Tag Archives: Homosexual Rights

Tarunabh Khaitan: Koushal v Naz: The Legislative Court

khaitan_tarunabhIn Koushal v Naz—the case being touted as one of its worst judgments—a two-judge bench of the Indian Supreme Court has overturned a 2009 decision of Delhi High Court which had struck down the criminalisation of sodomy by s 377 of the Indian Penal Code 1860 as unconstitutional. In doing so, it has recriminalized every Indian who has ever had oral or anal sex (irrespective of the gender of the person they had it with, and irrespective of consent).

Many commentators have already pointed out the spectacular lack of constitutional and judicial aptitude, understanding of human rights and compassion in the judgment (see these excellent commentaries by Vikram Raghavan, Gautam Bhatia, Pratiksha Baxi, Mayur Suresh, Siddharth Narrain, Arghya Sengupta, and Shreya Atrey among others). In this post, I will focus on the deeper structural and institutional decline of which this judgment is a painful symptom. If Koushal were read simply as the failure of a couple of judges to get the law right, India would miss a rare opportunity to treat the root causes of the malaise.

Koushal represents two structural failures of the Indian Supreme Court, at least one of which has sometimes been commended as a great success by some Indian and foreign commentators. The first structural failure, one that many progressives see as a model for how the judiciary should be organised, is the near-total abandonment by the Supreme Court of the principle of separation of powers, and its transformation into a populist, legislative court of governance. The second failure, one that flows from the first failure, is the Court’s routine dereliction of its duty to give reasons for its decisions and the Indian legal academy’s failure to hold it accountable for this dereliction. Let me explain both of these failures in turn, and how they have facilitated the decision in Koushal.

Failure I: Judiciary as a Counter-majoritarian Institution

In Koushal, the Court could barely conceal its disdain when it described lesbians, gays, bisexuals and transgendered people as ‘a miniscule fraction of the country’s population’ [43] with ‘so-called rights’ [52]. This may seem bizarre to those of us who believe that one of the primary functions of constitutional courts is the protection of vulnerable minorities. Clearly, a ‘miniscule’ minority should be of particular concern to a counter-majoritarian institution.

The Court’s position is easier to fathom if understood in the context of its history following the authoritarian Emergency imposed in India in the mid-70s by Indira Gandhi. During the Emergency, a scared Court agreed to the suspension of Habeas Corpus. After the deeply unpopular Emergency was lifted and the country returned to democracy, the Court started to reinvent itself to gain institutional legitimacy. This reinvention was, however, not in terms of pitting itself against the representative organs of the state, but by competing with these organs. The process, which began in the ‘80s, only intensified in the ‘90s which saw an end to one-party-dominance in politics. Coalition politics and weak legislatures remain a feature of Indian politics to this day. The Court, in the meantime, became a populist institution of governance—stepping in to fill the void left by an increasingly dysfunctional Parliament. In a country where the majority of the population suffers significant disadvantage, majoritarianism can often become aligned with ‘progressive’ politics. A majoritarian Court continued to play to the gallery and wrecked havoc on the principle of separation of powers. As it laid down detailed guidelines, took up cases without any litigant, appointed commissioners, created policy, and micro-managed implementation, it was cheered on by civil society, while meek politicians barely managed occasional squeals of disapproval. Its occasional retrogressive missteps were brushed aside as aberrations, and the Indian Supreme Court, regularly invoking its popular Public Interest Litigation jurisdiction, came to be seen as a model of progressive judiciary by many people in India, and outside India.

It should not surprise us that this majoritarian populist institution found it impossible to respect the ‘so-called’ rights of a ‘miniscule’ minority. Of course, Indian courts have sometimes stood up for minority rights. So has the Indian Parliament. What matters is the self-image the Court has been allowed to cultivate, which overwhelmingly determines its institutional course of action. This self-image is not that of a counter-majoritarian institution correcting the excesses of democracy, but one that is acutely conscious of the reception of its judgments by the people (such consciousness extends only to the outcome of a case, not its reasoning). Under this model, if representative bodies did a good job of representing the people, the courts would be unnecessary. The Court is a political actor, which wants to be judged as politicians are judged. Its legitimacy rests on popular acceptance, not constitutional mandate.

This political context explains, rather than complicates, how the bench in Koushal suddenly discovers the joys of separation of powers. The Court first extends the presumption of constitutionality to a pre-constitutional colonial law by suggesting that the democratic Parliament has ‘adopted’ it by failing to amend it! [28, 32]. It specifically mentions a 2013 legislation amending the law dealing with sexual assault as proof that ‘the legislature has chosen not to amend the law or revisit it’, ignoring completely the fact that there was no need for Parliament to do so after the Delhi High Court had read down s 377 to exclude private sex between consenting adults from its ambit. That the 2013 legislation was enacted after the hearing in Koushal was concluded, thereby affording no opportunity to the parties to challenge its use by the Court, is another matter.

This ostensible deference to democratic will is an opportunistic fig leaf of a populist Court with little more than contempt for the representative institutions of democracy. In an act of concluding magnanimity to the legislature, the final sentence of the judgment grants it permission to consider the ‘desirability and propriety of deleting section 377’ [56]. The fact that it thought such a clarification was necessary tells us that this is not a Court deferential to the legislature—this is a Court with unhesitant pretensions of being the legislature.

