Sistema Bibliotecario de la Suprema Corte de Justicia de la Nación Catalogación

PO D150 Summit of Presidents of Supreme, Constitutional and Regional Courts (2012 nov. 8-9 : Mexico) C852.3d A dialogue between judges : writings of the Summit of Presidents of Constitutional, Regional and Supreme Courts / coordinators Carlos Pérez Vázquez, Javier Hernández Valencia ; [the contents were compiled by the Coordination of Human Right and Consultancy of the Mexican Supreme Court Chief Justice ; traduction by EISCO traducciones and Valdés García y Asociados ; Foreword Chief Justice Juan N. Silva Meza ; Introduction Francisco Tortolero Cervantes]. -- México : Suprema Corte de Justicia de la Nación : Oficina en México del Alto Comisionado de las Naciones Unidas para los Derechos Humanos, 2014. xliii, 518 p. ; 28 cm.

Contenido: Statement by Ms. Navanethem Pillay -- First chapter: Internationalization of constitutional law: a sensitive call for dialogue: The International Court of Justice, constitutional interpretation by Supreme Courts, and the role of other branches of government / Bernardo Sepúlveda-Amor -- Report of the African Court on Human and Peoples’ Rights on the relevant aspects regarding the judiciary in the protection of human rights in Africa / Sophia A.B. Akuffo -- The effectiveness of human rights protection in a multilayered european system / Marc Bossuyt -- Primacy or supremacy of international and european law in the context of contemporary constitutional pluralism / Evgeni Petrov Tanchev -- The internationalization of human rights; the Mexican judiciary’s turn / Juan N. Silva Meza -- The dialogue between judges in distinguishing constitutionality and conventionality / Ruddy José Flores Monterrey -- International law, legal pluralism and the rights of indigenous populations / Diego García-Sayán -- Interpretation and sentences issued by the Inter-American Court of Human Rights: their binding force / Óscar Urviola Hani -- Second chapter: Human rights protection on domestic grounds: The new Turkish Constitutional Court and human rights: towards a paradigm shift? / Zühtü Arslan -- Effective judicial remedy and enlarging transparency: legitimacy consequences for Constitutional Court of Georgia / George Papuashvili -- International standards for the protection of human rights as per the practices of the Constitutional Tribunal of the Russian Federation / Vladimir Yaroslavtsev -- The constitutional interpretation through the jurisprudence of the Constitutional Council of the Kingdom of Morocco -The human rights cases- / Mohamed Achargui -- Constitutional interpretation before the branches of the State / El-Hachemi Addala -- The constitutional protection of human rights in the Principality of Andorra / Pierre Subra de Bieusses -- The Spanish system of jurisdictional protection of fundamental rights: the role of the Constitutional Tribunal / Pascual Sala Sánchez -- National report / Joaquim de Sousa Ribeiro -- Jean-Louis Debré’s speech -- The mexican revolution of human rights / Juan N. Silva Meza -- The Constitutional Court and the effective protection of fundamental rights: the Constitutional Court in building a constitutionality block / Milton Ray Guevara -- Jurisdictional protection of human rights in Puerto Rico: the constitutional interpretation as a catalyst in front of legislative inactivity / Federico Hernández Denton -- Constitutional Control in Uruguay / Jorge Ruibal Pino -- The role of the domestic judge in light of the paradigm of human rights / Gloria Smith -- (APEX) Courts as representatives, or representation without representatives / András Sajó -- Third chapter: Access to Courts, social rights and bioethics: Presentation on access to justice and transparency in the context of the African Court on Human and Peoples’ Rights / Sophia A.B. Akuffo -- Social rights: a specific category of human rights? / Marc Bossuyt -- The constitutional judges as a mean of access to justice of social groups in condition of social vulnerability or risk / Ana Virginia Calzada Miranda -- Economic, social & cultural rights and access to justice for vulnerable groups / Sisi Khampepe -- Ethical avoidance and moral moments: bioethics and the decisions of the European Court of Human Rights in a comparative perspective / András Sajó and T. Pertz -- The unconstitutional status quo / Gabriel Eduardo Mendoza Martelo -- The Supreme Court of Ghana’s role in the provision of judicial relief against human rights abuses / Samuel Kofi Date-Bah -- Enforcement of the Constitution and improvement of the legal system in order to materialize the development of dignified Indonesia as a form of the fulfillment of the human rights / Anwar Usman.

ISBN 978-607-468-711-8

1. Cortes supremas – Congresos – Discursos, ensayos y conferencias 2. Protección de los derechos humanos – Jueces constitucionales 3. Derechos económicos – Derechos sociales – Derechos culturales 4. Grupos en estado de vulnerabilidad – Derecho a la no discriminación 5. Tribunal constitucional – Cooperación judicial internacional 6. Derechos de los indígenas – Pluralismo jurídico 7. Control de convencionalidad – Control constitucional 8. Derecho de acceso a la justicia – Transparencia 9. Sistema Universal de Derechos Humanos 10. Corte Internacional de Justicia 11. Corte Interamericana de Derechos Humanos 12. Tribunal Europeo de Derechos Humanos 13. Corte Africana de Derechos Humanos y de los Pueblos 14. Interpretación constitucional 15. Bloque de Constitucionalidad I. Pérez Vázquez, Carlos, coord. II. Hernández Valencia, Javier, coord. III. México. Suprema Corte de Justicia de la Nación. Coordinación de Derechos Humanos y Asesoría de la Presidencia IV. EISCO traducciones and Valdés García y Asociados V. Silva Meza, Juan Nepomuceno, 1944- VI. Tortolero Cervantes, Francisco, prol. VII. t.

First edition: october 2014 © Suprema Corte de Justicia de la Nación Avenida José María Pino Suárez núm. 2 Colonia Centro, Delegación Cuauhtémoc C.P. 06065, México, D.F. © Office of the United Nations High Commissioner for Human Rights Alejandro Dumas núm. 165 Colonia Polanco, Delegación Miguel Hidalgo C.P. 11560, México, D.F. www.hchr.org.mx All rights reserved. No part of this document may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the Copyright Holders. The contents of this publication are the sole responsibility of the authors and do not necessarily reflect the opinion of the Mexican Supreme Court of Justice. Printed in Mexico Impreso en México The contents were compiled by the Coordination of Human Right and Consultancy of the Mexican Supreme Court Chief Justice. Traduction by EISCO Traducciones and Valdés García y Asociados. Editing and design by the Coordination of Compilation and Systematization of Precedents of the Mexican Supreme Court. Mexican Supreme Court of Justice Office of the United Nations High Commissioner for Human Rights

Coordinators: Carlos Pérez Vázquez Javier Hernández Valencia SUPREME COURT OF JUSTICE OF MEXICO Justice Juan N. Silva Meza President

