Friday, December 20, 2013

Supreme Court of Canada Finds Prostitution Laws Unconstitutional

SCTCANADA
In its highly anticipated judgment in Canada v. Bedford, the Supreme Court of Canada has unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional, although it suspended the declaration of invalidity for one year to allow Parliament to act. 

The provisions of the criminal code at issue were:

  • § 210 making it an offence to keep or be in a bawdy‑house;
  • § 212(1)(j) prohibiting living on the avails of prostitution; and,
  • §213(1)(c) prohibiting communicating in public for the purposes of prostitution. 

All there were declared inconsistent with §7 of the Charter which provides "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."  The Court was clear that it was security - - - and not liberty - - - that was the animating principle for its decision.

Importantly, prostitution itself is legal in Canada, an important underpinning of the Court's decision.  The Court reasoned that the criminal code provisions at issue heightened the risks prostitutes face, by not merely "imposing conditions" but also going "a critical step further by imposing dangerous conditions on prostitution" and prevent "people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks."  

The Court rejected the notion that the created danger was "negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution."   

The Court then engaged in a type of purpose, means, and balancing analysis familiar in constitutional law. Gal-hall-1Quoting from the Court's handy summary of its reasoning and holding in this lengthy and scholarly opinion,

[First], the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance.  The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption.  Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. 

Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage.  The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.  It also includes anyone involved in business with a prostitute, such as accountants or receptionists.  In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes.  The living on the avails provision is consequently overbroad. 

Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause.  The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

 The Supreme Court of Canada's unanimous opinion affirms a judgment by the Court of Appeal for Ontario and one might believe that Canada's remaining criminalization of sex work have been vanquished.  However, the Court recognized that the "regulation of prostitution is a complex and delicate matter," and that Parliament "should it choose to do so" could "devise a new approach, reflecting different elements of the existing regime."   The Court suspended its declaration of invalidity for one year.  And one might say that the "ball" is now in Parliament's "court." 

[image: Canada Supreme Court building's Grand Entrance Hall via]

December 20, 2013 in Comparative Constitutionalism, Fundamental Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Uganda Parliament Passes Anti-Homosexuality Bill - - - and Anti Pornography Bill

The anti-homosexuality bill has been before the Uganda Parliament for several years.  For background - - - including discussions of the links between the bill and US evangelicals- - - both Jeff Sharlett's 2010 Harper's Magazine article  Straight Man’s Burden: The American roots of Uganda’s anti-gay persecutions  and the documentary film God Loves Uganda   are worth consideration. 

 

The original "Anti Homosexuality Bill" Bill 18 2009, seems to have been amended by various motions, according to Parliament Watch (Uganda).  These amendments include:

The death penalty was removed from the Bill during the debate, and the death penalty was replaced with life imprisonment.

  • Clause 14 Failure to disclose the offense was deleted because the clause will be too hard to implement
  • Clause 12 was amended,a new clause inserted that sentences any person or institution that conducts gay marriage to 7yrs and licence canceled
  • Clause 9(b) the words"either in Uganda or elsewhere"or" appearing at the end of the end of the sub- clauses 1(a) (b)were deleted
  • Clause 9 was amended by deleting the words "etc " in the head note, because it makes the head note appear vague
  • Clause 8 Conspiracy to engage in homosexuality, was deleted because it is provided for under clause 13
  • Clause 7 : Aiding and abettting Homosexuality was deleted, because it provided for under clause 13

An official copy of the bill is not yet available.  It must be presented to the President of Uganda for assent.

Additionally, yesterday the Uganda Parliament passed The Anti Pornography Bill creating the offense of pornography.  As defined, it includes "any indecent act or behavior tending to corrupt morals."

Should there be Presidential assent and the bills become law, there are vows to challenge the constitutionality of both laws in the courts. 

