Law and Society – Case Studies in Developing Just Law

Topic 7 Recap – Who Decides Law and Justice Issues?

• From a lawyer’s view, law is man-made rules, and justice is whatever the law says.

• Law-makers usually strive for ideals of "justice," but the content of laws often reflects particular interests.

• This is a natural part of law, and when new laws are created, there is much scope for debate.

Topic 8 Overview

• Critical analysis practice using an abortion bill as a case study.

• Focus on analysis with fewer readings.

• Review of issues in Pacific legal systems causing a gap between law on paper and law in reality.

• General issues caused by legal pluralism/customary law with a case study on customary law in sentencing.

• Introduction to human rights with a case study on sorcery accusation-related violence.

• Case study on freedom of religion/movement/assembly vs. custom.

• Revision/exam preparation.

Special Obligations of Lawyers

• Lawyers have a special position in society.

• They are officers of the court and part of a self-governing profession.

• Admission requires proving one is a ‘fit and proper person.’

• Lawyers hold a position of trust.

• Practicing law is a privilege, not a right.

Study Tasks

• Study Task 1: Is there a moral obligation to obey a bad law?

• Study Task 2: What does it mean to be a fit and proper person or of good character? Should a law student who lies, cheats, and steals be admitted to practice law? Do lawyers and law students have a special moral obligation to obey the law?

• Study Task 3: Should abortion be illegal? Consider the scenario of a 19-year-old, unmarried, pregnant girl with no job or support, scared to tell her parents, and consider if she would seek a custom medicine abortion. Also, consider a pastor organizing a campaign to block access to an abortion clinic. Do they have the right to force religious beliefs on others?

• Study Task 4: Are unwanted pregnancy and unsafe abortions real issues in Vanuatu that need to be addressed? What policy options are available? Answers depend on perspectives of law and types of justice.

Case Study - Abortion

• A fake law was written for Vanuatu Youth Parliament 2013.

• A Bill for the Amendment of the Penal Code Act to legalize abortion in particular situations was chosen due to media coverage of infanticide cases.

• Analysis of a Bill should be:

  • based on accurate facts and information.

  • based on careful thinking.

  • have clear reasons for agreement/disagreement.

Process Steps

• Step 1: Big picture.

• Step 2: General content.

• Step 3: Specific content.

Step 1 Details

• Is unwanted pregnancy and unsafe abortions a real issue that Vanuatu needs to deal with?

• Check facts/information.

• Estimated 76 out of 1000 births in Vanuatu are unwanted (likely higher due to hospital-recorded births only).

• Abortion is not permitted (s 177 Penal Code Act) but there is a defence to ‘show that the miscarriage procured constituted a termination of pregnancy for good medical reasons.’ (S 117(3)).

• Good medical reasons are not defined!

Facts: Cases

• Cases show unwanted pregnancy is a problem for young unmarried women, who are scared to tell family and have no other support.

• Public Prosecutor v Muluan [2011] VUSC 276: Unmarried 29-year-old abandoned newborn in bushes due to lack of support and shame. The infant survived.

• Public Prosecutor v Massing [2011] VUSC 1: Unmarried 23-year-old suffocated her newborn to avoid burdening her family. She lacked support and knowledge of contraception.

• Public Prosecutor v Navue [2010] VUSC 116: 22-year-old abandoned newborn who died, fearing her father's reaction and attempted suicide after giving birth.

• Malvaru v Public Prosecutor [2011] VUCA 276: The mother was her father’s ‘sexual slave’ since age 12, had 3 pregnancies, and killed two newborns. Her father threatened her and used traditional medicine to end pregnancies.

• Public Prosecutor v Nato [2005] VUSC 7: 19-year-old unmarried, unemployed mother with year 6 education. She hid her pregnancy due to shame, tried to end it, and strangled her newborn, later becoming suicidal.

• Public Prosecutor v Banga [2004] VUSC 21: 21-year-old unmarried mother, USP Foundation student, hid her pregnancy and tried to end it before birth, then strangled her newborn.

• Public Prosecutor v X [1995] VUSC 12: 17-year-old unmarried woman, abandoned by the baby’s father, killed her newborn out of fear of her parents.

Facts: Abortion Dangers

• Illegal abortions in Pacific Island countries often lead to unsafe practices, resulting in sepsis, haemorrhage, uterine perforation, cervical trauma, infertility, and chronic illness (SPC Brochure, Teenage Pregnancy).

