Fiji 2002 High Court judgment
Condemnation of school and judicial corporal punishment – Naushad Ali v State (Criminal Appeal No. HAA 0083 of 2001)
On 21 March 2002, the High Court of Fiji at Lautoka ruled on the case of Naushad Ali v State (Criminal Appeal No. HAA 0083 of 2001), concerning an appeal against a judicial sentence of six strokes of corporal punishment. In previous cases courts had ruled against the use of corporal punishment, but this was the first to examine the constitutionality of corporal punishment. In its submission to the Court, the Fiji Commission on Human Rights had requested that corporal punishment in schools also be considered, arguing that all corporal punishment is against section 25(I) of the Constitution and international human rights law.
Section 25(1) of our Constitution (1997) 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 judgment stated that “the interpretation of a constitution must reflect changes in society” (as reflected in section 3 of the Fiji Constitution itself) and that “punishment and treatment of persons by state institutions that may have been condoned in the past may be offensive for the present”. The judgment went on:
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….”
The judgment paid particular attention to judgments on similar provisions in the Constitutions of Namibia (Ex Parte Attorney General of Namibia: in re Corporal Punishment by Organs of State) and Zimbabwe (Ncube and Others v State), noting that “while there are slight variations in language it is clear that the interpretations of the provisions confirm to a clear pronouncements to the banning of corporal punishment, whether judicial or quasi judicial and administrative, including corporal punishment in schools”.
In addressing corporal punishment in schools, the judgment stated:
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.”
The judgment concluded that the sentence of six strokes be quashed and:
The Court further rules that the provisions on Corporal punishment under the Penal Code and the Criminal Procedure Code breach section 25(1) of the Constitution and are, therefore, unlawful. It is further declared that the infliction of corporal punishment in schools in pursuance of the Ministry of Education guidelines or otherwise is unconstitutional and unlawful and in conflict with Section 25(1) of the Constitution.”
Subsequent law reform
Since the above judgment, Fiji has reformed its laws to prohibit corporal punishment in the penal system. It banned corporal punishment in schools as a matter of policy and has expressed a commitment to reform its laws to prohibit corporal punishment in all settings, including the home.
Following the 2002 High Court ruling, the Prisons Act and the Prisons Regulations, which provided for corporal punishment, were repealed by the Prisons and Corrections Act 2006, which in article 38 explicitly prohibits corporal punishment: “No prisoner may be subjected, by way of punishment, to: (a) corporal punishment in any form….” The Crimes Decree 2009 and the Sentencing and Penalties Decree 2009 make no provision for judicial corporal punishment.
With regard to schools, in 2003 the Government issued Guidelines Banning Corporal Punishment. As at December 2014, prohibiting legislation has not yet been enacted, but the Government has made a commitment to do so. At the Universal Periodic Review of Fiji’s human rights record in 2014, a recommendation was made to “repeal the right ‘to administer reasonable punishment’ in the Juveniles Act 1974 and prohibit all corporal punishment of children, including in the home”: the Government accepted the recommendation.
 Guidelines of the Permanent Secretary, Education Gazette Vol. III, 2003
 31 October 2014, A/HRC/WG.6/20/L.5 Unedited Version, Draft report of the working group, para. 100(5)