For those interested in the evolution of Gardbaum’s ‘new Commonwealth model of constitutionalism’ and the potential for the design of a rights instrument to promote inter-institutional dialogue a recent decision of the Court of Appeal of the Supreme Court of the Australian State of Victoria deserves attention: The Queen v Momcilovic  VSCA 50
Victoria has had a Charter of Human Rights and Responsibilities since 2006. The Charter is broadly modelled on legislative bills of rights in the United Kingdom and New Zealand. Victoria is only one of two Australian sub-national jurisdictions to adopt such an instrument (the Australian Capital Territory is the other). Whether or not a national bill of rights is enacted depends in the first instance on the pending response of the national government to the conclusions of the National Human Rights Consultation. The response has been expected since December 2009; the Australian Senate recently called for it to be delivered by May 2010.
As this background suggests, Australia continues to be wary of introducing general, positive rights protection, preferring to rely instead on elected institutions, supplemented by the common law. This wariness is reflected also in the terms of the Victorian Charter. Notably, the interpretation provision, section 32, departs from the UK’s Human Rights Act by requiring statutory provisions to be interpreted in a way that is compatible with human rights ‘so far as it is possible to do so consistently with their purpose’ (emphasis supplied). The explanatory memorandum that accompanied the bill for the Charter before it was enacted by the Victorian Parliament described the purpose of this clause as to ensure that ‘courts do not strain the interpretation of the legislation so as to displace Parliament’s intended purpose…’
Momcilovic makes it clear that this difference in wording is significant. The legislation in issue appeared to reverse the onus of proof in prosecutions for drug trafficking. The Attorney-General argued that, if this provision was otherwise incompatible with the presumption of innocence that was protected by the Charter, it should be interpreted to impose only an ‘evidentiary burden’ on the accused, through application of section 32. The Court declined to do so, on the ground that such an interpretation would depart from the purpose of the provision.
In a set of wider observations on the meaning and operation of the Charter the unanimous Court held that section 32 was not a ‘special’ rule of interpretation but, in effect, gave statutory force to existing common law interpretive rules including the ‘powerful’ common law presumption against legislative interference with rights. It followed that the question of interpretation should be dealt with at the outset, in order to determine whether a Charter right had been breached. Only if breach was found on this basis should the Court move on to consider whether it was justifiable under s.7(2) as a ‘reasonable limit…that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…’
In Momcilovic itself, the Court held that the reversal of the onus of proof was not justifiable under s.7. The Court gave notice of its intention to make a Declaration of Inconsistent Interpretation, under s.36 of the Charter. Under s. 37, the government is required to table a response to a Declaration in the Victorian Parliament within six months.
For the moment at least, this decision has settled the methodology to be adopted by Victorian courts in approaching Charter questions. From the broader perspective of mechanisms for rights protection, however, it is interesting for other reasons as well. It preserves the courts from the controversy that may well have attended a broader understanding of their interpretive function. It places responsibility for action on the government and parliament in circumstances that will require some sort of public response. Aficionados of legislatures as rights protectors should watch this space. And it makes it clear that the interpretive presumption against legislative interference with rights is not dependent on the Charter alone but derives from the common law and so would survive were the Charter to be repealed. In most other jurisdictions, these would be small gains indeed. In the Australian context, however, they are significant. CS
An Associated Press Report states that Egypt’s Constitutional Court has supported the right of women to serve as administrative court judges despite conservative opposition. The ruling addressed a conflict in the State Council, which is the country’s highest administrative court. According to AP, the Constitutional Court said that all citizens were equal before the law. Egypt’s Constitutional Court has issued other fascinating rulings over the years on the state and the rights of women. See e.g. Clark Lombardi & Nathan Brown, Translation, The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996), 21 Am. Univ. Int’l L. Rev. 437 (2006).
Readers will likely recall that the German Federal Constitutional Court earlier this month held unconstitutional a German law requiring the retention of certain telecommunication data (German decision here, German press reports in English here and here). The law that was invalidated transposed Directive 2006/24/EC, passed largely in response to the Madrid and London bombings, into national law.
Ireland had already unsuccessfully challenged that Directive, passed under the first pillar (internal market) rather than the third (police and judicial cooperation in criminal matters), before the European Court of Justice (ECJ)(C-301/06 Ireland v. Council and European Parliament, Judgment of Feb 10, 2009).
As reported here, the EU Commission is now taking another look at the Directive. Incidentally, the new Commissioner for Home Affairs is from Sweden; having resisted transformation of the Directive into national law, the ECJ recently found that Sweden failed to fulfill its obligations (C-185/09 European Commission v. Sweden, Judgment of Feb 4, 2010).
Austria prepared a national law intended to transpose the Directive but hesitated to pass it, citing concerns regarding its constitutionality. Courts in Bulgaria and Romania previously declared the respective national laws implementing the Directive unconstitutional.
