The Commonwealth Human Rights Law Digest

The Commonwealth Human Rights Law Digest now has three complete Volumes with a fourth almost complete. Each volume consists of three issues containing 50 summaries of human rights decisions from domestic courts of the Commonwealth. Cases included in the Digest are those referring to international human rights instruments, to provisions of Bills of Rights within national constitutions, or which otherwise have a significant human rights dimension. The subscription rate for the Digest is maintained at a low level to ensure that the publication provides an affordable means of accessing Commonwealth human rights jurisprudence. In addition, INTERIGHTS supplies a number of Commonwealth judges, court libraries and non-governmental human rights organisations with subscriptions to the Digest, with around 1,400 copies of each issue currently being distributed. The Digest is published with the generous support of the Commonwealth Secretariat. Each Digest has an editorial review outlining the major cases contained in the Issue.

Click here for EDITORIAL REVIEWS AND UPDATES FROM VOLUME 2

Click here for EDITORIAL REVIEWS AND UPDATES FROM VOLUME 1

Click here for EDITORIAL REVIEW AND UPDATE VOLUME 3 ISSUES 1 & 2

EDITORIAL REVIEW AND UPDATE VOLUME 3 ISSUE 3

The third issue of the third volume of the Digest summarises cases decided by national courts in 25 different Commonwealth jurisdictions. The majority of the cases date from 2001. For the first time the Digest includes a decision from Malta.

Cruel, Inhuman or Degrading Treatment (top)

The question as to what constitutes cruel, inhuman or degrading treatment continues to be explored in a variety of different circumstances. Cases in this issue range from traditional concerns about ill treatment in police custody to more contentious matters involving the denial of medical care to terminally ill patients. In the Maltese case of Joseph sive Tracy Ellul v Advocate General & Anor asking embarrassing questions of a transsexual was found to be insufficiently severe to meet the inhuman or degrading threshold. The complex ethical case of NHS Trust A v M saw the English High Court deciding whether the denial of medical treatment to two patients in a permanent vegetative state would violate their rights under Article 3 of the European Convention on Human Rights (ECHR). It found that, given the need for victims to be aware of their suffering, insensate patients did not qualify and that, as a general rule, medically necessary measures administered in good faith would be unlikely to result in a violation.

Environment (top)

Two cases demonstrate the delicate balance that often needs to be struck between the protection of the environment and individual rights. In the UK this tension has been further heightened by the incorporation of the European Convention on Human Rights allowing individuals to enforce their rights at the domestic level. One such case where incorporation proved decisive was South Bucks District Council v Porter where the Court of Appeal overruled the High Court's decision to grant an injunction to the local authority evicting a group of travellers in breach of the planning regulations. The High Court's critical omission was the failure to recognise that incorporation not only meant that the travellers' rights to a home and family life had to be taken into account, but also that the test for assessing the local authority's response had been altered. Instead of applying the traditional test of reasonableness in accordance with the principles laid down in the Wednesbury case, courts must now assess public decision making according to the stricter test of proportionality. The South African Constitutional Court also came down on the side of individual housing rights in Minister of Public Works & Ors v Kyalami Ridge Environmental Association & Anor when it ruled that providing temporary shelter for those in desperate need had an insufficiently adverse impact on the local environment.

Equality (top)

Equality concerns in this issue encompass disability, religion and sexuality. Arguably the case with the greatest impact is the landmark decision from India of Danial Laitifi & Anor v Union of India. The Supreme Court's reinterpretation of hitherto discriminatory legislation enabled divorced Muslim women to enjoy the same right to financial support from their former husbands as their non-Muslim counterparts. In so doing, the Court emphasised that, regardless of their religion, all women should have their basic rights recognised and be protected on the basis of social justice for all.

Two Canadian cases explore the limits of the country's comprehensive framework of equality protection. In British Columbia College of Teachers v Trinity Western University & Anor a majority of the Supreme Court upheld a private teaching college's freedom of religion at the expense of the local teaching standard board's attempt to refuse accreditation on the basis of the college's alleged discrimination against homosexuals. The Court ruled that operating a selective admissions policy against homosexuals and requesting its members to refrain from homosexuality was insufficient to constitute active discriminate against them. One of the crucial determining issues was the failure of the board to conduct a sufficiently rigorous inquiry into the competing rights of religious freedom and non-discrimination; something which it was patently unqualified to do. However, in her dissenting judgment, Justice L'heureux Dube considered the board to have adopted the correct approach in seeking to protect the public interest by seeking to prevent the college's students from complicit involvement in an overt act of discrimination. In Granovsky v Minister of Employment and Immigration the Supreme Court, in examining the scope of a disability pension scheme, noted that the equality protection afforded under the Canadian Charter of Human Rights and Freedoms is designed not just to prevent negative discrimination, but also to positively assist the most disadvantaged. On this basis, the appellant's temporary disability was held to be insufficiently grave to qualify for the relaxation of contributions enjoyed by those suffering severe and permanent impairment.

