of slavery. It is a significant decision in an
era when human trafficking is a major international concern.
VIOLENCE AGAINST WOMEN /
STATE RESPONSIBILITY
State parties to the European
Convention on Human Rights must not only refrain from violating human
rights through their own actions and those of their agents, but must
also act to safeguard the rights of those within its jurisdiction.
OPUZ v TURKEY
| European Court of Human
Rights |
Europe |
| Casadevall P, Fura-Sandström, |
Application No. 33401/02 |
| Bîrsan, Gyulumyan, Myjer, |
9 June 2009 |
| Ziemele, Karakaş JJ, Quesada SR |
|
International instruments
and law considered
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)
European Convention on Human Rights (ECHR)
Criminal Code of Turkey
Family Protection Act (Law no. 4320, 14 January 1998)
Facts
The applicant (A) lived in Diyarbakar, Turkey. She started a
relationship with HO in 1990. They were officially married in November,
1995. They had three children born in 1993, 1994 and 1996. Their
relationship was a torrid one. The applicant and her mother were
subjected to numerous assaults and threats to life by HO. The judgment
lists eight incidents of assaults. The earliest incident was in April
1995 when HO had asked them for money and had beaten them and
threatened to kill them. A's medical report confirmed bruises on her
body. Several others involved HO seriously wounding A and her mother
with a knife. On another occasion, HO drove his car into A and her
mother. HO also made a series of threats to kill A and her mother.
Finally
in March 2002, the mother decided to move away. While she was removing
her furniture in a truck, HO shot her dead.
Prior to the final incident, a similar pattern of conduct followed most
of the assaults. A and her mother would lodge a complaint with the
authorities; HO would be arrested but released pending trial; A and her
mother would then withdraw their complaints (under pressure from HO or
the authorities or both) and the charges would be dismissed, even
though there was medical evidence to show the extent of the severe
injuries suffered by A and her mother. On one occasion, a court fined
HO for a knife attack on A.
HO was convicted of the murder of his mother in law and sentenced to
life imprisonment, which was then reduced to 15years and 10 months for
his good behaviour during the trial and because the offence was
regarded as an ‘honour crime.' HO appealed and pending appeal the lower
court released him from custody.
After the death of her mother, A sought relief from the European Court
of Human Rights. She alleged that Turkey had violated Article 2 (the
right to life), Article 3 (the right to freedom from torture and
inhumane treatment) and Article 14 (freedom from discrimination). She
alleged that despite a history of abuse and threats to kill, the
Turkish authorities had failed to provide her protection. She argued
that this failure to provide protection was the result of gender based
discrimination amongst Turkish legal institutions and society.
Issues
• Was A's complaint
admissible?
• Was the State responsible for the violation of A's rights, when the
offending conduct was committed by HO?
Decision
The court declared A's complaint admissible. It rejected the Turkish
submission that A had failed to exhaust her domestic remedies; as it
found that the available remedies were ineffective.
Article 2 of the ECHR requires State parties not only to refrain from
intentional and unlawful taking of life but also to safeguard lives of
those within its jurisdiction. It requires a State to take preventive
operational measures to protect an individual whose life is at risk,
where the State knows of the risk. In A's case, given the history of
HO's violent conduct and threats to the safety of A and her mother,
further violence against the two was not only possible but also
foreseeable. A and her mother had sought protection but the authorities
refrained from intervention, because the complaints had been withdrawn,
and because the violence was seen as a family matter.
The court noted that there was an escalating violence against A and her
mother by HO. The crimes committed by HO against the two were grave and
warranted preventive measures to safeguard against future threat to
health and safety. Action should not have been dependent on the women
maintaining their complaints. The court concluded that there was a
positive obligation on the state to take preventive measures to protect
A and her mother whose life was at risk. It found that the Turkish
authorities had failed to display due diligence. They had the power to
make protection orders against HO but had failed to do so. Further,
they had taken over
six years to deal with the murder prosecution, and it was still not
finalised. Hence there was a breach of Article 2.
Secondly, the court considered Article 3. It forbids torture or cruel
and degrading treatment. The
violence suffered by A, both physical and psychological, fell within
those terms. The court ruled
that there was a duty under the Convention on state parties to ensure
that individuals within its jurisdiction were not subjected to such
treatment, including treatment by private individuals. That is, the
obligation was not only confined to treatment by state agents. The
court concluded that the response by the authorities to the conduct of
HO was manifestly inadequate. It was not enough for them to say that A
could have applied for entry into a ‘safe house.' The state needed to
be more proactive and effective in protecting A. Therefore there was a
violation of Article 3 of ECHR.
Thirdly, the court found that there was violation of Article 14 of the
Convention when read in conjunction with Articles 2 and 3. Article 14
ensures enjoyment of rights and freedoms laid in the Convention without
discrimination. The applicant argued that the domestic law of Turkey
was discriminatory and insufficient to protect women, as a women's life
was treated as inferior in the name of family unity. The court ruled
that even though Turkish law on paper made no distinction between male
and female, it discriminated against women in its practical operation.