Failure II: The Duty to give Reasons

A key feature of adjudication is the public articulation of reasons after hearing principled submissions by the parties involved, on the basis of which a judge arrives at her decisions. In this respect, adjudication differs from voting, which allows a decision-maker to decide without having to articulate her reasons (or even without having any reasons). The Indian Supreme Court in Koushal fails to respect this fundamental judicial duty at so many levels that it is difficult to escape the conclusion that the Court seems to be voting, not adjudicating. The following factual inaccuracies, unsupported conclusions, and omissions in the judgment are particularly noteworthy in this regard:

    1. The Court records the Government of India’s position on the case as one defending the criminal provision under review [7]. This, despite the fact that the Government had chosen not to appeal the High Court ruling, and its top lawyer—the Attorney General of India—had clearly told the bench that the Government supported the High Court’s decriminalisation of adult consensual sex. Remarkably, the Court describes the Attorney General as ‘amicus’ [21], forcing him to publicly clarify that he had very much represented the Government’s official position in the case.
    2. The Court found itself able to ignore the voluminous material placed before it to conclude that there was no evidence to show that ‘homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society’ [40].
    3.  Long-standing precedent is clear that Article 14 (right to equality) of the Constitution requires every legal classification to be based on an intelligible differentia and have a rational nexus with a legitimate state objective. The Court, while repulsing the Article 14 challenge, finds it sufficient to say that the classification between ‘[t]hose who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature’ is intelligible [42]. It wastes no ink trying to identify the state objective being pursued, or asking whether the measure has any nexus with that objective.
    4. Even this half-hearted attempt to give reasons is not made when rejecting the Article 15 (right against discrimination) challenge. No reasons whatsoever are provided [44].
    5. The way the Court deals with the challenge under Article 21 (the right to life and liberty) is even more curious. After devoting several paragraphs quoting established precedents on Article 21 [45-50], the Court makes no specific finding with respect to Article 21! After these block quotations, the Court moves seamlessly to simply assert that the use of s 377 to ‘perpetrate harassment, blackmail and torture’ is ‘neither mandated by the section nor condoned by it’ [51]. How the preceding six paragraphs setting out the established doctrine under Article 21 help the Court reach this conclusion, and how this conclusion repels the Article 21 challenge, is anybody’s guess.

The judgment seems to have been written carelessly, perhaps even in a hurry—the hearing in the case concluded in March 2012, and the judgment was delivered in December 2013, on the day before the senior judge on the bench was due to retire. A cavalier attitude to its duty to give reasoned judgments is not uncommon in the Indian Court’s jurisprudence. Although unfortunate, this is hardly surprising. The Court has a total strength of 30 judges, who usually sit in benches of 2. In 2011 alone, they decided some 47,000 admission matters (the Court sets aside two days every week to hear admission applications!), of which 9,070 were admitted for regular hearing. The main reason for this staggering docket, apart from the size of the country, is its remarkably liberal invocation of its ‘special leave’ jurisdiction, which allows review petitions from any court or tribunal in the country to be placed directly before the Supreme Court (Article 136, Constitution). A direct approach to the top Court deprives it of the benefit of the considered views of the courts below, and should be allowed very rarely. The pressure of its workload also results in the constitutional requirement that any constitutional case involving a substantial question of law must be heard by at least five judges (Article 145) being routinely ignored (including in Koushal). Only 0.12% of all cases disposed of by the Court between 2005 and 2009 were decided by a bench of five judges or more.

Given such volume, what is surprising is the respectable number of cases where Indian judges do manage to give reasoned judgments. The fragmentation of the Court into small benches deciding thousands of cases every year had led to a situation where even a conscientious judge would find it next to impossible to respect stare decisis. For less conscientious judges, the opportunity to cherry-pick precedents is limitless.

Furthermore, the academy simply cannot keep up with the judicial assembly line. Academic criticism is the real check on judicial power in a democracy. In the Indian context, academics are forced to focus on the outcome of the cases alone—only a handful of cases (like Koushal) that really stand out receive proper academic attention. This reinforces the judicial belief that all they need to do is to make the outcome generally palatable; all else will probably be ignored. Thus, the judges decide as if they were politicians, and they are judged as if they were politicians—based not on how they reason but on the way they vote.

Conclusion

The outrage that this judgment has inspired amongst politicians, activists and academics in India presents an opportunity to rethink the fundamental structural weaknesses of the Indian Supreme Court. Most of the recent debate on the reform of the Court has focussed on changing the appointment system of judges (currently, the Court appoints its own judges!) and dealing with the lack of diversity in the judiciary. While who gets to be a judge is an important issue, unless these structural infirmities are addressed, even Herculean judges cannot change the situation very much. The Court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must do less and do it well. It must stop voting and stick to adjudicating.

Dr. Tarunabh Khaitan is Hackney Fellow in Law at Wadham College, Oxford.

Suggested citation: T. Khaitan, ‘Koushal v Naz: The Legislative Court’ U.K. Const. L. Blog (22nd December 2013) (available at http://ukconstitutionallaw.org).

Postscript: Some readers have emailed to ask about the possibility of review. Although this is a judgment of the highest court of the land, because of the proliferation of 2-judge bench rulings, the Court has had to invent two further review stages to challenge its own judgment–a (rarely invoked) review jurisdiction and then a (very rarely used) ‘curative’ jurisdiction. The  government has been the first of the parties to seek review.  Other petitioners are expected to follow suit. How the Court will react remains to be seen.

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Se-shauna Wheatle: Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica

seshauna-studio-copy1For more than twenty years Jamaica was engaged in the process of amending the Chapter of Fundamental Rights enshrined in the Constitution of Jamaica 1962. The culmination of that project was the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which ushered in substantial changes in the application of rights (including explicit provision for horizontal rights application) and the scope of rights (for example, designing some of the equality provisions to exclude equal protection on the ground of sexual orientation). As the first case to test the terms of Jamaica’s new constitutional rights arrangements arising under the Charter, Maurice Tomlinson v Television Jamaica Ltd v Others, is of historical import. The case is significant for its assessment of the issues of horizontal rights protection, freedom of expression, and the position of gay persons under the Charter.

Tomlinson, who is a gay Jamaican and was formerly Legal Advisor to Aids-Free World, submitted a proposed Public Service Announcement (PSA) to the two major television stations in Jamaica (Television Jamaican Ltd and CVM Television Ltd). The video message encouraged tolerance towards, and respect for, the human rights of gay men in Jamaica. The stations refused to air the video, whereupon Tomlinson filed a claim in the Supreme Court of Jamaica, a court of first instance in Jamaica which has original jurisdiction in constitutional cases and is of equivalent jurisdiction to the High Court of England and Wales. Tomlinson sought declarations that the stations’ refusal constituted breaches of his right to freedom of expression under section 13(3)(c) of the Charter, and freedom to disseminate information and ideas through the media under section 13(3)(d) of the Charter. He also sought these declarations against the Public Broadcasting Corporation of Jamaica, though it was accepted during argument that as the PBCJ was a statutory body, it was limited by the terms of its statute which barred it from airing paid advertisements. The court unanimously dismissed the claim against all three defendants.

