COMMONWEALTH HUMAN RIGHTS LAW DIGEST

 
The first issue of the third volume of the Digest summarises cases decided by national courts in 23 different Commonwealth jurisdictions. Most were handed down during 2000 and 1999, with three from 1998. For the first time in the Digest a case is included from St Christopher & Nevis.

Cruel, Inhuman or Degrading Treatment (top)

Several courts considered the lawfulness of a particular sentence in cases summarised below. Hanging was deemed to be a lawful punishment for murder in the Thompson case by the High Court of St Vincent and the Grenadines, by virtue of a savings provision in the transitional Constitution. In Pinder v R the Court of Appeal of the Bahamas decided that corporal punishment was lawful, by virtue of a savings clause, even though the court acknowledged the virtual unanimity in the Commonwealth that corporal punishment amounts to inhuman and degrading treatment.

In a decision handed down by the High Court of Namibia, a sentence of 10 years' imprisonment for a first offence of possessing an AK 47 rifle was held to be grossly disproportionate by the High Court of Namibia in State v Likuwa, and was reduced to two years.The High Court of St Vincent and the Grenadines held that local conditions should be taken into account in deciding whether prison conditions constituted inhuman or degrading treatment in Thompson v Superintendent of Prisons (Bernard Marksman) & Ors, although on the facts of the case it held that the conditions did not reach this threshold.

Death Penalty (top)

The Privy Council considered two cases about the effect of applications to the Inter-American Commission on Human Rights (IACmHR) on pending executions. In Briggs v Baptiste (Commissioner of Prisons) & Ors it held that as the Inter-American Convention on Human Rights (IACHR) had not been incorporated into domestic law the courts were not obliged to accept the recommendations of the IACmHR. In the case of Higgs & Anor v Minister of National Security & Ors where two prisoners argued that their right to life would be violated if they were executed while their petitions were still pending before the IACmHR, the Privy Council decided that the execution could proceed after the domestic courts had waited a reasonable time for the IACmHR decision.

Equality/Family Life (top)

Three cases concerning financial and other benefits available to heterosexual couples but not same-sex couples are summarised in this issue. In Fitzpatrick (A.P.) v Sterling Housing Association Ltd the House of Lords held that although a homosexual partner did not qualify as a statutory tenant in succession within the meaning of para 2 of the Rent Act 1977 (Schedule 1), he did qualify under para 3(1). It held that the word 'family' should be flexibly interpreted so as to cover both legally binding and de facto relationships, where two people live together in a committed, loving, caring and mutually inter-dependent relationship.

In the second case, Attorney General for Ontario v M & Anor (Foundation for Equal Families & Ors intervening), the Canadian Supreme Court held that same-sex couples were entitled to the same protection as heterosexual couples under the equality guarantee of s 15(1) of the Canadian Charter of Rights and Freedoms, thereby enabling them to claim financial support under the Family Law Act RSC 1990. The court declared s 29 of the Act invalid and gave the legislature six months to resolve the issues. The court noted that excluding same-sex couples from s 29 was not rationally connected to the true legislative objectives of the Act, which were the equitable resolution of economic disputes that arise when intimate relationships break down, and reducing the financial burden on the state to provide support for dependent spouses.

The South African Constitutional Court came to a similar conclusion in National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs & Ors when it held s 25(5) of the Aliens Control Act 96 of 1991, which only permitted immigration permits to be issued to spouses and dependent children of South Africans, unconstitutional. In this case the court took into account the particular vulnerability of the groups adversely affected, pointing out the link to past patterns of disadvantage and stereotyping. The Canadian Supreme Court in Attorney General for Ontario had considered similar points in coming to its own decision.

The Canadian Supreme Court handed down two other major decisions on equality that are summarised below. In City of Montreal & Anor v Commission des Droits de la Personne et des Droits de la Jeunesse du Qu�bec & Anor, it held that in order to qualify as a disability, a handicap need not necessarily entail 'functional limitations'. The court noted that the objectives of the Canadian Charter of Rights and Freedoms 1982 would not be achieved unless it was recognised that discriminatory acts may be based on perception, myths and stereotyping, as well as on actual and functional limitations.

