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Shubhankar Dam is an Assistant Professor of Law at the Singapore Mangement University School of Law and the author of Presidential Legislation in India: The Law and Practice of Ordinances.
Suggested Citation: Shubhankar Dam, The Crisis in Hong Kong: Can Comparative Law Help?, JURIST - Academic Commentary, October 22, 2014, http://jurist.org/academic/2014/10/shubhankar-dam-hong-kong.
While nurses, physicians and others risk their lives to fight highly infectious diseases; elsewhere it is not the disease but those affected by it who are targeted. While there is not yet a cure for HIV/AIDS, at least some patients in developed countries (a small percentage of those infected with HIV globally) have access to the full range of medical options and may start to consider HIV to be a chronic disease. Essentially, it has become possible to delay the outbreak of AIDS after an HIV infection for many years. However, HIV/AIDS will continue to provide medical and legal challenges so long as a fast, effective treatment remains globally unavailable to all affected patients.
If HIV patients are enabled to live longer, healthier lives, they will be more likely to remain part of the workforce. If the search for a cure will take many years, HIV-positive employees will become a more common phenomenon. In many legal systems this already raises the question: Under which conditions do employees have a duty to inform their employers about their infection? While information about HIV is more easily available today than in the past, the stigmatization of HIV-positive persons continues.
In I.B v. Greece, decided late last year, the European Court of Human Rights heard the case of an applicant who had lost his job after his co-workers learned about his HIV-infection. Article 14 of the European Convention on Human Rights (ECHR) protects against discrimination. The right to a private life, protected under Article 8. Article 14 sets out a number of examples where discrimination will be found, but also includes what the Convention refers to as "other status" within its meaning. This includes a person's health status. Not providing the totality of rights established under the Convention due to the fact that somebody is HIV positive is discrimination under Article 14, as a person's health status is part of the right to private life under Article 8.
Infectious diseases also have wider legal implications. While it might be difficult to successfully litigate before the European Court of Human Rights for a state's failure to prevent infections, doing so remains a possibility. Especially when it comes to infections that occur while a state has control over an individual; for example, during a detention, military service or when medical staff works on behalf of the state. In the case of the current Ebola outbreak, the non-governmental organization Medecins Sans Frontieres/Doctors Without Borders (MSF) has taken the lead in the international effort to fight the disease and several nations are sending hundreds of experts to the affected countries. Under Article 2 of the ECHR, which protects the right to life, nations have an obligation to equip their staff, in the widest sense of the term, adequately with the required protective gear. The same principle applies to the deployment of armed forces in combat. Unlike a case under the UN's International Covenant on Economic, Social and Cultural Rights, the right to life is not a social human right that could be limited by the available resources. Rather, this is an immediate obligation regardless of a nation's financial possibilities. This does not mean that volunteers for MSF, the Red Cross or others are not protected in a similar way: Their employers or sending organizations have an obligation to equip them adequately and states have a duty under Article 2 of the ECHR to ensure that this happens.
Ebola differs significantly from HIV in that the risk of an infection with Ebola is present in day-to-day interaction; such as shaking hands, while becoming infected with HIV is much more difficult. It appears justifiable under the ECHR to limit the activities of persons infected with Ebola and those reasonably suspected of being infectious. In the context of the current outbreak, there have been calls for limitations on international travel, ranging from refusing to permit infected persons entry into countries where they could actually receive highly qualified medical treatment, to the idea of closing international borders completely. The latter possibility would not be compatible with the ECHR as, at the time of this writing, there have been only a few cases of secondary infections outside the most affected countries, which does not warrant a complete halt to international traffic.
In any case, the human dignity of all patients must be protected at all times. For Ebola patients, this is often set aside due to fears concerning Ebola. Here the state has a duty to create an environment in which discrimination is prevented. This includes an obligation to inform the general population, but to also extend legal protections to health care workers by private actors such as landlords, shop owners and others who may discriminate against them.
Attempts to curb Ebola include quarantining both patients and those suspected of being infected. In an HIV context, the European Court of Human Rights already dealt with quarantine for the purpose of preventing the spread of a viral disease: Detaining a person has to be the "last resort in order to prevent [them] from spreading the [disease and] less severe measures [must have] been considered and found to be insufficient to safeguard the public interest." Also, "a fair balance between the need to ensure that the [disease] did not spread and the applicant's right to liberty" is required by the European Court of Human Rights. In Enhorn v. Sweden, the manner and length of the detention were taken into account. Although the court found Sweden at fault for hospitalizing an HIV positive man for a year and a half, quarantining suspected carriers of the Ebola virus for the duration of the incubation period of 21 days would seem to be compatible with the ECHR, especially in light of the dangerous nature of Ebola.
Infectious diseases remain an important and often global health care challenge and in a globalized and highly mobile and interconnected world diseases like bird flu, swine flu, Ebola, HIV and other diseases are likely to be spread more quickly than in the past. At the same time globalization allows the world to react better to health emergencies. Rather than being split by fear of infection, such diseases should bring the world closer together in the fight against disease. Human rights norms, such as the European Convention on Human Rights, provide a legal obligation to take action and to protect the ill.
Stefan Kirchner is Associate Professor for Fundamental and Human Rights at the Faculty of Law of the University of Lapland in Rovaniemi, Finland. A former Rettungssanitäter (Emergency Medical Technician) with the German Red Cross, he wrote his Doctoral thesis in Social Sciences on Biolaw and the European Convention on Human Rights and his Master Thesis on pharmaceutical intellectual property rights. Dr. Kirchner is admitted to the bar in Germany (Rechtsanwalt) and specializes in proceedings before the European Court of Human Rights.
Suggested citation: Stefan Kirchner, Ebola, Human Rights and Health Discrimination , JURIST - Academic, October 20, 2014, http://jurist.org/academic/2014/10/stefan-kirchner-health-rights.php.]]>
In addition, the African States discourse often but deliberately ignores the fact that it is their own nationals who are taking the cases before the non-African courts. In this case, it was victims from Liberia led by a local organization, Global Justice and Research Project (GJRP), under the leadership of Hassan Bility, a Liberian journalist abused during Taylor's regime, who helped the victims to make their way to the Belgian judiciary (Martina Johnson having been living there with her husband, a Liberian with Belgian nationality). These victims were fortunate to find in GJRP and their Geneva-based partner organization Civitas Maxima the necessary support, both legal and financial, to navigate through the legal conundrum for effective litigation in a foreign legal system. And the strategy of the African States ought to accept that logic and address it: unless African States fix their legal system to allow genuine and effective remedies for the victims, some of them will continue seeking justice from whoever will offer them the opportunity, and that is just how the legal order functions. Even when there will be an African criminal court with jurisdiction over those crimes, if that court fails to serve the needs of a victim, that victim will still use other legal avenues including those abroad. Until the legal systems on the continent provide for better opportunities which the victims can trust, the number of cases outside will continue to grow. And there are numerous countries outside Africa offering such an opportunity.
Victims of the first Liberian civil war have been looking forward to their day in court. Some have made it. And we can only praise the opportunity. Martina Johnson was indicted and arrested on September 17 and a judge confirmed her detention on September 19. She challenged the detention and was granted an alternative form of detention (house arrest with electronic monitoring) for health reasons. The proceedings will continue and in due course, a date will be set for the trial.
As an African, I can only hope that the lawmakers and those in power on the continent understand that and make the necessary shift. It is in their own interest of survival while serving the needs of their population, who they should care about.
Roland Adjovi is an Assistant Professor at Arcadia University and currently a Member of the United Nations Working on Arbitrary Detention. He also serves on the Board of Civitas Maxima.
Suggested citation: Roland Adjovi, Martina Johnson Arrested in Belgium and Accused of War Crimes in Liberia, JURIST - Academic, Oct. 18, 2014, http://jurist.org/academic/2014/10/roland-adjovi-crimes-liberia.php
I am grateful to the Commission for the invitation to share my views on the subject of Stand Your Ground (SYG) laws. These laws now exist in the majority of the States, and they have had a measurable impact on deadly violence and the criminal justice systems in many of them. I will begin with a basic explanation of what these laws say, especially how they differ from the long-established law of self-defense in Anglo-American law. I will then examine the empirical evidence concerning how SYG laws work; this evidence has emerged in just the last couple of years. I will then discuss implicit bias, which is the source considerable racial disparity in the enforcement of SYG laws, and the rest of the criminal justice system.
I. A Brief Examination of SYG Laws
For centuries, the Anglo-American law on homicide and self-defense have remained the same. Statutes against homicides prohibit unlawful killings, but the law against homicide has always allowed for self-defense. A person under attack with deadly force may respond in kind. A person suffering unlawful aggression may respond with the amount of force that is reasonably necessary to protect herself. The law has always said that a killing in self-defense does not constitute criminal homicide, as long as the person defending herself had a reasonable belief that her life was in imminent danger.
From its earliest times, the law of self-defense has included an important exception. When one under attack knows he can escape from danger by retreating, without risking further danger to herself, he must retreat. Like the law against homicide, the rule of retreat attempts to avoid unnecessary death - even the death of an unlawful attacker - unless the circumstances present no alternative. The rule of retreat is itself subject to an exception: the rule has almways applied everywhere except in the home of the person under attack. This exception to the rule of retreat, known as the castle doctrine, makes sense: the home is the last and final place to which one could retreat. Thus a victim never had to retreat from an attacker in her own home; she could stand and fight back.