First Chamber Second Chamber Justice Alfredo Gutiérrez Ortiz Mena Justice Luis María Aguilar Morales Chairman Chairman

Justice José Ramón Cossío Díaz Justice José Fernando Franco González Salas Justice Jorge Mario Pardo Rebolledo Justice Margarita Beatriz Luna Ramos Justice Olga Sánchez Cordero Justice Alberto Pérez Dayán de García Villegas Justice Sergio A. Valls Hernández Justice Arturo Zaldívar Lelo de Larrea

OFFICE OF THE UNITED nATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, MEXICO

Dr. Javier Hernández Valencia Head of the Office Content

Foreword ...... XI

Opening remarks Speech of Justice Juan N. Silva Meza, President of the Supreme Court of Justice of Mexico in the opening ceremony of the Summit of Presidents of Constitutional, Regional and Supreme Courts...... XV

Statement by Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights...... XXI

A previous framework Preface...... XXXIII Carlos Pérez Vázquez and Javier Hernández Valencia

Introduction ...... XXXVII Francisco Tortolero Cervantes

First chapter Internationalization of Constitutional law: a sensitive call for dialogue

The International Court of Justice, Constitutional Interpretation by Supreme Courts, and the role of other branches of government...... 3 Bernardo Sepúlveda-Amor Vice-Presidente of the International Court of Justice V Report of the African Court on Human and Peoples’ Rights on the relevant aspects regarding the judiciary in the protection of Human Rights in Africa...... 15 Sophia A.B. Akuffo President of the African Court on Human and Peoples’ Rights

The effectiveness of Human Rights protection in a multilayered european system...... 23 Marc Bossuyt President of the Constitutional Court of Belgium

Primacy or Supremacy of International and European Law in the Context of Contemporary Constitutional Pluralism...... 33 Evgeni Petrov Tanchev President of the Constitutional Court of the

VI Republic of Bulgaria

The internationalization of Human Rights; the mexican judiciary’s turn...... 53 Juan N. Silva Meza President of the Supreme Court of Justice of Mexico

The dialogue between judges in distinguishing constitutionality and conventionality...... 79 Ruddy José Flores Monterrey President of the Constitutional Plurinational Court of Bolivia

International Law, legal pluralism and the Rights of Indigenous Populations...... 101 Diego García-Sayán President of the Inter-American Court of Human Rights

Interpretation and sentences issued by the Inter-American Court of Human Rights: their binding force...... 127 Óscar Urviola Hani Vice-President of the Constitutional Court of the Republic of Peru Second chapter Human Rights Protection on domestic grounds

The new Turkish Constitutional Court and Human Rights: towards a paradigm shift?...... 141 Zühtü Arslan Judge Constitutional Court of the Republic of Turkey

Effective judicial remedy and enlarging transparency: legitimacy consequences for Constitutional Court of Georgia 155 George Papuashvili President of the Constitutional Court of Georgia

International standards for the protection of human rights as per the practices of the Constitutional Tribunal of the Russian Federation...... 169 Vladimir Yaroslavtsev Judge of the Constitutional Tribunal of the Russian Federation VII

The constitutional interpretation through the jurisprudence of the Constitutional Council of the Kingdom of Morocco —The human rights cases—...... 177 Mohamed Achargui President of the Constitutional Council of the Kingdom of Morocco

Constitutional interpretation before the branches of the State...... 191 El-Hachemi Addala Judge of the Algerian Constitutional Council

The constitutional protection of Human Rights in the Principality of Andorra...... 199 Pierre Subra de Bieusses President of the Constitutional Court of the Principality of Andorra

The Spanish system of jurisdictional protection of fundamental rights: the role of the Constitutional Tribunal.... 209 Pascual Sala Sánchez President of the Constitutional Court of Spain

National Report...... 223 Joaquim de Sousa Ribeiro President of the Portuguese Constitutional Court Jean-Louis Debré’s speech...... 241 President of the Constitutional Council of the French Republic

The Mexican Revolution of Human Rights...... 247 Juan N. Silva Meza President of the Supreme Court of Justice of Mexico

The Constitutional Court and the effective protection of fundamental rights: The Constitutional Court in building a constitutionality block...... 263 Milton Ray Guevara President of the Constitutional Court of the Dominican Republic

Jurisdictional protection of Human Rights in Puerto Rico: the constitutional interpretation as a catalyst in front of legislative inactivity...... 281 VIII Federico Hernández Denton President Judge of the Supreme Court of Puerto Rico

Constitutional control in Uruguay...... 299 Jorge Ruibal Pino President of the Supreme Court of the Oriental Republic of Uruguay

The role of the domestic judge in light of the Paradigm of Human Rights...... 309 Gloria Smith Senior Puisne Judge of the Supreme Court of Jamaica

(apex) Courts as representatives, or representation without representatives...... 317 András Sajó Judge of the European Court of Human Rights

Third chapter Access to courts, social rights and bioethics

Presentation on access to justice and transparency in the context of the African Court on Human and Peoples’ Rights.... 349 Sophia A.B. Akuffo President of the African Court on Human and Peoples’ Rights Social Rights: a specific category of human rights?...... 359 Marc Bossuyt President of the Constitutional Court of Belgium

The constitutional judges as a mean of access to justice of social groups in condition of social vulnerability or risk...... 375 Ana Virginia Calzada Miranda President of the Constitutional Chamber of the Supreme Court of Costa Rica

Economic, social & cultural rights and access to justice for vulnerable groups...... 393 Sisi Khampepe Justice of the Constitutional Court of South Africa

Ethical avoidance and moral moments: bioethics and the decisions of the European Court of Human Rights in a comparative perspective...... 409 IX András Sajó* and T. Pertz *Judge of the European Court of Human Rights

The unconstitutional status quo...... 471 Gabriel Eduardo Mendoza Martelo President of the Constitutional Court of Colombia

The Supreme Court of Ghana’s role in the provision of judicial relief against Human Rights abuses...... 489 Samuel Kofi Date-Bah Justice of the Supreme Court of Ghana

Enforcement of the Constitution and improvement of the legal system in order to materialize the development of dignified Indonesia as a form of the fulfillment of the Human Rights...... 503 Anwar Usman Justice of the Constitutional Court of the Republic of Indonesia

Epilogue Final declaration...... 511

Foreword

On the 8th and 9th of November of 2012, the first Summit of Presidents of Supreme, Constitutional and Regional Courts was held at the Supreme Court of Justice of Mexico. The idea for this event originated on a visit to Mexico by the United Nations High Commissioner for Human Rights in July 2011. The purpose of the Summit was to promote dialogue between various international courts and local jurisdictions, to discourse on key issues regarding human rights and promote the ways to protect them through constitutional interpretation.

