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PACIFIC HUMAN
RIGHTS LAW DIGEST -
VOLUME 5
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Edited by:
Chris Yuen, RRRT Senior Human Rights Mentor/Australian Volunteers
International Volunteer
and
Joni Madraiwiwi, Chief Justice of Nauru
Prepared by the Regional
Rights Resource Team of
the Secretariat of the Pacific Community
Suva, Fiji, 2015
© Secretariat of the Pacific Community (SPC), 2015
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Original text: English
Published by SPC at the Suva Regional Office
Level 2, Pacific House
Private Mail Bag, Suva, Fiji Islands
Tel: (+679) 330 5582 Fax: (+679) 330 6582
[email protected] | www.spc.int/rrrt/
The Pacific
Human Rights Law Digest (Volume 5) is a collection of
recent human rights case law from across the Pacific for use by legal
practitioners, magistrates and judges, policy makers and advocates as
precedents and tools for policy initiatives.
2015 marks the 10th anniversary since the Secretariat of the Pacific
Community's (SPC's) Regional Rights Resource Team (RRRT) launched its
first Pacific Human Rights Law Digest (PHRLD).
This anniversary edition revisits all previous PHRLDs, with an
additional two sections, containing updates to Pacific cases from
previous editions and comprehensive indexing, to assist accessibility
to all editions.
The Pacific Human
Rights Law Digest (Volume 5), is supported by the
Australian
Government.
Table of
Contents
Introduction
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, and human rights
conventions, standards and principles
Part III:
Cases dealing
with sexual and reproductive health and rights
(SRHR) and refugee
matters
2015 updates – Pacific
Human Rights Law Digest, Volume 1
2015 updates – Pacific
Human Rights Law Digest, Volume 2
2015 updates – Pacific
Human Rights Law Digest, Volume 3
2015 updates – Pacific
Human Rights Law Digest, Volume 4
Index by case name
Index by country
African Union
In the
matter of Lohe Issa Konate v Burkina Faso (African Union,
2014)
Australia
Haraksin v
Murray Australia Limited (Australia, 2013)
Iliafi v
The Church of Jesus Christ of Latter-Day Saints Australia
(Australia, 2014)
NSW
Registrar of Births, Deaths and Marriages v Norrie
(Australia,
2014)
Stanley v
Service to Youth Council Incorporated (Australia, 2014)
Cook Islands
In the
matter of Cook Islands National Superannuation Fund Act 2000 and
the Cook Islands Constitution
European Union
Case of
El-Masri v The Former Yugoslav Republic of Macedonia
(European
Union, 2012)
Case
of Eremia v The Republic of Moldova (European Union, 2013)
Fiji Islands
Chandra v State
(Fiji, 2014)
Dakai v State (Fiji,
2015)
Kumar v State (Fiji,
2015)
Labour Officer v
Lolohea (Fiji, 2015)
Sing v Singh (Fiji,
2014)
State v K.R.A.K.
(Fiji, 2013)
State v
Laojindamanee (Fiji, 2013)
State v Raikadroka
(Fiji, 2014)
Tamblyn
v Director of Public Prosecution (Fiji, 2014)
FSM
In Re Suka (Chuuk, FSM
2013)
Guam
In Re
Right of Referendum of the People of Guam (Guam, 2014)
People of Guam v
Calhoun (Guam, 2014)
People of Guam v
Mendiola (Guam, 2014)
People of Guam v Taman
(Guam, 2013)
Kiribati
Attorney
General, Iro Republic of Kiribati v Baakoa (Kiribati, 2013)
Republic v Arawaia
(Kiribati, 2013)
Malaysia
Indira Gandhi
A/P Mutho v Pengarah Jabatan Agama Islam Perak &
Ors (Malaysia, 2013)
Noorfadilla
Ahmad Saikin v Chayed Basirun & Ors (Malaysia,
2011)
Nauru
AG v Secretary of
Justice (Nauru, 2013)
In Re Adoption of BR
(Nauru, 2013)
Keke v Scotty (Nauru,
2014)
Limen v Chief Secretary
(Nauru, 2015)
Namibia
Government of The Republic of Namibia v LM, MI and NH
(Namibia, 2014)
New Zealand
Chief
Executive of the Ministry of Business, Innovation and Employment
v Liu (New Zealand, 2014)
In Re Greenpeace
(New Zealand, 2014)
Vogel v
Attorney-General (New Zealand, 2013)
Organization of American
States
Case of
Atala Riffo and Daughters v Chile (Organisation of the
America
States, 2012)
Palau
Hanpa
Industrial Development Corporation v Republic of Palau
(Palau,
2013)
Papua New Guinea
In Re Application of
Enforcement of Human Rights, In Re Jacob Okimbari
(PNG, 2013)
In Re Application of
Enforcement of Human Rights, In Re Namson Lamaning
(PNG, 2013)
In Re
Constitutional (Amendment) Law 2008, Reference by the Ombudsman
Commission of PNG
(PNG, 2013)
In Re Powers,
Functions, Duties and Responsibilities of the
Commissioner of Police (PNG, 2014)
Kauke v
Commanding Officer, Boen Correctional Institution (PNG, 2014)
Kenziye v
Independent State of PNG (PNG, 2013)
Koima &
Jomar Trading Ltd v The Independent State of PNG (PNG,
2014)
Namah v Pato (PNG, 2014)
O'Neil v Klapat (PNG,
2014)
State v Transferee
(PNG, 2014)
RMI
In Re
Petition for Citizenship by Tamuera (RMI, 2014)
Samoa
Key v Police (Samoa,
2013)
PB Sea Tow
Ltd v Attorney General (Samoa, 2014)
Police v Apelu (Samoa,
2010)
Punitia v Tutuila
(Samoa, 2014)
Solomon Islands
Bade v Regina (Solomon
Islands, 2014)
Fo'oka v Regina
(Solomon Islands, 2014)
Hatilia v Attorney
General (Solomon Islands, 2014)
R v Gua (Solomon Islands,
2013)
Regina v Bonuga
(Solomon Islands, 2014)
Wale v Attorney-General
(Solomon Islands, 2014)
Tonga
Filimone Hefa v Rex
(Tonga 2013)
Ilagana v
Westpac Bank of Tonga (Tonga, 2014)
Latu v Rex (Tonga, 2014)
Saavedra v
Solicitor General (Tonga, 2013)
Vaomotou v Rex (Tonga,
2014)
Tuvalu
In the
matter of the Constitution and in the matter of an application
for interpretation and application
of the constitution and orders, Civil Case No.1 of 2014 (High
Court of
Tuvalu, 2014)
Vanuatu
Carcasses v Boedoro
(Vanuatu, 2014)
Chief Executive
Officer for Education v Gibbons (Vanuatu, 2013)
Public Prosecutor v
Tiobang (Vanuatu, 2013)
INTRODUCTION
This is the fifth volume of the Pacific
Human Rights Law Digest (PHRLD) produced by the Pacific
Regional Rights Resource Team (RRRT) of the Secretariat of the Pacific
Community (SPC). 2015 marks the 10th anniversary of the launch of
RRRT's first Pacific Human Rights Law Digest. This anniversary edition
revisits all previous PHRLDs, containing two additional sections, with
updates to cases and comprehensive indexing to assist greater
accessibility to all editions.
Over the past 20 years RRRT has been working with, and has engaged in
training of, members of parliament, non-governmental organisations, 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. In practice, RRRT 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 as precedents in the courts, and
as tools for policy initiatives.
For those without ready access to the Internet, the PHRLD provides a
convenient source of contemporary case law. For those connected to the
Internet, the digest also serves as an inventory of the most
significant human rights decisions to be found on the invaluable
Pacific Islands Legal Information Institute website (www.paclii.org), and on
other electronic sources outside of the Pacific region. (Readers who
cannot access decisions that are reported in the PHRLD on the Internet
can request them from RRRT.)
The PHRLD will also be a valuable resource for those outside of the
Pacific region who are interested in the development of human rights in
this region.
The PHRLD is not just for lawyers, but also for human rights activists
and other stakeholders. It is therefore not just a compilation or
compendium of cases with headnotes, as commonly found in law reports,
but rather it is an analysed summary of judgments, highlighting
significant human rights issues. SPC's RRRT has a vast network of
local-level human rights defenders who are increasingly using the law
as a tool for change in the areas of governance and human rights. The
experience of this network of human rights actors has now been
reflected in the Diploma in Leadership, Governance and Human Rights,
which is jointly sponsored by SPC's RRRT and the University of the
South Pacific (USP), and is offered through 12 USP campuses in the
Pacific region.
RRRT's ultimate objective is to help to build a human rights culture
that enhances the rule of law and democracy in the Pacific region.
Promoting the use of human rights standards in law, practice and policy
is part of RRRT's broad, long-term strategy for achieving that goal.
About RRRT
RRRT provides human rights training, technical support and policy
services in the Pacific region. It is a programme of the Secretariat of
the Pacific Community, an international organisation that provides
technical assistance, policy advice, training and research services to
22 Pacific Island countries and territories.
RRRT has specific programmes in Fiji, Federated States of Micronesia
(FSM), Kiribati, Nauru, Niue, Republic of Marshall Islands, Palau,
Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu, and works on request
in all other SPC member countries and territories. With partners
including governments and regional and civil society organisations,
RRRT has been described as a 'cutting edge programme' in human rights
capacity building due to its approach of tackling both systemic and
socio-economic issues through interventions at the micro, meso and
macro levels.
RRRT's goal is to enhance development for all Pacific peoples through
increasing the observance of all human rights (civil, political,
economic, social and cultural) and good governance.1
It seeks to
achieve this goal, at the country level, by providing training,
mentoring, linking and support to community organisations through its
networks of country focal officers, community paralegals and civil
society partners. At the regional level, it seeks to realise this goal
by training lawyers, magistrates, judges and policy-makers to adopt and
apply human rights principles and good governance practices in their
work.
Volume 5 of the Pacific
Human Rights Law Digest is supported by the Australian
Government.
USING THE
DIGEST
This is the fifth volume of the Pacific
Human Rights Law Digest. As with previous volumes, volume
5 publishes summaries of leading cases from the Pacific region and
elsewhere that illustrate important developments in the judicial
application of human rights standards.
This volume is divided into five parts.
Part I
contains summaries of cases from various Pacific Island countries and
territories (PICTs) that consider human rights principles and rights
contained in the bills of rights of PICT constitutions or in
international human rights instruments.
Although most cases contained in this volume are decisions handed down
since the completion of Volume 4 of the PHRLD, some older decisions
have been included when relevant. While the collection does not purport
to cover all cases in the Pacific region that have dealt with human
rights, it contains a representative sample of the range of current
issues and the most important and interesting cases from the region.
Part II
contains significant international human rights judgments that discuss
a range of fundamental rights and freedoms that are enshrined in bills
of rights or human rights conventions. It gives particular attention to
cases dealing with principles of contemporary importance in the Pacific
region.
Part III
contains significant and interesting cases relating to two themes:
sexual and reproductive health and rights (SRHR) and asylum seekers.
This part has been added at a time when issues regarding SRHR and
asylum seekers are emerging in the Pacific region. It contains selected
international cases that illustrate some of the issues that courts have
had to determine in relation to SRHR, and regional cases in relation to
asylum seekers. Although these areas are relatively novel in terms of
regional jurisprudence, it can be expected that litigation on such
issues will become more frequent and complex in coming years, both
within and beyond the Pacific region.
Within the first three parts, 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 main aspects of the decision and a commentary on the case. Each
summary also lists the laws and international instruments considered by
the court in deciding the human rights issues. Not all cases referred
to in the full text of the judgment are included in the summary;
rather, only those cases that have a significant bearing on the human
rights issue being discussed have been included.
Part IV is
an updates section, providing updated information relevant to some of
the Pacific cases mentioned in the previous four volumes.
Part V is a
new keyword index section, incorporating all cases reviewed, and covers
all five volumes of the digest. The keyword index section aims to
assist users to locate relevant cases in the PHRLDs.
The PHRLD was modelled on the highly regarded Interights Commonwealth Human Rights Law
Digest. Unfortunately Interights ceased its operations in
2014. RRRT acknowledges Interights as the primary inspiration for
producing a publication specifically focusing on the Pacific region.
ACKNOWLEDGEMENTS
RRRT would like to thank Joni Madraiwiwi, Chief Justice of Nauru, and
Chris Yuen, Senior RRRT Human Rights Mentor/Australian Volunteers
International volunteer, for contributing their expertise and
significant support to this publication.
In addition, we would like to thank all of the lawyers, judges and
magistrates who made unpublished judgments available to us. We would
also like to thank SPC staff members who assisted during the final
stages of producing this volume of the PHRLD. Staff of RRRT contributed
to compiling the cases that appear in this volume.
RRRT extends thanks to the Australian Government for its support,
without which this publication would not have been possible.
EDITORIAL
REVIEW
Overview
This is the fifth volume of the Pacific
Human Rights Law Digest (PHRLD). In the decade since the
first volume was published (2005), the profile of human rights has
become more visible in courts throughout the region. Human rights are
no longer a novelty, and although the discourse around rights continues
to be regarded with some wariness by the established power structures
(traditional, religious and governmental) the subject of human rights
can no longer be disregarded. What has facilitated this process in
particular is the advocacy and awareness around the Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the
Child (CRC). It is no coincidence that a significant
number of cases in this volume concern women and children.
It is encouraging that the cases are arising from a more diverse
background, ranging from arrest and detention, children, cruel and
degrading treatment, custom, democracy and the rule of law,
discrimination, fair trial, family law, mandatory sentencing, movement,
privacy, procedure, property, violence against women, and workers'
rights. Human trafficking, which first appeared in volume 4 of the
PHRLD, reappears in this volume, and slavery is addressed as an issue
for the first time in the region (although some aspects of the case
raise questions). Both topics reflect the less appealing aspects of
globalisation and the phenomenon of cross-border criminal activities.
The cases involving asylum seekers and refugees in the region are also
due, in part, to these factors.
Notwithstanding those positive trends, the level of ratification of the
nine main human rights conventions remains low compared with other
regions in the world. All Pacific Island states have either signed or
ratified the CRC or CEDAW (with the exception of Tonga), and seven
states have signed or ratified the International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights. Palau is the only
state to have either signed or ratified all nine conventions. This
deficit tends to affect the region adversely by not having the
processes and mechanisms in place to facilitate the implementation of
human rights, and thus, remains a work in progress.
In considering human rights conventions and international standards,
the courts have moved beyond the question of whether or not a
convention has been ratified. This was the editorial focus of the first
volume of PHRLD, and some of the case law reported in the volumes after
that. These volumes have been prepared, at the very least, to be used
as a guide or clarification of a particular right being considered. The
focus now is more on the nature of the right being considered and how
it might be applied to local circumstances. The distinguished drafters
of the Bangalore Principles, which were developed in 1988, would be
gratified that the reliance on conventions for guidance, clarification
and interpretation is now commonplace, not only in the Pacific but
globally as well, as reflected in the cases from outside the region.
Some attention has been given to democracy and the rule of law because
those principles remain fragile and subject to the interventions of
governments and politicians. The tendency to be critical and dismissive
is understandable, but there needs to acknowledgment that creating a
culture of rights and embedding those values in Pacific Island
societies takes time and commitment. There is no deep-rooted tradition
or culture in the Pacific about asserting rights through mass action
and protest. In such an environment, the courts bear much of the
responsibility for holding the other arms of the state to account. But
as was noted in the editorial commentary in volume 4, this is an issue
for the entire community to be concerned with and vigilant about.
The Pacific is part of the global community, and human rights are
universal. In Part II of this volume of the PHRLD, cases are included
that remind judicial officers, practitioners and paralegals that while
the jurisdiction and context may differ, the concerns are the same and
that parties are relying on either bills of rights provisions in their
constitutions, or on human rights conventions or both. Litigants go to
court to seek redress for alleged breaches of their rights, usually by
a state party.
Part III highlights cases dealing with sexual and reproductive health
rights and refugee matters in order to take account of the recent focus
on sexual and reproductive health rights and the establishment of
refugee processing centres in the region (Nauru and Papua New Guinea).
There is little debate and discussion in the Pacific over the latter
issue, but it is a real and ongoing concern in Australia given that the
centres are a direct result of the Australian government's immigration
and border control policies. From a rights perspective, human rights
practitioners and advocates in the region have an equal responsibility
to ensure that the rights of asylum seekers and refugees are fully
observed and respected.
PART
I
This part of the PHRLD deals with cases from Pacific jurisdictions
involving the application of human rights standards, whether on the
basis of human rights convention, bills of rights provisions of
constitutions and/or statutes. In some of the cases, the courts have
relied on constitutional provisions and legislative enactments rather
than on human rights conventions to uphold and enforce particular
rights.
Arrest and detention
Two cases from Guam illustrate the process that courts apply in
balancing the public interest against individual liberty. In People of Guam v Calhoun,
the appellant successfully applied to have evidence of his intoxication
suspended. The court held that the public interest was served by
stopping him and testing his blood alcohol levels, and that this was an
acceptable means to control drink driving; the absence of authorisation
at the appropriate level to legitimise the actions of the officers at
the checkpoint converted them into unfettered discretions that were
illegal and unconstitutional.
In People of Guam v
Taman, the court adopted a broad interpretation to a
provision of the Stop
and Frisk Act, which provides that in certain
circumstances a suspect cannot be stopped nor can necessary enquiries
be made as to whether to arrest that person beyond a limit of 15
minutes. It was held that there could be an implied waiver to that
provision if it was established that consent was voluntary. The court
reasoned that if the 15-minute limit were to be strictly applied,
suspects could deliberately prolong the process to evade the law. The
requirement to establish whether consent was voluntary is a safeguard
that has to be satisfied before the time limit can be lifted.
Children
The CRC is the most widely ratified convention in the region because
the proposition that children are vulnerable and require protection is
self-evident. This understanding is also accompanied, paradoxically, by
ambivalence in terms of cultural and religious reinforcement about
'children being seen and not heard'. Many parents and elders in the
Pacific have real difficulty accepting that disciplining and positively
reinforcing children does not have to include corporal punishment, as
illustrated by one of the cases below.
Several cases deal with child offenders and the varying ways in which
the courts have dealt with them. In the Fijian case of State v KRAK, the
offender was 10 years 7 months old when he fatally shot a 6-year-old
victim with a gun that was left unattended. He was convicted of
manslaughter and his parents were required to enter into a bond of FJD
5,000 to assure his good behaviour until the age of 18. In the Vanuatu
case of Public
Prosecutor v Tiobang, a 13-year-old offender sexually
assaulted a 5-year-old girl who regarded him as her father. He received
a two-year suspended sentence, conditional on good behaviour. While
there is some concern about leniency in the latter case, had both
jurisdictions adopted a higher age of criminal responsibility (between
14 and 16 as recommended by the CRC Committee), neither offender would
have had to experience the criminal justice system. In both cases, no
custodial sentence was imposed in recognition of the potential for
rehabilitation of child offenders.
The approach taken where
children are victims of non-sexual actions taken by adults is
interesting.
In the Fijian case of Dakai
v The State, the court reduced the 2-year sentence (with
an 18-month non-parole period) of a parent who had whipped his
10-year-old son with an extension cord causing serious injuries. The
substituted sentence was 12 months, with 9 months suspended for 3
years, which suggests some leniency. No reference was made to the CRC.
In another Fijian case, Chief
Education Officer v Gibbon, the appellant queried the
reliance on the CRC. The respondent, an 11-year-old student, had been
talking in class and the teacher had him parade in front of the other
students before having his trousers and boxer shorts pulled down by
another older student. The court at first instance cited the CRC as a
guide in awarding damages against the state, which was endorsed on
appeal.
In instances where children are victims of sexual offences by adults,
the courts have been prepared to dispense with criteria that might have
adverse consequences for child victims. In People of Guam v Mendola,
an essential element of First Degree Criminal Sexual Conduct was a
finding of sexual penetration. The court held that while there was no
direct evidence from the victim about penetration, her specific age and
language used at trial provided circumstantial evidence that, when
viewed with the examining nurse's verbal evidence as a whole, supported
a reasonable inference of penetration. In Kumar v The State,
the appellant's attempt to argue that a child's uncorroborated evidence
contrary to s. 9 of the Juveniles
Act, denying him the right to a fair trial, was
unsuccessful. The court held that the provision was unconstitutional
and that the requirement for corroboration was based on incorrect
stereotypes and myths.
Article 21 of the CRC concerning 'the best interests of the child' has
received judicial attention across the Pacific. In the Tongan case of Saavedra v Solicitor General,
the court held that the best interests of the child is not confined to
material wellbeing and educational advantages. The assessment was made
after examining all the circumstances, and on that basis that (a) the
child was well-looked after by his mother, grandmother and extended
family; (b) was receiving an education; and (c) the child had no wish
to leave the only environment he knew. Compare this with the Nauruan
case In re Adoption of
BR, where it was held that s. 9(1) of the Adoption of Children Act
was not in breach of art. 21 in providing that parents of a particular
ethnicity could only adopt children of the same ethnicity. The act was
silent on the issue. And if it was to be construed as contrary to the
spirit of CRC, the act predated the CRC and parliament had chosen to
retain it. Contrast this with another Fijian case, Sing v Singh, in
which the court – while citing the CRC and the provisions of art. 21 –
nevertheless made an adoption order contrary to the provisions of the Adoption of Infants Act.
These cases emphasise the importance of carefully relating the
applicable convention and law to the facts.
Cruel, inhuman or
degrading treatment
The cases in this category are all from Papua New Guinea (PNG). It
would, however, be unfair to conclude that PNG is less respectful of
human rights than its Pacific neighbours. In the years after the
December 2006 coup in Fiji, there were several well-publicised
incidents of deaths of people in custody and beatings of prisoners that
were neither investigated nor punished because of the climate of
impunity that prevailed at the time. Acknowledgment needs to be made of
the role the PNG courts have played in highlighting the issues that are
systemic and deep-rooted in nature.
In Kenziye v
Independent State of Papua New Guinea, damages were
awarded under each head (property, robbery, assault, sexual assault and
rape, perverse sexual assaults and false imprisonment) for actions
committed by police officers against a community in 1991. General and
exemplary damages were ordered against the state for victims of
perverse sexual assault, including forcing the victims at gunpoint to
perform sexual acts and sodomy in public. A significant point to note
is that although it had been over 20 years since the incidents had
occurred, the proceedings were entertained under the relevant
constitutional and legislative provisions. Police brutality is a common
occurrence in PNG. The reasons are varied and complex, requiring reform
and other complimentary measures at all levels of the system. PNG as a
country is much larger than its Pacific neighbours and far more
diverse. Those factors also need to be taken into account during any
discussion about these issues.
In the case of In re
Jacob Okimbari, the applicant was awarded reasonable and
exemplary damages for the treatment he received after he was arrested
after a bank robbery. Subsequently convicted, he was first assaulted
then told to lie on the floor. He was then shot in both legs and taken
to hospital when he lost consciousness. The police refused to allow him
to be admitted, and he was made to sleep in the cell. He then was
assaulted for another two days, and was beaten with a bat until he lost
consciousness. He was again taken to hospital and then released without
the doctor's approval and assaulted until he signed a confession. In In re Namson Lamasing,
the plaintiff was awarded reasonable and exemplary damages for assault,
denial of medical treatment, detained without charge and without being
taken before a court for 10 days. He was detained for a further five
months before being granted bail. The repeated use of violence in both
cases suggests it is a routine occurrence.
The case of Kauke v
Commanding Officer Boen Correctional Institution concerned
the diet that was served to inmates. The plaintiff alleged that the
correctional institution and the state had failed to provide food that
was adequate for maintaining his health and wellbeing. The court held
that he was entitled to be protected against inhumane treatment and
treated with humanity and respect for the inherent dignity of the human
person. The minimum legal requirements regarding food from the
prescribed groups had to be observed. However, the breaches were not so
severe as to suggest the plaintiff was being treated inhumanely.
However, the standards set out in the legislation and the regulations
had to be complied with and the correctional institution was to file a
schedule setting out a timetable for compliance.
Custom
The case in this category is one concerning banishment from Samoa where
the village fonos
or councils have powers conferred by statute to make regulations that
are akin to bylaws. In Punitia
v Tutuila, the appellants appealed against damages awarded
against them totalling WST 963,710, with several being ordered to pay
an additional WST 18,585. On appeal, the amount was reduced to WST
813,710, which they were jointly and severally liable to pay, plus
general and vindicatory damages of WST 50,000. The appellants had not
only banished the respondents from the village but they had also
damaged their property. The court held that the respondents'
constitutional rights had been breached and that the fono was obliged by
law to act according to law and observe the requirements of fairness.
Applicants could claim damages under tort law or by way of
constitutional remedy but adjustments had to be made to avoid double
compensation. The punitive level of damages indicated strong court
disapproval of such action by the fono.
Democracy and rule of law
The cases grouped under this subject relate to different aspects of
those principles but are all related to whether or not constitutional
provisions have been followed. The rule of law grounds democracy in
legal structures, systems and rules that enable the popular will to be
expressed and reflected in a manner that mitigates arbitrary or
personal conduct. Democracy, in turn, infuses the rule of law with
principles that allow it to be more responsive to the popular will. One
cannot exist without the other for those reasons.
The cases from PNG demonstrate the vigilance of the courts in
interpreting and applying the provisions of the PNG Constitution. In re Constitutional Amendment
Law 2008, reference by the Ombudsman Commission of PNG,
attempts to limit the independence of the Ombudsman Commission by
making it subject to another entity set up by parliament were declared
unconstitutional. In O'Neil
v Klapat the matter was dismissed for want of prosecution.
The state had initially appealed a decision declaring the suspension of
a senior public servant illegal because it failed to comply with
constitutionally prescribed procedures. Its failure to take the matter
further was a tacit admission of its initial mis-step. Finally, in In re Powers, Functions and
Responsibilities of the Commissioner of Police, the court
held that the commissioner of police had the authority to issue
directions to the police concerning criminal investigations and police
conduct. However, a warrant of arrest, issued by the district court,
was equivalent to a court order and a duty was imposed onto whomever it
was addressed.
Constitutional procedural requirements have been strictly applied in
various jurisdictions. They underscore the point that they are intended
for a purpose (i.e. to ensure that the standards prescribed are
fulfilled so that obligations are discharged as intended). They also
provide criteria for assessing whether an exercise of power or
authority has been done legally. In the Tuvalu cases of In the Matter of the Constitution
and In the Matter of an
Application for Interpretation of the Constitution between Hon Kamuta
Latasi & Ors v Attorney General & Ors, the
court held that what was asserted to be the first sitting of parliament
on 30 September 2011 after the elections on 16 September was not, in
fact, the case because certain procedural and notice requirements had
not been observed. Similarly, in the Vanuatu case of Carcasses v Boedoro
it was held that the speaker rightly declined to convene an
extraordinary meeting of parliament because some of the signatures to
the petition were improperly obtained, thereby failing to meet the
prescribed number necessary. In an appeal involving the same parties,
the Court of Appeals affirmed the court's at first decision in which it
determined that the offences for which the members of parliament had
been suspended were criminal in nature if they were proven. It was a
breach of the separation of powers and, therefore, unconstitutional. In
the Nauru case of Keke
& Ors v Scotty, the court came to a different
conclusion and held that the power of parliament to suspend its members
for misconduct was protected by parliamentary privilege, and declined
to intervene.
On the other hand, a distinction is drawn between the exercise of
legislative powers per se and the objective of that process. In In re Right of Referendum of the
People of Guam, the legislature passed a law providing for
a binding referendum to be put forth at the November 2014 general
election on whether to allow an amendment to the Guam Code Annotated
(GCA), legalising the medicinal use of cannabis. The Guam Electoral
Commission refused to place the question on the ballot, arguing that it
violated the Organic Law and the GCA in breaching the separation of
powers doctrine. The court held that the authorising law was valid and
was not an unconstitutional delegation of legislative power. The
referendum was only a consultative mechanism by which the electorate
could express a binding opinion on the legislature. In the Solomon
Islands case of Wale v
Attorney General, the applicants sought to argue that the
requirement of registration of political parties under the Political Parties Integrity Act
was contrary to their right of freedom of assembly and association. The
court held that it was a permissible limitation because putting in
place clear guidelines for the regulation of political parties could
only improve certainty and stability in governance. In the Nauru case
of Abigail Limen v
Chief Secretary, the Public Service Appeal Board
determined that the appellants' rights to freedom of expression,
association and assembly were qualified by her status as a public
servant.
In Attorney General,
Iro Republic of Kiribati v Baakoa, the court dismissed an
application by the appellant that a case for constitutional redress was
res judicata.
The respondent had been charged and convicted without any evidence
being called, and on appeal was granted a retrial. The case was
dismissed on a retrial because no evidence was called and she had
sought constitutional redress. Subsequently, the respondent pursued
similar pre-emptive action in another similar case, raising questions
about the state's position as parens
patriae (the public policy power of the state to intervene
against an abusive or negligent parent, legal guardian or informal
caretaker, and to act as the parent of any child or individual who is
in need of protection).
Discrimination
While discrimination on particular grounds such as race, sex, religion,
colour, sexual orientation and the like are prohibited, constitutions
and statutes may sometimes allow it on other grounds such as
nationality or place of origin. In the case of Hanpa Industrial Development
Corporation v Republic of Palau, the plaintiff Korean
company challenged the legality of a tender document that required the
participating company to be Palauan or Taiwanese. The plaintiff argued
that the condition violated the equal protection clause of the Palauan
Constitution. The court held that the constitution expressly allowed
discrimination in favour of Palauan citizens. In relation to the
condition of the tender document, it was substantially related to a
government interest that derived from the powers vested in the
president and the legislature to conduct foreign affairs.
Fair trial
In the Fijian case of Chandra
v State, the accused was charged with one count of an act
contrary to the Public
Order Act. The accused's mental state was an issue but a
psychiatric report was inconclusive. The police prosecutor withdrew the
complaint under s. 169 of the Criminal
Procedure Decree and the magistrate discharged him and
ordered that the accused seek treatment as an outpatient at St Giles.
The accused appealed, seeking an acquittal on grounds of mental
impairment under s.28 of the Crimes Decree. The court acquitted him
under s. 169 of the Criminal
Procedure Decree on the basis that no proper record had
been entered and the inconclusive nature of the report.
Human trafficking
In State v
Laojindamanee, Lum Bing, Zhang Yong and Jason Zhong, three
women from Thailand had been lured to Fiji with promises of work as
masseurs. Once in Fiji, they were compelled to sell sexual favours. The
first, second and third accused were sentenced to 10 years for 2 counts
each of trafficking-related offences (the first two accused to serve a
minimum term of 9 years and the third 7 years). The fourth accused was
sentenced to 11 years 9 months for 2 counts of sexual servitude (to
serve a minimum term of 10 years). The court determined the sentences
on the basis of the roles played by each of the accused in the
operation.
Mandatory sentencing
The argument has sometimes been put forth that mandatory sentencing
contravenes the separation of powers doctrine. In the Solomon Islands
case of Bade v Regina,
the appellant sought to argue this point in the context of the
mandatory life sentence for the offence of murder. The court dismissed
the appeal and recognised that the setting of a sentence, whether as a
minimum or maximum, was a policy issue determined by the exercise of
judicial power. It further acknowledged that one of the reasons why it
had been repeatedly invited to consider the issue was the lack of a
regular parole regime.
Movement
Freedom of movement is a fundamental freedom and the courts have
generally upheld its application subject to reasonable limitations in a
democratic society. In the Marshall Islands case of In re Petition for Citizenship
by Tamuera, the applicant had applied for citizenship on
the basis of her Marshallese descent, and claimed that it was in the
interests of justice that she be granted citizenship. The applicant had
entered the country with her family to work. The court held that other
than her criminal and security clearance, the interests of justice did
not favour the grant of citizenship. She had entered the country to
seek employment and there was no compelling basis, such as violence or
persecution, to trigger the 'interests of justice' qualification. The
applicant's freedom of movement was subject to the criteria prescribed
for non-citizens who have no automatic right of entry. In the Solomon
Islands case of Hatilla
v Attorney General, the court expanded the applicant's
right to freedom of movement to hold that it would be infringed if her
husband, a non-citizen, was compelled to leave the country because it
would mean that she would have to either leave as well, or remain and
possibly end her marriage. The court went further and issued an order
for mandamus to the Director of Immigration to grant her non-citizen
husband citizenship.
Privacy
The right to privacy is not absolute as demonstrated by the Chuuk case
of In re Suka.
The petitioner was convicted of assault with a dangerous weapon
contrary to the Chuuk State Criminal Code and sentenced to three years
of imprisonment. The petitioner subsequently sought to have his
conviction expunged on the basis that he was sufficiently rehabilitated
and that it was a hindrance to the petitioner's efforts to obtain
employment and run for public office. It was held that the power to do
so was a legislative prerogative and the court was not authorised to do
so. The threshold for a violation of a basic legal right was not made
because of the public interest in maintaining accurate criminal
histories and the right to information about persons who had
contravened the law.
Procedure
Procedure is important in determining the appropriate course of action
to be pursued. An incorrect choice may sometimes doom an application.
In the Fijian case of Tamblyn
v Director of Public Prosecutions, the applicant was
charged with drug-related offences. The matter was transferred from the
Magistrate's Court to the High Court and under the Criminal Procedure
Decree the prosecution had to file the information within 21 days of
the order for transfer to be made. The prosecution failed to do so and
sought additional time to file in the absence of the applicant. It did
so again on the second occasion with the applicant present, and leave
was granted by the court. The applicant then filed an originating
summons, seeking constitutional redress, alleging a breach of his
rights. The court held that it was an abuse of process when the proper
course was to appeal against the extension of time, and dismissed the
application.
The process by which an annex to a convention is incorporated in
domestic law can be relatively straightforward. In PBSEA Tow Ltd v
Attorney General, among the issues the court had to decide on was the
status of the Convention on the Safety of Life at Sea (SOLAS). It held
that SOLAS was part of the domestic law of Samoa by virtue of the
Shipping Act 1998, which stipulated it had 'the force of law'. As
regards the lack of subsidiary legislation, the annex to SOLAS was
applicable and contained chapters with relevant regulations.
Property
The right to property is a fundamental right but co-exists with the
right of the state mandated by constitutional authority to acquire
property for a public purpose. In Koima
and Jomar Trading Ltd v Independent State of Papua New Guinea,
the state wished to acquire the applicants' land for a road. The
parties had separate valuations of the land made and there was a slight
variation between these values. The applicants sought an injunction
until the issue of compensation was determined. The court refused the
application, holding that the state had the right to compulsorily
acquire the land for the road, and that the proceedings to determine
appropriate compensation could continue. It was important for the state
to begin work on the road in the meantime.
In the Cook Islands case of In
the Matter of the Cook Islands National Superannuation Fund Act 2000
and the Cook Islands
Constitution, the legislation was challenged on the ground
that it infringed the right of an individual not to be deprived of
property and was not saved by the relevant provision. The court
accepted that it had infringed an individual's right to own property
but the act was saved by the proportionality test. It was sufficiently
important to justify the limitation of the right. It was rationally
connected to the objective as it was the mechanism by which the scheme
was to be implemented, and it struck an appropriate balance between
individual rights and the public interest because the benefits far
outweighed the diminution of individual rights.
Slavery
The first case of slavery in the Pacific received much publicity and
media attention. In the Fijian case of State v Raikadroka,
there were two accused. One was convicted of two counts of slavery and
domestic trafficking of children, and the other was convicted of
various offences of domestic trafficking of children. The first accused
received 16 years' imprisonment for the slavery offences, and 4 years'
imprisonment for the trafficking of children, to be served
concurrently, with parole available after 14 years. The second accused
was sentenced to 12 years' imprisonment and was eligible for parole
after 10 years. In Queen
v Tang HCA 39 (28 August 2008) (3 PHRLD 53), Gleeson CJ
discussed the elements of slavery in terms of the rights of ownership
exercised by the perpetrator over the victim. That was not apparent on
the facts in this case, with the victims having a degree of freedom of
movement. They were neither bound nor restrained. There was some
reference to 'situational coercion' but that would still not appear to
equate to the degree of control considered in Tang's case to
amount to slavery.
Violence against women
The cases under this heading relate to sentencing in cases of rape,
sexual violence and manslaughter. The courts play an important role in
reflecting community outrage at one of the consequences of entrenched
attitudes about women. The results are uneven although the supervisory
role played by appellate courts is necessary in order to correct undue
leniency or excessive sentencing by lower courts.
In the Samoan case of Key
v Police, the court substituted a sentence of 11 years for
the 14-year term for rape handed down by the court at first instance.
It also proposed four bands of tariff for rape, with 8 to 10 years at
the lowest end, and 19 years to life in the most serious cases. In the
Kiribati case of Republic
v Arawaia, the court upheld an appeal against sentence and
substituted a five-year sentence for the two-year sentence awarded at
first instance for two counts of defilement and two counts of indecent
assault. Contrast this with the Solomon Islands case of Regina v Bonuga.
The defendant was convicted of three counts of rape of his adopted
daughter when she was 12, 13 and 15 years old. The court overturned a
3-year sentence for each count to be served concurrently and imposed a
10-year sentence for each of the offences to be served concurrently. In
R v Gua,
the same court handed down a seven-year sentence for rape in place of a
four-year term imposed by a court at first instance. The accused and
the victim were married although living apart at the time. In the
Tongan case of Latu v
Rex,
the court upheld an appeal against a sentence for rape and reduced the
14-year sentence to 8 years, and left in place the 14 months for 2
counts of indecent assault to be served concurrently. However, in Filimone Hefa v Rex,
the appellant's sentence was reduced from 13 years' imprisonment (with
the last 3 suspended) to 6 years with the last 3 years suspended for 3
years. The fact that he had a small child who needed round-the-clock
nursing appears to have been a factor in the decision. Apart from the
Kiribati case, which appears more lenient than in other jurisdictions,
the case just discussed appears to indicate a better appreciation of
the trauma, violence and personal violation committed against a woman
or child in such situations.
Two cases deal with sentencing of killings in domestic situations. In
the Solomon Islands case of Fo'oka
v Regina, the court varied the nine-year sentence for
manslaughter to allow the last two years to be served extramurally
under the supervision of a guardian. The appellant was 17 and a half
when he fatally struck his wife in the head with an axe following a
dispute. In the Tongan case of Vao'omotou
v Rex, the appellant's initial 16-year manslaughter
sentence was reduced to 10 years with the last 2 years suspended. The
court had applied a starting point of 14 years and then took various
mitigating factors into account. The appellant had pleaded guilty to
manslaughter, having stabbed his estranged wife in her sleep 23 times.
In both cases, the courts held that there were persuasive mitigating
factors such as the age of the appellant in the Solomon Islands. The
Tongan case is more problematical, given the degree of violence
exercised by the appellant on the victim, which the court did not
appear to emphasise.
Workers' rights
In the Fijian case of Labour
Officer v Lolohea, the matter came before the High Court
for sentencing. Under the Employment
Relations Promulgation Decree 2007, the maximum fines for
offences were far in excess of the jurisdiction of the Employment
Relations Tribunal. The Employment Relations Tribunal could only impose
fines of FJD 2,000 and a 12-month prison term. The offence of enlisting
and recruiting for foreign employment without proper authorisation
carried a maximum penalty of FJD 20,000 or 4-year prison term, while
obstructing a labour officer in his/her duties carried a fine of FJD
10,000 or 12 months of imprisonment. The court held that fines for both
offences would meet the ends of justice.
