Court/Judicial body: High Court of Fiji, at Lautoka
Date: March 21, 2002 CRC
Provisions: Article 16: Protection of privacy Article 19: Protection from abuse and neglect Article 28: Education
Other international provisions:Universal Declaration of Human RightsInternational Covenant on Civil and Political Rights
Domestic provisions:Constitution, Fiji, 1997 ( Article 25(1): Freedom from cruel or degrading treatment; Article 43(2): Interpretation)
Background: Ali was convicted and sentenced to 5 years imprisonment and 6 strokes of corporal punishment (i.e., whipping) after pleading guilty to having carnal knowledge of his 6 year old daughter. As required by the Fiji Penal Code, the trial court sent the case to the High Court for confirmation of the corporal punishment portion of Ali’s sentence. Ali subsequently appealed his conviction and sentence to the High Court.
Issue and resolution: Corporal Punishment. The Court abolished corporal punishment both as a sentence following criminal conviction and, in light of obligations under the CRC, for children in the education system. In this particular case, Ali’s sentence of 6 strokes of corporal punishment was therefore quashed; however, his conviction and sentence of 5 years imprisonment was upheld.
Court reasoning: Corporal punishment under the Penal Code, Criminal Procedure Code, any administrative guidelines or otherwise enforced in schools is unlawful under Section 25(1) of the Fiji Constitution (1997), which must be interpreted with regard to international human rights laws. In addition, in light of CRC Articles 16 and 19 and Fiji case law, the High Court found no basis to disturb the 5 years prison sentence as it was in the interest of protecting child victims of abuse and violence.
Excerpt citing CRC and other relevant human rights Section 25(1) of our Constitution states: “Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment”. … The Fiji Human Rights Commission submissions succinctly summarise the relevant international instruments that impinge on the issue of corporal punishment[.] Article 5 of the Universal Declaration of Human Rights to which all UN members are bound states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The above is reiterated in Article 7 of the International Covenant on Civil and Political ‘Rights. The UN Human Rights Committee was established under this covenant. This Committee has interpreted Article 7 as follows: “The prohibition in Article 7 relates not only to acts that cause physical pain but also to acts that cause … [mental] suffering to the victim. In the Committee’s view, moreover, the prohibition must extend to corporal punishment including excessive chastisement ordered as punishment for a crime or an educative or disciplinary measure. It is appropriate to emphasise in this regard that Article 7 protects, in particular, children, pupils and patients in teaching and medical institutions.” The wording of Section 25(1) of our Constitution is almost identical to Article 5 of the Universal Declaration and Article 7 of the International Covenant on Civil and Political Rights. As such we are bound to interpret Section 25(1) in consonance, with international human rights laws. In fact Section 43(2) of the Constitution makes it incumbent on the courts to do so…. … The Court is also aware that the Children’s Co-ordinating Committee in 1999 recommended the abolishing of Corporal Punishment in school. This was in view of Section 25(1) of the Constitution and Fiji’s obligations under the UN Convention of the Rights of the Child (CRC). Section … [28(2)] of the CRC states: “State parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with [the] child’s human dignity and in conformity with the present Convention”. Section 19 of CRC further states: (1) State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment[, m]altreatment o[r] exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. (2) Such protective measures should, as appropriate, include effective procedures for the establishment of social programme[s] to provided necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and as appropriate, for judicial involvement. … Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students…. … In Maleli Qi1adrau Justice Pathik also considered the UN Convention on the Rights of the Child (CRC). This convention was ratified by Fiji in 1993. Articles 16 and 19 of the convention are relevant. The Convention requires governments to take legislative and other measures to protect children from physical or mental violence including sexual abuse. As with all victims of crimes the rights of children have particular poignancy. Children are the most vulnerable members of any community. It is the duty of the courts to protect their interests, especially where parents are wanting. In this case the victim was a young child of6 years. She was the daughter of the Appellant [(Ali)]. In considering the above guidelines and the cases of Maleli Qiladrau and Mohammed Munaf [(each upholding sentences of 5 years for sodomy with a minor)] this Court does not find any basis to disturb the 5 year sentence of imprisonment imposed.
Follow up: On April 10, 2009, President Iloilo abrogated the Fiji Constitution (1997) — the legal instrument relied upon in this case — after the Court of Appeal declared the December 2006 coup and the interim government appointed in January 2007 unlawful. In July 2009, interim Prime Minister Vorege Bainimarama announced that Fiji would have a new Constitution — its fourth — by 2013. In addition, new criminal justice legislation took effect on February 1, 2010 with the implementation of the Crimes Decree, Criminal Procedures Decree and Sentencing and Penalties Decree. According to Attorney General Aiyaz Sayed-Khaiyuml the new Crimes Act replaces Fiji’s 100 year old Penal Code and make Fiji complaint with the Rome Statute, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the CRC.
CRIN comments: CRIN believes that this decision is consistent with the CRC. As recognised by both the Court and the Committee on the Rights of the Child, corporal punishment violates Article 19, which mandates that children should be protected from all forms of violence. In particular, the Court’s discussion of children’s rights in Fiji’s educational system is in line with the Convention, as violence against children must be prohibited in all settings including both schools and homes. Finally, in upholding Ali’s sentence, the Court also acknowledged the State’s obligation to protect children from violence by enforcing laws that criminalize abuse and neglect.
Citation: Ali v The State, High Court of Fiji, FJHC 123, HAA0083.2001 (21 March 2002).
Link to full judgement: http://www.paclii.org/fj/cases/FJHC/2001/123.html