The Summit was attended by, among others, judges of the International Court of Justice, the European Court of Human Rights and the Inter- American Court of Human Rights, as well as members of Supreme Courts of several countries, including Andorra, Belgium, Bulgaria, Spain, Georgia, Guatemala, Peru and Portugal, to name a few. This book, entitled A Dialogue between Judges. Writings of the Summit of Presidents of Constitutional, Regional and Supreme Courts (Mexico, 2012) gathers the text of the contributions of the participants in five roundtable conferences.

Topics covered include constitutional interpretation versus the other branches of government, the dialogue between international tribunals and domestic courts, access to justice and transparency, as well as economic, social and cultural rights and vulnerable groups. Although, at the time, a website was created —www.sitios.scjn.gob.mx/cumbre/— to describe every aspect of the Summit, this new publication is actually essential to reveal XI XII A dialogue between judges. Writings of the Summit of Presidents of Constitutional, Regional and Supreme Courts uidcin t udrae acrig o h cmeec o ec, the each, of competence the international effective protectionofrightseveryhumanbeing. to various according encouraged undertake, and to world, jurisdictions the in rights human of state current the about attendees the informed which conferences, those Supreme CourtofJusticeMexico President JuanN.SilvaMeza

Opening remarks

Speech of Justice Juan N. Silva Meza, President of the Supreme Court of Justice of Mexico in the opening ceremony of the Summit of Presidents of Constitutional, Regional and Supreme Courts

Juan N. Silva Meza

Mexico City, November 8, 2012.

Ladies and gentlemen in this Summit of Presidents of Constitutional, Regional and Supreme Courts

Ministers of the Supreme Court of Justice of Mexico

Mr. Javier Hernández Valencia, Representative of the United Nations High Commissioner for Human Rights

Ladies and gentlemen:

On behalf of my peers, I would like to welcome you warmly to our country and to this venue, the Supreme Court of Justice of Mexico.

A very special occasion for the Supreme Court gathers us here today.

Never in the history of our institution had we been honored with the visit of so many distinguished presidents and representatives of many different constitutional courts of the world with the objective of sharing common experiences as advocates of our constitutions and of human rights.

The Supreme Court of Mexico feels very proud to be a summoning party in this effort. We extend our gratitude to Mrs. Navi Pillay, United Nations High Commissioner for Human Rights for her active involvement in its organization. XV This high court is looking forward to discussing common problems with its peers, based on the understanding generated by the lingua franca that currently represents the demand of protection and promotion of human rights, regardless of their nationality, ethnic origin, socioeconomic condition, age, or gender.

Beyond the legal tradition and the geographic location of each of our courts,

Juan N. Silva Meza the universal language of human rights discloses a common truth: the

Supreme Court of Justice Mexico problems and challenges that a judge has to deal with in the performance of his duties are universal.

All the jurisdictions face both new and old challenges: armed conflicts, forced movement of people, hunger, evident consequences of climate change, risk of global epidemics, financial turbulences that often start in a given place of the world and end up affecting many others, the consequences of globalized organized crime, and the regulation of the effects of technological advances, among others.

XVI The common language of human rights may help us find solutions to these problems, which we all have to phase.

The seriousness of the responsibility of exercising the judiciary profession is the same for all of us. We are empowered to safeguard the continuity of the constitutional regime that cannot exist without respect to human rights.

We are all aware of the profound responsibility that issuing a judgment implies. All of us are familiar with the loneliness of judges when they have to resolve the issues in their competence, having the laws and their conscience as their only companions.

The complexities and challenges involved in the jurisdictional tasks are well known to all of us, such as the permanent demand of objectivity and impartiality; the constant demonstration that being a judge is the means rather than an end; the unusual satisfactions of this profession that can be guided only by the honest commitment of contributing, without any prominent role or abuse, to improve the lives of others; the acceptance that the best incentive to do this job is the thirst for consistency, within the rule of law; the peace of mind and tranquility that result from the duty performed prudently, despite any adversity.

We all understand the seriousness of the pressures the judge is exposed to, and accordingly, why the autonomy, independence, and freedom in the exercise of our assignment, are priceless. All of us know have experienced the gnawing dilemmas derived from judging others, particularly in the current context of our world. One world that is becoming smaller thanks to the technological advances, but bigger due to the diversity of our communities, the existing inequality and the clear and sometimes offensive differences in the quality of life of the citizens of different nations.

Our interest to host this Summit stems from the desire to acknowledge ourselves as people that are part of the same profession and from our of Mexico in the opening ceremony ... President of the Supreme Court Justice conviction that the judiciary represents, anywhere in the world, the ultimate Speech of Justice Juan N. Silva Meza, line of defense of individuals, as well as, the best guarantee of peace, civility and harmony among nations.

These are the demands of our national Constitution and of the international treaties on human rights that our country has ratified and that are binding for us.

XVII Just one year ago, the Supreme Court of Justice declared the formal beginning of what we know as the tenth jurisprudential epoch in Mexico, because of important reforms made to the Mexican Constitution by the federal Congress.

These reforms express obligations for all the Mexican authorities regarding the respect to human rights. Obviously, these obligations apply equally to the justice stake-holders of the federal justice system.

The Mexican judges embark into our daily tasks with the absolute conviction that we must comply fully with our constitutional and conventional obligations.

In addition to that, our judges are demanding more and better information, more and better tools, more and better jurisprudential orientation from the higher instances.

Fully aware of these demands, the Supreme Court of Mexico collaborates with the rest of the judges of the country so that none of them feels unprotected when dealing with their new obligations, and assumes its responsibility as the point of reference, as the guide that orients all the jurisdictional adjustment process of the nation.

Thus, this Summit is guided by three purposes: One: confirm the will of the Supreme Court of Mexico in assuming fully its role as an integral branch of power of the Mexican State and its incorporation, as such, in the universe of the democratic nations.

We desire that our guests gain an understanding of what we are doing; the legal criteria we have devised to try to settle, from the perspective of a constitutional court the issues we deal with on a daily basis in our Mexico. Juan N. Silva Meza

Supreme Court of Justice Mexico Two: promote dialogue among nations: it is our belief that the constitutional courts can and must hold discussions for the benefit of the peoples they are accountable to.

We consider that this space of dialogue and exchange offers an invaluable opportunity to learn about experiences from all you that will certainly nourish the path that the Mexican judicial branch must follow to consolidate itself as an institution at the service of human rights, as stated by article 1 of our Constitution. XVIII

We want to have this dialogue among courts so that, if possible, we get feedback from you. A constitutional court can only make non-binding, but substantive, recommendations, fully aware of the case, to another constitutional court. That is the third purpose.

The Supreme Court of Justice of Mexico, an integral part of the state, believes in democracy, believes in human rights, and in the no regression of this protection enshrined in the Constitution.

In the case of Mexico, we are certain that adopting and safeguarding these principles is essential. Our country, still plural and complex, has undergone significant changes, fortunately positive changes, in recent years.

