UNIVERSITY OF THE WEST INDIES

ST. AUGUSTINE

EXAMINATIONS OF DECEMBER 2015

Code and Name of Course LAW 6720 PUBLIC LAW 1: Advanced Constitutional Law Paper

Date and Time: Friday December 11 - Monday December 14,2015,9:00 am

INSTRUCTIONS TO CANDIDATES: This paper has 2 pages and 4 questions.

Candidates are required to answer ANY THREE (3) questions.

1. "To say that a constitution is based upon the principle of the separation of powers is a pithy
description of how the constitution works. .. .different constitutions apply this principle in their
own ways and a court can concern itself only with the actual constitution and not with what it
thinks might have been an ideal one." [per Lord Hoffman in Boyce v R (2004) 64 WIR 37 (PC
Bar)]

Discuss.

2. "'Property' is a mere interest and a narrow one at that, and it is a mistake to classify and/or
treat it as an entrenched, fundamental human right."

Critically discuss this proposition with regard to both regional and international experiences
regarding the protection of property vis-a-vis national developmental goals.

3. In this course we discussed the importance of constitutional interpretation in part because it is

a source of constitutional change, particularly when it comes to recognizing new or interpreting
old fundamental rights. We considered several schools of jurisprudence (natural law, positivism,
sociological jurisprudence, legal realism, liberalism, conservatism, critical legal studies, feminist
legal theory, critical race theory, postmodernism, and law and economics) and sources of
interpretation (texrualism, structuralism, stare decisis, history, prudential reasoning, ethical or
moral reasoning, and comparative constitutional theory). We also discussed levels of generality
in defining rights.

One example of constitutional interpretation we examined was the recent U.S. Supreme Court
case of Obergefell v. Hodges in which the court looked at the right to marry for same sex
couples.

Write your own opinion in this case (does not matter which side you take) but with each
argument, identify either which school of jurisprudence or which source of interpretation you are
employing. Also discuss which level of generality you are employing and include counter-
arguments to what you consider to be the opposing side's strongest arguments. Do not limit
yourself to the arguments made in the court decision.

4. The Church of Personal Success (CPS), is a relatively new organization devoted to the
spiritual, psychological and financial success of its members. CPS teaches that people, originally
from the extra-terrestrial Kingdom of Xenu, are immortal spiritual beings who have forgotten
their true nature. CPS holds seminars on how to shed psychological, moral, and emotional
limitations, think clearly and achieve one's financial goals. Members must give 15% of their
earnings to CPS. Incorporated in 2000, the State of California recently gave CPS non-profit tax
exemption. CPS's membership is small but deeply loyal.

CPS believes that its members have a duty to recruit new members, as well as to dissuade any
member from leaving CPS. In response to attacks in Paris by terrorists aligned with the radical
Muslim organization ISIS, the Paris branch of CPS decided the best response was to step up its
recruitment efforts of Muslims. CPS thought that if more Muslims experienced financial success,
they would be less likely to join radical groups like ISIS, Al Quada and Boko Haram.

A group of members from the Paris branch of CPS went into a predominantly Muslim
neighbourhood to proselytize by approaching people on the street sidewalks and knocking on
doors of private residences. Jean and Michelle were a CPS team in this effort and approached
Aishah, a women on the sidewalk wearing a hijab. Jean did most of the talking and began by
telling Aishah that if she joined the Church of Personal Success, she would be a financial
success. Later, however, the conversation changed and Jean began denouncing Islam. Jean made
a number of assertions, including the following:

"Islam is dictatorial, hateful and undemocratic."

"Islam a false religion and a religion of violence and human rights violations."
"Aishah, if you remain a Muslim, you will never make it back to the Kingdom of Xenu
which means you will burn eternally in hell."

These comments angered Aishah and when a few friends of hers joined her, a shouting match
ensued between Aishah and her friends, and Jean and Michelle. The police came and arrested
Jean and Michelle and charged them with inciting religious hatred and disturbing the peace.

Describe the constitutional issues involved in this case, the arguments on both sides, and who
should win.