Expression (top)

'National security' tends to be one of the more dependable ways for states to limit free expression, particularly of its own employees. This proved to be the case in the UK decision of R v Shayler where the House of Lords prevented a defendant from relying on a public interest defence in his forthcoming trial for state secrets. In so doing the Lords upheld the lawfulness of the statutory scheme for disclosure by members of the security services on the grounds that instead of an absolute ban, information could be divulged under certain prescribed circumstances. Although the decision was unanimous, Lord Hope sounded a note of caution by concluding that the scheme's lack of clear criteria for determining authorisation did lay it open to criticism, but that this was saved by the possibility of judicial review. However, states cannot always rely on national security as a blanket measure. In Withanage v Amunungama & Ors the Sri Lankan government's attempts to ban a controversial war film failed when the Supreme Court rejected its argument that the current security situation warranted its censorship. Indeed, far from agreeing with the state's assertion that certain scenes would have a negative effect on the morale of the security forces, the Court considered that, in some circumstances, exposing controversial issues could have a positive impact.

Fair Hearing (top)

The appeal process rests on the clear legal principle that appellate courts can only rule on matters considered by subordinate courts and cannot introduce new material. The Privy Council affirmed this approach in Mohamed v The State when it quashed two murder convictions upheld by the Trinidian Court of Appeal. In so doing, the Court of Appeal had erroneously considered matters pertaining to the liability of the appellants never put to the trial jury. In these circumstances, despite the strength of the case against the appellants, the Council concluded that it was not possible to reject the possibility of a substantial miscarriage of justice.

It is disappointing to note that institutional factors continue to have a significant impact in denial a fair hearing with this issue containing a number of examples of inordinate delay. The vulnerable nature of children particularly requires that their cases be dealt with expeditiously; something which conspicuously did not occur in the Fijian case of Nilesh Prakash v The State where it took three years to dispose of a 17 year old's prosecution for burglary. The injustice was further compounded by the fact that, during most of this process, the accused was unrepresented. In the Trinidadian case of Boodram v The State, an interval of 13 years between the successful appellant's original arrest for murder and the uncompleted judicial process warranted the Privy Council to declare that a retrial was inappropriate. The same case is also noteworthy for the Board declaring it to be the worst case of legal incompetence by the appellant's original counsel that it had ever come across.

The necessity of legal representation is considered in a number of different scenarios. In a case from Lesotho, Attorney- General v Mopa, the Court of Appeal ruled unconstitutional legislation absolutely denying a defendant in civil defamation proceedings representation. A similar blanket ban on legal assistance to prisoners during disciplinary hearings was ruled ultra vires by the New Zealand Court of Appeal in Drew v Attorney General & Ors. In Hinds v The Attorney General & Anor, the Privy Council on hearing an appeal from the Barbados Court of Appeal, whilst not being in a position to determine whether the appellant had been unfairly denied legal aid, did reiterate the importance of having access to legal representation, even where the prosecution case is strong, in order to effectively plead mitigation during sentencing.

Other notable cases include R v Griffin from New Zealand where the inability of the defendant's psychologist to examine the complainant's mental state in a sexual assault case violated the equality of arms principle and Azzopardi v R where the Australian High Court ruled that the accused's presumption of innocence was unduly infringed by the judge's adverse comments to the jury on his failure to give evidence.

Housing (top)

The interdependence of rights is often viewed more in the abstract than reality. However, a case from the UK illustrates the importance of the right to a fair hearing in securing the right to housing. In Adan v London Borough of Newham & Anor a local authority's decision to reject a Somali refugee's application for housing was overturned by the Court of Appeal on the grounds that it failed the independence requirements of Article 6 of the European Convention of Human Rights. At the same time, procedural fairness must often be balanced against the need for prompt action in cases of emergency. Applying the principles laid down in the landmark decision of Grootboom the Constitutional Court again recognised the obligation on the state to make basic shelter available to those in desperate need. In contrast to Grootboom, the main protagonist in Minister of Public Works & Ors v Kyalami Ridge Environmental Association & Anor was not the government, but the local community objecting to the building of a transit camp and temporary housing for township flood victims. Dismissing the unproven environmental arguments of the residents, the Court reiterated the right of every citizen to have access to housing, including temporary relief in the face of natural disasters, and the concomitant duty on the state to take the necessary measures to facilitate this. In so doing, the state's limited consultation of the residents was considered sufficient to meet procedural fairness requirements given the gravity of the situation.

