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COMMONWEALTH
HUMAN RIGHTS LAW DIGEST |
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COMMONWEALTH
HUMAN RIGHTS LAW DIGEST |
| EDITORIAL REVIEW AND UPDATE VOLUME
2 ISSUE 3 EDITORIAL REVIEW AND UPDATE VOLUME 2 ISSUE 2 EDITORIAL REVIEW AND UPDATE VOLUME 2 ISSUE 1 EDITORIAL REVIEW AND UPDATE VOLUME 1 EDITORIAL REVIEW AND UPDATE VOLUME 3 ISSUES 1 & 2 BACK TO VOLUME 3 ISSUE 3 |
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Death Penalty 2.3 | Housing 2.3 | Refugees 2.3 |
| Emergency Powers 2.3 | Political Participation 2.3 | Remedies 2.3 | |
| Expression 2.3 | Property 2.3 | Treatment of Prisoners 2.3 | |
| Fair Hearing 2.3 |
Treatment of Prisoners (top)Three decisions relating to the treatment of prisoners are summarised in this issue. The Supreme Court of Zimbabwe condemned the use of leg-irons and handcuffs on prisoners in Blanchard & Ors v Minister of Justice, Legal and Parliamentary Affairs & Anor. On the same day the Supreme Court of Namibia came to a similar decision, specifically referring to practice in other countries indicating a movement away from and abhorrence of mechanical restraints, in Namunjepo & Ors v Commanding Officer, Windhoek Prison & Anor. The High Court of St Vincent and the Grenadines had previously designated prolonged shackling a 'brutal and severe assault on the prisoner's person and psyche' amounting to torture in Peters v Marksman (1). Prolonged solitary confinement of prisoners was also considered to constitute cruel, inhuman or degrading treatment in the Peters v Marksman (1) case, and was criticised in Blanchard. Death Penalty (top)In Kalu v State, summarised in this issue, the Supreme Court of Nigeria upheld the validity of the death penalty in light of the fact that the constitutional right to life was qualified, and that exercise of the death penalty in Nigeria is not arbitrary, discriminatory or selective. The Supreme Court also noted that the abolition of the death penalty was clearly not a matter for the courts. Emergency Powers (top)In two major decisions from Pakistan summarised below, the Supreme Court considered the legality of government actions under emergency legislation. In Farooq Ahmad Leghari & Ors v Federation of Pakistan & Ors, the automatic suspension of fundamental rights during an emergency was condemned. The Supreme Court held that in cases where an emergency has been imposed because of imminent danger of war or external aggression, the restriction or suspension of fundamental rights must be justified under the proportionality rule. In Sh. Liaquat Hussain & Ors v The Federation of Pakistan, the Supreme Court held that the military powers given to the army to assist the state during a state of emergency did not extend to the creation of courts to try civilians. Expression (top)Some important decisions affecting the law of defamation (from New Zealand, the United Kingdom and South Africa) are summarised in this issue. On 28 October 1999 the House of Lords handed down its decision in Reynolds v Times Newspapers Ltd & Or. It held that no generic defence of qualified privilege for political expression should be created, while noting that, depending on the circumstances, qualified privilege may in fact apply to political discussion in a particular case under common law principles. The House of Lords analysed the jurisprudence of the European Convention on Human Rights, noting that the Human Rights Act, due to come into effect in the United Kingdom on 2 October 2000, was the backdrop against which the appeal must be considered, and emphasised that the common law approach was in accordance with the current state of human rights jurisprudence. On the same day, the Privy Council remitted the case of Lange v Atkinson & Anor back to the New Zealand Court of Appeal on the grounds that the Court of Appeal had not been able to take into account the House of Lords' ruling in Reynolds when making its decision. The Privy Council noted that although the court was not bound to follow Reynolds it should at least be aware of recent developments in English common law. Since this issue was completed, the New Zealand Court of Appeal heard the Lange case again, but decided not to alter its original decision, in part because the test developed in Reynolds added to the uncertainty and chilling effect of the law. It thus accepted that the concept of political expression was an integral part of the defence of qualified privilege, contrary to the views of the House of Lords in Reynolds. On a related point, in the South African case of National Media Ltd & Ors v Bogoshi, the Supreme Court of Appeal held that a subjective element of fault (animus injuriandi) was necessary to prove defamation; strict liability was not acceptable, even though it might prove difficult to prove intention to harm; if it were otherwise, a form of collective liability would effectively be imposed. In a United Kingdom case important for prisoners' rights, the House of Lords declared a ban on prisoners' interviews with journalists unlawful, noting that investigative journalism had played an important role in identifying and undoing miscarriages of justice. Fair Hearing (top)Several cases concerning bias are summarised in this issue, including the decision of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrates & Ors, Ex parte Pinochet Ugarte (No 2). In this case, the close connection of one member of the House of Lords to Amnesty International, a party in the proceedings, was held to automatically disqualify him from sitting, and the case was remitted for a second hearing to a differently constituted House of Lords. In President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors the South African Constitutional Court held that the applicant must establish a reasonable apprehension of partiality to prove bias on the part of a judge, and that the mere association of judges in political activity prior to appointment to