SARL du Parc d’activité de Blotzheim et SCI Haselaecker

Case:     A.J.D.A. 1999, 127 Case SARL du Parc d’activité de Blotzheim et SCI Haselaecker
 

Date:    18 December 1998

[The corporate owner of a leisure park in Blotzheim seeks the annulment of a decree publishing an exchange of notes between the French and Swiss Governments regarding the extension of the Basle/Mulhouse airport.]

Given that the Treaty between France and Switzerland of 4 July 1949 regarding the construction and operation of the airport at Blotzheim provides in its article 1 that “The Federal Council of Switzerland and the French Government agree to build and manage together a commercial airport…under the name of the Airport of Bâle/Mulhouse, which will be constituted as a public body, regulated by its statutes, the financial undertakings on the attached list, and the law of France except to the extent that it is displaced by this treaty and its annexes.” By article 2(2) of the Treaty “The installations already constructed are put by the French Government at the disposition of the Airport. The French Government agrees to acquire, to place in the public domain and to put at the disposition of the Airport any land required by the Airport, its installations and its road and rail links.” By article 3 the Airport as a public body is managed by “an administrative council”, and article 19 provides that “if the administrative council by a two-thirds majority of its active members requests a revision of the statutes or the list of financial undertakings such revision may be effected by an agreement between the two governments.” Article 3 of the list of financial undertakings annexed to the Treaty calls for the acquisition by the French government of land required for the exploitation of the airport, and article 9 provides that “If the works and installations described and estimated herein prove inadequate, the provision and management of any supplementary works or installations will be the subject of a protocol to this list of financial undertakings arrived at pursuant to article 19 of the Treaty; given that in an exchange of Notes, signed at Berne on 12 and 29 February 1996, the French Government and the Swiss Federal Council endorsed the proposal for the extension of the airport requested on 25 January 1996 by the administrative council pursuant to article 19 of the Treaty and article 9 of the list of financial undertakings annexed thereto, and that the agreement envisages the extension of the area of the airport from 536 to a maximum of 850 hectares so as to permit the construction of a further runway, the funds required for this purpose to be raised by the public body, subject to article 2(2) of the Treaty;

Given that the company which runs the leisure park at Blotzheim seeks the annulment, as being ultra vires, of the presidential decree of 13 May 1996 publishing this agreement under article 55 of the Constitution of 4 October 1958

On article 53 of the Constitution:

Given that under article 53 of the Constitution “The following may be ratified and approved only by statute: peace treaties, commercial treaties, treaties or agreements regarding international organisations, treaties involving state finances, treaties which modify legislation, treaties affecting the status of individuals, treaties which involve the cession, exchange or acquisition of territory, …”; given that according to article 55 of the Constitution “Treaties and international agreements properly ratified or approved are, from the time of publication, superior in authority to legislation, provided that in each case it has been applied by the other party thereto.” Given that it follows from these provisions taken together that treaties falling under article 53 of the Constitution cannot be regarded as properly ratified or approved under article 55 unless they have been authorised by statute; that in view of its effect in domestic law the publication of a treaty or agreement cannot be legally valid unless its ratification and approval has been authorised by legislation; given that if an argument is addressed to an administrative judge that a treaty or agreement has been published in breach of article 53 of the Constitution it is for him to determine its validity, and that it follows that contrary to the pleadings of the Minister for Foreign Affairs, the argument of the companies attacking the decree in question on the ground that the agreement it records had not been authorised by law is a good one;

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Given that under the agreement signed in Berne on 12 and 29 February 1996, referring to article 2(2) of the Franco-Swiss Treaty of 4 July 1949 and article 3 of the list of financial undertakings already mentioned, the French Government is to acqure the land required for the projected extension of the airport, and that the companies are correct to assert that this involves state expenditure in the sense of article 53 of the Constitution;