SYG laws change this ancient legal landscape in a fundamental way. SYG laws abolish the rule of retreat in any place the person defending herself has a right to be. Put another way, SYG laws take the rule of retreat from the home and extend it into public places. A person under unjustified attack in a public place need not retreat, even if she knows she can get away in complete safety; she can stand her ground, and even use deadly force if she faces deadly force. With an SYG law, one who kills under a claim of self-defense would not have to prove that she had no means of escape. Instead, she need only show that she had a reasonable fear of death or deadly injury, and that the incident occurred in a public place in which she was lawfully present.
This "no retreat in public" idea is the central feature of Florida's SYG law. The Florida law also gives criminal and civil immunity to one claiming an SYG defense. When the killer makes an SYG claim, police cannot immediately arrest, detain, charge or prosecute, as they usually would. Police and prosecutors may investigate, utilizing "standard procedures," but they cannot arrest unless the agency "determines that there is probable cause that the force that was used was unlawful." Should the police or prosecutors choose to pursue charges anyway, the person is entitled to a pretrial hearing in which a judge decides whether the defendant should have received SYG immunity.
Florida's SYG law, enacted in 2005, led to many new SYG laws across the United States. According to Professor Tamara Lawson of St. Thomas University School of Law, as of 2014, thirty-four states had SYG provisions that eliminated the duty to retreat in public places. Legislatures created the SYG provisions twenty-five states; court decisions created them in the other nine states. (These numbers do not include states that only have a no retreat rule in the home, since that is the traditional rule replaced by SYG.)
II. How Do SYG Laws Work in Practice?
Proponents of SYG laws said that significant changes would follow enactment of these laws. Crime would decrease, including violent crime and homicides, because criminals would know that victims could meet deadly force with deadly force. The net effect would be less crime and deadly violence, especially killings.
Because almost ten years have passed since the enactment of Florida's 2005 SYG law, researchers now have data that has enabled them to study the effects of these laws. These empirical evaluations cast doubt on the assumptions of SYG advocates about crime and violence. The first thing researchers have tested empirically focuses on the central promise of SYG laws: they will make us safer from serious crime, especially homicide. In their paper "Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from the Castle Doctrine," Texas A&M University researchers Cheng Cheng and Mark Hoekstra examined data on crime and homicide patterns from 2000 to 2010. They compared rates of violent crime and homicide before and after passage of the SYG laws, and they also compared data from other states that did not pass SYG laws. From these data, Cheng and Hoekstra made comparisons of SYG states and non-SYG states, both before and after passage of these laws; they also compared states in the same geographic regions. The results did not show what proponents of SYG laws had predicted. Concerning violent crimes - burglary, robbery, and aggravated assault - Cheng and Hoekstra found that SYG laws had no effect. The authors found "no evidence of deterrence effects" for any of these crimes. However, the frequency of one crime did change. In SYG states, more homicides occurred after the passage of these laws than had occurred before. SYG laws, the authors said, "increase homicides by a statistically significant 8 percent," which yields 600 more homicides per year across all states with SYG laws. These results - not greater safety, but an eight percent increase in unlawful killings - seem to show that those who believed that SYG laws would decrease violent crime were wrong.
Another 2012 paper, by Chandler McClellan and Erdal Tekin of Georgia State University independently produced similar results. Using a different data source and a different methodology than Cheng and Hoekstra, McClellan and Tekin concluded that "Stand Your Ground laws are associated with a significant increase in homicides. . . ." They say their results "are robust to a number of specifications and unlikely to be driven entirely by the killings of assailants." Their findings "raise serious doubts against the argument that Stand Your Ground laws make America safer."
Other empirical work on SYG laws also reveals that SYG laws have a disparate racial impact. In his study "Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data," John K. Roman of the Justice Policy Center of the Urban Institute studied SYG data to determine whether "justifiable homicides differ by the race of the victim and offender" and whether certain "fact patterns of homicides increase racial disparities." Roman aimed to "analyze objective national data that could measure the presence of racial disparities in rulings of justifiable homicides." Roman's work demonstrated, first, that SYG states "have statistically significantly higher rates of justifiable homicide than non-SYG states." Second, including race in the analysis revealed shocking patterns. Roman writes that, when a state has a SYG law, "controlling for all other attributes, the odds a white on black homicide is found justified is 281 percent greater than the odds a white on black homicide is found justified." And for cases that exhibit particular fact pattern, SYG laws "worsen the disparity." Roman says that when the facts in a case show 1) a single victim; 2) a single shooter; 3) a male victim and a male shooter; 4) a victim and a shooter who are strangers to each other; and 5) the use of a gun, states with SYG laws show increased disparities between cases in which a white kills a black victim, and cases in which a black kills a white victim.
Thus SYG laws have increased deadly violence, and they have had a distinct racial impact. If racial effects emerge when we examine killings taking place SYG laws, we need to ask why this occurs. Are those who shoot under SYG laws racist bigots? Or is there a deeper explanation?
III. Implicit Bias: How It Operates and Its Impact
For most of us, allegations that a particular person has engaged in racist behavior would cause us to look for specific types of racist conduct: perhaps the use of racial epithets, or statements like "I'd like to hire _______ (fill in the name of a racial or ethnic group under discussion) but I can't - they just aren't responsible or smart enough." Certainly, some people hold such attitudes; perhaps in some social contexts, they may say these things or act on these beliefs. But the problem of racialized attitudes in American society is larger than old-school bigotry - and far more subtle. The racism we see today rarely appears in these obvious ways. Rather, the problem is unconscious racism: in the words of the psychology literature, implicit bias.
Most Americans believe strongly in equality and fairness. According to these beliefs, everyone deserves equal treatment, because we are all entitled to justice and fair dealing from others, and from the government. But empirical studies have proven the existence of a different, hidden reality in our minds. Almost everyone carries an intricate web of unconscious biases, preferring some groups and disfavoring others. These biases may directly contradict our conscious beliefs. And even though we do not know that these implicit biases are there, they may actually override our conscious beliefs about race. Because of this, we may act negatively toward minorities without knowing it is occurring.
The best-known proof of implicit bias comes from the implicit association test, or IAT. Anyone can take the IAT online, and millions have. The IAT measures the speed of mental associations between racially-identifiable partial photographs of faces (the lowest part of the forehead, the eyes, the nose, and the space between the nose and mouth), and positive or negative words. In the first parts of the test, the viewer hits a computer key to associate a white face with a positive word (e.g., good, flower, smile) or a black face with a negative word (bad, hostile, fight). In the next part, the instructions are reversed: the viewer hits the key when she sees a white face with a negative word, or a black face with a positive word. As the viewer performs these tasks, the computer measures the speed with which the viewer hits the key, down to tiny fractions of seconds. The computer then compares the reaction speed of the viewer on tasks congruent with stereotypes (associating white faces with positive words, or associating black faces with negative words) with the reaction speed for tasks not congruent with stereotypes (associating black faces with positive words, or associating white faces with negative words). Regardless of conscious egalitarian values, most viewers react more rapidly when associating white faces with positive words than negative words; they also respond faster when associating black faces with negative words than positive ones. The researchers called these differences implicit biases. Implicit biases favoring whites show up in seventy-five percent of all of the 14 million persons who had taken the test through 2013, including almost forty percent of black test takers. In all of those who showed implicit bias for whites and against blacks, these biases may impact their thoughts and actions. Just as important, they do not know these biases exist.
When implicit biases combine with heuristics, racialized thinking and action may occur. Nobel Prize winning psychologists Amos Tversky and Daniel Kahneman described heuristics as rules of thumb people use to transform complex decisions in information-scarce environments into easier, nearly automatic analyses. People use heuristics unconsciously and rapidly; they give us rapid and efficient ways of making decisions. Heuristics often help us get things right; "frequently accurate," they move us toward good decisions without consuming a lot of "valuable cognitive resources." But because people resort to heuristics when faced with thorny choices and a lack of time to gather information, they also "produce systemic errors of judgment that predictably recur in certain situations. . . ." People have little or no conscious control these heuristic-based biases; indeed, they do not even know the heuristics are operating. Our conscious minds can override heuristics, but in most situations, we use them unquestioningly - indeed, without even knowing that we are doing this. This means heuristic-based errors are "difficult to eliminate or even recognize." Human beings can live with some of this. But when heuristics concern race and suspicion of criminality or violence, negative results may follow.
Implicit biases linking blacks with negative concepts in the minds of the great majority of people gives rise to a particular heuristic: the association of blacks with crime and danger. Phillip Atiba Goff and his co-author L. Song Richardson call the rule of thumb that associates blacks with crime and danger "the suspicion heuristic." People in an uncertain situation may have difficulty predicting when they might face danger or violence, especially when encountering someone unknown. Walking down a city street at night, toward an unknown person, allows precious little time to gather and process facts or evidence. To deal with this, people "will make their judgments of [potential] criminality quickly, based on small slices of behavior, under highly stressful circumstances." The suspicion heuristic begins to operate immediately and unconsciously; implicit negative associations with blacks become active.
This research squares with extensive evidence demonstrating how society equates blacks with violent street crime; our mental images - that is, stereotypes - feature blacks as criminals. For example, in Brit Duncan's work, subjects saw mildly aggressive behavior by an African American person as more threatening than the identical behavior by whites. Research by H. Andrew Sagar and Janet Ward Schofield of the University of Pittsburgh buttressed Duncan's findings. Sagar and Schofield gave subjects drawings and verbal accounts of two-person interactions - for example, two boys bumping into each other. The subjects rated the actor in the scenario as meaner and more threatening if the actor was African American than if the actor was white. This perception was the same for both African American and white subjects.