Horizontality Under the New Charter

Some of the most interesting and potentially impactful parts of the judgments delivered by the three judges of the Supreme Court concern the issue of the application of horizontal rights protection under the Charter. The Charter expressly provides for the first time that the rights and freedoms under the Charter are binding on private persons as well as the state to the extent that they are applicable in light of the right and duty under consideration. Thus, section 13(5) states:

A provision of this Charter binds natural or juristic persons, if, and to the extent that, it is applicable taking account of the right and the nature of any duty imposed by the right.

In his judgment Justice Sykes articulates an equality-based view of horizontal rights protection, stating that Jamaica copied the horizontality section in the Final Constitution of South Africa, ‘a country with significant inequality between social groups’ and that that section ‘was, perhaps, seen as a way of addressing that inequality through judicial decision on the scope and meaning of the Bill of Rights’. [191]. Indeed, constitutional scholars Stuart Woolman and Dennis Davis have argued that the inclusion of horizontal application in the South African Constitution gives recognition to the fact that power wielded by private bodies can undermine justice and that ‘inequalities in social power’ undermine the autonomy of individuals. While Justice Sykes identified horizontality as a means of addressing inequality, the Jamaican Supreme Court’s approach to horizontal protection in the Tomlinson case pays little attention to the context of inequality that surrounded the case. Justice Sykes held that the stations did not interfere with the claimant’s right to freedom of expression since the Constitution ‘does not give any private citizen … the right to use another private person’s property to disseminate his message by any technological means available.’ [311] Accordingly, he held that it was not necessary to balance the rights of the rights and responsibilities of the claimants and defendants. Justice Paulette Williams J, on the other hand, balanced the claimant’s rights to freedom of expression and the defendants’ rights to freedom of expression and held that to grant the declarations sought by the claimant would prejudice the rights of the defendants, and that since the claimant has a corresponding duty to uphold the defendants’ rights, the ‘horizontal application … is not applicable’. [98]

The judges did not sufficiently address the special position of the first and second defendants (Television Jamaica Ltd and CVM Television Ltd) as the two major television stations in Jamaica, commanding the vast majority of the market share in televised media, and their resulting dominant position in determining what is televised in Jamaica. The Court also failed to address the context of societal and structural inequalities that confront Jamaican gay men, such as the claimant. These shortcomings in the judgment are all the more striking given the emphasis placed by the members of the court on the section of the South African Constitution from which section 13(5) of the Jamaican Charter draws its influence and much of its language. The corresponding horizontality section of the South African Constitution has been said to embrace a conception of liberalism which recognizes that ‘the real issue regarding the application of fundamental rights is …about how all kinds of power are distributed throughout a polity and what that means for the lives of individuals and the associations that inhabit the larger political community.’ Despite repeated references to the South African provision and the suggestion that it was conceived in an ethos of equality, the Jamaican Court did not take sufficient notice of the context of power distribution that arose in the case before it.

A difficult issue that arises in this area is how courts should approach a conflict between the rights of private citizens. This became central to the Tomlinson case because the defendants, as media companies, also asserted their right to freedom of expression. The approach adopted by Williams J was to balance the claimant’s rights against those of the defendants. The Charter provides some guidance as to how to resolve such a conflict, section 13(2) of the Charter stating that the rights are guaranteed, ‘save only as may be demonstrably justified in a free and democratic society’. This textual guarantee ought to be a guide to determining whether a limitation of rights was justified, irrespective of whether that limitation occurred as a result of an act of the state or an act of a private party. Yet, Williams J appeared to reject the use of this section to resolve conflicting rights as between private parties, referring to the decision of the Constitutional Court of South Africa in Khumalo v Holomisa. In Khumalo the Constitutional Court balanced the media’s right to freedom of expression against the constitutional value of human dignity in determining whether the law of defamation applicable to the private parties in the dispute before the Court was consistent with the Constitution. While referring to the judgment in Khumalo, Williams J failed to note that the Khumalo Court did not actually engage with this question of whether the general limitations clause was applicable in a case of conflicts between rights. Further, the section of the Khumalo judgment that addresses horizontality has been criticised for being ‘cursory’ and there have been more recent judgments from South Africa which shed light on the horizontal application of rights and the conflict between the rights of citizens. These cases were not referred to in Williams J’s judgment. These more recent judgments are particularly interesting because they contain suggestions that the requirements in the limitations clause are relevant to cases of conflict between rights of private parties. Whichever conclusion Williams J arrived at, it would have been useful, in light of the fact that this was the first Jamaican case to raise these issues, for the judge to engage in a more comprehensive analysis of this issue.

Williams J concluded that while balancing the rights of the claimant and the defendant, the court must not tip the balance in favour of one as this would suggest that one party’s right was greater than the other. [94]-[97]. She held that to make the declarations sought against the television stations would prejudice their rights and freedoms, so the claim must be dismissed. She further held that ‘the horizontal application … is not applicable as the claimant has the duty to uphold the corresponding rights of the 1st and 2nd defendants.’ This invites a final observation on Williams J’s decision. While she ostensibly rejects the suggestion that the scale must be tipped in favour of one side, her decision actually does tip the balance in favour of the television stations, while undermining the rights of the claimants. Her denial of this result reflects a mistaken notion that preserving the status quo (that the PSA is not aired) is to refuse to choose, when in fact that preservation of the status quo is a rather demonstrative choice on the part of the court.

This case is of historical import in Jamaica and the Commonwealth Caribbean, and the issues that arose will no doubt be tested when the case is appealed. It is to be hoped that the appellate courts will engage in a more thorough and contextual analysis of some of the contested questions that arise in the field of horizontal rights application.

