EDITORIAL REVIEW 5.1

This first issue of Volume 5 summarises cases decided by national courts in 20 different Commonwealth jurisdictions across 31 major issues. Cases mainly date from 2003 and 2004. In addition to the Digest, INTERIGHTS’ free online Database of Commonwealth Human Rights Law atwww.interights.org/ccl/default.asp now contains over 1,000 short summaries of cases searchable by jurisdiction and over 50 major themes and 200 sub-categories.

CRUEL, INHUMAN OR DEGRADING TREATMENT

In addition to the debilitating effects of HIV and AIDS many sufferers frequently encounter discrimination and stigmatisation. This often occurs in the workplace unless the employer can demonstrate that there is a reasonable justification based on inability to perform an inherent requirement of the job. In Diau v Botswana Building Society the Botswanan Industrial Court firstly had to determine whether the Bill of Rights applied horizontally to a private business as well as to state actors. Answering in the affirmative, the Court noted that ‘in a world where private organisations wield so much power, to exclude them from the ambit of the Bill of Rights would be to both give them a blanket license to abuse human rights and fail to give true meaning to the spirit of the Constitution’. It went on to conclude that the firm’s policy of subjecting all prospective employment candidates to a compulsory HIV test and withdrawing a job offer if they refused was unlawful. For the Court it was a question of dignity and to carry out such tests amounted to inhuman and degrading treatment, since an individual should be ‘the master of his or her own body and… be free to resist any potential violation of their privacy and/or bodily integrity.’ Testing sent out a powerful signal about the intrinsic worth of those suffering from the disease.

Although many countries have outlawed corporal punishment and it has been condemned by both the European Court of Human Rights and the UN Human Rights Committee, prohibition is not universal. Others, such as Canada, have retained it permitting reasonable corrective force by parents and teachers. A Canadian Foundation working on behalf of children’s rights challenged this position on a number of grounds including that it was not in the best interests of the child. However, it did not find support amongst a majority of the Supreme Court which held in Canadian Foundation for Children, Youth & the Law v Attorney General & Ors that such punishment could be exercised within clearly reasonable limits so as not to amount to cruel, inhuman or degrading treatment. In so doing the Court noted that whilst the best interests of the child was an established legal principle in both international and domestic law it was not so fundamental to the dispensation of justice that it should trump all other considerations. The dissenters found that permitting corporal punishment disproportionately breached the rights of children to enjoy the same level of protection for their bodily integrity and security as adults.

The UN Standard Minimum Rules for the Treatment of Prisoners make clear that treatment programmes in prisons should be mainly aimed at rehabilitation and reintegration. However, the reality is that many such programmes can all too easily allow security concerns to take priority. In a case from New Zealand, Taunoa & Ors v Attorney General & Ors, the Court of Appeal found that a behavioural management programme which resulted in long periods of solitary isolation had insufficient regard for the inherent dignity of the participating prisoners breaching not just the Prison Department’s own regulations but the dignity and due process provisions of the Bill of Rights.

DEATH PENALTY

The latest instalment in the consideration by the Privy Council of the legality of the mandatory death penalty in the Caribbean is a case from Jamaica, Watson v R. Once again, the Board, drawing on both its own recent decisions and international law condemned the punishment as denying the basic humanity of the accused by preventing him from making representations as to why the death penalty should not be imposed. Four of the Law Lords in a concurring judgment noted that even if the mandatory death penalty could have been saved as an existing law prior to the promulgation of the Constitution, the state would still be in breach of its international obligations not to impose cruel, inhuman or degrading punishment. This has been the main point of disagreement within the Privy Council with some Law Lords only willing to strike down those death penalty laws that cannot be saved on technical grounds with others believing that it should be outlawed without exception.