the bench was not sufficient to disqualify them from sitting, unless the subject matter of the litigation in question arises from such associations or activities. Indeed, as the Court pointed out, in the particular circumstances of South Africa, it would be surprising if many candidates for appointment to the bench had not been active or publicly sympathetic to the liberation struggle. A number of cases dealing with access to justice are summarised below. In a case with significant implications for international human rights law proceedings, the Privy Council held that there was neither a national nor an international obligation on the part of the government of New Zealand to make legal aid available in connection with proceedings before the United Nations Human Rights Committee. There are two cases which consider the admissibility of statements obtained without access to legal advice. In Cook v R, the Supreme Court of Canada declared the appellant's statement (made without access to a lawyer) inadmissible. In so doing, the court applied the Canadian Charter of Rights and Freedoms to the actions of Canadian police who were interviewing the appellant in a second country (the US). In a similar decision, emanating from a case from Trinidad and Tobago, the Privy Council held that the breach of the defendant's constitutional rights in not advising him of his right to counsel merited the quashing of the conviction and sentence. Housing (top)In an important decision concerning the justiciability and effect of economic and social rights, the Supreme Court (High Court Division) of Bangladesh held that respect for human dignity requires that the eviction of slum-dwellers must be undertaken in conjunction with a government rehabilitation scheme, in Ain O Salish Kandro (ASK) & Ors v Government of Bangladesh & Ors. The court also noted that, while legally unenforceable, the principles in the Fundamental State Policy are fundamental in governing the country and in interpreting the meaning and content of basic rights. Political Participation (top)Two cases from South Africa concerning the voting process and the franchise are summarised below. In August & Anor v Electoral Commission & Ors the right of prisoners to vote was upheld by the Constitutional Court, although the court specifically noted that Parliament could disenfranchise certain categories of prisoners if it chose to do so. Another decision from the Constitutional Court upheld a requirement for voters to possess a bar-coded identity document, as this was rationally connected to facilitating the exercise of the right to vote, as a quick, easy and reliable method of establishing identity. In a Sri Lankan decision which explicitly characterised voting as an exercise of the right to freedom of expression, the Supreme Court held the suspension of elections to be unjustified and ordered the Commissioner of Elections to take immediate action to fix new dates for provincial council elections and issue postal ballot papers. Property (top)Two significant decisions affecting women's inheritance rights are summarised below. In Magaya v Magaya the Supreme Court of Zimbabwe upheld the customary law of succession of the Shona tribe preferring males to females as heirs. The court explicitly noted that the constitution specifically excepted provisions relating to devolution of property on death, and the application of customary law, from any constitutional prohibition on sex discrimination. A contrary view was taken by the Indian Supreme Court in Raghubar Singh v Gulab Singh where it was noted that the Hindu Succession Act 1956 removed the traditional limitations on the powers of a Hindu woman to deal with her husband's property in her possession, in lieu of her right to maintenance, and granted her absolute ownership rather than limited rights. Refugees (top)Some important decisions relating to refugee status are summarised in this issue. In R v Immigration Appeal Tribunal & Anor, ex parte Shah; Islam & Ors v Secretary of State for the Home Department, the House of Lords declared that women could constitute a social group within the meaning of Art 1A(2) of the Geneva Convention relating to the Status of Refugees 1951. The prevalence of state-tolerated and sanctioned discrimination against women in Pakistan was thus sufficient to establish a well-founded fear of persecution on the part of the appellants. In another case, concerning an asylum-seeker from Somalia, the House of Lords held that a claimant for refugee status must have a current, well-founded fear of persecution at the time his/her claim is to be determined. Remedies (top)In the much-heralded decision of R v Bow Street Metropolitan Stipendiary Magistrate & Ors, ex parte Pinochet Ugarte (No 3) the House of Lords unequivocally stipulated that immunity is not available to former heads of state for international crimes. The decision is, as has been widely reported elsewhere, of great significance for those seeking to hold heads of state accountable for the most serious violations of international human rights law committed at their behest. The issue of exemplary damages continues to be considered by different courts throughout the Commonwealth. In Peters v Marksman & Anor (2) the High Court of St Vincent and the Grenadines awarded the appellant significant damages in view of the failure of the State and the Superintendent of Prisons to apologise for violating his constitutional right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, after being flogged with a cat-o-nine tails and shackled in solitary confinement for an extended period. In another case, coming from New Zealand, the Privy Council held that, while exemplary damages can be compatible with criminal prosecution, there are no principles by which to determine the issue; what is called for is simply an assessment of public advantage or disadvantage. The Privy Council also observed, however, that an acquittal should bar exemplary damages.
