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• 2015 Updates to Volume 2 Cases

CONTENTS

INTRODUCTION

ABOUT RRRT

USING THE DIGEST

ACKNOWLEDGEMENTS

EDITORIAL REVIEW

COMMENTARY

PART I: PACIFIC ISLAND CASES REFERRING TO CONSTITUTIONAL BILLS OF RIGHTS, HUMAN RIGHTS CONVENTIONS, STANDARDS AND PRINCIPLES

ASSEMBLY

CHILDREN

• Was the MC entitled to reduce the charges without hearing the views of the parties?
• Was the sentence appropriate taking into account all the mitigating/aggravating factors as well as Fiji's obligations under the CRC?
• What was the value of the traditional apology to the formal case?

• Had the relevant provisions of the AIA on residency been complied with by W staying in Fiji with the infant for three months only?
• Could the relevant provisions of CRC influence the interpretation of a mandatory requirement of the adoption statute thereby changing its meaning?

1. That the learned magistrate erred in law in and in fact in not taking into account the best interest of the children as required under the Adoption Act (Cap 58) and Fiji's obligations under the Convention on the Rights of the Child 1993 in the following:
1. the fact that there was no Home Study Report available from the Guardian Ad Litem
2. that the proper inter-country adoption procedures were not followed in this adoption application
3. [that proceedings] should have considered that it would be in the best interest of the child that they comply with South Australian Law, with its own conditions.

1. 28 January 2008: The Magistrate ruled that interim custody of D be given to N with limited access given to C pending the outcome of custody and adoption applications before the court. The magistrate also ordered that the Attorney General and the Director of Social Welfare be parties to the case under ss 177 and 178 respectively of the FLA.
2. 19 February 2008: Phillips J granted an interim stay order on the above orders of the Magistrate. Phillips J stated in her order that:

• the Magistrates' Courts in Fiji did not have jurisdiction to entertain adoption applications in respect of a child who is an Australian citizen;
• Section 43(2) required the courts to have regard to public international law if relevant, in this case the Hague Convention on the Civil Aspects of International Child Abduction;
• the child be returned to Australia to her mother as soon as possible.

• Was the absence of both parents a genuine psycho-social and developmental concern of sufficient impact to constitute changed circumstances?
• What was the impact of the CRC on bail in these circumstances?

1. The age of K at the time of the alleged commission of the offence was an issue;
2. The prosecution was an abuse of process;
3. The prosecution should not proceed given the international nature of the prosecution and the international guidelines on the prosecution of child soldiers;
4. The prosecution should not proceed because in the event that the accused was convicted, he would be sentenced to a mandatory life sentence in contravention of the CRC to which Solomon Islands is a signatory.

• Whether the continuation of the prosecution against a child soldier was unfair in that it would bring the administration of justice into disrepute.
• What was the international law on child soldiers and what was the applicability of such law to Solomon Islands?
• In the absence of the domestication of international law, what constitutional safeguards applied to protect the rights of child soldiers?

• What was the relevance of Tongan incomes in assessing the amount of damages?
• Whether the CRC applied or was relevant in a case of torture of children.

1. No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …
2. No child shall be deprived of his or her liberty, unlawfully or arbitrarily …
3. Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age …
4. Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance …

CRUEL, INHUMAN OR DEGRADING TREATMENT

CUSTOM

• Should customary revenge killing be a factor in reducing a murder charge to manslaughter?
• Do rights apply vertically and horizontally (between individuals and between individuals and private actors, or only vertically between the state and the individual)?

• Was the relationship between M and S recognised as a marriage?
• Whether de facto relationships were recognised by custom law.
• Did the decision of the Village Court breach M's right to liberty?

• What was the effect of the 'reconciliation'?
• Would consideration of the affidavits alter the sentence imposed?

• In its constitutional role of protecting human rights, could the court reject a nolle prosequi so that the appeal against A's minor sentence proceeded?
• What factors would the court take into account in refusing a nolle prosequi?

DIGNITY

1. J was forced to undergo an invasive medical procedure without her consent in contravention of s 25(2) of the Bill of Rights of the CF, which provides for the right to freedom from scientific or medical treatment or procedures without informed consent; and
2. s 27(1)(f) gives an arrested or detained persons the right to be treated with humanity and respect for their inherent dignity.

• What constituted consent to treatment?
• Were the actions of P in breach of J's fundamental rights and freedoms in violation of the Bill of Rights?
• Could damages be awarded for a breach of constitutionally protected human rights and were damages a right or a discretion?

1. The amount must be assessed against the backdrop of the country's social and economic conditions and not by universal standards;
2. The level must not be excessive but restrained or moderate; extravagant awards were to be avoided;
3. It was unnecessary to show outrageous conduct on the part of the defendant because the issue was about the infringement of human dignity (although outrageous conduct would attract greater damages).

1. That the evidence to prove the elements of the crime was insufficient;
2. That the sentence was manifestly excessive;
3. That she was denied her rights under s 37(10) of the CPNG, which allowed her to remain silent if she chose;
4. That s 84(2) of the Native Regulations Act denied her the constitutional right to equality before the law.