The discrimination resulted from the general attitude of local
authorities, the manner in which women were treated at police stations
when they reported domestic violence and
judicial passivity in providing effective protection to the victims. It
found police try to convince the victims to return home and drop
complaints. Moreover, the perpetrators of such crime did not receive
dissuasive sentences because courts mitigated sentences on grounds of
tradition, custom and family honour. It ruled that it had been
internationally held through interpretation of CEDAW and the Inter
American Convention on the Prevention, Punishment and Eradication of
Violence against Women that the State's inaction, even if
unintentional, to protect women from domestic violence breached women's
right to equal protection of the law.
The Court awarded EUR 30,000 in damages for mental anguish caused to A
as a result of her
mother's death
Comment
The principle significance of the case lies in the fact that the Court
found the State violated A's rights by failing to take adequate steps
to protect her from violence at the hands of her husband. The Court
emphasised that the State's duty did not cease at just passing
progressive legislation but extended to taking steps to protect women
from all acts of violence about which it was made aware. In this case,
the Government had made some valuable reforms, such as legislating for
protection orders and setting up safe houses for women suffering from
domestic violence. However, the overall unresponsiveness of the
judicial system and impunity enjoyed by the aggressors indicated a lack
of commitment to address domestic violence. This ruling advocates a
proactive approach by States in implementing and applying rights based
legislation.
The Court relied on a wide spectrum of comparative legal instruments,
reports and Conventions including CEDAW and the Belém do Pará
Convention which sets out States duties to eradicate gender based
violence.
PART
III: CASES FROM THE PACIFIC DEALING WITH DOMESTIC
VIOLENCE AND FAMILY LAW ISSUES
CONSTITUTIONALITY
OF
FAMILY PROTECTION LAW
CONSTITUTIONALITY /
FAMILY PROTECTION LEGISLATION
The provisions in the Bill for
the Family Protection Act No 28 of 2008 (Vanuatu) were not inconsistent
with the Constitution of Vanuatu.
PRESIDENT OF THE REPUBLIC OF
VANUATU v
SPEAKER OF PARLIAMENT
Law considered
Constitution of Vanuatu (CV)
Facts
Following the passage through the Vanuatu Parliament of a Bill for the
Family Protection Act No.28 of 2008, the Bill was then presented to the
President for his consideration and assent. The President then referred
the Bill to the Supreme Court pursuant to Article 16(4) of the
Constitution seeking the court's opinion as to the constitutionality of
the Bill.
It was argued that certain provisions of the Bill were inconsistent
with the CV:
(1) The definition of
domestic violence in s4(1)(a) included an intentional assault on a
family member. It was argued that this made unlawful the exercise of
parental discipline of a child. As such, it was inconsistent with the
Preamble to the CV, which recognised that Vanuatu was based on
Christian principles; which allow reasonable assault by a parent on his
or her child as a form of correction. It was also inconsistent with the
fundamental freedom of conscience and worship in CV Article 5(1) (f).
(2) Ss13(d) and 15(1)(c) provided for a protection order to prohibit a
person from being in or near specified premises or to grant exclusive
occupancy of a place of work or residence. It was argued that this
infringed the rights to protection of the law and protection for the
privacy of the home and other property and from unjust deprivation of
property, and so inconsistent with Article 5(1)(d) and (j).
(3) S32 of the Bill allows a court (except in criminal proceedings) to
receive any evidence that it thinks fit, even if it would otherwise be
inadmissible in a Court. It was argued that this infringes the right to
the protection of the law, which is guaranteed in Article 5(1)(d) and
further elaborated in Article 5(2)(a)(2)(a).
(4) S7 of the Bill made provision for the appointment of ‘authorised
persons' to make temporary protection orders in limited circumstances.
It was argued that this was inconsistent with Article 47(1) and (2),
which vest the administration of justice in the Judiciary, who are to
be appointed by the President.
Issue
• Were the identified
provisions of the Bill inconsistent with the Constitution?
Decision
The court found that none of the identified provisions were
inconsistent with the Constitution. In particular, it ruled that:
(1) The provisions of the
Preamble had no more than an interpretative role, and could not form
the basis for a reference under Article 16(4). In any event, there was
nothing in the Bill to prevent the exercise of genuine parental
discipline, including the reasonable corporal punishment of a child.
(2) The rights in Article 5 are ‘subject to respect for the rights and
freedoms of others and to the legitimate public interest in defence,
safety, public order, welfare and health.' The considerations relevant
to the grant of a protection order invoke some or all of these
legitimate interests. The limited nature of protection orders mean that
they were not inconsistent with Article 5(1)(d) and (j).