But given that the possibility of an extension of the airport was envisaged by the French Government and the Swiss Federal Council from the very beginning, as emerges from the terms of article 19 of the Treaty of 4 July 1949 and article 9 of the list of financial undertakings annexed thereto; that by Law no. 50-889 of 1 August 1950 Parliament, relying on article 27 of the Constitution of 27 October 1946, repeated in article 53 of the Constitution of 4 October 1958, regarding treaties involving state expenditure, authorised the President of the Republic to ratify the Treaty, including its article 19 as well as its annexes, including article 9 of the list of financial undertakings; that in view of the purpose of these articles Parliament must be taken by this law to have authorised the cost of creating and operating the works and installations required to supplement the existing installations if shown to be inadequate;

On the other grounds:

Given that while the applicant firm maintains that the agreement of 12 and 29 February 1996 went beyond the mere creation of a protocol to the list of financial undertakings annexed to the Treaty of 4 July 1949 and that in consequence it could not be made under the simplified procedure laid down in article 19 of that Treaty, it is not for the administrative judge in contentious proceedings to discuss the procedure for concluding treaties and international agreements, that being a matter intimately connected with the conduct of diplomatic affairs;

Given that it is also not for the Conseil d’État seised of a contentious matter to question the decision of the French Government and the Swiss Federal Council regarding whether or not, as required by article 9 of the list of financial undertakings annexed to the Treaty, the existing works fully answer the original description and estimate of what was required, or whether any extension of the airport of Basle-Mulhouse was needed;

Given, finally, that while the applicant firms criticise the decree under attack for nonconformity with the stipulations of the Treaty of 4 July 1949, it is not for the Conseil d’État in a contentious case to inquire whether an international undertaking is or is not valid in relation to other international undertakings;

Given that it results from the above that the applicants cannot demand that the decree in question be annulled;

DECISION
That the request of the company running the leisure park of Blotzheim is dismissed…

(Source: www.utexas.edu)

Constitutional Case - Abington School

Abington School Dist. v. Schempp, 374 U.S. 203 (1963)

Mr. Justice CLARK delivered the opinion of the Court:

Once again we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Fourteenth Amendment.

I.

The Commonwealth of Pennsylvania by law, requires that "At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian."

On each school day at the Abington Senior High School between 8:15 and 8:30 a.m., while the pupils are attending their home rooms or advisory sections, opening exercises are conducted pursuant to the statute. The exercises are broadcast into each room in the school building through an intercommunications system and are conducted under the supervision of a teacher by students attending the school’s radio and television workshop. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses, although the only copies furnished by the school are the King James version, copies of which were circulated to each teacher by the school district. During the period in which the exercises have been conducted the King James, the Douay and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or solicited, no comments or explanations made and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises.

 II.

It is true that religion has been closely identified with our history and government. The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, "So help me God." Likewise each House of the Congress provides through its Chaplain an opening prayer, and the sessions of this Court are declared open by the crier in a short ceremony, the final phrase of which invokes the grace of God. Again, there are such manifestations in our military forces, where those of our citizens who are under the restrictions of military service wish to engage in voluntary worship. It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are "earnestly praying, as ... in duty bound, that the Supreme Lawgiver of the Universe ... guide them into every measure which may be worthy of his [blessing.]" Memorial and Remonstrance Against Religious Assessments.
 

This is not to say, however, that religion has been so identified with our history and government that religious freedom is not likewise as strongly imbedded in our public and private life. Nothing but the most telling of personal experiences in religious persecution suffered by our forebears, could have planted our belief in liberty of religious opinion any more deeply in our heritage. It is true that this liberty frequently was not realized by the colonists, but this is readily accountable by their close ties to the Mother Country. However, the views of Madison and Jefferson, preceded by Roger Williams, came to be incorporated not only in the Federal Constitution but likewise in those of most of our States. This freedom to worship was indispensable in a country whose people came from the four quarters of the earth and brought with them a diversity of religious opinion.

III.

[T]his Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another.

V.

The wholesome "neutrality" of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. The Free Exercise Clause, likewise considered many times here, withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.
 

Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clauson. [There exists a] religious character [to] the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.
 

Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, "it is proper to take alarm at the first experiment on our liberties." Memorial and Remonstrance Against Religious Assessments.



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It is insisted that unless these religious exercises are permitted a "religion of secularism" is established in the schools. We agree of course that the State may not establish a "religion of secularism" in the sense of affirmatively opposing or showing hostility to religion, thus "preferring those who believe in no religion over those who do believe." We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.
 

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment.

(Source: michaelariens)

APPELLATE VICTORY AGAINST MERCEDES BENZ USA

On behalf of its client, Azubueze Jiagbogu, Norman Taylor & Associates won a decisive victory against Mercedes Benz USA on issues relating to offsets claimed by manufacturers for years in computing how much a consumer was entitled to in a lemon law case. In addition, the court of appeal put to rest an old defense practice of creating confusion for juries in determining whether a consumer's vehicle qualified for a refund or replacement under the law.

The Second Appellate District Division Four issued a unanimous decision authored by Justice Epstein on three critical areas:

1. Can continued use of a motor vehicle constitute a waiver of the consumer's rights under the Act [Song Beverly Consumer Warranty Act]?

The Court of Appeal said, NO.

If manufacturers had prevailed in this, consumers after requesting relief under the act would have to park their vehicle and walk to work, take buses or taxis, or borrow a vehicle from a friend or relative. Knowledge of the law is not required to see the absolute absurdity of this.

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May manufacturers get an equitable offset for use of the defective motor vehicle requesting relief under the act?

The Court of said, NO.

The Act is very clear regarding mileage offset for use before the vehicle is bought back. It is calculated per a well-defined formula and includes only the mileage up to the first time that the vehicle is presented to the manufacturer or its repair facility for a defect for which the vehicle is being rejected. Thus if the vehicle manifested the defect at 3500 miles, the offset may only be calculated with that number. If the court had accepted the defense's argument, all mileage from 0 to 100,000 miles or more could be offset. The effect could be that the vehicle manufacturers would end up paying the consumer nothing at all, or very little. From this it is easy to see where this foolishness originated.

Can a manufacturer get the presumption instruction when the instruction is unavailable to the plaintiff?

The Court of Appeal said, NO.

This little bit of obfuscatory nonsense is quite subtle. The presumption states the following:

A consumer in a lemon law case must prove that the manufacturer was given a reasonable number of attempts to repair the vehicle. In California, for example, there are several ways for consumers to establish the presumption that the manufacturer had a reasonable number of repair attempts. The presumption is established if any of the following occurs within the first 18 months or 18,000 miles:

· The same defect is subject to repair four or more times; or

· The same defect is subject to repair two or more times, and is a serious safety defect that is likely to cause death or bodily injury; or

· The vehicle is out of service for repairs for a cumulative total of more than 30 days, for any combination of defects.

Thus, if a California consumer proves that a vehicle has been subject to repair four times for the same problem within 18 months or 18,000 miles, then the judge will tell the jury that the consumer has met his burden of proving that the manufacturer had a reasonable number of repair attempts.

So far, so good: but what if the consumer had two repairs before 18 months or 18,000 miles and 7 after? The presumption does not apply, however nothing in the lemon law suggests that therefore the vehicle is not a lemon. If however, the manufacturer's attorneys could get the Judge to include the presumption language included in the jury instructions, the last thing the jury would hear is 18 months and 18,000 miles, and this, coupled with the two repair attempts, would mean that a perfectly legitimate lemon law case could be unfairly lost for the vehicle owner. The Appellate Court understood this and rightly ruled against.

(Source: normantaylor)

ECJ blurs news-PR line in landmark case

Those that write about food supplements that in some countries are classified as pharmaceuticals risk having their missives interpreted as illegal marketing materials, according to a European Court of Justice (ECJ) ruling.

The ECJ found any information that promotes unauthorised medicinal claims can be construed as product marketing, after a Danish journalist, Frede Damgaard, was found to have illegally disseminated information about a banned rosehip powder-based, multi-benefit product called Hyben Total.