This evolution is evidenced by the new political arrangements determined by the voters; the new constitutional and legal arrangements derived from that sovereign will; the new social agreements, designed by the individuals and the communities.

In Mexico we believe that the full application of the constitutional principles that demand a free country and a robust rule of law, oriented by the unrestricted respect by all the authorities to human rights, is the best guarantee to attain the adequate flourishing of this new reality for all, living in peace, in a country guided by laws and institutions. We are aware that, just as in any other Nation, we face very serious problems that are very specific to us.

For this reason, we will always be open to the possibility of enlighting and of being enlighted, particularly based on the kind dialogue that may occur among peers. We are convinced that this possibility opens new doors and horizons to us, refreshes and oxygenates our common practices and efforts in the quest for solutions. of Mexico in the opening ceremony ... President of the Supreme Court Justice

We are profoundly interested in being actively involved in the exchange of Speech of Justice Juan N. Silva Meza, jurisprudential information, with the hope to contribute and improve the universal human rights protection system for all the individuals.

Mexico, as a convinced member of the community of Nations, has a lot to contribute, and we are willing to do it without restrictions of any sort, as is traditional in us.

Participating ladies and gentlemen: XIX

In the new few days, with great disposition, we will discuss about:

▪ The constitutional interpretation before other branches of the State; ▪ The role of the national judge before the international human rights protection; ▪ The dialogue between international courts and domestic jurisdictions; ▪ Access to justice and transparency as legitimation factors; ▪ The economic, social, and cultural rights and groups in vulnerable situation. I also hope that we have sufficient time to exchange experiences, challenges, and progress made.

Throughout these sessions, we will assume our role as participants in a common endeavor to improve the conditions of all, with the only purpose of enhancing the communication and the beneficial exchange among our peoples, for the ultimate benefit of individuals and their lives, who are the reason for our institutional existence.

As we have mentioned already, the Summit of Constitutional, Regional and Supreme Courts is a great opportunity so that the courts represented acknowledge that we are institutions with common challenges and solutions, reaffirm the diversity of social and cultural contexts where our legal life develops, but especially, so that all of us acknowledge that we are united under the paradigm of a world where human rights are respected and enforced. Mexico is a nation that has confirmed its belief in the strength of the rule of law, in the importance of orienting the operation of the state as a whole, based on a vision that favors the utmost protection of the rights of people.

Distinguished guests, Mexico is a democratic and free country, where nothing or nobody must be above the rights of individuals.

Juan N. Silva Meza Not a single step back will be given in the progress made in the protection of their fundamental rights. Supreme Court of Justice Mexico

The Supreme Court of Justice of Mexico that welcomes you today confirms that these are the principles that guide its daily operation, and celebrates with gratitude that each of you have had the possibility to come and work with us in this Summit.

Thank you very much.

XX Statement by Ms. Navanethem Pillay

United Nations High Commissioner for Human Rights

Most respected Mr. Juan Silva Meza, Chief Justice of the Supreme Court of Justice of Mexico; most respected Mr. Bernardo Sepúlveda Amor, Vice President of the International Court of Justice; most respected Ms. Sophia A.B. Akuffo, President of the African Court of Human and People’s Rights; most respected Mr. Diego García Sayán Larrabure, President of the Inter- American Court of Human Rights; most respected Mr. András Sajò, Judge of the European Court of Human Rights.

Distinguished Presidents and Judges of different Supreme Courts and Constitutional Tribunals gathered here today, dear colleagues and friends:

First of all, I want to extend my sincere gratitude to each of you for your presence in this important forum of transcontinental dialogue that strengthens the commitment to genuine international legal cooperation in favour of human rights.

This Summit, organised by Mexico’s Supreme Court and my Office, represents, without a doubt, a privileged opportunity to reflect on the essential role that the judiciary and specially high courts play in different countries to ensure the adequate respect and protection of human rights, considering the broad development of this important issue in the contemporary sphere of International and Constitutional Law.

As you all know with the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948 as the XXI departure point, the United Nations has developed an important human

rights protection system that has offered a continuous space for interaction between different national, regional human rights protection systems.

This universal system of human rights protection embodies important legal developments that are condensed in treaties and in different interpretations, recommendations and jurisprudence that have been developed by both for Human Rights Navanethem Pillay human rights treaty bodies as well as non-conventional mechanisms such as the special procedures of the Human Rights Council. The judiciaries United Nations High Commissioner of the United Nations Member States, and especially, their supreme and constitutional judges, find within the universal system the reference point for the definition of the content and scope of the human rights that they are charged with protecting.

The 1993 Vienna Declaration and Programme of Action highlighted the importance of regional systems to promote and protect human rights at the regional level. The General Assembly and the Human Rights Council have also repeatedly recognized their role in guaranteeing human rights in XXII their respective regions. Regional human rights mechanisms, including both quasi-judicial and judicial bodies play a key role in reinforcing the international human rights system. They have developed jurisprudence and policy that contextualizes the international standards to address the particular needs of their respective region and, in many cases have taken the law even further, affording even greater protection.

There have been important synergies between the regional bodies and the international human rights machinery, and my Office accords high importance to the cooperation between regional and universal human rights mechanisms so as to promote coherence of international human rights law. International workshops aimed at enhancing such cooperation, mandated by the Human Rights Council, have been held during the past three years. The next one will take place in Geneva from 12 to 14 December 2012.

Dear colleagues, it is important to highlight the democratic process that underpins the ratification of different international human rights instruments that have been consolidated in recent decades, not only in the universal system but also in regional systems. States have autonomously and within their own sovereignty made international commitments for the protection of people and their inherent rights. A common understanding throughout the world of human rights and fundamental liberties, as referred to in the Universal Declaration, can only be achieved when States harmonise their constitutional law with International Human Rights Law and through the jurisprudential harmonisation that distils uniform content in favour of the widest protection possible for the individual. This objective demands that judges take on their role as authentic guarantors of human rights.

In light of what I have mentioned, constitutional judges are meant to act as the main protectors of human rights at national level in that they preside over concrete cases that, if not resolved adequately, could be presented Statement by

before international judicial or quasi-judicial organisms, whose subsidiary Ms. Navanethem Pillay jurisdiction is activated when internal remedies are insufficient.

In his 2002 report on strengthening of the rule of law, the Secretary General of the United Nations highlighted the role of judges in the defence of human rights as instrumental. In the very same way, the United Nations Special Rapporteur on the situation of human rights defenders has recognised that members of the judiciary act as human rights defenders when they carry out their functions in an independent and impartial manner to uphold the rights of victims of human rights violations. As such, it is valid to say that judges that take on a clear commitment to the protection of human rights XXIII and fundamental liberties are also human rights defenders within the terms of the United Nations Declaration of 1998.