The suspicion heuristic and our implicit bias therefore slant the judgments people make when they encounter blacks. This happens unconsciously, without the knowledge that it is occurring, and even if people encountering blacks hold conscious egalitarian beliefs. Whites, and even some blacks, will tend to think of black people they encounter as potential criminals who pose a danger. Worse, the unconscious use of the suspicion heuristic can lead beyond thoughts, to actions. According to Goff and Richardson, the suspicion heuristic can "influence behaviors as well" as perceptions, and "can result in people acting more aggressively than they might otherwise," all "without any conscious awareness that one is behaving this way."
The combined potential impact of implicit bias against blacks and the suspicion heuristic on the use of SYG laws is potentially catastrophic. SYG laws lower the potential cost of engaging in deadly violence; one can use deadly force in any public place, even when avoiding violence is possible, and still use the SYG defense to argue that the jury should not convict. Implicit bias against blacks, especially seeing blacks as likely to be violent or dangerous, increases the likelihood that people with weapons will shoot them; armed people are more likely to feel fear, and therefore to shoot. And when the victim is black, members of juries - also infected with the same implicit bias - are more likely to sympathize with the shooter.
Thank you for the opportunity to address the Commission.]]>
Latin-American constitutional courts (e.g the Constitutional Court of Colombia and the Constitutional Court of the Dominican Republic), rely on 'the equality test' to examine whether a particular treatment is constitutionally permitted. The equality test, as developed by these courts, presents three fundamental components under which a potential discriminatory act or conduct is reviewed:
In one of the many decisions favoring the unconstitutionality of same sex marriage bans in the US, as a result of the Windsor Effect, there is one particular judicial opinion that must be given our attention for the purposes of the inquiry. Even though it is not a supreme court opinion, its relevance should not be dismissed lightly. This is because of how it deals, as a matter of practical legal reason, with the right to equal protection of the laws and how it should be properly applied as a standard of review regarding discriminatory acts. Furthermore, it gives us an interesting focus on how an issue related to discrimination should be approached, in particular when it comes to a protected class.
In Baskin v. Bogan, Judge Posner, writing for a panel of the US Court of Appeals for the Seventh Circuit, posed four questions that in a practical manner help address the issue of whether a concrete policy is discriminatory, and therefore unconstitutional, under the equal protection clause. To properly engage in this exercise, we must ask ourselves the following:
Our questions go to the heart of equal protection doctrine. Questions 1 and 2 are consistent with the various formulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court's approach in heightened-scrutiny cases: To succeed, the defender of the challenged action must show at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.On Posner's view, this 'semantic' view of the equal protection standard places emphasis on the government aims or interests and to what extent the law is best suited or tailored to achieve the compelling interest. It excludes from the test the cost and benefits analysis approach by focusing only on how 'fit' the policy is to achieve the identified aim: whether or not the policy might do more harm than required to attain the goals or whether the exclusion of similar groups is indicative of arbitrariness regarding the group subject to policy.
As we see, the semantic approach in Posner's opinion dares to take a closer look at the concrete circumstances surrounding the individuals who claimed they had been discriminated against. Also, it places emphasis on the political and social stance, historically speaking, of a class or group, which helps provide a comprehensive view of the situation under review. Furthermore, when it comes to a protected or a suspect class, it helps identify the elements to establish the presumption of discrimination that shifts the burden of proof on the state or the third party claiming that no discrimination has occurred. To have a constitution that is meant to work is about asking ourselves the proper questions regarding a particular constitutional clause to fully understand it as meant by the constitution.
How useful could these questions be to determine when a particular policy is discriminatory under the equality test? As I said, the equality test is a standard created by the Constitutional Court of Colombia that was later adopted by the Constitutional Court of the Dominican Republic. However, the components of the equality test, as we saw, are not so accessible (in a practical way) and do not offer a set of concrete questions to assess whether or not a given questioned conduct is permissible under the constitution.
This does not mean that these courts should give up their equality test, but it means that a new approach such as the 'semantic approach' developed by the Seventh Circuit in Baskin, could be a very useful tool to properly apply the equality test, particularly when it comes to components 2 and 3 of the test. The semantic approach is a suitable complement to the equality test and it helps us study and decide cases from a pragmatic approach, by asking ourselves the important and pragmatic questions.
Even when the certiorari petition was recently denied (PDF), Posner's opinion in Baskin offers a good starting point to develop a pragmatic approach on the equality test. I personally believe that this fascinating approach is useful to refocus the way courts see the equal protection standard of review against discriminatory acts.
Amaury Reyes-Torres is a Constitutional Law Lecturer at Iberoamerican University (UNIBE).
Suggested citation: Amaury Reyes-Torres, Equal Protection Test: Lessons from Judge Posner's Opinion on Equal Marriage, JURIST - Academic, Oct. 16, 2014, http://jurist.org/academic/2014/10/Amaury-Reyes-Torres-equal-protection.php.
However, disagreement between the judiciary and the president reached its acme when President Morsi issued the 2012 Constitutional Declaration on November 22, 2012. The declaration immunized the Constituent Assembly responsible for drafting the 2012 constitution, preventing it from being dissolved by the judiciary and its work from being challenged in court. This was in violation of the 2011 Constitutional Declaration issued by the Supreme Council of the Armed Forces (SCAF) and approved in a popular referendum after the Revolution of 2011 to serve as the country's fundamental law until the drafting of a new constitution. Additionally, the declaration immunized President Morsi's decrees and decisions from judicial oversight. Further, the declaration dismissed of the Prosecutor General Abdul Majid Mahmoud, who was appointed by President Hosni Mubarak, in violation of the Judicial Authority Act.
However, the way the Supreme Constitutional Court (SCC) responded to this declaration was lame. The Court denounced the declaration, describing it as a mere attempt by Morsi to grab power and to degrade the judiciary by immunizing his decisions. Further, many judges appeared in the media to urge people to demonstrate and protest to topple the declaration. Likewise, rights and political activists strongly opposed the declaration, arguing that it solidified despotism. Thus, the Court's reaction did not go further than merely objecting without proceeding to any legal-judicial action, which raises the question of whether the Court has the authority to review constitutional acts.
At first sight, reviewing the constitutionality of constitutional acts seems odd simply because judicial review is concerned with the constitutionality of ordinary laws, which are inferior to the constitution. Consequently, the standard of review is whether these ordinary laws are consistent with the measures, norms and principles found in the constitution. Nevertheless, the constitutions of some countries grant constitutional courts the power to examine the constitutionality of constitutional acts. For instance, Article 148(1) of the Turkish Constitution of 1982 (PDF) empowers the constitutional court to review the constitutionality of constitutional amendments.
Further, Article 146(a) of the Romanian Constitution of 1991, as it stands in the 2003 revised version, authorizes the constitutional court to adjudicate on initiative to revise the constitution. Likewise, the constitutional courts of some countries granted themselves the power to decide over the constitutionality of constitutional acts without having such power included in the constitution. Specifically in 2009, the Czech Constitutional Court ruled that Constitutional Act no.195/2009, regarding shortening the term of the Office of the Chamber of Deputies, was unconstitutional on the basis that it was an individual and retroactive act, and thus violated the requirements of a democratic state governed by Art. 9(2), an unamendable (PDF) provision in the constitution. Moreover, in the remarkable case Minerva Mills Ltd. v. Union of India, the Indian Constitutional Court ruled that the 42nd Amendment of the Indian Constitution is unconstitutional because it violates the basic structure of the constitution.
However, in Egypt, the case is different. Specifically, Article 192 of the current Constitution (PDF) of 2013 determines the jurisdiction of the SCC to be: "(1) decide on the constitutionality of laws and regulations; (2) interpret legislative texts; and (3) adjudicate disputes regarding affairs of its members, disputes pertaining to the implementation of its rulings and decisions, disputes between judicial bodies and entities with judicial mandate and disputes that raise implementation of two final contradictory rulings." In addition, after emphasizing the Court's power to examine the constitutionality of laws and regulations and to interpret legislative texts; Law No. 48/1979, regarding the establishment of the SCC and the determination of its procedures and jurisdiction, authorizes it to interpret laws and presidential decrees that have the authority of law (Art. 26). Consequently, neither the constitution nor Law No. 48/1979 authorizes the SCC to review the constitutionality of constitutional acts. Further, there is no precedent where the SCC exercised its judicial review power to examine the constitutionality of a constitutional act.
In fact reviewing the constitutionality of constitutional acts is to a great extent related to the idea of a proactive judicial review, which allows the court to proactively test the constitutionality of laws before they come into effect. However, the Constitution of 2013 as well as Law No. 48/1979 support the idea of subsequent judicial review; that is, that the SCC can only review the constitutionality of laws and regulations after their actual issuance and in regard to an ongoing judicial case in which a constitutional challenge is raised. Thus, the idea of proactive review does not actually exist.
Indeed, if the SCC had the authority to examine the constitutionality of constitutional acts in 2012, the Court would have been able to nullify the 2012 Constitutional Declaration issued by President Morsi without being involved in conduct such as threatening not to adjudicate judicial cases and urging the general public to protest. So, the question is how the Court's jurisdiction can be expanded to review constitutionality of constitutional acts.
