8. Case studies in developing just law

• How to develop a just law

  CASE STUDY: ABORTION LAW

  • Let us take a fake draft law (a Bill), written for the Vanuatu Youth Parliament 2013: Bill for the Amendment of the Penal Code Act to permit legal abortion in particular situations. This Bill was chosen because several cases of infanticide had been in the media at the time the Youth Parliament was being developed.
• PROCESS OF ANALYSIS


  STEP 1: BIG PICTURE

  Are unwanted pregnancies and unsafe abortions a real issue that Vanuatu needs to deal with?

  CHECK FACTS/ INFO:

  • An estimated 76 out of 1000 births in Vanuatu are unwanted (probably this number is higher as this is based on births that are recorded in hospitals)
  • Abortion is not permitted (s 177 Penal Code Act) but it is a defense to ‘show that the miscarriage procured constituted a termination of pregnancy for good medical reasons.’ (S 117(3)).
  • Good medical reasons are not defined!
• Cases show that 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. The baby’s father did not stand by her, and she was too ashamed to tell her parents. The infant was found and survived.
  • Public Prosecutor v X [1995] VUSC 12 17-year-old unmarried woman. Abandoned by the baby’s father. She was too scared to tell her parents. She killed her newborn.
• • Public Prosecutor v Massing [2011] VUSC 1 Unmarried 23-year-old suffocated her newborn. She did not want to place a burden on her family who could not afford another child. One problem was that she had no support from family or communities. She also did not know about contraception.
  • Public Prosecutor v Navue [2010] VUSC 116 22-year-old abandoned newborn who died. She was scared of the reaction of her father so hid her pregnancy. She attempted suicide after giving birth.
• • ‘As abortion is illegal in Pacific Island countries. Women with an unwanted pregnancy can often be forced to practice unsafe abortion, either self-induced or induced by untrained individuals. This can result in sepsis of the uterus and birth canal, hemorrhage, uterine perforation, cervical trauma and may cause infertility and chronic illness.’ (SPC Brochure, Teenage Pregnancy)

  There are no statistics on the number of illegal abortions that occur.
• Completing step 1


  Having looked at the facts do you think unwanted pregnancy and unsafe abortions is 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
• STEP 2: GENERAL CONTENT

  In Step 2, we should look at arguments for and against the general proposal to legalize abortion and we should decide whether the arguments are reasonable/correct/good?

  Remember: There is no “right answer” - Your opinion is what decides
• Arguments FOR abortion

  • Abortion is particularly tricky as it involves personal moral and religious views. Allows women to access safe medical treatment to end unwanted pregnancies rather than using unsafe abortion methods or abandoning/killing newborn babies. BUT: Is this argument good/reasonable/correct?
  • Issue with this argument is that this might be seen as legalising killing unborn babies = permitting the killing of unborn babies
• • 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.
  • There will be fewer unwanted children, who are more likely to face hardships (poverty, lack of education, healthcare, care) as they are unwanted.
  • Allows more control over the pressure of having more children on individuals and families who may already be suffering hardship. BUT: Is this argument good/reasonable/correct?
• Arguments AGAINST abortion

  • Vanuatu is ‘a nation founded on the belief in God and a Christian nation that believes 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 contraception. 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).
• Completing step 2


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

  • If NOT: are there other policies that you think the Government needs to follow to deal with the problem of unwanted pregnancies?
  • If YES: is the drafting of the Bill clear enough (next - Step 3)
• STEP 3: SPECIFIC WORDS - is the specific content of the Bill clear enough?


  • Look at the words closely & change words if need be (legal drafting is a complex exercise!)
  • 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 the issue of lack of technical capacity in some Pacific parliaments raised in topic 7.
• Quintessence of just law

  Laws that are JUST meet the following criteria:

  • they are utilitarian (i.e. achieving the greatest good for the majority of the society)
  • they are timely
  • they are known by all
  • they address inequality
  • they are equally applied to all
  • they protect human rights
  • they are not retroactive.
• Equal application of the law

  DOES NOT always produce a just result:

  • John is a pensioner living on $180 a week and Sarah is an executive who earns $2200 a week. Both Sarah and John are fined $180 for speeding. The fine is the same but the penalty has a far greater impact on John than on Sarah.
• The rule of law

  At its most basic level, the rule of law is the concept that both the government and citizens know the law and obey it.

  A good definition of the rule of law that has near universal acceptance states

  • “…most of the content of the rule of law can be summed up in two points:
  • (1) that the people (including, one should add, the government) should be ruled by the law and obey it and
  • (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.”
• The rule of law wheel

  
• Natural justice


  Procedural fairness is often referred to as ‘natural justice’. The overriding principle of procedural fairness is the concept of fair treatment before the law.
• The doctrine of natural justice includes


  • The right of a person to participate in legal proceedings in which they have an interest
  • The right of a person accused of wrongdoing (the defendant) to know the accusation made against them
  • The right of the defendant to have a hearing, during which they can present evidence
  • The right to have a matter heard before a court that is free from bias. It is for this reason that judges and juries are required to put aside their personal views about a matter and use only the evidence presented to them to make a decision.
• Just laws:

  • adhere to the principles outlined in this presentation
  • follow common sense and natural justice theories
  • allow for flexibility in interpretation while providing a static framework of stability and certainty