Naushad Ali v. State

N, a cane cutter, was arrested on charges of having unlawful sexual intercourse with his six year old daughter contrary to s 175 of the Penal Code. Within two hours he was presented before the court and cautioned. The magistrate asked N whether he wished to consult his lawyer, but he declined. At trial he pleaded guilty and was sentenced by the magistrate to 5 years’ imprisonment and six strokes of corporal punishment subject to confirmation by the High Court, pursuant to s 34(2) of the Penal Code.

N appealed against his conviction on the grounds that his plea was not genuine but entered as a result of sustaining severe beatings and ill treatment whilst in police custody and that he was denied the opportunity for legal representation. He also appealed against his sentence of imprisonment on the grounds that it should be reduced or suspended since he was a first time offender and there was no mental torture or permanent injury to the victim. In addition, he submitted that corporal punishment violated his right not to be subjected to cruel or inhuman punishment as guaranteed by s 25(1) of the Constitution. Finally, he requested to be referred to a psychiatrist, his counsel arguing that he was virtually illiterate and of low mentality.

In its amicus brief, the Fijian Human Rights Commission requested that the Court examine the use of corporal punishment in schools.

[Adapted from INTERIGHTS summary, with permission]

The Court upheld the conviction and the five-year sentence, but quashed the sentence of corporal punishment.

Section 309(1) of the Criminal Procedure Code (‘the Code’) makes clear that where a person has pleaded guilty he cannot appeal against his conviction, but only against sentence. However, this will not apply where the plea is any way equivocal and uncertain and/or the accused did not fully understand the effect of the plea, i.e. that he was admitting the offence with which he had been charged. The record of the magistrate’s court clearly demonstrates that N stated that he pleaded guilty of his own free will and was not forced to do so by the police.

N’s submissions, particularly his request to see a psychiatrist, appear to suggest that he was mentally unfit to plead. However, his behavior does not suggest that this is the case. He signed his caution interview in English and has a job that cannot be undertaken by someone who is mentally incapable. There was no indication by his counsel at first instance that he did not understand the proceedings.

Similarly, it is hard to believe N’s allegations concerning police brutality. If these had been true then the magistrate would have noticed evidence of physical injury, particularly given the short time between being taken into custody and presented before the court. His right to counsel was not violated as he was asked whether he wished to consult a lawyer.

The Court held the sentence should not be changed as the severe sentences existing within sentencing guidelines are appropriate to protect children. Article 19 of the Convention on the Rights of the Child requires the state to take all appropriate legislative and other measures to protect children from all forms of physical or mental violence including sexual abuse. Noting the sensitivity of children, especially to adults in close proximity that they trust, courts are under a duty to protect their interests.

The Court held that the corporal punishment was unconstitutional and a violation of international human rights. Section 43(2) of the Constitution requires that the Bill of Rights provisions of the Constitution must be interpreted not merely in the light of evolving human rights jurisprudence of this country, but also internationally, making certain punishments that were condoned in the past unacceptable today. The Court noted that the the UN Human Rights Committee has interpreted Article 7 of the International Covenant on Civil and Political Rights as prohibiting corporal punishment.

The Court also noted that the use of corporal punishment in schools has no basis in statute since it is not provided for by the Education Act and that it is otherwise unconstitutional.

[Adapted from INTERIGHTS summary, with permission]

“The Court does not need to consider in detail the affidavit materials. Suffice it to mention that the matters deposed to by the Appellant does not suggest him to be a completely foolish or dumb person. He signed his caution interview in English. He is a cane cutter which is not a job for a "fool person". The legal aid counsel who first appeared for him and had consultations with the Appellant did not indicate that the Appellant did not understand the proceedings he was facing before the High Court. The Appellant did indicate he wished to appeal and that his relatives had seen a lawyer. All in all the Court does not have any basis to doubt the Appellant's mental capacity to plead and to understand the charges and proceedings he was facing. Appellant Counsel's submission that "He is poor, virtually illiterate, lo\v mentality" is not borne out by any evidence.” (p. 4)

“The Convention [on the Rights of the Child] 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 chi1dren have particu1ar poignancy. Children are the most vu1nerab1e 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 chi1d of6 years. She was the daughter of the Appellant.” (p. 6)

“The Penal Code provides for the imposition of corporal punishment for certain offences. One cannot discern any particular pattern in the nature of offences that attract corporal punishment. .All felonies do not attract corporal punishment. For example, Rape, defilement and certain other offences against morality attract corporal punishment. Some robberies and extortion do. Manslaughter which attracts a sentence of life imprisonment does not have provisions for corporal punishment. However, disabling in order to commit a felony or misdemeanor attracts life imprisonment with or without corporal punishment.. For no offence is corporal punishment mandatory. The Magistrates Court is entitled by law to impose corporal punishment not exceeding twelve strokes.

No data or information has been presented to the Court on the history of corporal punishment, the pattern of crimes attracting corporal punishment and the efficacy of corporal punishment in Fiji. From a perusal of the files some shop breaking entering and larceny offences have attracted corporal punishment. Not all rape cases have attracted corporal punishment. It appears to be based on the individual discretion of Magistrates. It is not clear what sentencing objectives have been targeted, No reasons are given as to why corporal punishment is imposed for the same offence in different situations. Not ail heinous and violent rape attract corporal punishment. It is discretionary, based on subjective value judgments. On traditional sentencing principles and objectives it remains unsatisfactory. The situation in Fiji now is no different from what the Report of the Departmental Committee on Corporal Punishment discovered in the U.K. as long ago as 1938.” (p. 13)

“Many teachers seem to regard their pupils as inferior beings who have no rights save those allowed them by the teacher. Children are individual personalities as much as anyone else. even if they are still undeveloped, and should be treated with the same consideration and courtesy as adults” (p. 16)