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USP
THE UNIVERSIlY OF THE
SOUTH PACIFIC

LW308: Constitutional Law

FALE / School of Law

Final Examination
Semester 1 2017

Face-to-Face - Emalus & Laucala

Online - regional campuses

Duration of Exam: 3 hours + 10 minutes

Reading Tlme~ 10 minutes

Writing Time: 3 hours

Instructions:

This examination Is divided Into four (4) 'Questions'. You MUST complete all four (4)
'Questions'. You must complete all parts of questions two (2) and three (3). Questions
one (1) and four (4) allow Internal choice (follow the instructions carefully) ..

The examination Is worth forly (40) percent of your final result. You MUST obtain at least
sixteen (16) MARKS in the examination in order to pass the course.

Number of pages: 6 including this page.

Open book or closed book: Closed book

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Materials allowed: Students are only permitted to bring an unannotated copy of their
own constitution into the exam room. No other materials are permitted.
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Question One

Short Answer Questions (Total marks 10 - 2.5 marks for each question)

For this question you must answer FOUR QUESTIONS ONLY chosen from the following list.

a. What are the differences between and advantages of written and

unwritten constitutions?

b. Identify and describe the various steps taken to pave the way for your
country's first independent constitution. Include the names and purpose
of the various enactments used, and the consultative processes involved.

c. Would you consider your constitution a rigid or flexible constitution?

Provide reasons for your answer and refer to constitutional provisions
where applicable.

d. In the Fiji Court of Appeal case"Qarase vBainimarama (2009) FJCA 9, the

court considered whether the President of Fiji retained prerogative powers
that enabled him to dismiss the Prime Minister and dissolve the Parliament.
What are the nature of prerogative powers and what were the court's
findings on this issue?

e. How does the principle of necessity differ from the principle of

effectiveness? In what situations do the courts apply these principles and
how?

f. In the Fiji High Court case, Republic of Fiji Islands v Prasad (200 7), the court
dealt with the question of whether the Constitution Amendment Act 7997
remained in force following the Speight coup attempt. To determine this,
the court adopted a doctrine of necessity. Explain the function of the
doctrine of necessity and some of the criteria that must be met for it to be
applied by the courts.

g. The constitutions of the USP region countries are claimed to be modern

constitutions that adopt the best elements of monarchical and republican
style constitution. What best elements is this statement referring to and
how do these two styles of constitutions differ?

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Question Two

Compulsory problem question (Total marks 10)

Tommy Kanevil was the custom. owner of a piece of land frequented by tourists for its
pristine beach. Income from tourists was Tommy and his family's main source of income.
Tommy had two wives during his life. With his first wife he had only one daughter named
Julie and with his second wife he had one son only named Eddy. Julie then had a son
named Shemmy.

After Tommy passed away, Eddy resumed head of the clan and following customary
land inheritance laws on their island, he assumed ownership of the land and continued
to receive the income from tourism. Julie had married out to the next village and
according to custom, the land only passes thbugh the male heirs. Therefore, Eddy did
not share the income with Julie or her son Shemmy.

Under the constitution of their country, Emalusia, customary law is the basis of land
ownership. Below are the relevant provisions:

22. Land belongs to custom owners

All land in the Republic of fmalusia belongs to the indigenous custom owners and their
descendants.

23. Basis of ownership and use

The rules of custom shall form the basis of ownership and use of land in the Republic of
fmalusia.

24. Perpetual ownership

Only indigenous citizens of the Republic of fmalusia who have acquired their land in
accordance with a recognised system of land tenure shall have perpetual ownership of
their land. '

The Constitution of Emalusia also has provisions confirming that customary law is part of
the law of Emalusia:

55. Existing law

(2) Until otherwise provided by Parliament the colonial laws in force or applied in
fmalusia immediately before the Day of Independence shall on and after that day
continue to apply to the extent that they are not expressly revoked or incompatible

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 with the independent status of Emalusia and wherever possible taking due account of
custom,

(3) Customary law shall continue to have effect as part of the law of the Republic of
Emalusia.