• Did the bill of rights extend to the SCC, i.e. was it an agency of the state?
• Could the bill of rights apply to collective agreements as well as ordinary legislation and other 'laws'?
• Did the agreement violate the bill of rights s 38(2) of the CF, which states that a person must not be unfairly discriminated against, directly or indirectly, on the grounds of inter alia age?

• Was the decision to reduce the retirement age valid?
• Could it be justified as an exception to s 38 of the CF?

1. the actions of the FLS were contrary to ss 38(1) and (2) of the CF in that the FLS unfairly discriminated;
2. Section 38(1) of the CF and the HRCA had been breached by the FLS in their actions of unfairly discriminating against the RFMF legal practitioners as the FLS had not sought to suspend the practising certificates of military legal practitioners in the 2000 coup;
3. appropriate legal and administrative steps to be taken or guidelines to be followed by the FLS under the LPA, consistent with ss 38 and 156 of the CF as well as the HRCA, in the event of a major upheaval or crisis (such as a coup);
4. guidelines consistent with human rights principles established by the 1997 CF and the HRCA as well as the LPA on the type of offences for which a practising certificate could be suspended or cancelled; and
5. under s 2 of the CF, consistency between the LPA provision on suspension and cancellation of practising certificates and the CF, the HRCA and other relevant human rights laws applicable in Fiji.

• Was there a reasonable cause of action for the plaintiffs, i.e. should the FLS summons to strike out the plaintiffs claim be allowed? Was the plaintiffs' case procedurally correct, in that the matter had substance and did not deserve to be struck out, especially since the FLS had lifted the suspension it had imposed upon the plaintiffs?
• Was there illegal discrimination by the FLS under ss 38(1) and (2) of the CF?
• Was the suspension letter written by the FLS valid in its assertion of citing powers under s 45(1) of the LPA?
• Did the FLS deny the plaintiffs procedural fairness (natural justice)?
• Was the appointment of the proceedings commissioner illegal?
• Was the occurrence of a major upheaval (i.e. a coup) grounds to change the FLS's disciplinary proceedings? And was this a proper question for the court?

JUDICIAL INDEPENDENCE

LEGAL AID

1. The PS must engage a lawyer from outside the PS's Office to represent K.
2. K must enter into an agreement immediately with the PS about his contribution to the legal cost of running his case.

1. his right to be given legal representation had been infringed;
2. his right to equality before the law had been infringed; and
3. the current estimate of the length of the trial proper, as made by the prosecution, was '4 to 6 weeks'. The trial was expected to be lengthy, as well as complex and he therefore needed legal representation.

• Whether the applicant's qualified right 'to be given the services of a legal practitioner under a scheme for legal aid' had been contravened.
•  Whether legal representation would be in the interests of justice.

1. the seriousness of the offence with which the applicant was charged. Treason was one of the most serious criminal charges which any person in Fiji could face; and
2. the length and complexity of the case.

LIBERTY

• Was a custodial sentence constitutional and/or necessary?
• Was the fine imposed by the court unreasonable?

LIFE

• Whether to impose the death penalty or a life sentence.
• What was the effect of the ICCPR, an unratified convention, on Tongan legislation?

MOVEMENT

1. the person is involved in activities detrimental to national security, defence or public order; and
2. he is a wanted person in a foreign country for any criminal offence he has committed in that foreign country. In these instances, M said he did not need to give notice for the removal of such persons (s 17A(2)).

• Were the reasons for limiting the rights of A to free movement reasonably justifiable?
• Whether the minister acted ultra vires (beyond his powers) the IA and the CV.

PRIVACY

• Did the media blitz by the police on Y, bearing in mind his lack of involvement in criminal activities at the relevant time (despite his past convictions), infringe his right of privacy contrary to s 37(1) of the bill of rights?
• What were the court's powers to define limitations on rights in the constitution when there was no express legislation limiting the right?

PROCEDURE

1. That R's respective constitutional rights to have their cases determined within a reasonable time by a court of law had been breached;
2. That R's respective constitutional rights to be released from detention on reasonable terms and conditions pending trial had been breached; and
3. That the respective detentions in prison were unlawful and/or amounted to oppression and that R should be released pending trial.

• Whether the 30-day limitation on applying for a remedy under the constitution was constitutional. • Whether R could rely on the HCR for the relief they were seeking?
• Whether R had been granted a trial within a reasonable time?
• Was national security a justifiable reason for the continued detention?

RELIGION

1. The decision by F hindered T's freedom of belief and worship guaranteed under s 23(1) of the CT;
2. The decision by F also prohibited T from exercising freedom of expression, which breached s 24(1), and freedom of association, which was contrary to s 25(1) of the CT;
3. T's freedom of movement had been infringed when he was banished from the island of Nanumaga; and
4. T claimed that the decision was discriminatory and contrary to s 27(1) of the CT, which stated that discrimination referred to the treatment of different people in different ways because of, among other things, their different religious beliefs, and therefore he was also being discriminated against within the meaning of the CT.