In the third case, British Columbia Government and Service Employees' Union v Government of the Province of British Columbia, the court held that any standard used by the employer as an occupational requirement when recruiting staff must be necessary and for a legitimate work-related purpose. It introduced a three-stage test for determining whether a prima facie discriminatory standard is in fact lawful.
Lastly, in Banana v State, the Supreme Court of Zimbabwe refused to declare the common law offence of sodomy unconstitutional, despite a strong dissent from Gubbay CJ and Ebrahim JA, on the grounds that the law distinguished on the basis of sexual orientation, not gender, and was therefore permissible under s 23 of the Constitution.

Expression (top)

Two cases from Mauritius and one from Bermuda examine issues relating to contempt of court. In the first case, Ahnee & Ors v Director of Public Prosecutions, decided in March 1999, the Privy Council upheld the constitutionality of the offence in Mauritius on the grounds that it was necessary for the administration of justice. Following this the Supreme Court of Mauritius held, in Director of Public Prosecutions v David, that comment on a pending trial need not necessarily constitute contempt. The test should be whether the matter complained of was really calculated to interfere with a fair trial. In June 1999, in The Bermuda Fire & Marine Insurance Company Ltd (in liquidation) v B F & M Ltd & Ors, the Bermudan Supreme Court held that on the facts of the particular case non-disclosure by a journalist of his sources did not represent a real risk of interference with the administration of justice, but accepted the need for the offence of contempt of court to exist.

The Privy Council asked the New Zealand Court of Appeal to reconsider its earlier judgment in the case of Lange v Atkinson & Anor in light of the House of Lord�s decision in Reynolds v Times Newspapers Ltd. In the Lange case the appellant, a former Prime Minister of New Zealand, brought a defamation action in respect of a newspaper article which criticised his performance as a member of the New Zealand Parliament. The Court of Appeal upheld its original decision that the defence of qualified privilege applied to the general publication of political information, and in the rehearing only added that a statement must be published on a qualifying occasion in order to attract privilege.

The Supreme Courts of Sri Lanka and Zimbabwe considered the ambit of provisions restricting free speech within a week of each other in May 2000. In Zimbabwe, in Chavundaka & Anor v Minister of Home Affairs & Anor, a provision in the Law and Order (Maintenance) Act 1961 making it a criminal offence to publish any false statement likely to cause fear, alarm or despondency, was held unconstitutional by the court, for being overbroad. However, in Sri Lanka, emergency regulations prohibiting publication of any material relating to military operations in the Northern and Eastern Provinces were upheld in Abeysekera v Rubesinghe & Ors on the grounds that national security took precedence over the right of free speech.

Fair Hearing (top)

A number of cases concerning the impact of delay on the fairness of a hearing are summarised below. In McCalla v Disciplinary Committee of the General Legal Council the Privy Council held that a ten-year delay between a proposed hearing of misconduct allegations and the alleged misconduct itself would have made it so difficult for the defendant to marshal documents and witnesses that it would have substantially prejudiced the fair hearing of the case.

In Matia v Uganda, the High Court held that a delay of three years and nine months between charge and committal was unacceptable, and constituted extremely grave prejudice to the defendant, requiring a stay of prosecution. In Bailey v Attorney General & Anor the High Court of St Vincent and the Grenadines held that a delay of over three years between charge and first court appearance on a charge of rape was unreasonable, in light, inter alia, of the failure of the prosecution to explain it and the absence of any indication that there was a satisfactory reason. On a related point the Privy Council held that a third retrial in Trinidad and Tobago, after two unsuccessful attempts to secure conviction on a charge of murder was wrong in principle and an abuse of the criminal process, in Charles & Ors v State.

Three cases summarised in this issue concern the impartiality and independence of judges and courts. When considering five cases submitted together, the United Kingdom Court of Appeal held that the opinions expressed by a recorder in written articles constituted a real danger that he might unconsciously have favoured the claimant in resolving factual issues (Locabail (UK) Ltd v Bayfield Properties Ltd & Anor). The Lesotho Court of Appeal held in Sekoati & Ors v President of the Court-Martial & Ors that courts-martial are not required to conform to the same degree of independence as civilian courts; the important point is that both procedurally and substantively courts-martial should provide a fair process and outcome, but this should be judged in light of what is fair and reasonable in the circumstances.