The Tongan case of Ilagana
v Westpac Bank of Tonga concerned an attempt by a bank
officer to enforce her rights at common law. The appellant was
dismissed pursuant to the notice provisions of her contract. No reasons
were given. The court held that while the dismissal was harsh and
unfair it was lawful. It was open to her to argue that there was a
breach of an implied term of mutual trust and confidence, but that was
not raised.
PART
II
This part deals with cases from outside the region that concern human
rights issues of relevance and interest to the Pacific. These cases
cover a broad spectrum but also reflect the fact that they are
universal issues that may arise in our jurisdictions in the future.
Cruel, inhuman or
degrading treatment
In Vogel v Attorney
General, the appellant was sentenced to life imprisonment
for murder in 1988. He was released on parole in 1998, and was recalled
to prison for reoffending in 2000. The complaint filed concerned the
recall period when he was sentenced to solitary confinement for 21 days
for a drug-related offence while in prison. The maximum period for cell
confinement under the Penal
Institutions Act is 15 days. The complainant sought
damages and a declaration under s. 9 and 23(5) of the New Zealand Bill of Rights Act.
The court held that the sentence was in breach of s. 23(5) of the New Zealand Bill of Rights Act
and s. 33 of the Penal
Institutions Act but declined to award damages. The state
had a positive duty under s. 23(5) in relation to persons deprived of
liberty. It is similar to article 10 of the ICCPR, which requires
detained persons to be treated with humanity and with respect for the
inherent dignity of the human person.
Discrimination on the
basis of gender
In the Malaysian case of Noorfadilla
Ahmad Saikin v Chayed Basirun & Ors, the plaintiff
sued the Ministry of Education for unlawful discrimination for
withdrawing a placement she had been given on the grounds she was
pregnant. The court upheld her claim as being gender discrimination
contrary to article 8(2) of the Malaysian
Federal Constitution as well as being in breach of the
provisions of CEDAW.
Discrimination against
people with disabilities
In the Australian case of Haraksin
v Murray Australia Ltd, the appellant alleged
discrimination by the respondent in providing services. The appellant
was confined to a wheelchair and wished to book a Sydney to Canberra
return trip on a wheelchair accessible coach. She eventually proceeded
to court under the provisions of the Australian Human Rights Act,
relying on the Direct
Discrimination Act 1992 and the Disability Standards. The
court upheld her claim of discrimination for access to or use of
premises (the coach) and discrimination in not providing services
between Sydney and Canberra. It also upheld complaints over standards,
and directed the respondent to provide services to the appellant for
two years between Sydney and Canberra. The defence of 'unjustifiable
hardship' was not substantiated on the facts.
Environmental defenders
While In re GreenPeace
is not an environmental case on its facts, the issues it deals with
are, nevertheless, pertinent because they concern the broad question of
whether political activism is a proper role for environmental defenders
and other members of civil society seeking to be registered under the Charities Act 2005.
The court held that a 'political purpose' exclusion should no longer be
applied in New Zealand in determining whether an objective was
charitable. Political and charitable purposes are not mutually
exclusive in all situations, and the underlying inquiry should focus on
whether a purpose is for a public benefit that is recognised by law as
charitable.
Freedom of expression
Media freedom arising out of the proportionality of the sanctions
attaching to defamation laws was considered by the African Court of
Human and People's Rights in the Burkina Faso case of In the Matter of Lore' Isaa
Konate v Burkina Faso. It arose out of three articles by
two authors that were published in two separate issues of L'Ouragan in 2012,
alleging corruption in a high profile case. The prosecutor filed a
complaint and contempt of court and criminal proceedings were issued
against the authors and the paper. The appellant was sentenced to 12
months' imprisonment and a fine equivalent to USD 3000. He was also
ordered to pay damages to the prosecutor equivalent to USD 9,000 and
court costs equivalent to USD 500. L'Ouragan
was suspended for six months and the judgment was to be published in
the daily newspapers as well as in L'Ouragan
when it resumed publication at the cost of the appellant and the other
author. The appellant appealed to the African Court of Human and
People's Rights, alleging breach of his rights under article 9 of the
African Charter of Human and People's Rights, article 19 of the ICCPR,
and article 66(2)(c) of the Revised Treaty of the Economic Community of
West African States.
The court unanimously held that the respondent state had violated the
three conventions as follows: (a) the existence of penal sanctions for
defamation in its laws, (b) in the conviction of the appellant and the
imposition of a custodial sentence, (c) in the payment by the appellant
of excessive damages, fines, interest and costs, and (d) in the
six-month suspension of
L'Ouragan for defamation. By a majority it further held
that the respondent state did not violate those conventions by the
existence of non-custodial sanctions in its laws. The court ordered the
respondent state to amend its legislation on defamation to be
consistent with the respective treaties within two years of the
judgment.
Movement
The 'best interests of the child' lie at the heart of the CRC, and it
is reasonable to assume that it would be an important consideration in
any decision to deport a parent whose child was a citizen of the
deporting state. This issue was considered in the New Zealand case of Chief Executive Officer of
Ministry of Business, Innovation and Employment v Liu. The
respondent was a Samoan national who was deported after the immigration
officer concerned declined to cancel his deportation order. He argued
that the officer had failed to consider article 9.1 of the CRC in
relation to his New Zealand-born son. Before an officer can exercise an
absolute discretion to deport, New Zealand's international obligations
must be taken into account on the basis of information provided. The
respondent's personal circumstances had been considered, including a
personal protection order against him by his former wife and children,
and a conviction and jail term for assault against his present wife, as
well as the country's international obligations although article 9.1
was not specifically mentioned. The court held that article 9.1 had no
relevance in a deportation case, on the basis of Australian, Canadian
and UK authorities. It only applies where a family order in a domestic
setting is to be considered in protecting children. The provision
requires states to ensure that a child is not to be separated from his
or her parents against their will unless competent authorities, subject
to judicial review, decide it is necessary and in the best interests of
the child.
Religion
Religion remains an important part of life in Pacific Island societies
but freedom to practice religion is not synonymous with the right to
worship in one's mother tongue or ethnic language. In Illafi v The Church of Jesus
Christ of Latter Day Saints Australia, the appellants
challenged the Mormon Church's decision to prohibit services in the
Samoan language in various parts of Queensland in 2007 and 2008. They
alleged it was a breach of s. 9 of the Racial Discrimination Act 1975,
which concerned 'a human right or fundamental freedom in the political,
economic, social, cultural or any other field of public life'. The
court dismissed the appeal and held that the right to worship
publically as a group in the Samoan language was not protected under
the act. Relying on precedents from the European Court of Human Rights,
that in the event of disagreements, the individual right to freedom of
religion is exercised through the freedom to leave. Individual church
members who chose to enter a particular group gave up their individual
freedoms and had a choice to leave.
Religious freedom also involves situations where parents make decisions
on behalf of their children. In Indira
Gandhi A/p Mutho v Pengara Jaratan Agama Islam Perak & Ors,
the applicant mother of three children, aged 12, 11 and 11 months,
challenged the right of her estranged husband to unilaterally convert
their children to Islam. A complicating factor was a decision by an
appellate court in respect of article 12 of the Malaysian Federal Constitution
and the right to education. The reference to parent in the singular
gave a parent a right to choose the religion of a child under the age
of 18. Moreover, it was not inconsistent with article 8, relating to
equality before the law. Notwithstanding precedent, the court held in
favour of the applicant by finding that article 11, which upheld the
right to religious freedom, included the teaching of one's faith to
one's children. This was reinforced by article 5, concerning freedom of
life and liberty, including the right to teach one's religious beliefs
to one's children. The conversions were, therefore, unconstitutional.
In considering the Universal
Declaration of Human Rights, CEDAW and CRC, and Malaysia's
international obligations, the ambiguity in article 12 should be
resolved by adopting an interpretation consistent with those
obligations.
Torture
Torture is one of the few violations in respect of which there are no
exceptions or reservations. The prohibition against the use of torture
is total and is regarded as part of customary international law.
However, states continue to tacitly approve its use on the basis of
national security and combating international terrorism. In the case of El-Masri v The Former Yugoslav
Republic of Macedonia, the applicant alleged that while
travelling in Macedonia he was arrested, questioned, ill-treated and
held incommunicado before being handed over to United States Central
Intelligence Agency agents at Skorpje Airport. He was flown to a secret
detention facility in Afghanistan and ill-treated for over four months.
The alleged ordeal occurred between 31 December 2003 and 29 May 2004.
The European Court of
Human Rights unanimously held that the respondent state
had breached articles 3 (torture and ill-treatment), 5 (personal
liberty and rights while detained), 8 (right to respect for private and
family life) and 13 (right to effective remedy before a national
authority) of the European Convention on Human Rights by acts done to
the applicant while under their control and in handing him over to
United States authorities. The court ordered non-pecuniary damages of
EUR 60,000 (together with chargeable tax and interest) to be paid by
the respondent state. The practice of 'extraordinary rendition',
whereby some states 'remove' suspects to jurisdictions less vigilant or
scrupulous about human rights violations, was discussed in the
judgment.
Violence against women
The obligation of states in this regard is a positive rather than a
benign one. It is, in part, a recognition and acknowledgment of how
deeply entrenched and systemic the culture of violence is against
women. In the case of Eremia
v Republic of Moldova, the applicants' mother and two
teenage daughters filed a complaint against the respondent state,
alleging that it failed to protect them from incidents of violence by
their husband and father between 2 July 2010 and 4 April 2011. The
court held that the respondent state had failed in its positive
obligations under articles 3 and 14 of the European Convention on Human
Rights in respect of the applicant mother. The respondent
state had also failed to protect the applicant's children under article
8 of the convention, and ordered non-pecuniary damages of EUR 15,000
and costs.
PART
III
Part III focuses on cases relating to sexual and reproductive health
(SRPH) and refugee matters, which are emerging issues in the region.
SRPH is significant in the Pacific because of the high proportion of
young people in the youth cohort and the sexual choices they may have
in environments that are neither supportive nor sympathetic. Refugee
processing centres operate in Nauru and PNG, and the challenges
accompanying them have become more apparent and remain real and ongoing
human rights issues. While it is now a reality, their operation must
comply with internationally accepted best practices in human rights
standards while long-term solutions are found to resolve the plight of
refugees – both in the region and elsewhere.
Sexual and reproductive
health and rights
Abortion throughout the region is a criminal offence, and the strong
Christian ethos and influence exerted by the churches suggests that the
right of women to autonomy over their own bodies in such matters is not
likely to happen soon. In the Samoan case of Police v Apelu, the
defendant received a five and one-half year prison term after pleading
guilty to procuring an abortion for a prison inmate. In 2004 she had
been sentenced to two and one-half years for the same offence. The
charges, which were not proceeded with at the time, were revisited in
2005 and a year was added to the defendant's sentence. It was also open
to the court to refer to CEDAW for the purposes of sentencing.
Discrimination in child
custody over relevance of a parent's sexuality
The prejudice and stereotyping of gay parenting is amply illustrated by
the case of Atala Riffo
and Daughters v Chile. The complainant filed a complaint
with the Inter-American Commission of Human Rights, which referred the
matter subsequently to the Inter-American Court of Human Rights (IACHR)
regarding decisions made by the Chilean judiciary in her child custody
case largely on the basis she was an unfit mother because of her sexual
orientation. The IACHR held that the rights to sexual orientation were
protected under the constitution, and that any restriction had to be
legitimate, necessary and proportional. While the best interest of the
child was a legitimate goal, the judgments in the Supreme Court and the
provisional decisions of the Court of Appeal were based on inadmissible
considerations to the complainant's detriment. There was a failure to
demonstrate causality between the alleged harm to the children and the
complainant's alleged behaviour. Their decisions were instead based on
abstract, speculative and stereotyped conceptions of the alleged harm
to the children. The complainant's rights under article 24 and 1 (1) of
the American Convention
on Human Rights. The decision also discriminated against
the children, based on their mother's sexual orientation and contrary
to articles 24, 19 and 1(1). The complainant's right to private and
family life under articles 10, 11 and 17 was also violated. The state
was ordered to publish the judgment, acknowledge responsibility, and
pay pecuniary and non-pecuniary compensation to the complainant and her
children. Chile was also requested to implement training and education
for the judiciary and public officials to uphold protected rights.
HIV patients' right to
informed consent over sterilisation procedures
In the
Namibian case of Republic of Namibia v LM, MI and NH, the
respondents were female HIV patients who were sterilised by way of a
bilateral tubal ligation. The process was performed at the same time as
their caesarean operation. The respondents had signed a general consent
form prior to the sterilisation operation. They sued the state for
wrongful sterilisation without consent and in violation of their
constitutional rights. They also alleged discrimination on the basis of
their HIV status. The court held there was no informed consent because
they were in varying degrees of labour. They therefore did not fully
comprehend the consequences of providing consent for the sterilisation
procedure. The fact that they made no appointment to confirm the
sterilisation negated the consent. On the issue of discrimination, the
court dismissed the claim and held that there was no evidence to
suggest that the sterilisation was carried out because of their HIV
status rather than as a general procedure.
Discrimination on the
basis of pregnancy after maternity leave granted
In Stanley v Service to
Youth Council Incorporated, the applicant was made
redundant and retrenched after first being given maternity leave after
disclosing her pregnancy to her employer. She instituted proceedings
under the Sex
Discrimination Act and the Fair Work Act,
alleging sexual harassment, and that the employer's actions to make her
position redundant and to retrench her, amounted to discrimination on
the basis of her sex, pregnancy and/or family responsibilities. The
court held that sexual harassment was not made out. To prove
discrimination, the applicant had to demonstrate that the disadvantage
she suffered in her employment would have been suffered by a
hypothetical employee in her position, as a result of their being
absent from work but not by virtue of the reason for the absence (in
this case pregnancy). The court held that the applicant had suffered
some disadvantage by her absence from work, but this was due to her
being absent from work and not by virtue of her pregnancy specifically,
and on that basis the court held that the applicant did not establish
disadvantageous treatment. The applicant was awarded AUD 4,500 for the
employer's failure to respond to her request for different work
arrangements under the Fair
Work Act.
Inadequacy of gender
classification in relation to the male/female dichotomy
Our assumptions about what is normal are constantly being challenged in
the discourse on human rights as individuals assert their right to be
treated with respect and dignity for the human person. This applies to
people who do not accept or feel that the traditional notions of male
and female gender apply in their particular case. In New South Wales Registrar of
Births, Deaths and Marriages v Norrie, the applicant
wished to be registered as neither male nor female and the issue was
whether the person could be classified as 'non-specific' under the
relevant New South Wales legislation. The court held that it was open
to the registrar to do so based on bona
fide evidence although it was not open to actually set
categories.
Refugees
These cases arise from the presence of refugees in Nauru and PNG, and
reflect the challenges involved in hosting refugee processing centres
and the additional international scrutiny to which the countries
involved (and their neighbours) are subjected. In Attorney General v Nauru,
the applicants applied for asylum at Christmas Island on 1 September
2013. On 24 September 2013 they were taken to Nauru by aircraft against
their will. On arrival they were given entry permits called Australian
Regional Processing Visas issued under the Nauru Immigration Act 1999.
Under the Immigration
Regulations 2013, an application for a regional processing
visa could only be made by an officer of the Commonwealth of Australia.
Such a visa was issued for the purpose of making a refugee status
determination for the visa holder. A condition of the visa was that the
visa holder must reside in specified premises (i.e. a regional
processing centre). The applicants sought an order for their release
from the regional processing centre on the basis of their unlawful
detention. Dismissing the application, the court held that it was
within the meaning of article 5(1)(h) of the constitution. However, the
detention was authorised by the Immigration
Act 1999 and the Immigration
Regulations 2013, and was, therefore, lawful under the
said provision.
The establishment of refugee processing centres has engendered a
defensive reaction to the increased international publicity that has
resulted. As such, authorities have been reluctant to allow access to
overseas media and refugee advocacy groups due to concerns that they
would harm the country's image and standing. This perspective is
reflected by the stance that the state adopted in the PNG case of Namah v Pato. The
PNG Opposition Leader, Belden Namah, challenged the constitutionality
of arrangements between the governments of Australia and PNG over the
purported transfer of asylum seekers in Australia to PNG for refugee
status processing pursuant to s. 18(1) of the constitution. It was
argued that the arrangement was unconstitutional as their personal
liberty was protected by section 42(1) of the constitution. Under
section 18(1), the court must declare whether an applicant has
standing. The PNG government claimed that the applicant had no locus.
The court held that he had standing and declared so to that effect. A
citizen is presumed to have standing if he/she can show the court that
they have a genuine interest in the constitutional issue raised.
In State v Transferee, section 57(1) of the PNG Constitution confers
jurisdiction on the court either on its own initiative or upon
application by any person with an interest in its protection or
enforcement, or in the case of a person who, in the opinion of the
court, is unable to fully and freely exercise their rights under this
section, by a person acting on his behalf, whether or not by his
authority. The court acted under this provision to initiate an inquiry
into allegations of breaches of human rights of asylum seekers on Manus
Island. The state sought leave to appeal and a stay of proceedings. The
court granted leave to appeal, concluding that there was an arguable
case for reasonable apprehension of bias and extended the stay pending
appeal.
Joni Madraiwiwi, editor
PART I: PACIFIC
ISLAND
CASES REFERRING TO CONSTITUTIONAL BILLS OF
RIGHTS, HUMAN RIGHTS CONVENTIONS, STANDARDS AND PRINCIPLES
Searches and
seizures – random roadside sobriety checkpoint operation
A random roadside sobriety
checkpoint arranged under approved guidelines but not administered
under the supervision of a sufficiently senior police officer failed
the threshold tests which safeguard constitutional rights against
unreasonable searches and seizures.
PEOPLE OF GUAM v
CALHOUN
| Supreme
Court |
Guam |
| Torres CJ, |
[2014] GUSC 26 |
| Carbullido and
Maraman AJJ |
24 Oct 2014 |
Law(s) and/or
international instrument(s) considered
The Organic Act of Guam (The United States Constitution, Fourth
Amendment protects
against unreasonable searches and seizures and is made applicable to
Guam vide section 1421b(c) of the Organic Act of Guam.)
Facts
The appellant (A) was driving his vehicle when he was stopped at a
sobriety checkpoint conducted by the Guam Police Department (GPD).
Officers noticed that A's breath smelled strongly of alcohol. When
asked whether he had had anything to drink, A responded that he had had
three beers. A failed the field sobriety tests administered by the
officers, and a breath test subsequently showed that his blood alcohol
concentration (BAC) was 0.194%. As a result, A was charged with
operating a vehicle while intoxicated, as a misdemeanour, and operating
a vehicle with a BAC of 0.08% or more, as a misdemeanour. A then moved
to suppress the evidence of his intoxication, alleging that the
checkpoint violated the Fourth Amendment of the United States Constitution.
More specifically, A alleged that the police failed to adhere to the requirements of
GPD's Traffic Investigation Section (TIS) 91-45 sobriety checkpoint
guidelines. The court at first instance denied A's motion
to suppress the evidence.
Issue(s)
1. Did the GPD checkpoint guidelines pass the constitutional threshold?
2. If so, did the GPD correctly implement the guidelines in setting up
the relevant checkpoint which validated the evidence which was obtained
from the checkpoint?
Decision
The court upheld the appeal. In setting out the standard of the review
it noted that as the seizure was not conducted under a warrant, and
that the People had the burden of proof at the suppression hearing. In
its analysis the court adopted a three-pronged balancing test: (1) the gravity of the public
concerns served by the seizure, (2) the degree to which the seizure
advances the public interest, and (3) the severity of the interference
with individual liberty. Under American case law, the
Fourth Amendment requires that 'a search ordinarily must be based on
individualized suspicion of wrongdoing.' '[A] seizure must be based on
specific, objective facts indicating that society's legitimate
interests require the seizure of the particular individual...'
Otherwise, 'the seizure must be carried out pursuant to a plan
embodying explicit, neutral limitations on the conduct of individual
officers.'
In relation to the first two limbs of the test, there were sufficient
public interests that warranted a sobriety checkpoint be set up. A
further list of considerations articulated in previous cases was
adopted in examining whether the interference with individual liberty
was kept to a minimum. Each consideration was discussed, and the court
concluded that the written guidelines made provisions to safeguard the
minimum levels of intrusiveness to an individual, and therefore the
checkpoints were constitutionally permissible. However, regarding the
implementation of the guidelines on this occasion, the court determined
that the records failed to show that this particular operation was
approved by a sufficiently high-ranking official. It therefore failed
to comply with an important consideration designed to prevent the field
officers' unfettered discretion in operating the checkpoint.
Comment
In reviewing the exercise of the police powers of arrest and detention,
the courts must always balance the rights of the individual with the
public interest. The intention of this balancing is to ascertain
whether the purported limitation on liberty is permissible in a
particular context. The courts tend to exercise some vigilance in
consideration of policing powers because these powers relate to
physical restrictions on personal liberty. In the instant case, while
the random roadside sobriety checkpoint was consonant with the public
interest to eradicate drunken driving to improve road safety, the
absence of authorisation at an appropriate level of seniority
invalidated this particular operation. The lack of the necessary check
rendered the actions of the police officers at the checkpoint as an
unfettered discretion, and tipped the balance negatively on the
permissible degree of interference with individual liberty. The extent
and scale of interference with individual liberty will depend on the
particular circumstances of each case.
Searches and
seizures – police powers to detain a suspect –
statutory time limits
Whether the statutory time
limitation on detaining a suspect for preliminary investigation can be
extended or waived by the suspect.
PEOPLE OF GUAM v
TAMAN
| Supreme
Court |
Guam |
| Carbullido CJ, |
[2013] GUSC 22 |
| Torres and Maraman AJJ |
8 November 2013 |
Law(s) and/or
international instrument(s) considered
The United States Constitution, Fourth Amendment. Stop and Frisk Act,
Guam
Facts
A police officer attended the scene of a traffic accident, where he
stopped and questioned the defendant (D), at approximately 2:32 a.m. At
2:37 a.m. D admitted that he had consumed alcohol but could not
remember how much. At 2:45 a.m., 13 minutes from the onset of the
investigative detention, D was asked to participate in a standardised
field sobriety test, which he failed. At approximately 3:00 a.m., 28
minutes from the onset of the investigative detention, D was placed
under arrest and later charged with two counts of alcohol- and
driving-related offences. Almost one year later D moved to suppress all
evidence obtained from his investigative detention on the grounds that
his detention lasted longer than the 15 minute limit prescribed by
Guam's Stop and Frisk
Act. The court at first instance issued a decision and
order suppressing all evidence gathered from the onset of D's
investigative detention at 2:32 a.m. until his arrest at 3:00 a.m. The
People filed an appeal.
Issue(s)
1. Whether obtaining voluntary consent tolls or establishing probable
cause obviates the 15 minute limit prescribed by law.
2. Whether suppression of all evidence gathered from an investigative
detention that lasts longer than 15 minutes is the appropriate remedy
for the breach of the 15 minute limit.
Decision
The Supreme Court (SC) upheld the People's appeal.
The SC set out the relevant provisions of the Stop and Frisk Act,
which authorised police officers to detain and search a suspect under
certain circumstances for the purpose of identifying the suspect and
making necessary enquiries as to whether the suspect should be
arrested. Relevantly, the statute provides that: No person shall be detained
under the provisions of § 30.10 longer than is reasonably necessary to
effect the purposes of that section, and in no event longer than
fifteen (15) minutes. Such detention shall not extend beyond the place
where it was first effected or the immediate vicinity thereof.
The court at first instance rejected the People's argument that
voluntary consent could 'stop the clock', based on the clear language
of the statute. The SC held that the court at first instance had erred,
and that a waiver (actual or implied) of a statutory right would
suffice to stop the clock. Otherwise, absurdity would result, as the
suspect could strategically prolong the investigative detention beyond
15 minutes to avoid an arrest. The case was remitted to the court at
first instance to decide whether D's continued contact with the police
was voluntary, because consent as a waiver could only be established if
consent was voluntary.
Another element of the first issue concerned the argument advanced by
the People that once 'probable cause' was established, the 15 minute
rule no longer governed the detention and thus vitiated the time limit.
The SC considered and contrasted the working definitions of 'reasonable
suspicion' and 'probable cause' under case law, and ruled that: as a matter of law, the
development of probable cause obviates the fifteen-minute limit imposed
by Guam's Stop and Frisk Act on investigative detentions that are
supported by reasonable suspicion, because the appearance of probable
cause transforms the nature of the detention and thereby removes the
encounter from the strict parameters of the statute. The
SC further observed that: [a] prolonged
detention supported by probable cause might implicate a constitutional
claim, but the language of the statute as written does not preclude the
police from extending their investigation well beyond fifteen minutes.
The SC, however, declined to rule on whether sufficient evidence was
adduced on the issue of 'probable cause', and remitted the matter for
the trial court to decide.
Comment
This case suggests that there may be different tests applicable to
rights claimed between those based on statute and those based on the
constitution. It would seem that courts appear to be more willing to
interpret statutes less stringently, to the benefit of law enforcement
agencies. Here, a broad purposive approach was taken to interpretation
because the statutory provision clearly prescribed a period of 15
minutes. An implied waiver of the period was read in if it could be
established that consent was voluntary. Otherwise, a suspect could
prolong the investigative detention beyond 15 minutes to avoid an
arrest. That would result in an absurdity, wherein the purposes of the
legislation would be defeated. In adopting this position, the court was
seeking to devise a practical solution, whereby the police could
proceed unimpeded by an investigative arrest if a citizen detained in
those circumstances had voluntarily given consent to that detention. In
doing so, the court disregarded the literal interpretation of the
provision, in which detention under it should be 'in no event longer
than 15 (fifteen) minutes'.
CHILDREN
Children –
adoption – best interest of a child – material and
educational wellbeing only a factor – love and family support
significant considerations
Each child has his or her
specific circumstances which warrant
specific consideration, regardless of similar facts and their family
ties and relationship.
SAAVEDRA v
SOLICITOR GENERAL
| Court
of
Appeal |
Tonga |
| Salmon, Handley and
Blanchard JJA |
[2013] TOCA 7 |
|
17 April 2013 |
Law(s) and/or
international instrument(s) considered
Convention on the Rights of the Child (CRC), art. 21
Facts
The appellants (As) appealed against a decision of the Lord Chief
Justice (LCJ) refusing their application for the adoption of a
six-year-old Tongan boy while allowing the adoption of his one-year-old
half-sister. Each of the applications for adoption had been supported
by the Guardian ad litem, the Solicitor General. In refusing the
adoption, the LCJ was not prepared to accept that the boy would be
better looked after than he was by his mother's extended family. He had
been brought up for the first five years of his life by his
grandmother, was close to his mother and did not wish to go on a plane
with the As. The As were non-Tongan and the boy would be in a different
environment from that he had known all of his life. Although the As
could provide a higher level of material and educational wellbeing,
this was only one consideration in deciding where the best interests of
a child lie. The proposed adoption was not in the best interests of the
child.
Issue(s)
In considering the 'best interests of the child', would the boy be
better off with all of the material comforts and educational
opportunities that life in the United States of America could offer,
compared to the life he had in Tonga, with a mother, grandmother and
extended family who loved and nurtured him, and provided for his needs?
Decision
The Court of Appeal upheld the original decision. Article 21, clause b,
of the CRC recognises that inter-country adoption may be an alternative
if a child cannot be placed with an adoptive family or foster care or
in any other suitable manner be cared for in the child's country of
origin. Inter-country adoption was only a means of last resort, and in
the present case the mother had subsequently withdrawn her consent to
the adoption, and the child was being cared for by his mother and
grandmother and was attending school. The child was happy with his
situation and his needs were being met. The provisions of the CRC
regarding adoption could no longer be met and, accordingly, the appeal
was dismissed.
Comment
The best interests of the child are given a broad interpretation and
not merely confined to the ability to provide for material wellbeing
and educational advantage, in comparing one society with another. The
entire context of a child's circumstances will be considered. In the
present case, the child was six years old, and had known no other
environment. He seemed happy and was not inclined to leave what he was
familiar with and the family he had known and who knew and loved him,
for something different. Adoption is only considered when there are no
appropriate local options for the child. In the case of the boy's
one-year-old half-sister, given her young age she had not formed bonds
or attachments as strongly as her brother had. Weighing these competing
options is often difficult because a court is called upon to make
assumptions about situations and circumstances it has no way of knowing
at the time. It can only make an educated guess based on all the facts
before it and what appears in a court's judgment to be the best
interests of the child. Some may argue that the lifestyle and
opportunities afforded by the As in this case more than offset the love
and support he was receiving from his mother, grandmother and extended
family. However, the LCJ, while acknowledging those advantages,
recognised the intangible value the boy derived from being in the
comfort and familiarity of home and family. Further, overseas adoption
was only a means of last resort where local alternatives were clearly
available, as was the case here.
Children in
conflict with the law – the right of every child alleged as, accused
of, or recognised as having infringed the penal law to be treated in a
manner consistent with the promotion of the child's sense of dignity
and worth.
Generally, when a juvenile is the
subject of sentencing, the sentencing court should be mindful that,
while the juvenile bears the responsibility for their own actions or
offences committed, they are in need of guidance, assistance and
protection because of their state of dependency, vulnerability and
immaturity.
STATE
v K.R.A.K.
Law(s) and/or
international instrument(s) considered
International Covenant on Civil and Political Rights (ICCPR)
Convention on the Rights of the Child (CRC)
Crimes Decree 2009
Juveniles Act
Sentencing and Penalties Decree 2009
Facts
The juvenile offender (D), the deceased boy (V) and their uncle (R) had
returned to a compound after shooting pigeons with the gun that was
alleged to have killed V. Upon returning, the boys began playing with
their cousin, Nabil (N). At some point D handled the gun that was lying
on the back seat of his uncle's vehicle. The gun discharged, causing
injuries to N and V, who sustained 21 injuries and died from his
wounds. At the time of the offence, D was 10 years and 7 months of age,
and V was six years of age.
Issue(s)
What should be the appropriate sentence, considering the age of the
offender? Did D have the requisite level of maturity to understand the
consequences of his conduct? Or, mitigating culpability, was D simply
motivated by negative influences which nurtured the offending
environment, or impulsive as a result of his inchoate life experiences?
Decision
The court convicted D of the offence of manslaughter. D's father was
ordered to pay costs of $2500 to the court. In addition, D's parents
were required to enter into a bond of $5000 each to assure the good
behaviour of the juvenile offender for the next seven years, until he
ceased being a juvenile.
Comment
The conviction and sentence D as a juvenile is not consistent with the
Minimum Age of Criminal Responsibility (MACR) recommended by the CRC
Committee in its General Comments (2007). Fiji has a MACR of 10 years;
had it adopted the recommendations of the Committee in setting a
standard of between 14 and 16 years, D would not have been prosecuted
under the criminal justice system. D was not given a custodial sentence
in the light of his age, and by virtue of the court's acceptance that
he was not old enough to fully appreciate or understand the
implications and consequences of his actions. The decision was also
accompanied by an acknowledgment that D's prospects for rehabilitation
were very good, given his age. The decision to impose sanctions on D's
parents may raise some concern. The CRC Committee, in its report cited
earlier, observed that it 'regrets the trend in some countries to
introduce the punishment of parents for the offences committed by their
children... criminalising parents of children in conflict with the law
will not likely contribute to their becoming active parents for the
social reintegration of their child'. However, the good behaviour bond
was a guarantee on behalf of D, who was not legally responsible, and
terminated when he became an adult.
Children –
adoption
Domestic laws not necessarily
inconsistent with the Convention on the Rights of the Child and the
Convention on the Elimination of All Forms of Racial Discrimination
where they prescribe conditions based on ethnicity.
IN
RE ADOPTION OF BR
| Supreme
Court |
Nauru |
| Eames CJ |
[2013] NRSC 11,
Civil Case No. 7 of
2013 |
|
9 September 2013 |
Law(s) and/or
international instrument(s) considered
Convention on the Rights of the Child (CRC)
Convention on the Elimination of All Forms of Discrimination (CERD)
Constitution of Nauru (CN)
Adoption of Children Act 1965 (ACA)
The Universal Declaration of Human Rights (UDHR)
Facts
On 2 May 2013, the Family Court stated a case for the Supreme Court
about an application for adoption of 'B-R' – whose parents were
citizens of the People's Republic of China – by a married Nauru couple.
The case stated concerned section 9 of the ACA.
Section 9 provides:
9. Adoption by Nauruans
etc.
(1) Where the applicant is
a Nauruan, an adoption order shall not be made unless the child in
respect of whom the application is made is a Nauruan and the spouse of
the applicant is a Nauruan.
(2) Where the applicant is a married Nauruan, an adoption order shall
not be made unless the child in respect of whom the application is made
is a Nauruan and the spouse of the applicant is a Nauruan.
(3) Where the applicant is not a Nauruan, an adoption order shall not
be made unless the child in respect of whom the application is made is
also not a Nauruan.
(4) Where the applicant is a married person who is not a Nauruan, an
adoption order shall not be made unless the child in respect of whom
the application is made is not a Nauruan and the spouse of the
applicant is also not a Nauruan.
Issue(s)
1. A determination of the legal position concerning s. 9 of the ACA.
2. Whether s. 9 is an impediment to adoption in the case before the
Family Court.
Decision
The court held that s. 9 was valid and that it was an impediment to
adoption in the case before the Family Court for the following reasons:
1. The provision was not
ultra vires art. 3 of the CN, which did not
adopt all of the rights and freedoms set out in the UDHR, but was only
intended to be a summary of the general principles underlying the
specific rights in articles 4 to 13 of the CN. There was no general
right to adoption that could be enforced.
2. The only article in the CRC addressing the question of adoption is
art. 21. Art. 21(1) requires states to ensure the best interests of the
child are the paramount consideration. It does not address the
desirability or otherwise of the state imposing a policy prohibiting
adoptions by persons of a different race or ethnicity to that of the
child. Therefore, s. 9(1) is not inconsistent with either the letter or
the spirit of the CRC. The CRC does not address the subject matter of
s. 9(1). Even if it should be taken that the spirit of the CRC
determined that adopting parents of a different ethnicity is
irrelevant, a state might choose not to adopt that approach. The ACA
predated both the CRC and CERD and the legislature had chosen to retain
it.
3. The provision was not in contravention of the CERD because, while
art. 1(1) defined racial discrimination as, inter alia, any
distinctions, exclusions, restrictions or preferences based on race,
colour, descent or national or ethnic origin, which has the effect of
impairing the enjoyment or exercise of 'human rights and fundamental
freedoms', the subject matter in s. 9 does not necessarily amount to
racial discrimination. Nothing in the CERD asserts that a child enjoys
a human right or fundamental freedom to be adopted irrespective of the
race or ethnicity of the child and/or of the adopting parents.
Article 1(2) of the CERD provides that the CERD does not apply to
distinctions, exclusions, restrictions or preferences drawn by a state
between 'citizens' and 'non citizens'. Section 9 (1) is not concerned
with those distinctions, but rather with other descriptors. While s. 9
may impose a race- or ethnic-based criterion for adoption, it does not
necessarily amount to racial discrimination.
The Nauru legislators may have taken the view that the adopted child's
best interests are best served by requiring the adopted parents to
share the same race. Their intention is not the relevant matter, but
the issue is whether the effect of s. 9 is to impose discrimination
that is inconsistent with the CERD. Assuming that the restriction prima
facie constitutes discrimination as identified by the CERD, it does not
follow that s. 9 (1) is invalid. Conventions do not form part of
domestic law unless incorporated into local law, and the CERD could not
be applied to resolve an ambiguity because the terms of s. 9 were
clear.
Comment
The Supreme Court chose not to follow In re Lorna Gleeson
[2006] NRSC 8 (15 December 2006), which concerned the validity of s. 9
(2), in which Millhouse CJ held that it was in breach of art. 3 of the
CN and the provisions of the CRC, as being contrary to the best
interests of the child. Section 9(2) contravened the right of the
individual to his private and family life that was implied in art. 3,
and it was contrary to the spirit of the CRC. However, art. 3 is a
preambular provision and does not confer substantive rights.
The court cited the constitutional discussions which preceded the
adoption of the CN in 1968. Moreover, a closer examination of the
alleged offending provisions, s. 9(1)(a) of the ACA and art. 21(1) of
the CRC, is useful because the latter is silent on whether the
prohibition of adoptions by persons of a different ethnicity to that of
the child is desirable. To assert that the prohibition is contrary to
the spirit of the CRC is immaterial because the ACA predated the CRC
and CERD, and Nauru had chosen to retain it. Therefore the provision
prevailed as a legislative enactment against the provisions of a
non-domesticated applicable human rights instrument. The application of
human rights instruments and constitutional provisions sometimes calls
for an appreciation of detail and nuance, as was undertaken by the
court. It cannot be assumed that the spirit of the CRC or any other
human rights instrument would necessarily lead to a particular outcome.
The totality of the situation needs to be considered, including
considering the provisions of the CRC, whether the international
instruments have been domesticated, and the legislation being
challenged.
Children –
corporal punishment, degrading or inhuman treatment
Claim that the Convention on the
Rights of the Child cannot be used by the court because it had not been
adopted by legislation.
CHIEF EXECUTIVE
OFFICER FOR
EDUCATION v GIBBONS
| Court
of
Appeal (CA) |
Fiji |
| Chandra, Basanayake
and Mutunayagam JJA |
[2013] FJCA 98 |
|
3 October 2013 |
Law(s) and/or
international instrument(s) considered
Convention on the Rights of the Child (CRC), arts 16, 28 and 37
Constitution of Fiji (CF), ss 25 and 37
Facts
At the relevant time the plaintiff (P) was a student in Class 5. On the
day in question, the first defendant (D1) (a teacher at Vatuwaqa
Primary School) was attending to the students, who were in P's class
(Class 5) and another class, Form 1. The classes were combined on this
occasion due to the absence of a teacher. D1 found P talking in class
several times, despite having received several warnings not to do so. P
was told by the teacher to go to the front of the class and to pull
down his pants, which he did. P was wearing boxer pants and underwear
underneath his outer pants. D1 then ordered a Form 1 student to pull
down P's boxer pants, leaving him standing only in his shirt and
underwear for about two to three minutes. P was then told by the
teacher to pull up his boxer pants and shorts and to return to his
seat.
P sought damages in a civil action based on battery, injury to feelings
and breach of a child's constitutional rights. Damages were awarded to
P. The education authorities appealed.
Issue(s)
1. Whether the Convention
on the Rights of the Child is applicable in this case.
2. Whether expert evidence is necessary in assessing trauma.
Decision
There was insufficient evidence for the arguments that were posed and
accordingly the appeal was dismissed.
The court at first instance upheld the claims of battery, injury to
feelings and dignity, and awarded aggravated damages.
On appeal, it was held that the CRC was an appropriate tool to be used
for guidance, which the lower court was entitled to do. The appeal
based on want of procedural particularity in the claim of battery also
failed in common law. The CA also rejected the third ground of appeal,
and reasoned that matters of expert witness should go to the issue of
quantum of damages awarded which was not being appealed.