• Was freedom of religion subordinate to Tuvaluan culture even if both values were recognised in the CT?
• Whether F had breached the rights of T in considering the effects that a new denomination would have on the interests of the public.

RULE OF LAW

• Whether U had locus standi in a representative capacity.
• Whether the matter was non-justiciable.
• Whether Chapter II (Bill of Rights) of the CSI applied horizontally between citizens or only vertically between the citizen and the state.

1. institute and conduct criminal proceedings;
2. take over criminal proceedings that have been instituted by another person or authority; and
3. discontinue at any stage before judgment is delivered, criminal proceedings instituted or conducted by the Director of Public Prosecutions or another person or authority.

SEXUAL HARASSMENT

SPEECH

• Was there a proper basis for discontinuance of the contempt proceedings against D?
• Should indemnity costs be awarded to D?
• Was D able to criticise the judiciary in these circumstances by exercising her right to free speech guaranteed under the CF?

1. first pay proper attention to the words actually used in context;
2. avoid doing so literally or rigidly;
3. look also at the whole Constitution;
4. consider further the background circumstances when the Constitution was granted in 1875;
5. bear in mind established principles of international laws;
6. finally, be flexible to allow for changing circumstances.

• Were the procedures implemented in enacting the Constitution Amendment Act consistent with those called for by clause 79 of the Constitution? And if so, did the entrenching provision of clause 79 prohibit this particular amendment because it affected the laws of liberty?
• Was it the intentions of the founders of the Tongan Constitution to entrench the values of Tongan culture or was it the intention to invest Tonga with a modern western style constitution and to uphold democratic values?

TORTURE

PART II: INTERNATIONAL CASES REFERRING TO CONSTITUTIONAL BILLS OF RIGHTS, HUMAN RIGHTS CONVENTIONS, STANDARDS AND PRINCIPLES

DISCRIMINATION

1. That it was a crude instrument with which to limit the number of general practitioners and their over concentration. There was no good reason for the policy, based on objectively justified factors which were unrelated to any prohibited ground of discrimination;
2. While s 19 of the BRA did not explicitly mention indirect discrimination, it had to be read broadly and against the framework of international conventions that the country had ratified such as CERD, which defined discrimination as including any distinction that was discriminatory in purpose or effect, thus encompassing indirect discrimination;
3. That while the s 51 notice policy did not explicitly discriminate against foreign- trained medical practitioners based on their national origin, the majority of those who were entitled to practice in New Zealand as of right were of New Zealand origin. Therefore it could readily be inferred that those otherwise entitled to practice in the country but who were excluded by reason of the notice policy were of non- New Zealand origin. Consequently, the policy had the effect of treating the second group differently.

FREE SPEECH

• Whether it was in the best interests of justice to hear the appeal against the dismissal of an exception by the High Court and whether such a dismissal constituted a ‘decision on a constitutional matter'?
• Whether the right to freedom of expression had horizontal application (i.e. did the right apply only as against the state or to private citizens and corporations such as the newspaper as well.)

1. as contemplated by rule 18 of the RCC, this was clearly a ‘decision on a constitutional matter' and it was also in the best interest of justice to hear the appeal as the outcome of the appeal determined the manner in which the trial would be conducted in the High Court; the issue raised in the exception was of great public interest; there was a need to answer the question on whether the CSA required development of the law of defamation;
2.  the right to freedom of expression was of direct horizontal application given the intensity of the freedom, coupled with the potential invasion of that right which could be occasioned by others apart from the state or the organs of the state;
3. it must be realised that it was often a difficult and sometimes impossible task to determine the truth or falsity of a particular statement and this could cause a chilling effect on the publication of information. However, such an effect was considerably reduced when the defence of reasonable publication existed. It allowed the defendants to rebut the unlawfulness of their action by establishing that whilst the publication was defamatory, it was nevertheless reasonable in all the circumstances. A proper balance between freedom of expression and the value of human dignity was established by this defence and further allowed the common law of defamation to be consistent with the provisions of the CSA;
4. in determining whether publication was reasonable, regard would be had to: • the individual's interest in protecting his or her reputation in the context of the constitutional commitment to human dignity;

RELIGION

SEXUAL HARASSMENT

• Whether sexual harassment constituted a ground for dismissal?
• Did sexual harassment have to consist of actual physical contact?
• Was sexual harassment a recognisable legal principle in Indian law?
• What was the nature of sexual harassment in the workplace?

PART III: INTERNATIONAL HIV HUMAN RIGHTS CASES¹⁷

CHILDREN

• Was the action of S in denying the child access to the school justifiable discrimination?
• Was the deferment of enrolment justifiable?

DISCRIMINATION

1. First, did the challenged law make a differentiation that made a rational connection to a legitimate government purpose? Where there was no rational connection, then s 9 had been breached.
2. Second, where there was a rational connection, did the differentiation amount to unfair discrimination?
3. Third, if the differentiation did amount to unfair discrimination (and if it was found in a law of general application), could the differentiation be justified under a provision of the constitution that permitted limitations on rights) (s 36).

HEALTH