Chief Executive Officer for Education v. Gibbons
Court of Appeal of Fiji
3 October 2013
Article 16: Protection of privacy
Article 28(2): Education; school discipline
Article 37(a): Torture and deprivation of liberty; cruel, inhuman or degrading treatment or punishment
Sections 25 and 37, Constitution of Fiji: Child’s constitutional rights to be free from cruel and degrading treatment and from interference with his/her personal privacy
Section 26, Family Law Act 2003: Courts when exercising jurisdiction under the Act must have regard for the CRC
A 10 year-old boy was reprimanded for talking several times in class and not heeding to prior warnings. As punishment, the teacher in charge ordered the boy to go to the front of the classroom and remove his trousers. Seeing that the boy had boxer pants and underwear on, the teacher ordered another child to remove the child’s boxer pants leaving the child to stand in front of the class with only his shirt and underwear on for two to three minutes before being ordered to get dressed and return to his seat.
The boy (through his mother) brought a claim against his primary school, teacher, head teacher, the Chief Executive Officer for Education and Ministry of Education (the latter two together referred to as the Ministry of Education) for damages for battery, injury to feelings, and the breach of his constitutional and CRC rights to be free from cruel and degrading treatment and from interference with his personal privacy. The High Court found in favour of the child and granted damages.
This was an appeal by the Ministry of Education to the Court of Appeal to set aside the High Court’s decision. The Ministry of Education did not dispute the facts in its appeal but argued that it should not be liable because: (i) Article 37(a) of the CRC does not apply as the CRC has not been incorporated into the laws of Fiji; (ii) the High Court judge erred in his judgment as the child’s case was not adequately pleaded procedurally; and (iii) the High Court failed to seek the competent determination of psychological and medical experts as to the impact on the child.
Issue and resolution:
Cruel and degrading treatment; right to privacy. The Court of Appeal rejected the Ministry of Education’s appeal in its entirety and ruled that the CRC applied in Fiji.
Fiji ratified the CRC in 1993 and the CRC has subsequently been applied in numerous cases in Fiji. Certain specific provisions of the CRC have also been incorporated into Fiji law by statutes such as the Domestic Violence Decree 2009, Family Law Act 2003 and Human Rights Commission Decree No. 11 of 2009. In particular, Section 26 of the Family Law Act 2003 provides that courts when exercising jurisdiction under the Act must have regard to the CRC. Article 37(a) of the CRC was therefore applicable in Fiji. Furthermore, Articles 16 and 28(2) of the CRC were also relevant and applicable in this case as they dealt with the same subject, even though they were not pleaded.
Even if the child’s representatives had failed to plead technically and specifically certain offences such as battery and injury to feelings, the undisputed facts and evidence of the teacher ordering the child to strip and ordering another child to strip the child of further clothing in front of a large class with the intention of humiliating him, clearly constituted battery and the court considers the claim to have been sufficiently presented.
Finally, there was no need for expert psychological and medical evidence and determination as the facts and evidence clearly showed that the child felt traumatised and humiliated, being half naked in front of 60 to 80 teasing and mocking children. The child subsequently refused to attend the school, resulting in a change of school becoming necessary. None of the facts and evidence was disputed or contradicted and it is impossible and unreasonable for anyone to say that the child did not feel traumatised, humiliated, distressed, embarrassed and angry from the experience.
Excerpts citing CRC and other relevant human rights instruments:
The next issue is whether the schoolteacher’s actions were contrary to Article 37(a) of the CRC. It is not disputed that Fiji has ratified the Convention on the Rights of the Child in the year 1993. It is further not disputed that the CRC has been applied in our country in very many cases.
The only provision that has been pleaded and is framed to be tried as an issue is Article 37(a) of the CRC. However, in closing the submissions, Mr. Naidu has addressed breaches of Articles 16(1), 28(2) and 37(a) of the CRC. Mr. Pratap has only addressed in a generic manner. It will not be unfair or prejudicial if I consider breaches of other articles in addition to what is pleaded as the additional articles are co-related in the sense that it deals with child care and protection.
Did the teacher breach Article 16 of the CRC? I answer this issue in the affirmative. The child was forced to expose his undergarments, which children of the child’s age know and understand it to be private garment. 60 to 80 students watched this child in his undergarments and laughed at him. This has caused the child much embarrassment because he knows that he is not expected to expose his undergarments. When the child had removed his undergarment, his body was exposed albeit with his private garments. The teacher was not permitted to administer such acts on the child and thus she has unlawfully interfered with his privacy. This also means that the teacher breached Article 28(2) of the CRC.
Did the teacher breach Article 37(a) of the CRC? The Article states that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. The plaintiff has submitted that at the very least, the child received an inhumane and degrading treatment by the teacher. I accept the submission of the plaintiff’s counsel on the definition of degrading. The term was defined in the text Clayton R and Tomlinson, H: “Law of Human Rights” Vol. 1, Oxford University Press, New York, 2000 at p 295 at par 8.35: “a punishment may be degrading where it constitutes ‘an assault on a person’s dignity and physical integrity'”. I have, held already, that the child indeed had been humiliated, embarrassed and angered. I further hold that the child felt shameful and that he was attacked physically and mentally. His dignity was interfered with. He felt how he felt because he realised that the treatment that he received was not at all proper but degrading. It is further inhumane to treat a child with an intention to embarrass the child. I hold that there was a breach of Article 37(a) of the CRC.
CRIN believes this decision is consistent with the CRC. The Court correctly applied, and found violations of, Articles 16, 28(2) and 37(a) of the CRC, which respectively protect children’s right to privacy, require school discipline to be administered in a way that respects children’s dignity, and prohibit cruel, inhuman or degrading treatment or punishment of children.
 FJCA 98
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