• There are no statistics on the number of illegal abortions that occur.

Completing Step 1

• Based on the facts, is unwanted pregnancy and unsafe abortions a real issue in Vanuatu that needs to be dealt with?

• If NO: There is no need to make a law.

• If YES: You might support the Bill.

• Is the law the best way to deal with the problem? (step 2)

• Is the Bill, as drafted, clear and specific enough (step 3)

Step 2: Legalize Abortion?

• Arguments for and against the proposal to legalize abortion.

• Are the arguments reasonable/correct/good?

• There is no “right answer” – your opinion decides.

Argument 1 (For Bill)

• Abortion is particularly tricky as it involves personal moral and religious views. Allows women to access safe medical treatment to end unwanted pregnancy rather than using unsafe abortion methods or abandoning/killing newborn babies.

• BUT: Is this argument good/reasonable/correct?

• Issue: This might be seen as legalizing killing unborn babies. Permits killing unborn babies.

Issues with Argument

• Is a foetus that cannot survive outside the mother’s body a baby yet?

• Until about 24 weeks the foetus cannot survive outside of the mother, so is not a separate person.

Argument 3 (Against Bill)

• Vanuatu is ‘a nation founded on the belief in God and a Christian nation that believe in the sanctity (holiness) of life, at whatever stage the life may be.’

• BUT: Is this argument good/reasonable/correct?

• Issues with this argument: Not all Christians believe that life begins at conception.

• Vanuatu is a secular state where no one’s religious beliefs should be forced on others.

• Vanuatu is also founded on Melanesian custom, which does allow abortion (as shown by custom/lif meresin to cause abortion).

Argument 4 (For Bill)

• Women should have the right to choose whether to have a baby, and to control what happens with their bodies.

• BUT: Is this argument good/reasonable/correct?

• Issue: A woman’s right to choose has to be balanced against other rights, including the rights of unborn children.

Arguments 5 & 6 (For Bill)

• There will be fewer unwanted children, who are more likely to face hardships (poverty, lack of education, healthcare, care) as they are unwanted.

• Allows pressure of having more children on individuals and families who may already be suffering hardship to be controlled.

• BUT: Is this argument good/reasonable/correct?

Issues with Arguments

• Other support services for unwanted children could be set up. For instance, in America, unwanted babies can be left at ‘safe havens’ (usually police and fire stations) with no consequences. They are then found other homes.

• But – given the small size of Vanuatu it will be hard to do this anonymously. There will still be shame and stigma for the mother, and maybe for the child.

• Where will resources to do this come from?

Argument 7 (Against Bill)

• It is better to provide sexual health education and contraceptives to stop unwanted pregnancy in the first place.

• BUT: Is this argument good/reasonable/correct?

• Issue: Family health services in Vanuatu are not good. Vanuatu Family Health Association estimates ‘about 75% of youth living in Vanuatu today do not get sexual health education.’

• Custom and religion can prevent access to contraceptives.

• Endemic family violence can reduce access to contraceptives.

• Improving sexual health education is not going to stop all unwanted pregnancies.

• It not a case of either one or the other.

• You can legalise abortion and improve sexual health education.

Step 2 Completion

• Now you have thought about arguments for and against do you broadly agree with the Bill or not?

• If YES: is the drafting of the Bill clear enough (Step 3)

• If you do not agree with the Bill are there other policies that you think the Government needs to follow to deal with the problem of unwanted pregnancies?

Step 3: Bill Clarity

• Is the specific content of the Bill clear enough?

• Look at the words closely.

• Change words if need be.

• If you were a member of parliament you would want a clear position on each of these issues.

• Only going as far as ‘step 2’ and not going into ‘step 3’ weakens the effectiveness of Parliament as a law-making body.

• This illustrates issue of lack of technical capacity in some Pacific parliaments raised in topic 7.

Next Week: Week 9

• Topic 9 – Challenges for Pacific Legal Systems

• In this topic, we will look at:

  • Reasons why the formal legal system may not fulfill its role in modern Pacific societies;

  • The minimum standards for the operation of a legal system;

  • Reasons why these minimum standards are not all being met in Pacific states; and

  • Identify strategies for meeting these minimum standards.