Comment
In dismissing the appeal, the CA accepted that the CRC had not been
enacted in domestic legislation. However, the court also made the point
that the CRC had been cited in numerous cases for guidance, elucidation
and clarification in relation to the rights of children. This is
consistent with the application of human rights instruments as
reflected in the Bangalore Principles, which were drafted by a
colloquium of senior Commonwealth judges regarding the role of such
instruments in domestic law.
The wide number of ratifications, accessions and signatories by states,
as well as the continuing focus given to children's rights and advocacy
on their behalf, has enhanced the CRC's status as a significant source
of empowerment for children's rights. The CRC and other human rights
instruments cannot be the basis of a cause of action per se; the action
must always be grounded in the local context, both constitutional and
statutory. The CRC is only directly applicable as law when it has been
enacted in local legislation.
Children – sexual
offence
involved with a five-year-old victim and a 13-year-old perpetrator
Issues about the juvenile justice
system and the appropriateness of the sentence.
PUBLIC
PROSECUTOR v TIOBANG
Law(s) and/or
international instrument(s) considered
Penal Code (cap. 135)
Facts
In this case, a five-year-old girl (V) was sexually assaulted by a
13-year-old boy (D) in a plantation in the Sesivi area, West Ambrym. D
admitted the sexual assault. V regarded D as her 'daddy'.
Issue(s)
What is the appropriate sentence for a criminal offence in which both
the victim and the perpetrator were minors?
Decision
The Supreme Court imposed a two year suspended sentence, conditional
upon the good behaviour of D.
Comment
The strong rhetoric expressed by the court against the actions of the
perpetrator and men who sexually assault women was not reflected in the
decision. The serious sexual assault, abuse of trust and the young age
of the victim were outweighed significantly by the unblemished record
of the perpetrator as a first-time offender, the D's guilty plea at the
first opportunity, the D's co-operation with the police and his
willingness to perform traditional reconciliation. The age of the
perpetrator and the prospects for rehabilitation, in addition to the
mitigating factors, influenced the court. In that regard, the outcome
accords with Rule 11.4 of the Beijing
Rules 1985, which state that 'in order to facilitate the
discretionary disposition of juvenile cases, efforts shall be made to
provide for continuing programmes such as temporary supervision and
guidance, restitution and compensation of victims'. The court did not
see fit to order that D be subject to proper and appropriate adult
supervision and guidance for a specified period, in view of the gravity
of the offence in accordance with Arts 37 and 40 of the Convention on the Rights of the
Child. It is also unfortunate that the name of the child
perpetrator in this case was not suppressed, compromising his interests
and privacy, contrary to Rules 8 and 21 of the Beijing Rules.
Children –
victim of sexual offence – evidence
Circumstantial evidence and lack
of specificity may secure a conviction for the offence of sexual
penetration where corroborated by the testimony of a medical expert.
PEOPLE OF GUAM v
MENDIOLA
| Supreme
Court |
Guam |
| Torres CJ, Carbullido
and Maraman AJJ |
[2014] GUSC 17 |
|
16 July 2014 |
Law(s) and/or
international instrument(s) considered
Guam's Criminal Code (GCC)
Facts
The appellant (A) was the uncle of the victim who was a nine-year-old
girl at the time of the offence. Five convictions were upheld at the
conclusion of the third trial, including a conviction of first degree
criminal sexual conduct, against which A appealed. The facts of the
incident were not in dispute, but A argued that the conviction could
not stand on the basis that
insufficient evidence was presented at
trial to support a finding of sexual penetration – a necessary element
of First Degree Criminal Sexual Conduct.
Issue(s)
Whether any rational trier of fact could have found the essential
elements of the crime proven beyond reasonable doubt.
Decision
The Supreme Court dismissed the appeal. Sexual penetration is defined
in the GCC as: 'sexual intercourse, cunnilingus, fellatio, anal
intercourse or any other intrusion, however slight, of any part of a
person's body or of any object into the genital or anal openings of
another person's body, but emission of semen is not required.' The
court accepted that, while there was no direct evidence from the victim
at trial regarding penetration, the victim's specific age and the
expressions and descriptions used by the witnesses at trial provided
circumstantial evidence which, viewed together with the examining
nurse's admitted verbal evidence at trial, as a whole supported the
reasonable inference that penetration occurred.
The court further observed that, often
child victims do not have an
intricate knowledge of their genitalia to sufficiently describe a
sexual encounter. .... Although specificity when testifying is always
preferable, a general description of the events does not necessarily
defeat any possibility that penetration occurred. ... just as
[the
victim's] lack of
specificity does not absolve [the appellant] of
guilt, it does not single-handedly affirm his conviction either. Thus,
because [the victim] spoke
generally while testifying, the testimony of
[the examining nurse] becomes vital evidence.
Comment
The court made allowances for the fact that the complainant was a
nine-year-old child. It adopted some latitude in accepting that her
evidence about her genitalia was general rather than specific. However,
as an evidentiary safeguard, the court relied on the detailed testimony
of the examining nurse to hold that a reasonable inference could be
drawn that penetration had taken place. This should not be equated with
the rule for corroboration, which applies generally in relation to the
evidence of children, but rather as a positive measure to enhance the
testimony of a child. In sexual cases involving minors, the inability
of complainants, because of their age and inexperience, to provide the
degree of specificity required to discharge the burden of proof may
result in perpetrators escaping conviction. Had the court not adopted
the approach it did in this case, the perpetrator may have been
acquitted.
Children –
adoption order
Whether the best
interests of the child were taken into account in considering the
relevant legislative provisions.
SING
v SINGH
| Magistrates
Court |
Fiji |
| Neil Rupasinghe Esq.,
Resident |
[2014] FJMC 176 |
| Magistrate-Nasinu |
27 November 2014 |
Law(s) and/or
international instrument(s) considered
Convention on the Rights of the Child (CRC)
International Covenant on Civil and Political Rights (ICCPR)
Constitution of Fiji (CF)
Adoption of Infants Act (AIA)
Facts
The applicant (A) was the maternal uncle of the child, who had just
turned 17 years of age at the time of the application. A and his mother
cared for the child when she was young, until A left Fiji for New
Zealand in 2009. The child's biological mother, who had since married
and had her own family to care for, consented to the adoption. The
Social Welfare Office (SWO) was a party in the proceedings but did not
object to the application, except for remarking about sections 6(1) and
6(4) of the AIA, which prohibit adoption: 1) of a female infant by a
single male applicant, except in 'special circumstances which justify
an exceptional measure making an adoption order;' and 2) by 'any
applicant who is not resident in Fiji'.
Issue(s)
Whether the adoption order should be granted.
Decision
The court granted the adoption order and directed that the child was
not to be taken out of Fiji unless accompanied by her grandmother.
Comment
The court appears to have acted contrary to the provisions of sections
6(1) and 6(4), in making an order for the adoption of a female child by
a single male applicant who was not resident in Fiji. In respect of s.
6(1), the court did not provide any 'special circumstances which
justify the making of an adoption order'. The court also departed from
precedent in not following Social
Welfare Officer v Marshall [2008]
FJHC 283; HBAH.2006 (7 March 2008) (2 PHRLD 8), in which
an application
for adoption was declined in view of the non-local resident status of
the applicant. The purpose of a residency qualification is to safeguard
against possible abuse of procedure and to allow the Department of
Social Welfare to determine the bona fides and suitability of an
applicant, as well as to enable a child to bond with an applicant.
After citing the CF, CRC and ICCPR, the court observed: The best
interests' standard necessarily invites the judge to rely on his or her
own values and biases to decide the case in whatever way the judge
thinks best. Even the most basic factors are left for the judge to
figure out as an upper [sic] guardian of the children.
This statement
is, with respect, unfortunate. The 'best interests of the child' are to
be determined objectively on the set of facts and circumstances before
a court at any given time. The court should then exercise its
discretion in making a decision. To take a simple example, it could be
argued that the 'best interests of the child' in the present case were
prima facie not served by allowing the non-resident male applicant to
adopt a female child contrary to the provisions of the AIA and to
proper inter-country adoption procedures in accordance with
international practices. The court's imposition of the condition that
the child could only leave the country if accompanied by her paternal
grandmother suggests that the court was mindful of s. 6(1) of the AIA.
See also the Vanuatu case of In
Re Child M [2011] VUSC 16 (4 PHRLD 12) in relation to
issues relevant to the interplay between the best interests of the
child, non-resident applicants and inter-country adoption practices.
Children
–
victim of sexual offence – evidence – corroboration
Whether the right to a fair trial
requires corroboration of a child's evidence.
KUMAR
v STATE
| Court
of
Appeal |
Fiji |
| Calanchini P.,
Basnayake and Goundar JJA |
[2015] FJCA 32 |
|
4 March 2015 |
Law(s) and/or
international instrument(s) considered
Constitution of Fiji (CF), s. 15
Juveniles Act (JA), s. 10
Facts
The appellant (A) was convicted of rape based on uncorroborated
evidence provided by an eight-year¬old victim child. A sought to rely
on a statutory provision in relation to the need of corroboration
before a child's evidence could be relied on for a conviction. A
alleged that allowing the conviction under the circumstances violated
his constitutional right to a fair trial guaranteed under s. 15(1) of
the constitution. The court at first instance relied on a 2008 High
Court (HC) decision, which held that statutory provisions requiring a
child's evidence to be corroborated was unconstitutional.
Issue(s)
Whether s. 10 of the Juveniles
Act is unconstitutional, and whether A's right to a fair
trial was violated.
Decision
The court held that s. 10 of the Juveniles Act was unconstitutional and
dismissed the appeal.
While not bound by the previous HC decision, the court endorsed the
views expressed there, in particular that: s. 10 of the JA was based on
myths and stereotypes about children that should have no place in a
rational system of law; laws that prohibit the prosecution of crimes
against the most vulnerable victims have no place in our criminal
justice system and would be inconsistent with the Convention of the Rights of a
Child; and the only obligation a court has in relation to
a child witness is to tell the child the importance of telling the
truth before receiving his or her evidence, and the evidence should be
treated like any other evidence, without the need of corroboration. The
court added that a law that restricted a child victim's right to
testify would be inconsistent with the best interests of a child
enshrined in the constitution.
In relation to A's claim of a right to a fair trial, the court
considered that the issue involved multifaceted considerations, such as
the rights of victims (in this case a child), the rights of the accused
and the court's duty to ascertain the truth, and ruled that there was
no infringement of A's constitutional rights.
Comment
The decision reflects the progressive stance that courts have taken in
relation to stereotypes about the unreliability of children and women
as witnesses. Fiji's 2013 constitution enshrines the best interests of
a child as the primary consideration in every matter concerning the
child. This mandatory consideration, in turn, necessitates measures to
ensure that child witnesses in sexual abuse cases are appropriately
dealt with, for example, with the use of screens or video links.
Section 10 of the JA reflects the position at common law, underpinned
by the myth that children were predisposed to lie or embellish the
truth, and therefore required corroboration by an adult. Accordingly,
there was no infringement of the appellant's right to a fair trial. The
focus given to children's rights by the CRC and the advocacy and
awareness-raising that have accompanied its coming into force have had
an impact on changing judicial attitudes in relation to children's
evidence.
Children –
corporal punishment by parent
Significant reduction in sentence
for parent convicted of intentional wounding of a child.
DAKAI
v STATE
| High
Court (appellate jurisdiction) |
Fiji |
| De Silva J |
[2015] FJHC 129 |
|
27 February 2015 |
Law(s) and/or
international instrument(s) considered
Crimes Decree 2009
Facts
A father (D) whipped his
10-year-old son (V) with an extension cord, causing injuries, because V
had lied to his parents about his whereabouts after school. There were
lacerations on V's left lower back and legs, and his right buttock was
infected and swollen. D was convicted of 'unlawful wounding' under s.
261 of the Crimes Decree, and sentenced to a two-year jail term, with
an 18-month non-parole period. D appealed the sentence.
Issue(s)
Whether the magistrate erred in relying on an aggravating factor that
was an element of the offence, and whether the sentence was otherwise
harsh and excessive.
Decision
The High Court (HC) reduced the sentence of a two-year prison term with
an 18 month non-parole period, to a 12-month term, with the remaining
nine months still to be served suspended for three years.
Comment
This case is troubling because of the level of violence inflicted on
the child and the corresponding inverse proportion in the leniency
granted to A by the HC. The court held that the aggravating and
mitigating factors cancelled each other, and accordingly substantially
reduced the sentence. The appellant abused his position of trust and
authority as a parent to inflict violence against his child. The best
interests of the child factor, as a constitutional principle, arguably
required at least further consideration of this issue, particularly in
relation to proportionality regarding the child's misconduct and the
punishment. Genuine remorse shown by the parent would be a relevant
mitigating factor in determining whether it was beneficial for the
child to be deprived of his father, had A received a longer custodial
sentence.
CRUEL,
INHUMAN OR
DEGRADING TREATMENT
Ill-treatment
– compensation
Compensation and damages awarded
for theft, assaults, rape, gross sexual acts of indecency and sodomy.
KENZIYE
v INDEPENDENT STATE OF PNG
| National
Court of Justice |
Papua
New Guinea |
| Poole J |
[2013] PGNC 185 |
|
15 November 2013 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea (CPNG), ss 38–48
Wrongs (Miscellaneous Provisions) Act
Facts
On 20 May 2013 this matter came to light when the court was
reviewing incomplete matters. On 18 October 1996 the plaintiffs (Ps)
filed a claim against the state and a police officer seeking damages
for loss of property and wrongs to their person and their
constitutional rights. The defendants (Ds) did not respond, and a
default judgment was entered on 6 December 1996, with damages to be
assessed. Further court orders required that the assessment be
determined by way of affidavits, but Ds again failed to respond. In May
2013 the court invited parties to file any further material, but again
Ds did not respond. This action arose from an incident in 1991, when
the police conducted raids and searches on Ps and their properties in a
village. According to Ps, police personnel burnt down houses, stole
money, raped a number of women, assaulted and wounded a number of
people, falsely imprisoned a number of people, and by armed threat,
forced a number of people to commit acts of gross sexual indecency and
sodomy. The claims include property loss, assault, false imprisonment
and breaches of constitutional rights and freedoms, damages for arson,
robbery, rape and indecent assault.
Issue(s)
How each uncontested claim and damages should be assessed.
Decision
The court relied on the principles set out in an earlier
Supreme Court decision in relation to assessment of damages when
default judgment on liability was entered. Importantly, Ps still had to
prove damages by credible evidence and to the satisfaction of the court
on the balance of probabilities.
Accordingly, the court then ordered damages under each head
(property, robbery, assault, sexual assault and rape, perverse sexual
assaults and false imprisonment) of the claims by each individual
through reviewing the affidavits filed.
General and exemplary damages were also ordered against the
state for victims of perverse sexual assaults, which included forcing
the victims at gun point to perform sexual acts and sodomy in public.
The court was emphatic about the gross violation of the victims'
constitutional rights, including freedom from inhuman treatment and
rights to privacy and human dignity.
Comment
Police brutality in Papua New Guinea (PNG) appears to have
been prevalent for a long time. In the last two years the court has
considered a number of similar cases, including: Application for Enforcement of
Human Rights, in re Namson Lamaning [2013] PGNC 165; N5419
(15 November 2013); Application
for Enforcement of Human Rights, in re Jacob Okimbari [2013] PGNC 166;
N5420 (15 November 2013); In re Application for
Enforcement of Human Rights, in re Batley Isaiah [2013] PGNC 167; N5421
(15 November 2013); In
re Ruben Micah - application for enforcement of human rights, [2013]
PGNC 210; N5427 (22 November 2013); Wati v Gavera [2013] PGNC 182;
N5363 (3 October 2013); Kaima v Poga [2013] PGNC 181;
N5362 (3 October 2013); Pain v State [2014] PGNC 70;
N5604 (16 May 2014).
This case underscores the daily challenges which confront the
rule of law in PNG as well as other Pacific jurisdictions. It is also
salutary that PNG is significantly larger than its neighbours, in terms
of its size, resources and population, and also has a diverse
population. The extent and degree of lawlessness and abuse of power and
authority reflected in this case is horrific, but it appears to be a
snapshot of a country coming to terms with the challenges of
development and the varying stages of that process in which its people
find themselves, ranging from remote and highly traditional village
structures to a modern, cosmopolitan society. Papua New Guinea
continues to face serious problems in instilling professionalism and
discipline in the police. The long delay in finalising the claims in
this case was largely attributable to this issue, along with
unresponsive government machinery in need of reform and restructuring.
The police were uncooperative in locating the police officers
responsible as well as in filing necessary court documents to
facilitate an expeditious resolution of the claims. Some of the court's
observations are apposite: ...it
is
disturbing to note that the State has filed no material whatsoever...
instead being content to act as a passive pay master to distribute
damages to be paid from badly needed public funds; it should take
proper steps to protect these funds by identifying police against whom
claims are made, actively defend claims where appropriate and seek
appropriate indemnities and contributions from the police concerned
when they are guilty and the facts justify this.
Ill-treatment
– police brutality of an accused in custody – compensationn
Damages awarded for infringement
of rights comprising routine assaults at various stages of the
arresting process.
IN
RE APPLICATION OF ENFORCEMENT
OF HUMAN RIGHTS, IN RE JACOB OKIMBARI
| National
Court of Justice |
Papua
New Guinea |
| Cannings J |
[2013] PGNC 166 |
|
15 November 2013 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea
Facts
The plaintiff (P) was arrested and subsequently convicted for carrying
out a bank robbery. When P was arrested he was assaulted and then told
to lie on the floor. The Police then shot him in both legs. P lost
consciousness and was then taken to hospital. An attending doctor
wanted to X-ray and admit P, but the police refused, and returned P to
a cell that night. The police then assaulted P for another two days
when he did not provide answers to police interrogations that police
considered satisfactory. P fell unconscious when the police beat him
with a baseball bat. P was taken to the hospital, where he spent one
night before being removed without approval from the doctors and was
assaulted until he signed a confession. The beatings then stopped.
Issue(s)
Whether there was an infringement of the rights of the plaintiff.
Decision
There was an infringement of the rights of the plaintiff and he was
awarded constitutional remedies of reasonable and exemplary damages.
Comment
The court, in coming to its decision, found that the plaintiff was
denied full protection of the law, subjected to inhumane treatment,
denied the right of detained persons to contact family members and a
lawyer, and denied the right to be treated with humanity and respect.
The facts indicate the wanton manner in which P was routinely assaulted
at different stages of his arrest and denied access to appropriate
medical attention. The repetition and pattern of the treatment suggest
that this was normal conduct of police in respect of those arrested and
charged with offences. While P was fortunate to be able to obtain
redress for the treatment he was subjected to, it is sobering to
consider that many accused are likely to suffer such injustices without
reporting the incidents, which encourages perpetrators to continue such
practices and contributes to an environment of impunity.
Ill-treatment
– police brutality of accused in custody – compensation
Damages awarded for infringement
of rights constituting denial of due process.
IN
RE APPLICATION OF ENFORCEMENT
OF HUMAN RIGHTS, IN RE NAMSON LAMANING
| National
Court of Justice |
Papua
New Guinea |
| Cannings J |
[2013] PGNC 165 |
|
15 November 2013 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea
Facts
The plaintiff (P) was arrested for committing armed robbery. On his
arrest he was assaulted, denied medical treatment and denied access to
a lawyer. P was detained without charge and without being taken before
a court for 10 days. He was detained for a further five months before
he was granted bail.
Issue(s)
Whether there was an infringement of the rights of the plaintiff.
Decision
The court held that the rights of the plaintiff were infringed and
awarded him constitutional relief in the form of reasonable and
exemplary damages. The court took judicial notice of the fact that P
was convicted of armed robbery in the criminal trial related to the
armed robbery. In the criminal trial the plaintiff presented the same
evidence and, although there was no medical evidence to corroborate the
alleged facts, the court determined that on the balance of
probabilities P's evidence was sufficiently credible.
Comment
As with Jacob
Okimbari's case, the denial of the plaintiff's rights in
this case appeared to be part of systemic practice by the police. There
appears to be a view among many police officers in Papua New Guinea
that convicts or those alleged to have broken the law are not entitled
to have their rights respected. This perspective can be curbed by
penalising such conduct, while providing ongoing training, education,
counselling and mentoring, and sufficiently changing attitudes to
facilitate sustainable reform. However, this may be generational change
because ingrained attitudes and prejudices, particularly in relation to
cohorts held in low esteem by the community, are difficult to change.
Ill
treatment
– prisoners' rations – rights to adequate food and diet
The right to the full protection
of the law and to respect for the inherent dignity of the human person
obliged Correctional Services to ensure that inmates' nutritional
requirements were met, in compliance with the provisions of the
Correctional Service Act and Regulations.
KAUKE v
COMMANDING OFFICER, BOEN
CORRECTIONAL INSTITUTION
| National
Court of Justice |
Papua
New Guinea |
| Cannings J |
[2014] PGNC 104 |
|
25 June 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of PNG, ss 37(1) and (17), 41(1), 57 and 225
Correctional Service Act 1995 (CSA), ss 123(1)
Correctional Service Regulations (CSR), ss 69 and 71
Facts
The plaintiff (P) was a prisoner at Beon Jail, who brought an
application for enforcement of his human rights, alleging that the
Commanding Officer and the state (Rs) failed to provide him with food
adequate to maintain his health and wellbeing. P claimed that, as a
prisoner, he had a right to be protected against inhuman treatment and
to be treated with humanity and respect for the inherent dignity of the
human person, and that the relevant laws gave effect to those rights by
prescribing minimum nutritional requirements for food provided to
prisoners, which the Rs failed to follow. Specifically, P alleged that
he and other detainees were provided with the same type of food every
day and were rarely provided with fruit, vegetables or dairy products,
as required by law. The Rs denied the allegations and denied P's human
rights were breached.
Issue(s)
1. What are the human rights of detainees with respect to food and
diet?
2. The appropriateness of the food provided to detainees at Beon Jail.
3. Has any breach of human rights been proven?
4. What declarations or orders should the court make?
Decision
The court recognised that a prisoner has fundamental human rights,
which are conferred by the constitution and must be adhered to and
respected by all authorities within the criminal justice system.
Accordingly, prisoners are not to be submitted to torture or to
treatment or punishment that is cruel or otherwise inhuman (s. 36(1)),
they are to be afforded the full protection of the law (s. 37(1)), they
are to be treated with humanity and with respect for the inherent
dignity of the human person (s. 37(17)) and they are to be protected
against harsh or oppressive or otherwise proscribed acts (s. 41(1)).
Further, the allegations that the P (and other prisoners) were, with
occasional exceptions, provided with the same meals each day, which
consisted of food from groups A and B, with no or negligible quantities
from groups C, D and E, was upheld. There were minimum legal
requirements to be adhered to in the administration and treatment of
prisoners. A prisoner must be provided with food that is adequate to
maintain his or her health and wellbeing.
Further, it appears that the Commanding Officer did not prepare a
schedule of monthly detainee meals, as required by the Regulation
The claim that P and other prisoners were denied the full protection of
the law, contrary to s. 37(1) of the constitution was also upheld.
However, the court held that the breaches were not so severe, or
committed in such bad faith, as to conclude that the applicant was
being treated inhumanely, without humanity or respect for the inherent
dignity of the human person, or harshly or oppressively.
The court ordered that, within 14 days, the Commanding Officer was to
prepare and file, for approval by the court, a schedule of detainee
meals for the month of August 2014, which must be compliant with the
food and nutritional requirements of the Act and the Regulation, and to
provide food to those prisoners affected, in accordance with the
schedule.
Comment
The court acknowledged that prison inmates have rights that are
protected by the constitution. These include the right not to be
subjected to torture or to treatment that is cruel, inhuman or
degrading (s. 36 (1), the right to full protection of the law (s. 37
(1)), the right to be treated with dignity and with respect for the
inherent dignity of the human person (s. 37 (17)), and the right to be
protected against harsh, oppressive and otherwise proscribed acts (s.
41 (1)). P was holding the Correctional Service accountable for the
statutory nutritional obligations it had in respect of him. In holding
that P was denied the full protection of the law, the court then
adopted a pragmatic approach, stating the breaches were not so severe,
or committed in such bad faith, as to hold that P was being treated
inhumanely, or without respect for the inherent dignity of the human
person, or harshly or oppressively. However, there were standards set
out in the CSA and the CSR that had to be complied with, and the
Correctional Service was required to file a schedule with the court
that complied with those requirements. In the context of Papua New
Guinea, where there is a perception that the police and the
Correctional Service sometimes operate in an environment of impunity,
it is encouraging that these proceedings were instituted and that the
court held as it did.
CUSTOM
Banishment
practice – conflict with the law
Banishment is unconstitutional
other than in a very limited range of situations.
PUNITIA
v TUTUILA
| Court
of
Appeal |
Samoa |
| Fisher, Hammond and
Blanchard JJA |
[2014] WSCA 1 |
|
31 January 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Samoa, art. III
Village Fono Act
Land and Titles Act
Facts
Of 16 appellants in this appeal (As), the primary appellants referred
to in the judgment were X and Y, who were leaders of the village of
Tanugamanono. A decision of the Supreme Court ordered the As to pay
damages for unlawfully banishing the respondent and her family (Rs)
from the village and being party to subsequent damage to their
property. All of the As were ordered to pay damages, totalling
$963,710. A number of specific As were also ordered to pay an
additional $18,585. The As appealed that decision.
Issue(s)
Whether the As are liable to pay damages, and the quantum of damages.
Decision
The appeal against liability was dismissed. The appeal against the
quantum of damages was allowed on a limited basis, and the damages were
slightly reduced. In lieu of the damages awarded in the Supreme Court,
the As were jointly and severally liable to pay special damages of
$813,710, in addition to general and vindicatory damages of $50,000; a
total of $863,710, as well as costs of $5,000.
The banishment ordered by the village leaders were, in the
circumstances, unlawful, unconstitutional and invalid. Alternative
arguments for validity of the banishment order, based on customary law,
also failed. The court observed that banishment must be sanctioned by
the Land and Titles Court (LTC), and must only be approved in limited
situations. Consequently, damage caused by the act of banishment should
be assessed either under a constitutional remedy (which is
discretionary) or in tort law.
Comment
This is an interesting case, in which the traditional practice of
banishment is in conflicts with human rights principles. Not only were
the Rs' rights to freedom of movement significantly infringed by being
banished from their village, but they were further victimised by the
damage caused to their property by village leaders. This is a
relatively recent example of intervention by the courts to protect the
rights of those disadvantaged by the arbitrary acts of the fono (a traditional
body with statutory and decision-making functions). The quantum of
damages reflects both the gravity of the breach of human rights and the
personal harm done to the Rs, as well as judicial disapproval of the
practice. The fono,
as a traditional entity with statutory functions and responsibilities,
is obliged to act within the confines of the law. That law requires it
to balance the fa'a Samoa with the application of human rights and the
principles of natural justice. The two are not mutually exclusive,
because fa'a
Samoa also incorporates notions of justice and fairness. The courts
have not hesitated to intervene in instances of inconsistency between
laws of national jurisdiction and fa'a
Samoa.
In relation to whether damages should be considered under tort law or a
constitutional remedy, the court preferred the former, however it
observed:
However there is no
absolute rule to that effect. In Simpson v Attorney-General [Baigent's
case] [1994] 3 NZLR 667 (CA) at 678, for example, Cooke P said this:
As to the level of
compensation, on which again there is much international case law, I
think that it would be premature at this stage to say more than that,
in addition to any physical damage, intangible harm such as distress
and injured feelings may be compensated for; the gravity of the breach
and the need to emphasise the importance of the affirmed rights and
[to] deter breaches are also proper consideration; but extravagant
awards are to be avoided. If damages are awarded on causes of actions
not based on the Bill of Rights, they must be allowed for in any award
of compensation under the Bill of Rights so that there will be no
double recovery. A legitimate alternative approach, having the
advantage of simplicity, would be to make a global award under the Bill
of Rights and nominal or concurrent award on any other successful
causes of action.
Cooke P could see no
difficulty in an action in which damages for breach of constitutional
rights co-existed with private law causes of action so long as there
was no duplication of compensation for the same loss. Private law
causes of action would not have been a satisfactory substitute in the
present case. Undoubtedly there were trespasses to person and property.
Accordingly, applicants may either institute proceedings in tort or
seek constitutional redress, in the alternative. In cases such as the
present, the remedy under constitutional redress was more appropriate,
given the official status of the fono
and the extent to which it had abused its powers and trampled on the
rights of the As. However, where damages are awarded under both
constitutional redress and tort, the courts must take care not to allow
double recovery or duplication of compensation.
DEMOCRACY AND
RULE OF LAW
Rule
of law –
constitutional rights for not being prosecuted without cause –
compensation
Prosecution entered but DPP
failed to provide any evidence on the date of the trial.
ATTORNEY
GENERAL, IRO REPUBLIC OF
KIRIBATI v BAAKOA
| Court
of
Appeal |
Kiribati |
| Paterson, Blanchard
and Handley JJA |
[2013] KICA 6 |
|
23 August 2013 |
Law(s) and/or
international instrument(s) considered
Constitution of Kiribati, art. 10
Facts
The respondent (R) was charged with and convicted of one count of
carrying an offensive weapon in public and one count of assault causing
actual bodily harm, in the Magistrates Court. R was sentenced on 28
April 2009 to three years and six months imprisonment, and served her
sentence until 4 September 2009, when she was released on bail pending
appeal.
On 24 September 2009 the appeal against conviction and sentence was
quashed in the High Court, when the Chief Justice found that the trial was fundamentally
irregular, as the police prosecutor opened the prosecution
case but called no evidence, and that a retrial was inevitable. On 4
September 2010 R was acquitted at the retrial, when the prosecution
again offered no evidence.
R then brought proceedings, in June 2011, for compensation against the
Attorney General for contravention of R's rights under art. 10 of the
constitution, which affords the right to a fair hearing before an
independent and impartial court in criminal matters.
The appellant (A) in this case sought to strike out the civil action,
arguing that the matter was res
judicata (that the substantive matters before the court
had already been subject to adjudication). The High Court had held that
the High Court in criminal appeal and the Magistrates Court in retrial
did not determine the issue of redress for breach of constitutional
rights, and declined to strike out the application. A appealed to the
Court of Appeal.
Issue(s)
Whether the civil action for compensation under art. 10 should or could
have been adjudicated in the criminal proceedings, and therefore
whether the civil action for compensation under art. 10 amounted to res
judicata and abuse of process.
Decision
The Court of Appeal upheld the decision of the High Court and dismissed
the appeal. The High Court and the Magistrates Court in the criminal
matter did not have jurisdiction to entertain a matter of civil
compensation or constitutional redress.
Comment
The prosecution appears to have tried to raise the issue of res judicata in
circumstances where R, the original defendant, sought to bring a claim
for compensation for breach of her right to a fair trial and due
process. However, there was no basis for this argument, because the
initial case against R was for offences for which she was initially
convicted without evidence being called. The prosecution called no
evidence at the rehearing, and R was acquitted. Rather than
investigating the reason why R was convicted without evidence, which
was incumbent upon them to do so as officers of the court, the
prosecution was more concerned with pre-empting R's claim for
constitutional redress (occasioned by the gross miscarriage of justice
she had suffered).
Rule of
law –
the role of the Ombudsman Commission
Process of certification of
legislation and proposed constitutional amendments to regulate the
Ombudsman Commission considered.
IN RE
CONSTITUTIONAL (AMENDMENT)
LAW 2008, REFERENCE
BY THE OMBUDSMAN
COMMISSION OF PNG
| Supreme
Court |
Papua
New Guinea |
| Injia CJ, Salika DCJ,
and Sakora, Kirriwom |
SC Reference No. 01
of 2010, [2013]
PGSC 67 |
| and Gavara-Nanu JJ |
19 December 2013 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea (CPNG)
Constitution (Amendment) Law 2008 (C(A)L)
Facts
The ombudsman initiated a Special Reference under s. 19 of the CPNG
challenging the validity of proposed constitutional amendments
concerning the powers and functions of the Ombudsman Commission (OC)
pursuant to s. 27(3)(c), s. 27(5), s. 28(1), s. 28(5), s. 29 and s. 219
of the CPNG. These amendments were set out in the C(A)L 2008. At the
time the reference was filed the C(A)L had been passed by parliament
but not yet certified by the speaker. Before the court delivered its
opinion on the reference the speaker certified the C(A)L.
Issue(s)
The Special Reference dealt with three categories of questions:
1. Questions relating to procedures employed in the passage of the
C(A)L 2008.
2. Specific questions on the provisions of the C(A)L 2008.
3. Questions on the interpretation and application of the C(A)L 2008 in
the event that the amendments are constitutional.
Decision
The Supreme Court held:
1. A law that has gone
through the required number of readings but is awaiting certification
by the speaker is a law or proposed law subject to the scrutiny of the
court. Certification is only a formalisation of the law-making process.
The C(A)L 2008 was passed by Parliament according to its internal
procedures and was already law, except for certification, which
formalised that process. It is Parliament's role as the supreme
law-making body under s. 100 of the CPNG, in which the court could not
intervene, as to do so would contravene the doctrine of separation of
powers.
2. Question 8(a) and question 9(a) and (b) are answered in the
affirmative, and therefore the provisions of the C(A)L 2008 referred to
in the specific provisions of the C(A)L 2008 are unconstitutional and
invalid as they are in conflict with ss 217(5), 55(1), and ss 37(11)
and 37(12). Section 27(5) of the C(L)A 2008 is not valid law as it
contravenes s. 217(5). Similarly, s. 219A, as amended, establishing a
parliamentary committee to act as watchdog over the OC, is also invalid
and of no effect as it takes away the independence of the OC guaranteed
by the CPNG. Further, s. 28(9) of the CPNG, as amended, directly
contravenes s. 55(1), which provides that citizens are equal in the
eyes of the law, while the law separates members of parliament, who are
not covered by the law and are treated differently from other citizens.
Finally s. 29(3) of the CPNG, as amended, is ultra vires ss 37(10) and
(12), in that it empowered the OC to exercise certain judicial powers
in determining the culpability of a person against whom a complaint is
made in a particular way, but it is directing the OC contrary to ss 37
(11) and (12), and is of no force and effect.
Comment
The court did not hesitate to strike down the C(A)L 2008 as invalid and
of no effect in seeking to limit the independence and autonomy of the
OC. In doing so it was performing its role as the interpreter and
guardian of the CPNG. Section 217(5) of the CPNG provides: 'in the
performance of its functions ... the Commission is not subject to
directions or control of any person or authority.' The C(A)L 2008,
under the guise of greater accountability and transparency, sought to
establish a parliamentary committee to oversee the functions of the OC
and to remove from it the power to give directives, including
implementation of the national government's policies and directives,
and implementation of annual budgetary allocations. The OC was
deliberately established with sweeping powers and shielded from
political control at independence, in order to reinforce its oversight
role of potential government malfeasance. The status of the C(A)L 2008
was also clarified, in that at the time the proceedings were initiated
the legislation was awaiting certification by the speaker, and
therefore, having gone through the required number of readings, it was
a law or proposed law subject to the scrutiny of the courts. The
legislation had been passed by Parliament according to its internal
procedures and was law. Certification was merely a formality.
Democracy
–
rule of law – suspension of a senior civil servant's position – legality
Non-compliance with mandatory
constitutional procedural requirements for suspension of senior public
servants.
O'NEIL
v KLAPAT
| Supreme
Court |
Papua New Guinea |
| Salika DCJ, Sawong
and Logan JJ |
SCM No. 13 of 2014,
[2014] PGSC 13 |
|
29 August 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea (CPNG)
Facts
On 11 January 2012 the respondent (K) was suspended from his position
as head of the Department of Community Development by the governor
general (GG) on the advice of the National Executive Council (NEC). K
challenged the decision by way of judicial review in the National Court
(NC). On 21 March 2014 the NC declared the suspension illegal and
issued an order of certiorari
quashing the decision. The appellant (A) filed an appeal on 27 March
2014, and thereafter did nothing further to advance its case.
Issue(s)
What is the appropriate course of action in the light of the
appellant's inaction in prosecuting the appeal?
Decision
The appeal was dismissed for want of prosecution. Since filing the
appeal, the A had done nothing to advance it or to explain the
inactivity, even after an application for dismissal was filed on 3 July
2014. In any case, the appeal only went to the asserted errors in the
exercise of discretion by the NC to grant relief. The appellant
conceded that there had been a serious departure from lawful public
administration. K had not been suspended in accordance with the
mandatory procedure laid down in s. 193(1D) of the CPNG and the Public Service (Management) Act
1995. The GG should not have been joined as a party as he
acted on advice, and the proper party was the Attorney General, in
accordance with s. 3 of Claims
By and Against the State 1996.
Comment
The conduct of the state in not prosecuting its appeal with any vigour,
while disappointing, is not surprising, given there were irregularities
in the original administrative decision that it had sought to defend.
The state had not challenged the merits of the decision in the NC, but
had appealed on the basis that the NC had not exercised its discretion
properly to grant an order of certiorari.
The decision by the A to bypass the mandated procedures under s.
193(1D) of the CPNG and approach the GG and the NEC directly was
clearly a departure from lawful public administration, as the NC
recognised and the court affirmed. These procedures were put in place
to minimise the likelihood of political interference in the appointment
of public servants.
Democracy
–
rule of law – arrest warrant against the prime minister
Status of a judicial warrant and
the responsibility of the Commissioner of Police and the Papua New
Guinea Police in respect of that warrant.
IN RE
POWERS, FUNCTIONS, DUTIES
AND RESPONSIBILITIES OF THE COMMISSIONER OF
POLICE
| Supreme
Court of Justice |
Papua
New Guinea |
| Cannings, Makail,
Sawong, Poole and Kangwia JJ |
[2014] PGSC 19 |
|
2 October 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea (CPNG)
Arrest Act 1977 (AA)
District Courts Act 1963 (DCA)
Facts
This matter involved three constitutional references arising out of the
granting by the District Court (DC) of a warrant of arrest for the
Prime Minister (PM), Hon. Peter O'Neill. That event led to two National
Court proceedings: OS (JR) No 485 of 2014, in which the Commissioner of
Police (CP) and the PM sought leave to seek judicial review of the DC's
decision to issue the warrant; and OS 484 of 2014, in which the member
of the Papua New Guinea Police Force (PNGPF) who had applied for the
arrest warrant wished to charge the CP with contempt of court for
disobedience of the warrant. The third reference was an application by
the attorney general pursuant to s. 19(1) of the CPNG for the exercise
of the Supreme Court's (SC) original interpretive jurisdiction under s.
18(2).
Issue(s)
The references, as consolidated by the SC, comprised 16 questions of
law for determination relating to the process of execution of a warrant
issued by the District Court for the arrest of the prime minister.
Decision
The court held as follows:
1. The CP has authority to issue directions to other members of the
PNGPF concerning criminal investigations and their conduct.