There are countless inspirational stories of judges acting as human rights defenders, even when their lives or physical integrity are at stake. Judge Stella Jara from Colombia is an example of courage and commitment. In June 2010, judge Jara sentenced a colonel to 30 years in prison for the disappearance of 11 people in November 1985, after Colombian military forces stormed the Supreme Court building where members of a guerrilla group were holding hundreds of hostages. Over 100 people, including more than 60 civilians, died during the military intervention. She faced numerous threats as a result of her outstanding work and inspirational jurisprudence.

Once again I commend judge Jara for her ruling, which was an historic step in the fight against impunity, and urge judges from all over the world to endorse this landmark decision as a message of solidarity with peers. As I have done in the past, I will call on Governments to take all necessary steps to ensure the security of judges that promote and defend human rights.

In this way, we highlight that the independence and impartiality of the judiciary impacts heavily on the protection of human rights. It is essential that judicial authorities maintain their independence in relation to other branches of State power and in relation to private interests that can influence judicial decisions, especially those that concern human rights protection. On many occasions, constitutional and Supreme Court judges have assumed

an active role in the effective and impartial protection of human rights, safeguarding the prevalence of the Rule of Law even vis-à-vis a lack of understanding of or opposition from political forces. As an example of the stewardship given to human rights from the judiciary, the recent decisions of the Mexican Supreme Court relating to criminal military jurisdiction are worth noting. In these decisions, this Court has held that military for Human Rights Navanethem Pillay jurisdiction is not competent to investigate and prosecute members of the armed forces for human rights violations, but rather that this competence United Nations High Commissioner lies with civilian institutions and courts.

The Mexican Supreme Court’s decision is interesting as it has been taken on the basis of UN and regional human rights bodies. For example, the Human Rights Committee recommended to Mexico in 2010 to ensure that “the jurisdiction of military jurisdiction does not extend to cases of human rights violations.”

The Mexican Supreme Court’s decision is also in conformity with the XXIV jurisprudence of the Inter-American Court of Human Rights. For example, in the case of Radilla Pacheco v. Mexico, an enforced disappearance case decided in 2009, the Inter-American Court determined that “military jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the authors of violations of human rights”.

This example of a harmonious interpretation of the Mexican Constitution with regard to human rights standards provided in international and regional instruments, as interpreted by competent human rights bodies and courts, reminds us of the need to achieve a common understanding of human rights.

In addition, it is worth remembering that judicial authorities should, and many of you do, participate actively in the implementation of rulings and recommendations of international courts, UN and regional mechanisms.

Today, international human rights law is without a doubt the most crucial pillar of the rule of law, defined by the United Nations as a “principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”. Human rights treaties provide guarantees for the proper administration of justice and, as such, to safeguard the rule of law. Judiciaries are essential for combating impunity and achieve justice. I truly commend the progress achieved, in the past years, within various justice systems with regard to the investigation, prosecution and trial of those responsible for serious human rights violations committed during armed conflict or by authoritarian regimes. Those efforts are essential to confront and break long patterns of impunity and send an encouraging message,

opening the path towards justice, particularly for victims who were often Statement by reluctant to come forward because they had little confidence that justice Ms. Navanethem Pillay would be served.

In this context, I was quite encouraged by the ruling of the Argentinian Supreme Court which declared unconstitutional two amnesty laws for perpetrators of gross human rights violations committed during the military dictatorship in that country. Similar rulings have been issued by the ECOWAS Court of Justice in several West African States, which is certainly a milestone and points to a bright future for transitional justice. This Court has distinguished itself by offering people the possibility to access justice, often for the first time in their lives, and have their claims of XXV human rights violations examined in an objective and fair manner.

In the consolidation of a system of law that protects human rights, constitutional judges not only have the enormous responsibility to advance the protection of human rights of all persons, but especially of those persons or groups that merit special protection, including ethnic, racial or religious minorities.

I would like to draw your attention to two decisions recently made by national courts that contribute to overcoming racial discrimination, by addressing more hidden, but equally pervasive factual inequalities.

As you know, the United Nations, and I personally, oppose the death penalty in all forms and circumstances as a matter of principle. Having lived through Apartheid, I am also all too aware how the death penalty reflects and reinforces racial bias, which was one of the many reasons why the South African Constitutional Court has ruled it unconstitutional.

On 20 April 2012, a judge of the North Carolina Superior Court in the United States made a very important ruling along similar lines, when he commuted a death penalty sentence to life imprisonment in the first successful application of the State’s Racial Justice Act. Passed in 2009, the Racial Justice Act allows North Carolina’s death-row prisoners a hearing in which they can present statistics and other evidence showing that death sentences state- and county-wide may have been tainted by race

discrimination with a view to having their sentence commuted.

In the case at hand, a young black man had been convicted and sentenced to death for killing a white man. During the jury selection process, prosecutors struck from his jury 50 per cent of the qualified potential Black jurors while striking just 15 per cent of qualified white potential jurors. As a for Human Rights Navanethem Pillay result, the defendant’s 12-person jury included just two African-Americans in a county of North Carolina where they make up nearly 40 per cent of the United Nations High Commissioner population. The Court held that prosecutors had deliberately excluded qualified Black jurors from jury service in the particular case, in Cumberland County generally and throughout the state of North Carolina and on this basis commuted his death sentence to life imprisonment.

An important judgment that will also be of interest to you was handed down, on 26 April, by Brazil’s Supreme Federal Tribunal. In that judgment, the Court upheld the practice of universities to set aside quotas to admit Brazilians who identify as negro (black) or pardo (brown). As you know, XXVI international human rights law requires states to take active measures to overcome legal and de facto racial discrimination. In particular, article 2, paragraph 2 of the International Convention on the Elimination of All Forms of Racial Discrimination, provides for the obligation of all State parties to take concrete measures, when the circumstances so warrant, to ensure the adequate development and protection of certain groups and individuals.

Constitutional judges have the challenge to be sensitive to those in most vulnerable situations, as is the case of children, indigenous peoples, women, migrants and people with disabilities, among others. There is no doubt that a higher level of the protection provided to these sectors of the population will depend on guaranteeing the right to access justice in conditions of equality.

The biggest challenge is to ensure that those members of the most disadvantaged or vulnerable groups no longer suffer from persecution, violence, exclusion and abuse. In order to achieve this objective, the State must provide all individuals with adequate protection of their rights. Only by protecting these rights will people trust and support the judiciary, and the rule of law will prevail.

Judiciaries also play a central role in the protection of economic, social and cultural rights. Chief Justices must not let global economy and national dynamics, such as shrinking national budgets, put at risk the rights of the people as embodied in the International Covenant on Economic, Social and Cultural Rights. Judiciaries have a vital role to play both in guaranteeing that economic, social and cultural rights are protected and in reviewing the adoption of retrogressive measures that could negatively impact on people’s human rights.