The first option is to introduce a constitutional amendment that empowers the SCC to proactively check the constitutionality of constitutional acts and amendments before they become binding. However, this option seems a bit difficult given the complicated procedure for amending the constitution. Precisely, according to Article 226 of the constitution, the amendment may be requested by the president of the Republic or one-fifth of the members of the House of Representatives, before the latter decides to accept the request in whole or in part by a majority of its members. Further, it should debate. If the text of the articles to be amended is approved by a two-thirds majority of the House's members, the amendment is put to a public referendum within 30 days of the date of approval.
The second option is that the Court can try to add such power to its jurisdiction through affirmative action by ruling on the constitutionality of constitutional acts and amendments by itself, without waiting for a constitutional or legislative authorization. In fact, this approach is likely to be challenged by both the executive and legislative branches on the ground that neither the constitution nor the Court's law supports it. Despite that, this approach remains effective since the verdicts of the SCC are final and cannot be appealed.
Now the question is what standard of review the Court should adopt. According to Article 226 of the 2013 Constitution, "texts pertaining to the principles of freedom and equality stipulated in this Constitution may not be amended, unless the amendment brings more guarantees." Thus, the constitution made all provisions regarding the principles of freedom and equality unamendable if an amendment hinders such principles. Consequently, the Court can declare a constitutional amendment or a constitutional act unconstitutional if it infringes the principle of equality or fundamental freedoms or restricts their practice. Further, the Court's jurisdiction must extend to reviewing amendments that undermine the country's basic constitutional principles, such as democracy and rule of law. However, the Court must be very cautious while exercising its power. Likewise, the Egyptian jurisprudence must play a great role in developing the standard of review and in determining what is considered a permissible amendment and what constitutes an impermissible one that must be nullified by the Court.
Mohamed Abdelaal is an Assistant Lecturer of Law at the Alexandria University School of Law and is an S.J.D. Candidate at the Indiana University Robert H. McKinney School of Law.
Suggested citation: Mohamed Abdelaal, Can The Egyptian Supreme Constitutional Court Extend its Jurisdiction?, JURIST-Academic, Oct. 9, 2014, http://jurist.org/academic/2014/10/mohamed-abdelaal-egyptian-court.php
In June 2013, President Vladimir Putin announced the most far-reaching judicial reform in the last 30 years: The creation of a new "super" Supreme Court that will merge the leadership of the Russian commercial courts with the regular courts. Since this reform was announced, many have debated the effects of this reform. Some have argued that these reforms would further strengthen the ordinary track of the Russian legal system. Others were more pessimistic, warning that it is a way to ensure that more cases are placed on the political track.
The time for speculation is now over. The restructuring is now complete: The new "super" Supreme Court began work on August 6, 2014. Recent details about the makeup and organization of the new "super" court suggest that the pessimists were correct: This reform will weaken rule of law in Russia by eliminating one of the most innovative parts of the Russian judicial system and providing high level officials more opportunities for placing cases on the political track.
Russia's two court systems
Since 1992, in addition to a stand-alone constitutional court, Russia has had two separate court systems: The courts of general jurisdiction (headed by a 115-judge Supreme Court) and the commercial courts (headed by a 55-judge High Commercial Court). The general courts consider the bulk of Russian legal cases including military, civil, and criminal courts cases. The commercial courts, by contrast, focus on commercial disputes between legal entities.
This separation—which was formalized in the 1993 Constitution—has led to two very different approaches to adjudicating disputes. Much of this difference can be traced to leadership. The Russian court system is incredibly hierarchical. The Chair (and his or her team) has vast bureaucratic power over lower court judges, including depriving them of housing or removing them from office if they are seen to be "underperforming." This leadership also has the power to shape the law by choosing issues to provide interpretations that guide lower court decisions.
The Supreme Court—under the leadership of Vyacheslav Lebedev (a judge since 1970)—has not changed a great deal from the Soviet period. The courts of general jurisdiction continue to operate in a rather secretive way, stressing deference to government and interpreting statutes in very formalistic ways. Although many ordinary cases are decided without outside interference on the ordinary track, it is rather easy for a case to be placed on the political track in the courts of general jurisdiction.
The commercial courts, by contrast, have been led by Anton Ivanov, a friend of Dmitry Medvedev and a former corporate lawyer. Ivanov has pushed the commercial courts to improve Russia's poorly drafted commercial law through guiding interpretations with the power of precedent. The High Commercial Court has also adopted a highly transparent approach, making opinions available online and streaming important court meetings on the internet. These reforms have made it more difficult to place cases in the commercial courts on the political track.
Merging the two tracks?
Vladimir Putin proposed merging these two court leadersips in 2013. In response, some expressed optimism about the unification of the two high courts. Judicial reform in recent years has improved access to courts and the quality of justice. Recent efforts to introduce new courts and pay judges more have improved the quality of justice on the ordinary track. Optimists argued that this unifying reform would better allow solutions to cases where the two court systems had developed competing approaches to the same legal matter. Second, others speculated that the consolidation of the two systems could allow the reforms of the Commercial Courts to increase the influence of the ordinary track in the general courts.
Recent details, however, suggest that this optimistic scenario has not come to pass. First, commercial court judges will have far fewer levers to develop and clarify commercial law. Under the reform, the High Commercial Court will be replaced by a far-diminished 30-judge Economic Collegium. This Collegium will have far less power to issue guiding interpretations, ending any experiments with the use of precedent to improve Russian commercial law. These reduced levers of power by the leadership potential are also likely to lead to more variability in lower court decisions, undermining any greater uniformity in adjudication.
Second, the selection process for the new court has eliminated most of the former leadership of the High Commercial Court. Indeed, the judges who were selected to the new Economic Collegium were those who opposed Ivanov's policies. The head of the new Economic Collegium is Oleg Sviredenko, a Moscow commercial court judge who opposed many of the former Chair reforms. By contrast, the leadership of the old Supreme Court has remained entirely intact: The former head of the old Supreme Court, Vyachaslev Lebedev, remains in charge of the new "super" Supreme Court.
The reform, therefore, has become embroiled in politics and emerged as a way to eliminate the innovative and assertive leadership of the High Commercial Court. Although this reform will not extinguish all of the positive steps made in Russian rule of law and the improvement made to ordinary track cases, it is likely to reduce the pace of innovation and reform in the Russian judicial system overall. This will certainly weaken the development of commercial law in Russia—a critical component of Russia's economic development. More broadly, this reform will likely damage recent attempts to reduce the number of cases decided on the political track.
William Partlett is an Assistant Profesor in the Law Faculty at the Chinese University of Hong Kong. Dr. Partlett holds a J.D. from Stanford Law School as well as a DPhil in Soviet History and MPhil in Russian and East European Studies from the University of Oxford (where he was a Clarendon Scholar). Dr. Partlett draws on this cross-disciplinary background to work in the field of comparative constitutional and criminal law.
Suggested Citation: William Partlett, Judicial Backsliding in Russia, JURIST - Academic Commentary, September 30, 2014, http://jurist.org/academic/2014/09/william-partlett-russia-reform.
Under international law, it is the fact of war that compels the legal conclusion that war exists and, importantly, that the laws of war apply. At this moment, the US is engaged in an international armed conflict in Iraq and Syria to which all of the customary laws of war apply as well as several treaty-based rules of war. Under international law, the US is also engaged in measures of collective self-defense with the consent of Iraq against ongoing ISIS armed attacks on the Iraqi government that also happen to be partly planned and emanate from Syria. The Russians are wrong that these measures of collective self-defense are not lawful under the UN Charter and that the US must have authorization from the UN Security Council. Article 51 of the UN Charter expressly recognizes the inherent right of member states to engage in responsive measures of self and collective self-defense if an armed attack occurs. Quite clearly, ISIS is engaged in armed attacks against Iraq and, because the attacks are partly planned and partly emanate from Syria, selective use of force against ISIS in Syria as a matter of collective self-defense is also permissible and the US did not need special consent from the Assad government and is not at war with his regime.
Further, if the US was not participating in what is known as an international armed conflict in Iraq and Syria, US military personnel would be placed in harms way. It is only during such an armed conflict that US military personnel would have pow status, combatant status, and combatant immunity for lawful acts of war. Claiming that the US is not participating in an international armed conflict would be against common sense, contrary to international law, and remarkably inconsistent with the national security and foreign policy interests of the US.
Under the US Constitution, US targetings of ISIS in Iraq and Syria are measures of war or armed conflict as well as measures of collective self-defense that are lawful under international law. The president's duty under Article II, Section 3 of the Constitution is to faithfully execute the "Laws," which throughout US history have decidedly included international law. It is this constitutionally-based duty that actually provides a competence of the president to use military force that is authorized by international law, like measures of collective self-defense. President Lincoln, President Truman, and every subsequent president has affirmed that they have a constitutionally-based competence to go to war in accordance with authority that pertains under international law, like the Security Council authorization to use military force in Korea that is still operative, the Security Council's authorization regarding Libya, and NATO's authorizations to use military force in Kosovo and Libya.
This constitutionally-based authority cannot be obviated by Congress. In the 2001 Authorization for Use of Military Force, Congress admitted that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." This is correct with respect to action authorized by international law.
Moreover, as expressly recognized in the 1973 War Powers Resolution nothing precludes the president from using authorizations to use military force that are provided under existing treaties of the US, which necessarily include the UN Charter and the North Atlantic Treaty. However, as recognized by the Supreme Court, Congress could limit the war in terms of time, place, and methods as long as the limitations do not go so far as to violate the separation of powers. Whether Congress will set limits to this war is presently unknown.
Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston Law Center and has extensive experience in international law. Professor Paust is one of the most cited law professors in the US and has published over 190 articles, book chapters, papers and essays addressing treaty law, customary international law and the incorporation of international law into US domestic law.
Suggested Citation: Jordan Paust, Of Course It's a War, and It Is Lawful, JURIST - Academic Commentary, September 20, 2014, http://jurist.org/academic/2014/09/jordan-paust-war-lawful.
The court's opinion and oral argument, remarkable as it is, is simply the latest in a nearly unbroken string of well over a dozen same-sex marriage wins at the federal district level since the Supreme Court's decision in United States v. Windsor in the summer of 2013 (which held that the federal government cannot constitutionally withhold marriage benefits to same-sex couples who are validly married). Many of those victories have been quite decisive, featuring sweeping opinions that invoke Loving v. Virginia and echo the language of the African-American civil rights movement.
I offer my home state of Pennsylvania as an example of the scope of many of these victories. In May of this year, Pennsylvania became the nineteenth state to legalize same-sex marriage, after Honorable John Jones of the Middle District of Pennsylvania ruled in Whitewood, et al v. Wolf, that Pennsylvania's Defense of Marriage Act (PA-DOMA) violated the US Constitution. Not only did Jones hand same-sex marriage advocates a win, he predicated that victory on a determination that sexual orientation is a quasi-suspect class and that statutes that discriminate based upon sexual orientation are consequently entitled to heightened scrutiny.
Jones, in ruling that PA-DOMA should be subject to heightened scrutiny, did not rely upon established precedent within the Third Circuit, but instead adopted the reasoning of the Second and Ninth Circuits, as well as numerous assorted district courts and state courts that had previously considered the question. Thus, Jones' decision was not only a win for the plaintiffs, it provided a strengthened foundation for constitutionally based lesbian, gay, bisexual and transgender (LGBT) rights claims in the Third Circuit going forward.
But the Pennsylvania victory extended beyond the pages of the opinion itself. A mere two days after the decision in Whitewood was handed down, Pennsylvania governor Tom Corbett—a Republican governor who has been unfriendly to LGBT issues in the past—issued a statement asserting that his administration would not even appeal the ruling. The governor's decision, coupled with the fact that Jones did not stay his decision pending even the thirty-day appeal period, meant that same-sex couples in Pennsylvania were immediately able to obtain marriage licenses and recognition of out-of-state marriages.
The LGBT civil rights movement has come to model itself over the last two decades, both in terms of legal strategy and in terms of rhetoric, on the African-American civil rights movement. The movement has turned its attention from the protests and direct grassroots action that marked the political response to the AIDS crisis, and has chosen instead to invest enormous amounts of time and capital fighting against formal inequality in the courts. The centerpiece of that campaign against formal inequality, for better or worse, has been the fight for legal recognition of same-sex relationships. Victories like the ones I've discussed demonstrate the unquestionable success of a decades-long marriage equality impact litigation strategy.
But let's be clear—a victory for a same-sex marriage strategy does not equate to lived, real equality for actual LGBT people. For decades, legal scholars have noted, often in the context of race, that formal equality schemes do not perfectly address the lived inequality of minority groups. Formal equality is, without more, a limited instrument to achieve real change in the lives of citizens. And that is just as true for LGBT citizens as it has been for many African Americans in the decades since Brown, Loving, and the Civil Rights Act of 1964.
First and most obviously, marriage only matters if you want to be married. For single people, polyamorous families and those who are philosophically opposed to the institution of marriage, marriage equality does not fix much. In fact, as some scholars have noted, those who do not wish to marry may soon find themselves under greater pressure from our legal institutions to do so anyway, in order to obtain rights that were once unlinked to marriage. For example, same-sex couples in many jurisdictions can currently use the mechanism of second-parent adoption to cement the legal relationship between a non-biological parent and the child he or she is raising with a same-sex partner. Some family law scholars worry that, in the wake of universal same-sex marriage, states will do away with second-parent adoptions, instead requiring couples to marry in order to take advantage of either a marital presumption of parentage (for children born within a marriage) or a stepparent adoption (for children born prior to a marriage). In fact, Posner's recent opinion links marriage rights so closely to the role of same-sex couples as parents that its tone may give credence to these concerns. Formal marriage equality, therefore, may liberate while it simultaneously constrains.
Second, marriage rights do not begin to touch the myriad of other ways in which LGBT people face discrimination. The very fact that an LGBT couple is married irrevocably "outs" that couple, so marriage may actually expose some LGBT people to discrimination. Pennsylvania, for example, is in the unique position of allowing same-sex marriage while still having no statewide anti-discrimination protection for LGBT people. Thus, an LGBT Pennsylvanian could conceivably legally marry her partner and then be legally fired for putting a wedding photo in her cubicle at work. The achievement of marriage rights, therefore, achieves some important goals, but leaves broad swaths of unfairness untouched.
Third, rights are simply not self-enforcing. A person in a valid marriage ostensibly has access to all of the benefits and responsibilities that marriage offers but if that individual encounters a hostile institutional actor, those rights can quickly prove unattainable. LGBT people desperately need culturally competent, well-trained legal representation to ensure that hard-fought gains are actually made available to all. For example, when a same-sex couple marries and then has a child, Pennsylvania has thus far refused to place both parents' names on the child's birth certificate, despite the fact that the marital presumption of parentage ought to apply equally to married same-sex and opposite-sex couples. And when couples divorce, bias may well creep into custody proceedings if a court favors a biological same-sex parent over the non-biological parent. In short, the success of formal equality gains creates an entire second wave of work around enforcement of rights; that work is not always well suited to an impact litigation strategy, but is nevertheless vital.
In my opinion, those of us who work in the movement must now take a step back and assess. We should carefully consider how to organize ourselves to acknowledge the legal needs of those who do not wish to marry, and to continue to press for formal equality gains, particularly in the employment context, and particularly on behalf of transgender and gender nonconforming people. Most importantly, the movement must consider how to shift resources so that well-trained, culturally competent attorneys are available to provide direct legal services to those whose legal rights, while technically available, still prove difficult to enforce without representation.
A college football coach once famously said, "Winning isn't everything; it's the only thing." But rights aren't football. Winning marriage equality neither fixes all other problems, nor does it fix the only problem. Lest I be accused of being a Debbie Downer (it wouldn't be the first time), I must note that I am hopeful about the future of the LGBT rights movement. However, I believe that it's critical to think about that future with the understanding that marriage equality, while important, is really a way station on a very long journey toward lived equality for all LGBT Americans.
Leonore Carpenter is an Associate Professor at Temple University Beasley School of Law. She previously served as Legal Director at Equality Advocates Pennsylvania, a public interest agency that provides direct legal services, education and policy reform advocacy for LGBT Pennsylvanians. Professor Carpenter designed a LGBT-rights clinical course, where she acted as an adjunct clinical instructor.
Suggested Citation: Leonore Carpenter, Winning Marriage Equality: Neither Everything Nor the Only Thing, JURIST - Forum, September 20, 2014, http://jurist.org/forum/2014/09/leonore-carpenter-marriage-equality.php.
South Sudan
South Sudan became an independent state on July 9, 2011 after decades of prolonged armed conflicts with Khartoum. The Transitional Constitution of South Sudan (TCSS) [PDF] was adopted in 2011 and the document reflects the attempt to establish a state based on "justice, freedom, equality and dignity." The TCSS as a transitory constitutional arrangement aims at creating a decentralized multi-party system. Illustrating the difficult emergence of South Sudan, one of the core political objectives of all governmental branches is to 'initiate a comprehensive process of national reconciliation and ... promote national harmony, unity and peaceful co-existence among the people of South Sudan' according to Article 36(2)(b) of TCSS.
In order to understand the importance of the president's veto power, it is necessary to look at the legislative process in South Sudan. The National legislature is bicameral, consisting of the National Legislative Assembly (NLA), and the Council of States, possessing the ability to "consider and pass amendments" to the Constitution and impeach the president according to Article 55 of the TCSS. The upper house, the Council of States, consists of 19 honourables and 20 representatives appointed by the president. The veto power of the president is established in Article 85(1) of the TCSS as "any bill approved by the National Legislature shall not become a law unless the president assents to it and signs it into law." Once the president vetoes the bill, the bill is sent back to the National Legislature which considers the president's observations.
The two houses can overcome the president's veto on the bill by passing it by a two-thirds majority of all members of the two houses. However, to garner a two-third majority in the Council of States is quite difficult to fathom as approximately half of the Council representatives are appointed by the president. Such concentration of appointees and veto power within the hands of the executive tilts the balance of power between the various branches of government in executive's favor. The legislative branch has the power to amend the constitution to limit the president's powers but a threshold of two-thirds majority must be obtained in the both houses. Again, the power of the executive to control the Council of States through the appointment procedure of representatives is significant. The executive significantly tilts the check-and-balances control over the legislative branch in his favor.
The concentration of power within the president reflects his role in South Sudan as an executive. The president is the head of state and government as well as the Supreme Commander of all armed forces. The president appoints, and can dismiss the vice president without the approval of the NLA, according to Article 105(2). The discord on the powerful executive capabilities to appoint and dismiss high state officials such as state governors caused initial struggles as opposition parties to the ruling SPLM opposed such extended executive powers in the TCSS drafting process. The presidential powers to sack the government and the vice president also contributed to the mid-2013 conflict between President Kiir and the Vice President Riek Machar. The conflict also had ethnic undertones as Machar belongs to the second largest ethnic group, the Nuer. The clashes between forces loyal to Kiir and Machar resulted in hundreds of casualties.