December 20, 2013 in Comparative Constitutionalism, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 11, 2013

Australia High Court Invalidates Capital Territory's Marriage Equality Act as Unconstitutional

The Australian Capital Territory (ACT) - - - akin to Washington, D.C. for those familiar with the United States - - - passed a "marriage equality act" allowing for same-sex marriages.  Australia's High Court has declared the ACT's marriage act invalid in The Commonwealth of Australia v. The Australian Capital Territory, [2013] HCA 55. 

Main
Here's
the Court's "judgement summary":

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961.  The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The Court held that "marriage" in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.  "Marriage" in s 51(xxi) includes a marriage between persons of the same sex.

The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples.  The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia.  That Act is a comprehensive and exhaustive statement of the law of marriage.  

The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises.  Accordingly, the ACT Act cannot operate concurrently with the federal Act.

Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.

The Court held that the whole of the ACT Act is of no effect.

 The Court's unanimous opinion is mostly concerned with whether the ACT marriage act and the federal marriage act are inconsistent.  The constitutional issues lurk in the background: Australia's constitution gives the federal government power over marriage.  As the opinion states:

Section 51(xxi) of the Constitution gives the federal Parliament power to make laws with respect to "marriage". Section 51(xxii) gives the Parliament legislative power with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". Both powers were included in the Constitution to avoid what the framers saw as a great defect in the United States Constitution. The object of the powers was to enable the federal Parliament to provide uniform laws governing marriage and divorce.

Once the inconsistency is determined - - - and there was an argument that the laws could be interpreted as not inconsistent, but this failed - - - then the federal law must prevail.

As the opinion states, "Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament."

 

December 11, 2013 in Comparative Constitutionalism, Current Affairs, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Supreme Court of India Upholds Constitutionality of Criminalization of Sodomy

In its long-awaited opinion in Koushal v. NAZ Foundation, the Supreme Court of India has reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional.

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The Supreme Court decision noted that India's sodomy law was pre-constitutional - - - and derived from British rule - - - and also that the Court certainly had the power to declare the law unconstitutional as inconsistent with several provisions of the India Constitution, including

  • Article 13 (Laws inconsistent with or in derogation of the fundamental rights)
  • Article 14 (Equality before law)
  • Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
  • Article 19 (Protection of certain rights regarding freedom of speech etc.)
  • Article 21 (Protection of life and personal liberty)

Nevertheless, the Court stated that there is a presumption of constitutionality given the "importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody."  

The Court's 98 page opinion authored by Justice Singhvi (who is interestingly scheduled to retire tomorrow, the day after the opinion was rendered), and without a dissenting opinion, criticizes the Dehli Court's reliance on non-national sources:

 In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

(para 52).

For United States scholars, such concern for nationalism certainly echoes the dissenting opinion in Lawrence v. Texas, in which the United States Supreme Court held unconstitutional a state law criminalizing sodomy.  Yet in the India context, the fact that its constitutionalism is linked to British rule as well as the fact that the sodomy law is a product of colonialism (and is a law that the colonial power has since repudiated as former Australian High Court Judge Michael Kirby has analyzed as England's "least lovely" export) are distinguishing features.

Certainly, however, the problematizing of judicial review in the context of sexuality occurs in the United States cases as well as those from South Africa, an issue extensively discussed here.

And certainly, advocacy on behalf of "the so-called rights of LGBT persons" will be moving to India's Parliament.

[image of Supreme Court of India via]

December 11, 2013 in Comparative Constitutionalism, Courts and Judging, Fundamental Rights, Opinion Analysis, Privacy, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 10, 2013

Daily Quote: Obama on Mandela and "Formal Equality"

Long walkAt the memorial for former South Africa President Nelson Mandela, United States President Obama's speech including the following observation:

The struggles that follow the victory of formal equality and universal franchise may not be as filled with drama and moral clarity as those that came before, but they are no less important.

A full transcript of Obama's speech is in the Washington Post here.

Video (and transcript) from BBC here.

Nelson Mandela's autobiography Long Walk to Freedom remains the best read about Mandela.

And worth (re)reading on this anniversary of Mandela's signing the South Africa Constitution in 1996, volumes such as The Post-apartheid Constitutions : Perspectives on South Africa's basic law by Penelope Andrews and Stephen Ellman and Constitutional Rights in Two Worlds by Mark Kende. 