This role is even more significant in the case of the protection of the rights Statement by

of vulnerable populations. It is encouraging to see the clear commitment of Ms. Navanethem Pillay the Colombian Constitutional Court, with the protection of human rights of the victims of forced displacement in the country. Currently, the estimated number of people displaced by violence in Colombia is close to 10% of the total population. This humanitarian tragedy and the lack of effective enjoyment of human rights of the victims of this grave violation led the Constitutional Court, in 2004, to declare the existence of an “unconstitutional state of affairs”. In its judgment, the Colombian Court identified the lack of institutional conditions of the Colombian State to guarantee the human rights of the displaced population, including the rights to housing, health, education and emergency relief, and ruled that the state authorities were XXVII obliged to correct visible social inequalities; and encourage a gradual improvement of their living conditions. In this regard, the Constitutional Court declared that the State has a duty to make efforts to achieve the progressive realization of economic, social and cultural rights of the population, thereby creating jurisprudence to interpret the State’s obligations under the Covenant on Economic, Social and Cultural Rights.

This is a clear example of how the judiciary, and especially supreme and constitutional courts, can contribute, within their competencies, to create better living conditions for the most vulnerable sectors of their societies and to effectively recognize the principles of interdependence and indivisibility of human rights. This is a great challenge, but also a great opportunity to ensure that constitutional justice responds to the legitimate expectations that society has of obtaining formal and substantive justice.

I encourage you to take advantage of the legal authority and also the moral authority entrusted to you, in order to promote and ensure that economic, social and cultural rights are enjoyed by all. I am also sure that your efforts could help pave the way towards your respective States ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

As part of the universal human rights system, my Office collaborates with supreme and constitutional Courts in different ways. For example, my Office has intervened as amicus curiae or friend of the court in cases with human rights dimensions in national and international courts. For instance, the European Court of Human Rights in the case of Hirsi Jamaa et al v.

Italy, was required to decide whether a country was in compliance with international law when it “pushed back” undocumented migrants, refugees and asylum-seekers seeking to cross the Mediterranean to Europe by intercepting their boats on the high seas and returning them to the North African countries where they embarked. In our amicus brief, we argued Navanethem Pillay that these actions constituted collective expulsion and that the principle of Unies aux droits de l’homme Haut-commissaire des Nations good faith demands that a State not be allowed to circumvent the obligation not to expel non-nationals collectively simply by advancing its interception operations to the high seas. The court accepted this reasoning in their February 2012 decision. It is my hope that this landmark judgment will prompt a review of “push back” policies which target migrants at sea.

The judiciary exercises a function that is framed within an existing democratic system. As such, it is a power that in its independence is also subject to checks and balances and accountability. Transparency, open debates and XXVIII public disclosure within judicial functions are of vital importance to strengthening their constitutional role, their democratic foundations and their social legitimacy.

In connection with this, my Office endeavours to facilitate transparency and access to public information, so that the public may have reliable and up-to-date information concerning respect and protection of human rights.

The generation of information to consolidate indicators on judicial issues is a great challenge that must be approached with resolve and commitment. The production of accessible, reliable and updated information allows for the judicial branch, as a key protector of human rights, to display a democratic openness that legitimises and strengthens it and that permits it to be accountable before society at both national and international levels. In this respect, I offer you the methodology for the development of indicators that my Office has been consolidating in recent years. Iam convinced that the definition of clear criteria for the measurement of progress in human rights protection, through the establishment of trustworthy indicators founded upon international norms, is a measure that will facilitate the development of programmes, policies and budgets with a human rights perspective.

Another example of transparency is the effort made by the Supreme Court of Mexico in creating a television station that transmits the deliberations and the decisions taken by the full bench of the Court. Dear friends.

It has been an honour for my Office to be involved in organising this event, alongside the Supreme Court of Mexico. I wish you all success during your discussions and deliberations and you can count on my support, advice and the cooperation of my Office for all these efforts favouring a common understanding of human rights and fundamental liberties. Statement by Ms. Navanethem Pillay Thank you very much.

XXIX

A previous framework

Preface

The Supreme Court of Mexico, thanks to the initiative of its President, Juan N. Silva Meza, and in collaboration with the Office of the High Commissioner for Human Rights, presents in this publication the reflections of those who participated in the Summit of Presidents of Constitutional, Regional and Supreme Court Justices, celebrated November 8th and 9th, 2012 in Mexico City.

The idea of the Summit emerges during the State visit to Mexico of the United Nations High Commissioner for Human Rights, Navi Pillay, in which the need for generating a dialogue among constitutional judges —in their character of human rights defenders— was expressed, in order to exchange experiences in this sphere, so that the challenges and obstacles for the highest protection of the individual in the different jurisdictions of the world were addressed.

This initiative is born in a unique historical context for the Mexican legal system. In June 2011 there was a paradigmatic constitutional amendment, through which the human rights recognized in international treaties signed by Mexico became part of the constitutional catalogue of rights. All authorities are obliged, within the realm of their competences, to respect, protect and guarantee the human rights recognized in the Mexican Constitution and in the international treaties to which Mexico is Part. In the judicial praxis, this obligation translates in to the know-how of international human rights law.

In this context, the Presidency of the Supreme Court of Mexico sought to foster a dialogue within equals from different parts of the world in order to enrich the recent Mexican experience for a successful implementation of the new constitutional text. Thus, it was decided to host the Summit, whose XXXIII primary purpose was to strengthen the dialogue among international tribunals and domestic jurisdictions for the advancement in relevant human rights’ issues.

In the Summit valuable experiences were shared over multiple decisions taken to solve transcendental problems, but above all, common problems for the protection of human rights. In a series of round tables, representatives of high courts of 26 countries from 4 different continents, as well as international Carlos Pérez Vázquez

and Javier Hernández Valencia courts, discussed diverse and ample topics of special importance to the constitutional and international analysis of human rights’ issues, with special concentration in the relationship between international law and its reception in domestic law. In these debates it was possible to gather a series of relevant practices and lessons that will result in the protection of human rights, having a positive impact in the lives of individuals.

From the most relevant conclusions we can highlight that the participating countries share a lot of the same worries (e. g., insecurity, substantive inequality, displacements, cultural pluralism, protection of economic,

XXXIV social and cultural rights, and so on), that the incorporation of international human rights law in the national jurisdictions strengthens and reinforces its protection, and that the interaction, dialogue and exchange of ideas has and will continue to be fruitful for the fulfillment of judicial tasks.