DISABILITY

The ability to access and receive appropriate education is one of the major challenges faced by disabled young people. Frequently the schools they are forced to attend against their wishes are unable to offer the specialist teaching and facilities required to accommodate their particular needs. The result is to effectively exclude them from the education system. The Australian High Court in Purvis v New South Wales (Department of Education & Training) was faced with the dilemma of a disabled pupil who had been excluded from his school following violent and offensive behaviour. The focus of the majority of the Court was on the behaviour which resulted in the exclusion rather than the causes of it and the duty of the state for the welfare of the other pupils and staff. By contrast, the dissenting judgment of Justices McHugh and Kirby took as its starting point the reasons for the pupil’s inability to control his behaviour and the need to ensure equal treatment for the disabled. In particular, they held that there were measures that the state could have taken in modifying its own policies and practices on discipline which could have prevented the exclusion occurring. Their judgment contains several important observations on the interpretation of discrimination legislation in relation to disability which emphasise the need for affirmative action and the recognition of difference rather than merely relying on equal treatment.

EDUCATION

Exclusion was also considered by the House of Lords in Abdul Hakim Ali v The Head Teacher & Governors of Lord Grey School. Whilst their Lordships of course recognised that exclusion on the grounds of bad behaviour should be a permitted restriction on the right to education there had to be a factual basis for the decision. In Ali the initial suspicion of misconduct was never substantiated. Therefore whilst the Lords ruled that his initial exclusion was still unlawful (given its duration) but did not breach his education rights since alternative teaching was made available, it held that once the fixed exclusion period had ceased the continued failure to reinstate Ali resulted in a violation.

EQUALITY

When states have to consider cuts in welfare spending frequently the first to be affected are those who do not enjoy citizenship status despite their often long period of residency. This was the situation faced by destitute permanent residents from Mozambique who challenged the constitutionality of welfare legislation on grounds that it both breached their equality rights and their right to live with dignity. The Constitutional Court agreed in Khosa & Ors v Minister of Social Development & Ors stating that economic and social rights should in principle be available to everyone subject only to those restrictions that can reasonably be justified by the state. The Court distinguished those countries where social security could be legitimately denied to certain individuals on the grounds of citizenship from South Africa where there was an entrenched constitutional right to have access to it. In so doing the Court recognised that ‘as a society we value human beings and want to ensure that people’s basic needs are met. If a society is to be based on human dignity, freedom and equality it must seek to ensure that the basic necessities of life are accessible to all.’ The Court did recognise that the position of permanent residents with strong established ties to the country was very different from that of temporary migrant workers, visitors and illegal immigrants. However, this begs the question whether it would be justified to deny such groups any form of support since they also enjoy the same constitutional rights.

Whilst the rights of individuals and organisations to set up autonomous educational institutions is widely recognised in both international and domestic law, states must still ensure that they comply with both accepted standards of education and fundamental rights and cannot delegate their responsibilities. In a case from Mauritius (Bishop of Roman Catholic Diocese of Port Louis & Ors v Suttyhudeo Tengur & Ors) the Privy Council had to consider whether grant–aided Catholic schools could lawfully discriminate on the basis of religion by reserving a certain number of places for Catholic pupils. The fact that over time the schools had become dependent upon the state for funding brought them within the scope of anti-discrimination legislation and outside the ambit of constitutional protection for religious establishments.

An even more blatant case of discrimination arose in the case of Roches v Wade from Belize where the Supreme Court found no justification for dismissing a teacher who became pregnant placing her employer, the Catholic Church, in breach of both the constitutional right to work provisions and the UN Convention for the Elimination of Racial Discrimination. The Court agreed with the applicant that given the Church’s role in managing the schools it was subject to human rights obligations.

EXPRESSION

Even though many states have dispensed with criminal defamation and it has been condemned by international bodies as having a chilling effect on free expression, a number of Commonwealth jurisdictions retain it, including England (dating back to 1275), Canada and Australia. This is despite the fact that it is highly unlikely that the original basis on which the laws were usually introduced – to deal with the risk of public disorder caused by defamation – remains a valid justification and that less restrictive measures involving civil liability can be employed. The issue fell to be considered by the Privy Council in a case from Grenada, Worme & Anor v Commissioner of Police, concerning the charging of a newspaper editor with publishing an intentional libel about the Prime Minister bribing the electorate. The Board concluded that whilst the material did attract free expression protection as relating to political discussion, criminal liability could be justified in the public interest as a reasonable measure designed to protect the reputation of public figures. The fact that a less restrictive civil remedy was available was considered irrelevant, the Board preferring instead to base its decision on the fact criminal libel was retained by some other democratic societies and therefore should be in Grenada.