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Death Penalty 2.2 | Family Life 2.2 | Indigenous People 2.2 |
| Equality 2.2 | Fair Hearing 2.2 | Remedies 2.2 | |
| Expression 2.2 | Health 2.2 | Women 2.2 | |
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The landmark Canadian decision Delgamuukw v British
Columbia is summarised in this issue. The Supreme Court's decision on
claims for aboriginal title to and self-government of a large area of land
in British Columbia turns on the issue of whether oral histories should be
accepted as evidence in aboriginal rights litigation. The court also
addresses the content of aboriginal title, applying and further developing
the legal principles laid down in earlier cases such as R v Van der
Peet.
Four cases from India, Pakistan, Bangladesh and South Africa deal with the issue of damages/compensation for unlawful conduct by police or governmental authorities. In People�s Union for Civil Liberties v Union of India, the Indian Supreme Court awards compensation for an infringement of fundamental rights to the families of two alleged terrorists who were shot and killed by the police whilst in custody. In the Pakistani case Mazharrudin v State, the Sindh High Court holds that compensation should be awarded to the victim, who was arrested and detained without any lawful authority, and that the state is entitled to recover the amount payable from the police officials concerned. The court also holds that the latter are personally liable to pay exemplary costs to the victim. In Bilkis Akhter Hossain v Bangladesh, exemplary damages are awarded by the High Court Division of the Bangladesh Supreme Court to an opposition politician for unlawful detention in violation of his fundamental rights. However, in Fose v Minister of Safety and Security, the South African Constitutional Court refuses to order that �punitive� damages be awarded to the alleged victim of an assault by members of the police which, it was claimed, formed part of widespread and persistent similar infringements by the police of the fundamental rights of other citizens. The majority of the court examine comparative jurisprudence on constitutional damages from a wide range of other jurisdictions but conclude that it would be inappropriate to pay punitive constitutional damages in the present case since the plaintiff is likely to be awarded substantial damages if he succeeds in his civil action against the police and there is no real assurance that such a payment would have any deterrent or preventative effect against similar individual or systemic violations. In Smyth v Ushewokunze, the Zimbabwe Supreme Court interdicts a prosecutor from taking any further part in the trial of the applicant on the grounds that the former�s behaviour towards the latter gave rise to a real risk of bias and, therefore, a breach of the applicant�s right to a fair hearing were the trial to proceed. The court declines, however, to hold that a period of five years between the alleged commission of the offences in question and the applicant�s trial resulted in real prejudice to his ability to mount a full and fair defence. By contrast, in another case on unreasonable delay summarised in this issue, the Lesotho Court of Appeal issues a permanent stay of proceedings in relation to criminal charges against the respondent for unlawfully issuing export permits after the proceedings in question were repeatedly postponed. The issue of delay in relation to the execution of the death penalty is addressed by the Privy Council in Fisher v Minister of Public Safety and Immigration on appeal from The Bahamas. The appellant claimed that, for the purposes of calculating whether the total period of delay in his case exceeded the five-year �target period� between sentencing and execution laid down in Pratt v A-G for Jamaica, the period of three years and five months during which he was detained in prison before his trial for murder should be added to the delay of two years and six months which occurred between his conviction and the date on which he was due to be executed. This argument was rejected by the majority of the Privy Council, which held that, although pre-trial delay may be considered in exceptional circumstances, the principle in Pratt was established in response to the specific problem of unacceptable periods of delay on death row and was not meant to be extended to address the wholly different problem of pre-trial delay. Within the context of the �five year rule�, the Privy Council had held in Pratt that the domestic appeal process was to be completed within two years of sentencing, and envisaged that complaints subsequently lodged before international bodies (such as the United Nations Human Rights Committee or the Inter-American Commission and Court of Human Rights) would likely be disposed of within a further 18 months. In practice, the length of time required by these international bodies for hearing and responding to complaints has frequently exceeded the court�s estimation, thereby raising new legal issues. The Privy Council in Fisher v Minister of Public Safety and Immigration (No 2) rules that carrying out the death penalty while a petition is pending before an international body does not in itself amount to inhuman or degrading treatment. In