Without a doubt, the role of judges, particularly in the highest spheres is fundamental for the construction and maintenance of democratic states, since they work as counterbalance to the arbitrary interference in the lives of individuals, but also because they facilitate the structural changes so that rights can be guaranteed in an adequate matter; as it is shown in the reflection about the tribunals’ work in regards with the legislative organs. It can be observed that there are two tendencies in respect of this relation. On the one hand, judicial resolutions demand the lawmakers’ actions, be it to correct an unconstitutional norm or to repair a legislative omission. On the other hand, in some jurisdictions, the judiciary plays a more passive role, due to the faculties assigned by the own constitutional architecture. Surely, the debates about the judiciary’s degree of incidence in public policy will not be resolved soon, nonetheless it is unquestionable that courts create public consciousness about the needs of the people, and represent an essential means to guard the respect and guarantee of human rights.

One of the instruments for the greater protection of human rights is the internalization of international human rights law, which strengths and eases judicial tasks, and at the same time, the internationalization of constitutional law contributes to the construction of generalized solutions to common problems. This evident relationship between constitutional law and international law is so important, that it is where “there lies the future: a point of convergence in human rights for the establishment of a ius constitutionale commune […]”.1

The levels of scrutiny and orientation achieved in forums, like this Summit, help achieve a synergy of different forces in a same direction: to administer justice; because as Habermas mentioned “the fulfillment of the sovereign constitutional mandate requires the State’s capacity and disposition to take Preface part, in equality of rights, in the collective efforts to solve the issues that arise in the global sphere, as well in the regional…”2 This publication is a testimony of the work undertaken by the courts and tribunals of different jurisdictions to participate in these collective efforts.

It gathers the points of view of the participants, who share in their writings experiences and issues that have been identified in their own countries and jurisdictions. The work is divided into three chapters, which do not necessarily correspond to the topics of the round tables, but comprise the worries over the most common issues and that had an important space during the debates: the internationalization of constitutional law, the protection of human rights in the domestic order and the access to tribunals, social rights XXXV and bioethics.

The intention of the publication of the reflections of the most prominent judges of 26 countries and international systems is to enrich the debates about these topics from a universal vision. The work is proof that despite the legal diversity, the work of the judge always has the objective of protecting the rights of the individual. This rich dialogue shows how, regarding the particularities of each legal system, a judge, through his or her primary task of interpretation, always finds solutions for a broader protection of the person.

Carlos Pérez Vázquez Human Rights Coordinator and Chief of Staff to the President’s Office of the Supreme Court of Mexico

Javier Hernández Valencia Representative of the United Nations High Commissioner for Human Rights, Mexico

Coordinators

1 Concurring Opinion of Eduardo Ferrer Mac-Gregor Poisot, ad hoc Judge, in the Case of Cabrera García and Montiel Flores v. Mexico, Judgment of November 26, 2010, paragraph 88. 2 Habermas, Jügen, “Between Naturalism and Religion: Philosophical Essays”, Barcelona, Paidós, 2006, p. 323. Translation from the authors.

Introduction

The initiative behind this book concerns the project undertaken by the Chief Justice of the Supreme Court of Mexico, Juan N. Silva Meza. It consisted in gathering in November 2012 judges who, at moment, served as presidents, chief judges or representatives designated by international, national and regional jurisdictions. The meeting intended to foster a dialogue among individuals that held similar functions as chairmen at National Constitutional Courts of countries from 4 different continents and implied an effort which dimensions I intend to describe in this note. Rather than just explaining the results of the debates, this book encompasses the personal reflections of participants in the working sessions. Therefore, this document reunites original texts, written for this purpose throughout the year that followed the Summit.

Even if the effects of conventionality control systems in the national legal orders have already been discussed during the past few years,1 the more specific subject concerning the catalog of fundamental rights in a regional level and its projection towards a domestic sphere remains unexplored.2

1 A. Dzemczewski, European Human Rights Convention in Domestic Law; a comparative study, London, Clarendo Press, p. 372; M. Delmàs-Marty (ed.), Raisonner la raison d’Etat, vers une Europe des droits de l’Homme, Paris, Presses Universitaires de France, 1992, 512 p; A. v. Bogdandy y M. Morales, La justicia constitucional y su internacionalización: ¿hacia un jus constitutionale commune en América Latina?, Mexico: UNAM-Instituto Max Planck, 2010, volume 2. 2 We asked for the assistance of the regional cooperation organizations that have advanced in creating systems of “constitutional first-aid”, for the case of countries in Central and Eastern Europe. The Council of Europe has always been attentive to contribute for the normalization of constitutional transition processes since the 1990’s, and for that purpose it created the Commission for Democracy trough Law (better known as the Venice Commission). Our acknowledgment to its President, Gianni Buquicchio, and to Serguei Kustetzov and Schnutz Durr, who assisted us from Strasbourg in the elaboration of a list of countries whose recent experiences contributed to making this a more complete exercise. XXXVII The multiplicity of domestic cases confronted us with the potential risks that emerge from comparing different institutions, namely the “water puddle condition, according to which the extent of the water surface portents shallowness”.3 While defining the program and selecting its participants, the search for parallels was arranged under more extensive grounds, referring to different realities of regions with characteristics that were —more or less— already known. We could say that we looked for the tendency of creating conventional blocs.4 Francisco Tortolero Cervantes In Europe, there is evidence of a growing relationship among the constitutional link between national jurisdictions and regional courts (even if sometimes it consists of discontinuous ups-and-downs phases). It is between these two legal orders that the judges of every continent are finding an interpretative balance that’s useful to define the general patterns for the defense of individual rights. That is, by placing the duty to broaden the protective range of the individual, at the center of their agenda, without losing sight of their fundamental obligation to defend national constitutions.5

XXXVIII In our continent, the community of Latin-American judges, that recognizes itself and joins periodically at the Ibero-american Judicial Summits6 held every two years,7 saw the reunion of 2012 as an opportunity to put into perspective their obligation to defend human rights, before judges of different regions with whom they can seldom interact. Therefore, the main objective of the reunion could not be focused on only one continent. The