Se-shauna Wheatle is a Research Associate in Public Law at Durham University.

Suggested citation: S. Wheatle, ‘Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica’ U.K. Const. L. Blog (10 December 2013) (available at http://ukconstitutionallaw.org).

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Massimo Fichera and Helen E. Hartnell: All you need is law: Same-sex marriage in Italian courts

Massimo-Fichera_avatar-105x105Helen-E.-Hartnell_avatar-105x105The Italian Corte di Cassazione (CdC) has delivered a judgment which marks a fundamental change of direction in the treatment of same-sex marriage in the Italian legal system.  Case 4184/12, decided on 15 March 2012, illustrates the piecemeal nature of legal developments affecting same-sex marriage, as well as the complex mix of issues that arise in this legal field.  Same-sex marriage bridges private and public law, and implicates family, free movement, and equality (non-discrimination) rights found in national, European and international sources.

To grasp the importance of the CdC’s ruling on family rights and non-discrimination, we must first clarify what this case does not decide by distinguishing it from two earlier Italian court decisions on same-sex marriage in the context of European Union (EU) citizenship and the free movement of persons under Directive 2004/58/EC (formerly 2004/38/EC) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizens’ Directive).  That Directive is silent about whether the term ‘spouse’ includes a same-sex husband or wife.  Both prior Italian cases resolved this ambiguity in favor of same-sex couples.

The first case (Cass. Pen. sez. I n. 1328, 19 January 2011) concerned a non-EU citizen who was convicted by the Justice of Peace of Mestre for illegal entry and residence in Italy.  On appeal to the CdC (criminal section), he argued that his marriage celebrated in Spain with an EU citizen should entitle him to EU free movement rights, even when the marriage was between two men.  The CdC agreed in principle, and directed the Justice of Peace to ascertain whether Spanish legislation treats the same-sex partner as a “spouse” and, if so, to recognize the effects of the marriage in the Italian territory.  This was the first time the CdC admitted the possibility that same-sex marriage could have legal effects in Italy, albeit only in regard to immigration issues falling within the scope of the EU Citizens’ Directive.

The second case (Trib. di Reggio Emilia, sez. I civ., ord. 1401/2011, 13 February 2012) concerned a marriage in Spain between a Uruguayan and an Italian man.  When the couple later moved to Italy, the Uruguayan partner applied for a residence permit.  Here the Italian court explicitly ruled that limiting marriage to a man and a woman contravenes the interpretation of the term “spouse” found in the Citizens’ Directive, as well as of the rights to marry and to found a family mentioned in Article 9 of the Charter of Fundamental Rights (EU Charter).  The court clearly stated that once there is evidence that any marriage has been lawfully celebrated in an EU Member State, free movement rights both of the citizen and his/her family member ought to be guaranteed, regardless of the spouses’ national legislation.  But this case, like the CdC’s 2011 decision, only ensures rights under Italian immigration law.

The CdC’s March 2012 decision involves a fundamentally different fact pattern from those earlier cases, and its rationale invokes different legal sources.  This case involves two Italian men who went to Holland, married there, then returned home to Italy and asked the competent Italian authority in Latina to register their marriage.  The Italian authority refused to register the marriage, pursuant to a 2007 Ministry of Interior circular proscribing local authorities from registering same-sex marriages celebrated abroad on ordre public grounds.  On appeal, the Italian pair argued that this refusal violated their rights to marry and to have a family life, as well as the principles of non-discrimination and self-determination.  Their appeal was rejected by the Tribunal of Latina, the Court of Appeal in Rome, and the Corte di Cassazione.  However, the CdC’s decision breaks new ground, even though it does not go so far as to grant same-sex couples the right to marry or to have a foreign marriage registered in Italy.

Unlike the two earlier cases, this Italian same-sex couple’s goal was not limited to securing the handful of immigration rights guaranteed by the EU Citizens’ Directive.  Rather, these Italian men sought full civil recognition in the form of registration of their marriage, predicated on far-reaching rights claims.

This is not to say, however, that either the Italian couple or the CdC ignored EU law entirely in the March 2012 case.  On the contrary, the men argued that Italy’s failure to recognize the marriage they had concluded in another Member State impaired their rights — as EU citizens — to move freely within the EU per Article 21 (1) TFEU, and urged the Italian court to make a preliminary reference to the Court of Justice of the European Union (CJEU) seeking interpretation of Articles 9, 21, 51, 52, 53 and 54 of the EU Charter.  The CdC was not persuaded, however, and refused to refer any questions to the CJEU, pointing to decisions by the ItalianCorte Costituzionale (decision 138/2000 of 2010) and by the ECJ (C-299/95Kremzow; C-328/04 Vainaj; C-400/10 McB; C-256/11 Dereci) which emphasize that the EU Charter only applies to situations that fall within the scope of EU law.  On this issue, the CdC was firm:  the rights to marry and to found a family do not fall within the scope of EU law, since Article 9 of the EU Charter relegates these matters to national law.

The CdC next turned to the question whether there are still reasons, in modern Italian society, to consider same-sex marriage unlawful.  The CdC’s reasoning focuses on the tension between, on the one hand, the traditional concept of marriage, as derived from Roman law and enshrined in international instruments such as the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, and, on the other hand, recent trends towards giving full recognition to the legal effects of same-sex marriages.

The CdC’s decision draws upon — but ultimately surpasses — two 2010 rulings, one by the Italian Corte Costituzionale and the other by the European Court of Human Rights.  Both of those earlier decisions opened the door a crack towards civil recognition of same-sex marriage, but the courts ultimately hesitated to cross the threshold.  Instead, it was the Corte di Cassazione in March 2012 that stepped through the door, albeit cautiously.