2. Granting a warrant of arrest by the DC under the AA is a decision of
the national judicial system in terms of s. 156(6) the CPNG. It is
equivalent to a court order, a duty to obey, and, accordingly, it is
imposed on those to whom it is addressed, and there is no discretion
otherwise.
3. In an appropriate case, a member of the PNGPF, including the CP, to
whom the warrant is directed, may be guilty of contempt if they either
do not execute the warrant in a timely manner, refuse to execute it or
frustrate the attempts of others to do so.
4. Power to punish for contempt of the DC for offences other than those
created by s. 227 of the DCA vests in the NC under ss 154(4) and (6),
166 and 172 of the CPNG. Any appropriate person, including the CP, may
be prosecuted by the NC for contempt of the DC, constituted by
disobedience of a warrant of arrest issued by the DC.
Comment
The case is an interesting demonstration of the checks and balances
within the judicial system and the nature of the relationship of the
judicial system with another branch of the state, in this case the
executive, as represented not only by the CP but also by individuals
within the PNGPF seeking to compel the CP to implement the arrest
warrant in question. While the decision recognised that the DC did not
have powers to punish for contempt, the court found that the matter
could be prosecuted in the NC in appropriate circumstances, as a
warrant issued by the DC was equivalent to a court order. Members of
the PNGPF, including the CP, were liable for contempt if a warrant of
the DC was not executed in a timely manner, if they refused to execute
it, or if they frustrated the attempts of others to do so.
Democracy –
rule of law – power of legislature to trigger a referendum
Use of a referendum as a
consultative mechanism to seek approval for law reform is valid.
IN
RE RIGHT OF REFERENDUM OF THE
PEOPLE OF GUAM
| Supreme
Court |
Guam |
| Torres CJ, |
[2014] GUSC 24 |
| Carbullido and
Maraman AJJ |
10 October 2014 |
Law(s) and/or
international instrument(s) considered
The Organic Act of Guam (Organic Act)
The Guam Code Annotated (GCA), Title 3, Chapter 16
Facts
In February 2014 the Guam legislature (legislature) passed a law (the
authorising law), which provided for a binding referendum to be placed
in the November general election in relation to whether Guam should
adopt an amendment to the GCA, which would legalise the compassionate
use of cannabis. The legislature sent a letter to the Guam Election
Commission (GEC), directing it to this effect. In reply to the
direction, the GEC refused to follow the direction, claiming that the
law purporting to authorise the referendum was invalid as it violated
both the Organic Act and the Guam law. The legislature instituted
proceedings seeking a declaration that the authorising law was lawful
and that the GEC did not have the authority to refuse the direction
based on its view of the validity of the law.
Issue(s)
Whether the authorising law was valid and whether the GEC had the
authority to refuse to act under the circumstances.
Decision
The court declared that the authorising law was valid as it did not
violate the Organic Act or the GCA. However, it was not necessary to
rule on whether the GEC had the authority to refuse the legislature's
direction.
Comment
One of the GEC's arguments was that asking voters to decide whether a
law should be enacted would violate the principle of separation of
powers, as it would be a delegation of legislative authority to voters.
The court rejected this argument, citing previous cases, in which the
courts had recognised that legislatively referred referenda to amend
state statutes did not impermissibly delegate legislative authority,
and that a legislative referendum was not an unconstitutional
delegation of legislative power. The referendum did not, of itself,
delegate legislative authority to the electorate of Guam. It was, in
essence, a consultative mechanism by which the electorate could express
an opinion that was binding on the Guam legislature. If the proposition
was affirmed, the legislature would then enact an amendment to reflect
that outcome. The referendum was conducted during the November 2014
general election, and the compassionate cannabis use law was
subsequently passed by the legislature.
Democracy
–
rule of law – whether restriction of candidacy in election allowable
under the constitution
Whether the right to freedom of
association and assembly is compromised by the Political Parties
Integrity Act 2014.
WALE v
ATTORNEY-GENERAL
Law(s) and/or
international instrument(s) considered
Constitution of Solomon Islands (CSI)
Political Parties Integrity Act 2014 (PPI Act)
Facts
Solomon Islands passed the PPI Act in 2014. The relevant sections of
the PPI Act provide that only registered political parties are allowed
to nominate and endorse candidates for elections, and candidates in an
election can only associate with registered parties, or must run in an
election as an independent candidate. The applicants (As) – a member of
parliament and contending candidate in the upcoming election, and a
political party (which had not been registered in accordance with the
PPI Act) – sought declaratory orders that certain provisions of the PPI
Act were contrary to the constitutional right to freedom of assembly
and association.
Issue(s)
1. Whether the identified provisions of the PPI Act are inconsistent
with the constitutional rights to freedom of assembly and association.
2. If so, whether the inconsistency is allowed under the limitations of
the rights prescribed in the CSI, namely, whether the registration
requirements for political parties under the PPI Act are in the
interests of public order or safety and are justifiable in a democratic
society.
Decision
The court dismissed the application, and held that: [the] requirements of registration
and limitations imposed do not alter or interfere with the voluntary
nature of political parties as to their membership and activities and
that the provisions of section 45 do come within the exceptions of
public, [sic] interest,
public order and public safety and that it has not been shown that they
not [sic] reasonably
justifiable in a democratic society.
Comment
In coming to its decision, the court considered the objectives of the
PPI Act and reviewed the relevant jurisprudence in other jurisdictions,
including Papua New Guinea and Europe, in relation to the registration
requirements of political parties. It recognised that putting in place
clear guidelines for the administration, supervision and control of
political parties could only improve political certainty, focus and
stability in governance in Solomon Islands. The relevant provisions
thus come under the allowed restrictions of the protected rights. The
rights conferred in the CSI are not absolute, and that is recognised by
the limitations contained in the CSI. The provisions being challenged
regulated the manner in which political parties and candidates were to
organise themselves in order to participate in elections, but the
provisions nevertheless allowed them to participate once those
conditions were met.
See also similar discussions in a PNG case, Special Reference by Fly River
Provincial Executive; Re Organic Law on Integrity of Political Parties
and Candidates [2010] PGSC 3 (4 PHRLD 16).
Democracy –
parliamentary sitting and purported acts of minister
Elements necessary to determine
what constitutes a first session of parliament.
IN
THE MATTER OF THE CONSTITUTION
AND IN THE MATTER OF AN APPLICATION
FOR INTERPRETATION
AND APPLICATION OF THE CONSTITUTION AND ORDERS, Civil
Case No.1 of 2014 (High Court of Tuvalu, 2014)
| High
Court |
Tuvalu |
| Torres CJ, |
Civil Case no 1 of
2014 (unreported) |
|
17 July 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Tuvalu (CT), ss 116 and 140
Standing Orders of Parliament
Facts
A general election was held on 16 September 2010. Fourteen members of
parliament were elected. In accordance with the procedures under
Schedule 2 of the Constitution
of Tuvalu, an election to appoint the prime minister (PM)
was held on 29 September. Maatia Toafa was elected PM. Later that day
the governor general (GG) swore in the members of the new cabinet. On
30 September 2010, at 10:00 am, an election for speaker was held at the
Vaiaku Lagoon Hotel conference room. At 2:00 pm that day, members of
parliament met in the Vaiaku Falekaupule – the usual venue for
parliament to sit. The members had been summoned to the meeting by the
clerk to parliament in a letter written the previous day. The speaker
duly took his place at the meeting. Opening prayers were conducted by a
representative of the Congregational Christian Church of Tuvalu, Te Ekalesia Kelisiano Tuvalu
(EKT), and the meeting was adjourned thereafter.
Issue(s)
Was the meeting held on 30 September 2010 the first session of
parliament after the general election of 16 September 2010?
Decision
The court held the meeting did not constitute the first session of
parliament, as no proclamation had been issued by the GG on the advice
of the prime minister as to the date, time and place of the sitting of
parliament, as required by section 116 of the CT. The clerk, while
advising members in her letter dated 29 September 2010 that a
proclamation had been issued by the GG, was unable to provide any
evidence that this proclamation had been issued.
Comment
The applicants argued that the meeting of 30 September was the first
session of parliament because the speaker had presided and prayers had
been offered by a member of the EKT, as was the custom and procedure.
The court disregarded those considerations in determining whether the
preconditions for a first session had been fulfilled. The holding of a
first session of parliament required that the GG, upon being advised by
the PM of the date, time and venue of the first sitting, then issue a
proclamation to that effect. That was not done. The fact that the clerk
had advised members of parliament that a proclamation had been issued
and that members attended a meeting at which prayers were offered and
over which the speaker presided in accordance with established
practice, made no difference. The provisions of s. 116 had not been
fulfilled. The decision emphasises the importance of procedural
requirements in the exercise of parliamentary and constitutional
functions, which are formulated to protect both the institutions and
the officers who perform duties relevant to their function.
Democracy –
exercise of speaker's powers
Whether the decision to refuse to
summon parliament to an extraordinary session was justified.
CARCASSES
v BOEDORO
| Court
of
Appeal |
Vanuatu |
| Vincent Lunabek CJ, |
Civil Case No. 1 of
2014 (unreported) |
| Bruce Robertson,
Daniel Fatiaki, Oliver Saksak |
14 November 2014 |
| and John Mansfield
JJA
|
|
Law(s) and/or
international instrument(s) considered
Constitution of Vanuatu
Facts
A notice of request for the Speaker of Parliament of Vanuatu to hold an
extraordinary meeting had 27 signatures. Three members of parliament
(MPs) informed the speaker that they did not sign any request to
convene parliament and that their signatures were used without their
consent. Based on this, the speaker refused to summon parliament to an
extraordinary meeting, declaring that the notice was not in order.
The court in first instance held that the speaker's actions were
justified. This decision was appealed.
Issue(s)
Whether the actions of the speaker of parliament to refuse to summon an
extraordinary meeting is within his powers.
Decision
The Court of Appeal affirmed the decision at first instance and
dismissed the appeal.
Comment
The court had made the same ruling in a previous case, Vanuaroroa v Republic of Vanuatu
[2013] VUCA 41 (22 November 2013), with similar facts.
There was no suggestion that the ruling in Vanuaroroa was
wrongly decided. Deciding whether or not to summon an extraordinary
meeting of parliament is within the constitutional duty of the speaker
and it is reasonable and justifiable that he considered complaints of
MPs in such circumstances. The speaker's discretion is exercised on the
basis of the facts before him/her. Unless those impugning the speaker's
powers in this regard could prove that the facts were otherwise – that
is, that there were the requisite numbers in support of an
extraordinary session – the objection was an exercise in futility.
The court also condemned a so-called 'loan agreement', which purported
to bind the parliamentarians to their loyalties and constrain their
freedom to vote. The court reiterated its illegality and
unenforceability, and cited the 1910 UK case of Amalgamated Society of Railway
Servants v Osborne [1910] AC 87, in which Lord Shaw of
Dunfermline said: ...in
regard to the member of Parliament himself, he too is to be free, he is
not to be the paid mandatory of any man, or organisation of men, nor is
he entitled to bind himself to subordinate his opinions on public
questions to others, for wages or at the peril of pecuniary loss, and
any contract of this character would not be recognised by a Court of
law, either for its enforcement or in respect of its breach.
This situation is to be compared with provisions in several Pacific
constitutions, for example, Papua New Guinea and Fiji, where 'crossing
the floor' is prohibited and attracts the ultimate sanction of losing
one's parliamentary seat.
Soon after the Court of Appeal delivered this judgment in favour of the
respondents, a motion was passed in the parliament suspending 16
opposition MPs based on allegations of misconduct, which if proven
would amount to criminal offences. The suspended MPs successfully
sought an interim injunction quashing the motion, pending a full
hearing. The government appealed that decision, but the Court of Appeal
affirmed it: Boedoro v
Carcasses [2015] VUCA 2; CAC 01 of 2015 (8 May 2015). In
essence, the Court of Appeal in Boedoro
v Carcasses endorsed the view expressed by the lower
court, in that: ...the
pronouncement by the movers of the motion amounted to a conclusion of
guilt pronounced on the petitioners without first being tried by a
competent court of law. It is apparent that by doing so the executive
arm of government under the guise of Parliament as the legislative arm
of government were encroaching on the powers of the judiciary, the
third arm of government. The notion of separation of powers is deeply
embedded in our Constitution and must be respected and maintained at
all times. This case should remind us that this notion is in danger of
being eroded, thus undermining the democratic values and sovereignty
that is enshrined first and foremost in Article 1 of our Constitution.
See Carcasses v Boedoro [2014] VUSC 155; Constitutional Case 10 of 2014
(2 December 2014), par. 20.
Democracy
–
rule of law – parliamentary privilege
Whether there is jurisdiction to
enquire into the processes of parliament to determine the
constitutional validity of its actions in suspending members of
parliament.
KEKE
v SCOTTY
| Supreme
Court |
Nauru |
| Madraiwiwi CJ, |
[2014] NRSC 7 |
| Hamilton-White and
Khan JJ |
11 December 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Nauru (CN), arts 2(1) and (2), 14 and 36
Parliamentary Powers & Privileges Act 1976 (PPIA), ss 21 and 36
Standing Orders of Parliament, Rules 45–50
Facts
The plaintiffs (Ps) were members of the Nauru parliament. Three of
these members of parliament (MPs) were suspended by resolution of
parliament on 13 May 2014 for making damaging statements to the
international media deemed damaging to Nauru, and their rights and
privileges, including salaries and allowances, were withheld until they
apologised to parliament. Two other MPs were suspended on 5 June 2014
for unbecoming conduct and language in parliamentary debate held on 20
January and 15 May 2014. The Ps instituted legal proceedings
challenging the validity of their suspensions and the withdrawal of
their privileges, including the right to sit and take part in
parliamentary proceedings and to receive their salaries and allowances.
The Ps alleged breach of their constitutional rights under arts 2(1)
and (2), 14 and 36.
Issue(s)
Whether there is jurisdiction to examine the detail of parliament's
decision-making process and to determine the constitutional validity of
the plaintiffs' suspensions.
Decision
The court held that the actions of parliament were protected by
parliamentary privilege as they related to a matter that was within
parliament's own powers to regulate, that is, the conduct of its
members, and the court accordingly would not proceed further.
Comment
Contrast this cautious approach taken in the Vanuatu case of Carcasses & Ors v
Boedoro & Anor; Constitutional Case No 10 of 2014
(5 PHRLD 38), and the Court of Appeal decision in Boedoro v Carcasses [2015] VUCA
2; CAC 01 of 2015 (8 May 2015), in which the Vanuatu
courts held that the actions of parliament, in seeking to suspend MPs
based on allegations of misconduct that, if proven, amounted to
criminal offences, were subject to adjudication by the courts. The
cases are distinguishable on the basis that the Nauru parliament was
exercising disciplinary powers over its members without trying to
punish them for criminal wrongdoing. The tradition of parliament being
master of its own house is a long and well-established one, although
there are instances where the courts will not hesitate to intervene
where there is a clear breach of the constitution. One slightly
troubling aspect in the case was the enactment by parliament, while Keke v Scotty was
being heard, of the Parliamentary
Salaries and Allowances Act (Amendment) Act (Act No 22 of 2014).
This act conferred discretionary power in the parliament to withhold
the salaries and privileges of members of parliament and appears to
pre-empt the decision of the court.
Democracy
–
public servants must be apolitical, neutral and impartial
A public servant's political
right to openly oppose and to take part in demonstration against the
incumbent government is curtailed for want of public confidence in the
administration of the public service.
LIMEN v CHIEF
SECRETARY
| Public
Service Appeals Board |
Nauru |
| Madraiwiwi CJ (Chair) |
[2015] NRPSAB 1 |
| Ms I Garabwan and Ms
C Garabwan (members) |
23 January 2015 |
Law(s) and/or
international instrument(s) considered
Constitution of Nauru (CN), arts 12 and 13
Public Services Act 1998 (PSA), s. 58
Facts
The appellant (A) was a public servant in the Department of Finance.
During her maternity leave she used a government mobile phone to
encourage public servants and others to join an anti-government
demonstration, on the night before the demonstration, and she also
participated in a public demonstration herself. As a result of these
activities, she was subjected to disciplinary action under the PSA. A
appealed to the Public Service Appeals Board (the Board), which upheld
her appeal on a technicality, with a direction requiring the Chief
Secretary (R) to rehear the matter according to the Board's findings.
Consequently, R found that A's conduct breached the following sections
of the PSA: a) is
guilty of disgraceful or improper conduct, either in his official
capacity or otherwise; or (b) is negligent or careless in the discharge
of his duties; or (c) acts in a disorderly manner or in a manner
unbecoming an officer; or (d) acts in a manner that is prejudicial to
the good order and discipline of the Public Service. A was
demoted and transferred to the Department of Health. A appealed against
R's decision, based on her constitutional rights, namely freedom of
expression and freedom of association, or alternatively, that the
disciplinary action was too severe. The Board considered the matter de novo.
Issue(s)
1. Whether A's conduct was in breach of the relevant sections of the
PSA in the context of the relevant constitutional provisions.
2. Whether the disciplinary action was too severe.
Decision
The Board dismissed the appeal and upheld R's decision.
In coming to its decision, the Board considered the restrictions of the
relevant rights allowed under the CN. Freedom of expression and
association are not absolute rights, but are subject to legislative
provisions that are reasonably
required in the interests of defence, public safety, public order,
public morality or public health. The Board considered
that A's conduct (openly participating in a demonstration against the
government and encouraging others to do so) was a clear breach of the
PSA, because it compromised the professionalism, neutrality and
impartiality of the public service. Limitation of the rights applicable
to public servants is necessary in order to maintain the public's
confidence in the neutrality and impartiality of the public service.
The Board expressed the view that A was fortunate to have retained
employment in the Public Service given the gravity of her conduct.
Comment
This case demonstrates how the notions of public order and public
morality may play out to curtail some basic rights in relation to
public servants. It also shows how competing interests in a democracy
may be considered and adjudicated. Instrumental in the decision was the
A's public advocacy of a position against the government and her
improper use of government property. Even though these activities
occurred in her own time, they violated the basic rule that a public
servant was required to be seen by the public as apolitical in order to
give the public confidence in the administration of the public service.
The Board is set up under the CN to hear appeals against disciplinary
action under the PSA.
See also the similar Australian case of Banerji v Bowles [2013] FCCA 1052
(9 August 2013).
See also media commentary of the Australian Human Rights Commissioner: http://www.theage.com.au/comment/free-speech-the-public-service-and-civilising-behaviour¬20140408-zqs2t.html
DISCRIMINATION
Discrimination
on the basis of nationality or place of origin
Justification for discrimination
on the basis of citizenship and important government interest.
HANPA
INDUSTRIAL DEVELOPMENT
CORPORATION v REPUBLIC OF PALAU
| Supreme
Court (Appellate Div) |
Palau |
| Salil, Materne and
Pate AJJ |
[2013] PWSC 37 |
|
29 November 2013 |
Law(s) and/or
international instrument(s) considered
Republic of Palau Constitution (RPC)
Republic of Palau Procurement Act
Facts
The dispute arose out of a government tender for a road paving project,
which was funded by the Taiwanese government. The tender document
included a condition that was in accordance with the grant conditions,
requiring the participating company to be a Palau- or Taiwan-owned
entity. The appellant company (A) was a Korean company operating in
Palau. Following its disqualification from the tender, A took action
challenging the legality of the tender document which it argued
violated the equal protection clause of the RPC. The court at first
instance dismissed the application. A appealed.
Issue(s)
Whether the disparate treatment of tenderers required by the
eligibility criteria is constitutionally valid. That is, whether the
RPC allows the government to restrict bidding on the basis of the
bidding company's nationality.
Decision
The Supreme Court affirmed the decision in the lower court and
dismissed the appeal.
The relevant provisions in the RPC provide that: '[t]he government
shall take no action to discriminate against any person on the basis of
sex, race, place of origin, language, religion or belief, social status
or clan affiliation except for the preferential treatment of
citizens[.]' From the outset, the appellate court dismissed Palau's
argument that the appellant had failed to demonstrate its
constitutionally protected right to bid on Taiwanese government
grant-funded projects. The court then analysed the different
considerations applicable to discrimination based on nationality (or
'place of origin').
In relation to discrimination in favour of Palauan companies, the court
expressed the view that the RPC explicitly allows 'for the preferential
treatment of [Palauan] citizens.' (See RPC, art. IV, § 5, cl. 1)
Accordingly, although the eligibility criteria discriminate against the
appellant in favour of Palauan nationals, the discrimination is
sanctioned by the constitution.
In relation to preferential treatment in favour of Taiwanese nationals,
the court opined that government actions of this kind are ordinarily
subject to strict scrutiny, citing its earlier decision of Carreon: But there are
exceptions to that rule. In Carreon, [the court] concluded that intermediate
scrutiny, rather than strict scrutiny, should apply to 'review of laws
in the area of immigration and foreign affairs that distinguish among
individuals based on citizenship.' (At 75) Recognizing that the Olbiil Era
Kelulau and the President must have the power to 'conduct foreign
affairs as they see fit,' the court held that government
action that implicates foreign affairs will survive an equal protection
challenge if it is
substantially related to an important government interest.
The important government interest here is the government's ability to
negotiate with foreign nations for aid for the benefit of the Palauan
people.
Comment
The equality provisions in the RPC (and other constitutions) need to be
read carefully as they may provide exceptions in favour of citizens of
that country. Context is always important, because it often shapes the
way in which the subject is considered. Apart from preferential
treatment to be accorded its citizens, an additional rationale for
making exceptions made to the equality provisions may lie in the
vulnerability that small Pacific Island countries like Palau perceive
in the face of globalisation. In addition, there may be other grounds,
such as immigration and foreign affairs, which provide the rationale
for distinctions among individuals and corporate entities based on
citizenship or country of origin. In the present case, the measure in
favour of Taiwanese companies was justified on the basis of the
government interest, as reflected in its ability to negotiate with
foreign nations for the benefit of the Palauan people.
FAIR
TRIAL
Fair trial – discharge
or
acquittal
An inconclusive psychiatric
report in relation to the accused and the withdrawal of the police
charge resulted in an acquittal.
CHANDRA
v STATE
| High
Court (Appellate Jurisdiction) |
Fiji |
| Madigan J |
[2014] FJHC 143 |
|
13 March 2014 |
Law(s) and/or
international instrument(s) considered
Criminal Procedure Decree 2009 (CPD)
Crimes Decree 2009 (CD)
Facts
The accused (A) was charged with one count of an act contrary to a
provision of the Public
Order Act, alleging that he 'disturbed the public peace by
inciting hatred of any class of person'. A number of mentions ensued,
in which A's mental state was raised. A subsequent psychiatric report
stated that: (i) 'the accused has the capacity to participate fully
with court of law'; and (ii) 'I cannot report with certainty the state
of his mind at the time of the alleged offence due to limitation.' The
police prosecutor then decided to withdraw the complaint under s. 169
of the Criminal
Procedure Decree. On the same day as this withdrawal, the
magistrate proceeded to discharge A, and made an order that A seek
treatment at St Giles hospital as an outpatient. A appealed, seeking an
order of acquittal based on 'mental impairment' as provided in s. 28 of
the Crimes Decree.
Issue(s)
Whether the magistrate erred in making the order she did and, if so,
what order should have been made?
Decision
The High Court upheld the appeal and ruled that the magistrate failed
to make a proper entry on the record, and ordered that A be acquitted.
Comment
Although A alleged that his rights under the Universal Declaration of Human
Rights had been breached, in particular his right to a
fair trial without particular delay, the court made no mention of human
rights. The matter was dealt with on the basis of the inconclusive
nature of the psychiatric report and the failure of the court at first
instance to make a proper entry on the record. The oversight of the
Magistrates Court in not making a proper entry on the record allowed
the High Court to conclude that the magistrate had not properly
exercised her unfettered discretion under s. 169 of the CPD, and it
accordingly acquitted A under s. 28 of the CD. It appears that the High
Court did not see the need to consider the constitutional arguments
because the matter was more readily dealt with under the applicable
legislation. The lower court's oversight provided the perfect
opportunity for an acquittal, and the constitutional issue was not
considered.
HUMAN TRAFFICKING
Human
trafficking – sentencing
Considerations in cross-border
human trafficking sentencing matter.
STATE
v LAOJINDAMANEE, LUM BING, ZHANG YONG & JASON ZHONG
Law(s) and/or
international instrument(s) considered
Crimes Decree 2009
Facts
Three women from Thailand were recruited and brought to Fiji to perform
massages professionally. The first two accused men (A1 and A2)
accompanied the three women to Fiji, where they were met by the third
accused (A3), who facilitated their transport to Suva, where they
finally met the fourth accused (A4), who was apparently in control of
the operation. The women were not aware that they were expected to
provide sexual services, rather than massages, during their stay in
Fiji. They complained to A4, who told them that: 'unless they paid for their
return tickets to Bangkok they had to “service” any customers brought
to them'. The women were later able to alert a young
lawyer of their situation and the authorities were informed.
Issue(s)
What should be the appropriate sentence for trafficking, as there had
only been one other case that had been decided previously?
Decision
A1: 10 years for two counts of trafficking-related offences (minimum
term of 9 years).
A2: 10 years for two counts of trafficking related offences (minimum
term of 9 years).
A3: 10 years for two counts of trafficking-related offences (minimum
term of 7 years).
A4: 11 years and 9 months for two counts of sexual servitude-related
offences (minimum term of 10 years).
Comment
The case dealt with trafficking as well as associated evils such as
debt bondage, sexual servitude and domestic trafficking. Trafficking in
persons is a relatively new offence in Fiji, and reflects the global
nature of human trafficking to which the region is no longer immune.
This global characteristic requires a multilateral response, as a
result of which the international community has been increasing its
efforts at coordination and cooperation. The women were lured to Fiji
with false promises of professional massage work. The court, in
determining appropriate sentences, considered the different roles the
four accused had played in the women's ordeal. AI and A2 had brought
the women from Thailand and remained with them in Fiji as 'guardians'.
A3 facilitated their transportation to Suva, provided accommodation and
arranged sexual favours for his clients. A4 was convicted of sexual
servitude for threatening and coercing the women for sexual favours.
The court cited R v
Shaban Maka [2005] EWCA Crim 3365 (16 November 2005),
which involved a 15-year-old girl who was trafficked from Lithuania to
the United Kingdom and then six times within the UK, all by the same
offender. The offender received a term of 18 years' imprisonment,
including two 9-year sentences to be served consecutively. The facts
and gravity were different from the present case, but the nature of the
offences underscores their cross-border nature.
A1, A2, A3 and A4 have been given special leave to appeal: Laojindamanee v State [2015]
FJCA 41; AAU47.2013 (13 March 2015); Bing v State [2014] FJCA 218,
AA.U50.2013 (12 December 2014); Zhong v State [2014] FJCA 108,
AA.U44.2013 (15 July 2014).
MANDATORY SENTENCING
Mandatory
sentence for murder – separation of powers – right to a fair hearing
A law that imposed a mandatory
sentence of life imprisonment on those found guilty of murder did not
infringe the separation of powers doctrine or the right to a fair
hearing.
BADE
v REGINA
| Court
of
Appeal |
Solomon
Islands |
| Goldsbrough P,
Williams and Ward JJA |
[2014] SBCA 13 |
|
9 May 2014 |
Law(s) and/or
international instrument(s) considered
Solomon Islands Constitution (CSI), s. 10
Penal Code, s. 100
Facts
The appellant (A) was convicted of murder and was sentenced to life
imprisonment by the High Court. Life sentence is mandatory for murder
under the Penal Code. The court was invited to revisit Manioru v R, [2012] SBCA 1
(see 4 PHRLD 40), in which it held that the mandatory life sentence for
murder did not breach the principle of separation of powers or a
convicted person's right to a fair hearing.
Issue(s)
Whether mandatory life sentencing for murder provided by the Penal Code
is inconsistent with the exercise of a court's discretionary power in
sentencing and thus denied a person's right to a fair hearing.
Decision
Appeal dismissed.
The court affirmed Manioru's
case, and cited with approval dicta from a Canadian case, R v McDonnell [1997] 1 S.C.R. 948
(24 April 1997): (I)t
is not for judges to create criminal offences, but rather for the
legislature to enact such offences.
And further: The
enactment of sentences by the legislature, whether as maxima or minima,
involves the resolution of broad issues of policy by the exercise of
legislative power. A sentence enacted by the legislature reflects
policy -driven assessments of the desirability of the ends pursued by
the legislation, and of the means by which those ends might be
achieved. It is distinctly the province of the legislature to gauge the
seriousness of what is seen as an undesirable activity affecting the
peace, order and good government of the Commonwealth and the soundness
of a view that condign punishment is called for to suppress that
activity and to determine whether a level of punishment should be
enacted as a ceiling or a floor.
In laying down the norms
of conduct which give effect to those assessments, the legislature may
decide that an offence is so serious that consideration of the
particular circumstances of the offence and the personal circumstances
of the offender should not mitigate the minimum punishment thought to
be appropriate to achieve the legislature's objectives, whatever they
may be.
The court also made the observation that, [u]ndoubtedly, one of the reasons
this court has been repeatedly asked to consider the constitutional
validity of a mandatory life sentence is the fact that there is no
regular parole regime in place in the Solomon Islands. Though there is
legislative provision for a Parole Board, it has only been enlivened
intermittently.
Comment
The argument that a mandatory sentence for those found guilty of murder
is unlawful is based on the proposition that a mandatory sentence is
contrary to the separation of powers doctrine. The contention is that a
mandatory sentence removes judicial discretion. However, if the role of
parliament is to enact legislation, then it is entitled to set
mandatory sanctions for specific offences. The trigger for these
repeated challenges, as noted by the court, is the absence of a regular
parole regime, although a Prerogative of Mercy Commission is
established under the CSI, with powers to review, inter alia, life
sentences. The prospect of those serving life sentences for any offence
without having any opportunity for review does raise human rights
questions about potential endless incarceration.
On 9 July 2013 the Grand Chamber of the European Court of Human Rights
(ECHR) handed down a decision2
(16:1 majority), ruling that a mandatory
life sentencing without the prospect of having the life sentence
reviewed to consider the prisoner's eligibility for parole would be
inconsistent with article 3 of the European
Convention on Human Rights 3.
The ECHR came to this
decision after an extensive review of individual European countries'
legislation and case law, as well as international case law,
conventions and instruments. Interestingly, article 3 of the European Convention on Human
Rights, which provides that, 'No one shall be subjected to
torture or to inhuman or degrading treatment or punishment', is
substantively identical to the relevant section of the CSI (s. 7: 'No
person shall be subjected to torture or to inhuman or degrading
punishment or other treatment').
MOVEMENT
Freedom
of
movement – citizenship by grant based on interest of justice
A distant descendent of Marshall
Islands failed the 'interests of justice' test in seeking citizenship.
IN RE
PETITION FOR CITIZENSHIP BY
TAMUERA
| High
Court |
Republic
of the
Marshall Islands |
| Ingram CJ |
[2013] MHHC 4 |
|
25 April 2013 |
Law(s) and/or
international instrument(s) considered
Constitution of the Republic of Marshall Islands (CRMI), art. 11, s.
21(c)
Facts
The applicant (A) was a Kiribati national of Marshallese descent, who
entered the Republic of the Marshall Islands (RMI) in April 2009,
intending to apply for RMI citizenship and to reside there with her
husband and two children. A was granted a one-year permit to stay and
work for a specific venture. In July 2010 A applied for citizenship
under the Marshallese descent provisions provided by article 21, s.
2(1)(c ) of the CRMI.
Issue(s)
Whether the application should be granted in the interests of justice.
Decision
The High Court (HC) declined to grant citizenship to A.
The relevant constitutional provisions allow application by
registration if an applicant can satisfy one of the three conditions,
and that there are no adverse national interest concerns. The three
alternative conditions are that the applicant: 1) holds Marshallese
land rights; 2) has lived in RMI for three years and is a parent of a
child who is an RMI national; or 3) is of Marshallese descent, and in
the interests of justice the application should be granted.
The HC accepted A's distant Marshallese descent. In dealing with the
issue of 'interests of justice' the court considered the following
issues:
• The applicant's criminal and security records.
- The applicant's education and work history.
- The applicant's financial dependency or independency.
- The applicant's ties with the RMI.
- Any exceptional circumstances, such as fleeing violence or
asylum claims.
Other than the applicant's criminal and security clearance, the other
considerations did not appear to be in her favour. The court considered
that A was an opportunistic job seeker. Accordingly, the interests of
justice did not favour the granting of citizenship, nor would refusal
result in injustice. However, the court observed that the applicant
could seek RMI citizenship by naturalisation.
Comment
'The interests of justice' qualification requires some positive factor
that would incline a court to grant the application. It is a phrase
which allows wide latitude, while simultaneously imposing a requirement
that restricts the court to considering the merits in terms of what is
fair to both the applicant and generally. In the present case, A had
the requisite Marshallese descent but, apart from employment
considerations, which were not relevant in determining this question,
there were no compelling factors for the court to take into account. A
was not fleeing violence or persecution. The status of her husband and
two children were not relevant to the application. A had to demonstrate
that it would be unjust to deny her application based on the features
of her case. She was unable to demonstrate this, and accordingly she
was unable to establish that it was in the interests of justice that
she be granted citizenship. Unless the criteria for citizenship are
clearly fulfilled, the courts will tend to take a cautious approach.
Freedom
of
movement – claim of a prospective violation of a constitutional right
Refusal to grant residence permit
to the claimant's husband is unlawful and not a reasonably justifiable
limitation to human rights.
HATILIA v
ATTORNEY GENERAL
Law(s) and/or
international instrument(s) considered
Solomon Islands Constitution (CSI), s. 14
Immigration Act
Facts
The applicant (A) claimed that the Director of Immigration's (the
Director) refusal to grant her husband (R) a residency permit was a
breach to her right to freedom of movement. A also sought a writ of mandamus to compel
the Director to issue a residency visa for R. A asserted that R's
departure from Solomon Islands would either force her to leave with him
or to remain behind at the risk of ending her marriage, thereby
adversely affecting her freedom of movement. R had first gone to
Solomon Islands in 2007 to work as a cook. He subsequently fell out
with his employer/sponsor, and his work permit was cancelled in 2010.
There followed a series of exchanges between the parties before A filed
this application.
Issue(s)
1. How broadly should the right to freedom of movement be interpreted?
2. Does the prerogative writ of mandamus
lie to compel a public official to issue a residency visa to an alien
subject?
Decision
The High Court held that section 14 of the CSI was to be given a broad
and purposive interpretation, in accordance with well-established
authorities including Fisher's
case [1979] UKPC 21 (14 May 1979). Therefore, the removal
of R from Solomon Islands would affect A's full enjoyment of her right
to freedom of movement under that provision, by causing her to make
choices that would render that freedom less meaningful. The departure
of R would compel A either to accompany him to save her marriage or to
stay in the country and possibly end it. The Director's refusal was
therefore unconstitutional, and a writ of mandamus would
issue to compel the issue of a residency permit for R.
Comment
The decision may be considered at first glance as a victory for human
rights. But it raises very serious concerns about the expansive
interpretation given to freedom of movement and about interfering with
a statutory discretion. A's substantive right to leave or stay in
Solomon Islands was unaffected by what happened to R. The choice of
whether to leave with R to preserve her marriage or remain in Solomon
Islands (and perhaps end the marriage) was A's to make, and this
decision was a step removed from her right to leave and enter Solomon
Islands as she pleased. However, the court read into the right a
requirement that her marriage to R – an alien with no rights of
residency in Solomon Islands – and her decision about whether to
accompany R or remain, were part of the exercise of A's right to
freedom of movement. In doing so, the court was conflating the
individual freedom of movement enjoyed by A with her marriage to R,
which, as a consequence, gave R rights to which he was not otherwise
entitled. The other troubling aspect is the ease with which the court
issued the writ of mandamus
to compel the Director to give R a residency permit. R, as an alien,
had no independent
entitlement to the permit. It is a prerogative writ that issues to
compel a public official to do his/her duty, however there was no
obligation, in the circumstances, for the Director to grant A's husband
a status to which he was not, in law, entitled.
PRIVACY
Criminal
records –
privacy as a constitutional right
Whether an individual has the
right to have records of his criminal conviction expunged as a basic
right to privacy.
IN
RE SUKA
| Supreme
Court |
Chuuk
State, FSM |
| Noket CJ |
[2013] Chk. S. Ct. Tr
2013, CSSC 005-2013 |
|
12 February 2013 |
Law(s) and/or
international instrument(s) considered
Chuuk State Criminal Code, State law Nos 6-66, 407
Facts
The petitioner (P) was charged with and convicted of assault with a
dangerous weapon, in violation of the Criminal Code. In March 2009 P
was sentenced to three years' imprisonment, subject to delineated
conditions. In January 2013, after serving his sentence, P petitioned
the court to have his criminal records expunged, submitting that he had
been punished enough, and had sufficiently rehabilitated. P alleged
that the criminal records served as a significant hindrance to his
ability to secure employment and deprived him of his right to hold
public office. P consequently argued that his basic rights and his
right to privacy were violated.
Issue(s)
Whether there is judicial power to authorise the expunction of a
criminal record where the legality of the underlying criminal
conviction is not being challenged.
Decision
In the absence of explicit authorisation from the Chuuk legislature,
the judiciary has no power to expunge a petitioner's criminal record.
The court has generally regarded the expunction of criminal records a
matter of legislative prerogative, and accordingly that this may only
be granted or withdrawn by the legislature. The court also rejected the
contention that it has inherent jurisdiction over this kind of
petition. It accepted that a criminal record disadvantaged P by
creating social stigma and exposing him to potential discrimination by
prospective employers. However, it opined that without a statutory
defect in the underlying criminal proceeding or illegality in the
arrest and the ensuing proceedings, the mere impediment to P's ability
to run for an office was insufficient to reach the threshold for a
violation of a basic legal right. The petition was denied.
Comment
An individual's right to privacy in relation to a criminal conviction
must be balanced with the public interest in maintaining accurate
criminal histories and the public's right to information about a person
who has contravened the law. It is particularly relevant in the case of
persons with convictions for violent or sexual offences, but the broad
principle cannot be confined to these cases, for reasons of fairness
and broad public policy considerations. The right to privacy is not
absolute. Criminal history is a relevant consideration in deciding
whether a person is fit to hold public office or to be employed or
serve as an office bearer in any organisation. In any case, whether or
not such records should be expunged is not a matter for the courts but
rather a policy matter for the executive and parliament to consider.
PROCEDURE
Procedure –
prosecutor's failure to file information within statutory time limit –
allegation of infringement of constitutional right
Court's decision should be
challenged by way of an appeal, and the institution of separate
constitutional challenge is an abuse of process.
TAMBLYN
v DIRECTOR OF PUBLIC
PROSECUTION
Law(s) and/or
international instrument(s) considered
Constitution of Fiji (CF), s. 26
Criminal Procedure Decree 2009 (CPD), ss 198 and 199
Facts
The applicant (A), an Australian national, was accused of drug related
charges, and was refused bail. The matter was transferred from the
Magistrates Court to the High Court. Under the relevant sections of the
CPD, the prosecution must file the information in the High Court and
serve A within 21 days of the order of the transfer, unless leave is
granted by the High Court to extend the time for service. The
prosecution failed to file the information within 21 days, and on the
first court day, at which A was not represented, the prosecution
successfully sought leave to extend the time to file. The prosecution
again failed to file the information on the extended date, but again
sought leave to further extend the time. The High Court considered both
parties' submissions on the issue and again granted leave. A's counsel
then filed an originating motion seeking constitutional redress,
relying on s. 26 of the CF. The prosecution sought to strike out the
motion.