A strong, accountable and transparent executive could be beneficial for building institutions in the newly emerging State. However, the constitutional arrangement as of the current moment does not allow for proper, democratic check-and-balances mechanisms, and the reformist push on part of the president primarily depends on the personal inclinations and political interests of the executive.
The judiciary may also exert some control over the presidential powers. The judiciary is perceived as the final arbiter in parliamentary or presidential democracies, especially when there is a concentration of powers within the executive. The president's acts may be challenged by any person before the Supreme Court in accordance with Article 104 of the TCSS. The individual constitutional complaint serves as a powerful corrective mechanism with an independent and strong Supreme, Constitutional Court. Additionally, the president's powers are limited as the National Assembly can impeach the executive by two-thirds majority on limited grounds of "high treason, gross violation of the Constitution or gross misconduct in relation to National affairs." The impeachment is referred to the Supreme Court.
However, the independence of the judiciary, a crucial organ for maintaining the balance of power in any functioning type of democracy and for upholding the rule of law, is put in question as the president approves the budget of the whole branch in South Sudan. More significant and damaging for the independence of the judiciary is the fact that the president appoints the Chief Justice of the Supreme Court along with other high judicial positions according to Article 134 of the TCSS. In such manner, the president has immense power over the constitutional court which is supposed to provide checks on president's acts. The politicization of the judiciary makes it unable or unwilling to provide checks and balances to the executive branch. The independence and accountability of the judiciary branch are significantly compromised.
Somalia aspires to be a federal, representative parliamentary republic. The constitutional structure of Somalia is different from that of South Sudan as Somalia had been ravaged by an endemic, wide-spread internal conflict, ranging for more than 20 years. The current structure of government and the Provisional Constitution (PC) are a product of international efforts since 2008 to stabilize the state, involving transitional governments and Transitional Federal Charter. As the conflicts were heavily influenced by local loyalties in Somaliland and Puntland, it is not surprising that the current structure of Somali is a federal government with a strong emphasis on representation of federal member states (See Article 50 of PC) in comparison to the more centralized structure of the newly independent South Sudan.
Article 3(4) of the 2012 PC aims at ensuring separation of powers between the legislative, executive and judiciary branches. The Federal Parliament resembles the structure of the South Sudanese bi-cameral houses as there is a House of the People of the Federal Parliament, and the upper house, representing federal states and representatives, both electable by a direct and free ballot. The House of the People together with the upper house elects or dismisses the President of the Federal Republic in a joint session, which is significantly different from the South Sudan's president direct election.
The legislative initiative is vested with the Council of Ministers, or at least ten members of the House of the People, or at least one representative of the upper house in light of Article 80 of the PC. Once the draft law is passed by both houses, the bill is sent to the president of the Federal Republic for his signature. The federal president has the power to "sign draft laws passed by the Federal Parliament in order to bring them into law" according to Article 90(f). It is not clear whether the president is obliged to sign the draft law, or has veto power. However, from the language of Article 90(f), the draft law becomes law when signed by the president, so if the president refuses to sign the draft law, then the bill cannot be interpreted to have legal power. It is ambiguous whether the legislative branch can overcome the situation of veto non-signature by the president as is the case in South Sudan. The TCSS seems clearer in the part of overcoming the executive veto.
The powers and functions of the president of Somalia significantly differ from the president of South Sudan. The Somali President Mohamud is the head of state, a primarily ceremonial figurehead, symbolizing national unity. As Somalia attempts to be a federal parliamentary democracy, such role for the president is not surprising. The executive power is concentrated in the Council of Ministers, which consists of the prime minister, deputy prime ministers, state ministers and their deputies.
Additionally, the president has the power to appoint the chairman of the Constitutional Court, and other lower courts according to Article 90(j). The judiciary branch seems more independent in comparison to South Sudan. The Judicial Service Commission, consisting of nine members, proposes the candidates for the highest court of the land, the Supreme Court, the House of the People approves the candidate and the president must appoint the selected judge to the Constitutional Court.
In conclusion, South Sudan may learn from the lessons of the internal conflicts of Somalia by adopting a more balanced constitution which provides for more powers to the directly electable lower house of the legislative organs and the transparent selection of high judicial officials. The current concentration of powers within the executive has already provoked internal conflicts in 2013. Somalia may adopt more precise language as to the powers of the federal president, and a more powerful judiciary to review the acts of government.
Stoyan Panov is a Visiting Lecturer in Law and Ph.D. candidate in Law at the Birmingham Law School of the University of Birmingham in Birmingham, UK. He holds an LLM degree in Public International Law from Leiden University and an MA from Georgetown University.
Suggested Citation: Stoyan Panov, The Tales of Two Transitional Constitutions, JURIST - Forum, September 16, 2014, http://jurist.org/forum/2014/09/stoyan-panov-transitional-constitutions.php.
The US government, as part of its foreign surveillance program, ordered Yahoo to turn over the content of communications of targeted foreign users in 2007. Yahoo balked, and its legal battle to resist began secretly because surveillance law prohibits companies such as Yahoo from revealing government requests. The government threatened daily fines of $250,000 for noncompliance.
On September 11, 2014, the Foreign Intelligence Surveillance Court released 1,500 pages of formerly secret documents about Yahoo's losing attempt to resist government use of the PRISM surveillance program of the Protect America Act of 2007. This act had a 180-day sunset provision, so Congress then passed the Foreign Intelligence Surveillance Act (FISA) of 2008 [PDF].
PRISM stands for "Planning Tool for Resource Integration, Synchronization and Management." PRISM permits surveillance of actual communications. The 2007 and 2008 laws say, "the Attorney General and the Director of National Intelligence may authorize jointly ... the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." But the implementation of PRISM only became publicly known through Edward Snowden's 2013 leaks to The Guardian's Glenn Greenwald, The Washington Post's Barton Gellman and documentary film maker Laura Poitras.
So Yahoo received government subpoenas to turn over information under PRISM. But these warrantless searches struck Yahoo as a violation of the Fourth Amendment. Yahoo had a point. The founding fathers wanted searches to be authorized by search warrants.
On the other hand, the release by the FISA court on the thirteenth anniversary of the 9/11 attacks perhaps drove home some implicit points. We are vulnerable. Some people hate us. We have apparently been doing something right because we have not, so far, experienced further attacks. And, as Supreme Court Justice Robert Jackson noted in 1949, the US Constitution is not a "suicide pact."
We want security, of course. The recent, ghastly beheadings of journalists James Foley and Steve Sotloff by ISIS certainly emphasized the hatred directed toward this country. But we want our liberty, as well. If our liberties are stripped from us in the name of security, then the freedom haters of the world have already won.
The battle to balance security against liberty is an old one, and President Harry Truman brought the National Security Agency (NSA) into the mix when he ordered its creation in 1952. During WWII, the US broke military codes of Germany and Japan, and the NSA was formed to continue, in Truman's words, "communications intelligence activity." But an investigation in 1976 by Senator Frank Church's intelligence committee into reports of illegal spying on domestic activities led to the 1978 passage of the original FISA, with its secret court to reign in surveillance activities.
On September 11, 2001, disaster struck. Then surveillance power swelled. On October 24, 2001, Congress passed the USA Patriot Act [PDF], which includes a Section 215 amendment to FISA: "The Director of the Federal Bureau of Investigation ... may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism...." Section 215 covers metadata collection (who is calling whom, when, where and for how long).
On December 16, 2005, The New York Times published a story, "Bush Lets U.S. Spy on Callers Without Courts," by James Risen and Eric Lichtblau. The story began, "Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials." The series of NSA stories won the 2006 Pulitzer Prize for national reporting.
In 2007 and 2008, Congress empowered the president to do emergency surveillance without getting a FISA warrant for a limited time (the president would go to the court to get retroactive approval) and granted companies immunity from suits for turning over information. In 2012, the US Supreme Court let the retroactive immunity stand and Congress approved the foreign surveillance law for another five years.
Two other surveillance provisions under attack are Section 215, covering metadata collection and Section 702, governing PRISM.
While PRISM allows greater depth of information-gathering because it permits surveillance of actual content of communications, PRISM is only supposed to target "foreign intelligence information." Section 215 collection of metadata, however, affects anyone who relies on phone conversations.
On July 24, 2013, the House of Representatives voted 217 to 205 to defeat a Patriot Act amendment from Representative Justin Amash (R-MI) that would have prevented the NSA from collecting phone data of individuals not under investigation. The White House lobbied against this bill. Democrats voted in favor 111 to 83. Republicans voted against 94 to 134.
Suits also flew over metadata collection, with conflicting results. For example, on December 16, 2013, in Washington, DC, a 68-page decision came down in the first class-action lawsuit against the NSA's bulk phone-record collection, filed by Freedom Watch founder and former Justice Department prosecutor Larry Klayman. In Klayman v. Obama, Judge Richard Leon, an appointee of President George W. Bush, awarded Klayman a preliminary injunction against the phone program but stayed implementation pending appeal. Calling the program "almost Orwellian," the judge said it "almost certainly" violates the Fourth Amendment. The Justice Department has appealed.