(3) The reception of otherwise inadmissible evidence in non–criminal
cases did not infringe the rules of natural justice which are protected
by Article 5(1)(d). In any event, any inconsistency could be justified
as the measures are only intended to facilitate proof for preservative
measures in cases where, typically, strict proof is notoriously
difficult.
(4) It was not intended that ‘authorised persons' would exercise
judicial functions or form part of the Judiciary. Therefore there was
no inconsistency with Article 47(1) and (2).
Comment
The Family Protection Act 2008 is an important advance in providing
legal protections from domestic violence. As such, it is welcome that
the Supreme Court found no constitutional impediment to the President
granting his assent to the Bill.
The judgment of Lunabeck CJ should have put to rest some of the
concerns raised in parts of the community about the impact of the law
on practices such as the disciplining of children. The Act makes it
unlawful to assault a family member, but the use of reasonable corporal
punishment as a means of disciplining children is not considered an
assault in common law, and that law has not been changed by the Act. It
is, however, essential that any force used should be ‘reasonable'. It
can be expected that judicial and community standards as to what is
reasonable may gradually evolve, as evidence shows that other forms of
discipline are both more effective as a means of promoting good
behaviour and less harmful to the development of the child.
The Act provides for the appointment of ‘authorised persons' with the
power to make temporary protection orders. Authorised persons may be
community leaders such as chiefs, pastors, teachers or senior police
officers. It is envisaged that this arrangement will be utilised in
remote situations, where access to courts is limited. Although there is
practical merit in this solution in order to meet the immediate needs
of potential victims of domestic violence, it is suggested that
legislators should exercise caution in conferring powers to determine
people's rights on persons other than the judiciary. The determination
of rights by a well-trained judiciary that is independent of the
Parliament and the Executive promotes the better protection of people's
rights. One should be cautious before conferring similar powers on
persons who do not have the same training and guarantees of
independence. Although the court in this case reasoned that authorised
persons would not determine any rights or obligations, and would
‘merely discharge the limited statutory function of deciding whether to
issue a temporary protection order and the terms thereof,' the person
subject to the order clearly comes under an obligation not to infringe
the terms of the order, at risk of committing an offence under the Act.
Although the orders only have a temporary effect, and do not finally
determine the rights of the parties, it is essential that the persons
invested with this significant power must have appropriate training in
its proper use.
FAMILY
LAW
FAMILY LAW / REVOCATION
OF ADOPTION ORDER
A court may revoke an adoption
order on the application of an adopted person who is an adult at the
time of application.
ALI v HAKIM
| High Court |
Fiji Islands |
| Scutt J |
[2008] FJHC 53 |
|
4 February 2008 |
International instrument
and laws considered
Convention on Rights of the Child (CRC)
Constitution of Fiji 1997 (CF)
Adoption of Infants Act (Cap 58) (AIA)
Facts
The defendants are the biological grandparents (BG) of the applicant
(A). The third parties are A's biological parents (BP). A was born in
1982 and legally adopted in Fiji in 1997 by BG, who had cared for him
since birth.
In 2007, A applied to the High Court to revoke the adoption order made
in 1997 and to be re- registered as the son of BP. At the time of the
application, A was aged 25 and lived in Australia with BG. BP lived in
Fiji. All the parties were in favour of revocation.
Issue
• Could the court revoke
an adoption order properly made ten years earlier on the application of
an adult adoptee?
Decision
The court did not have power under AIA to revoke the 1997 adoption
order. AIA only provided for revocation of adoption orders in limited
circumstances which did not extend to a case like A's. Instead, the
court fell back on the parens
patria inherent jurisdiction to assist the parties.
Although parens patria
powers are for the protection of children, the court held that they can
extend to a situation where a child's status was dealt with by law and
the child is now an adult. The limited powers of revocation in AIA did
not restrict the inherent powers under parens patriae. If
it were otherwise, it would infringe the right to equal protection in
CF s38 which provided that a person must not be unfairly discriminated
against on grounds of his/her personal characteristics or circumstances
including age or birth. The court was of the view that the adoption
laws were neither reasonable nor justifiable if they denied A the right
to reaffirm his birth status to his biological parents. The court
further referred to the CRC which promotes the best interests of the
child as a primary consideration and which also recognises the
importance of extended families. The court revoked the 1997 adoption
order and ordered the Registrar of Births to note the revocation.
Comment
This is a very creative but somewhat strained use of a Convention to
achieve an end not provided
for in domestic legislation.
An inherent power of the court can be restricted by implication by a
statute. In this case, it was arguable that AIA s4 had restricted the
inherent power to revoke an adoption order by providing for a limited
statutory power to revoke. However, the court relied on the guarantees
in the Bill of Rights and the provisions of CRC to avoid this
conclusion. It effectively held that the parens patriae
jurisdiction (a) allowed for revocation in circumstances outside AIA s4
and (b) extended to an application brought by an adult adoptee.