Life (top)

The decision of many Commonwealth states to cease use of the death penalty has not prevented it from continuing to be a relevant issue in those jurisdictions with extradition arrangements with countries where capital punishment is still enforced. In these circumstances, the accepted practice in most abolitionist states is to seek assurances that the death penalty will not be implemented by the receiving state. In the Canadian case of Minister of Justice v Burns & Anor (Amnesty International & Ors Intervening) the failure of the Minister to do just this before deciding to extradite the respondents to the United States, combined with the absence of any exceptional circumstances justifying his decision, led the Supreme Court to rule that he had acted unlawfully and that he was constitutionally bound to obtain assurances. Recognition of the increasing public concern about miscarriages of justice in death penalty cases and the 'death row' phenomenon prevalent in the United States proved to be particularly decisive in the Court's reasoning.

The scope of the positive obligation to safeguard life, previously elaborated in the European Court of Human Rights decision of Osman v UK (1998) 5 BHRC 293), was explored in NHS Trust A v M (see Cruel Treatment above) when the High Court ruled that it does not imply an absolute duty to treat someone where treatment would be futile. On this basis there was no violation of Article 2 of the ECHR where medical treatment of two terminally ill patients was discontinued.

Movement (top)

The events of September 11^th 2001 have had a profound impact on human rights across the world. One example comes from the UK less than a month after the incident. In Secretary of State for the Home Department v Rehman the House of Lords had to consider whether the UK's Home Secretary was correct in refusing the appellant's application for leave to remain on grounds of national security. What made the decision more contentious was that fact that it was based on the likelihood of Rehman furthering terrorism outside the UK rather than in the country itself. However, their Lordships, whilst noting that the executive does not enjoy an unbridled discretion in such matters, did accept that a global approach to national security should be adopted rather than requiring the government to prove an immediate and direct domestic threat. Lord Hoffmann made specific reference to September 11^th in observing the need for the courts to respect the executive's decision on national security; a portent of future judicial trends in this area?

Private Life (top)

The rights of transsexuals, particularly in relation to identity and privacy, remain the subject of conjecture in many jurisdictions where their status is not even officially recognised. However, other jurists are adopting a more progressive approach, as typified by the Maltese case of Joseph sive Tracy Ellul v Advocate General & Anor. The Constitutional Court decided that the constant refusal of the authorities to amend the applicant's identity documents did infringe her right to privacy as guaranteed by Article 8 of the ECHR. Although this protection did not extend to her birth certificate on the grounds that it was an historical document (an attachment was held to suffice), it did mean that the applicant's quality of life would be improved significantly.

Refugees (top)

Any recent examination of jurisprudence from Australia illustrates the country's current preoccupation with immigration issues and, in particular, the scope of the 1951 Refugees Convention. The Digest highlights four cases in which the High Court has explored some of these themes and, in particular, the definition of a 'particular social group.' In Egbuono v Minister of Immigration and Multicultural Affairs an applicant able to relocate safely within his own country was considered not to require protection. In Minister for Immigration and Multicultural Affairs v Ibrahim the Somalian clan-based civil war provided the backdrop against which the court had to decide whether being a member of a particular clan was sufficient in itself to merit protection. The majority held that it was not, in the absence of clear proof that it was the applicant's membership of the clan that had motivated the alleged attacks on him as opposed to the other prevalent factors involved in a civil war. In Minister for Immigration and Multicultural Affairs v Shtjefni a family was sufficiently distinct from the rest of the community in the eyes of Albanian society to constitute a social group. The most significant case is Minister for Immigration and Multicultural Affairs v Khawar in which a woman who had been the victim of domestic violence in Pakistan was granted refugee protection. The decision's significance lies not so much in the decision that women can constitute a social group, but in the finding that the failure of the Pakistani authorities to take sufficient action to protect women against such violence amounted to persecution.

Remedies (top)

The writ of habeas corpus remains one of the most fundamental remedies for securing liberty and security in common law jurisdictions. However, a case from New Zealand demonstrates that it cannot be used ubiquitously by those in detention. In Bennett v The Superintendent of Rimutaka Prison & Ors a prisoner unsuccessfully sought to use the procedure to challenge the conditions under which he was held. The Court of Appeal, in noting that unlawful treatment in detention did not render the detention itself unlawful, held that recourse should have been made to judicial review. Limits were also placed on the right of constitutional petition in Hinds v The Attorney General & Anor (see Fair Hearing above) where the appellant, having lost his ordinary appeal against conviction, unsuccessfully sought to start new proceedings by way of declaratory relief.