However, the constitution is also stated to be the supreme law of Emalusia:

2. Constitution supreme law

The Constitution is the supreme law of the Republic of Emalusia.

The current Minister of Lands has recently proposed some amendments to the
constitution to re-emphasise the preamble in the fundamental rights provisions, which
may have some impacts on customary land ownership laws, Below is the preamble, the
relevant fundamental rights provisions and the proposed changes,

Preamble

WE, the people of Emalusia

PROUD of our struggle for freedom,

DETERMINED to safeguard the achievements of this struggle,

CHERISHING our ethnic, linguistic and cultural diversify,

MINDFUL at the same time of our common destiny,

HEREBY proclaim the establishment of the united and free Republic of Emalusia
founded on traditional Melanesian values, faith in God, and Christian principles,

AND for this purpose give ourselves this Constitution.

5. Fundamental rights and freedoms of the individual

(7) The Republic of Emalusia recognises, that subject to any restrictions imposed by law
on non-citizens, all persons are entitled to the following fundamental rights and
freedoms of the individual without discrimination on the grounds of race, place of
origin religious or traditional beliefs, political opinions, language or sex but subject to
respect for the rights and freedoms of others and to the legitimate public interest in
defence, safety, public order, welfare and health -

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 0) protection for the privacy of the home and other property and from unjust
deprivation of property;

(k) equal treatment under the law or administrative action, except that no law shall be
inconsistent with this sub-paragraph insofar as it makes provision for the special benefit
welfare, protection or advancement of females, children and young persons, members
• developed areas.
of under-privileged groups or inhabitants of less

Proposed Amendments to s5(1)

After "public order, " and before "welfare and health- ", insert "respect for traditional
customs and customary law"

Question:

Shemmy, a current law student at USP is keen to have a share in the income to help him
start his own firm when he graduates. Having gone through the Constitution of Emalusia
and found out that Emalusia has recently ratified the UN Convention on the Elimination
of Discrimination Against Women (CEDAW) he thinks he might have a chance to
challenge his Uncle Eddy's decision in court. He has come to you asking for legal
advice.

Advise Shemmy of the prospects of his this challenge being successful under the current
constitutional provisions and whether the proposed constitutional amendments would
have any effect on this.

Question Three

Compulsory problem question (Total marks 10- 2.5 marks for each sub-question)

Look the constitution your country. Assume you are a judge presiding on a court that
has jurisdiction to hear constitutional cases in your country.

Questions:

Taking into consideration the main objectives and ideals of your constitution, how
would you resolve the constitutional legitimacy of the following pieces of legislation in
regards to their consistency with the constitution:

a. An act implementing freehold (and individual ownership) of all land in the

country;

b. An act abolishing customary authority of chiefs in areas relating to women;

c. An act abolishing all churches other than three specified denominations; and

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 d. A ruling of a judge of the same superior court holding that euthanasia in the
country was permitted as a fundamental human right of each individual.

Question Four

Essay Question (Total marks 10)

Answer ONE ONLY of the essay topics below.

a. Case Analysis

Write a short essay analysing the decision of a particular case and its impact on
constitutional law.

Some ideas for analysis include:

• the case was decided incorrectly;

• the court is correct but for the wrong reasons;
• The court is correct;
• The court missed the point; or
• The whole area of law is a mess. ,
You can refer to:

• the principal case on which you are to comment;

• maybe a lower court decision in the principal case;
• cases that bear on the principal case;
• maybe statutes and legislative history;
• maybe law review articles; or
• maybe newspaper, magazine, or other periodical articles
OR

b. Write a short essay on what you consider is the biggest threat to the separation
of powers doctrine in your own country, or another country within the USP region.
Refer to relevant constitutional provisions where appropriate.

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THE END

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