Three child bride survivors and their lawyer from the Indonesian Coalition to End Child Marriage (Koalisi 18+) filed a judicial review petition before the Constitutional Court of Indonesia to challenge the constitutionality of Article 7 of the 1974 Marriage Law, which sets the minimum age requirement for women to marry at 16.

In a hearing presided over by Chief Justice Anwar Usman, the court argued that the rule was a form of gender-based discrimination since the minimum age for requirement for  men to marry was 19, and therefore contradicted the 1945 Constitution.

The court, however, refused to grant the plaintiffs' demand to raise the minimum age for women to marry to that of the age for men, arguing that it was the authority of lawmakers and the court did not want to make a decision that could prevent any future law revisions.  

"[The court] orders lawmakers to revise the 1974 Marriage Law, particularly in regard to the minimum age for women to marry, within a maximum three years," Anwar read out the ruling on Thursday.

Justice Saldi Isra said the provision in article would remain valid until the deadline of three years. Should there be no revision prior to the deadline, the minimum age requirement would be harmonized with the 2002 Child Protection Law, which defines a child as someone below 18 years old.
 
Justice I Dewa Gede Palguna said that those at the age of 16 were still categorized children under the Child Protection Law, meaning that those who married at 16 were considered as being involved in child marriage, which had negative impact and threatening children's welfare.

"Not only in terms of negative impact on health, there are possibilities of child exploitation and the increase of threats of violence against children in underage marriage," Palguna said, adding that child marriage also threatened children's rights to education.


https://www.thejakartapost.com/news/2018/12/13/breaking-court-orders-revision-of-minimum-age-for-women-to-marry.html?fbclid=IwAR2A4yGlwVBPJS-O0x6VaDjWE5tPPNAo1onuK6EGmfHMh_wKvJYhBjGd6ho


 

The High Court of Tuvalu cited the CRC in interpreting the Constitution, which failed to protect the legal rights of children in situations in which children defendants had not yet been interviewed by the police. Through the CRC, the Court held that children in police custody had the right to be informed by the police that they had a right to have a parent, guardian or legal adviser present. The Court also held that the police must take reasonable measures to ensure that such assistance was in place before the police could interview the child.

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A male was convicted of murder. The incident occurred when the male was sixteen years old. Following his conviction, he did not appeal, and had served over four years of his sentence when he petitioned the High Court of Tuvalu for a review of his case, given that he was a minor when the crime occurred. In deciding on the case, the Court cited the CRC and said that Tuvalu, as a signatory, was “required to review [its] laws in relation to children.” The Court then suggested that legislation be passed mandating greater review by the government of life imprisonment or sentences of many years, especially for children. However, the Court refused to alter the applicant’s sentence of life imprisonment, as he had not appealed and was essentially asking the Court to review one of its earlier decisions.

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A Tuvalu court rejected the argument that CEDAW and CRC could be relied on in deciding suits involving children. Although the Tuvalu government had ratified CEDAW and CRC, the court held that the Tuvalu legislature must enable the conventions locally through legislation. If the conventions are not enabled through domestic legislation, the court said, they will only apply when ambiguities or inconsistencies in domestic law arise. The court held this despite the Constitution allowing for the use of human rights conventions in the appropriate situation.

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The Supreme Court of Tonga held that, although the United Nations Convention on the Rights of the Child (UNCRC) had not been enabled by legislation in Tonga, there was a strong need for it regardless. Therefore, the Court said, courts in Tonga could legitimately refer to the CRC as a guide regarding acceptable forms of treatment for children. It then ruled that child offenders were entitled to have present their parents during questioning.

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A person had pleaded guilty to manslaughter of a child and was sentenced to a three and a half years imprisonment. The state appealed, arguing that the sentence was an insufficient punishment for a crime of such magnitude. The Court of Appeal of Samoa cited the CRC regarding the right not to be subjected to cruel treatment or punishment. It held that “[a]ll Samoan Courts should have regard to this Convention in cases within its scope.” The Court then quashed the original sentence and replaced it with a five-year sentence.

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As in the Maumasi case the previous year, the Court of Appeal of Samoa quashed a sentence (this time the sentence of a person who was convicted of engaging in sexual intercourse with a minor) and replaced it with a longer sentence (the nine months sentence was replaced with a three-year sentence). In so doing, the Court cited the CRC again, and quoted the Court’s previous holding in Maumasi, that “[a]ll Samoan Courts should have regard to this Convention in cases within its scope.”