Issue(s)
Whether the proceedings fell within one of the grounds for striking
out, namely that: (i) it discloses no reasonable cause of action; (ii)
the proceeding is scandalous, frivolous and vexatious; (iii) the
proceeding may prejudice, embarrass or delay the fair trial of the
proceeding; and (iv) it is an abuse of the court process.
Decision
The court ruled that the proceedings were an abuse of process as well
as being scandalous, frivolous and vexatious, and dismissed the
application.
Comment
The attempt by A to seek constitutional redress by way of originating
motion to challenge the failure of the prosecution to file the
information within 21 days of the transfer order to the High Court was
ill-advised. There was no basis for the remedy, and it reflected
adversely on A's counsel. By filing this motion, rather than appealing
the decision of the court at first instance, A jeopardised his own
case. It was a clear abuse of process, whereas the basis for appealing
the extension of time for transfer was clearly made out on the facts.
The court tacitly acknowledged this point when it declined to consider
whether the court at first instance had properly exercised its
discretion, and proceeded to deal with the application for striking
out. It observed that the former issue was for an appellate court to
consider upon an appealed of the decision by A.
Procedure –
subsidiary instrument of international treaty – domestic application
Whether annexures to the treaty
become domestic law in the same way as the main body of the treaty does.
PB SEA
TOW LTD v ATTORNEY GENERAL
| Court
of
Appeal |
Samoa |
| Fisher, Hammond and
Blanchard JJA |
[2014] WSCA 6 |
|
28 April 2014 |
Law(s) and/or
international instrument(s) considered
Convention on the Safety of Life at Sea (SOLAS Convention) Shipping Act
1998
Facts
The dispute arose in relation to the ship PB Matua (the
ship), which was built to provide transport between Samoa and Tokelau.
The ship was built to comply with a number of international conventions
with respect to load line, pollution prevention and the requirement of
classification society. It was registered in Cook Islands, and the Cook
Islands government issued the ship with a 'Vessel Safety Certificate'
(the certificate) under the Ship
Registration Act 2007. The certificate was valid until 31
May 2017.
An inspection was carried out at Apia, where the authority detained the
ship from sailing from Apia except as a cargo vessel with no more than
12 passengers, as permitted under the SOLAS Convention, despite the
fact that the ship had been built to a standard capable of carrying a
maximum of 62 passengers (or a maximum of 15 when carrying dangerous
cargo). The ship owner challenged the detention, seeking compensation
under international law (the SOLAS
Convention) for unlawful interference with the ship's
rights.
Issue(s)
Insofar as the SOLAS
Convention gives rise to obligations between contracting
states and does not form part of Samoa's domestic law, unless it is
incorporated into domestic law by statute, was the detention under the
SOLAS Convention lawful when it sought to interfere with private
individuals/entities in Samoa? Alternatively, has Samoan statute law
incorporated the SOLAS
Convention in relation to facts that are material to the
present detention?
Decision
The court upheld the decision of the court at first instance that the SOLAS Convention
was part of Samoa's domestic law by virtue of the provisions of the Shipping Act 1998.
Comment
One aspect of the case that is relevant to an understanding of human
rights treaties and the domestication of them is worth highlighting.
The court endorsed a view expressed by the lower court (presided over
by Sapolu CJ), which alluded to the long title and substantive sections
of the Shipping Act 1998,
including a section which stipulated that the SOLAS Convention
and other relevant conventions, had the 'force of law'. The Shipping
Act was clearly intended to give effect to the SOLAS Convention. The
court also took note of secondary material (A New Zealand Guide to
International Law and its Sources, report 34, 1996 at 45),
quoting the author that the phrase, 'force of law', when utilised, was
taken as giving 'direct effect' to the text of a treaty. It was said to
be a
standard legislative 'signal' and, consequently, the SOLAS Convention
had been statutorily incorporated into Samoa's domestic law.
The court rejected the argument that the SOLAS Convention
was not readily operable in Samoa because of a lack of known
regulations in domestic law. It took the view that not only was the
scheme of SOLAS incorporated, but also its annex, including chapters
that contained regulations, had been incorporated into the Shipping Act 1998.
The domestication of international conventions does not necessarily
require elaborate enabling legislation, but such conventions may be
incorporated through legislative reference, especially where detailed
regulations in an international convention may supplement any lack in
the substantive legislative provisions, that renders the specific
domestic legislation complete.
PROPERTY
Compulsory
acquisition of land by the state
Whether compulsory acquisition of
land under an act without agreement in relation to compensation is
inconsistent with the constitutional right of freedom from deprivation
of property which justifies an injunction restraining the state to
build a road.
KOIMA
& JOMAR TRADING LTD
v THE INDEPENDENT STATE OF PNG
| National
Court of Justice |
Papua
New Guinea |
| Makail J |
[2014] PGNC 48 |
|
14 April 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea (CPNG), ss 41, 53 and 58
Land Act 1996
Facts
The plaintiffs (Ps) were the registered proprietor of a piece of land
and the associated business entity. The proprietor and his family had
resided for some time on the subject land which the State of Papua New
Guinea had sought to acquire under the Land Act for the
construction of a road. The Ps and the state carried out their own
valuations of the land. The private valuer engaged by the Ps valued the
land at K6.4 million, while the state Valuer General's figure was K4.65
million. Consequently, the state's offer of compensation was not
accepted by the Ps. Subsequent negotiations between the parties also
failed, and the state proceeded to compulsorily acquire the land under
the Land Act.
The Ps invoked the court's inherent jurisdiction under the CPNG and
obtained an ex parte
interim injunction against the state and sought to restrain the state
from evicting the Ps until the compensation issue was resolved. The Ps
based their argument on the constitutional right to freedom from unjust
deprivation of property. The state sought to set aside the interim
injunction, while the Ps applied to have it perfected.
Issue(s)
1. Whether there is a serious issue to be tried.
2. Whether the balance of convenience favours the continuation of an
injunction.
3. Whether damages would be an adequate remedy.
Decision
The court set aside the interim injunction. It held that this was
neither a case of unlawful deprivation of property nor a case of the
state and its officials being harsh and oppressive in dealing with the
plaintiffs under s. 41 of the CPNG, requiring that the plaintiffs'
interests in the land be protected by way of an injunction. The balance
of convenience favoured setting aside the injunction to allow the state
to commence work on the proposed road. The only unresolved issue was
that of proper compensation, in respect of which the Ps may institute
proceedings in the event of failing to reach agreement with the state.
Comment
In considering where the balance of convenience lay, the court sought
to balance the competing interests between the Ps' personal and
commercial interests in the subject land and the state's pressing need
to construct a road for the public good. The court held that it was
more important that the road could be built to ease traffic congestion,
facilitate movement, and accommodate the city hosting the Pacific
Games. There was no illegality or harsh conduct on the part of the
state in its land acquisition process under the Land Act. The Act
provides that: '1) All land in the country other than customary land is
the property of the State, subject to any estates, rights, titles or
interests in force under any law. (2) All estate, right, title and
interest other than customary rights in land at any time held by a
person are held under the State.' Under the Land Act the state
may acquire land by agreement or by compulsory acquisition and the
procedure for compulsory acquisition prescribed by the Act. The rights
of the Ps were limited to taking the matter to court for assessment of
damages (compensation), and an injunction to restrain the state from
commencing work on the road would not be necessary in any event. Also,
s. 53 of the CPNG provides for compulsory acquisition of property under
an Act of the Parliament, provided that the acquisition is for a public
purpose or a reason justifiable in a democratic society, and that there is a
necessity to do so, notwithstanding any resultant hardship to any
person affected (see ss 53(1)(a) and (b)).
Constitutionality
of the Superannuation Act
Whether compulsory contribution
to a superannuation fund is a deprivation of property.
IN
THE MATTER OF COOK ISLANDS
NATIONAL SUPERANNUATION FUND ACT 2000
AND
THE COOK ISLANDS CONSTITUTION
| Court
of
Appeal |
Cook
Islands |
| Williams P, Barker
and Paterson JJA |
[2014] CKCA 4 |
|
17 November 2014 |
Law(s) and/or
international instrument(s) considered
The Cook Islands Constitution (CCI), arts 40(1), 64(1) (c) and (2)
Cook Island National Superannuation Fund Act 2000 (CINSFA)
Facts
The case arose from a criminal enforcement against individual employers
(Rs) who failed to pay employer contributions under the CINSFA. The Rs
argued in their defence that the compulsory superannuation fund
established by the CINSFA was in violation of the CCI and was therefore
invalid. The government sought a declaration from the High Court that
the CINSFA was constitutional. On 31 January 2014 the High Court
declared the Act invalid to the extent necessary by reason of being
contrary to the provisions of article 64 (1)(c ) of the CCI. The
government appealed to the Court of Appeal.
Issue(s)
1. Does the CINSFA constitute a compulsory taking or acquisition of
property contrary to article 40(1) of the CCI and, if so, does the
requirement to provide compulsory contributions constitute a tax under
Article 40 (2)(a), so as to immunise it against challenge under Article
40(1)?
2. Does the CINSFA infringe the right of the individual to 'security of
the person' contrary to article 64 (1)(a) of the CINSFA and, if so, is
the infringement saved by article 64(2)?
3. Does the CINSFA infringe the right of the individual not to be
deprived of property contrary to article 64(1)(c) of the CINSFA and, if
so, is the infringement saved by article 64(2)?
Decision
The appeal was upheld and the lower court's decision was overturned.
The High Court considered that article 40(1) of the CCI had no
application in this case because the superannuation scheme into which
compulsory contributions were required to be paid was not a taking
possession of or an acquiring of property. Additionally, a compulsory
payment to the fund was not a compulsory acquisition, as there was no
corresponding recipient of a proprietary interest. Instead, the
contributions under the scheme were pursuant to the CINSFA, which is an
act of general application enacted for the public's benefit.
In relation to the argument based on the right of the individual to
'security of the person', the Court of Appeal held that article 64
(1)(a) of the CCI means physical security and does not encompass
economic security.
In relation to the third issue, deprivation of property prohibited
under article 64 (1)(c) of the CCI, the Court of Appeal held that the
Act infringed this article, although the court was less emphatic than
the lower court about the lack of government guarantee of the fund as a
basis for its decision. However, on the basis of the proportionality
test, the infringement of article 64 (1)(c) was saved by article 64(2).
Comment
The case turned on whether the CINSFA infringed the rights of the
individual contrary to article 64 (1) (c) of the CCI. While the Court
of Appeal held that the CINSFA infringed the rights of the individual
not to be deprived of property, this infringement was saved by article
64 (2). Applying the three limbs of the proportionality test, it was
held that the objective of CINSFA, to provide a retirement fund for
Cook Islanders, was sufficiently important to justify the limitation of
the fundamental right. Second, CINSFA was rationally connected to this
objective, since it provided the mechanism by which this scheme could
be implemented. Lastly, as to whether a fair balance was struck between
the rights of the individual and the interests of the country, the
significant benefits to the individual and the public far outweighed
any diminution of individual rights. The three-limbed test applied by
the Court of Appeal was a means of determining whether the legislation
being challenged was constitutionally valid. Had it been held to have
not met one of the criteria, the CINSFA would have been declared ultra vires.
SLAVERY
Slavery –
first slavery decision in Fiji – trafficking – sexual servitude
While not detracting from the
crime of rape of a child, which is an abominable crime, trafficking a
child for sexual services carries additional grave elements, in that it
is not one single act of violence, but rather it is the making
available of a child for numerous sexual acts in return for monetary
gain.
STATE
v RAIKADROKA
Law(s) and/or
international instrument(s) considered
Convention against Transnational Organised Crime and two of its three
protocols: the protocol to
prevent, suppress and punish trafficking in persons, especially women
and children; and the protocol
against the smuggling of migrants by Land, Sea and Air.
Convention to Suppress the Slave Trade and Slavery (1926)
Constitution of Fiji
Crimes Decree 2009
Facts
In June 2012 the first accused (A1) met three sisters (aged 18, 17 and
15 years) who were working as sex workers under the control of another
person. A1 took them for dinner, followed by a drinking party in his
room at the Elixir Motel. At the party they discussed the sex business,
fees and the splitting of fees for commission, and A1 asked the women
if they were prepared to work for him. The two younger women were kept
at the Elixir Motel for two to three months, and during that time they
provided sexual services for clients that were arranged by A1, who
received commission from the fees that was paid to the women. Later, A1
asked for all their money to be paid to him, but in return A1 would pay
for the women's accommodation, beatification, clothes and shoes. A1
moved the women to different locations when there were few clients, and
arranged for the women to be taken to hotels and motels to provide
sexual services. The second accused (A2) also arranged clients for the
women, and took them by taxi to various locations where they provided
sexual services. These arrangements continued until December 2012, when
the youngest woman returned home and told her grandmother about her sex
work, who reported this to the police.
Issue(s)
What should be the appropriate sentence, given this was the first case
of slavery in Fiji?
Decision
A1: 16 years for two counts of slavery and 14 years for the counts of
domestic trafficking of children, to be served concurrently. Eligible
for parole after 14 years.
A2: 12 years for the various offences of domestic trafficking of
children. Eligible for parole after 10 years.
Comment
This case attracted extensive publicity and media attention, as the
first case of slavery in Fiji. A closer analysis of the facts and the
nature of the relationship between A1 and his victims raises pertinent
questions, because there is little discussion in the decision about the
core elements of slavery, and, in particular, about whether it was made
out on the facts. A key issue is how A1 exercised powers over the
victims that amounted to an exercise of rights of ownership, a
necessary element of slavery. While A1 exercised a degree of coercion
over the women, their movements were not restricted, and they were not
confined or detained at any time. While they may not have been happy or
satisfied with the arrangements at times, there appears to have been a
degree of acquiescence, if not consent. The defence's robust arguments
regarding the victims' freedom of choice were dismissed by the court,
based on the psychological notion of 'situational coercion' founded, in
this case, on the victims' broken family backgrounds. Whether
'situational coercion' falls within the elements of the offence of
slavery is a matter of contention. In the Australian case, Queen v Tang HCA 39
(28 August 2008) (3 PHRLD 53), Gleeson CJ engages in a detailed
discussion of the elements of the offence of slavery. Those elements,
as they relate to the rights of ownership that A1 would need to be
found to be exercising, as an element of slavery, do not appear to be
present in this case. The offence of slavery in the Crimes Decree 2009
is expressed in similar terms to the relevant provisions of the
Australian Criminal Code.
Another aspect of this case is the court's reliance on the tariffs for
rape offences as comparators for sentencing. Both slavery and rape
humiliate, demean and degrade the victims of those crimes. They are
comparable in that regard, and in the misery, trauma and suffering
inflicted upon victims. However, it is problematic to equate the two
offences because they involve substantially different elements and
impacts.
See also:
State v Raikadroka
[2014] FJHC 391; HAC80.2013 (2 June 2014) – ruling no case
to answer.
State v Raikadroka
[2014] FJHC 396; HAC80.2013 (4 June 2014) – summing up.
State v Raikadroka
[2014] FJHC 402; HAC80.2013 (6 June 2014) – judgment.
VIOLENCE AGAINST
WOMEN
Rape –
inconsistent sentencing
Rape bands established to ensure
consistency in sentencing tariffs.
KEY
v POLICE
| Court
of
Appeal |
Samoa |
| Fisher, Hammond and
Hansen JJA |
[2013] WSCA 3 |
|
28 June 2013 |
Law(s) and/or
international instrument(s) considered
Prisons Parole Board Act 1977
Facts
The appellant (A) was convicted on one charge of rape, attempted rape
and resisting and assaulting a constable. The trial court imposed a
sentence of 14 years for the charge of rape, five years for the charge
of attempted rape, and six months for the charges of resisting and
assaulting a police officer. These latter sentences were to be served
concurrently with the sentence for the rape charge. A appealed his
convictions (on the sole ground of incompetence of counsel), and he
appealed the sentence in relation to the charge of rape only.
\
Issue(s)
1. Whether the convictions should be revisited.
2. Whether a guideline sentencing decision for the offence of rape in
Samoa should be made.
Decision
The appeal against the convictions was dismissed on the basis of A's
lack of credibility.
Both parties agreed that guidelines for sentencing decisions in rape
cases should be made and the court accepted that guidelines should be
made. Consequently, the appeal against the sentence was allowed; the
sentence of 14 years was quashed, and a sentence of 11 years was
substituted. The court was satisfied that nine years was an appropriate
starting point, and added two years for the aggravating features of the
offence.
Comment
The significance of this case is that tariffs have been set down to
ensure consistency in sentencing of rape cases. The court adopted the
bands formulated in the New Zealand case of R v AM [2010] NZCA 114
(13 March 2010), and proposed the following tariffs:
Band one: 8 to 10 years to apply where the perpetrator's actions are at
the lower end of the scale and there are either no aggravating features
or they are minimal.
Band two: 9 to 15 years where the degree of violence and premeditation
by the perpetrator are moderate in nature.
Band three: 14 to 20 years where the aggravating features of the
perpetrator's actions are of a relatively serious nature.
Band four: 19 years to life where the perpetrator's actions are similar
in character to band three but there may also be multiple acts
committed over a lengthy period of time; e.g. repeat family offending.
The significance of this and other like decisions it is that it
provides a standard for ensuring there is a measure of uniformity and
consistency in the application of sentencing. Treating similar cases in
a like or comparable manner is an important consideration in the
administration of justice and reinforces confidence in the justice
system.
Rape – sentencing – state
appeal
Adequacy of sentence where
aggravating features are present for the offence of rape.
REPUBLIC
v ARAWAIA
| Court
of
Appeal |
Kiribati |
| Paterson, Blanchard
and Handley JJA, |
[2013] KICA 11 |
|
23 August 2013 |
Law(s) and/or
international instrument(s) considered
Court of Appeal Amendment Act 2010
Penal Code
Facts
The respondent (R) was found guilty of two counts each of indecent
assault and defilement of a girl under the age of 13, and was sentenced
to a total of two years' imprisonment. The state (A) appealed the
sentence on the grounds that it was manifestly inadequate. R was 47
years of age, and the Victim (V) was 12 at the time of the offences. R
was the husband of V's grandmother. The relevant offences occurred over
a three-day period, at various properties, but the last offence
occurred after V told her grandmother, and R had apologised for the
previous acts.
Issue(s)
Was the sentence manifestly inadequate and, if so, what should the
appropriate sentence be?
Decision
Appeal allowed. The sentence was manifestly inadequate and the court
substituted it with a total of five years' imprisonment, representing
five years for two counts, and one year and six month for the other two
counts, which were to be served concurrently.
Anything less than a five- year starting point would be manifestly
inadequate, considering a previous decision of a similar nature. The
court referred to the starting point applied in Australian and New
Zealand courts, noting that, in cases involving multiple offences and
counts, the totality principle should apply; that is, the sentencing
should take into consideration not only the penalty for each offence
separately, but also whether the total term was appropriate for the
collective offending conduct. Consequently, a range of seven to eight
years was justified. In relation to the aggravating and mitigating
factors, little weight was placed on the apology as a mitigating
factor, but the R's early guilty plea, and the fact of the state's
appeal, should result in a five-year total term.
Comment
The inadequacy of the sentence imposed by the court at first instance
underscores the important role that appellate courts play in the review
process, and highlights the consequent need to ensure that both
sentencing tariffs and what constitute mitigating and aggravating
features of the offending are clearly articulated. This ensures both
consistency in sentencing and uniformity in decision making. The
inadequacy of the sentencing in this case also illustrates the
different perspectives that courts sometimes have in respect of matters
before them. While it is useful to have regard to other jurisdictions,
such as Australia and New Zealand, as a guide in sentencing, the
peculiarities of the local context and what will meet the ends of
justice in that context are arguably primary considerations.
Rape –
child victim of
sexual violence – sentencing appeal by the Crown
Manifest inadequacy of sentence
for the offence of rape.
REGINA
v BONUGA
| Court
of
Appeal |
Solomon
Islands |
| Goldsbrough P,
Williams and Hansen JJA |
[2014] SBCA 22 |
|
17 October 2014 |
Law(s) and/or
international instrument(s) considered
Penal Code, ss 142 and 143
R v Billam [1986] 1 WLR
349
Facts
The defendant (D) was convicted of three counts of rape of his adopted
child, on three separate occasions, when she was 12, 13 and 15 years
old. Two of the offences occurred in the family home. The sentencing
judge ordered three jail terms, the longest of three years', which were
to be served concurrently. The Crown appealed the sentences.
Issue(s)
1. Whether the correct principles relating to the starting point for
sentencing in rape cases of this kind were applied.
2. Whether the sentences were manifestly inadequate.
3. Whether an error of law occurred in applying the sentences to be
served concurrently.
Decision
The Court of Appeal (CA) upheld the appeal and ordered that the
offender be jailed for 10 years for each count of the offence, to be
served concurrently. The court relied on a 1984 English case, which had
been adopted in previous cases, which held that the starting point in
sentencing in relation to a rape offence, in circumstances in which the
rape was committed by a person in a position of responsibility towards
the victim, should be eight years' imprisonment. The court also
dismissed the trial judge's consideration of the victim's delay in
reporting the matter to the police as a mitigating factor, commenting
that it
[was] a feature far too
common in offending of this sort. (At par. 23) While the
victim had not produced evidence of psychological harm, judicial notice
should be taken of the devastating effect on victims of sexual
offences, especially young victims. Thus the court considered that the
aggravating factors had the effect of adding four years to the
sentence, implying a 12 year sentence for each count. The court
accepted the offender's general good character as a mitigating factor,
and the fact that it was the Crown's appeal, and accordingly deducted 2
years from the concurrent sentences. However, the case was not one of
repetitious behaviour of the offender on the same victim, but rather
three distinct and discrete episodes of rape. While it rejected this as
a mitigating factor, the court considered that consecutive sentences
were not appropriate, and applied the totality principle indicating
concurrent sentences.
Comment
The discrepancy in the sentences between the CA and the court at first
instance is pronounced, and the CA was rightly critical of the court at
first instance. There was clear precedent to the effect that the
sentencing starting point for cases of this type was eight years. While
the purpose of an appellate court is to remedy anomalies, it is
sobering to reflect on the degree of leniency shown to the respondent
by the lower court. The court appears to have overlooked the abuse of
trust and authority which the respondent committed in raping his
adopted daughter on three separate occasions. This was heightened by
making the sentences for the three separate offences concurrent rather
than consecutive. While the judiciary is an independent third branch of
the state, it is expected to reflect society's disapproval and
repugnance for more heinous offences such as rape, and particularly the
rape of children, because of the fundamental abuse of power and trust
it engenders.
Rape –
sentence – appeal by the Crown
Manifestly inadequate sentence
and inconsistent application of sentencing tariffs.
R
v GUA
| Court
of
Appeal |
Solomon
Islands |
| Goldsbrough P, Ward
and Mwanesalua JJA |
[2013] SBCA 2 |
|
26 April 2013 |
Law(s) and/or
international instrument(s) considered
Court of Appeal Act, s. 21(1)(B)
Facts
The appellant (A) was convicted of raping the victim (V), his estranged
wife. V had left the marital relationship, and had begun a relationship
with another man. A had persuaded V to get into his taxi on the pretext
of seeing their children. A attempted to reconcile with V. She refused.
A then drove V to an isolated area and raped her orally and vaginally.
A was convicted in the High Court and was sentenced to four years'
imprisonment. The Department of Public Prosecutions appealed on the
ground that the sentence was manifestly inadequate.
Issue(s)
Whether a four-year sentence for the offence of rape, with aggravating
features, is appropriate.
Decision
The Court of Appeal allowed the appeal and increased the sentence to
seven years. It noted the inconsistencies in the judgment that was
being appealed, where the lower court had found that the tariff should
be seven years in cases involving aggravating features, rather than 5
years, but had found no aggravating features, and attributed some blame
to V, and therefore imposed a four-year sentence. The Court of Appeal
pointedly declined to attribute any fault to V, and emphasised the
aggravating aspects of the rape: the initial trickery and the oral
rape, in addition to the rape and premeditation. While affirming that
five years, rather than seven years, should be the starting point for
sentencing tariffs in circumstances that did not involve aggravating or
mitigating features, the aggravating factors in this case necessitated
the sentence be increased to seven years.
Comment
This was the first case in the Solomon Islands which recorded a
conviction for rape within marriage. While V had another partner, the
parties remained legally married. The court at first instance mentioned
this aspect in its decision, and proceeded to suggest that V was in
some way responsible, which was an inappropriate and injudicious
implication by the court. It is this finding that appears to have
influenced the court at first instance's sentencing considerations.
While emphasising this aspect, the judge downplayed the aggravating
features of A's conduct, and imposed a four- year sentence,
notwithstanding that the judge agreed that a seven-year starting point
was appropriate. The case reflects the importance of appellate courts
ensuring that courts properly apply sentencing guidelines. The
appellate court also needs to be alert to any conduct by judicial
officers suggesting gender bias, as was implied in the decision of the
lower court in this case.
Rape –
sentencing tariff
Manifestly excessive sentence for
the offence of rape.
LATU
v REX
| Court
of
Appeal |
Tonga |
| Salmon, Blanchard and
Ward JJA |
[2014] TOCA 9 |
|
9 April 2014 |
Law(s) and/or
international instrument(s) considered
Sentencing in rape
Laws of Tonga, Ch. 18 – Criminal Offences, 1988 ed.
Facts
The appellant (A) appealed a sentence of 14 years for three counts of
rape, and 14 months for two counts of indecency offences, to be served
concurrently. A and the victim (V) were in a relationship. V wanted to
end the relationship, whereupon A threatened her with a knife, and
raped and indecently assaulted her. A detained V for 24 hours and raped
her two more times. A consistently denied committing the offences. The
maximum sentence for rape is 15 years under the Laws of Tonga.
Issue(s)
Was the sentence manifestly excessive and, if so, what is the
appropriate tariff?
Decision
The Court of Appeal allowed the appeal, quashed the sentence for the
three counts of rape and substituted eight years, applying the starting
point for the tariff of five years. The court preserved the sentences
for the two counts of indecent assault, and held that the sentences for
both offences were to be served concurrently. The only mitigating
factor was that A had no previous conviction, but this was outweighed
by aggravating factors, such as the multiple rapes, the effective
detaining of V, the use of the knife and the fact that A continued to
maintain his innocence.
Comment
Sentencing is a balancing exercise, in which the court needs to
consider various factors. It is also a subjective process. While
recognising the aggravating factors, such as the multiple rapes,
detention, threats with the aid of a knife, and A's assertions of
innocence throughout the trial, to which may be added the indecent
assault, the court substituted a sentence that was closer to the
starting point, rather than the maximum, for the offence. It considered
the initial sentence of 14 years to be manifestly excessive. There is
latitude for arguing the combined effect of the aggravating factors
called for a tariff closer to the maximum, in the light of the fact
that V was raped three times and that the only mitigating factor was
that A had no previous convictions. The Court of Appeal's decision
reflects the reality that sentencing is not an exact science, and that
assessments often need to be made on impressionistic grounds.
Sexual Offence
– appeal
Special circumstances for
mitigating sentence for the offence of rape.
FILIMONE
HEFA v REX
| Court
of
Appeal |
Tonga |
| Salmon, Handley and
Blanchard JJA |
[2013] TOCA 4 |
|
17 April 2013 |
Law(s) and/or
international instrument(s) considered
Sentencing in rape
Facts
The appellant (A) was convicted of one count of rape and was sentenced
to 13 years' imprisonment, the last three years of which would be
suspended. A had threatened his 17-year-old sister-in-law (V) with a
knife, and had raped her. A and his wife had a two-year-old son, who
had a rare illness, which immobilised him, and he required full-time
care and attention. A's wife was the primary carer for their son, with
limited support from A's family. However, it was submitted that she
could not care for their son on her own. On this basis, counsel for A
submitted that a lower tariff of three to five years should be applied,
rather than the starting point of five years.
Issue(s)
Whether the carer needs of A's son was a mitigating consideration, and
the effect of the aggravating factors.
Decision
The Court of Appeal allowed the appeal, and substituted a sentence of
six years, with the last three years being suspended to enable A's
early release. The only mitigating feature was that A was a first
offender. The tariff was set at the higher end in the light of the
aggravating features of the rape. These were the use of a knife and the
threat which accompanied it, the relationship of A to V and the impact
of the offending in a cultural sense. However, the last three years of
the sentence would be suspended for three years, taking into account
the condition of A's son.
Comment
Some aspects of this case are disturbing. The distinction the court
drew between the sentence and the suspension is illusory, because the
consequence of the suspension was that A would serve only half of his
sentence in custody. While the substantive sentence reflected the
gravity of the offence, the impact of the sentence was significantly
reduced by the period of suspension which effectively halved the
sentence.
The Court of Appeal treated this as a special case, because of A's
seriously ill and immobilised child. By doing so, the court gave more
weight to the child's condition than the seriousness of the offence
against V. The aggravating features cited by the court were effectively
negated by the consideration the court gave to the care of A's child.
The case illustrates the circumstances and the dilemmas often faced by
the courts in trying to reconcile competing interests to meet the ends
of justice. In this case, the court viewed the need to punish the
offender as less important than the needs of parties who are unrelated
to the offending, in order to meet the ends of justice. The court took
into account A's wife's urgent need of the offender's physical and
moral support to care for their child.
Domestic
violence – 17-year-old perpetrator – sentencing
Suspension of part of sentence
for manslaughter because of additional factors not considered at trial.
FO'OKA
v REGINA
| Court
of
Appeal |
Solomon
Islands |
| Goldsbrough P,
Williams and Ward JJA |
[2014] SBCA 10 |
|
9 May 2014 |
Law(s) and/or
international instrument(s) considered
Penal Code, ss 204 and 205
Juvenile Offenders Act, s. 16
Facts
The appellant (A) was aged 17-and-a-half years when he twice struck his
wife of six months on the head with an axe, following what he
considered to be offensive remarks made by her about his mother and
niece. The blows cracked her skull fatally wounding her; she bled to
death as a result of her wounds. A was convicted of manslaughter in the
High Court, and was sentenced to nine years' imprisonment. A appealed
his conviction and sentence.
Issue(s)
Is there any basis for any further leniency in sentencing, given that
there appeared to be no realistic grounds to challenge the conviction?
Decision
The Court of Appeal dismissed A's appeal against his conviction, but
varied the appeal against the sentence to allow the last two years of
imprisonment to be served under the care of a suitable person. This
option had not been considered at first instance, and the case was
remitted to the High Court to ascertain the suitability and willingness
of A's uncle to care for him, or alternatively to identify another
person willing to so. Upon the court being satisfied of a nomination of
a suitable carer, A would be released from custody and placed in that
person's care for the last two years of his sentence.
Comment
The Court of Appeal varied the sentence because the issue of there
being someone available to supervise A – thereby enabling an early
release into the community – was not considered at first instance. Both
courts gave significant weight to A being a juvenile: the High Court,
in determining a nine-year custodial sentence for A's killing of his
wife, in circumstances which the court found involved some provocation;
and the Court of Appeal, in varying the sentence to allow the
possibility of A serving only seven years in prison, with the balance
to be served under supervision in the community. The weight which the
courts gave to A's juvenile status reflects the concessions that courts
are prepared to make in the case of juveniles, recognising that the
opportunity for rehabilitation is a real consideration
Domestic
violence – killing of wife – sentencing
Successful appeal by the accused
resulted in a substantial reduction in jail term.
VAOMOTOU
v REX
| Court
of
Appeal |
Tonga |
| Salmon, Blanchard and
Ward JJA |
[2014] TOCA 11 |
|
9 April 2014 |
Law(s) and/or
international instrument(s) considered
Sentencing in provocation
Facts
A was sentenced to 16 years' imprisonment for manslaughter (the last
two suspended) for killing his wife (V). A stabbed V 23 times as she
lay sleeping. The couple had a stormy relationship, and the court at
first instance had accepted A's submission of provocation in V's
conduct in engaging in a relationship up with another man. A's plea of
provocation as a defence to murder was successful, and A pleaded guilty
to manslaughter. A appealed his sentence.
Issue(s)
Whether there are any mitigating circumstances to reinforce A's appeal.
Decision
The Court of Appeal allowed the appeal, recognising that it was
manifestly excessive and reducing the sentence to 10 years, with the
last two years suspended. The extreme violence (V was stabbed 23
times), and the absence of provocative behaviour at the time of the
attack, indicated an appropriate starting point for sentencing of 14
years. A's early confession, his guilty plea, his expressed remorse,
his disoriented state of mind, and being a first offender, were taken
into account as mitigating factors. In circumstances in which A's
prospects of rehabilitation were good, he was unlikely to reoffend, and
he had two small children, it was appropriate to suspend the last two
years of the sentence.
Comment
The case is interesting in that V's conduct in taking up with another
man was considered to be provocative behaviour, which justified the
initial charge of murder being substituted with manslaughter, to which
A pleaded guilty. In characterising V's conduct in those terms, the
court was making a value judgment that the wife was not entitled to
choose to be involved in other relationships. The level of violence
committed by A was extreme, and was committed against V while she lay
sleeping, and it seems problematic to treat this behaviour with the
degree of leniency the court appears to have adopted, notwithstanding
the mitigating factors that were accepted.
WORKERS'
RIGHTS
Workers'
rights –
government's intervention in prospective overseas employment
Violation of the Employment
Relations Promulgation to protect the interests of prospective workers
engaging in overseas employment is an offence punishable by a custodial
sentence.
LABOUR OFFICER v
LOLOHEA
Law(s) and/or
international instrument(s) considered
Employment Relations Promulgation 2007 (ERP), ss 4, 37(4), 37(5),
211(3), 246(1) and 246(1)(a).
Sentencing and Penalties Decree 2009 (SPD), s. 4(2)
Facts
This was a sentencing matter for offences under the ERP. The accused
was convicted by the Employment Relations Tribunal (ERT) for enlisting
and recruiting people for foreign employment without proper government
authorisation (maximum penalties were a $20,000 fine or a four-year
prison term), and for the wilful obstruction of the labour officer
carrying out his lawful duties ($10,000 fine or a 12-month prison
term). The maximum penalties the ERT can impose under its limited
jurisdiction are fines to a maximum of $2000 or a 12-month prison term.
The ERT referred the matter for sentencing to the High Court pursuant
to the ERP.
Issue(s)
Whether a custodial sentencing was appropriate under the circumstances
and, if not, what quantum of fines should be imposed?
Decision
The High Court considered that a fine for both offences would meet the
ends of justice, and ordered a fine in the total of $6000 to be paid
within three months. In default of timely payment, the offender was to
be imprisoned for a term of 12 months.
Comment
This case was the first ERP prosecution that was sent to the High Court
for sentencing.
The ERP does not prescribe factors to be considered in sentencing, so
the court sought to rely on the general guidelines set out in the 2009
Sentencing and Penalties Decree. The prosecution sought a custodial
sentence but did not provide a reason for seeking this penalty. After
outlining the preamble of the ERP, the court observed that the
requirement for the permanent secretary's prior authorisation for any
foreign employment contract had a sound purpose, to ensure that Fijian
workers' basic human rights were monitored and protected. Acts contrary
to the relevant provisions of the ERP would put the life, safety and
security of workers at risk and therefore constituted serious offences.
The court accepted the mitigating factors pleaded by the accused, and
in the absence of any aggravating factors, held that the imposition of
fines would meet the ends of justice.
In a Hong Kong case, HKSAR
v. LAW WAN TUNG [2015] HKDC 210; DCCC
651/2014 (27 February 2015), the court concluded that
because of the
disparity of power between an employer and an employee coming from
another country, abuse and ill-treatment were not uncommon, and
government intervention was warranted in order to protect its
nationals. In that case, a 20-year-old woman domestic helper from
Indonesia was ill-treated by her Hong Kong employer for a long period
of time, resulting in her sustaining injuries.
Discrimination –
employment contract and dismissal
Whether harsh and unfair
dismissal under an employment contract is lawful in the absence of
unfair dismissal legislation.
'ILANGANA v
WESTPAC BANK OF TONGA
| Court
of
Appeal |
Tonga |
| Salmon, Handley,
Hansen and Tupou JJA |
[2014] TOCA 18 |
|
31 October 2014 |
Law(s) and/or
international instrument(s) considered
Common law of employment
Facts
The appellant (A) appealed a decision dismissing her action for unfair
dismissal. Under Clause 11(b) of A's contract of employment, her
contract could be terminated by either party by payment to the
employee, or forfeiture of, one month's salary. A commenced employment
at the Westpac Bank of Tonga (R) on 22 May 1989. She was steadily
promoted, and was appointed manager branch banking in 2006, and manager
retail banking in 2012. On 18 October 2012 A was advised, by letter
from the general manager (GM) of the bank, that her services were no
longer required and that her employment was terminated. A queried the
decision and sought to ascertain the reasons for her dismissal, and
asserted her right to be given an opportunity to be heard.
Issue(s)
Tonga has no unfair dismissal legislation, and the matter had to be
determined under the common law. However, A argued that the Bank of
Tonga Act and the rules of the bank's retirement fund had modified A's
contract of employment to enable her to claim damages for breach of
contract.
Decision
The court dismissed the appeal and held that while the dismissal was
harsh and unfair, it was lawful. A had not argued a breach of implied
trust and confidence, which could be implied by common law in contracts
of employment, or that there was an obligation on R as an employer to
exercise its powers under clause 11(b) in good faith. Although under
the Bank of Tonga Act, the government initially was a substantial
shareholder, it never exercised control over the bank, and the bank
conducted business for profit for the benefit of its shareholders. Even
if an employer was a public body established by statute, its
contractual powers of dismissal were not limited unless provided for by
statute.
Comment
The common law has its limitations, and A's counsel's oversight in not
arguing breach of an implied term of mutual trust and confidence
resulted in the dismissal of her case. In other jurisdictions, unfair
dismissal legislation has made the process of terminating contracts of
employment a more transparent process, in providing that employees be
given reasons for the dismissal as well as the opportunity to be heard.
Some employers in jurisdictions with unfair dismissal legislation would
argue that the pendulum has swung too far towards employees' rights,
making it very difficult to dismiss employees. But in the present case,
R took advantage of clause 11(b) of A's contract of employment to
dismiss her unilaterally, without cause, and without affording her an
opportunity to be heard. The court acknowledged that the dismissal was
harsh and unfair, but it considered that it was bound by the common law
principles relating to the law of employment.
PART
II: INTERNATIONAL CASES
REFERRING TO CONSTITUTIONAL BILLS OF RIGHTS, AND HUMAN RIGHTS
CONVENTIONS, STANDARDS AND PRINCIPLES
CRUEL,
INHUMAN OR
DEGRADING TREATMENT
Inhuman
treatment of prisoner – prolonged period of solitary confinement
Prisoner sought compensation for
inhuman treatment in prison, of being kept in solitary confinement for
longer than the permissible period. It was accepted as fact that the
prisoner had requested the solitary confinement in order to deal with
his drug addiction habit.