December 10, 2013 in Comparative Constitutionalism, Equal Protection, Foreign Affairs, History | Permalink | Comments (0) | TrackBack (0)

Thursday, November 28, 2013

UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?

Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that he couple have entered into a civil partnership?

This is essentially the question presented in the UK Supreme Court's opinion in Bull v. Hall involving the Chymorvah Hotel in Cornwall, pictured below.

Chymorvah House

The main opinion, authored by the twelve justice Court's only woman member, Lady Hale, affirms the lower court's finding that the same-sex couple's equality claims must prevail.  While the decision is unanimous, some justices wrote separately because of differing on the rationale, including whether the discrimination should be deemed direct or indirect.  These differences resulted from highlighting sexual orientation or highlighting marital status, with the added wrinkle of civil partnership being equivalent to marriage.

But clearly, the Court held, there was discrimination.  And further, the Court held, that discrimination cannot be justified.  The Court construed the statutory frameworks prohibiting discrimination based on both sexual orientation and religious belief, and then turned to article 9 of the European Convention on Human Rights, which guarantees the ability to manifest religious beliefs in “worship, teaching, practice and observance."  But Article 9 also provides:

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

This "rights of others" qualification is key to the Lady Hale's analysis, as these rights  include rights under "ordinary law," including UK's regulatory framework that prohibits discrimination.

But, as Lady Hale makes clear, it is not a matter of sexual orientation discrimination trumping religious discrimination.  Instead:

If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.

While the UK Supreme Court did cite cases from other jurisdictions, it sometimes noted that they occurred in a "different constitutional context."  

In the United States, the constitutional context pits First Amendment rights of free exercise of religion against Equal Protection rights based on sexual orientation.  When the sexual orientation rights of equality have been statutory, the United States Supreme Court has clearly held that the First Amendment interests prevail, as in Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995).  However, with the constitutional recognition afforded same-sex marriage last term in United States v. Windsor under the equal protection component of the Fifth Amendment in the challenge to DOMA (Defense of Marriage Act), the legal landscape has altered.  

Thus, it may be that the US Supreme Court will soon be confronting an issue quite similar to the one that the UK Supreme Court in Bull v. Hall.  One possibility is Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer and in which Elane Photography has filed a petition for writ of certiorari.

Interestingly, the petition relies upon the compelled speech doctrine, arguing that requiring Elane Photography, a wedding photographer to photograph a same-sex wedding would be to require her to "create expressive images" that conveyed messages that conflict with her religious beliefs and therefore violates the First Amendment doctrine of compelled speech.  The petition heavily relies upon Wooley v. Maynard (19977) the New Hampshire "leave free or die" license plate case. As Lyle Denniston notes, the case "does not ask the Court to rule on any right of gays and lesbians to marry" and NM presently does not either prohibit or allow same-sex marriage. 

Given the US Supreme Court's highly discretionary grant of certiorari and the lack of a developed conflict in the circuits on this issue, it seems more likely than not that the US Supreme Court will refuse to hear Elane Photography.  But given the probabilities of recurrence of the issue, the US Supreme Court will most likely be confronting this issue sometime soon.

November 28, 2013 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, Family, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Thursday, November 7, 2013

Our Outdated Constitution

Alex Seitz-Wald writes over at The Atlantic that we need a new Constitution, and he has some ideas about how to write it.

Seitz-Wald says that our Constitution is seriously out of step with the best and most recent thinking about constitution-making around the world.  Indeed, he writes, "Almost nobody uses the U.S. Constitution as a model--not even Americans."  More: our differences don't reflect anything especially unique about the United States.  Instead, our Constitution is just, well, old.

It's also short, leaving too many holes.  That means that the courts can step in to interpret and apply it, giving judges remarkable power.  ("Where modern constitutions in other nations get specific, we get judicial activism.")  It also ensures the kind of hyper-partisanship, and resulting government break-down, that has become common in our politics.