Blogger beware

The ruling could apply to independent articles written by journalists as well as content provided on online social networks and product review sites by the likes of consumers, bloggers and twitterers, said defence counsel in the case, Susie S. Ekstrand, of the Danish law firm, Lett.

“This ruling is significant because it means anything written about a product that maybe deemed medicinal in one member state, can be deemed inappropriate and consequences may follow for the author,” Ekstrand told NutraIngredients.com this morning.

“We were surprised by this ruling because we thought a commercial interest in the product in question would have to be demonstrated, but the ECJ has ruled otherwise,” she added. “It is a restriction of freedom of speech and journalists need to be careful now, especially those writing online across many member states.”

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She made an example of a journalist writing about the joint benefits of glucosamine, which is classed as a drug in Denmark. Since such claims are forbidden in Denmark, a writer in that situation could find herself in legal hot water.

The verdict

The ECJ placed great emphasis on public health and noted that freedom of expression rights written in 1950 into the European Convention for the Protection of Human Rights and Fundamental Freedoms, was subject to “certain limitations justified by objectives in the public interest”.

It therefore found that statements about products could be construed as advertising under the 2001 Medicines Directive “even though the third party in question is acting on his own initiative and completely independently, de jure and de facto, of the manufacturer and the seller of such a medicinal product.”


The European Union’s highest court said it was for member state jurisdictions to interpret its ruling which agreed with an earlier Danish court ruling against Damgaard, which saw the freelance journalist fined about €1500.

(Source: NutraIngredient)

Environmental groups and ‘cool cities’ force U.S. financing agencies to take action on climate

United States — A federal lawsuit that sought to force two U.S. agencies to address the global warming implications of their overseas financing activities was settled today after more than six years; the suit established important legal precedents related to global warming.

Friends of the Earth, Greenpeace and the city of Boulder, Colorado, filed the suit (Friends of the Earth, Inc., et al. v. Spinelli, et al.) in August 2002 and were later joined by the California cities of Arcata, Santa Monica and Oakland. The plaintiffs alleged that Export-Import Bank of the United States and the Overseas Private Investment Corporation illegally provided more than $32 billion in financing and insurance to fossil fuel projects over 10 years without assessing whether the projects contributed to global warming or impacted the U.S. environment, as they were required to do under the National Environmental Policy Act (NEPA). Fossil fuel projects financed by the two agencies from 1990 to 2003 produced cumulative emissions that were equivalent to nearly eight percent of the world’s annual carbon dioxide emissions, or nearly one third of annual U.S. emissions in 2003.

In August 2005, a federal judge found that the U.S. cities suffering economic and other damages from climate change had standing to sue under NEPA, opening up the courthouse doors for the first time to those injured by climate change. Testimony from the case, which successfully asserted that climate change is real and caused by human activities, later informed the Mass. v EPA decision, in which the Supreme Court held that carbon dioxide and other greenhouse gases are pollutants that can be regulated under the Clean Air Act.

Under the settlement agreed to today, the Export-Import Bank will begin taking carbon dioxide emissions into account in evaluating fossil fuel projects and create an organization-wide carbon policy. The Overseas Private Investment Corporation will establish a goal of reducing greenhouse gas emissions associated with projects by 20 percent over the next ten years. Both agencies will commit to increasing financing for renewable energy.

The settlement represents an important victory in the continuing campaign to hold both agencies accountable for their contributions to climate change. The settlement agreement was filed in the U.S. District Court for the Northern District of California.