In one of the first major constitutional cases after the Human Rights Act 1998 came into effect in Scotland, the High Court of the Justiciary held that temporary judicial posts were insufficiently independent of the executive to constitute a fair and impartial tribunal under Art 6(1) of the European Convention on Human Rights, in Starrs & Anor v Procurator Fiscal (Linlithgow).

On a related point in Browne v R, summarised here under �Separation of Powers�, the Privy Council held that an indeterminate discretionary sentence set by a member of the executive rather than the judiciary, in St Christopher and Nevis, was unconstitutional because it violated the doctrine of separation of powers.

Life (top)

The High Court of India in Ramakrishnan & Ors v State of Kerala & Ors declared smoking in public unconstitutional on the grounds that the right to life is sufficiently wide and far-reaching to include the right to pollution-free air and a decent environment.

International Standards (top)

A number of cases summarised in this issue consider the effect of international human rights treaties on domestic courts. In Ubani v Director of State Security Services & Anor the Nigerian Court of Appeal held that the African Charter on Human and Peoples� Rights is superior to all municipal laws, including military decrees. In South African National Defence Union v Minister of Defence & Ors the South African Constitutional Court held that treaties are relevant to the interpretation of constitutional provisions. In the Thompson case it was held that an unincorporated treaty like the International Covenant on Civil and Political Rights and its Optional Protocol does not confer a right on the applicant not given to him by the domestic law of St Vincent and the Grenadines.

Self Determination (top)

In a major case decided by the Canadian Supreme Court about the possible secession of Quebec from the Canadian Federation, Reference Re Secession of Quebec, the court held that unilateral secession is unlawful and the right to secession does not arise where the population already had access to the government.

VOLUME 3 ISSUE 2

	Children/Education 3.2	Equality 3.2	Indigenous People 3.2
	Cruel, Inhuman or Degrading Treatment/ Death Penalty 3.2	Expression/Privacy 3.2	Liberty & Security 3.2
	Emergency Powers 3.2	Fair Hearing 3.2	Life 3.2
	Environment/Religion 3.2	Housing 3.2

The second issue of the third volume of the Digest summarises cases decided by national courts in 27 different Commonwealth jurisdictions. All of the cases bar one date from 1999 onwards with the majority being handed down during 2000. Nearly one in six were delivered during 2001. For the first time since the Digest began in 1996 cases from Anguilla and the Cayman Islands are featured.

Children/Education (top)

Despite almost universal ratification of the Convention on the Rights of the Child, the scope of children's rights remains problematic particularly in relation to their parents. Three cases from Canada, South Africa and Australia illustrate the difficulties that arise when human rights enter the private family sphere. In Dobson v Dobson the Canadian Supreme Court held that a negligent mother did not owe a duty of care towards her unborn child since this would both be unfair and unduly compromise her autonomy. Whilst in the South African case of Grootboom the Constitutional Court reiterated the principle that the primary obligation for providing for children's welfare, in this case basic shelter, resides with the parents rather than the state. However, the Australian High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs found that child refugees enjoy rights independent of their parents.

The right to education came under the spotlight in two decisions from the Americas dealing with very different means of denying pupils access to instruction. In Grant & Anor v The Principal, John A Cumber Primary School & Ors the decision to exclude a Rastafarian boy from school for wearing dreadlocks was held to be unlawful by the Cayman Islands Court of Appeal. In the Canadian case of Arsenault-Cameron v Prince Edward Island & Ors the failure to provide accessible education in the appropriate minority language was held by the Supreme Court to have violated the pupils' constitutional rights.

Cruel, Inhuman or Degrading Treatment/ Death Penalty (top)

The treatment of prisoners caused concern in two cases from Fiji and St. Lucia respectively. In Taito Rarasea v State punishing detainees by reducing their rations was held to be unacceptable whilst in Harding v Superintendent of Prisons & Ors shackling for prolonged periods of time was similarly condemned.