In contrast, other, more recent constitutions around the world are long and specific, filling in the holes we left open.  They also create institutions that protect against the dangers of hyper-partisanship, and voting and participation rules that increase direct citizenship involvement. 
But if ours is old and short, it's also uncommonly hard to change.  So Seitz-Wald surveys some familiar proposals (an amendment convention called by the states under Article V) and some not-so-familiar ones (the German Pirate Party's "liquid democracy") to get us going.  Whatever the process, Seitz-Wald concludes, "the status quo isn't working.  We badly need a more perfect union."

November 7, 2013 in Comparative Constitutionalism, News | Permalink | Comments (0) | TrackBack (0)

Thursday, October 24, 2013

Not So Fast Nadon: The Supreme Court of Canada's Would-Be Justice On Hold

As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court. 

 

Marc-nadon
Marc Nadon, Portrait (prematurely?) on the Supreme Court of Canada website
It's a complex issue, especially for those not steeped in Canadian constitutional law, but luckily Canadian ConLawProfs Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper, Purposive Interpretation, Quebec, and the Supreme Court Act.

 

They set out the facts at the beginning of their discussion:

On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion  by a former Supreme Court Justice, The Honourable Ian Binnie.  Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg.  After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved.  On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.

The Supreme Court of Canada action is now docketed here.

As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment," 

Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."

This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.  


October 24, 2013 in Comparative Constitutionalism, Courts and Judging, Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Human Rights Watch Urges Changes to Draft Vietnamese Constitution

Human Rights Watch penned a letter to the Chairman of the Vietnamese National Assembly this week, urging the body to protect the rights and liberties of all people in Vietnam as the Assmebly moves forward with the country's new constitution.  Here's the press release.

The National Assembly has authority to revise the constitution; it is considering amendments during a session from October 21 to November 30, 2013.  The government opened the draft constitution up for public and official comment on January 2, 2013, and received tens of thousands of submissions.  But as HRW points out, some who campaigned for changes found themselves targets of government reprisal.

The letter urges the assembly to "ensure that the amendment process brings the constitution into conformity with Vietnam's obligations under international law so that it fully protects the rights and liberties of all people in Vietnam, which will contribute to the country's development."  In particular, the group is concerned about these:

-Weakened protections against arbitrary arrest;

-Expansion of the one-party state;

-Extension of control over the armed forces by the Communist Party

-Broad limitations on rights, broader than limitations recognized under international law;

-A weak judiciary and Constitutional Council.

The group also recognized some positive developments, including the more frequent references to human rights, and extension to both citizens and non-citizens; explicit reference to the right to life; a new ban on discrimination on political, economic, cultural, and social grounds; a new prohibition on gender discrimination; new criminal procedure rights; bans on forced labor and child labor; the establishment of a Constitutional Council; and the creation of a National Election Commission.

October 23, 2013 in Comparative Constitutionalism, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 15, 2013

Federalism, State Constitution at Center of Detroit Bankruptcy Case

Federalism and state constitutionalism took center stage today, as Judge Steven Rhodes opened hearings on Detroit's eligibility for bankruptcy.  Detroit's filing, on July 18, is the largest municipal bankruptcy petition in U.S. history.

According to the Free Press, attorneys for the creditors objecting to bankruptcy argued that federal bankruptcy law "allows the U.S. government to infringe on state rights and gives 'political cover' to Detroit emergency manager Kevyn Orr to pursue pension cuts":

I'd ask your honor to come back with me to elementary and high school when we first talked about what the Constitution means.  By turning over Chapter 9 to the federal government and being able to hide behind the bankruptcy process, we lose that accountability that's a cornerstone of what our constitution requires of us.

Creditor attorneys also argued that bankruptcy violates the Michigan Constitution's protection of public pension benefits.  Article IX, Section 24 says,

The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.

The hearing on eligibility is slated to go through Wednesday; Judge Rhodes will start an eligibility trial on October 23.  