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Reactions from the plaintiffs:

“This settlement is a substantial victory for our climate. It will force federal agencies to move away from fossil fuel projects and account for the climate impacts of their lending. As President Obama said in his inaugural address, 'We can no longer consume the world’s resources without regard to effect.' The settlement agreed to today is a first step toward making Obama's vision a reality for these institutions.”
— Michelle Chan, Senior Policy Analyst, Friends of the Earth

“When we launched this lawsuit in 2002, we were deep in the Bush global warming dark ages. We were able to prove that climate change harms American cities and citizens and we forced these agencies to change their behavior. Now that we have entered the brighter Obama age, Greenpeace hopes that sweeping reform of global warming policy will reach every corner of the government.”
— Kert Davies, Research Director, Greenpeace

“This case was one of the very first climate change lawsuits and established the framework for other climate change cases. The claims here are no longer considered novel. The settlement reached today will help ensure that the federal government takes a close look at its contributions to climate change and that the courts are available if the government fails in this critical obligation.”
— Ron Shems, lead council for the plaintiffs

(Source: greenpeace)

India: Landmark Judgment on Gay Rights

The Delhi High Court judgment in the Naz Foundation case is a landmark verdict which decriminalizes homosexuality and strikes a blow in favour of personal freedom on the solid foundations of inclusiveness and respect for diversity. It deserves to be welcomed by all those who value constitutional morality and the principles of personal privacy and human dignity. It “reads down” Section 377 of the Indian Penal Code—which treats “carnal intercourse against the order of nature” as a punishable offence—by confining its application to non-consensual penile non-vaginal intercourse and paedophilia.

One doesn’t have to be even remotely inclined to a particular sexual orientation or a belief system other than tolerance to appreciate the scope and logic of this judgment by Justices A.P. Shah and S. Muralidhar. It conceptualizes freedom expansively within an uncompromisingly modernist perspective and offers a social vision that genuinely respects difference and diversity and does not discriminate against any citizen on grounds of religion, race, caste, sex or place of birth (Article 15 of the Constitution).

The verdict doesn’t merely uphold the rights of the lesbian, gay, bisexual and transgender (LGBT) communities. It enriches the understanding of discrimination, prejudice and social exclusion, and imparts new meanings to the concepts of inclusiveness, liberty and human dignity. It speaks to all citizens.

It’s dismaying therefore that relatively few social and political organisations have extended support to the judgment and committed themselves to amending Section 377 of the IPC. Religious groupings across the spectrum have expectedly opposed it. Less expectedly, no political party, barring the Communist Party of India-Marxist and the Nationalist Congress, has welcomed it, and that too with caution. The Congress is badly divided on the issue. The Hindu Right fiercely opposes the verdict.

Yet, there are compelling reasons to break the social taboo against non-heterosexual orientations. It bears recalling that Section 377 is a colonial legacy enacted in 1860 by Lord Macaulay, who was as deeply rooted in Victorian morality as he was devoted to the British Empire. It followed a larger agenda which Macaulay himself defined in 1825:
. . . I propose that we replace [India’s] old and ancient education system, her culture, for if the Indians think that all that is foreign and English is good and greater than their own, they will lose their self-esteem, their native culture and . . . become what we want them, a truly dominated
nation . . .



The judgment’s central rationale lies in the extension of the definition of sex to include not just gender, but a person’s sexual orientation, as a ground for discrimination, exclusion and punishment, and its elaboration of the right to life under Article 21 as including the right to a dignified existence and privacy, and the inviolable liberties guaranteed by Article 19.

All these fundamental rights, including the right to equal treatment and non-discrimination (Articles 14 and 15), it cogently argues, are violated by Section 377, which involves “unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits”, quoting a Canadian judgment.

Human dignity means that an individual or group feels self-respect and self-worth [and concerns]. . . physical and psychological integrity…Human dignity is harmed when individuals and groups are marginalised, ignored or devalued.

This is precisely what Section 377 does.

Section 377’s basis lies not in science or rationality, but in hopelessly archaic notions of “deviant sexual behaviour”. The judgment reviews the current scientific and professional literature on the issue and notes that according to psychologists, “the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence”. These patterns of sexual attraction generally arise without any prior sexual experience.

Thus, homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality.

The judgment makes an impressive survey of contemporary jurisprudence, including verdicts from different countries, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, formulated in 2007 by experts from 25 countries, including a former UN High Commissioner for Human Rights, numerous judges, academics and activists.