On December 27, 2013, in Manhattan, Judge William Pauley, a Clinton appointee, declared that NSA bulk data-collection operations are legal. In ACLU v. Clapper, he wrote a 54-page decision that begins, "The September 11 terrorist attacks revealed ... just how dangerous and interconnected the world is."
The US Supreme Court has yet to rule on the constitutionality of these information-surveillance laws passed by Congress to protect us from terrorist attacks.
On February 26, 2013, in Clapper v. Amnesty International USA, the US Supreme Court rejected a challenge to Section 702 of the FISA Amendment Act. The court ruled 5-4 that the plaintiffs lacked standing because they failed to prove likelihood of interception of their communications with foreign contacts. Plaintiffs also included Global Fund for Women, Human Rights Watch, International Criminal Defense Attorneys Association and The Nation magazine, among others.
Barring court relief, Yahoo and other companies must comply with government orders to turn over information or face serious penalties: $250,000 a day adds up quickly.
What is the solution for those who value privacy and cringe at government's easy access to information about whom they call, when and for how long—and maybe even the content? Perhaps former President Jimmy Carter, who told NBC he thinks the NSA is spying on him, has the answer: Put pen to paper. And maybe use hand delivery.
Professor Sandy Davidson teaches communications law at the Missouri School of Journalism and is an adjunct professor at the University of Missouri School of Law. Davidson has received many honors for her teaching and research, including being named a Curators' Teaching Professor in 2014.
Suggested citation: Sandy Davidson, Yahoo: A Little Sunshine on Government Surveillance, JURIST-Forum, Sep. 16, 2014, http://jurist.org/forum/2014/09/sandy-davidson-yahoo-surveillance.php
Professor Geoffrey Hoffman is a Clinical Associate Professor at the University of Houston Law Center in Houston, Texas. He is the Director of the school's Immigration Clinic. In 2014, he received the Elmer Fried Excellence in Teaching Award from the American Immigration Lawyers Association (AILA).
Suggested citation: Geoffrey Hoffman, The Immigration Court Is A Legal Paradox for Unaccompanied Alien Children, JURIST—Forum, Sep. 5, 2014, http://jurist.org/forum/2014/09/geoffrey-hoffman-immigration-court.php
Last year, JURIST highlighted the notable subject of the Defense Support for Civil Authorities [PDF], in the context of man-made and natural disasters. A variety of historic laws and policies are the foundations for providing defense support to civilian authorities. One law garnering very little public scrutiny before the Fall of 2014—but tremendous media coverage since—is the Department of Defense Excess Property Program, commonly referred to as the '1033 Program.' The '1033 Program' is primarily oriented towards counter-drug activities, but sometimes leads to very different capabilities and employments.
Section 1208 of The National Defense Authorization Act for Fiscal Year 1990, allowed the Secretary of Defense to:
[T]ransfer to Federal and State agencies personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is-- (A) suitable for use by such agencies in counter-drug activities; and (B) excess to the needs of the Department of Defense."
The law further provided that:
2) The Secretary shall carry out this section in consultation with the Attorney General and the Director of National Drug Control Policy.
(b) Conditions for Transfer-The Secretary of Defense may transfer personal property under this section only if-
(1) the property is drawn from existing stocks of the Department of Defense;
(2) the recipient accepts the property on an as-is, where-is basis;
(3) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment; and
(4) all costs incurred subsequent to the transfer of the property are borne or reimbursed by the recipient.
In 1996, Congress replaced Section 1208 with Section 1033 that subsequently became Section 2576a, yet is still colloquially called the '1033 Program' through the present.
The Defense Logistics Agency (DLA) notes that "[s]ince its inception, the '1033 Program' has transferred more than $5.1 billion worth of property. In 2013 alone, $449,309,003.71 worth of property was transferred to law enforcement." As part of its outreach to civilian agencies, the DLA predicted that, "[i]f your law enforcement agency chooses to participate, it may become one of the more than 8,000 participating agencies to increase its capabilities, expand its patrol coverage, reduce response times and save the American taxpayer's investment.
Critics of the program, such as the ACLU, have remarked that "a disturbing range of military gear [is] being transferred to civilian police departments nationwide" and allege that "one-third of all war materiel parceled out to state, local and tribal police agencies is brand new."
Accountability problems are also surfacing as 184 state and local police agencies have been reportedly suspended from participating in the Pentagon's '1033 Program' for losing weapons or failing to comply with other stipulations. Notably, on August 26th the nationally-known sheriff of Maricopa County, Joe Arpaio, admitted that his department had been suspended from the program and is currently missing nine firearms—eight .45-caliber pistols and one M-16 rifle—issued to the agency out of 200 weapons from the surplus program. Twenty to 22 of the weapons vanished over the years, but roughly half were recovered from retired or current deputies who, incredibly, took them home. Under the '1033 Program,' the Maricopa County Sheriff's Office amassed an arsenal of "a Hummer, a tank, 90 M-16 rifles, 116 .45-caliber pistols, 34 M-14 rifles and three helicopters."
This '1033 Program,' coupled with National Guard troops deployment to Ferguson, Missouri, became the subject of critical medial focus in August 2014. Following the police shooting of the teenager Mike Brown, the Ferguson Police Department responded to protests and riots with a robust show of force, using gear that one media outlet documented as not obtained through the '1033 Program', yet others speculated to the contrary.
In response to calls for a 'demilitarization' of civilian police forces, Attorney General Eric H. Holder Jr. said "[a]t a time when we must seek to rebuild trust between law enforcement and the local community...I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message."
On Friday, August 15th, Senate Armed Services Chair Carl Levin (D-MI) called for a review of the so-called '1033 Program,' saying:
Congress established this program out of real concern that local law enforcement agencies were literally outgunned by drug criminals. We intended this equipment to keep police officers and their communities safe from heavily armed drug gangs and terrorist incidents. Before the defense authorization bill comes to the Senate floor, we will review this program to determine if equipment provided by the Defense Department is being used as intended.
Missouri Democratic Senator Claire McCaskill, the chairman of the Subcommittee on Financial & Contracting Oversight, also announced she will lead a hearing, observing that:
We need to de-militarize this situation—this kind of response by the police has become the problem instead of the solution. I obviously respect law enforcement's work to provide public safety, but my constituents are allowed to have peaceful protests and the police need to respect that right and protect that right. Today is going to be a new start, we can and need to do better.
Shortly thereafter, President Obama ordered a "comprehensive review of the government's decade-old strategy of outfitting local police departments with military-grade body armor, mine-resistant trucks, silencers and automatic rifles," according to media interviews of senior officials.
Early on August 21st, Missouri Governor Jay Nixon announced that the National Guard—which was brought in to provide security for the police command center—would be withdrawn from Ferguson; this withdrawal began the next day, some five days after being dispatched to help "quell the unrest" and four days before the burial of Michael Brown.
These recent developments—along with Congressional review of the surplus Department of Defense military equipment program—will lead to even stricter delineations than ever before regarding military cooperation with civil authorities, while still focusing on preparation, partnerships and vigilance.
Kevin Govern is an associate professor at Ave Maria School of Law in Naples, Florida where he teaches military law, national security law, administrative law, directed research and contracts I and II. Professor Govern began his legal career as an Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. In addition to currently teaching at Ave Maria School of Law he has also served as an Assistant Professor of Law at the United States Military Academy and teaches at California University of Pennsylvania and John Jay College. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the US Government, Department of Defense, or Ave Maria School of Law.
Suggested Citation: Kevin Govern, Military Firearms in Ferguson and Beyond: Arms Transfers to Civilian Law Enforcement Under The 1033 Program, JURIST - Forum, Sept. 3, 2014, http://jurist.org/forum/2014/09/kevin-govern-military-transfers.php
Judge Lamarre Belizaire issued the August 14 arrest warrant after Aristide failed to appear to answer a summons issued the day before, on what Aristide's lawyers contend are politically-motivated, time-barred charges. Mario Joseph, head of the Bureau des Avocats Internationaux, claims the summons was never properly served and that Aristide never received it. The criminal investigation centers on allegations of corruption, criminal conspiracy, money laundering and misappropriation of funds during Aristide's presidency that ended with a US-backed coup more than a decade ago.
This is not the first time that Aristide has been the target of charges that are brought with public fanfare and then dropped before Aristide has an opportunity to challenge the allegations. Aristide's supporters claim the repeated legal actions are aimed at discrediting him and Fanmi Lavalas, the country's most popular political party, that he founded, and intended to undermine a free and fair electoral process in Haiti.
Aristide's lawyers Mario Joseph and Ira Kurzban claim the charges are wholly fabricated and reflect Belizaire's bias. Belizaire, who was appointed by President Michel Martelly, has a history of using his judicial role to pursue Martelly's political enemies. This practice led the country's Bar Association to suspend him for ten years, starting when he steps down from the bench. Joseph and Kurzban echo the concerns of others who suggest that the meritless charges were manufactured to hinder elections scheduled that have been overdue since 2011, when Martelly became president. Joseph also believes the reports were calculated to distract the public from the jailbreak of over 300 prisoners, including Clifford Brandt—a member of one of Haiti's wealthiest families with ties to the government, who is suspected in a number of high profile kidnappings—from a maximum security facility outside of Port-au-Prince on August 10; he has since been recaptured. Others have suggested that sullying Aristide's reputation diverts attention from the prosecution of former dictator Jean Claude "Baby Doc" Duvalier for financial malfeasance and crimes against humanity. Aristide's lawyers have also filed a precautionary measures (injunctive relief) petition to the Inter-American Commission on Human Rights, seeking to protect Aristide from the abuse of state power.