The Zimbabwean courts have witnessed a number of disputes between the media and government concerning the legality of new regulations. In a number of controversial decisions the government has tended to prevail as evidenced by two cases reported in this issue. Whilst the need for broadcasting licensing has been explicitly recognised as a legitimate restriction on free expression it has also been held that it should be minimal with a presumption in favour of free access to transmission. In Capital Radio (Private) Ltd v The Broadcasting Authority of Zimbabwe & Ors the Supreme Court did hold that certain provisions of new broadcasting legislation were unconstitutional including giving the Minister too much power over the proposed licensing board and improperly imposing a ban on holding both a broadcasting and carrier licence. However, it also ruled that the radio station was unable to challenge other provisions due to lack of standing, thereby allowing the overall regulatory framework to survive.

Whilst state licensing of broadcasters within certain limits may be regarded as acceptable this is generally not the case in relation to individual journalists and newspapers. The UN Human Rights Committee has stated that any regulatory scheme should only be administered by a totally independent body. Nevertheless, in Association of Independent Journalists & Ors v The Minister of State for Information & Ors the Zimbabwean Supreme Court upheld an accreditation scheme for journalists in the interests of public order.

How far should free expression be used to protect potentially harmful material? This was the issue before the South African Constitutional Court in Tasco Luc de Reuck v Director of Public Prosecutions & Ors when it was presented with an argument by the defendant that criminalising child pornography breached his free expression rights. The Court did hold that the US courts’ position on child pornography – that it was not deserving of free speech protection as failing to serve certain values such as seeking the truth – could be distinguished given the respective countries’ different constitutional arrangements. However, the criminalisation of such material could still be justified under the South African Constitution on the grounds that the material was of little value, there was a need to protect the dignity of children and the law did not amount to a blanket prohibition on the use of child pornography. Although the Court declined to comment definitively on whether the principle of the child’s best interests was relevant, it did observe that it should not be used to trump other constitutional provisions such as free expression and privacy since that would be ‘alien to the principle that constitutional rights are mutually interrelated and interdependent and form a single constitutional value system.’

FAIR HEARING

Two cases deal with different aspects of the impact of disclosure on securing a fair hearing. In the Canadian case of R v Taillefer; R v Duguay the Supreme Court held that a failure to disclose a considerable amount of relevant evidence was sufficient to have affected the fairness of the original trial and could have resulted in the accused withdrawing his guilty plea. The Court emphasised that ‘the purpose of a criminal prosecution is not to obtain a conviction but to lay before a jury what the prosecution considers to be credible evidence relevant to what is alleged to be a crime. It should be done firmly and pressed to its legitimate strength but it must also be done fairly.’ In R v H; R v C disclosure of covert intelligence material used to bring a prosecution for conspiracy to supply heroin was resisted on the grounds of public interest immunity. The House of Lords in considering the balance to be struck emphasised that “any derogation from full disclosure, on the grounds that the information to be disclosed is seriously prejudicial to the public interest, should always be the minimum derogation necessary to protect the public interest in question and must never compromise the overall fairness of the trial.’

HOUSING

The UK’s compulsory dispersal scheme for asylum-seekers came under scrutiny in the joined cases of Al-Ameri v Royal Borough of Kensington & Chelsea and Osmani v London Borough of Harrow. The case concerned two asylum seekers who were dispersed to Glasgow from London. After being granted leave to remain and no longer entitled to welfare support they returned to London to seek alternative accommodation. The House of Lords accepted their arguments that they were given no choice in where they could live and that they only lived in Glasgow because that is where their basic needs were being met. Consequently, for the purposes of securing accommodation it was wrong for the local authorities to claim the asylum seekers had freely chosen Glasgow over London and that they had therefore severed their local ties with the latter. Although it was not mentioned in the case this approach is in line with paragraph 9 of General Comment 4 of the UN Economic, Social and Cultural Rights Committee which states that freedom of residence is indispensable to the enjoyment of the right to adequate housing.