The second of these conclusions was justified on the basis of the
guarantee of equality in CF s38. The reasoning suggests that an
application could have been brought if the applicant had been an infant
and it would be unreasonable to treat him differently because he was
25.
The court looked at two basic purposes of the CRC. It stated that its
application was not necessarily confined to children. It considered
that the first purpose was to ensure that children have the highest
level of possibility of good positive well cared for life. Secondly,
its purpose was to work towards the reality, that having such lives as
children, they grow up into adults having the highest level of
possibility of adulthood.
FAMILY LAW / MAINTENANCE
Parties cannot by private
agreement alter a court order for maintenance of a child, the support
of whom takes precedence over the parents' discretionary expenses.
CHAND v RATTAN
| Magistrates' Court (Family
Division) |
Fiji Islands |
| Magistrate Wati |
06/SUV/0614 |
|
9 Feb 2009 |
Laws considered
Family Law Act 2003
Family Law Rules 2005
Facts
Certain orders had been made by another Magistrate. The applicant (a)
complained that the respondent (R) had failed to comply with those
orders. Contempt proceedings were filed on the ground of wilful
disobedience of court orders.
Issue
• Had R wilfully disobeyed
court orders?
Decision
After hearing the parties, the Magistrate concluded that A had not
shown beyond reasonable doubt that R had wilfully disobeyed three of
the orders. However she found proven the ground that R had wilfully
disobeyed the order to pay maintenance for their child. The court
rejected R's argument that he understood that by granting consent for
the child to be taken out of jurisdiction, his duty to make maintenance
payments would cease. Even if A agreed that R need not pay maintenance,
the court ruled that parties cannot by private agreement alter court
orders for maintenance of a child.
The court also ruled that the duty of a parent to maintain a child had
priority over all commitments other than those reasonably necessary to
enable the parent to support himself or herself. The commitments must
be reasonably necessary, so expenses like those for pet care,
entertainment and church tithes cannot be claimed as priorities over
the needs of a child.
Comment
Maintenance orders are for the benefit of the child and not for the
benefit of the parents. Once a maintenance order is made, only the
court can vary that order. Parties who are subject to a court order
cannot vary the order by agreement between themselves. Any variation
must be sanctioned by the court.
FAMILY LAW / NULLITY
A person's human right to choose
a spouse and freely enter into marriage must be considered when
determining whether parties to an arranged marriage truly consented to
the marriage.
NK v ZMR
| High Court (Family
Division) |
Fiji Islands |
| Scutt J |
[2009] FJHC 95 |
|
2 April 2009 |
International instruments
and law considered
Universal Declaration of Human Rights (UDHR)
Convention on the Rights of the Child (CRC)
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW):
Family Law Act 2003 (FLA)
Facts
The applicant woman (A) and respondent man (R) went through a civil
ceremony on marriage in Fiji on 22 December 2008. A was then 21 years
of age and R 27. A had only met R nine days before the ceremony; he
visited her at her home only twice prior to the ceremony. Prior to
that, A had not even been aware that a marriage was being arranged for
her. A had been pressured into entering the marriage by her father and
uncle. Following the ceremony, R only visited A for about five minutes,
before returning to Australia, where he remained. The parties never
lived together. A had expected that after they had been through the
civil ceremony, they would have a Muslim religious marriage ceremony.
This never eventuated.
A applied for a decree of nullity on the basis that there had been no
real consent to the marriage.
Issue
• Had these parties to an
arranged marriage genuinely consented to the marriage?
Decision
The court granted the decree of nullity.
Under FLA s26, the court was required to consider, among other factors,
the CRC and the CEDAW. CEDAW requires that no one is allowed to be
forced into marriage; both parties must willingly and freely enter into
the marriage relationship. Article 16(1)(b) emphasises a woman's ‘right
to choose a spouse and enter freely into marriage', this right being
‘central to her life and her dignity and equality as a human being.'
The freedom and rights of both spouses are also proclaimed and
preserved in the UDHR, to which Fiji is a signatory. It is in the light
of these rights that the requirement to prove lack of real consent by
reason of duress or fraud must be assessed.
To show duress, it is not necessary to prove physical force was used or
threatened. Rather the court must examine all the evidence within the
context of contemporary Fiji society, taking into account the
particular community from which the parties come. Here, A came from a
community which expects parties to marry in their early twenties or
their late teens and views arranged marriages as the norm. Children are
expected to obey their parents and to accept the ‘rightness' of
arranged marriage. Children may not question the arrangement and
believe they must submit to it without argument. In this context, a
number of factors indicated that A acted under duress:
• she had known R for only
a few days, and had barely spoken to him;
• when asked by R to marry him, she referred the decision to her
father;
• at the time, she did not want to marry R;
• she was only 21 and felt obliged to accept her parents' choice for
her;
• her father and uncle's presence at the ceremony placed further
pressure on her.