In Decision 138/2012 (April 2010), the Italian Corte Costituzionale (CC) ruled that Articles 3, 29 and 2 of the Italian Constitution cannot be read to mean that the right to same-sex marriage has constitutional ranking in the Italian legal system.  Rather, the CC insisted that Article 29 embodies a “naturalistic” definition of marriage that presupposes gender diversity.  This interpretation was not inevitable, however, since the language of Article 29 is gender-neutral, defines “family” as a “natural society based on marriage”, and proclaims the “moral and legal equality of the spouses”.  In the end, despite acknowledging that the concepts of “marriage” and “family” ought to be interpreted in line with socio-cultural changes occurring over time, the CC shied away from a “creative” interpretation that would radically modify core concepts that had never been contemplated by the drafters, and declared the aim of procreation to be inherent in marriage and worthy of constitutional protection.  Yet despite its hesitation, the CC in 2010 took an important first step towards constitutionalising same-sex marriage in Italy by noting that Article 2 of the Constitution protects gay unions as “social groups” in which all people have the right to develop as individuals.

The decision of the European Court of Human Rights (ECtHR) in Schalk and Kopf v. Austria (June 2010) was more daring than the one reached by the Italian Corte Costituzionale, but the ECtHR also held back from the interpretive brink.  Reading Article 12 of the European Convention on Human Rights and Article 9 of the EU Charter together, the ECtHR stated that it no longer considered that the “right to marry … must in all circumstances be limited to marriage between two persons of the opposite sex.”  Still, the ECtHR was unwilling, given the lack of consensus in favor of same-sex marriage, to impose this interpretation on the Contracting States.  Thus in the end, the ECtHR’s conclusion was similar to that reached by the Corte Costituzionale, namely that the issue falls within the Member States’ margin of discretion, and it is up to their legislative organs to regulate the matter.

The March 2012 decision of the Corte di Cassazione (civil law section) moves a decisive step closer to full recognition of same-sex marriage.  While the CdC did not overturn the outcome of the case and allow the marriage to be registered, it did reject the lower court’s reasoning, which had denied registration on ordre publicgrounds.  Instead, the CdC refuses recognition for the technical reason that the marriage is unable to produce legal effects in the Italian legal system.  By doing so, the CdC departs from its previous stance that gender diversity was a prerequisite to a legally valid marriage.  The CdC also abandons as untenable the position that same-sex marriage is “non-existent”, in view of the fact that some countries now allow same-sex marriage.

Yet however important those steps may be, the real novelty of the CdC’s 2012 decision lies elsewhere.  The Corte di Cassazione states clearly that gay couples have a right to family life on the basis of the equality/non-discrimination provision in Article 3 of the Italian Constitution, which entails treating them on an equal footing with married couples, and that this right can be judicially protected, even absent any action by the legislature.  Thus, Case 4184/12 constitutes a major step in the evolution of the concept of family in the Italian legal system, even while falling short of a breakthrough constitutionalisation of same-sex marriage.

A more detailed analysis of the Italian developments, including comments on stirrings in the Italian legislature, is available here.

Massimo Fichera is a Post-Doctoral Fellow, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity Research, funded by the Academy of Finland.

Helen E. Hartnell is a Professor of Law, Golden Gate University School of Law (San Francisco) and Fulbright Core Scholar, University of Helsinki Faculty of Law, Centre of Excellence in Foundations of European Law and Polity (Fall 2012).

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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Emily Burke: Same-Sex Marriage Legislation in Australia

There is a global trend towards the recognition of same-sex unions, with recent expressions of support from Prime Minister David Cameron, President Obama and the new French President Hollande. In the Australian Federal Parliament there are currently two bills in the House of Representatives and one in the Senate that would legalise same-sex marriage. When the Labor Party government last year amended its official policy platform to advocate for same-sex marriage, its members were ensured a conscience vote on the issue. However the Liberal-National Party coalition in opposition has rejected same-sex marriage reform, and a recent motion to allow a conscience vote for its National party members failed. The minor Greens Party and backbenchers from all sides continue to call for the leader of the opposition to allow coalition members the freedom of a conscience vote.

A committee of the House of Representatives completed its inquiry into the same-sex marriage bills in early June, but declined to support or reject the legislation as a committee. More recently, the Senate Legal and Constitutional Affairs Committee released the report of its separate inquiry. In the latter case, of the six voting members, four were in support of the bill (one Liberal-National, two Labor, and one Greens Senator). However the remaining two voting Senators, one Labor and another Liberal-National, each issued a strong dissent. There were 10 additional participating Senators on the committee, eight of which opposed the legislation.

The public debate over these issues has been intense, with the Senate Committee alone receiving an unprecedented 79,200 submissions – 46,000 of which were in support of same-sex marriage. The House of Representatives Committee received over 250,000 responses to their online poll, with a strong majority of 64% in favour of marriage equality.

Alongside the political debate as to whether same-sex marriage should be enacted, lies a legal one concerning whether such legislation is capable of being enacted by the Commonwealth Parliament. The bills would change the statutory definition of marriage, which is currently the ‘union of a man and a woman’, to be the ‘union of two people … voluntarily entered into for life.’

The dissenting Senators relied on the submissions of several lawyers to conclude that the constitutional foundation for such legislation is weak, and a referendum is ‘worthy of serious consideration’ to allow the public to decide whether or not same-sex marriage should be legalized.

This comment aims to examine the constitutional foundation upon which the Australian Parliament could legislate for same-sex marriage, and assess its strength. Is there a case for proceeding with a referendum before legislating on such an important question?

(1)  The Constitutional Validity of Same-Sex Marriage Legislation

Under section 51(xxi) of the Australian Constitution the Commonwealth Parliament has power to makes laws with respect to ‘marriage’ – a term that is not further defined in that document. The Commonwealth Parliament cannot determine the ambit of its own power by defining the constitutional meaning of the word ‘marriage’ through legislation. It is exclusively the role of the High Court to determine the constitutional limits of Parliament’s powers. However there have only been sparse indications from the High Court on whether the ‘marriage power’ can support legislation for same-sex marriage.