Thomas v Baptiste, however, the Privy Council finds that instructions issued by the Trinidad & Tobago government to the Inter-American Commission on Human Rights (IACmHR) regarding the time limits to be observed in dealing with complaints went beyond the requirements established in Pratt. The Judicial Committee orders that the appellants� executions be stayed, holding that it would breach the appellants� right not to be deprived of life except by due process of law, as guaranteed by s 4(a) of the Trinidad & Tobago Constitution, if the executions were to be carried out before their petitions to the IACmHR have been heard. The issue of whether the conditions in which condemned prisoners are kept on death row constitute cruel and inhuman treatment is addressed by Lord Steyn in Fisher v Minister of Public Safety and Immigration, where he observes that �a state that wishes to retain capital punishment must accept the responsibility of ensuring that condemned men are confined in conditions that satisfy a minimum standard of decency�. Lord Steyn suggests that it may be permissible to take such conditions into account in considering whether a lesser period than the five-year (or, in the case of The Bahamas, three and a half-year) norm may be sufficient to render a proposed execution unlawful. The conditions in which the appellants were detained is also raised in Thomas v Baptiste but the Privy Council upholds the lower court�s assessment that the conditions in question, although �appalling�and completely unacceptable in a civilised society�, did not amount to cruel and unusual treatment. The Supreme Court of Nigeria�s decision in Kalu v The State on the constitutionality of the mandatory death sentence for murder will be summarised in the next issue of the Digest. This issue contains summaries of a number of key decisions on different aspects of discrimination and the right to equal treatment, including the entitlement of deaf persons to publicly-funded sign language interpretation in order to access medical services, the adoption of differential debt enforcement measures and tariffs for the provision of local services in post-apartheid South Africa and restrictions on appointing foreign teachers to permanent posts or contracting with foreign-trained doctors to provide primary health services to patients. The Supreme Court of India addresses the issue of protection from sexual harassment in the workplace in Vishaka v State of Rajasthan, referring to, inter alia, India�s international obligations under the Convention on the Elimination of All Forms of Discrimination against Women and its official commitment at the Fourth World Conference on Women in Beijing to construe the nature and ambit of the guarantee of gender equality. In the absence of legislation on sexual harassment, the court lays down detailed preventive guidelines �for the preservation and enforcement of the right to gender equality of working women� in order to fill the legislative vacuum. Two decisions summarised in this issue focus on sexual orientation discrimination. In the landmark decision Vriend v Alberta, the Canadian Supreme Court orders sexual orientation to be read into Alberta�s human rights legislation as a prohibited ground of discrimination. In Quilter v Attorney General, the New Zealand Court of Appeal upholds the refusal of the Registrar General of Births, Deaths and Marriages to refuse to issue marriage licences to three lesbian couples under the Marriage Act 1955 (NZ) on the grounds that marriage could not take place between a same-sex couple. These cases form part of an increasing body of jurisprudence on key aspects of sexual orientation discrimination, including: a significant decision from Canada on the interpretation of �spouse� in the Family Law Act which extends support obligations to cohabiting same-sex couples; a decision from England & Wales on the right of a gay man to succeed to the tenancy of his deceased same-sex partner; two decisions from South Africa on (respectively) the criminalisation of consensual adult sodomy and the exclusion of a same-sex partner from the definition of �dependant� in a medical aid scheme; and a case from Namibia where the High Court held that the Immigration Selection Board should have considered the applicant�s lesbian relationship with a Namibian citizen when deciding her permanent residence application. Aspects of the right to medical treatment in the context of renal dialysis are examined in decisions from South Africa and New Zealand. In Soobramoney v Minister of Health, KwaZulu Natal, the South African Constitutional Court upholds a decision by a state hospital to refuse dialysis to a terminally ill patient because he did not meet the criteria for such treatment under guidelines which the hospital had implemented due to a shortage of resources. The New Zealand Court of Appeal reaches a similar decision in Shortland v Northland Health Ltd when it finds that a hospital�s refusal, on clinical grounds, to provide dialysis treatment to a patient suffering from diabetes and dementia did not �deprive� him of life in terms of s 8 of the New Zealand Bill of Rights Act 1990. The right of a mentally competent patient to refuse medical treatment also arises in the case of St George�s Healthcare NHS Trust v