October 15, 2013 in Comparative Constitutionalism, Federalism, News, Oral Argument Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, October 11, 2013

Michigan's 50th and the Evolution of State Constitutionalism

The Wayne Law Review (at Wayne State U. Law) is hosting a symposium today titled A Wave of Change: Celebrating the 50th Anniversary of Michigan's Constitution and the Evolution of State Constitutionalism.  

You can view it live on-line here.

This symposium seeks to evaluate the progress of state constitutions over the past 50 years.  The symposium will also expose students, practitioners, academics, and the community to the unique and important qualities of state constitutions that are largely overlooked and undervalued.

Speakers will include national scholars on state constitutionalism as well as Michigan judges, practitioners, and community members.

October 11, 2013 in Comparative Constitutionalism, News, Scholarship, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, October 4, 2013

South Africa Constitutional Court Declares Portions of Statutory Rape Laws Unconstitutional

Img_teddy_phone-266x300The Constitutional Court of South Africa's unanimous opinion in The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another rendered on October 3, declares two aspects of the statutory rape and statutory sexual assault crimes unconstitutional. 

Before the Court was the criminal scheme in which two adolescents who had a sexual encounter with each other could both be guilty of having statutorily raped the other.  A "close in age" defense, when the parties' age difference was less than two years, was available in the statutory sexual assault situation, but not in the statutory rape situation in which "penetration" is required.

Written by Justice Sisi Khampepe, the opinion concludes that the criminal scheme violates the inherent right to dignity protected by §10 of the South African Constitution and the right to privacy protected by protected by §59 of the Constitution.  The Court's opinion also found that the criminal sanctions violated § 28(2) of the Constitution that provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.”  It added that it is "trite that section 28(2) is both a self-standing right and a guiding principle in all matters affecting children, and that the criminal sanctions "exacerbate harm and risk to adolescents by undermining support structures, preventing adolescents from seeking help and potentially driving adolescent sexual behaviour underground."

Writing for the Court, Justice Khampepe resolves the required "means chosen" analysis thusly:

In my view, there are clearly less restrictive means available for achieving the stated purposes of the impugned provisions. First, assuming criminalisation could be shown to be an appropriate response to deter consensual sexual acts which carry the risks of psychological harm, pregnancy or the contraction of sexually transmitted diseases, a narrowly focussed provision would target only those acts where these are potential risks. I have already noted that sexual penetration as defined goes well beyond sexual intercourse. Similarly, most of the acts falling within the ambit of sexual violation are not carriers of the recited risks. Thus, in relation to the purposes of preventing adolescents from suffering psychological harm, contracting sexually transmitted diseases and becoming pregnant, the impugned provisions are clearly and impermissibly over-inclusive. In any event, I am highly doubtful that the introduction of criminal prohibitions could ever be shown to be a constitutionally sound means of preventing the occurrence of such risks as teenage pregnancy. Certainly the respondents have put forward neither argument nor evidence to convince me otherwise.

Additionally, the Court noted that criminalization included sex offender status and registration requirements.

Declaring the sections invalid "to the extent that they impose criminal liability on children under the age of 16 years,"  the Court then suspended the declaration for 18 months to allow Parliament to "correct the defects" in the legislation.

This is an important opinion for childrens' rights and sexual rights.  

[image from The Teddy Bear Clinic via]

October 4, 2013 in Comparative Constitutionalism, Family, Opinion Analysis, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, October 3, 2013

Idaho Court Rules Denial of Motions Violates State Constitutional "Open Courts"

The Idaho Supreme Court ruled today that a magistrate judge's order dismissing a party's motions because the party had been found guilty of contempt for for failing to pay child support violated the party's right to access the courts.

The case is notable because it invokes the Idaho Constitution's "Open Courts" provision--a common provision in state constitutions, but one that's relatively rarely litigated and has spawned a notoriously confused jurisprudence in the state courts.  More: the court apparently reached out for the issue.