LIBERTY & SECURITY

Increasing national security and immigration concerns have been reflected in a corresponding decline in the commitment of many states to uphold liberty and due process safeguards particularly in relation to non nationals. The situation of illegal immigrants can be particularly precarious as demonstrated by a case from the South African Constitutional Court, Lawyers for Human Rights & Anor v Minister of Home Affairs. The Court, in finding that illegal immigrants held on a ship prior to deportation should have their detention subject to judicial review after 30 days, stated that a society should be judged on how it treats the most marginalised: ‘The very fabric of our society and the values embodied in the Constitution could be demeaned if the freedom and dignity of illegal foreigners are violated in the process of preserving national integrity. Many are poor and vulnerable without support systems and an understanding of our legal system.’

LIFE

The positive obligations of the state in relation to the right to life were explored by the House of Lords in R v Her Majesty’s Coroner for the Western District of Somerset & Anor Ex Parte Middleton (FC). The case concerned the failure of the coroner to give an explicit statement of a jury’s conclusions on an inquest of the death of a prisoner. The Law Lords recognised that the European Court of Human Rights had interpreted Article 2 of the European Convention on Human Rights (ECHR) as imposing on states a procedural obligation to initiate an effective public investigation by an independent official into any death occurring in circumstances where there may have been a breach of fundamental rights and state agents are, or may be, in some way implicated. In so doing their Lordships emphasised the fundamental importance of complying with these substantive obligations stating that they ‘must rank among the highest priorities of modern democratic states governed by the rule of law and therefore any violation or potential violation must be treated with great seriousness.’

PRIVATE LIFE

The criminalisation of marijuana possession has been increasingly criticised by some as being a disproportionate response to a relatively harmless substance whilst for others legalisation pushes at an open door towards acceptability of a drug the harmful effects of which are not fully known. This was the debate in the Canadian Supreme Court when it split in one of the two conjoined decisions in R v Malmo-Levine and R v Caine. The majority in R v Caine held that the state had a legitimate interest in banning marijuana use and that the punishments imposed were proportionate given that there was no minimum mandatory sentence (although imprisonment could be imposed). The minority disagreed believing that there was insufficient harm to others justifying prohibition on possession of marijuana. Justice Louise Arbour, who subsequently has become the UN High Commissioner for Human Rights, stated that the balance had not been correctly struck since ‘prohibiting simple possession attempts to prevent a low quantum of harm to society at a very high cost.’

Two cases present contrasting perspectives on the extent to which those in the public eye may argue privacy rights to protect them whilst also exploring the development of general principles in this contested area. In Hosking & Anor v Runting & Anor the New Zealand Court of Appeal recognised that there was an emerging tort guarding against invasion of privacy (compare with Wainwright further below) but that the case for a breach had not been made out by a celebrity couple who were photographed with their family in a public place. A more successful challenge was mounted by a supermodel in Campbell v Mirror Group Newspapers Ltd where the House of Lords ruled in her favour that photographs taken of her in a public place did amount to a breach of her privacy rights. However, the context was very different. The photos were of the model leaving a clinic where she was being treated for drug addiction. Consequently the House of Lords ruled that the risk to her physical and mental health of publication outweighed any public interest concerns.

The debate in Hosking as to whether a general principle protecting the right to privacy exists was also explored by the House of Lords in Wainwright & Anor v Home Office concerning a strip search of a prisoner’s relatives. The Law Lords confirmed that whilst protection of the right to privacy was a value underpinning several statutory and common law remedies this did not give rise to an actionable claim in tort. Nor was it necessary to recognise such a general principle in order to comply with Article 8 of the ECHR. Indeed, the Lords indicated that it will be even harder to make the case for such a tort since incorporation of Article 8 into domestic law under the Human Rights Act 1998 offered a new remedy.