In the cases of Singh (2004) and Re Wakim (1999), Justice McHugh commented that at 1900, the time of the Constitution’s foundation, ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. However, his Honour noted that ‘by reason of changing circumstances’, ‘marriage’ now means, or in the future may mean, a voluntary and permanent union between two people’.

This demonstrates the two different views that the High Court could take on the scope of Parliament’s power to legislate with respect to ‘marriage’. On one view, the permissible meanings of the constitutional provision are limited by the framers’ intentions – confining ‘marriage’ to only different-sex unions.

Alternatively, as Justice McHugh’s comments indicate, the High Court could conclude that the essential concept of marriage is a commitment of two people to a voluntary and permanent union – and in contemporary society, includes both heterosexual and homosexual conceptions of marriage. In this sense, the constitutional meaning of marriage may be said to have ‘evolved’ beyond the 1900 conception of marriage as exclusively heterosexual.

The ‘evolution’ of constitutional meanings using a distinction between its ‘essential’ and non-essential features is not uncommon. For example, section 80 of the Constitution guarantees the right to trial by jury for Commonwealth offences on indictment. In Cheatle (1993) the High Court recognized that criminal juries in 1900 were constituted exclusively by males who satisfied some minimum property qualification. However, it was held that the ‘relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community’. As such, they held it would be ‘absurd’ to suggest that women and unpropertied persons would be excluded from juries, ‘in the more enlightened climate of 1993’. By analogy then, if the ‘essential concept’ of ‘marriage’ is the voluntary and permanent union between two people, it is not necessary or essential that they be of opposite sex.

Another important example is the evolving power of Parliament to legislate with respect to ‘intellectual property’ under section 51(xvii) of the Constitution. The High Court has held that the ‘essence’ of the intellectual property power is that it ‘authorizes the making of laws which create, confer and provide for the enforcement of intellectual property rights’. Thus Parliament is able to create ‘fresh rights’, and the boundaries of the intellectual property power are not to be ‘ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trademark’. (The High Court in Grain Pool (2000) cited with approval the analogy that the meaning of trademarks in 1900 provided a ‘centre’, around which to seek the full ‘circumference of the power’.)

Comparing the intellectual property power and marriage power highlights how the High Court must have regard to the development of the common law and legislation when determining the constitutional meanings of legal terms of art. Several submissions to the Senate Committee described the same-sex marriage bill as equivalent to Parliament expanding its power to legislate with respect to lighthouses (s 51(vii) of the Constitution) by statutorily defining ‘lighthouses’ to include schools. But this comparison overlooks the ‘vital distinction’ identified by Higgins J in the Trade Marks case between subject matters that are ‘concrete, physical objects [where] the boundaries of the class are fixed by external nature’, and those that are ‘artificial products of society, and dependent upon the will of society’. By way of example, his Honour explained that while ‘[t]he class ‘cattle’ cannot well be extended by man; the class ‘trade marks’ can be extended. Power to make laws as to any class of rights involves a power… to extend the class of those who may enjoy those rights.’ Thus it is a mistake to overlook the fact that marriage, not being a concrete object fixed by ‘external nature’, is an artificial legal construct inherently capable of expansion.

An additional consideration supporting the likelihood that the High Court would uphold a law providing for same-sex marriage is that Commonwealth legislation has a presumption of validity. As Dan Meagher and Margaret Brock have argued, this presumption should be at its strongest when the legislation considered raises ‘complex and intractable moral issues of this kind’.[i]

One concern raised by opponents of the bills is the possible conflict between the legalization of same-sex marriage and freedom of religion. Section 116 of the Constitution provides that the Federal Parliament cannot make any law ‘prohibiting the free exercise of any religion’. Currently section 47 of the Marriage Act 1961 (Cth) provides that there is no obligation imposed on an authorized celebrant, being a minister of religion, to solemnize any marriage. If bills legalizing same-sex marriage were passed, this exemption would be broad enough to ensure that no ministers would be obliged to solemnize same-sex marriage. Even so, to address the anxieties of religious groups, the Senate committee has recommended the insertion of ‘for avoidance of doubt’ provisions that expressly provide that such legislation does not limit the freedom for religious ministers to decline to solemnize same-sex marriages.

On balance therefore, it appears more likely than not that the High Court would find that same-sex marriage legislation was constitutional. However, the resolution of these issues may depend on when the issue goes to the High Court. There will be four new appointments over the coming years, including two within the next six months; and it is impossible to know for certain what methods of constitutional interpretation these justices will take.

(2)  A Referendum On Same-Sex Marriage?

Given the uncertainty over whether a bill legalizing same-sex marriage would be struck down by the High Court, should a referendum be called instead? The dissenting Senators in the Senate Committee stated that they

 believe it is profoundly unsatisfactory to erect such major law reform on so weak a constitutional foundation. In particular, the possibility that people might undertake marriage pursuant to such a law, only to have their ‘marriages’ struck down by the High Court, is a highly unsatisfactory way for the Parliament to proceed. The committee majority shows contumelious disregard for the interests of homosexual Australians by advancing such a risky and ill-advised course of action.

[The] Coalition senators are of the view that, given that a number of the submissions to the committee acknowledged that same-sex marriage raises significant social, religious and cultural issues and that section 128 of the Constitution provides a mechanism to enable the people to expand the specified powers set out in the Constitution, a referendum to enable the people to pronounce on the issue of same-sex marriage is worthy of serious consideration.

This position assumes that the legislation is indeed on very weak constitutional grounds, but also appears to misunderstand the relationship between the High Court, Parliament and the people. As the majority Senate report noted, the Parliament is elected to pass legislation, and acts within its constitutional right when it passes legislation ‘which it believes to be valid, and ultimately in our system it [is] left to the High Court to determine otherwise’ (quoting from the evidence of Professor John Williams). Australia has a long history of Parliament passing legislation where there is some doubt as to its constitutional validity. Parliament does not seek separate constitutional endorsement via referendum on each occasion such an enactment is passed.