However, it is in the area of the death penalty that some of the most dramatic developments have taken place. The landmark cases of Spence v The Queen and Hughes v The Queen from St. Vincent and St Lucia, considered jointly by the Eastern Caribbean Court of Appeal, established that by failing to take into account individual circumstances the mandatory use of the death penalty for murder could no longer be justified. The Privy Council took a similar positive step when it held in the Jamaican case of Lewis & Ors v Attorney-General that the exercise of the prerogative of mercy is subject to the same fair trial guarantees as other procedures. In particular a condemned person has the right to petition international tribunals and to have their views considered before any final decision is taken.

Emergency Powers (top)

The reluctance of courts to allow the authorities to derogate from fundamental guarantees, even during periods of emergency, is demonstrated by two cases from Bangladesh and Fiji. In Shahriar Rashid Khan v Bangladesh & Ors the Supreme Court rejected the claim that participants in the 1975 coup could be indemnified for the killing of the former President and his family. A similarly strict line was taken by the Fijian Court of Appeal in the case of Republic of Fiji & Anor v Prasad when it decided that the doctrine of necessity could not be used to justify a complete abrogation of the constitution during the ultimately unsuccessful coup of 1999.

Equality (top)

The increasing impact of HIV on the lives of people in the Southern Hemisphere is reflected in three cases from the region. Two Southern African cases illustrate the courts' willingness to intervene on behalf of those suffering discrimination due to their HIV status. In Makuto v the State the Court of Appeal of Botswana held that punishing HIV positive offenders with higher sentences was discriminatory. Whilst in Hoffman v South African Airways the South African Constitutional Court adopted a similar robust line with a blanket ban on HIV job applicants operated by the national airline. This decision may be distinguished from the Australian case of X v Commonwealth of Australia & Anor where the High Court ruled that it was justifiable to dismiss an HIV soldier unable to perform an inherent requirement of his job without posing an unacceptable risk to his colleagues.

The Namibian decision of Chairperson of the Immigration Selection Board v Frank & Anor emphasises that homosexuals do not yet enjoy equal protection in all jurisdictions. Here, in the absence of specific protection for homosexual relationships, the Court found it lawful to not accord them the same status as heterosexual marriages. However, the Court also made clear that its decision should not be interpreted as permitting discrimination against homosexuals as individuals.

Environment/Religion (top)

An interesting case from India shows the tension between traditional practices and modern concerns. In Church of God (Full Gospel in India) v KKR Majestic Colony Welfare Association the Supreme Court found that the need to curb excessive noise pollution justified restricting the appellants' right to practice their religion.

Expression/Privacy (top)

A significant number of cases in this volume demonstrate how the courts across the Commonwealth are protecting the right to free expression against a variety of threats.

In three cases from the Caribbean the Privy Council found on each occasion that the state had unlawfully curtailed the free expression of local broadcasters and telecommunication providers. In Observer Publications Ltd v Matthew and Ors it was inordinate delay by the government of Antigua in granting a licence to operate a radio station that violated the applicant's constitutional rights. In the Dominican case of Cable of Wireless (Dominica) Limited v Marpin Telecoms and Broadcasting Company Limited a company's exclusive licence to provide telecommunications services amounted to an unlawful restriction on the free expression of its competitors. A violation also occurred in Benjamin and Others v Minister of Information and Broadcasting & Anor where the Anguillan authorities suspended an outspoken radio programme.

The courts reluctance to allow the use of defamation to unduly restrict free expression is illustrated by two cases Cheng & Anor v Tse from Hong Kong and Times Newspaper Ltd v McCartan Turkington Breen from the UK. In the former the Court of Final Appeal ruled that the defence of fair comment to a defamation action is not defeated by the author's ulterior motive. In the latter a newspaper's defence of qualified privilege was enhanced by the decision of the House of Lords that a press conference constituted a public meeting.