The court also found that she had entered the marriage because of
fraud. A had been led to believe by R that a religious ceremony would
follow the civil ceremony. Without that expectation she would never
have entered the civil marriage (nor would her parents have allowed her
to.) R had now withdrawn from going through a religious ceremony. This
may have been because he too had been pressured into the marriage,, and
now did not wish to proceed with it. Even so, his rejection of the
religious marriage still satisfied the civil concept of fraud used in
the FLA.
Comment
This case is typical of many decided in Fiji, where parties seek to set
aside as a nullity an arranged marriage, often in circumstances where a
civil ceremony occurred but the expected religious ceremony did not
eventuate. The court was sensitive to the religious and social beliefs
of the community from which the parties came, but insisted – as the FLA
requires – that the demands of domestic and international law must
prevail.
FAMILY LAW / PATERNITY
Where paternity is in issue in an
application for child maintenance, it is not necessary for the
applicant to rely on or satisfy the statutory
presumption of paternity if she can prove paternity by other evidence.
MAHARAJ v RAJU
| High Court (Family
Division) |
Fiji Islands |
| Scutt J |
Appeal 0989 of 2006 |
|
19 May 2008 |
Law considered
Family Law Act 2003 (FLA)
Facts
This was an appeal from the Magistrates' Family Court. The magistrate
had ruled that Maharaj
(M) was the father of a child born to Ms Raju (R). M appealed against
the ruling on the grounds that the magistrate did not take into account
the presumption of parentage arising from cohabitation, as provided in
FLA s132. The presumption is that if a child is born to a woman who had
lived with a man at any time in the period between 20 weeks and 44
weeks before birth, the child is presumed to be fathered by that man,
unless the contrary is proved.
The magistrate also ordered M to pay R $35 per week as maintenance for
the child. It was established that M was in work as a sales
merchandiser at the time but neither party had produced evidence as to
the amount of M's income and other expenses.
Issues
• Was the magistrate
required to consider the presumption of parentage in determining
paternity?
• Was the magistrate required to ask for a report as to M's means
before making a maintenance order?
Decision
The presumption of parentage is only one means of proving paternity,
which a party may or may not choose to rely on. In this case, R was
able to prove paternity by other evidence, so there was no need for her
to rely on the presumption, and no need for the magistrate to consider
it.
It was not an error of law for the magistrate to order M to pay
maintenance without asking for a means report. M had failed to adduce
any evidence and had no grounds to object. However, in the interests of
the child, the magistrate should have ascertained M's capacity to pay.
The matter was remitted for rehearing solely on the issue of the amount
of maintenance M should be required to pay for the child.
Comment
Presumptions in law often assist a party to prove a fact in issue (in
this case, paternity). However, it is wrong to think of the presumption
as a requirement to be satisfied before the fact in issue can be
proved. It is simply an available option for the party, which they need
not rely on, if they can prove the fact by other means. In this case,
it would be absurd if paternity could only be established by proving
that the parties had lived together at the time when the child could
have been conceived: many children are born to parents who have not
lived together, and paternity can be established by other means such as
DNA tests.
Difficulties in proving capacity to pay maintenance can be easily
overcome if on the first call of case in court, the parties are
reminded to bring documentary proof of income and expenditure. At the
end of the day a trial process must be fair to both parties, and, in
this case, to the child of the parties. That is what the court tried to
achieve by bending over backwards to assist M and ordering an
investigation as to his means before a fresh maintenance order was
made.
FAMILY LAW / PROPERTY
The principles for the
distribution of assets following a divorce in Samoa are to be found in
the leading House of Lords authorities decided under the Matrimonial
Property Act 1973 (UK).
ARP v ARP
Law considered
Matrimonial Causes Act 1973 (UK) (MCA)
Facts
The husband (H) and wife (W) were married in 1973, separated in 2001
and divorced in 2004. During that time they had two sons and an adopted
daughter. Both worked in developing a successful rental car business in
Samoa. The land on which the matrimonial home was built had been
transferred to H by his mother, but that was in return for $5,000 sent
by H and W to the mother. Most of the $5,000 had been earned by H, with
a smaller amount contributed by W. The house had been funded by H and
from earnings from the rental car business. W also made significant
improvements to it. After separation, W and the daughter continued to
live in the matrimonial home.
H had initially funded the business, and made further contributions to
purchase vehicles for it. Both H and W worked in the business. On
separation, H and W divided the rental cars between them and
subsequently each operated separate rental car businesses.
Although H and W had each claimed to be entitled to the home, by the
time of trial they both agreed that it be transferred to the two (now
adult) sons
Issue
• Who was entitled to the
matrimonial home on dissolution of the
marriage?
Decision
Both H and W had a share in the matrimonial home. It was unnecessary
for the court to determine their respective shares, as it ordered that
the home be transferred to the sons, in accordance with the parties'
wishes. Upon transfer, it would be for the sons to decide whether W and
her new partner should be allowed to continue to live there.