The case, State of Idaho Department of Health and Welfare v. Slane, involved a father's motions for child custody and modification of child support.  The father had been previously judged in contempt of court for failing to pay court-ordered child support, and he was unable to purge the contempt when he filed his motions.  A magistrate judge then dismissed the motions because of the father's inability to purge the contempt and pay back child support.  A lower court upheld the magistrate's ruling.

The Idaho Supreme Court reversed for reasons dealing with the details of the contempt and the details of the magistrate's order.  But then it added an alternative basis for its ruling: the magistrate's order violated the state constitutional open courts provision.

Article I, Section 18 of the Idaho Constitution says that "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."  

This kind of "open courts" provision is common in state constitutions.  Open courts provisions first appeared in early state constitutions (borrowing from language in Magna Carta), and later state constitutional drafters appear to have simply lifted the text--sometimes modifying it slightly, but without any real thought about what it means.

That's led to a notoriously confused jurisprudence among state courts in interpreting state constitutional open courts provisions.  In short, many states have an open courts provision, but courts across states can't seem to agree on exactly what "open courts" means.

So the Idaho Supreme Court's ruling is notable for dealing with open courts--for giving it some dimension and definition, at least in this context.  But it's notable for a couple other reasons, too.  For one, the court seems to have reached for the issue.  Neither party seems to have argued it (based on the briefs, at least), and it's dicta.  (The court could have hung its hat on its analysis of the details of the contempt and the magistrate's order, but it added this alternative reason for striking the magistrate's order.)  Moreover, in ruling the way that it did, the court overruled three of its own opinions (from the mid-twentieth century) "to the extent that they are inconsistent with this opinion."

The upshot of all this is that the father gets his motions reinstated.  

October 3, 2013 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 2, 2013

Daily Read: That Shutdown? It's the Constitution's Fault

Who to blame for the lapse of appropriations, also known as the government "shutdown"?

Over at Washington Post, Dylan Matthews argues

it's James Madison's fault. This week's shutdown is only the latest symptom of an underlying disease in our democracy whose origins lie in the Constitution and some supremely misguided ideas that made their way into it in 1787, and found their fullest exposition in Madison's Federalist no. 51. And that disease is rapidly getting worse.

Matthews contrasts the situation with Great Britain:

while it is clear in the U.K. who is to blame for poor economic performance, it's far more difficult for American voters to sort out who's responsible. So they just hold to account whoever they get to vote on first. That leads to more or less random shifts in sentiment, with divided government and ensuing deadlock and crises, which makes assigning blame and holding members to account even more difficult.

Matthews isn't the only one over at WAPo holding up the UK as exemplar.  Max Fisher explains that "Australia had a government shutdown once. In the end, the queen fired everyone in Parliament."  He ends with this arch interrogatory: "Maybe, if we ask nicely, Britain will take us back?"

 

495px-George_W._Bush_toasts_Elizabeth_II_2007
Queen Elizabeth II on a visit to the United States in 2007, with President George W. Bush.

October 2, 2013 in Comparative Constitutionalism, Current Affairs, International, Interpretation, News | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 1, 2013

Canada's Newest Supreme Court Justice: Marc Nadon

Screen Shot 2013-10-01 at 8.33.32 PMMarc Nadon, nominated by Canada's Prime Minister Stephen Harper (and not subject to a US-type of confirmation process), will soon ascend to Supreme Court of Canada.

Nadon's nomination posed many issues.  Constitutionally, a question was whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.  Here's one opinion (procured before the announcement) laying out the issues and concluding eligibility.  The problem and conclusion could have applied to other jurists, and indeed there was some speculation that the nominee would be someone else: a woman.  Canada's Supreme Court now only has three women and Nadon is the fifth man Harper has appointed to the Court.

 

Current-judges-tn
Current Justices of Supreme Court of Canada; Nadon will replace Fish, front row, second from right

 

The Globe and Mail has a good article about Nadon, with quotes from law professors; the article in the Toronto Star has a good discussion of his decisions; and the National Post provides "ten things to know" about him.

He is widely viewed as conservative, based on a few of his rulings as a judge on the Federal Court of Appeal, including a Guantanamo case and a rejection of parental leave for adoptive mothers.  (The latter case was compellingly critiqued by Brenda Cossman here).