VOGEL v
ATTORNEY-GENERAL
| Court
of
Appeal |
New
Zealand |
| France, Young and
Cooper JJA |
[2013] NZCA 545 |
|
7 November 2013 |
Law(s) and/or
international instrument(s) considered
New Zealand Bill of Rights Act 1990 (NZBORA), ss 9 and 23(5)
Penal Institutions Act 1954 and Penal Institutions Regulations
Prisoners and Victims Claims Act 2005 (PVC Act), s. 13
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT),
art. 16
International Covenant on Civil and Political Rights (ICCPR), articles
7 and 10
Facts
The applicant (A) was sentenced to life imprisonment in 1988 for
murder, and was released on parole in 1998, but was convicted again
after reoffending in 2000, and sent to prison again. The complaint
related to A's second period in prison, during which A was sentenced by
a Visiting Justice to solitary confinement for 21 days, for a
drug-related offence while in prison. Under the Penal Institutions Act
and its regulations, the maximum continuous period that a prisoner is
permitted to be sentenced to a cell confinement is 15 days. The
complainant sought damages and a declaration based on ss 9 and 23(5) of
the NZBORA. The court at first instance held that the Visiting Justice
had not breached ss 9 and 23(5) of the NZBORA, despite accepting that
the sentence was unlawful. The court accepted that the longer sentence
had been a response to A's plea to have additional time in solitary
confinement to deal with his drug habit. A appealed the decision.
Issue(s)
Whether the 21-day cell confinement sentencing had breached the
relevant sections of the NZBORA and, if so, what remedies would be
appropriate under the circumstances?
Decision
The Court of Appeal allowed the appeal and held that the sentencing of
21 days' solitary confinement under the circumstances had breached s.
23(5) (but not s. 9) of the NZBORA, and that ordering damages to be
paid to the appellant would have been appropriate, but the difficulties
in assessing the damages, and the effect of s 13 of the PVC Act, had
prevented the court from doing so. (The PVC Act restricts prisoners'
monetary claims for compensation to be considered by a court if the
applicant had not sought internal complaints mechanisms at an earlier
stage.)
The court made a declaration that the sentence of 21 days' cell
confinement was in breach of s 23(5) of the NZBORA and of s. 33 of the Penal Institutions Act.
Comment
The applicant sought leave to appeal to the Supreme Court, arguing that
the Court of Appeal was wrong in not ordering damages to be paid to the
appellant. The Supreme Court refused leave to appeal. (See John Alfred Vogel v
Attorney-General and others [2014] NZSC 5 (19 February
2014)) The decision has provided significant principles in interpreting
s. 23(5) of the NZBORA, which has a close affinity with article 10 of
the ICCPR (to treat detained persons with humanity and with respect for
the inherent dignity of the human person).
The Court of Appeal observed that the fact that the prisoner had
requested a prolonged solitary confinement was not a relevant
consideration in relation to the sentence or to the state's positive
duty in respect of s. 23(5) of the NZBORA. The court contrasted s. 9
(torture and cruel treatment) with s23(5), and reiterated that the
latter section had imposed a positive obligation on the state in
relation to persons deprived of liberty, citing an earlier Supreme
Court decision in support. The fact that the prisoner was vulnerable
(known to be a drug addict and known to have suffered a mental health
condition at the time of the imposition of the confinement sentence)
should have attracted special care in considering the length of the
solitary confinement sentence. (At 67-75)
The remedy in any human rights violation by the state... should have the purpose of
vindicating the right breached, deterring the relevant authorities from
future rights breaches and denouncing the conduct so as to mark
society's disapproval of the breach. (At 77)
DISCRIMINATION
Discrimination
–
employment – pregnancy
Discrimination on the basis of
pregnancy is gender discrimination and a violation of a woman's
constitutional rights.
NOORFADILLA
AHMAD SAIKIN v CHAYED
BASIRUN & ORS
| High
Court |
Malaya,
Malaysia |
| Yusof J |
[2012] 1 CLI 769 |
|
12 July 2011 |
Law(s) and/or
international instrument(s) considered
Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW)
Malaysian Federal Constitution, s. 8(1)
Facts
The Plaintiff (P) applied for a teaching job in response to a ministry
circular for the employment of untrained temporary teachers. The
circular was issued due to the shortage of school teachers. Following a
successful interview, P was invited to attend an appointment, along
with other successful candidates, at which she was given a placement
memo requesting her to report for duty at a specific school
immediately. The government agency then asked all of the women who
attended the appointment whether any of them was pregnant. P and two
other appointees responded affirmatively. The agency then withdrew the
placement memo of P. P later sought an explanation from one of the
defendants, the ministry (D). After several attempts, P received a
reply from D, which sought to rely on the circular saying that a
pregnant woman could not be employed because: 1) her recovery from
delivery is too long; 2) her inability to attend the job due to various
health reasons; 3) replacement for the pregnant woman requires further
briefings; and 4) the post could not be filled with 'replacement'
teacher. P instituted legal proceedings, seeking damages and a
declaration of unlawful discrimination.
Issue(s)
1. Whether the action of D in refusing to allow pregnant women to be
employed as a temporary teacher was gender discrimination in violation
of article 8(2) of the Malaysian
Federal Constitution.
2. Whether P lacked locus
standi because there was no contract.
Decision
The High Court held that locus
standi, based on contract, was irrelevant because the
challenge was based on a breach of P's constitutional rights.
The court rejected D's submissions that were based on the argument that
the action was a policy consideration which ought not to be reviewed or
questioned. The court held that the sole ground of withdrawing the
employment was based on P's pregnancy, which amounted to gender
discrimination in violation of the constitution.
Comment
The High Court seized upon the insertion of 'gender' into the relevant
section of the Malaysian
Federal Constitution as one of the prohibited grounds for
discrimination in employment, which was in response to the country's
ratification of CEDAW. Following a detailed analysis of CEDAW articles
and the relevant UN and regional instruments, as well as court
decisions in various jurisdictions, the court expressed the view that
it was entitled to rely on this international material to clarify the
meaning of equality and the scope of gender discrimination envisaged in
the constitution. It reasoned that P's pregnancy was innately connected
with her gender, and discrimination against pregnant women was a form
of gender discrimination, which was prohibited.
Discrimination
– disability – wheelchair access to public transport services
Anti-discrimination legislation
compels service providers to accommodate access for service for
wheelchair-bound individuals.
HARAKSIN
v MURRAY AUSTRALIA
LIMITED
| Federal
Court |
Australia |
| Nicholas J |
[2013] FAC 217 |
|
14 March 2013 |
Law(s) and/or
international instrument(s) considered
Disability Discrimination Act 1992 (Cth) (DD Act), ss 5, 6, 23 and 24
Disability Standards for Accessible Public Transport 2002 (Cth)
(Standards)
Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)
Facts
The applicant (A) was born with brittle bone disease, and had to rely
on a wheelchair for mobility. The respondent (R) operated coach
transport services (a national transport provider, 'Countrylink'),
including services between Sydney and Canberra. In August 2009 A
telephoned the coach company to book a return seat on a
wheelchair-accessible coach, travelling between Sydney and Canberra, on
two specific dates, in order to attend a conference. A had used this
service previously, but on this occasion she was informed by the person
who took her call that R did not have any wheelchair-accessible
vehicles, and that her booking could not be taken. A made other travel
arrangements to attend the conference. A's husband took leave from his
work and drove her to Canberra. A made a complaint to the Australian
Human Rights Commission alleging direct and indirect discrimination
under the DD Act (i.e., direct and indirect discrimination against A on
the ground of her disability in the areas of access to or use of
premises and the provision of facilities and services). A also sought
relief based on the substantive Standards that were prescribed by
legislative instrument to formulate standards applicable to
transportation services, amongst other standards to promote
anti-discrimination against disability.
The complaint was terminated by the Commissioner under the AHRC Act due
to the lack of reasonable prospect of the complaint being settled by
reconciliation. Pursuant to the AHRC Act, A filed this proceeding in
the Federal Court.
Issue(s)
1. Whether R discriminated against A on the ground of her disability,
based on relevant provisions of the AHRC Act and the Standards.
2. If so, whether the discrimination was permitted under the exception
of 'unjustifiable hardship', which would otherwise be suffered by R.
3. What should be the appropriate remedy?
Decision
The Federal Court upheld A's complaints of discrimination for access to
or use of premises (the coach) and discrimination to provide services
(transportation between Sydney and Canberra), but rejected the claim of
discrimination by imposing a discriminatory term or condition for the
provision of the service, because the service was never provided. The
court also upheld complaints based on the Standards.
The court exercised its discretionary powers and ordered R to comply
with the Standards, to be limited to its services operating between
Sydney and Canberra, for a period of two years. The court declined to
consider claims of indirect discrimination, because the direct
discrimination in terms of the same conduct was upheld.
In relation to the defence based on 'unjustifiable hardship' under the
relevant provisions of the AHRC Act, R failed to substantiate the
defence. In relation to the argument of 'unjustifiable hardship'
applicable to the implementation of the Standards, the court declined
to rule, because the expert evidence provided by R was relevant only to
the general application of compliance, but the relief ordered was
confined to the services between Sydney and Canberra.
Comment
This decision is authority for the proposition that public transport
services provided by a private organisation are governed by national
Standards. In coming to its interpretation of 'Public Transport
Service' under the Standards, the court adopted a liberal and purposive
approach, and rejected R's technical arguments purporting to take the
applicability of the Standards out of its 'charter service'. The court
reasoned that, if the service was intended to be for use by the public,
it was not relevant whether it was provided as a public service or
under the auspice of a charter service. The realistic and pragmatic
approach the court adopted in coming to its orders also diminishes
arguments based on resource and utility.
The success of this application demonstrates that there is a need for
standalone anti-discrimination legislation, and to formulate respective
national standards under the AHRC Act, in order to implement and
promote an inclusive disability policy. Unfortunately, the Pacific
region is falling behind in this area of development and implementation.
ENVIRONMENTAL
DEFENDERS
Greenpeace –
registration as a charitable entity
'Political purpose' no longer
provides a blanket exclusion from the 'charitable purpose' inquiry for
registration.
IN
RE GREENPEACE
| Supreme
Court |
New
Zealand |
| Elias CJ, McGrath,
Willliam Young, Glazebrook and |
[2014] NZSC 105 |
| Arnold JJ |
6 August 2014 |
Law(s) and/or
international instrument(s) considered
Charities Act 2005, s. 5
Facts
Greenpeace of New Zealand Inc. (the appellant, A) sought registration
as a 'charitable entity' in order to qualify for the tax relief
benefit. The Charities Commission (CC) declined A's registration on the
basis that two of its objects were not charitable. The objects found to
be not charitable were the promotion of disarmament and peace and the
promotion of 'legislation, policies, rules, regulations and plans which
further [Greenpeace's other objects] and support their enforcement or
implementation through political or judicial processes as necessary'.
The CC sought to rely on the Charities Act and the established
principle of 'political purpose' exclusion, in determining charitable
purpose. A's appeal in the High Court was unsuccessful. In the Court of
Appeal the appellant proposed to amend the objects of promotion in
relation to 'disarmament' to 'nuclear disarmament and the elimination
of all weapons of mass destruction', and to add 'where such promotion
or support is ancillary to those objects', after the reference to the
promotion of law and policy change.
Issue(s)
Whether the 'political purpose' exclusion is the law of New Zealand in
relation to determining charitable purpose, and whether illegal
activity may disqualify an entity from registration.
Decision
The Court of Appeal upheld the notion of 'political purpose exclusion,
but was prepared to deal with the foreshadowed change of its object,
and considered that the promotion of nuclear disarmament and
elimination of weapons of mass destruction was uncontroversial and of
public benefit envisaged under the general principle of charitable. It
remitted the matter on that basis, requiring the Commission to
reconsider the application by considering whether this 'political' limb
of the objects was truly ancillary and not an 'independent standalone
object'. The appellant challenged this finding in the Supreme Court,
which held that:
- A 'political
purpose' exclusion should no longer be applied in New Zealand:
political and charitable purposes are not mutually exclusive in all
cases; a blanket exclusion is unnecessary and distracts from the
underlying inquiry whether a purpose is of public benefit within the
sense the law recognises as charitable.
- Section 5 of
the Charities Act does not enact a political purpose exclusion with an
exemption if political activities are no more than 'ancillary', but
rather provides an exemption for non-charitable activities if
ancillary.
- The Court of
Appeal applied an incorrect approach to assessment of charitable
purposes when it concluded that an object 'to promote nuclear
disarmament and the elimination of weapons of mass destruction' was
charitable.
- Illegal
activity may disqualify an entity from registration when it indicates a
purpose which is not charitable even though such activity would not
justify removal from the register of charities under the statute.
(At 3)
Comment
The Supreme Court reasoned that the label 'political' had itself... been used in a number of
different senses (party political, controversial, law-changing,
opinion-moulding, among others) and is apt to mislead. (At
60) It also came to the view that charitable purpose and 'political'
purpose are not mutually exclusive (at 59–71) and the exclusion of it
is unnecessary. (At 72–76)
It is interesting to note that the court, by way of example, said that,
...today advocacy for
such ends as human rights or protection of the environment and
promotion of amenities that make communities pleasant may have come to
be regarded as charitable purposes in themselves, depending on the
nature of the advocacy, even if not ancillary to more tangible charity
Protection of the environment
may require broadbased [sic] support and effort, including
through the participatory processes set up by legislation, to enable
the public interest to be assessed. In the same way, the promotion of
human rights (a purpose of the New Zealand Bill of Rights Act 1990), as
its long title indicates) may depend on similar broad-based support so
that advocacy, including through participation in political and legal
processes, may well be charitable. (At 71)
The court formulated a test for the determination of whether an entity
is for a charitable purpose when advocacy, or promotion of a cause, or
law reform is involved: [it] depends
on consideration of the end that is advocated, the means promoted to
achieve that end and the manner in which the cause is promoted in order
to assess whether the purpose can be said to be of public benefit
within the spirit and intendment of the 1601 Statute. (At
76)
The decision is a reflection of the seismic shift in community
attitudes and perception over what 'charitable' and 'political'
purposes constitute in the decades since the war in Vietnam. While not
identical or synonymous, the two fields have drawn closer and in some
circumstances overlapped, as advocacy for some particular cause – for
example the environment, the rights of women and children, people with
disabilities and others – have become identified as having both some
charitable and political aspects. This is partly attributable to the
phenomenal growth of civil society and community groups over the same
period, beyond government and the private sector, seeking to improve
some part of society through engagement with governments and other
entities.
FREEDOM OF EXPRESSION
Media
freedom
– law of defamation – proportionality
Laws relating to custodial
sentences and excessive fines, damages, interest and costs in respect
of defamation violating article 9 of the African Charter of Human and
People's Rights.
IN THE
MATTER OF LOHE' ISSA
KONATE' v BURKINA FASO
| African
Court on Human and Peoples' Rights |
African
Union |
| Ramadhani P, Thompson
VP, Akuffo, Ngoepe, |
Application No.
004/2013 |
| Niyungeko,
Tambala,
Ore, Guisse |
5 December 2014 |
| Kioko and Aba JJ, |
|
| and
Eno R |
|
Law(s) and/or
international instrument(s) considered
African Charter on Human and Peoples' Rights (Charter), article 9
International Covenant on Civil and Political Rights (ICCPR), article
19
Treaty of the Economic Community of West African States (Revised ECOWAS
Treaty), article
66(2)(c)
Information Code of 30 December 1993, articles 109, 110 and 111
Penal Code of 13 November 1996, article 178
Facts
The case arose out of three articles published in two separate issues
of the L'Ouragan
in 2012. Two of the articles were written by the
applicant (A), entitled 'Counterfeiting and laundering of fake bank
notes – the prosecutor of Faso, 3 Police Officers and a Bank Official –
Masterminds of Banditry', and 'Miscarriage of Justice – the Prosecutor
of Faso: a rogue officer'. The third article, written by another
person, was entitled 'The Prosecutor of Faso – a saboteur of Justice'.
The relevant prosecutor (complainant, C) filed a complaint in court
against the two authors for defamation, public insult and contempt of
court, based on which A was subjected to criminal proceedings before
the Ouagadougou High Court (HC), resulting in A being sentenced to a
12-month term of imprisonment and a fine of an equivalent of USD 3000.
The HC also ordered A to pay the C damages of an equivalent of USD 9000
and court costs of an equivalent of USD 500. In addition, the HC
ordered that publication of
the L'Ouragan be suspended for 6 months,
the judgment to be published in newspapers and the L'Ouragan, when
it
resumed publication, at the cost of A and the other author.
The HC decision was appealed by A, but the Ouagadougou Court of Appeal
(CA) affirmed the HC's decision.
A instituted proceedings in the African Court on Human and Peoples'
Rights (ACHPR), alleging that the jail term, fine and damages, as well
as the court costs, violated his right to freedom of expression
protected under article 9 of the African
Charter on Human and Peoples'
Rights, as well as article 19 of the ICCPR. A also alleged
that his
rights under the Revised ECOWAS Treaty were violated.
Issue(s)
1. Whether the conviction and punishment, including the fine, civil
damages and court costs, were in violation of the right to freedom of
expression.
2. Whether the Burkina Faso laws on defamation and insult and, in
particular, the jail term for defamation, are repugnant to the right to
freedom of expression.
Decision
The ACHPR unanimously held that:
1) the Respondent State
violated article 9 of the Charter, article 19 of the ICCPR and article
66(2)(c) of the Revised ECOWAS Treaty due to the existence of the
custodial sentences on defamation in its laws;
2) the Respondent State violated article 9 of the Charter, article 19
of the ICCPR and article 66(2)(c) of the Revised ECOWAS Treaty because
of the conviction of A and sentence to a term of imprisonment;
3) the Respondent State violated article 9 of the Charter, article 19
of the ICCPR and article 66(2)(c) of the Revised ECOWAS Treaty because
of the conviction of A to pay an excessive fine, damages, interests and
costs; and
4) the Respondent State violated article 9 of the Charter, article 19
of the ICCPR and article 66(2)(c) of the Revised ECOWAS Treaty because
of the conviction of A to the suspension of his publication for a
period of 6 month for defamation; and
By a majority of 6 to 4, the ACHPR held that the Respondent State did
not violate article 9 of the Charter, article 19 of the ICCPR and
article 66(2)(c) of the Revised
ECOWAS Treaty due to the existence of non-custodial
sanctions on defamation in its laws.
Consequently, the ACHPR ordered the Respondent State to amend its
legislation on defamation in order to make it compliant with the
respective treaties within two years from the date of the judgment, and
also allowed A to file a brief on reparation within 30 days.
Comment
Article 9 of the Charter provides that:
1) Every individual shall have
the right to receive information.
2) Every individual
shall have the right to express and disseminate his opinions within the
laws and regulations.
The Burkina Faso national defamation law provides for custodial
sentences of between 15 days and 3 months, as well as a range of
monetary fines. In relation to contempt of legal officers, juries or
assessors, the national law provides for a term of imprisonment from 6
months to one year, and a larger range of monetary fines.
The ACHPR carried out a detailed analysis of its previous decisions, as
well as the international jurisprudence relevant to the restrictions
imposed by national laws on freedom of expression. Essentially, the
court had to consider whether the national laws allowing restrictions
on the freedom of expression aimed to pursue a legitimate objective and
whether they were a proportionate means to attain the objective sought.
Only legitimate reasons to limit these rights and freedoms are
permitted under article 27(2) of the Charter (i.e., rights shall be
exercised in respect of the rights of others, collective security,
morality and common interest). The legitimate purpose of a restriction
is stated in article 19(3) of the ICCPR, which confines such a purpose
to the rights and reputation of others or the protection of national
security, public order, public health or public morality. To these
ends, the limitation of rights allowed under the national law is
consistent with international standards.
However, the crucial question is whether the restriction is necessary
to achieve the objective. To answer that question, the issue of
proportionality must be considered. The gist of the issue was whether
the national law allowing a custodial sentence and heavy fines to
protect 'public figures' was absolutely necessary and proportionate to
achieving the objectives. Importantly, this question must be considered
in the context of a democratic society. The ACHPR reasoned that the law
to protect a 'public figure' from defamation should not provide more
severe sanctions than those of an ordinary individual, because a higher
degree of tolerance is expected of 'public figures'. Accordingly, the
relevant national law is contrary to the requirements of article 9 of
the Charter, article 19 of the ICCPR as well as article 66(2)(c) of the
Revised ECOWAS Treaty.
The court also
expressed the view that, apart from serious and very exceptional
circumstances, such as incitement to international crimes,
public incitement to hatred, discrimination or violence or threats
against a person or a group of people based on their race, colour,
religion or nationality, violations of laws concerning freedom of
speech should not be sanctioned by custodial sentences.
MOVEMENT
Deportation
order – right of a child not to be separated from parent
Article 9(1) of the UN Convention
on the Rights of the Child clarified, and separation of a parent from
their children considered to be in the best interests of the child.
CHIEF
EXECUTIVE OF THE MINISTRY
OF BUSINESS, INNOVATION AND
EMPLOYMENT v LIU
| Court
of
Appeal |
New
Zealand |
| Randerson, Harrison
and Miller JJA |
[2014] NZCA 37 |
|
26 February 2014 |
Law(s) and/or
international instrument(s) considered
Immigration Act 2009, ss 11 and 177
United Nations Convention on the Rights of the Child (CRC), arts 3, 9
and 10
Facts
The respondent (R) was a national of Samoa, who was subjected to a
deportation order. R was subsequently deported, as the officer declined
to consider cancelling the deportation order. R sought review in the
High Court, arguing that the officer failed to consider article 9.1 of
the CRC in relation to his New Zealand citizen child. Both his then
current wife and son were New Zealand citizens. Under the Immigration Act, an
immigration officer has an absolute discretion to consider cancelling
the deportation order. However, an officer must consider exercising his
or her discretion to cancel the deportation order if information
provided by the deportee is relevant to New Zealand's international
obligations. The officer had considered R's personal circumstances,
which included a protection order against him in favour of his former
wife and children, his conviction and jail term for assaulting his then
current wife, his relationship with his wife and son, and relevant New
Zealand international obligations. However, the officer did not mention
or consider article 9.1 of the CRC specifically. The High Court held
that article 9.1 of the CRC was relevant, and set aside the officer's
decision. The government appealed.
Issue(s)
Whether article 9.1 was a relevant consideration in a deportation case.
Decision
The Court of Appeal overturned the High Court's decision, and restored
the officer's decision, based on its conclusion that article 9.1 had no
relevance in a deportation case.
Comment
This decision clarifies the distinction between articles 9.1 and 9.4 of
the CRC, and their applicability. The Court of Appeal relied on New
Zealand and international jurisprudence, citing Australian, Canadian
and UK case law, in holding that article 9.1 does not apply to
deportation matters.
Article 9.1 of the CRC requires States Parties to ensure that a child shall not be separated
from his or her parents against their will, except when competent
authorities subject to judicial review determine, in accordance with
applicable law and procedures, that such separation is necessary for
the best interests of the child. This decision clarifies
that Article 9.1 of the CRC only applies to situations where a family
order in a domestic setting is to be considered in protecting children,
and the present case is not one of those cases.
See also discussions in the similar cases of Teoh (1 PHRLD 88)
and Tavita
(1 PHRLD 90).
RELIGION
Religious
freedom – freedom to choose languages at services
Whether the right to freedom of
religion and expression includes the right to worship in the Samoan
language.
ILIAFI
v THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS AUSTRALIA
| Full
Court of the Federal Court |
Australia |
| Kenny, Greenwood and
Logan JJ |
[2014] FCAFC 26 |
|
19 March 2014 |
Law(s) and/or
international instrument(s) considered
International Convention on the Elimination of All Forms of Racial
Discrimination (CERD)
International Covenant on Civil and Political Rights (ICCPR)
United Nations Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and
Linguistic Minorities
Vienna Convention on the Law of Treaties
Convention for the Protection of Human Rights and Fundamental Freedoms
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s. 46PO
Racial Discrimination Act 1975 (Cth), s. 9
Facts
The defendant church (D) operated in various areas around Queensland.
The church made two separate decisions (in August 2007 and April 2008)
to discontinue its Samoan language services in various locations, and
the consequence of those decisions was that only English was allowed to
be used in public worship at the church in those locations.
Consequently, Samoan language-speaking members of the church were
unable to use the Samoan language publicly to pray, sing or testify in
services of public worship conducted by the church. In 2009 two groups
of relevant church members commenced proceedings in the Federal
Magistrates Court (FMC) claiming that D had acted in a manner that was
unlawful, pursuant to s. 9 of the Racial
Discrimination Act.
The FMC characterised the issue as whether the relevant protected human
right or fundamental freedom included the right to delivery of the
church services to the As in the Samoan language. The applicant church
members (As) contended that the issue should have been whether the
relevant rights included the applicants' right to public worship as a
group in their native (Samoan) language. The FMC dismissed both
applications at the end of 2012. The As appealed to the Federal Court.
Issue(s)
Whether or not the
appellant had in fact identified a right at issue, which was properly
described as 'a human right or fundamental freedom in the political,
economic, social, cultural or any other field of public life',
within the meaning of s. 9 of the Act. (At 46)
Decision
The Full Federal Court held that: [n]one of the rights to freedom of
religion or freedom of expression or right to nationality, as
articulated by the appellants, protected the appellants' ability to
worship publicly as a group in the Samoan language in the respondent's
services. The appeal was dismissed.
Comment
Justice Kenny provided a detailed analysis of the protected rights
under article 5 of the CERD relevant to the appellants' claims, which
in turn required the court to examine articles 18(1), 19 and 27 of the
ICCPR, namely, freedom of religion, freedom of expression and
protection of ethnic/religious/linguistic minority groups.
Concerning freedom of religion, the court sought to rely on the
jurisprudence of the international community, particularly the European
Commission and the European Court. The court reiterated that: in the event of a disagreement
over matters of doctrine or organisation between a religious community
and one of its members, the individual's freedom of religion is
exercised through his [or her] freedom to leave the community.
(At 78) The court reasoned that: the
fact that the appellants disagreed with the decisions to discontinue
the Samoan-speaking wards and to ban the use of the Samoan language in
public worship did not mean that their right to freedom of religion was
impaired. Rather, the appellants' right to freedom of religion was
preserved by their ability to leave the Church. (At 81)
This 'exit strategy' analysis is supported and justified by the view
that the autonomous existence of religious communities (i.e. the
churches) is indispensable for pluralism in a democratic society, and
is an issue at the very heart of the protection of freedom of religion.
In legal parlance, the individual church members who chose to enter a
particular church or religion might 'contract out' of their individual
freedoms. The 'exit strategy' would appear to be a well-reasoned
analysis, provided that the opportunity to leave a particular religious
community is a meaningful one. (At 84)
The As conflated their right to freedom of religion and worship with
their wish to worship in the Samoan language in a particular religious
group. The latter is not an entitlement, but rather is a preference
that the respondent had chosen to withdraw. The As had voluntarily
chosen to join the respondent, as members, and were free to leave it if
it failed to fulfil their expectations. They could not impose their
expectations on the respondent, as the decision to cease services in
the Samoan language was taken by those duly authorised within the
respondent to do so.
Religious
freedom – a parent's ability to make decision for their children
Conversion of children requires
the consent of both parents, in accordance with article 11 of the
Malaysian Federal Constitution, which upholds religious freedom, and
article 5, concerning freedom of life and personal liberty.
INDIRA
GANDHI A/P MUTHO v
PENGARAH JABATAN AGAMA ISLAM PERAK & ORS
| High
Court |
Ipoh,
Malaya, Malaysia |
| Ya Tuan Lee Swee
Seng, Judicial Commissioner |
Judicial Review No.:
25-10-2009 |
|
25 July 2013 |
Law(s) and/or
international instrument(s) considered
Malaysian Federal Constitution, art. 8(2), 11 and 12 (4)
Guardianship of Infants Act 1961, ss 5 and 11
Administration of the Religion of Islam (Perak) Enactment Act 2004 (the
Perak Enactment), ss 99,
100, 101 and 106(b)
Facts
The applicant (A) was the mother of three children, who, at the
material time, were aged, respectively, 12 years, 11 years, and 11
months. As a result of differences and arguments within the marriage,
the husband left the home, taking the youngest child with him. The
husband subsequently converted to Islam and also unilaterally decided
to convert the three children to the Islamic faith, and obtained
relevant official certificates for their conversion. A applied in the
High Court (HC), seeking to have the decision of the children's
conversion quashed. In a separate concurrent proceeding, A sought and
obtained custody of all three children.
Issue(s)
Whether the court has jurisdiction to adjudicate in this matter and
whether the conversion of a child to Islam by a converted parent
without the consent of the other non-converting parent has violated
Malaysian law and international norms and conventions.
Decision
The court dealt with the issue of jurisdiction in detail, and ruled
that it has jurisdiction to hear a constitutional challenge.
The court ruled that the conversion of the children to Islam by the
father alone was unconstitutional and was in violation of Malaysian law
and international norms.
The substantive part of the judgment dealt with a seemingly difficult
issue in relation to the fact that a relevant section of the Malaysian Federal Constitution
adopts the word 'parent' in its singular form. Article 12 of the
constitution provides for the rights in respect of education and,
relevantly, it provides that, 'the religion of a person under the age
of eighteen years shall be decided by his parent or guardian'
(emphasis added). In addition, it was argued on behalf of the husband
that the word 'parent' in the relevant section meant a single parent as
decided by the Court of Appeals (CA), which would bind the HC. In
effect, the CA had ruled that consent by a single parent for a child's
religious conversion did not violate article 8 of the constitution,
which sought to uphold equality before the law regardless of a person's
religion, race, descent, place of birth or gender. In discussing the
relevant parts of articles 8 and 12, the HC judge felt compelled to
follow the CA's decision, due to the doctrine of stare decisis, but
did so on an abundance of caution that the decision might not be the ratio decidendi but
rather obiter dicta.
The HC thus considered article 11 of the constitution, which sought to
uphold religious freedom. The HC considered that: the practice of one's religion
would include the teaching of the tenets of faith to one's children.
In support of its reasoning, the HC cited article 5 (freedom of life
and personal liberty) and considered that life include emotional,
intellectual and spiritual life, which included the right to... teach one's
religious beliefs to one's children. Further, it suggested
that personal liberty
also included freedom to
bring one's children to a place of worship or religious instruction.
(At p48) Based on this analysis, the HC ruled that the collective acts
of the respondents in authorising, affirming and confirming the
conversion of the minor children to Islam without the consent of their
mother was unconstitutional, illegal, null and void and of no effect.
The HC also ruled that as the Perak Enactment provided for some
technical requirements for a valid conversion, which the children did
not or could not comply with, the conversion was therefore invalid. The
HC declined to entertain the respondent's submissions that these
technical requirements had never been strictly complied with by other
minors as a matter of fact.
Similarly, the HC also declared the issuance of the conversion
certificates invalid, based on the principles of natural justice, on
the basis that the affected persons – i.e., the mother and children –
had never been given an opportunity to be heard on matters that
affected their interests.
Lastly, the HC considered international human rights instruments and
conventions (UDHR, CEDAW, CRC), as well as judicial principles
(Bangalore principles), and argued that, where there were two possible
interpretations of the word 'parent' in article 12(4) of the
constitution, the interpretation that best promoted Malaysia's
commitment to international norms and human rights was to be preferred.
(At p78) It seems unusual for the court to go through this analysis in
the latter part of the judgment, given that it considered itself bound
by the CA's decision on the earlier point.
Comment
The case is an interesting one in the context of Malaysia, a
multicultural country in which Islam is the state religion and exerts a
strong influence on daily life, which is balanced by a long history of
moderation and degree of secularism in public affairs. The balance of
the pendulum between the two strands has oscillated over time. This
decision is remarkable in its invalidation of the attempt of one parent
to convert his children to Islam without the consent of his wife. The
Islam authorities in the State of Perak would have taken a dim view of
this decision on two grounds: first, the decision circumvented the
decision of the father, in a largely patriarchal context; and second,
it invalidated the Islamic conversion of the children. The creative
manner in which the court resolved the matter in favour of A,
notwithstanding the binding precedent of a higher court, by relying on
alternative provisions of the Malaysian
Federal Constitution is also very encouraging.
Note: Despite the fact that the mother of the children obtained the
custodial orders and won this decision, due to lack of action by the
police and the complicated court system (Federal and Shariah law
courts) in Malaysia, she was not able to be reunited with her youngest
child until November 2014.
(See http://news.yahoo.com/malaysias-sharia-law-costs-non-muslims-kids
061705866.html; ylt=AwrSbmik7q5VBFkAYflXNyoA;
ylu=X3oDMTByb2lvbXVuBGNvbG8DZ3 ExBHBvcwMxBHZ0aWQDBHNlYwNzcg-- and http://www.malaysia-today.net/segregating-malaysia/)
TORTURE
Torture – CIA
rendition
Detention, interrogation,
ill-treatment, torture and the transfer to US custody contravened
articles 3, 5, 8 and 13 of the European Convention on Human Rights.
CASE
OF EL-MASRI v THE FORMER
YUGOSLAV REPUBLIC OF MACEDONIA
| European
Court of Human Rights (Grand Chamber) |
European
Union |
| Bratza P, Tulkens,
Casadevall, Spielmann, |
39630/09 |
| Vajic, Lorenzen,
Jungwiert, Lefevre, Hajiyev, |
13 December 2012 |
| Guerra, Bianku,
Karakas, Gaetano, Laffranque, |
|
| Scicilianos, Mose and
Keller JJ |
|
Law(s) and/or
international instrument(s) considered
Vienna Convention of Consular Relations 1963, article 36
International Covenant on Civil and Political Rights (ICCPR), articles
4, 7 and 9
International Convention for the Protection of All Persons from
Enforced Disappearance, articles 1, 2, 3 and 4
United Nations Office of the High Commissioner for Human Rights, Manual
on the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment – the Istanbul
Protocol, 1999
International Law Commission, 2001 Articles on Responsibility of
States for Internationally Wrongful Acts, articles 7, 14, 15 and 16
United Nations General Assembly, Report of the Special Rapporteur of
the Commission on Human Rights on the question of torture and other
cruel, inhuman or degrading treatment or punishment, 2 July 2002, UN
Doc. A/57/173
Parliamentary Assembly of the Council of Europe, Resolution 1433 (2005)
on lawfulness of detentions by the United States in Guantánamo Bay,
adopted on 26 April 2005
Parliamentary Assembly of the Council of Europe, Resolution 1463 (2005)
on enforced disappearances, adopted on 3 October 2005
United Nations General Assembly Resolution 60/148 on torture and other
cruel, inhuman or degrading treatment or punishment, adopted on 16
December 2005
European Commission for Democracy through Law (Venice Commission),
Opinion on the international legal obligations of Council of Europe
member states in respect of secret detention facilities and inter-state
transport of prisoners (no. 363/2005, 17 March 2006)
Report of the United Nations Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering
terrorism, 4 February 2009, UN Doc. A/HRC/10/3
United Nations Human Rights Council, Resolutions 9/11 and 12/12: Right
to the Truth, adopted on 18 September 2008 and 1October 2009,
respeectively
The European Convention on Human Rights, articles 3, 5, 8, 10 and 13
Guidelines of the Committee of Ministers of the Council of Europe on
eradicating impunity for serious human rights violations, 30 March
2011, The Constitution of 1991, The Criminal code, the Criminal
Procedure Act of 1997, The Obligations Act of the Former Yugoslav
Republic of Macedonia
Facts
This matter arose from the post 9/11 anti-terrorist operations mounted
by the United States government. The applicant (A) was a German
national who travelled by land to the Former Yugoslav Republic of
Macedonia on 31 December 2003, where he was detained by the Macedonian
authority.
A alleged, in
particular, that he had been subjected to a secret rendition operation,
namely that agents of the respondent State had arrested him, held him
incommunicado, questioned and ill-treated him, and handed him over at
Skopje Airport to agents of the US Central Intelligence Agency (CIA)
who had transferred him, on a special CIA-operated flight, to a CIA-run
secret detention facility in Afghanistan, where he had been ill-treated
for over four months. The alleged ordeal lasted between 31 December
2003 and 29 May 2004, when A returned to Germany. (At 3)
The allegations were the subject of investigations by the Parliamentary
Assembly of the Council of Europe (the Marty Inquiry) and the European
Parliament (the Fava Inquiry). A sought redress, unsuccessfully, in the
USA and Macedonian courts. He also sought redress in the German court,
resulting in arrest warrants issued against 13 CIA agents. A instituted
proceedings in the ECHR against his own country, the Former Yugoslavia
Republic of Macedonia (R).
Issue(s)
Whether R breached articles 3 (torture and ill-treatment), 5 (personal
liberty and rights while detained), 8 (right to respect for private and
family life), 10 (freedom of expression and right to truth) and 13
(right to effective remedy before a national authority) of the European Convention on Human
Rights (the Convention).
Decision
The court unanimously held that the respondent state had breached
articles 3, 5, 8 and 13 of the Convention by acts done to the applicant
while he was under their control, including transferring the applicant
into the custody of the US authorities. The court ordered non-pecuniary
damages of EUR 60,000 (plus any chargeable tax and interest) to be paid
to the applicant by the respondent state within three months. The court
otherwise dismissed the claim based on article 10.
Comment
In discussing the general principles applicable to the prohibition of
torture and other ill-treatment the court confirmed that: [u]nlike most of the substantive
clauses of the Convention, Article 3 makes no provision for exceptions
and no derogation from it is permissible under Article 15 § 2 even in
the event of a public emergency threatening the life of the nation (see
Selmouni v. France [GCJ, no. 25803/94, §
95, ECHR 1999-V, and Labita v. Italy [GCJ, no. 26772/95, §
119, ECHR 2000-IV). The Court has confirmed that even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture and
inhuman or degrading treatment or punishment, irrespective of the
conduct of the person concerned... (At 195)
The court also emphasised the special characteristic of torture, which
differed from other ill-treatment, in its severity of treatment and a
purposive element, as recognised in the UN Convention Against Torture,
which defined torture in terms of the 'intentional infliction of severe
pain or suffering with the aim, inter alia, of obtaining information,
inflicting punishment or intimidating'. (At 197)
Taking the evidence as a whole, the court considered that the transfer
of the applicant to the US authority (being characterised by the court
as an 'extraordinary rendition') was done knowingly exposing him to a
real risk of ill-treatment contrary to article 3 of the Convention. (At
215-222)
In assessing the evidence, the court adopted the standard of proof
'beyond reasonable doubt', but highlighted that its role was not to
rule on criminal or civil liability, but on contracting states'
responsibility under the Convention. Its task thereby influences its
approach to the issues of evidence and proof. There are no procedural
barriers to the admissibility of evidence or pre-determined formulae
for its assessment. According
to its established case-law, proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Moreover, the level of persuasion
necessary for reaching a particular conclusion and, in this connection,
the distribution of the burden of proof, are intrinsically linked to
the specificity of the facts, the nature of the allegation made and the
Convention right at stake. The
Court is also attentive to the seriousness that attaches to a ruling
that a Contracting State has violated fundamental rights.