The court departed from its earlier decision in Elisara v Elisara
[1994] WSSC 14, in which it had indicated that claims to matrimonial
property could be decided either on the basis of unjust enrichment, as
understood in Canada, or on the basis of a ‘reasonable expectation'
test adopted in New Zealand. In the instant case, the court preferred
to follow the lead of two English authorities, White v White [2000]
UKHL 54, [2001] 1 AC 590 and Miller
v Miller
[2006] UKHL 24, [2006] 2 AC 618 both of which apply the MCA.
Some of the key features of this approach were:
• the primary objective of
the distribution is fairness, taking into account all the
circumstances.
• the first consideration should be given to the welfare of the
children of the
marriage.
• there is no place for discrimination between husband and wife and
their respective roles; there should be no bias in favour of the
money-earner and against the home-maker and the child-bearer.
• as a general guide to the ‘sharing principle' in relation to
matrimonial property, equality should be departed from only if, and to
the extent that, there is good reason for doing so.
• this sharing principle is applicable as much to short marriages as to
long marriages and generally applies to the matrimonial home, however
acquired.
• the sharing principle applies to ‘business and investment' assets as
much as to ‘family' assets, where acquired during the course of the
marriage, at least when acquired by the parties' common endeavour.
• the position may be different for ‘non-matrimonial property', that
is, assets that the parties brought to the marriage or were acquired by
inheritance or gift; but even these assets may be available to meet the
claimant's financial needs.
• the question of who was at fault in the breakdown of the marriage is
generally irrelevant. It might be relevant in exceptional cases, such
as where misconduct by one party has affected the future earning
capacity of the other party after the marriage is dissolved.
In this case, the rental car hire business was considered as part of
the matrimonial property, as both H and W had contributed to its
success. It was appropriate to divide this asset equally (as the
parties had done in a settlement between them). The matrimonial home
was also treated as matrimonial property, as it had been acquired
during the course of the marriage. The alleged misconduct of the
parties was ignored in the determination of the property issue.
Comment
The decision as to the distribution of the matrimonial home was
relatively simple, given that the parties were essentially in agreement
as to what should happen to it. However, the case is very significant,
as it sets out some of the principles for determining the distribution
of assets in other cases.
Although the English decisions were made in the context of no-fault
divorce (while Samoa continues to recognise fault-based grounds for
divorce), and a statutory power to redistribute property on divorce
(for which there is no Samoan equivalent), the court considered that
they
provided the best available guidance for the difficult task involved.
The court acknowledged that some allowance might be needed to
accommodate special features of Samoan circumstances, particularly
regarding inalienable customary land. (A similar proviso has been
recognised in Vanuatu, in the case of Joli v Joli [2003]
VUCA 27, 1 PHRLD 12, where the court established that the MCA was
applicable in Vanuatu.)
The decision is to be welcomed for its equal treatment of the
contributions, both financial and non-financial, of the parties. There
is a strong focus on treating the marriage as a partnership between
equals, who each contribute to the joint endeavour in their own ways,
whether that
is in the paid workforce or in domestic work and child-rearing. The
likely outcome of such an approach in most cases is an equal division
of the assets, unless there are strong grounds for departing from
equality. It is also significant that the conduct of the parties, in
terms such as their infidelity or mistreatment of the other, will
rarely affect the distribution of property.
It should be noticed that the court stressed that it was only referring
to those factors in
the English cases of most relevance to the immediate case. The court
thus focused on the ‘sharing principle' and said little about two other
key principles established in the House of Lords cases: the assessment
of the present and foreseeable financial needs of the parties, and
compensation to redress any significant future economic disparity
between the parties arising from the way they conducted their marriage
(eg where the wife might be disadvantaged in her career by taking time
out for child rearing). Family lawyers in Samoa will need to become
familiar with all aspects of the leading English decisions.
FAMILY LAW / PROPERTY /
MAINTENANCE
Property acquired by one spouse
after separation may still be treated as matrimonial property where it
was purchased with funds acquired during the continuance of the marital
relationship.
NISHA v KHAN
| Family High Court |
Fiji Islands |
| (Appellate Division) |
Appeal No. 06/Suv/0021 |
| Scutt J |
25 July 2008 |
Law considered
Family Law Act 2003 (FLA)
Facts
The husband (H) and wife (W) cohabited for 11 years before marrying in
1976. They had lived and raised a family in the USA for 23 years and
acquired citizenship there, before retiring back to Fiji in 1997. In
2000, H purchased land at Wainibuku and began spending time there with
another woman with whom he had started a de facto
relationship. However, H also continued
to spend time with W in the matrimonial home and to maintain her. H and
W finally separated in 2002.