The ‘risk’ that many people may enter same-sex marriages that will then be declared void can be addressed in other ways. As a test case is likely to be brought immediately after a same-sex marriage bill passes, Parliament could suspend the same-sex marriage provisions until the High Court decides the validity of that marriage, preventing any further persons from entering into same-sex marriages that might be subsequently voided should the Court confirm a want of power.

This appears to be the better course of action than a referendum considering: the likelihood that the legislation is indeed valid; the huge cost and time involved in holding referendums; and the actual interests and desires of Australians in the LGBTI community who wish to see the legislation passed in preference to a referendum being held. Other commentators and the majority report of the Senate Committee also noted that Australian proposals to amend the constitution are far more likely to fail than to succeed – for a variety of reasons that extend well beyond the merit of the proposals in question. To date, 44 referendums have been held, of which only 8 have been carried to effect change to the Australian Constitution.

Conclusion

Although there remain constitutional uncertainties over the scope of the marriage power, there are strong arguments in favour of the constitutionality of the same-sex marriage bills currently before the Australian Parliament. As marriage is governed by our civil and not religious laws, it is for Parliament to determine who can and cannot marry. Australian law can better balance freedom of religion with the separation of church and state, by providing that every person is entitled to marry the person of their choice, whilst ensuring that religious officials are not required to solemnise any particular marriage.

Emily Burke is an intern at the Gilbert + Tobin Centre of Public Law at the University of New South Wales


[i] Margaret Brock and Dan Meagher, ‘The Legal Recognition of Same-Sex Unions in Australia: A Constitutional Analysis’ (2011) 22 Public Law Review 266, 278.

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Derek O’Brien and Se-shauna Wheatle: The Commonwealth Caribbean and the Uses and Abuses of Comparative Constitutional Law

The practice of judges engaging in a transnational judicial conversation about constitutional rights, by referring to the judgments of international human rights courts and other constitutional courts when interpreting their own domestic Bills of Rights, has been commented upon in detail by comparative constitutional law scholars, such as Christopher McCrudden and Anne-Marie Slaughter[1]. It still remains, however, a highly contested practice. Supporters of this practice, such as Vicki Jackson, argue that such transnational judicial conversations enhance understandings of core concepts, such as equality and human dignity, while critics, such as Justice Antonin Scalia, complain that they aid result-oriented reasoning as judges use comparative law selectively depending upon the result that the court wishes to reach. The scope for judges in the Commonwealth Caribbean, (which term includes the judges of the Judicial Committee of the Privy Council (JCPC), and the judges of the Caribbean Court of Justice in the case of those countries that have ratified its appellate jurisdiction – Guyana, Barbados and Belize) to engage in a transnational judicial conversation when interpreting their own domestic Bill of Rights has, however, been severely restricted by the inclusion in their Independence Constitutions of general and partial savings law clauses.

General savings law clauses (which are to be found in the Constitutions of Jamaica, Trinidad and Tobago, Barbados, The Bahamas and Guyana) afford immunity from constitutional challenge to all laws that were in force at the time of Independence. It has thus been, effectively, pointless for judges in these  Commonwealth Caribbean states to invoke jurisprudential developments in international human rights law (such as Dudgeon v UK (1982) 4 EHRR 149 and Tyrer v UK (1978) 2 EHRR 1)  and other national courts (such as Lawrence v Texas 123 S. Ct. 2472 (2003))  when determining the constitutionality of pre-independence laws; including laws that provide for the death penalty for murder, judicial flogging or the criminalisation of sexual relations between men. Notwithstanding changing judicial attitudes toward such laws elsewhere, the JCPC confirmed in Boyce v The Queen [2004] UKPC 32; [2004] 3 W.L.R. 786 that when interpreting the Constitutions of the Commonwealth Caribbean judges were bound by the inclusion of general savings law clauses and could not rely on judicial developments elsewhere when determining the constitutionality of pre-independence laws.

Partial savings law clauses (which are to be found in the Constitutions of Antigua and Barbuda, Barbados, The Bahamas, Belize, Jamaica, Guyana, St. Lucia) preserve all forms of punishment that were authorised as lawful prior to independence. These clauses have been tested most frequently in cases concerning the constitutionality of the death penalty. Originally, it was thought that these clauses precluded any possible challenge to the constitutionality of the death penalty on the ground, for example, that it violated the guarantee against torture and inhuman and degrading treatment or punishment. However, in a series of judgments, beginning with its landmark decision in Pratt and Morgan v. AG (Jamaica) [1994] 2 A.C. 1 the JCPC found a way of circumventing these partial saving law clauses by insisting that their effect is confined to authorising descriptions of punishment for which the court may pass sentence.  Accordingly, they do not prevent an applicant from arguing that the circumstances in which the executive intend to carry out the sentence, including, in that case, prolonged delay, may violate the right not to be subject to inhuman or degrading treatment or punishment. In Lewis v AG Jamaica [2000] 3W.L.R. 1785 the JCPC added that in extreme circumstances account might also be taken of the conditions under which a condemned prisoner was being held in determining whether the execution of the death sentence would violate the guarantee against torture and inhuman and degrading treatment or punishment. And finally, in Queen v Hughes [2002] 2 A.C. 259, the JCPC held that a pre-independence law, which prescribed a mandatory death penalty for the offence of murder, was not saved by the partial saving laws clause in the Constitution of St Lucia on the ground that the clause only saved existing laws to the extent that such laws authorise the infliction of the death penalty: they could not save an existing law which prescribed a mandatory death penalty, since this requires the infliction of the death penalty.

In each of these cases the JCPC supported its decisions by reference to the growing body of comparative and international jurisprudence condemning, for example, delay in the carrying out the death penalty (including judgments of the Supreme Courts of Zimbabwe and India as well as the judgment of the ECtHR in Soering v UK (1989) 11 E.H.R.R. 439) and the imposition of a mandatory death penalty for murder, which had been held to be arbitrary and inhuman by both the United State Supreme Court (Woodson v State of North Carolina 428 U.S. 280 (1976) and the Supreme Court of India (Mithu v State of Punjab [1983] 2 S.C.R. 690). These developments were, however, viewed with the utmost dismay by Commonwealth Caribbean governments and a number have, accordingly, responded by seeking to further immunise the operation of the death penalty and to prevent constitutional challenges based on judicial developments in other jurisdictions, including the above.