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Citizens of New Zealand who had been born there challenged the deportation order of their parents by the Department of Immigration. The parents had been born outside of New Zealand and were undocumented. The Supreme Court of New Zealand cited Article 3 of the Convention on the Rights of the Child. The Court held that the best interests of the child, as per Article 3, in this case should be granted “due weight”. In this particular context, however, they should not be granted “paramount weight”. The Court stated that giving “paramount weight” to such interests would disproportionately overlook other relevant considerations.

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The appellant, a citizen of Nauru, wished to adopt a child also a citizen of Nauru. The appellant’s spouse, however, was not a citizen of Nauru. Under the Constitution, both parents had to be citizens of Nauru in order for the couple to adopt. The appellant challenged this in court and cited the CRC. The Supreme Court of Nauru sided with the appellant and said that such a law was in violation of the spirit of the CRC. The Court considered the CRC even though it had not been incorporated into domestic law in Nauru.

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The High Court of Fiji had to decide whether to grant bail to a father of a four-year-old boy. Without the mother, the son had no caregiver and his clothes were locked up at the mother’s house. The Court cited the CRC and noted that it had to consider the best interests of the child. Using these guidelines, the Court granted the mother bail. See also Yuen v The State, [2004] FJHC 247, a case in which the High Court of Fiji considered a similar fact pattern. The Court granted bail to the mother, but noted that although under the CRC the best interests of the child are to be given primary importance, they are not to be given paramount importance. Other factors could overrule the best interests of the child.

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A couple, neither of whom were citizens of Fiji, wished to adopt a child. The Constitution of Fiji contained a residency requirement for those wishing to adopt, and the couple had not satisfied it. Nevertheless, the couple cited the CRC, CPCC, and South Australian Adoption Act 1988 in court in an attempt to adopt regardless. They argued that, regardless of what the Constitution said, the best interests of the child were at stake, and would best be served by an adoption. If the courts allowed this argument, it would mean a direct overruling of the Constitution by an international human rights norm.

The High Court of Fiji rejected the argument. The Court said that although it should consider the best interests of the child, its job was to apply the law and not to amend it. Moreover, the Court said, there was no factual determination of what would be in the best interests of the child at issue (there was no home study report on the prospective parents).

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There was a custody dispute between the mother of a child and the respondents, who were relatives of the child and who had helped raise the child. The High Court of Fuji, in deciding that the mother should have custody of the child, referred to the Hague Convention for the first time, even though it was an unratified convention in Fiji. The Court also interpreted section 43(2) of the Constitution as meaning that courts in Fiji had an obligation to apply human rights conventions, even if not cited by any parties.

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The High Court of Samoa imposed punitive damages as a deterrent against future violations of the rights of the child under the CRC. In so doing, the Court ruled against the powerful Village Fono (council and local traditional law body). The Village Fono had banished children and their families from their village homes. Such banishment is a customary punishment in Samoa.

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The appellant of final appeal, who was born to a father who is a Japanese citizen and a mother who has nationality of the Republic of the Philippines, a couple having no legal marital relationship, submitted a notification for acquisition of Japanese nationality to the Ministry of Justice in 2003 on the grounds that he/she was acknowledged by the father after birth, but the minister determined that the appellant had not acquired Japanese nationality due to the failure to meet the requirements for acquisition of Japanese nationality. In this case, the appellant sued the appellee, seeking a declaration that the appellant has Japanese nationality.

Court ruling

In addition, it seems that other states are moving toward scrapping discriminatory treatment by law against children born out of wedlock, and in fact, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which Japan has ratified, also contain such provisions to the effect that children shall not be subject to discrimination of any kind because of birth. Furthermore, after the provision of Article 3, para.1 of the Nationality Act was established, many states that had previously required legitimation for granting nationality to children born out of wedlock to fathers who are their citizens have revised their laws in order to grant nationality if, and without any other requirement, it is found that the father-child relationship with their citizens is established as a result of acknowledgement.