On dissolution of the marriage, the magistrate awarded W $125 per week
by way of maintenance, a half share in the matrimonial home (to be
transferred into her name) and half the value of the Wainibuku
property. Upon payment to W of her half share in the Wainibuku
property, the maintenance payments would cease. H appealed against the
orders, arguing that the magistrate was in error on the facts, that the
amount of maintenance was excessive, and that W should have no claim to
the Wainibuku property because it was acquired by H after the breakdown
of his relationship with W.
Issue
• Had the magistrate
reasonably exercised his discretion in awarding maintenance and
dividing the property?
Decision
The appeal was dismissed. The court upheld the magistrate's findings of
facts, as they were open on the evidence; it also upheld the
maintenance order and the property settlement.
The court held that the magistrate had properly considered the factors
relevant to maintenance under FLA – the capacity of H and W to earn
future income (having regard to their age, health, education, skills,
experience, income-earning assets and entitlement to social security
payments from the USA), the capacity of H's new partner to earn an
income, financial support from family members, and any liabilities of
the parties.
The court also accepted the magistrate's finding that H and W had not
separated at the time H acquired the Wainibuku property. A marital
relationship has not necessarily broken down even though one party
begins to live with another person. Nor was it conclusive that H had
pronounced a Talak, a customary law divorce. Therefore it was open to
find that the property had been purchased during the marital
relationship. Even if the property had been acquired after separation,
it had been purchased with funds acquired during the relationship and
so should be considered matrimonial property in any event.
The court accepted the magistrate's findings that W had made an equal
contribution to the acquisition of the matrimonial property. Her
contributions were mainly non-financial in nature, but after a long
marriage, the courts will tend to value both parties' contributions
equally, unless there is some exceptional factor to the contrary.
Comment
The decision contains a careful review of many Australian authorities
on the Australian Family
Law Act, on which the Fijian law is based.
Although there was much argument on the appeal as to whether the
Wainibuku property had been purchased during the subsistence of the
marriage, the issue was something of a diversion: as the court found,
the significant fact was that the purchase money had been acquired
while the relationship was still in place, so that the land was
properly regarded as matrimonial
property. Even so, the decision shows a realistic appreciation of many
relationships, by recognising that a marriage does not necessarily end
when one spouse begins an adulterous relationship with a third party.
The decision also confirms the trend seen in Arp v Arp above,
for contributions between spouses in a long marriage to be treated as
equal in all but exceptional cases. This greatly improves the position
of those women whose contribution to the marital partnership takes the
form of non-financial contributions such as child care, domestic work,
home improvement or unpaid work in subsistence food production.
FAMILY LAW / PROPERTY
A party whose name is not
registered on the title to property can establish an interest in the
property under a constructive trust, by showing a common intention
shared with the legal owner that
she should have such a share, and her detrimental reliance on that
intention.
KISEKOL v KISEKOL
| National Court of Justice |
Papua New Guinea |
| Davani J |
[2009] PGNC 191; OS No. 171 of 2009 |
|
6 October 2009 |
Law considered
Common law on constructive trusts
Facts
The wife (W) and husband (H) were married in 1995. In 2000, the
matrimonial home was purchased and registered in the name of H alone.
W's evidence, which the court accepted, was that they had agreed that
the property would be in joint names, but that after the purchase, H
explained that he had registered it in his name alone, because he was
paying the mortgage. However, he told W that ‘the bottom line is that
it's ours and you've got to be happy that you own a house.' W proceeded
on this basis, and purchased palm trees and other flowers and planted
them on the property to beautify the premises.
Following the parties separation in 2006, W remained in occupation of
the property. However, H purported to sell the property to the second
defendants, who sought to obtain vacant possession. W sought a
declaration that she held a one half share in the property by way of a
constructive trust.
Issue
• Did W have a share in
the property even though it was registered in
H's name alone?
Decision
The court ruled that H held the property on constructive trust for
himself and W equally and that H must pay her half the proceeds of sale
to the second defendants. W could remain in possession of the property
until the money had been paid.
In this case, W had succeeded in establishing a constructive trust
based on common intention.
It was necessary to show that:
(1) there was an agreement
between the legal owner and the ‘partner'
that the land or property was to be jointly owned; that the partner was
to have a distinct interest in the property. That
agreement could be either express or implied; and
(2) the partner acted on the belief of that agreement to his or her
detriment.
Where this is shown, the legal owner is then said to become
constructive trustee for the partner
and holds the property in trust for the partner according to the
agreement.
Comment
The principle in this case applies both to married couples and those in
a de facto relationship. It enables the court to determine the existing
property rights of the parties, even if the court has no power to
redistribute property as it sees fit.
The constructive trust allows a party whose name does not appear on the
title deed to establish a right to share in the property, or even to
obtain a greater share than that indicated by the legal title. The
court will examine the objective evidence of what was said and done
between the parties prior to, at the time of and shortly after the
purchase of the property. Even if H had a secret intention not to give
W any share in the property, he is bound by his words to her at the
time, provided W then relied on them to her detriment. The detriment
does not need to be a contribution to the purchase price of the
property. In this case, the detriment was her spending money on
improvements to the property.