We’re delighted to welcome Claudia Haupt, the International and Comparative Law Fellow at George Washington University, as a blogger on the site. Claudia works on Germany and the EU, among other places. She received her first law degree from the University of Cologne and an LL.M., with highest honors, from GW. She also holds a master’s degree in political science from the State University of New York at Albany, and a Ph.D. in political science from the University Cologne. Welcome, Claudia!
Readers of this blog know that we have been following the Kenya constitution-making process with a close eye. This coming week, debate is to begin in the parliament over the revised draft produced by the Committee of Experts. That draft has been considered by the Parliamentary Select Committee for the past couple weeks.
The signs are somewhat ominous. Prime Minister Odinga’s party seems to favor the current draft, while President Kibaki has focused on parliamentary revisions. Revision will take a 2/3 majority, so consensus is required. Some MPs proposed a retreat to work out a consensus, but that was not accepted and so debate will occur on the floor of the Assembly.
The crucial choice to move toward a presidential system as opposed to a semi-presidential one seems to be holding. But other issues identified by the PSC for proposed revisions include provisions regarding the legislature, devolution, the judiciary and transition. Devolution in particular is an important and charged issue for Kenya’s future.
Another issue that has reared its head is abortion. The draft is unusually restrictive of abortion, stating not only that life begins at conception but that abortion is prohibited, without even an exception for the life of the mother. Some MPs are apparently considering amending this, which will no doubt lead to conflict. Can you imagine what would happen if we in the US had to debate that issue and the whole constitution hinged on it? Stay tuned…
The ECtHR rules on Greek-Cypriots’ Right of Return; the ECJ rules on the Economic Treaty Status of Jewish Settlements
Two important rulings from Europe reinforce the increasing significance of supra-national quasi-constitutional regimes in dealing with international political hot potatoes. In a landmark ruling the ECtHR held last week (Demopoulos et al. v. Turkey)that Greek refugees who had fled northern Cyprus during the Turkish invasion in 1974 do not have an automatic, unqualified right of return to their ancestral land. The majority opinion accepted the Turkish position that the passage of time and the reality on the ground may override “family roots” and other such sentiments, practically holding that the rights of the de facto long term tenant may outweigh those of the original individual owner. Instead of actual return, material compensation may be sought. Turkey had established a remedial apparatus to address such claims by Greek Cypriots. The court took it to be an effective course of action.
The court stated that: “It is not enough for an applicant to claim that a particular place or property is a ‘home’; he or she must show that they enjoy concrete and persisting links with the property concerned. Some 35 years have elapsed since the applicants lost possession of their property in Northern Cyprus in 1974. Generations have passed. The local population has not remained static. Turkish Cypriots who inhabited the north have migrated elsewhere; Turkish-Cypriot refugees from the south have settled in the north; Turkish settlers from Turkey have arrived in large numbers and established homes. Much Greek-Cypriot property has changed hands at least once, whether by sale, donation or inheritance.”
While ECtHR rulings do not apply beyond Europe, the potential implications for other contested “right of return” claims seem to be far reaching. In the Israeli media, for example, the ECtHR ruling has been portrayed as supporting Israel’s claim that the Palestinian right of return (dating back to 1948) is not unqualified or absolute, and that any resolution would have to take into account the on the ground reality in the West Bank. It also occurred to me that this ruling appears, prima facie, to stand in contrast to the Australian High Court approach in Wik (1996), where it was held that numerous bona fides leases of land and changes of ownership over the years do not necessarily extinguish original indigenous title. Perhaps our fellow bloggers Rosalind Dixon, Cheryl Saunders or others who are well versed in Australian constitutional law care to elucidate this apparent difference?
Meanwhile, the ECJ ruled on Feb. 25 that goods produced in the Jewish settlements in the West Bank Palestinian territories cannot enjoy the EU trade and tax treaty privileges as goods produced in either Israel or the Palestinian Authority. That means that some of the export-oriented industries located in the Jewish settlements, ranging from food and wine to computer parts, will lose some of their competitiveness edge although it is not clear to what extent (the government may subsidize the added tax costs). At the declarative level, the ruling is essentially a statement by the ECJ that the Jewish settlements are neither a legitimate part of Israel nor part of the Palestinian Authority. So there may very well be a difference in the legal status of Jewish settlements in the West Bank and Turkish settlements in northern Cyprus.
By a 5-4 vote, South Korea’s Constitutional Court has upheld the constitutionality of the death penalty, per this report in the Hankyoreh. Notably, two of the justices in the majority called for legislative modification or abolition of the death penalty. The Korean Bar Association’s statement in response to the ruling describes “the prestige of the state” as being at stake, which suggests that South Korea might be feeling the pull of constitutional convergence on this issue. Having not carried out an execution in 13 years, South Korea is classified by Amnesty International as “abolitionist in practice,” which suggests that formal abolition of the death penalty might be of mostly symbolic value. Then again, constitutional law arguably serves more of a symbolic function than ordinary law.