The lawyer-client privilege has tended to be jealously guarded by the courts with, as the Canadian Supreme Court noted in Maranda v Richer & Ors, any exceptions needing to be clearly defined and strictly controlled. In a case involving the search and seizure of a large amount of documents from a lawyer’s office the Court found that the lack of consideration of other reasonable alternatives for obtaining the information, the seizure of other unrelated material and the lack of notice resulted in a breach of s 8 of the Canadian Charter. The majority of the Court also held that facts concerning the amount of fees should be privileged although Deschamps J considered this to be neutral information not deserving of protection.

PROPERTY

Two cases from the South African Constitutional Court deal with property rights. In Daniels v Campbell NO & Ors the Court found no justification for maintaining the longstanding exclusion of Muslim spouses from benefiting from intestacy laws by extending the scope of the legislation since it was ‘far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word “spouse” than to include them’. The case is merely the latest in a series where the Court has adopted a progressive approach to discriminatory laws by reading in previously excluded groups.

The second case affirms both property and housing rights which are frequently in conflict. In Modder East Squatters & Anor v Modderklip Boedery (Pty) Ltd the Court recognised that the continued unlawful occupation of a company’s land by thousands of squatters clearly breached its property rights. However, at the same time, echoing its famous Grootboom decision, the Court recognised the occupiers’ rights, their desperate need for access to at least basic housing and the state’s failure to provide it or have any plan to do so. Consequently, and given the number of occupiers, the Court decided that the only possible remedy was for them to remain on the land and the company to be paid compensation, this to be probably based on the value of the land as previously unoccupied. Although it recognised that ‘in an ideal world the state would have expropriated the land and taken on the company’s burden’ the Court did not issue such an order since it was ‘questionable whether a court may order a state organ to expropriate property’.

REFUGEES

The Australian courts continue to deliberate on a large number of refugee cases thereby helping to more clearly define the provisions of the 1951 Refugee Convention. In SGDB v Minister for Immigration & Multicultural & Indigenous Affairs the Federal Court of Appeal had to determine whether Afghanistan had automatically become a safe haven following the overthrow of the Taliban. It held that merely to consider the safety of the region where the applicant originated from, as the Tribunal had done, failed to take into account the dangers of the journey he would have to undertake to reach there.

How far those threatened with persecution due to their sexuality should be required to act discreetly in order to prevent such attacks was the issue in Appellants S395 & S396/2002 v Minister for Immigration & Multicultural Affairs. The High Court in a case concerning homosexuals threatened with attacks in Bangladesh stated that to require them to act in such a way would undermine the purpose of the Convention since forcing people to conceal their behaviour or membership of a particular group to avoid attacks could constitute persecution itself.

RELIGION

Two cases from Africa and South Asia respectively deal with the extent to which the rights to manifest and practice religion should be restricted to prevent harm or offence to others. In Dibagula v Republic the Tanzanian Court of Appeal concluded that whilst ‘freedom of religion is not so wide as to authorise the deliberate outraging of religious feelings of others’ a public meeting organised by an Islamic group involving preaching which criticised but did not offend other religions did not breach this threshold. Freedom of religion was also upheld by the Indian Supreme Court in TheCommissioner of Police & Ors v Acharya Jagdishwarandam Avadhuta & Anor when it ruled that a religious procession involving ceremonial weapons could proceed since it would not result in any harm to others or breaches of public order. In so doing the Court recognised the autonomy of religious denominations to determine their own practices and the inability of external authorities, including courts, to interfere with them.

TORTURE

Recent events and jurisprudence have apparently called into question the assumption that torture should never be practised under any circumstances and that its abolition had assumed the status of a pre-emptory norm. The debate centres on whether evidence obtained through torture should automatically be excluded. The Zimbabwean High Court in State v Masera & Ors was clear that it should be, holding that the use of force or duress to obtain a statement automatically ruled it inadmissible and that where allegations to that effect were made the burden was on the prosecution to disprove them.