The Supreme Court of Canada has a mandatory retirement age for justices of 75. 

October 1, 2013 in Comparative Constitutionalism, Current Affairs, News | Permalink | Comments (0) | TrackBack (0)

Friday, September 27, 2013

Keeping Up with Australian Constitutional Law Developments

Professor Melissa Castan has an excellent round-up of sites devoted to Australian Constitutional Law over at Amicae Curiae ("Girlfriends of the Court"). 

Coat-of-armstoo1

As a bonus, it's illustrated by a still from the classic Australian comedy The Castle where lawyer Dennis Denuto is pleading Daryl Kerrigan’s case in the Federal Court and is so far out of his depth that he starts to refer to the Australian Constitution and rather than a specific textual reference, says that it is just the "vibe of the thing" that the judge should consider.

Here's a video of the pertinent scene:

 

 

September 27, 2013 in Comparative Constitutionalism, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 17, 2013

U.K. Controversy Over Criminal Defendant Wearing Niqab

May a defendant in a crminal case wear a niqab, a full face veil, to testify?  That's the question a UK judge answered largely in the negative, although making some accomodations in his opinion in Queen v. D. 

Recall that the U.K. does not have a First Amendment free exercise of religion- - - as Judge Murphy explains in his opinion:

The jurisdiction of England and Wales is essentially (though not formally) a secular democracy. I recognise that the jurisdiction is in the rather odd position that part of it (England) has an established church, while the other part (Wales) does not. But in neither part does the church interfere with the working of the courts.

Indeed, as a BBC analysis notes about the case in "The Crown Court at Blackfriars,"  "faith has long been part of the fabric of the state - so much so that the court at the heart of the veil case is named after a medieval religious order." 

Nevertheless, the UK is bound by the European Convention on Human Rights, including Article 9, section 2 of which provides:

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

The judge balanced the freedom to manifest religion against the interests of public order (and fair trial), finding that the defendant must remove her niqab in order to testify, although she need not testify in open court and her image would not be disseminated.

For further analysis of the case, see Dressing Constitutionally Blog here.

September 17, 2013 in Comparative Constitutionalism, First Amendment, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 3, 2013

Chinese Constitutionalism and its Enemies

Joanna Chiu writes at The Atlantic that Chinese President Xi Jinping's recent comments in support of legal reform have reignited a debate over constitutionalism and constitutional reform in the country.  ("Reignited," because the government put a stop to those discussions when it imprisoned Liu Xiaobo and interrogated others in response to a manifest, "Charter 08," by a group of intellectuals calling for constitutionalism and restrained Party power.)  Still, she says, any push for constitutionalism or constitutional reform still gets heavy push-back from the government.  And an internal Party memo she cites calls for the eradication of "seven subversive currents" in Chinese society; those include "Western constitutional democracy," universal human rights values, media independence, and civic participation.

Chiu quotes a Shanghai lawyer to summarize the problem:

[The constitution] looks beautiful on paper, but in practice Chinese courts do not generally take the Chinese constitution into consideration to decide cases.  Ordinary citizens cannot use the constitution to defend their rights or redress their grievances.

As for the government's reaction to talk about constitutionalism and reform, this anecdote is telling:

Nevertheless, calls for China to adhere to the 1982 constitution remain.  In December, Beijing University professor Zhang Qianfan published "A Proposal for Consensus Reform," co-signed by 72 intellectuals including He Weifang, demanding that the government abide by the charter.  The proposal suggested setting up a review committee within the National People's Congress as a first step to give the constitution real power.  But the article, which was posted on Zhang's personal blog and the Beijing University Law School website, was soon deleted without explanation.

 We posted previously on Chinese constitutionalism here.