                                                    xxx                                   xxx                                    xxx

In light of these changes in social and other circumstances at home and abroad, we should say that it is now difficult to find any reasonable relevance between the policy of maintaining legitimation as a requirement to be satisfied when acquiring Japanese nationality by making a notification after birth, and the aforementioned legislative purpose.
                                                  xxx                                   xxx                                    xxx
Considering that acquisition of Japanese nationality means a lot to people in order to enjoy the guarantee of fundamental human rights and other benefits in Japan, we should say that the disadvantages that children would suffer from the above-mentioned discriminatory treatment cannot be overlooked, and we must say that we can hardly find reasonable relevance between such discriminatory treatment and the aforementioned legislative purpose. In particular, between children acknowledged by Japanese fathers before birth and those acknowledged after birth, it is difficult to find a difference in general in terms of the level of the tie with Japanese society developed through their family life with Japanese fathers, and it is also difficult to explain the reasonableness of the policy of applying the above-mentioned distinction when granting Japanese nationality from the perspective of the level of the tie with Japanese society. In addition, under the Nationality Act that adopts the principle of jus sanguinis, if, despite the fact that children born out of wedlock to Japanese mothers can acquire Japanese nationality by birth, children born out of wedlock who satisfy only the requirement of being acknowledged by Japanese fathers after birth are not allowed to acquire Japanese nationality even by making a notification, we should say that such a situation is somewhat inconsistent with the basic stance of the Act from the perspective of gender equality.
                                                  xxx                                   xxx                                    xxx
For the reasons stated above, we should conclude that although the legislative purpose itself from which the Distinction is derived has a reasonable basis, reasonable relevance between the Distinction and the legislative purpose no longer exists due to the changes in social and other circumstances at home and abroad, and today, the provision of Article 3, para.1 of the Nationality Act imposes an unreasonable and excessive requirement for acquiring Japanese nationality. Moreover, since the Distinction involves another distinction described in (2)(d) above, we must say that it causes a child born out of wedlock who satisfies only the requirement of being acknowledged by a Japanese father after birth to suffer considerably disadvantageous discriminatory treatment in acquiring Japanese nationality, and even if we take into consideration the discretionary power vested in the legislative body when specifying requirements for acquisition of Japanese nationality, we can no longer find any reasonable relevance between the consequence arising from the Distinction and the aforementioned legislative purpose.
                                                  xxx                                   xxx                                    xxx
Therefore, we must conclude that at the time mentioned above, the Distinction amounted to unreasonable discrimination, and the provision of Article 3, para.1 of the Nationality Act was in violation of Article 14, para.1 of the Constitution in that the provision caused the Distinction.

https://www.courts.go.jp/app/hanrei_en/detail?id=955

The appellant of final appeal, who was born to a father who is a Japanese citizen and a mother who has nationality of the Republic of the Philippines, a couple having no legal marital relationship, submitted a notification for acquisition of Japanese nationality to the Ministry of Justice in 2003 on the grounds that he/she was acknowledged by the father after birth, but the minister determined that the appellant had not acquired Japanese nationality due to the failure to meet the requirements for acquisition of Japanese nationality. In this case, the appellant sued the appellee, seeking a declaration that the appellant has Japanese nationality.

Court ruling

In addition, it seems that other states are moving toward scrapping discriminatory treatment by law against children born out of wedlock, and in fact, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which Japan has ratified, also contain such provisions to the effect that children shall not be subject to discrimination of any kind because of birth. Furthermore, after the provision of Article 3, para.1 of the Nationality Act was established, many states that had previously required legitimation for granting nationality to children born out of wedlock to fathers who are their citizens have revised their laws in order to grant nationality if, and without any other requirement, it is found that the father-child relationship with their citizens is established as a result of acknowledgement.