Aristide, the country's first democratically-elected president, has maintained a low profile since returning to Haiti from forced exile in 2011, focusing on education and health care for the country's impoverished masses. Yet he symbolizes a popular grassroots mobilization that those with a tight grip on the reins of power appear to find threatening.
Haiti has seen more than its share of hardship and deprivation. The 2010 earthquake that killed more than 200,000 people and the cholera epidemic that followed on its heels continue to ravage the country, compounding endemic poverty and corruption. The 2011 election that brought Martelly into power was held less than a year after the catastrophic quake, in the midst of a humanitarian crisis. The voting process was widely contested: Martelly, who has ties to Duvalier, only triumphed after an unprecedented intervention by the Organization of American States (OAS) (more specifically, by the US, France and Canada) and with Fanmi Lavalas barred from participating, in an election that was widely boycotted by political parties and voters.
Legislative elections had been scheduled for October 26 of this year, but Haiti's electoral authority announced on August 11—two days before the Arsitide summons—that they will now need to be delayed yet again. Since the 2011 elections, the terms for elected local officials and one-third of senators' seats have already expired. The shortage of seated senators has paralyzed the legislative process since the open seats allow a small number of senators to defeat a quorum. Martelly has appointed "municipal agents" to fill the vacant mayoral seats.
Another third of the Senate seats and the 99-member House of Deputies will be vacant next year if elections are not held this fall. The process of implementing the constitutionally-mandated Permanent Electoral Council tasked with overseeing elections has been fraught with delays and controversy. Various civic groups point out that Martelly has benefitted from missteps in setting up the council. Without elections this year, Martelly will further consolidate his grip on power, and with only a third of the senate remaining, the legislative process would grind to a standstill.
The investigation into alleged wrongdoing by Aristide follows an all-too familiar pattern. The Haitian government first filed a civil suit against Aristide and several co-defendants in the US District Court of the Southern District of Florida in November 2005. The Haitian government, which had come into power following the 2004 coup, and the US government held a series of press conferences and briefings about the case, generating extensive media attention. Yet despite the apparent enthusiasm for, and investment in, the case, Haitian authorities never served the complaint on Aristide or any of the other defendants. Aristide was in South Africa at the time, complicating the process of serving him with the complaint, but other defendants were living openly in Florida. The Haitian government sought one extension to serve the defendants, but declined to seek another, eventually requesting that the case be dismissed just before the service deadline. This was more than six months after the initial filing and the Haitian government retained the right to re-file the complaint. After the enthusiastic media campaign to publicize the suit, critics questioned the government's motivation in bringing and then dismissing the case. Charges brought in Haiti against Aristide in 2005 on the same charges were dismissed in April 2006, after a judge found that the government failed to submit the case to the appropriate court.
The current investigation is the third time the Haitian government has pursued a criminal complaint against Aristide in 20 months. Each time, the warrant was leaked to the press before being served on the former president. The first time, in January 2013, the charges were so patently unjustified that when Aristide's lawyers pushed back, the prosecutor dropped the case after trying to save face by canceling the formal hearing and conducting an informal interview at Aristide's house. The case backfired politically, as the informal interview was seen as an embarrassing capitulation. Aristide was targeted a second time for investigation, in May 2013, in the investigation of the April 2000 murder of journalist Jean-Dominique. Aristide was properly summoned, and attended the hearing, as 10,000 of his supporters protested outside. Lacking any merit to the allegations, the prosecutor let that case drop as well.
Mention of Aristide's imminent arrest engenders widespread media attention. Yet the press reports on these events uncritically: the stories neglect to mention the past initiatives that were summarily abandoned, give scant attention to the procedural irregularities that taint the charges and fail to contextualize the judge's documented history of partisan behavior. This is not a new tactic for the Haitian government. US State Department cables released by Wikileaks suggest that previous arrest warrants for Aristide were also politically motivated—and supported by top UN officials—aimed at dampening support for the deposed leader. International meddling in Haitian politics reinforces the entrenched power structure. A statistical analysis of the 2011 election by the Center for Economic and Policy Research demonstrated that the OAS intervention on behalf of Michel Martelly was unwarranted.
Given the Haitian government's pattern of charging Aristide when it is politically expedient to do so, the decade old allegations are likely to resurface even if the current investigation is not pursued. Until Haiti's government fosters the conditions for a free and fair democracy, the descendants of the first country to throw off the shackles of slavery will continue to face bleak conditions.
Lauren Carasik is a Clinical Professor of Law, and Director of the International Human Rights Clinic at Western New England School of Law. She received her JD from Northeastern University School of Law. Prior to joining the faculty of Western New England School of Law, Professor Carasik opened a solo practice, concentrating in disability rights and mental health law.
Suggested Citation: Lauren Carasik, Haiti's Fragile Democracy, JURIST - Forum, August 31, 2014, http://jurist.org/forum/2014/08/lauren-carasik-haiti-democracy.php
The facts giving rise to the case are that Toviave used physical violence (beating with broomsticks and the like) on the children in his custody to compel them to do household chores and homework. Michigan authorities considered the violence so extreme as to be child abuse and eventually removed the children from the house. Prosecutors went after Toviave for violating 18 U.S.C. § 1589, a forced labor statute. He was ultimately convicted under that provision in federal district court.
The court of appeals reversed, holding that the guardian had not contravened the forced labor statute by using physical child abuse to coerce performance of these tasks. Reductio ad absurdum, the holding means that for those within the geographic boundaries of the court, § 1589 protects adults from physical violence used to force their labor and, at the same time, denies protection to juveniles from such violence when used by a parent or guardian for the same purpose. This principle controls regardless of the severity or grotesquery of the physical violence inflicted on minors. This principle controls regardless of whether the child suffers injury or death due to the violence. This principle, at its most benign, dehumanizes children with the message that they are not worthy of protection from violence.
In order to fully understand the opinion of the court, it is important to be clear on what § 1589 says and does not say. The provision states, in pertinent part, that whoever knowingly obtains the labor of another person by means of force is criminally liable. The court asserted as a reason for reversal the following interpretation of § 1589: "forcing children to do household chores cannot be forced labor without reading the statute as making most responsible American parents and guardians into federal criminals." However, the statute is silent on types of labor and ages of victims. This should signify, of course, that the statute criminalizes forced labor even if the labor consists of housework and even if the laborer is a child.
Incidentally, the court's rationale quoted above contains a disturbing underlying assumption, i.e., that the great majority of responsible American parents and guardians employ physical child abuse to make children do their chores. Toviave turns out to be unexpectedly evenhanded when it comes to disparagement, managing to both diminish children and malign their parents and guardians.
The court's second reason for its holding is the conceit that if child abuse were to qualify as a means of forcing labor that violates § 1589, then "the forced labor statute would federalize the traditionally state-regulated area of child abuse." What the court seems to be saying is that there is a conflict between Michigan statutes criminalizing physical child abuse and the federal forced labor statute which also criminalizes physical child abuse (as per appellee's legal theory) insofar as said abuse is used to force a child's labor. The court apparently perceived the conflict to lie in the federal statute's trenching upon the state statutes by usurping some physical child abuse for federal prosecution. The court opined that in this situation state law must prevail. That conclusion is far-fetched in the Toviave context. The Preemption Doctrine dictates that where such a conflict exists, it is federal law which prevails if the conflict concerns a subject area, like forced labor, constituting a dominant interest of the national government.
To add insult to sophistry, the court also misuses and misrepresents US Supreme Court precedent. The Toviave opinion cites United States v. Kozminski for the proposition that the Thirteenth Amendment was not intended to govern the right of parents and guardians to the custody of their minor children or wards. This is true. It is true too that Toviave did lose custody. But the Thirteenth Amendment was not dealt with by Toviave as a claim or defense, rendering the Amendment irrelevant to the merits of the Toviave litigation. Just to set the record straight, the guardian lost custody at the hands of state authorities; nor does the federal forced labor statute under which he was convicted authorize loss of custody as a remedy.
The court's chutzpah in relying on Kozminski unfortunately does not end there. Kozminski is a statutory involuntary servitude case. The Kozminskis used physical abuse, among other coercive techniques, to keep two adult, mentally-retarded males at work on the perpetrators' farm. The Supreme Court affirmed the Kozminskis' conviction pursuant to 18 U.S.C. § 1584 and a federal conspiracy statute. The former enactment makes it a crime to hold a person in or sell a person into involuntary servitude. The Justices construed "involuntary servitude" in § 1584 as a crime entailing the element of coercion, including physical coercion. Ergo, the forced labor statute and the involuntary servitude statute parallel each other in this regard. Moreover, on the facts, Toviave and Kozminski both involved defendants' infliction of physical coercion to compel the victims' work. The opposite results in Toviave and Kozminski thus cannot easily be reconciled, and the cases cannot be distinguished in any legally significant way.
One wonders what the Toviave judges thought they were doing. Their errors in the case are embarrassingly basic and numerous; but if they are not bona fide mistakes, then what on earth was the court's agenda? What could have possibly motivated the court to go so far to cheapen children's lives, cast ugly aspersions on American parenting and, in the final analysis, betray the integrity of the judiciary?
Susan H. Bitensky is the Alan S. Zekelman Professor of International Human Rights Law and Director of the Lori E. Talsky Center for Human Rights of Women and Children, at Michigan State University College of Law. Her scholarship focuses on children's rights under international human rights law and American constitutional law.