September 3, 2013 in Comparative Constitutionalism, International, News | Permalink | Comments (0) | TrackBack (0)

Sunday, August 11, 2013

Sixth Circuit Says Emergency Manager Law May Violate State Constitution

The Sixth Circuit on Friday ruled in City of Pontiac Retired Employees Association v. Schimmel that the Michigan state legislature may have violated the state constitution in approving the state's emergency manager law for immediate effect.  The court remanded the case to the district court for consideration of that claim.  If the district court holds that the law violates the state constitution, and if that ruling is upheld on appeal, the actions of the emergency manager for the City of Pontiac will be void.

The 2-1 ruling is notable insofar as a federal appeals court took it upon itself to rule on a state constitutional claim not raised by the parties, relating to state legislative procedure--all to avoid the plaintiffs' federal constitutional claims.  The next steps in the case, the remand to the district court and the appeal that will surely follow, will be important because those rulings could put in jeopardy any action by any state emergency manager under a state law giving emergency managers broad powers.

The case arose after the Michigan state legislature approved Public Act 4, authorizing an emergency manager to temporarily reject, modify, or terminate existing collective bargaining agreements.  Pursuant to this power, the City of Pontiac's emergency manager, Louis Schimmel, modified the collective bargaining agreements and severance benefits, including pension benefits, of Pontiac's retired employees.  The employees sued, arguing Schimmel and Pontiac violated their federal constitutional rights, including rights under the Contracts Clause, the Due Process Clause, and the Bankruptcy Clause.  They did not raise state law claims.

Still, there may have been state law problems with Schimmel's actions.  First, the legislature approved Public Act 4 for immediate effect with less than a 2/3 vote, despite a state constitutional provision that requires a 2/3 vote for immediate effect.  (Without a 2/3 vote, a legislative act takes effect 90 days after the end of the legislative session in which it was passed.)  If the legislature enacted Public Act 4 in violation of the state constitution, Schimmel's actions pursuant to it are void.

Next, even if the state legislature complied with the state constitution, Public Act 4 may still be invalid.  That's because Michigan voters rejected Public Act 4 in a citizen-initiated referendum in 2012.  The legislature later enacted a law substantially similar to Public Act 4, but insulated from a voter referendum under the state constitution because it contains an appropriation provision.  All this means that the emergency manager authority under Public Act 4 and its successor is questionable.

But the parties didn't raise or argue these state law issues.  Instead, the Sixth Circuit did.

The Sixth Circuit dodged the plaintiffs' federal constitutional arguments (in the name of constitutional avoidance) and ruled that the lower court should consider the state law claims.  In particular, the Sixth Circuit said that the state legislature's practice, across political parties, of approving laws for immediate effect even when they don't get the constitutionally required 2/3 vote may raise constitutional problems:

Apparently, a two-thirds vote occurs whenever the presiding officer says it occurs--irrespective of the actual vote.  This authority is unchecked and often results in passing motions for immediate effect that could not receive the constitutionally required two-thirds vote.  Apparently, the Michigan Legislature believes the Michigan Constitution can be ignored.

There's a state intermediate appellate court ruling that seems to say that this kind of action doesn't violate the state constitution.  But there's no determinate state supreme court ruling on the issue.

For now, the case goes back to the district court for consideration of the state law issues raised by the Sixth Circuit.  

SDS

August 11, 2013 in Comparative Constitutionalism, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Saturday, August 10, 2013

Daily Read: Blocked on Weibo by Jason Q Ng

As we think about surveillance of electronic communication in the United States,  it's worth (re)considering China's surveillance and censorship of electronic interactions amongst its own citizens.  Jason Ng's new book, Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (and Why) promises to be an engaging exploration of the multi-layered relationships between the Chinese government and "netcitizens" and - - - importantly - - - corporations. 

Here's Jason Ng in conversation with Sharon Hom, the Executive Director of Human Rights in China.

 

 

Of special interest is the screen shot showing the search for the phrase "constitutional democracy" (at about 1:36).  The discussion by Ng and Hom of creative work-arounds and corporate "tolerance" is also worth a listen.

RR

 

August 10, 2013 in Comparative Constitutionalism, Fundamental Rights, International, Web/Tech | Permalink | Comments (0) | TrackBack (0)