The
Commonwealth Human Rights Law Digest has two complete Volumes with a
third in production, each consisting of three issues containing 50 summaries of
human rights decisions from domestic courts of the Commonwealth. Cases included
in the Digest are those referring to international human rights
instruments, to provisions of Bills of Rights within national constitutions, or
which otherwise have a significant human rights dimension. The subscription rate
for the Digest is maintained at a low level to ensure that the
publication provides an affordable means of accessing Commonwealth human rights
jurisprudence. In addition, INTERIGHTS supplies a number of Commonwealth judges,
court libraries and non-governmental human rights organisations with
subscriptions to the Digest, with over 600 copies of each issue
currently being distributed. Butterworths legal publishers provide a generous
subsidy in exchange for assistance in identifying relevant human rights cases
for their own publications. Each Digest has an editorial review
outlining the major cases contained in the Issue.
Click
here for EDITORIAL REVIEWS AND UPDATES FROM VOLUME 2
Click here for EDITORIAL REVIEWS AND UPDATES
FROM VOLUME 1
Click here for EDITORIAL REVIEW AND UPDATE VOLUME 3 ISSUE 1
EDITORIAL REVIEW AND UPDATE VOLUME 3 ISSUE 2
VOLUME
3 ISSUE 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.