S; R v Collins, ex parte S, where the Court of Appeal of England & Wales holds that a pregnant woman could not be detained and forcibly treated for a medical condition that jeopardised the life and health of both her unborn child and herself. The court also lays down guidelines for hospital authorities, medical practitioners and health professionals in cases involving capacity when surgical or invasive treatment may be needed by a patient. The conflict between the interests of a pregnant woman and her unborn child in the context of substance abuse are addressed in Winnipeg Child and Family Services (Northwest Area) v G. The majority of the Canadian Supreme Court refuses to extend tort liability or the court�s wardship jurisdiction to protect the unborn child from lifestyle-related foetal damage, holding that such a decision is a matter for the legislature rather than the courts as the former are in a much better position to weigh the competing interests and arrive at a solution which is principled and minimally intrusive to pregnant women. In the Pakistani case Mst Humaira v Malik Moazzam Ghayas Khokhar, summarised in this issue, the Lahore High Court upholds the validity of the marriage of the petitioner, a young woman who had married the spouse of her choice without the consent of her parents. The court finds that the police acted male fide by abducting the petitioner and returning her to her father at his instigation (in disregard of a High Court order that she should not be arrested), quashes the criminal case registered against her by her father and sentences the respondent police officer to one month�s imprisonment for contempt of court for his role in the matter. Cases on freedom of expression summarised in this issue include the Sri Lankan Supreme Court�s decision in Athukorale v Attorney General of Sri Lanka that a Bill providing for the establishment of a new authority to regulate the establishment and maintenance of broadcasting stations and issue of licences for that purpose was unconstitutional. Also included are two cases from Zimbabwe and Canada on (respectively) state funding for political parties and a statutory prohibition on broadcasting last minute election opinion polls and an Australian Federal Court decision on censorship of a newspaper article that instructed readers on shoplifting techniques. In Lange v Australian Broadcasting Corporation, the High Court of Australia re-examines its decisions in Theophanous v The Herald and Weekly Times Ltd and Stephens v West Australia Newspapers Ltd on defamation and the implied constitutional right to freedom of discussion of government and political matters. The court holds that communications concerning such matters are protected under the Constitution unless the defendant�s conduct in publishing the material giving rise to a defamatory imputation is unreasonable or was actuated by malice. Two further important decisions on defamation of public
figures and freedom of expression are expected to be handed down on 28
October 1999; the House of Lords� decision in Reynolds v Times
Newspapers Ltd & Ors and the Privy Council�s decision in Lange
v Atkinson & Anor (on appeal from New Zealand). Both decisions
will be summarised in the next issue of the Digest.
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Two decisions of the Ghana Supreme Court summarised in this issue address different aspects of the right to freedom of association, namely the constitutionality of a law requiring specified associations to register with the Government-controlled Council of Indigenous Business Associations and Regulations requiring membership of a registered co-operative as a condition for the grant of a distiller�s licence. In both cases the impugned provisions are struck down (in part) for violating the plaintiffs� fundamental rights. In Harewood v Attorney General, the High
Court of Barbados holds that the applicants� death sentences should
be commuted due to the inordinate delay that had occurred between
conviction and the completion of the domestic appellate process in
each case. However, the court follows the Privy Council�s decision
in Reckley v Minister of Public Safety and Immigration (No 2)
regarding the non-justiciability of the exercise of the prerogative of
mercy in relation to the death penalty, rejecting the applicants�
argument that they had been denied the right to a fair hearing in the
mercy process. In Yassin v Attorney General of Guyana, by
contrast, the Court of Appeal of Guyana holds that the then Attorney
General�s presence (as Chairman) in the decision-making process of
the body which advises the President on the exercise of the
prerogative of mercy constituted procedural impropriety given his
former relationship with the appellants as their lawyer. The relevant
constitutional procedures relating to the exercise of the prerogative
of mercy were accordingly nullified. The Indian Supreme Court�s decision Vellore Citizens� Welfare Forum v Union of India illustrates the growing use of fundamental rights litigation to control industrial pollution, in this case caused by tanneries in Tamil Nadu. In ordering the offending industries to compensate those adversely affected by their activities and pay for the cost of restoring the damaged environment, the court applies the �precautionary principle� and the �polluter pays principle� developed in its previous decision, Indian Council for Enviro-Legal Action v Union of India (Bichhri case). Decisions summarised in this issue cover a variety