                                           xxx                                                 xxx                                         xxx
In light of these changes in social and other circumstances at home and abroad, we should say that it is now difficult to find any reasonable relevance between the policy of maintaining legitimation as a requirement to be satisfied when acquiring Japanese nationality by making a notification after birth, and the aforementioned legislative purpose.
                                           xxx                                                 xxx                                         xxx
Considering that acquisition of Japanese nationality means a lot to people in order to enjoy the guarantee of fundamental human rights and other benefits in Japan, we should say that the disadvantages that children would suffer from the above-mentioned discriminatory treatment cannot be overlooked, and we must say that we can hardly find reasonable relevance between such discriminatory treatment and the aforementioned legislative purpose. In particular, between children acknowledged by Japanese fathers before birth and those acknowledged after birth, it is difficult to find a difference in general in terms of the level of the tie with Japanese society developed through their family life with Japanese fathers, and it is also difficult to explain the reasonableness of the policy of applying the above-mentioned distinction when granting Japanese nationality from the perspective of the level of the tie with Japanese society. In addition, under the Nationality Act that adopts the principle of jus sanguinis, if, despite the fact that children born out of wedlock to Japanese mothers can acquire Japanese nationality by birth, children born out of wedlock who satisfy only the requirement of being acknowledged by Japanese fathers after birth are not allowed to acquire Japanese nationality even by making a notification, we should say that such a situation is somewhat inconsistent with the basic stance of the Act from the perspective of gender equality.
                                           xxx                                                 xxx                                         xxx
For the reasons stated above, we should conclude that although the legislative purpose itself from which the Distinction is derived has a reasonable basis, reasonable relevance between the Distinction and the legislative purpose no longer exists due to the changes in social and other circumstances at home and abroad, and today, the provision of Article 3, para.1 of the Nationality Act imposes an unreasonable and excessive requirement for acquiring Japanese nationality. Moreover, since the Distinction involves another distinction described in (2)(d) above, we must say that it causes a child born out of wedlock who satisfies only the requirement of being acknowledged by a Japanese father after birth to suffer considerably disadvantageous discriminatory treatment in acquiring Japanese nationality, and even if we take into consideration the discretionary power vested in the legislative body when specifying requirements for acquisition of Japanese nationality, we can no longer find any reasonable relevance between the consequence arising from the Distinction and the aforementioned legislative purpose.
                                           xxx                                                 xxx                                         xxx
Therefore, we must conclude that at the time mentioned above, the Distinction amounted to unreasonable discrimination, and the provision of Article 3, para.1 of the Nationality Act was in violation of Article 14, para.1 of the Constitution in that the provision caused the Distinction.

https://www.courts.go.jp/app/hanrei_en/detail?id=955

The applicant (F) claimed damages of $29,000 for being wrongfully assaulted by the police. F, aged 13 years (12 at the time of the incident), was savagely beaten by police officers after being falsely accused of theft. F was detained by the police for 20 hours before being released. F also claimed that he had suffered injuries as a result of the attack. Upon his release, F further claimed that he had been threatened. The police pleaded guilty and accepted that F had been wrongly accused.

Decision

F was awarded damages of $10,000, comprising $5,000 for wrongful confinement and $5,000 for exemplary damages. The court referred to the case of Akau'ola v Fungalei [1991] Tonga LR 22, and issued the following admonition to police officers:

A number of police officers still appear to believe that they have the right to exercise discipline over the public … such abuse of authority will not be tolerated, and where it is proved to have occurred it will be stamped on, with increasing severity, until the bully boy in uniform no longer roams our streets.

Police officers had to understand that their role in criminal investigation was exactly that ? to investigate cases through interviewing witnesses and, through appropriate use of forensic methods, to gather hard factual evidence that would stand up in a court of law.

In December 1995, Tonga acceded to the CRC. The judge further said that though it still had to be properly ratified, the accession indicated a willingness by the nation to be bound by its terms. Article 37 of the convention sets out the obligations of a state concerning the apprehension and detention of a child (defined as a person under the age of 18 years). The opening words of each paragraph of the article are relevant to the present case. They read:
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …
No child shall be deprived of his or her liberty, unlawfully or arbitrarily …
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age …
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance …
In the present case, all of these obligations were flagrantly abused. However, in the assessment of damages, the fact that some Tongans have no regular source of cash income was taken into account with a view to keeping awards of damages in proportion to the value of money and general conditions in the Kingdom.


http://www.paclii.org/other/PHRLD/pacific-human-rights-law-digest-2.html#FAAOSO_v_PAONGO__ORS

The plaintiff challenged a provision of the Japanese legal code. The provision stated that the intestate share guaranteed by Japanese law to an illegitimate child shall be one-half of the share guaranteed to a legitimate child. The Supreme Court of Japan ruled that this was constitutional. Although the Court cited the ICCPR, it nevertheless seemed to decide in opposition to it, in particular Article 24. The decision was made with ten justices in the majority and five in the dissent. The five dissenting justices asserted the importance of Article 26 of the ICCPR. They opined that the Court was divided over how heavy the legal weight of international human rights treaties should be in the Japanese legal system.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 477)