The longstanding conflict between free expression and the right to privacy are illustrated by two attempts to prevent publication of sensitive material with different results. In Douglas v Hello! Limited, despite some differences as to whether English law recognised a right to privacy, the Court of Appeal unanimously agreed that it would be wrong to impose a prior restraint injunction to prevent publication of a magazine containing unauthorised photos of a celebrity wedding. In the circumstances, particularly since the celebrities had already sold the photography rights to another magazine, the fairer approach was for them to pursue a claim for damages after publication. By contrast the offensive nature of the material and minimal public interest in P v D & Anor led the New Zealand Court of Appeal to grant an injunction in favour of a celebrity threatened with exposure of his psychiatric history.

Fair Hearing (top)

Two cases from Canada and the Seychelles demonstrate that the rights of defendants are not absolute in the face of competing concerns provided that they ultimately receive a fair trial. In R v Mills the Canadian Supreme Court upheld the non-disclosure of a complainant's medical records in a sexual offence case on the grounds that her privacy rights outweighed his right to full answer and defence. In Rose v Republic the Supreme Court of the Seychelles found that interests of justice required the trial to proceed in the absence of the defendant's counsel. In both cases the courts found that neither of the omissions unduly prejudiced the overall fairness of the proceedings. In contrast the Supreme Court of Cyprus in Application by Sayed Abdolamir Mousarin found that denying a legally-aided defendant his choice of counsel, where the latter was willing to act, violated his constitutional right to legal representation.

The impartiality of the judiciary remains a jealously guarded principle and two cases from Zimbabwe and Australia serve to illustrate the reluctance of the courts to impugn it without good reason. In Re :Chinamasa the Supreme Court of Zimbabwe agreed that contempt proceedings could be determined by another (although not the same) judge from the same court without unduly compromising his impartiality. Similar confidence in their colleagues was expressed by the Australian High Court in Re Colina & Anor; Ex Parte Torney when it held that remarks made by the Chief Justice could not influence the decision-making of individual judges.

The double jeopardy rule was considered in two cases from the Pacific region with differing results. In Taito Rarasea v The State the High Court of Fiji held that it was wrong for prison authorities to impose an additional penalty on an escaped prisoner on top of the punishment he had already received from the courts. However, in Spencer v Wellington the New Zealand High Court found that the separate prosecutions of the company and its principal director for the same illegal act did not infringe the double jeopardy rule.

Housing (top)

The South African Constitutional Court decision of Grootboom marks another significant step in the legal enforcement of economic and social rights. By holding that the local authority, through its failure to provide even basic shelter for those in desperate need, had violated their constitutional right to housing the Court gave real meaning to one of the most fundamental quality of life guarantees.

Indigenous People (top)

The rights of indigenous people were considered in three very different cases with varying results. In the UK case of R v Secretary of State for the Foreign and Commonwealth Office, Ex Parte Bancoult the government was deemed to have acted unlawfully when it forcibly expelled the indigenous population of the Chagos Archipelago as part of a defence agreement between the UK and the USA. In the Australian case of Nulyarimma & Ors v Thompson; Buzzacott v Hill & Ors legislation which extinguished native title to lands, whilst undoubtedly creating further disadvantages for the aboriginal people did not, according to the Federal Court, amount to genocide. Whilst in the Hong Kong case of Secretary of State for Justice v Chan Wah & Ors the enhanced political rights of the indigenous population compared to the non-indigenous people was deemed to be discriminatory.

Liberty and Security (top)

Two cases from Sri Lanka illustrate the importance of timely and periodic review of detention. In Hewagam Koralalage Maximus Danny v IP Sirinimal Silva & Ors the fact that the detainee was brought before the magistrate the next morning meant that no violation has occurred. By contrast in Weerawansa v Attorney-General & Ors the failure of the magistrate to carry out any effective periodic review of the detention over several months led the Supreme Court to conclude that there were no valid reasons for his continued remand.

The case of Duah v Superintendent of Prisons & Ors from St. Lucia shows that even where a deportation process has been adhered to excessive periods of detention will not be tolerated.

Life (top)

The decision of the Bangladesh Supreme Court in BSEHR v Government of Bangladesh & Ors marks another stepping stone in the expansion of the scope of protection offered by the right to life. In this instance the Court held that the forcible eviction of sex workers unjustly deprived of them of their right to earn a livelihood and hence right to life.

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