(At 151)
More recent cases on the same subject matter (assisting CIA rendition)
have applied these principles, e.g., Case of Al Nashiri v Poland (Application
no. 28761/11) (24 July 2014).
The practice of extraordinary rendition is a modus operandi that has
been developed by some states as a response to the threat posed to
national and international security by terrorism, especially after
9/11. It involves the removal of suspects or wanted persons (for
whatever reason, but usually on the grounds of a threat to national
security) from the jurisdiction of a state to the jurisdiction of
another state or territory, where they may be interrogated unimpeded,
through the lack of adherence of some states to human rights standards
prescribed by national law and/or international human rights
instruments. This situation has seen states tacitly justifying the most
heinous of acts in the interests of national security and the security
and wellbeing of their citizens.
VIOLENCE AGAINST
WOMEN
Domestic
violence –
state's responsibility
A state has a positive duty to
prevent domestic violence and protect women and children, which
includes an effective investigation mechanism.
CASE
OF EREMIA v THE REPUBLIC OF
MOLDOVA
| European
Court of Human Rights |
European
Union |
| Casadevall,
President, Gyulumyan, Bîrsan, Šikuta, |
3564/11 |
| Guerra, Tsotsoria and
Griţco JJ |
28 May 2013 |
Law(s) and/or
international instrument(s) considered
Moldova Criminal Code, article 59 (conditional release from criminal
liability) and article 201 (family violence)
Moldova Domestic Violence (Combat and Protection) Act 2007, s. 15
(protective measures)
European Convention on Human Rights, article 3 (torture and
ill-treatment), article 8 (respect for private life), article 14
(discrimination based on gender) and article 17 (destruction of
recognised rights and freedom)
Facts
The applicants were two teenage daughters and their mother (first
applicant). The first applicant (A1) complained that the Moldovan
government failed in its positive duties of protection of her and her
daughters from the ill-treatment perpetrated by her husband, who was a
police officer. The incidents (during the period 2 July 2010 – when A1
petitioned for divorce – and 14 April 2011) included physical violence
as well as threats and verbal abuse, mainly directed at the first
applicant. The two teenage daughters had also been subjected to verbal
abuse and had also been psychologically affected by witnessing various
abuses committed by their father against the mother. The alleged abuses
were reported to the police in the first instances, and investigation
ensued, resulting in a protection order being issued and a monetary
fine being issued against the husband. However, in the subsequent
period, A1 continued to suffer abuse by the husband, who had breached
the protection order, and the police had been informed. The police
nevertheless suspended the criminal investigation, with a warning to
the husband that the investigation would resume if further breaches
occurred. In addition, the police pressured A1 to drop the criminal
complaints. The government welfare agency also pressured A1 to
reconcile with her husband. None of the facts were in dispute, save for
one matter, concerning the allegation issue of the husband returning
home and remaining for a couple of weeks, during which time abuses
occurred. There was no dispute about his returning home or the abuses,
but the police alleged that A1 had agreed to the husband's return,
which she denied. As the government did not provide any evidence of
such consent, the court ruled on the basis that the husband's return
home was not agreed to by A1.
Issue(s)
Whether the Moldovan government has breached its obligations under
articles 3, 8, 14 and 17 of the
European Convention on Human Rights.
Decision
The European Court of Human Rights (ECHR) unanimously held that the
Moldovan government failed in its positive obligation under articles 3
and 14, in respect of A1. The court also found that the state failed in
its obligations under article 8, to protect A1's children. The court
ordered non-pecuniary damages of EUR 15,000, and legal costs.
Comment
Moldova is a European country, which has a high rate of gender-based
violence. Forty-one per cent of women have encountered some form of
violence within the family during their lifetime (according to a 2005
survey, quoted by a UN Special Rapporteur who visited Moldova in 2008),
and 73.4 per cent of the perpetrators were the victims' husbands or
former husbands. (At 37)
This case is significant in that, notwithstanding the existence of
national legislation, the court will look at what the contracting state
did to guarantee practical and effective rights (rather than those that
are merely theoretical or illusory) in order for the state to discharge
its Convention obligations. The court rejected the state's claim that
authorities had taken all reasonable measures to protect the first
applicant from the risk of violence and to prevent such violence from
recurring. 'Effective investigation' is one of these measures, when
ill-treatment has been alleged to have been inflicted on an individual,
even if it was inflicted by private individuals. For the investigation to be
regarded as 'effective', it should in principle be capable of leading
to the establishment of the facts of the case and to the identification
and punishment of those responsible. This is not an obligation of
result, but one of means. In cases under Articles 2 and 3 of the
Convention where the effectiveness of the official investigation has
been at issue, the Court has often assessed whether the authorities
reacted promptly to the complaints at the relevant time. Consideration
has been given to the opening of investigations, delays in taking
statements and to the length of time taken for the initial
investigation. (At 51)
A similar approach was adopted by subsequent decisions: Case of T.M. and C.M. v the
Republic of Moldova (Application no. 26608/11, 28 Jan
2014)
The principles of 'effective investigation' adopted by the ECHR in
relation to ill-treatment complaints made by domestic violence victims
provide a template for Pacific Island countries, in which family
protection legislation has already been enacted. Family and domestic
violence is more insidious than generalised violence because it is more
frequent and is often sanctioned by cultural and religious practice.
The ECHR was emphatic about the special vulnerability of victims of
domestic violence, and the state's positive obligation to protect them
from being ill-treated. The outcome of this case demonstrated that a
regional mechanism, such as a Pacific Human Rights Commission or
Tribunal, may strengthen the protection guaranteed under respective
national legislation.
PART
III: CASES DEALING WITH SEXUAL AND REPRODUCTIVE HEALTH
AND RIGHTS (SRHR) AND REFUGEE MATTERS
SEXUAL AND REPRODUCTIVE
HEALTH AND RIGHTS
SRHR –
abortion – sentencing
Whether the Convention on the
Rights of the Child and Convention on the Elimination of All Forms of
Discrimination Against Women ought to be considered in sentencing.
POLICE
v APELU
Law(s) and/or
international instrument(s) considered
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)
Convention on the Rights of the Child (CRC)
Crimes Ordinance 1961
Facts
The defendant (D) pleaded guilty to one count of procuring an abortion,
and came before the court for sentencing. A women inmate at Tafaigata
Prison (W) who was two-months pregnant asked D to abort the foetus. The
procedure was carried out by D using a duck speculum and uterine sound
instrument while W was on weekend parole. Soon after W returned to the
prison she was rushed to hospital complaining of severe labour pains.
At the hospital, W delivered a live, premature female infant weighing
760 grams. The baby died of respiratory failure as a result of extreme
prematurity and neonatal sepsis. The medical report in the matter
stated that the instruments used by D had infected W's uterus and had
induced the labour. D was originally charged, among numerous counts,
with manslaughter, but these charges were withdrawn on trial day when D
pleaded guilty to one count of procuring an abortion.
Issue(s)
What should be the appropriate sentence?
Decision
D was sentenced to five-and-a-half years in prison for the offence of
procuring an abortion. Earlier, in 2004, in relation to different
conduct giving rise to the same offence of procuring an abortion, D had
been sentenced to three-and-a-half years' imprisonment. The sentencing
judge in the present case considered D's previous record of recent
convictions as aggravating factors. While the maximum sentence for this
offence is seven years, the court considered it warranted a starting
point of six-and-a¬half years. The only mitigating factor in D's favour
was her guilty plea, which avoided the necessity of a full trial, for
which 12 months was deducted from her sentence.
Comment
The decision made by the court reflects the conflict between culture
and human rights, and how cultural and religious factors in the Pacific
take precedence, despite treaty ratification of key human rights
conventions. It would have been interesting to see the court balance
affirmative obligations under the CRC and CEDAW, and whether this would
have had any effect on sentencing. Regardless, the fact that Samoa
continues to criminalise abortion after ratifying those conventions
evinces clear legislative intention that abortion be criminalised, in
the absence of parliament domesticating CEDAW through specific
legislation.
The judge was clear in the primacy of parliament's intention: This country through its elected
representatives namely Parliament has chosen to take a pro-life stand
and have legislated against abortion except when it is necessary to
preserve the life of the mother: see section 73 (3) of the Crimes
Ordinance as recognised
by this court in Police v Apelu [2004] WSSC 8. Parliament having enacted that
law the courts [sic] duty
is beyond question, it is required to enforce the laws of the land. The
rightness, wrongness or morality of such a law is debated in the
building next door, not in this one.
Nonetheless, those considerations did not preclude the court from
taking CEDAW into account for the purposes of sentencing. While
parliament had enacted the law criminalising abortion and specifying
sanctions, it reserved to the courts the latitude to impose lesser
sentences than those prescribed. However, given the previous conviction
of D, and the court's reference to Christian values and the sanctity of
life, it appears that there was a clear determination on behalf of the
court to impose a deterrent sentence. The tenor of the court's remarks
would, most likely, resonate throughout the Pacific, because of the
strength of traditional and religious values.
SRHR
–
discrimination – child custody – relevance of a parent's sexuality
Examination of judicial
proceedings and whether the Chilean courts had breached the American
Convention on Human Rights.
CASE OF
ATALA RIFFO AND DAUGHTERS
v CHILE
| Inter-American
Court of Human Rights |
Organisation
of
America States |
| Garcia Sayan P,
Ventura Robles VP, |
Series C, No. 239 |
| Franco, Macaulay,
Abeu Blondet and Perez Perez JJ |
24 February 2012 |
Law(s) and/or
international instrument(s) considered
American Convention on Human Rights (the Convention), articles 1, 8,
11, 17 and 25
Facts
The complainant, Ms Karen Atala Riffo (C), made a complaint to the
Inter-American Commission on Human Rights (which subsequently referred
the matter to the Inter-American Court of Human Rights [IACHR]), in
relation to the decisions made by the Chilean judiciary in a child
custody proceeding between herself and her husband and the manner in
which C was dealt with by the Chilean judiciary.
C separated from her husband in March 2002 and, by agreement, it was
arranged that their three children (girls, born in 1994, 98 and 99)
would live with C. On 14 January 2003 the husband filed child custodial
proceeding in the Juvenile Court (JC) after he became aware that C had
a cohabiting same-sex partner living with their children. As C was a
Chilean court judge, the litigation prompted media coverage and C's
same-sex relationship was reported. Consequently, the husband sought an
interim order seeking to have the children live with him, pending the
outcome of the substantive proceeding. The judiciary also carried out
an investigation on C in relation to her reported sexual orientation
and unrelated alleged professional misconduct. The interim order was
granted and the children were removed from the mother, C, to live with
their father. On 29 October 2003 the Juvenile Court ruled in favour of
C, but the husband sought an appeal in the Court of Appeals (CA), along
with an application for a temporary injunction preventing the return of
the children to C. The temporary injunction was granted by the CA. C
made a complaint to the Supreme Court (SC) against two judges of the CA
who had heard the temporary injunction application. The SC dismissed
the complaint. On 30 March 2004 the CA (in the absence of the two
challenged judges) upheld the Juvenile Court's decision in favour of C,
but the husband immediately applied for a remedy of complaint (recurso
de queja)4 in the
SC and an interim injunction preventing the return of
the children to C. On 7 April 2004 the CA granted the injunction to the
husband. On 31 May 2004 the SC (by 3:2 majority) granted the remedy of
complaint in favour of the husband, and awarded permanent custody to
the husband.
In the Juvenile Court the husband alleged that C's sexuality and
cohabiting with a lesbian partner would disqualify her as a suitable
mother to care for the children. In particular, he alleged that
children living in that environment would be subjected to distorted
view of a normal family and would expose themselves to physical harm
(sexually transmitted illness – STI) and psychological harm
(potentially experiencing social discrimination based on the mother's
sexuality and the family structure). (See par. 31) The JC rejected the
husband's argument and restored custody of the children to C.
The CA endorsed the JC's view, which had held that: the existing evidence had established that
the respondent's sexual orientation was not an impediment to carrying
out responsible motherhood, that
there was no psychiatric pathology that would prevent her from
exercising her 'role as a mother', and that there were no indications
that would allow for the presumption of any grounds for incapacity on
the part of the mother to take on the personal care of the minors.
The JC also held that there was no evidence to show that the children
would be at risk of contracting any STI or suffering other harm
including potential discrimination due to the mother's sexuality and
choice of lifestyle. (See paras 44– 49 and52)
The husband argued before the SC that: the judges being challenged had
committed a 'fault and serious and flagrant abuse' because; i) they
[had] given preference
to the rights of the mother over the rights of the daughters; ii) they
[had] failed in their
legal duty to protect the vulnerability of the girls; and iii) they
[had] violated the
principles governing the conscientious assessment of evidence in cases
involving family matters. More specifically, [the husband]
argued that the judges
had ignored all the evidence in the case demonstrating that “open
expression of lesbian behavior produced directly and immediately in M.,
V., and R. confusion regarding sexual roles that interfered with and [would]
later interfere with the
development of a clear and defined sexual identity. (See
par. 53; footnotes omitted) The SC accepted the husband's complaint
based on the principle of the best interests of the child, and
pronounced that the lower courts failed to recognise the deteriorating
environment of the children, since their mother had made her lifestyle
choice and had failed to consider the potential social discrimination
the children might face, and had failed to consider the perception of
people close to the children, in relation to the mother's same-sex
relationship. (See paras 55–57, 97 and 113)
Issue(s)
Whether the way in which the Chilean judiciary handled the proceedings
and the judicial investigation about C had violated the American Convention on Human
Rights.
Decision
The IACHR considered that rights of sexual orientation were protected
under the Convention and that any restriction on these rights had to be
legitimate, necessary and proportional. While the protection of the
best interests of a child is a legitimate goal, the judgments in the SC
and in the provisional decision of the JC indicated that these courts
based their decisions on inadmissible considerations to the detriment
of C. The courts also failed to show causality between the alleged harm
of the children and C's alleged behaviour. Rather, the courts justified
their decisions on abstract, speculative and stereotyped conceptions of
the alleged harm to the children. The courts therefore violated C's
rights under article 24 of the Convention, in conjunction with article
1(1). (See paras 107–146) Consequently, the IACHR also found that the
decisions discriminated against the children based on their mother's
sexual orientation in violation of article 24 of the Convention, in
conjunction with articles 19 and 1(1).
The IACHR also considered other aspects of violation, and upheld C's
complaints in relation to the violation of her rights of private life
and family life (under articles 11(1) and 17(1) of the Convention), but
rejected her claims based on rights to judicial protection and
guarantee (articles 8 and 25).
In relation to C's complaints based on the judiciary's investigation of
C, the IACHR upheld C's claims of violation regarding her rights to
equality, private life and judicial protection and guarantee.
The IACHR ordered the state to publish the judgment, to acknowledge
responsibility and to publicly apologise to C, and to pay pecuniary and
non-pecuniary compensations to C and her children. The IACHR also asked
Chile to put in place training and education plans for the judiciary
and public officials in order to uphold the protected rights.
Comment
The IACHR held that a parent's sexual orientation should not be
admissible as a consideration in custodial proceedings in a
discriminatory way to the detriment of the complainant. It also
considered the principle of best interests of a child in relation to
the consideration of the restriction of a protected right on the
child's parents. It held that
the argument that the child's best interest might be affected by the
risk of rejection by society, the Court considers that potential social
stigma due to the mother or father's sexual orientation cannot be
considered as a valid 'harm' for the purposes of determining the
child's best interest. The IACHR went further, saying
that: If the judges who
analyze such cases confirm the existence of social discrimination, it
is completely inadmissible to legitimize that discrimination with the
argument of protecting the child's best interest. (At par.
121)
The IACHR appeared to have come to this view on good policy grounds. It
was of the view that: States
cannot use this as justification to perpetuate discriminatory
treatments. States are internationally compelled to adopt the measures
necessary 'to make effective' the rights established in the
Convention... and therefore must be inclined, precisely, to confront
intolerant and discriminatory expressions in order to prevent exclusion
or the denial of a specific status. (At par. 119) The
IACHR illustrated the point by noting that social, cultural and
institutional changes are taking place in contemporary society, where
interracial couples, single mothers or fathers and divorced couples are
much better received by the public then they once were. States must
help to promote social progress and refrain from the grave risk of
legitimising and consolidating various forms of discrimination against
human rights. (See par. 120)
The conduct of members of the Chilean judiciary, and their concerted
attempts to impugn C's attempts to gain custody of her children because
of her life style choices reflects the challenges faced in the
continuing struggle to ensure all sections of society are able to
exercise their human rights to the fullest extent possible. C's
sexuality became the central issue, rather than her ability to be a
responsible, loving parent to her children. The judges who ruled
against C became mired in a plethora of dubious argumentation about her
seeming unsuitability because she was in a same-sex relationship. The
case also needs to be understood in the context of a 'machismo' culture
prevalent in Latin America. C's decision to enter into a same-sex
relationship would have affronted her husband far more than had she
taken up with another man. The husband's determination to pursue the
custody issue to Chile's highest appellate court, coupled with C's
genuine sense of grievance at the way in which her colleagues had dealt
with her, underscores the challenges faced in the continuing struggle
to ensure all sections of society are able to exercise their human
rights to the fullest extent possible, especially in a 'machismo'
culture.
This decision appeared to have a significant impact in Chile, paving
the way for law reform in recognising non-discriminatory treatment
based on gender and sexual orientation. See http://www.washingtonblade.com/2014/12/08/sex-marriage-bill-introduced-chile/
.
SRHR
– health
– sterilisation of pregnant HIV patients – consent
Pregnant women under labour pain
were not capable of providing the required informed consent before
sterilisation procedures were carried out on them. No evidence was
induced that was capable of showing that their HIV status was the
reason for the sterilisation procedures.
GOVERNMENT
OF THE REPUBLIC OF
NAMIBIA v LM, MI AND NH
| Supreme
Court |
Namibia |
| Shivute CJ, Maritz
and Mainga JJ |
Case No. SA 49/2012 |
|
3 November 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Namibia (NC)
Facts
The three respondents (Rs), all female Namibians, were each sterilised
by way of a surgical procedure known as bilateral tubal ligation, at
two state hospitals, on different occasions between 2005 and 2007. All
of the Rs had positive HIV statuses. The sterilisation was performed at
the same time as caesarean operations for each of the women. Evidence
adduced disclosed that all Rs had signed a consent form prior to the
sterilisation operation. The Rs instituted proceedings against the
government seeking compensation based on wrongful sterilisation without
consent and violation of their constitutional rights. The Rs also
alleged discrimination on the basis of their HIV status. The court at
first instance ruled for the Rs on the point of consent, and the state
appealed.
Issue(s)
1. Whether the government medical practitioners, in performing this
surgical sterilisation procedure on the three respondents, had done so
without their informed consent.
2. Alternatively, whether the signed consent forms satisfied the
requirement of informed consent for the sterilisation operations under
the circumstances.
3. Whether the alleged wrongful act amounted to discrimination and
violation of the Rs' constitutional rights.
Decision
The Supreme Court held that the Rs did not give informed consent,
because they were each in varying stages of labour. Therefore they did
not fully and rationally comprehend the consequences of providing
consent for the sterilisation procedure. The fact that none of the Rs
made any appointment or booking to confirm their intention to be
sterilised before going into labour negates the fulfilment of informed
consent.
The appeal in respect of each of the respondents was dismissed and the
matter was referred to the High Court for determination of the quantum
of damages payable by the appellant.
Comment
This case is important authority on the application of the right to
health in the Namibian context, particularly in the area of sexual and
reproductive health and rights.
The Bill of Rights in the Constitution
of Namibian makes provision for the right to liberty to be
protected, under art. 7, the right to a family, which is guaranteed
under art. 14, and the right to human dignity, under art. 8.
The argument that a wrongful and unlawful practice of discrimination on
the basis of the HIV positive status was committed by government
medical practitioners against the Rs was rejected, as the High Court
was unable to find any credible evidence to support the second limb of
the Rs' claim. To succeed on this ground the Rs would have to prove
that the government medical practitioners performed the sterilisation
procedure because of their HIV positive status, and did not perform
this procedure on women who did not have HIV positive status.
Informed consent involved knowledge, apprehension and consent. Under
the circumstances, the respondents did not have the capacity to
apprehend the consequence of the operation. A non-reversible operation
of this kind placed the onus on the medical practitioners to ensure
that the respondents had the capacity to apprehend the consequence, and
when they were in labour, and severe pain, they were considered as not
having that capacity. (See paras 96–108)
The Supreme Court also made observations about the modern human rights
approach to patients' rights and self-determination with respect to
medical paternalism, and was critical of the medical professionals in
this case. However, the court commented from the outset that there was
no evidence to entertain any claim of discrimination based on the
respondents' HIV status.
SRHR
–
discrimination – employment – pregnancy – redundancy
Employer made pregnant employee's
position redundant after approving her maternity leave.
STANLEY
v SERVICE TO YOUTH
COUNCIL INCORPORATED
| Federal
Court |
Australia |
| White J |
[2014] FCA 643 |
|
20 June 2014 |
Law(s) and/or
international instrument(s) considered
Sex Discrimination Act 1984 (SDA), ss 14 and 28B
Fair Work Act 2009 (FWA), s. 44
Facts
The applicant (A) commenced working at the Service To Youth Council
Incorporated (SYC, a youth support non-governmental organisation) – the
defendant (D) – in November 2009. In February 2011 A informed her
immediate manager of her intention to take 12 months' maternity leave,
commencing closer to the due date of birth. She commenced her leave in
August 2011. In early 2012 A contacted her manager and proposed to
return to work earlier than previously arranged, with different work
arrangement proposals. Following a formal meeting between the parties,
D informed A that A's position had been made redundant and her
employment was terminated.
A complained that, since revealing her pregnancy, SYC's management had
engaged in actions intended to lead to her removal from the
organisation. A also alleged that the comment made by a senior manager
that 'she should not make a “hasty” commitment to a return to work
because she may decide later that she would like more time off, or not
to return to work at all' was in violation of sexual harassment
legislation (s. 28B of the SDA).
A also alleged that D's decision to make her position redundant was in
violation of the provisions of the SDA (i.e., discrimination in
employment on the grounds of a person's sex, pregnancy or family
responsibilities) and the FWA (i.e., statutory duties to respond to the
employee's request within a specified time limit and duties to
consult).
Issue(s)
1. Did the senior manager's comment fall within the ambit of sexual
harassment?
2. Did D's act to make A's position redundant and to retrench A, under
the circumstances, amount to discrimination in employment based on A's
sex, pregnancy or family responsibilities?
3. Did D breach the relevant provisions of the Fair Work Act?
Decision
The Federal Court considered the history of the alleged incidents,
including evidentiary issues (see also Stanley v Service to Youth
Council Incorporated (No 2) [2014] FCA 644 (20 June 2014)), and held
that A failed to make out her case in relation to sexual harassment and
sex discrimination. However, the court upheld a complaint in relation
to D's failure to respond to A's request for different work
arrangements, according to the legal requirement under the FWA, and
ordered damages of A$4,500 to be paid to A.
Comment
In relation to the sexual harassment allegation, the court was of the
view that: [the] statements
to the applicant about her decisions in relation to a return to work
cannot reasonably be characterised as 'conduct of a sexual nature' in
relation to the applicant. Those comments did not involve or evidence
sexual attraction, instinct, activity or relationships. Instead, they
appear to be in the nature of a well-intentioned, if unsolicited,
suggestion to the applicant concerning her own interests. Even if from
the applicant's perspective the suggestion was gratuitous and unwanted,
it was not conduct of a sexual nature. (At 88)
In relation to the allegation of discrimination in employment based on
sex, pregnancy and family responsibilities, the applicant relied on
circumstantial evidence of incidents that occurred during a period of
12 months from before the applicant's maternity leave until the
termination of her employment. On the evidence presented, the defendant
did not target the applicant. The way in which the defendant treated
the applicant was not less favourable than how it would have treated an
employee who was not pregnant or without family responsibilities but
who had similar skills and experience, and who took 12 months' leave
with the defendant's consent, and had an equivalent entitlement to
return to work. The judge appeared to accept that the applicant had
suffered some disadvantage due to her absence from work, but took the
view that this disadvantage would have been suffered by the
hypothetical employee, as a result of their absence from work but not
by virtue of the reason for the absence (in this case pregnancy). For
this reason, the applicant did not establish disadvantageous treatment
for a proscribed reason. (At 133)
While the legal test for discrimination cases requires a comparison of
treatment to a hypothetical person without the characteristics of the
proscribed elements but under the similar situation, the fact that an
employer appeared to have taken advantage (apparently on two separate
occasions – see below) of the opportunity to restructure the
organisation and to make employees' positions redundant during their
approved absence would seem to have gone against the legislative intent
in relation to protecting employees who are pregnant or have family
responsibilities.
The judgment in a strikingly similar case was delivered by the same
court on the same date, with the same defendant, involving another
pregnant employee, who was made redundant in 2010 during her maternity
leave. The application, based on discrimination, was similarly
dismissed. See Poppy v
Service to Youth Council Incorporated [2014] FCA 656 (20
June 2014).
SRHR –
specification of gender – male/female dichotomy
Whether a person's choice not to
specify a male/female gender declaration in a registration certificate
is permitted under the legislation.
NSW
REGISTRAR OF BIRTHS, DEATHS
AND MARRIAGES v NORRIE
| High
Court |
Australia |
| French CJ, Hayne,
Kiefel, Bell and Keane JJ |
[2014] HCA 11 |
|
2 April 2014 |
Law(s) and/or
international instrument(s) considered
Births, Deaths and Marriages Registration Act (NSW) 1995
Facts
The appellant (A) underwent a sex affirmation procedure in 1989, in
Scotland ,where she was born with a male reproductive organ. A later
became an Australian resident. In November 2009 A applied for a
registration of change of sex under the NSW Births, Deaths and Marriages
Registration Act, seeking to have her sex registered as
'non-specific'. In February 2010 the NSW Registrar of Births, Deaths
and Marriages approved A's application and provided her with the
relevant certificates registering her sex as 'not specified'. The
Registrar later informed the appellant that the change of sex
certificate was invalid. A sought review of the decision at the NSW
Administrative Decisions Tribunal (ADT).
The ADT found that it was not open to the Registrar to register A's sex
as 'non-specific'. The ADT proceeded on the basis that: the Act is predicated on an
assumption that all people can be classified into two distinct and
plainly identifiable sexes, male and female ... [T]he Registrar does not have the
power under section 32DC of the Act to register a change of sex by a
person to 'Non specific'. The appeal panel of the ADT
dismissed an appeal.
The NSW Court of Appeal upheld the appellant's appeal, holding that it
was open to the Registrar to consider registering change of sex beyond
the male or female categories, and ordered the ADT to reconsider the
matter according to the submitted facts. The Registrar appealed the
decision to the High Court.
Issue(s)
Whether it is open to the Registrar to register a person's sex as
'non-specific' under the relevant NSW legislation.
Decision
The High Court held that it was open to the Registrar to register the
category of sex as 'non-specific', based on bona fide evidence.
Comment
While the decision was largely about the interpretation of a specific
statute, the High Court recognised that the sex of a person is not
unequivocally male or female in every case. The indeterminate nature of
a person's sex in some cases has support, both under the relevant
legislation and in case law (AB
v Western Australia [2011] HCA 42 (6 October 2011)). Based
largely on this recognition of the potential for indeterminate sex, the
court set out to interpret the relevant legislation, and pronounced
that the law does allow the NSW Births, Deaths and Marriages Registrar
to consider registering a person whose sex is non-specific.
However, the court rejected the NSW Court of Appeal's ruling that it
was open to the Registrar to consider sex categories such as 'intersex'
or 'transgender'. The High Court said that it was unnecessary for the
court to consider that issue, and that consideration of these further
categories of sex went too far.
The significance of this High Court decision appears to be that it
reaffirms the court's previous view that a person's sex or gender does
not necessarily fall within the male-female binary. It also further
diminishes the traditional view (based on the English case of Corbett v Corbett,
decided in the early 1970s), advanced by most religious groups, that a
person's sex or gender is purely a matter of biology (the chromosomal,
gonadal and genital tests). As legislation increasingly recognises
gender reassigned persons, and case law follows suit in gradually
recognising the fluidity of gender issues, these developments may pave
the way in the not-too-distant future for greater equality for
otherwise marginalised members of the community.
One argument advanced by the Registrar was that allowing a
'non-specific' sex registration would create unacceptable confusion.
The High Court rejected this argument, because the argument was not
supported by facts. The Registrar was not able to identify any
particular statute which could not be construed to operate as intended
in respect of a person whose sex was recorded in the register as
'non¬specific'.
REFUGEES
Asylum
seeker
– liberty – unlawful detention
Asylum seekers transferred from
Australia to Nauru failed in their action against being detained.
AG v SECRETARY OF
JUSTICE
| Supreme
Court |
Nauru |
| Von Doussa and Ward JJ |
[2013] NRSC 10 |
|
18 June 2013 |
Law(s) and/or
international instrument(s) considered
Constitution of Nauru (CN)
Immigration Act 1999
Immigration Regulations
2013
Refugee Convention Act of 2012
Asylum Seekers (Regional Processing Centre) Act 2012
Criminal Proceedings Act
Facts
The applicants (As) arrived at Christmas Island, Australia, as offshore
entry persons on or about 1 September 2012, and on 24 September 2012
they were brought to Nauru on an aircraft against their will. On their
arrival in Nauru, the As were granted entry permits, called Australian
Regional Processing Visa (RPV), issued under the Immigration Act 1999.
The application for the relevant visa was not made by the As because
the Immigration
Regulations 2013 provided that an application for the RPV
may only be made by an officer of the Commonwealth of Australia.
The visa was issued for the purpose of making a refugee status
determination for the visa holder. One of the visa conditions was that
the holder must reside in specified premises, in this case, the
Regional Processing Centre (RPC). The detainees were organised to take
part in occasional excursions outside the detention centre, involving
surveillance and control. The As' freedom to move around had been
restricted, within the confines of the RPC, with constant monitoring by
security personnel.
The As sought an order for their release from the RPC, alleging that
they were unlawfully detained.
Issue(s)
Whether the As had been unlawfully detained.
Decision
The application was dismissed.
The Supreme Court held that the As were 'detained' within the meaning
of art. 5(1)(h) of the CN. However, the detention was authorised by the
Immigration Act 1999
and the Immigration
Regulations 2013, such that the detention was lawful under
art. 5(1) of the CN.
Comment
The Supreme Court rejected the respondent's (the Secretary of Justice
of Nauru's) submissions that were based on the arguments that a
restriction that compels where asylum seekers must reside, as one of
the temporary visa conditions, was not detention prohibited under the
CN. Instead the court accepted that it was detention regardless of the
fact that the asylum seekers could choose to leave
Part III: SRHR and refugee cases 130
Nauru at any time. The issue was whether the detention was lawful, as
opposed to being arbitrary. After comparing the wordings of the
relevant exceptions to the constitutional prohibitions between the CN
and the European Bill
of Rights, the court came to the view that the Nauruan
subsidiary legislation authorising the detention was lawful and allowed
by the CN. The court's decision was also influenced by the temporary
nature of the asylum seekers' stay in Nauru, under the agreement
between the Australian and Nauruan governments. Asylum seekers who were
transferred to Nauru were never intended to be resettled in Nauru, even
if they were accepted as being refugees. Apparently the Australian
Human Rights Commission has a different view in relation to children
asylum seekers kept in detention in Nauru. On November 2014 the
Australian Human Rights Commission published the report 'The Forgotten
Children', which assesses evidence of the impact of prolonged detention
on children and sets out that the indefinite periods of detention with
no pathway to protection or settlement of children, including 186
children in Nauru, constitutes deprivation of personal liberty.
The issue of asylum seekers is vexed, in which human rights and
political realities collide.
The suggestion that protective custody may be warranted may create
problems in the human rights context, because detention, as a condition
of asylum seekers' interim placement, is premised on their uncertain
status (not a refugee until assessed to be so), and is designed as a
temporary measure. Once asylum seekers have been assessed as refugees
they should be released into the community pending resettlement. Those
who are assessed as not being refugees (whether stateless or not) will
continue to be detained pending removal, which begs the question as to
the character of their detention while they continue to be held in
'protective detention' without any realistic prospects for resettlement
in third countries.
On a separate issue, segregation by means of detention raises serious
concerns from a human rights perspective, because those detained have
committed no crime and are entitled to the presumption of innocence.
The fact that the Government of Nauru took a policy decision to
accommodate the regional refugee processing centre also mitigates
arguments (such as security and health) justifying mandatory detention.
Asylum
seeker
– liberty – locus standi (standing) to institute proceedings
Whether a politician has
sufficient public interest to institute a court action in relation to
detained asylum seekers.
NAMAH
v PATO
| Supreme
Court of Justice |
Papua
New Guinea |
| Salika DCJ, Sakora,
Kandakasi, Cannings and |
[2014] PGSC 1 |
| Poole JJ |
29 January 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of PNG (CPNG), ss 18(1) and 42(1)
PNG Supreme Court Rules 2012
Facts
The PNG opposition leader, Belden Norman Namah (MP) (the applicant, A)
sought to challenge the constitutionality of the arrangements between
the governments of Australia and Papua New Guinea (PNG) in relation to
the agreement and purported transfer of asylum seekers (transferees) in
Australia to PNG for refugee status processing pursuant to s. 18(1) of
the CPNG. A argued that the arrangement was unconstitutional, as the
transferees' personal liberty, protected under s. 42(1) of the CPNG,
would be breached. Under the Supreme
Court Rules 2012, a challenge instituted under s. 18(1),
relating to the Supreme Court's exclusive original jurisdiction in
interpreting the constitution, requires the court to declare that A has
standing before the substantive matter can be heard. The PNG government
argued that MP did not have any personal interest in the matter and
therefore did not have standing. It alleged the challenge was for an
ulterior political motive to embarrass the incumbent government.
Issue(s)
Whether A has standing in the substantive application.
Decision
The court unanimously held that A had standing to make the application,
and granted the declaration.
Comment
The court relied on the principles of standing formulated in its
earlier decision in Re
Petition of MT Somare [1981] PNGLR 265 (Somare), which laid
down the following criteria: a) the applicant has a sufficient personal
interest in the matter or has a genuine concern as a citizen or as the
holder of a public office; b) the application raised significant (not
trivial, vexatious, hypothetical or irrelevant) constitutional issues;
c) the applicant is not a mere busybody, and the application is not for
some improper motive; and d) the fact that other ways exist in
determining the constitutional issue by the court does not deny
standing.
The court rejected the PNG government's attempt to limit the ambit of
this earlier decision in the government's submission that Somare only applied
in situations where the challenge was to the exercise of legislative
power by parliament. The applicable principles made no distinction as
to whether the challenge was to legislative, executive or judicial
powers. The court further elaborated that the contested nature of the
factual issue had little bearing on the question of standing.
Importantly, the court confirmed that what lay at the heart of Somare was that a citizen will be presumed
to have standing, provided he or she can demonstrate a genuine concern
for the constitutional issues raised.
In relation to the allegation of improper motive on the part of the
applicant to run this case for political reasons (to show that the
government was incompetent), the court observed that: Politics is an integral part of
parliamentary democracy, which is the system of Government that the
People of Papua New Guinea have entrenched in their Constitution.
(At 53) Therefore, A was not a busybody and was not acting for any
improper motive. The essence of the decision is that a liberal
interpretation will be adopted in relation to applicants seeking to
challenge the exercise of legislative, executive or judicial powers, as
long as the applicant can establish a proper motive and either a
sufficient personal or public interest in the matter.
Asylum
seeker
– inquiries initiated by the court under the constitution in relation
to human rights issues – allegation of bias
Whether the process adopted under
the relevant provision of the Constitution of Papua New Guinea was
tainted by bias and was a breach of the rules of natural justice.
STATE
v TRANSFEREE
| Supreme
Court of Justice |
Papua New Guinea |
| Makail J |
[2014] PGSC 23 |
|
2 June 2014 |
Law(s) and/or
international instrument(s) considered
Constitution of Papua New Guinea (CPNG), s. 57(1)
Facts
Judge Cannings of the National Court initiated an inquiry under section
57(1) of the CPNG, which provides for the court to act on its own
initiative for the protection and enforceability of the rights and
freedoms in the constitution. The inquiry was in relation to
allegations of breaches of human rights of asylum seekers detained on
Manus Island. Section 57(1) of the CPNG provides:
57. ENFORCEMENT OF
GUARANTEED RIGHTS AND FREEDOMS.
(1) A right or freedom referred to in this Division shall be protected
by, and is enforceable in, the Supreme Court or the National Court or
any other court prescribed for the purpose by an Act of the Parliament,
either on its own initiative or on application by any person who has an
interest in its protection and enforcement, or in the case of a person
who is, in the opinion of the court, unable fully and freely to
exercise his rights under this section by a person acting on his
behalf, whether or not by his authority.
The judge personally conducted proceedings, including summoning persons
to appear before the court, and made various directions and orders. Ad
hoc directions were given in relation to the conduct of the inquiry, as
there was no prescribed procedure for the inquiry. The state sought
leave to appeal a decision of the National Court in relation to Judge
Cannings' refusal to disqualify himself from hearing the inquiry. The
State also asked for the extension of the stay of proceedings pending
appeal.
Issue(s)
Whether this is an arguable case of apprehended bias against the
presiding judge in an inquiry which justifies the granting of leave to
appeal and the granting of a stay order of the proceeding.
Decision
The court granted an extension of the stay order and granted leave for
appeal.
Comment
The court, in coming to its decision, found that there was an arguable
case for the allegations of bias and breach of the rules of natural
justice in the inquiry proceedings. The applicant relied on the
presiding judge's alleged oversight in not appointing counsel
assisting, and on the judge's decisions to choose witnesses at his own
discretion and to ask asylum seekers what remedies they wanted, as
contributing factors to conclude that this was an arguable case of
apprehended bias.
Under PNG's legal structure, inherited from the United Kingdom, the
adversarial system requires the court to remain at arm's length from
the litigants, with opposing counsel having carriage of cases. However,
while this appeal named the 'the transferees' and 'Amnesty
International' as respondents, the inquiry itself was not a typically
litigious or adversarial environment, involving opposing parties. Given
the powers prescribed in the CPNG for the National Court and the
Supreme Court to initiate proceedings together, with an absence of
regulations or procedures to be followed, it would appear the National
Court was adopting a practical, common sense approach to these issues.
The nature of the jurisdiction conferred by the CPNG suggested this
outcome, although it also provided the basis for the state's challenge
to the court's actions. This was an intermediate stage of the process,
with the substantive issue – the powers of the National Court under s.
57 (1) – to be determined.