VIOLENCE AGAINST
WOMEN
VIOLENCE AGAINST WOMEN /
EVIDENCE
In the trial of a person accused
of rape, the court must give a warning that it is dangerous to convict
on the basis of the uncorroborated evidence of the complainant.
R v TALANOA
Laws considered
Criminal Offences Act (Cap 18) (COA)
Evidence Act (Cap 15) (EA)
Common law practice of corroboration
Facts
The complainant (C) met the accused (A) at a night club. C accompanied
A and two others to a vacant house after A first bought a bottle of
liquor. C claimed she wanted to go to another nightclub and A agreed to
take her. The vacant house was adjacent to A's house. C alleged that
inside the house, A took her to a room, which was locked from the
outside, and raped her as did the other two. C later walked to the
police station with a stranger and reported the matter to police. A was
charged with rape and one count of abetment to rape.
Issue
• Was a corroboration
warning required?
Decision
Acquitting A of rape, the court held that although corroboration was
not required to sustain a conviction, the practice is to warn the jury
of the danger of convicting on the uncorroborated evidence of the
complainant. In this case, there was no corroborative evidence (that
is, no admissible evidence from an independent source which tends to
confirm the victim's evidence that the accused committed the crime.) On
the issue of credibility, the court preferred A's evidence. It found
that (C) had consented to having sex with the accused on the night in
question.
Comment
The court here applied the traditional common law approach that a
person may be found guilty of a sexual offence on the evidence of the
complainant alone (without any supporting evidence) provided a warning
has been given pointing out the danger of doing so. See also the Tongan
cases of R v Fungavai
[2007] TOSC 8, 2 PHRLD 49 and R
v Kakala [2008] TOSC 10. The court acknowledged the
criticism that the traditional approach is based on ‘highly
questionable assumptions' with ‘their highly gendered construction.'
These criticisms have prompted legislatures or the courts in other
jurisdictions to abolish the need for a warning. (These developments
were reviewed in Balelala
v State [2004] FJCA 49, 1 PHRLD 4.) However, the
traditional practice is still applied in Tonga, unnecessarily adding to
the difficulty of securing convictions in sexual offence cases.
VIOLENCE AGAINST WOMEN /
SENTENCE FOR MANSLAUGHTER
In sentencing the offender for
manslaughter, the court considered it an aggravating factor that it was
an assault by a husband on his wife.
POLICE v PIUILA
Law considered
Common law on sentencing
Facts
The defendant (D) and his wife lived with their two young
grandchildren. One morning, the children woke at 5am. The wife was
unable to get the children back to sleep, so she returned to bed and
went to sleep. This angered D, who violently kicked his wife several
times in the jaw. She died from the injuries. D pleaded guilty to
manslaughter. The Supreme Court considered the appropriate sentence.
Issue
• What was the appropriate
sentence?
Decision
The court considered that the crime was aggravated by the fact that D
had killed his wife, and by the fact that it was caused by an
unprovoked and violent act. The court stated that:
There seems to be a notion
that in twenty first century (21st C) Samoa, assaulting your wife
should be tolerated if she fails in her ‘wifely duties'. To those
misguided enough
to hold such an antique view and belief the court sends this strong
message – no this sort of conduct is no longer acceptable and will not
be tolerated.
To emphasise the seriousness of the offence, the court increased the
‘starting point' for the sentence for manslaughter of a wife from eight
years to ten years imprisonment. However, D's guilty plea required a
deduction of 3 years, and D's previous good record plus the ifoga and customary
settlement he made to the family of his late wife warranted a further
reduction of one year. In the result, D was sentenced to six years
imprisonment.
Comment
The court displayed considerable awareness of the gender based aspects
of the violence in this case. First, the court rejected any notion that
it was somehow acceptable for a man to use violence against his wife.
Rather than being an extenuating factor, which might justify a lesser
sentence, the court ruled that it made the offence more serious. The
court also refused to accept any suggestion that the violence had been
provoked by the wife undertaking her child care responsibilities in a
manner that her husband found unsatisfactory. These pronouncements
represent the kind of judicial response to domestic violence expected
by international human rights norms, as set out in the case of Opuz v Turkey
(reported earlier in this volume).
The only lingering concern from a human rights perspective was the
reduction in sentence allowed for D's apology and customary settlement
with the victim's family members. It has been noted in an earlier
volume of this Digest (2 PHRLD 35) that allowing customary
reconciliation to be used in mitigation in cases of gender based
violence is discriminatory against women, as the overwhelming majority
of offenders in such cases are men. Further, the victim's opinion is
often not considered (more so in this case, where the victim was
deceased) and the remorse of the offender often plays little part in
the process.
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