The first Government to act was Barbados, which, in 2002, amended its Constitution to ensure that prisoners who had been sentenced to a mandatory death penalty, who had suffered delay in the carrying out of their execution, or who were held in inhuman or degrading prison conditions, would not be able to mount a constitutional challenge on the grounds that their right not be subject to torture or inhuman or degrading treatment or punishment had been violated.[2] In 2011, the Government of Trinidad sought and narrowly failed to secure an amendment to its Constitution (Trinidad Constitution (Amendment) (Capital Offences) Bill 2011) which would have gone even further than this by additionally precluding a constitutional challenge on the ground that the warrant for the execution of the sentence of death had been read to the condemned man on more than one occasion.

Most recently, the Jamaican Government has amended its Bill of Rights by replacing it in its entirety with a new Charter of Rights and Freedoms. While the Charter seeks to expand rights protection in certain areas, it also seeks to prevent its judges from entertaining constitutional challenges to laws that authorise the death penalty for capital crimes, that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. With respect to the death penalty, the Joint Select Committee (JSC) which had been appointed by the Government to approve the terms of the draft Charter explicitly acknowledged the developments in other jurisdictions, such as South Africa (State v Makwanyane 1995 (6)BCLR 665 (CC)) and Tanzania (Mbushu v Republic (1995) 1 LRC 216), where their judges had been allowed to engage in an extensive discourse about the constitutionality of the death penalty, but recommended the retention of the partial savings law clause in the new Charter to ensure that this question remained outwith the jurisdiction of Jamaican judges and the judges of the JCPC, which continues to be Jamaica’s final court of appeal. The Charter also expressly precludes constitutional challenges based on delay in carrying out the death sentence or the physical conditions or arrangements under which the condemned person is detained.

As noted above, the Charter is not only concerned with the operation of the death penalty. It also seeks  to preclude the possibility of jurisprudential developments elsewhere resulting in a challenge to the constitutionality of laws that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. This concern is particularly relevant in light of growing international pressure repeal to anti-sodomy laws. This pressure recently appeared in the form of a report of the Commonwealth Eminent Persons group, which recommended the repeal of anti-sodomy laws in the 41 Commonwealth countries where such laws remain on the statute books. While the Jamaican Government could not have been aware of the report, since the Charter was drafted long before the publication of the report, it is clear that the Government was aware of the possibility that the Charter might conceivably be used as a ground for challenging the constitutionality of such laws. Indeed, the prescience of the Jamaican Government is amply demonstrated by the recent announcement of the Human Dignity Trust (HDT) that it plans to intervene to support a constitutional challenge to the anti-sodomy law in Belize initiated by a Belizean gay rights activist. (see a report in The Guardian). In order to foreclose the possibility of such a challenge being mounted in Jamaica the Charter includes a general saving laws clause which provides that nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter, relating to, inter alia, sexual offences, shall be held to be inconsistent with or in contravention of the provisions of the Charter. Thus, on the basis that it was in force before the commencement of the Charter, section 76 of the Offences Against the Person Act which criminalises sexual activity between men appears to be immune from constitutional challenge.

Concerned also that, in the alternative, the guarantee of equality contained in section 13 (2) (i) of the Charter might provide a ground for mounting a constitutional challenge to other laws, including post-Charter laws, that discriminate on the basis of sexual orientation, the JSC expressly rejected a proposal to include the term ‘sex’ as a prohibited ground of discrimination, for fear that it might be interpreted to include sexual orientation. . Thus, the Charter instead opts for the much clumsier term, ‘being male or female.’ Finally, and for good measure, the Jamaican Government has sought to repel the potential influence of judicial developments with regard to same-sex marriage elsewhere. For example, in, Goodridge v Mass. Dept. of Health 798 N.E. 2d 941, in which the Massachusetts Supreme court legalized same sex-marriages within that state, Halpern v Ontario 65 O.R. (3d) 161, in which the Court of Appeal of Ontario held that the opposite-sex requirement for marriage in that state was unconstitutional, and Minister of Home Affairs v Fourie (2006)  (3) BCLR 355 (CC), in which the Constitutional Court of South Africa held that the exclusion of same-sex couples from the common law definition of marriage was unconstitutional. Accordingly, section 18 of the Charter provides that no law which restricts marriage as limited to one man and to one woman shall be held to be inconsistent with the Charter.

Conclusion

To paraphrase Joseph Jaconneli, the effect of the saving laws clauses of the Independence Constitutions of the Commonwealth Caribbean was to ‘crystallise’ their Bills of Rights. This may originally have been justified on the ground that in the immediate post-independence period the saving laws clauses guaranteed legal stability by ensuring that existing laws were not subject to constitutional challenge. It is, however, now nearly half a century since the first countries in the region gained independence and the retention of these saving laws clauses can no longer be justified by reference to the need for stability. Instead, it is clear from the examples of Barbados, Trinidad and Jamaica, that Commonwealth Caribbean governments are all too aware of the developments that have been taking place in international human rights law and in constitutional courts around the world, but do not want their judges to be able to rely on these developments when interpreting their own Bills of Rights.  In the case of Jamaica, which is the only country to date to undertake a wholesale review of its Bill of Rights, the Government has seized the opportunity, not for the purpose of removing the offending savings laws clauses, but instead to further insulate existing laws relating to the operation of the death penalty and sexual orientation by placing them beyond judicial scrutiny and thus beyond the reach of comparative constitutional law.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.
Se-shauna Wheatle is a DPhil Candidate at Balliol College, and Lecturer in Law, Exeter College, University of Oxford.
 

[1]             Christopher McCrudden, ‘A Common Law of Human Rights: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499; Anne-Marie Slaughter, ‘Judicial Globalization’ (2000) 40 Va. J. Int’l L. 1103.

[2] Constitution (Amendment) Act 2002

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