of issues relating to the right to freedom of expression, including
censorship of a film depicting �social evils�, the
constitutionality of offences of possessing �indecent or obscene
matter� (broadly-defined) and defaming the President, an allegation
of contempt against the Commissioner of Police for issuing a pre-trial
press release regarding the arrest of the applicants and the exclusion
of the public and media from court proceedings. The Kauesa approach is also followed in a
decision of the Namibian High Court on imprisonment of judgment
debtors, Julius v Commanding Officer, Windhoek Prison & Ors. However,
whereas the Namibian court applies the South African Constitutional
Court�s decision in Coetzee v Government of the Republic of South
Africain finding that identical statutory provisions to those
considered in the South African case are unconstitutional, the
Zimbabwe Supreme Court distinguishes the Coetzee decision on
the facts in Chinamora v Angwa Furnishers (Pvt) Ltd, also
summarised in this issue. The D K Basu case is also significant for the Supreme Court�s holdings on the award of compensation by the state, under the public law jurisdiction, to victims of custodial violence (or to their families) for the state�s failure to protect their fundamental right to life. Subsequent decisions by the Indian Supreme Court, the South African Constitutional Court, the Sindh High Court (Pakistan) and the High Court Division of the Bangladesh Supreme Court on compensation for breaches of fundamental rights will be summarised in future issues of the Digest. Guidelines on the appropriate amount of damages which are recoverable in a successful action against the police for unlawful conduct are laid down in the decision of the Court of Appeal of England and Wales, Thompson v Commissioner of Police of the Metropolis. In Bodhisattwa Gautam v Subhra Chakraborty the Indian Supreme Court orders an alleged rapist to pay interim compensation to his victim pending the resolution of the criminal proceedings against him. The court holds that rape is a breach of the victim�s fundamental ight to life and that such rights can be enforced against individuals as well as the state. This issue contains a number of interesting
decisions on different aspects of the right to a fair hearing,
including the permissible limitation period for bringing a civil
action against the armed forces, the admissibility of evidence
obtained by foreign police in breach of the constitutional
requirements of the prosecuting country and two decisions from the
South African Constitutional Court and the Canadian Supreme Court on
the presumption of innocence. This issue also contains summaries of two interesting decisions on marriage from Papua New Guinea and Pakistan, namely the constitutionality of forced customary marriages and the right of a married couple to freedom from police harassment, undertaken at the instigation of the woman�s father in order to coerce their divorce. Economic and social rights (top) This issue of the Digest includes summaries of decisions on certain key economic and social rights for the first time. Lawson v Housing New Zealand focuses on whether the right to life includes the right to adequate, affordable housing and the duty of Government Ministers to have regard to international obligations in determining housing policy. Dr Mohiuddin Farooque v Bangladesh and Paschim Banga Khet Mazdoor Samity v State of West Bengal both address the right to health in the context of, respectively, the protection of the public from the threat caused by consumption of contaminated food and the failure to provide adequate emergency medical services. Another issue addressed for the first time in this issue of the Digest is the prohibition on child labour. In Mehta v State of Tamil Nadu the Indian Supreme Court lays down a scheme for ensuring the education and protection of the welfare of children illegally employed . Aboriginal rights to land and fishing are also considered in the Digest for the first time in the summaries of the Australian High Court�s decision Wik Peoples v State of Queensland and the Canadian Supreme Court�s decisions R v Van der Peet and R v Adams. Further developments in this area, including the significant Canadian Supreme Court case Delgamuukw v British Columbia, will be summarised in subsequent issues of the Digest. In an important decision on the meaning of the 1951
Geneva Convention�s definition of �refugee�, the Australian High
Court holds that a married couple with one child who were nationals of
the People�s Republic of China and who feared forcible sterilisation
if returned to that country in accordance with the Government�s
policy of allowing only one child per couple, were not members of a
�particular social group� for the purposes of the Convention. Aspects of the right to freedom of religion covered in this issue include challenges to the constitutionality of the Government�s failure to fund private religious schools and to the declaration of certain religious Islamic festivals as national holidays. |