These principles recognise that “human beings of all sexual orientation and gender identities are entitled to the full enjoyment of all human rights”. All have the right to privacy. Every citizen has a right to take part in the conduct of public affairs including the right to stand for elected office, participate in the formulation of policies affecting their welfare, with equal access to all levels of public service and employment without discrimination.

Says the judgment:

The constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognises a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.

Equally illuminating is the verdict’s discussion of the right to privacy, or a “space in which man may become and remain himself”. The right to be let alone doesn’t derive from efforts to protect other interests.

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It should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, your personality and make fundamental decisions about your intimate relations without penalisation.

We all have a right to a sphere of private intimacy and autonomy and to nurture human relationships without interference from outside.

The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy.

The only limitation is that this must be done without using coercion or harming others.

The judgment persuasively shows that religious faith, tradition or customs cannot be an argument for restricting liberty, including sexual freedom. Underlying this argument, quoting a South African judicial committee, is revulsion against what is regarded as unnatural, sinful or disgusting. Many people feel this revulsion. . . But moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour .

(Source:sacw)

Does husband have marital right to rape his wife?

There was once a generally accepted legal doctrine that men could not commit the crime of rape against their wives. This was evident by the pronouncement of Sir Matthew Hale in his History of the Pleas of the Crown, where he said that the husband cannot be guilty of a rape committed by himself upon his lawful wife. Hale’s justification for his statement was that, on marriage, the wife gave up her body to her husband and gave her irrevocable consent to sexual intercourse.

However, by the 20th century, social circumstances and attitudes had changed so much that the law had reached a state of crisis that required the total rejection of the doctrine. In R V CLARKE, Byrne J held that the husband’s immunity was lost where the justices had made an order providing that the wife should no longer be bound to cohabit with the defendant. In R V STEELE, it was held that where a husband and wife are living apart and the husband has made an undertaking to the court not to molest he wife, that is in effect equivalent to the granting of an injunction and eliminates the wife’s implied consent to sexual intercourse. So, the courts had developed the doctrine the implied consent as a means of mitigating the stark harshness of Hale’s original doctrine.
 

However, in R V J(RAPE:MARITAL EXEMPTION) (1991), the argument was bases on statutory interpretation. The wording of s.1(1) of the Sexual Offences (Amendment) Act 1976 provided that a man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it. The contention was that the Act of 1976 provided a statutory definition of rape and that the only possible meaning which could be ascribe to the word “unlawful” was “illicit”, effectively meaning outside the bounds of matrimony. Consequently, Parliament’s intention must have been to preserve the husband’s immunity.


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Thus stood the authorities when R V R was heard by the Court of Appeal in 1991. The court was clearly of the view that the ancient rule had to be removed, but how was that to be achieved?


Lord Lane, who delivered the decision of the court, stated that “the abolition of a rule of such long standing is a task for the legislature (Parliament), and not the courts. Ever since the decision of Byrne J in R V CLARKE, the courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes. Where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment.”


In respect of Hale’s proposition, the court had to say that it never was law.


The statutory provision of 1976 remained and was dealt with as follow – “the only realistic explanation seem to us to be that the draftsman either intended to leave the matter open for the common law to develop in that way….or, perhaps more likely, that no satisfactory meaning at all can be ascribe to the word and that is indeed surplusage.”


HOUSE OF LORDS unanimously followed the decision and reasoning of the Court of Appeal. Their Lordships agreed that Hale’s pronouncenment never was law; it was always a fiction that had infiltrated the common law. As for the interpretation of the Sexual Offences (Amendment) Act 1976, the appearance of “unlawful” was mere surplusage. Subsequently, the word “unlawful” was removed from the definition of rape under the Criminal Justice and Public Order Act 1994.


Thus the fiction of marital consent was removed forever, and stands the law in UK that a man can be liable for the crime of rape against his wife. The law was declared that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.