INDEX BY CASE
NAME
AG v Secretary of Justice
(Nauru, 2013)
Attorney General, Iro Republic of Kiribati v Baakoa (Kiribati, 2013)
Bade v Regina (Solomon Islands, 2014)
Carcasses v Boedoro (Vanuatu, 2014)
Case of Atala Riffo and Daughters v Chile (Organisation of the America
States, 2012)
Case of El-Masri v The Former Yugoslav Republic of Macedonia (European
Union, 2012)
Case of Eremia v The Republic of Moldova (European Union, 2013)
Chandra v State (Fiji, 2014)
Chief Executive of the Ministry of Business, Innovation and Employment
v Liu (New Zealand, 2014)
Chief Executive Officer for Education v Gibbons (Vanuatu, 2013)
In the matter of the Constitution and in the matter of an application
for interpretation and application
of the constitution and orders, Civil Case No.1 of 2014 (High Court of
Tuvalu, 2014)
Dakai v State (Fiji, 2015)
Filimone Hefa v Rex (Tonga, 2013)
Fo'oka v Regina (Solomon Islands, 2014)
Government of The Republic of Namibia v LM, MI and NH (Namibia, 2014)
Hanpa Industrial Development Corporation v Republic of Palau (Palau,
2013)
Haraksin v Murray Australia Limited (Australia, 2013)
Hatilia v Attorney General (Solomon Islands, 2014)
Ilagana v Wespac Bank of Tonga (Tonga, 2014)
Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia
(Australia, 2014)
In Re Adoption of BR (Nauru, 2013)
In Re Application of Enforcement of Human Rights, In Re Jacob Okimbari
(PNG, 2013)
In Re Application of Enforcement of Human Rights, In Re Namson Lamaning
(PNG, 2013)
In Re Constitutional (Amendment) Law 2008, Reference by the Ombudsman
Commission of PNG
(PNG, 2013)
In Re Greenpeace (New Zealand, 2014)
In Re Petition for Citizenship by Tamuera (RMI, 2014)
In Re Powers, Functions, Duties and Responsibilities of the
Commissioner of Police (PNG, 2014)
In Re Right of Referendum of the People of Guam (Guam, 2014)
In Re Suka (Chuuk, FSM 2013)
In the matter of Cook Islands National Superannuation Fund Act 2000 and
the Cook Islands
Constitution (Cook Islands, 2014)
In the matter of Lohe Issa Konate v Burkina Faso (African Union, 2014)
Indira Gandhi A/P Mutho v Pengarah Jabatan Agama Islam Perak &
Ors (Malaysia, 2013)
Kauke v Commanding Officer, Boen Correctional Institution (PNG, 2014)
Keke v Scotty (Nauru, 2014)
Kenziye v Independent State of PNG (PNG, 2013)
Key v Police (Samoa, 2013)
Koima & Jomar Trading Ltd v The Independent State of PNG (PNG,
2014)
Kumar v State (Fiji, 2015)
Labour Officer v Lolohea (Fiji, 2015)
Latu v Rex (Tonga, 2014)
Limen v Chief Secretary (Nauru, 2015)
Namah v Pato (PNG, 2014)
Noorfadilla Ahmad Saikin v Chayed Basirun & Ors (Malaysia,
2011)
NSW Registrar of Births, Deaths and Marriages v Norrie (Australia,
2014)
O'Neil v Klapat (PNG, 2014)
PB Sea Tow Ltd v Attorney General (Samoa, 2014)
People of Guam v Calhoun (Guam, 2014)
People of Guam v Mendiola (Guam, 2014)
People of Guam v Taman (Guam, 2013)
Police v Apelu (Samoa, 2010)
Public Prosecutor v Tiobang (Vanuatu, 2013)
Punitia v Tutuila (Samoa, 2014)
R v Gua (Solomon Islands, 2013)
Regina v Bonuga (Solomon Islands, 2014)
Republic v Arawaia (Kiribati, 2013)
Saavedra v Solicitor General (Tonga, 2013)
Sing v Singh (Fiji, 2014)
Stanley v Service to Youth Council Incorporated (Australia, 2014)
State v Transferee (PNG, 2014)
State v K.R.A.K. (Fiji, 2013)
State v Laojindamanee (Fiji, 2013)
State v Raikadroka (Fiji, 2014)
Tamblyn v Director of Public Prosecution (Fiji, 2014)
Vaomotou v Rex (Tonga, 2014)
Vogel v Attorney-General (New Zealand, 2013)
Wale v Attorney-General (Solomon Islands, 2014)
2015
UPDATES – PACIFIC HUMAN RIGHTS LAW DIGEST, VOLUME 1
Attorney General v
Maumasi (Samoa, 1999)
This case was applied in the Samoan Court of Appeal in Police v Kum [2000] WSCA 1; 11
1999 (18 August 2000), and continues to be cited by
various courts, most recently in Police
v Vailopa [2009] WSSC 69 (2 July 2009). The Crimes Ordinance
1961 was repealed by the Crimes
Act 2013.
Balelala v State (Fiji,
2004)
See s. 129 of the Criminal
Procedure Decree 2009, which removed the need for
corroboration in sexual offence cases. See also Kumar v State [2015] FJCA 32;
AAU0049.2012 (4 March 2015) (5 PHRLD 36) in relation to
corroboration involving child witnesses.
Jeremiah v Nauru Local
Government Council (Nauru, 1971)
The Nauru Local Government Council has been abolished by virtue of the Nauru Local Government Council
Dissolution Act 1992 and the president or the cabinet took
over its functions by virtue of the Nauru Local Government Council
Dissolution Consequential Amendments Act 1997. See also In re Lorna Gleeson [2006] NRSC
8; Miscellaneous Cause No 4 of 2006 (15 December 2006) (2
PRHLD 4) and also In re
Adoption of BR [2013] NRSC 11 (9 September 2013) (5 PHRLD
27); in each of these cases, Jeremiah
was cited.
Joli v Joli (Vanuatu,
2003)
This case continues to be cited by various courts, most recently in Bradford v Bradford [2014] VUSC
135; Matimonial Case 06 of 2010 (19 September 2014). The
two main issues in this case were discussed by Sue Farran in The Joli way to resolving legal
problems: a new Vanuatu approach, (2003) Journal of South
Pacific Law (7) 2: http://www.paclii.org/journals/JSPL/2003/27.html.
See also Professor Don Paterson in Mariango v Nalau [2007] VUCA 15: Compensation for contributions
to property by de facto partners (2008) Journal of South
Pacific Law (12) 1: http://www.paclii.org/journals/JSPL/2008/1.pdf
Lafaialii & Ors v
Attorney General (Samoa, 2003)
Applied in Asiata v
Asiata [2007] WSSC 4 (2 February 2007), and cited in the
2010 inquiry into religious freedom in Samoa: Commission of Inquiry Freedom of
Religion [2010] WSOM 1 (15 May 2010). The Samoan
government has ongoing inquiries into the dynamics of religious freedom
protected under the constitution and through custom. See also a report
in May 2014: http://www.samoaobserver.ws/other/community/10130-freedom-stays-committee-says.
Leituala & Ors v
Mauga & Ors (Samoa, 2004)
See also Punitia v
Tutuila [2014] WSCA 1 (31 January 2014) (5 PHRLD 45)
regarding banishment practices in Samoa and tort and constitutional
remedies.
Lyndon v Legal Aid
Commission & Anor (Fiji, 2003)
The Constitution of Fiji
1997 has been replaced by the Constitution
of Fiji 2013. See ss 6(5) and 14(2)(d) of the 2013
constitution in relation to limitations on protected rights and rights
to legal representation and to the legal aid service.
Molu v Molu (Vanuatu,
1998)
See also Tally v Tally
[2012] VUSC 122; Civil Case 41 of 2011 (24 May 2012), in
which Molu was cited.
Naba & Ors v
State (Fiji, 2001)
See ss 11, 13 and 14 of the Constitution
of Fiji 2013.
Nadan & McKoskar
v State (Fiji, 2005)
The Crimes Decree
2009 repealed the Penal Code and removed the relevant discriminatory
offences. See also ss 24 and 26(3)(a) of the Constitution of Fiji
2013, which are worded differently than ss 37 and 38 of the Constitution of Fiji
1997.
Noel v Toto (Vanuatu,
1995)
A subsequent dispute arose; see: Noel
v Champagne Beach Working Committee [2006] VUCA 18; CAC 24-06
(6 October 2006).
Police v Afa Lee Kum
(Samoa, 2000)
See also Police v
Vailopa [2009] WSSC 69 (2 July 2009) (3 PHRLD 16) and Police v Faiga [2008] WSSC 96
(19 November 2008).
Qiladrau v State (Fiji,
2000)
See ss 207-224 of the Crimes
Decree 2009, which repealed the Penal Code.
Public Prosecutor v Kota
& Ors (Vanuatu, 1993)
A short judgment striking out an action in Family Kalontano v Duruaki
Council of Chiefs [2002] VUSC 32; Constitutional Case 040 of 2002
(24 May 2002), which was said to disapprove a horizontal application of
the constitutional rights, and attracted a commentator's criticism. See
M. Forsyth, Is there
horizontal or vertical enforcement of constitutional rights in Vanuatu?
Family Kalontano v Duruaki Council of Chiefs (2005)
Journal of South Pacific Law (9) 2: http://www.paclii.org/journals/JSPL/2005/11.html
R v Rose (Solomon
Islands, 1987)
See also Regina v
Ludawane [2010] SBHC 128; HCSI-CRC 233 of 2008 (5 October
2010), in which the so-called common right of parental disciplinary
corporal punishment of children was discussed. See also the Fijian case
of Dakai v State -
Judgment [2015] FJHC 129; HAA04.2015 (27 February 2015) (5
PHRLD 38).
Rarasea v State (Fiji,
2000)
The relevant Prisons Act
was repealed by the Prisons
and Corrections Act 2006. See ss 28 and 29, in relation to
remission of sentences of prisoners and provision of food in prisons.
See also s. 11(1) of the Constitution
of Fiji 2013.
Republic of Fiji
& Attorney General of Fiji v Prasad (Fiji, 2001)
See also Qarase v
Bainimarama [2009] FJCA 9; ABU0077.2008S (9 April 2009) (3
PHRLD 37).
Republic of Kiribati v
Iokiri (Kiribati, 2004)
See also a Fijian case, Kumar
v State [2015] FJCA 32; AAU0049.2012 (4 March 2015) (5
PHRLD 36).
Seniloli &
Attorney General of Fiji v Voliti (Fiji, 2000)
See also Devi v Nandan
[2013] FJCA 104; ABU0031.2011 (3 October 2013), in which
the Court of Appeal cited Seniloli.
Simona v R (Tuvalu, 2002)
See also a Samoan case, Police
v Vailopa [2009] WSSC 69 (2 July 2009) (3 PHRLD 16), in
which the Samoan Supreme Court cited this case along with others
involving the operation of the CRC.
State v Bechu (Fiji,
1999)
See the Crimes Decree
2009 in relation to rape provisions.
State v Fong &
Ors (Fiji, 2005)
See s. 11(1) of the Constitution
of Fiji 2013. Note also that in March 2015 the Fijian
Parliament decided to ratify the UNCAT.
State v Kata (Fiji, 2000)
See s. 14(2)(g) of the Constitution
of Fiji 2013.
State v Pickering (Fiji,
2001)
See also a Solomon Islands case, Manioru
v R, and an Indian case, State of Punjab v Singh
(4 PHRLD 71), and a Solomon Islands case, Bade v Regina [2014] SBCA 13;
SICOA-CRAC 31 of 2013 (9 May 2014) (5 PHRLD 67), in
relation to mandatory sentencing.
State v Tamanivalu (Fiji,
2003)
See also State v K.R.A.K - Sentence [2013] FJHC 339; HAC73.2013 (17
July 2013) (5 PHRLD 25), in relation to juvenile offenders.
State v Tanaburenisau
& Ors (Fiji, 2005)
See Lyndon v Legal Aid
Commission & Anor (Fiji, 2003) (1 PHRLD 17) and
updates on that case.
Wagner v Radke (Samoa,
1997)
See Police v Vailopa
[2009] WSSC 69 (2 July 2009) (3 PHRLD 16), in which this
case was cited and applied.
'Uhila v Kingdom of Tonga
(Tonga, 1992)
Tonga ratified the CRC in 1995, as discussed in Tone v Police [2004] TOSC 36; AM
022-025 2004 (28 June 2004).
2015
UPDATES – PACIFIC HUMAN RIGHTS LAW DIGEST, VOLUME 2
Ali v The State (Fiji,
2005)
See similar discussion on constitutional redress in the case of Tamblyn v Director of Public
Prosecution [2014] FJHC 884; HBM11.2014 (2 December 2014)
(5 PHRLD 74).
Attorney General v Mbwe
(Kiribati, 2006)
See a similar case, Attorney
General v Teraoi [2013] KICA 4; Civil Appeal 04.2013 (23
August 2013), in which Mbwe was cited. See also Attorney General, iro Republic of Kiribati v Baakoa
[2013] KICA 6; Civil Appeal 07.2013 (23 August 2013).
Australasian Conference
Association Ltd v Sela & Ors (Fiji, 2007)
This case has been cited in various decisions, most recently in Native Land Trust Board v
Veisamasama [2011] FJHC 632; HBC34.2011 (6 October 2011),
in relation to the application of the equitable doctrine of estoppel in
an interest in land rights. Note that the Constitution of Fiji 1997 has
been repealed and substituted by the Constitution of Fiji 2013. The
relevant sections are ss 27, 28 and 29.
Ayamiseba v Attorney
General (Immigration) (Vanuatu, 2006)
A further civil claim arose from this case, but it was struck out by
the court. See Ayamiseba
v Republic of Vanuatu [2008] VUSC 15; Civil Case 196 of 2006
(2 May 2008) and Ayamiseba
v Government [2008] VUSC 45; Civil Case 196 of 2006 (11
June 2008). However, in relation to the principle of the government's
vicarious liability in tort, the case of Solong v Republic of Vanuatu
[2014] VUSC 1; Civil Case No. 27 of 2012 (5 February 2014), was cited
Ayamiseba to hold that the government was vicariously liable in a tort
action.
Devi v The State (Fiji,
2003)
This case has been cited in a Magistrates Court case, State v Hill [2013] FJMC 211;
Traffic Case 8905.2013 (27 May 2013) , in which bail was
granted.
Efi v Attorney General
(Samoa, 2000)
See Samoa Party v
Attorney General [2009] WSSC 23 (20 March 2009), in which
this case was cited in relation to the discussion of the doctrine of
separation of powers. See also Samoa
Democratic United Party (SDUP) v Leiataua [2009] WSSC 49
(6 May 2009), in which this case was quoted in its discussion of the
implication of the notion of an opposition party under the
constitution. In a 2010 freedom of religion inquiry, reported by the
Samoan Ombudsman, this case was quoted by way of
mention when it discussed fundamental rights and the rationale of
upholding them: Commission
of Inquiry Freedom of Religion [2010] WSOM 1 (15 May
2010), at par. 11.7.
Fa'aoso v Paongo
& Ors (Tonga, 2006)
See the decision of Police
v Vailopa [2009] WSSC 69 (2 July 2009) (3 PHRLD 16), of
the Samoa Supreme Court, in which this case was cited with approval.
Fiji Human Rights
Commission v Fiji Law Society (Fiji, 2007)
Note that the Legal
Practitioners Act 1997 has since been repealed by the Legal Practitioners Decree
2009.
Fiji Human Rights
Commission v Police & Attorney General (Fiji, 2005)
This case was not reported in PACLII. The Court of Appeal case referred
to in the Editors' Note
was Proceedings
Commissioner, Fiji Human Rights Commission v Commissioner of Police
[2006] FJCA 75; ABU0003U.2006S (24 November 2006) (3 PHRLD
1).
Fiji Human Rights
Commission v Suva City Council (Fiji, 2006)
The relevant constitutional right of freedom from discrimination is now
enshrined in s. 26(3)(a) of the Constitution
of Fiji 2013. However, s. 26(8) provides a number of
exceptions, and s. 26(8)(b) allows the imposition of a retirement age
in law.
Fijian Teachers'
Association & Fiji Public Service Association v Public Service
Commission & Interim Attorney General (Fiji, 2007)
See remarks made in FHRV
v Suva City Council, above, regarding retirement age.
In re Eroni Delai (Fiji,
2000)
The Criminal Procedure
Code has been repealed and substituted by the Criminal Procedure Decree
2009. Part XIII of the 2009 Decree
now deals with proceedings before the Magistrates Court. Note also that
the similar constitutional rights to personal liberty, and exceptions
to this right, are provided for by s. 9 of the Constitution of Fiji
2013.
In re Lorna Gleeson
(Nauru, 2006)
See In re Adoption of
BR [2013] NRSC 11 (9 September 2013) (5 PHRLD 27), in
which the critical comments made by the PHRLD here were mentioned with
approval (at par. 54), and In
re Lorna Gleeson was not followed by the Nauruan Supreme
Court.
In re Nikhil Naidu (Fiji,
1987)
See also Baleinamau v
Commander of Fiji Military Forces [2001] FJHC 331; [2001] 2 FLR 100
(8 May 2001), in which this case was discussed and followed in relation
to the police powers under the Public
Emergency Regulations. The existing version is the 2009 Regulations made
under the Public Safety
Act.
In re Thesai Maip (PNG,
1991)
De facto relationships are now recognised in law in PNG.
Interim Attorney General
v Draunidalo (Fiji, 2007)
The indemnity cost order in this case was reduced on appeal: Attorney General v Draunidalo
[2009] FJCA 54; ABU0006.2008 (16 March 2009). The Court of
Appeal's dictum in relation to indemnity cost has been cited in a
number of cases, including the case of Fiji Oral Health Workers
Association v Fiji Dental Association [2014] FJHC 447; HBC216.2011
(20 June 2014).
Kelly v R (Solomon
Islands, 2006)
See Regina v Tiko
[2010] SBCA 7; CA-CRAC 8 of 2009 (26 March 2010) and R v Fo'oka [2014] SBHC 5;
HCSI-CRC 250 of 2012 (3 February 2014). See also
discussion regarding 'duress' by Miranda Forsyth, Duress as a criminal defence in
Solomon Islands, (2007) Journal of South Pacific Law
11(2), in which Kelly
was discussed.
Khera v Fiji Islands
Revenue and Customs Authority (Fiji, 2006)
Freedom of movement and restriction of this right are provided for by
s. 21 of the Constitution
of Fiji 2013, which is similar to s. 34 of the Constitution of Fiji
1997.
Khera & Ors v
Fiji Independent Commission Against Corruption (Fiji, 2007)
In relation to the issue of whether FICAC's power to prosecute is
inconsistent with the constitution, a judge in two subsequent High
Court decisions declined to follow Khera:
see FICAC v Kumar
[2009] FJHC 76; HAC001.2009 (20 March 2009) and Fiji Independent Commission
Against Corruption v Devo [2008] FJHC 132; HAC177D2007S
(27 June 2008) (3 PHRLD 34).
Kirisome & Ors v
Attorney General & Commissioner of Police (Samoa, 2002)
This case was cited in subsequent cases, including in Digicel (Samoa) Ltd v Attorney
General [2008] WSSC 15 (30 March 2008) in relation to
procedural fairness rules.
Mariango v Nalau
(Vanuatu, 2007)
This case was applied in Grillo
v Schwartze [2010] VUSC 190; Civil Case 125 of 2009 (17
December 2010). See also discussion by Don Paterson in Mariango v Nalau [2007] VUCA 15:
Compensation for contributions to property by de facto partners
(2008) Journal of South Pacific Law 12(1)
Nai & Ors v Cava
(Fiji, 2008)
See remarks made in updates below in the cases of Social Welfare Officer v Marshall
and RHEA v Caine.
Office of The Public
Solicitor v Kalsakau (Vanuatu, 2005)
See Leo v Public
Prosecutor [2008] VUCA 19; Criminal Appeal Case 7 of 2008
(25 July 2008), in which a constitutional right to be informed of a
right to legal representation before a police interview was contested
and Kalsakau
was mentioned.
Public Prosecutor v
Emelee & Ors (Vanuatu, 2005)
This case was subsequently applied in Public Prosecutor v Withford
[2006] VUCA 14; Criminal Appeal Case 07 of 2006 (2 October 2006).
Qicatabua v Republic of
Fiji Military Forces & Ors (Fiji, 2006)
This case has been overturned by the Court of Appeal in Republic of Fiji Military Forces
v Qicatabua [2008] FJCA 119; [2009] 3 LRC 357 (12
September 2008).
R v K (Solomon Islands,
2006)
According the citation this case was about the defence of compulsion,
which was rejected by the Chief Justice, and conviction was entered
with a life sentence imposed. There might have been an editorial
oversight, as there was no discussion in this case of human rights
issues. The facts, issues and commentary in print (2 PHRLD 18) appeared
to refer to the Court of Appeal case of Kelly. The Court of
Appeal remitted this case back to the High Court for sentencing, but
the subsequent sentencing judgment was not reported in PACLII. In any
event, refer to the remarks made under Kelly, above.
R v Su'u & Ors
(Solomon Islands, 2007)
A subsequent case also discussed the interpretation of the relevant
provisions of the Amnesty Act, and this case was cited in Regina v Aili [2008] SBHC 104;
HCSI-CRC 74 of 2004 (4 December 2008).
R v Vola (Tonga, 2005)
A subsequent case, Rex
v Ake [2006] TOSC 3; CR 140.2005 (3 February 2006), cited
Vola.
Railumu & Ors v
RFMF & Attorney General (Fiji, 2002)
The Constitution of Fiji
2013 has provided for similar rights to access to courts or tribunals
under s. 15.
Rhea v Caine (Fiji, 2006)
A subsequent High Court decision, Social
Welfare Officer v Marshall [2008] FJHC 283; HBA11.2006 (7
March 2008) (2 PHRLD 8), had a similar discussion of the same issue,
which arose from s. 6(4) of the Adoption
of Infants Act, and should have had the effect of
overturning the reasoning of this Magistrates Court's decision.
However, the High Court decision has been cited in a Magistrates Court
decision, Sing v Singh
[2014] FJMC 176; Adoption Case 10.2013 (27 November 2014),
but the magistrate did not follow it. Note also that the Supreme Court
of Nauru quoted the critical comments on Rhea made by the PHRLD with
approval: In re
Adoption of BR [2013] NRSC 11 (9 September 2013).
Sipo v Meli (PNG, 1980)
The adultery law has since been reformed in PNG. See Adultery and
Enticement Act 1988
http://www.paclii.org/pg/legis/consol_act/aaea1988233.
See also the decision of Re
Wagi Non [1991] PGNC 36; [1991] PNGLR 84; N959 (27
February 1991), in relation to adultery involving the National Court
and the PNG village courts. 'Wagi Non' and the law in PNG were examined
by Jean G. Zorn, in Women,
Custom, and State Law in Papua New Guinea (1995) TWLS, 13:
http://scholar.valpo.edu/twls/vol13/iss1/
and by Jessep, Owen, in Developments
in the Underlying Law of Papua New Guinea, 25 [2012] PGULJ
4.
Social Welfare v Marshall
& Ors (Fiji, 2008)
See remarks made under RHEA
v Caine above. See also discussion in 2 PHRLD (pp. 10–11)
regarding the case of Nai
& ORS v CAVA, in relation to the Hague Convention
and other international human rights treaties in considering
cross-border children's matters.
State v Sorpapelu (Fiji,
2006)
PACLII does not have cases reported for March and April of 2006 under
the Fiji High Court portal, but see a related report of this matter in State v Sorpapelu [2005] FJHC
454; HAM0068D2005S (27 October 2005). The Penal Code has been
repealed by the Crimes
Decree 2009, and the relevant sections now are ss 212 and
213. See also the Sentencing
and Penalties Decree 2009, in which the matters a
sentencing court must consider are provided for by s. 4 of the decree,
which include the age of and impact on the victim.
Taione v Kingdom of Tonga
(Tonga, 2004)
See a discussion by John Maloney and Jason Reed Struble, in A new day
in Tonga: the judiciary, the reformers and the future, (2007) Journal
of South Pacific Law (11) 2, in which the authors engaged in a
comprehensive discussion of this case in relation to media freedom and
the constitution.
Takiveikata v The State
(Fiji, 2007)
The decision in this case was unsuccessfully appealed in the Supreme
Court: Gates v Takiveikata; State v Takiveikata [2008] FJSC 16;
CAV0015.2007S & CAV0016.2007S (24 July 2008).
Teonea v Pule O Kaupule
& Nanumaga Falekaupule (Tuvalu, 2005)
See Teonea v Pule o Kaupule of Nanumaga [2009] TVCA 2; Court of Appeal
Civil Appeal No. 1 of 2005 (4 November 2009) (3 PHRLD 33).
The State v Aigal
& Kauna (PNG, 1990)
The Sorcery Act
1971 has been repealed by The
Sorcery (Repeal) Act 2013 (No. 7 of 2013).
The State v Silatolu
(Fiji, 2002)
See Ledua v State
[2008] FJSC 31; CAV0004.2007 (17 October 2008), in which
the Court of Appeal commended the observations made in Silatolu in
relation to factors to be considered by a trial judge. See also ss 6(5)
and 14(2)(d) of the Constitution
of Fiji 2013, in relation to limitations on protected
rights and rights to legal representation and to the legal aid service.
Toakarawa v The Republic
(Kiribati, 2006)
See also Republic v
Teriao [2013] KICA 12; Criminal Appeal 02.2013 (23 August
2013), in which Toakarawa was cited to uphold an appeal to increase the
sentence.
Ulufa'alu v Attorney
General & Malaita Eagle Force & Ors (Solomon Islands,
2001)
This case was cited in Bartlett
v Government of Australia [2012] SBHC 78; HCSI-CC 414 of 2011 (1
August 2012).
Yuen v The State (Fiji,
2004)
This case cited Devi v
The State (2 PHRLD 11). See relevant remarks made in Devi v The State,
above.
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UPDATES – PACIFIC HUMAN RIGHTS LAW DIGEST, VOLUME 3
Ali v Hakim (Fiji
Islands, 2008)
The common law prerogative of parens patriae was discussed in the case
of Singh v Reddy [2014]
FJHC 724; HBC123.2011 (6 October 2014), which was
unrelated to the interpretation of the Adoption of Infants Act.
Arp v Arp (Samoa, 2008)
A subsequent case cited and adopted the approach of this case: Hadley v Hadley [2010] WSSC 61
(19 March 2010).
A
Attorney General v Vaai
(Samoa, 2009)
This case was cited in a subsequent case, Police v Viali [2009] WSSC 75
(15 July 2009), in relation to the Court's power to discharge without
conviction and order payment.
Attorney General v Yaya
(Fiji Islands, 2009)
The current version of the right to privacy under the Constitution of Fiji
2013 is provided by s. 24.
Commissioner of Police v A Mother (Fiji Islands, 2008)
This case was cited and applied in subsequent cases, including Takiveikata v State [2008] FJHC
315; HAM039.2008 (12 November 2008) (included in this
volume of the PHRLD) and Tawake
v Barton Ltd [2010] FJHC 14; HBC231.2008 (28 January
2010), in the context of police powers to arrest and detain a person
under the law.
FICAC v Devo (Fiji
Islands, 2008)
In relation to whether the office of the director of public
prosecutions was the only competent body under the constitution to
prosecute, this decision contradicted that decided in Khera & Ors v Fiji
Independent Commission Against Corruption (Fiji, 2007) (2
PHRLD 88).
Groupe Nairobi (Vanuatu)
Ltd v Government of the Republic of Vanuatu (Vanuatu, 2009)
The principles adopted in this case in relation to unjust deprivation
of property have been further applied in various cases, including
another Court of Appeal case: Terra
Holdings Ltd v Sope [2012] VUCA 16; Civil Appeal Case 04 of 2012
(19 July 2012) (4 PHRLD 45).
Jackson v Attorney
General (Samoa, 2009)
This case was cited in a subsequent case, Police v Malota [2013] WSSC 145
(15 November 2013), in the context of expert witnesses.
Maharaj v Raju (Fiji
Islands, 2008)
See the Magistrates Court decision of SSP v AAD [2013] FJMC 232;
Family Court Case 74NAS2012 (6 June 2013), in relation to
paternity determination and DNA testing.
Navualaba v Commander of
Fiji Military Forces (Fiji Islands, 2008)
A subsequent High Court case, Naqa
v Commander, Republic of Fiji Military Forces [2009] FJHC 68;
HBC377.2005 (11 March 2009), discussed and applied this
case in relation to damages.
Naylor v Foundas
(Vanuatu, 2004)
In a later case, Benard v Republic of Vanuatu [2012] VUSC 32; Civil
Case 38-07 (5 April 2012), the Supreme Court upheld the right of a
judgment creditor to recover interest as a statutory right, citing
Naylor.
Police v Faiga (Samoa,
2008)
A number of Supreme Court decisions in relation to sexual offences
followed this case. The Crimes
Act 2013 has reformed the Samoan criminal law, including
sexual offences. Sexual conduct with a child under the age of 12 now
attracts heavier penalties, ranging from 14 years to life imprisonment.
(See s. 58)
Police v Palemene (Samoa, 2007)
It was reported that following this decision, the 'punishment cell' was
closed permanently: http://www.radionz.co.nz/international/pacific-news/171908/samoa's-prison-punishment-cell-closed¬after-supreme-court-ruling
President of the Republic
of Vanuatu v Speaker of Parliament (Vanuatu, 2008)
The Family Protection Act 2008 subsequently came into force, in March
2009.
Proceedings Commissioner,
Fiji Human Rights Commission v Commissioner of Police (Fiji Islands,
2006)
A subsequent High Court case, Rokotuiviwa
v Seveci [2008] FJHC 221; HBC374.2007 (12 September 2008),
noted this Court of Appeal case in considering the quantum of damages
in similar claims.
Public Prosecutor v Nawia
(Vanuatu, 2010)
A subsequent case, Public
Prosecutor v David [2012] VUSC 166; Criminal Case 30 of 2012
(22 August 2012), referred to this case in sentencing.
R v Setaga (Tuvalu, 2008)
A similar case was decided by the same justice (Ward CJ): R v Penivao [2012] TVHC 5;
Criminal Case 02 of 2011 (23 January 2012), in which this
case was cited. A Samoan Supreme Court decision also cited and applied
this case: Police v
Vailopa [2009] WSSC 69 (2 July 2009).
Samoa Party v Attorney
General (Samoa, 2010)
A number of subsequent decisions cited this case, including Rimoni v
President of the Land and Titles Court [2011] WSSC 88 (8 August 2011),
on the issue of paramount status of the constitution, and the case of
Law Society v Auimatagi Ponifasio [2013] WSCA 6 (15 November 2013), in
relation to orders of costs against parties that represent the public
interests.
Singh v State (Fiji
Islands, 2008)
The current articulation of the right to privacy is provided in s. 24
of the Constitution of
Fiji 2013.
State v AV (Fiji Islands,
2009)
The Court of Appeal considered the constitutionality of s. 10(1) of the
Juvenile Act
in the case of Kumar v
State [2015] FJCA 32; AAU0049.2012 (4 March 2015) (5
PHRLD 36), and endorsed the views expressed in this case in relation to
corroboration of a child's evidence before a conviction can be entered.
State v Krishna (Fiji
Islands, 2007)
There was an error in the year of the case in the citation in print.
The year reference is 2007, not 2001: State v Krishna [2007] FJHC 26;
HAA040.2007 (10 September 2007). In this case the judge
(Winter J) opined that: The belief that adults have unlimited rights in
the upbringing of a child compromises any approach to stop and prevent
violence committed within the home or school or state institution. For
lasting change, attitudes that condone or normalize violence against
children need to be challenged. Compare this opinion with a Fijian High
Court case, Dakai v
State – Judgment [2015] FJHC 129; HAA04.2015 (27 February
2015) (5 PHRLD 38), in which the judge (De Silva J) cited a 2010 High
Court decision, which included the following statement: However despite
the abuse and the severity of it, regard must be had firstly to the
evident frustration of the father wanting to raise his daughter to be
responsible and truthful and the [sic] secondly to the rights of the
accused as a parent to punish.
Takiveikata v State (Fiji
Islands, 2008)
This case was cited in a number of subsequent cases, both in the High
Court and the Magistrates Court, in relation to the issues of fair
trial and permanent stay of a criminal case: Baba v State [2011] FJHC 53;
HAM238.2010 (17 February 2011).
Teonea v Pule oKaupule of
Nanumaga (Tuvalu, 2009)
See the decision in the lower court, discussed in 2 PHRLD 83.
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UPDATES – PACIFIC HUMAN RIGHTS LAW DIGEST, VOLUME 4
Hamel-Landry v Law
Council (Vanuatu, 2012)
The relevant regulation 2(b) included in print was erroneous. Please
refer to the judgment or to the regulation for the correct version: Legal Practitioners
(Qualifications) Regulations.
In re Child M (Vanuatu,
2011)
Compare this case with the Fijian Magistrates Court's decision of Sing
v Singh [2014] FJMC 176; Adoption Case 10.2013 (27 November 2014) (5
PHRLD 34).
In re Constitution
Section 19(1) – Special Reference by Allan Marat (Papua New Guinea,
2012)
Two subsequent cases cited and applied this case: Marat v Hanjung Power Ltd [2014]
PGSC 33; SC1357 (4 July 2014) and Koim v O'Neil [2014] PGNC 147;
N5694 (28 July 2014). See also an article written by
Logan, Justice John – A
year in the life of an Australian member of the PNG judiciary
(FCA) [2013] FedJSchol 9, in which the arrest of and charges against
some of PNG's leading judges following this decision was discussed.
In re Reference to
Constitution Section 19(1) by East Sepik Provincial Executive (Papua
New Guinea, 2011)
This case was cited in Keke
v Scotty (2) [2013] NRSC 3 (15 March 2013), and in
In re Constitutional
(Amendment) Law 2008, Reference by the Ombudsman Commission of Papua
New Guinea [2013] PGSC 67; SC1302 (19 December 2013).
Kilman v Speaker of
Parliament of the Republic of Vanuatu (Vanuatu, 2011)
The case of Natapei v
Korman [2011] VUSC 72; Constitutional Case 5 of 2011 (16
June 2011), mentioned in the comments section of Kilman in PHRLD Vol
4, was overturned by the Court of Appeal in Kilman v Natapei [2011] VUCA 24;
Civil Appeal 16 of 2011 (22 July 2011). See also Vanuaroroa v Natapei [2011] VUSC
92; Constitutional Case 06 of 2011 (22 June 2011).
Lamon v Bumai (Papua New
Guinea, 2010)
Despite this decision, the violent practice, in violation of human
rights, within the PNG police force that this case was concerned with,
did not stop. The judiciary carried out an inquiry in 2013 under s. 57
of the constitution. A report, in the form of a judgment, was produced
in early 2014: Enforcement
of Basic Rights, In re Section 57 Constitution of the Independent State
of Papua New Guinea [2014] PGNC 36; N5512 (26 February
2014), in which this case at trial was cited.
Liu v R (Tonga, 2011)
See another human trafficking case, decided in Fiji: State v Laojindamanee – Sentence
[2013] FJHC 20; HAC323.2012 (25 January 2013) (5 PHRLD
65).
Manioru v R (Solomon
Islands, 2012)
A further attempt to argue that mandatory life imprisonment is
unconstitutional was again rejected by the Court of Appeal, in Bade v Regina [2014] SBCA 13;
SICOA-CRAC 31 of 2013 (9 May 2014), which is included in 5
PHRLD. See also Regina
v Nguyen Van Thang [2013] SBHC 26; HCSI-CRC 150 of 2011
(27 March 2013), in which the court reflected on the lack of practice
direction following the decision of Manioru, in relation to non-parole
period.
Namba v Naru (Papua New
Guinea, 2011)
Refer to remarks made in Lamon
v Bumai, above.
Natapei v Korman
(Vanuatu, 2011)
This case was overturned by the Court of Appeal in Kilman v Natapei [2011] VUCA 24;
Civil Appeal 16 of 2011 (22 July 2011).
Ponifasio v Samoa Law
Society (Samoa, 2012)
This case was cited and applied in a subsequent case, Woodroffe v Samoa Law Society
[2012] WSCA 15 (23 November 2012). However, the Court of
Appeal in the latter case commented that: [w]e acknowledge that had we been
approaching the matter afresh the question might well have been open to
debate. However this Court will not depart from a principle established
in an earlier decision unless it is clearly shown that there was an
unequivocal error in the earlier decision, demonstrable change in
circumstances since the decision was given or other special reason for
the departure. No special reason of that kind could be suggested in the
present case. ... Ponifasio clearly applies.
Public Prosecutor v
Malikum (Vanuatu, 2010)
Subsequent decisions alluded to this case in relation to sentencing: Public Prosecutor v Ray [2014]
VUSC 100; Criminal Case 109 of 2014 (22 August 2014); Public Prosecutor v Daniel
[2014] VUSC 108; Criminal Case 65 of 2014 (28 August
2014).
Quarter v R (Cook
Islands, 2011)
This case was further discussed in Mokoha
v Cook Islands Police [2013] CKHC 25; JP Appeal 05.2013
(19 July 2013).
R v Belo (Solomon
Islands, 2012)
The presiding judge in this case, who has since left the bench, has
continued to be critical of the way in which women and sexual offence
victims have been treated in Solomon Islands: http://www.abc.net.au/radionational/programs/lawreport/solomon-islands-hc-judge-speaks-out-v2/5912956
R v Gua (Solomon Islands,
2012)
The accused was eventually convicted and sentenced to four years'
imprisonment, but the Crown appealed the sentence, and the appeal was
upheld by the Court of Appeal: Regina
v Gua [2013] SBCA 2; Criminal Appeal Case 37 of 2012 (26
April 2013) (5 PHRLD 88).
Special Reference by Fly
River Provincial Executive Council; Re Organic Law on Integrity of
Political Parties and Candidates (Papua New Guinea, 2010)
Two subsequent cases, included in this volume, cited this case: In re Constitution Section 19(1)
– Special Reference by Allan Marat, and In re Reference to Constitution
Section 19(1) by East Sepik Provincial Executive (4 PHRLD
22 and 24). See updates to the respective cases, above.
State v Murti (Fiji
Islands, 2010)
Leave to appeal against conviction and sentence has been granted by the
Court of Appeal: Murti
v State [2013] FJCA 85; AAU3.2011 (8 May 2013). See also
another human trafficking case, State
v Laojindamanee - Sentence [2013] FJHC 20; HAC323.2012 (25
January 2013), which is included in 5 PHRLD, and is also pending on
appeal.
Terra Holdings Ltd v Sope
(Vanuatu, 2012)
A later case of Kwila
Ltd v Joseph [2013] VUSC 36; Civil Case 105 of 2010 (14
March 2013) applied this case in relation to the boundary of customary
land.
Ulugia v Police
(Samoa, 2010)
This case was discussed in various subsequent decisions, including Iosua v Attorney General [2014]
WSCA 5 (2 May 2014), in relation to matters of sentencing.
1.
Secretariat of the Pacific Community (2012) The Pacific Regional Rights
Resource Team (RRRT) of The Secretariat of the Pacific Community
proposal to AusAID July 2012–June 2015. Suva, Fiji.
2 Case of Vinter and others v
the United Kingdom (Applications nos 66069/09, 130/10 and 3896/10), see
http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-122664#{"itemid":["001-122664"]}
3 While the ECHR did not go as
far as prescribing the form (judicial or executive) of the review, nor
the period after the imposition of the life sentence within which a
review should take place, it opined that a period of no longer than 25
years from imposition, and further periodic reviews, had support from
international law material.
4 The sole purpose of the
recurso de queja
(remedy of complaint or complaint appeal) is to correct serious faults,
or abuses committed in the issuance of a jurisdictional ruling. See
par. 183.
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