3 P. Legrand, Le droit comparé, “Que sais-je?”, Presses Universitaires de France, 1999, 128 p. 4 More than twenty years after the creation of the concept of “Constitucional Blocks”, it’s useful to remember its original definition as a “group of principles and rules with constitutional value whose respect is imposed to the legislative and to the Executive branch but also, in a general sense, to every administrative and jurisdictional authority and to the individuals as well” in Favoreu, Louis, “Bloc de constitutionnalité”, en O. Duhamel e I. Meny (eds), Dictionnaire Constitutionnel, Paris, Presses Universitaires de France, 1992, p. 87. 5 D. Szymczak, La convention Européenne des Droits de l’Homme et le Juge Constitutionnel National, Publications de l’Institut International des Droits de l’Homme, Bruxelles, Bruylant, 2007, 849 p. 6 During our search for a pattern of comparativeness among the participating courts coming from the European continent, we gave preference to the constitutional regimes that practice a concentrated control trough their constitutional courts. We considered the diffuse scheme, which allows for the constitutional control to be practiced by every court, may –in part- alter the dialogical structure that we had outlined for this Summit. We are specifically referring to the Scandinavian model of high courts, lacking of a specific constitutional court, among which we can enlist Denmark, Estonia, Finland, Greece, Ireland, Iceland, Norway, Sweden and even Switzerland. 7 The first Iberoamerican Reunion took place in Madrid, in 1990; the most recent was its XVII edition held in Santiago de Chile in February, 2014. This organization continues to advance a thematic agenda that also includes the regional protection of fundamental rights to which the Mexican Supreme Court has recently contributed with the elaboration and update of a Iberoamerican Judicial Procedures for the improvement in the access of justice of persons with disabilities, migrants, children and indigenous communities; refer to www.cumbrejudicial.org, http://www.sitios.scjn.gob.mx/codhap/sites/default/ files/banner/archivos/Protocolo_Iberoamericano.pdf intention of convening this summit had to focus in a multidirectional approach over different realities that gradually become more present in all the countries,8 at least in order to obtain a message of certainty concerning the transformation processes in which a good part of the national jurisdictions are immersed (just to mention the difficult task of courts responsible for arbitrating very complex democratization processes in 9 the recent past). The charters and international conventions of rights leave Introduction behind the condition announced by Ferdinand Lasalle, as of mere sheets of paper,10 to become binding norms.

It is not a secret to anyone that the coexistence of national and international courts, in spite of the latter exerting complementary tasks, is not always harmonious because of the tensions that usually arise every time that national courts notice an adjustment or modification in the interpretative models of the charters of rights.11 The effect of the so-called “dialogue between judges” necessarily impacts in the way law is conceived within every constitutional system. Although it doesn’t manage to eliminate the sovereign spectrum that reappears every time the effectiveness of a domestic XXXIX norm is being modeled or even questioned by an international or regional precedent, even when it is regarding a better protection of the individual.

ROUNDTABLE I. “Constitutional Interpretation vis the other Branches of the State” SPEAKER: Bernardo Sepúlveda Amor, Vice-President of the ICJ TOPIC 1. AS CATALYST LIGHT OF LEGISLATIVE INACTIVITY MODERATOR: Justice José Ramón Cossío Díaz, SCJN TOPIC 2. ITS INFLUENCE ON PUBLIC POLICIES MODERATOR: Justice Sergio Salvador Aguirre Anguiano, SCJN

8 R. Abraham, “Les incidences de la Convention EDH sur le droit constitutionnel et administratif des Etats parties”, La mise en oeuvre interne de la CEDH en Europe de l’Est et de l’Ouest”, Revue Universelle des Droits de l’Homme, 1992, p. 409. 9 On this matter we can underline the experiences that were presented by the participating judges of Georgia, Bulgaria, Rusia, Turkey, Argelia, Morocco, Ghana, South Africa or Indonesia. The aforementioned courts —in a similar way to those in our continent— still have to experience every facet of the individual protection, but in their relevant cases concerning specific topics, they portray different frames of development, some of which are more optimistic than others. 10 F. Lasalle, ¿Qué es una Constitución?, Madrid, Cenit, 1931. 11 “[D]etermining how much attention is really paid to the European Court’s judgements in practice would involve a major comparative research project. This would have to take up not simply the domestic cases where these judgements were cited/followed but the cases where they were cited but not followed in substance”, I. Cameron, “Protocol 11 to the European Convention on Human Rights – The European Court of Human Rights as a constitutional court?”, Yearbook of European Law, 1995, p. 239. ROUNDTABLE II. “The Role of the Domestic Judge in light of the Paradigm of Human Rights” SPEAKER: Diego García Sayán, President of the ICHR TOPIC 3. INPUT FOR THE CONSTRUCTION OF A BLOCK OF CONSTITUTIONALITY MODERATOR: Justice Margarita Beatriz Luna Ramos, SCJN TOPIC 4. EXECUTION OF DECISIONS OF INTERNATIONAL COURTS IN THE INTERNAL ENVIRONMENT: THE RIGHTS OF VICTIMS AND THE MECHANISMS OF REPARATION Francisco Tortolero Cervantes MODERATOR: Justice Luis María Aguilar Morales, SCJN

ROUNDTABLE III. “Dialogue between International Courts and Domestic Jurisdictions” SPEAKER: András Sajò, Judge of ICHR TOPIC 5. DIFFERENTIATION BETWEEN CONSTITUTIONALITY CONTROL AND CONVENTIONALITY CONTROL MODERATOR: Justice Sergio Armando Valls Hernández, President of the Second Chamber, SCJN

XL TOPIC 6. CURRENT STATUS OF THE PRO PERSONA PRINCIPLE MODERATOR: Justice Sergio Armando Valls Hernández, President of the Second Chamber, SCJN

ROUNDTABLE IV. “Access to Justice and Transparency as National and International Legitimacy Factors” SPEAKER: Sophia Akuffo, President of the ACHPR TOPIC 7. ACCESS TO EFFECTIVE JUDICIAL RECOURSE MODERATOR: Justice José Fernando Franco González Salas, SCJN TOPIC 8. TRANSPARENCY POLICIES IN THE SUPERIOR DOMESTIC JURISDICTIONS MODERATOR: Justice Guillermo I. Ortiz Mayagoitia, SCJN

ROUNDTABLE V. “Economic, Social and Cultural Rights and groups in situation of vulnerability” SPEAKER: Javier Hernández Valencia, Representative in Mexico of the United Nations High Commissioner for Human Rights TOPIC 9. JUDICIAL GUARANTEE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (DESC) MODERATOR: Justice Jorge Mario Pardo Rebolledo, President of the First Chamber, SCJN TOPIC 10. CONSTITUTIONAL JUDGES AS A MEANS TO PROVIDE ACCESS TO JUSTICE FOR GROUPS IN SITUATION OF VULNERABILITY MODERATOR: Justice Olga María del Carmen Sánchez Cordero Dávila de García Villegas, SCJN “Human rights indicators: a proposal for fair trial” SPEAKERS: Javier Hernández Valencia and Mila Paspalanova, UNHCHR

Concluding Roundtables SPEAKERS: Javier Hernández Valencia, Sophia Akuffo, András Sajó, Diego García Sayán, Bernardo Sepúlveda Amor Introduction MODERATOR: Justice Juan N. Silva Meza, Chief Justice of the Supreme Court of Justice of the Nation and of the Federal Judicature Council

Declaration Reading and Closing Ceremony Justice Juan N. Silva Meza, Chief Justice of the Supreme Court of Justice of the Nation and of the Federal Judicature Council

Through recent experiences, the judges have become aware that the task of turning the contents of international human rights instruments into life within the domestic sphere is far from being simple. That is the reason why a complete exercise could not only include paradigmatic national cases XLI opening the courts’ access to institutions and individuals;12 it also seemed relevant to convene our continental judges to interact with those acting in very limited jurisdictional organisms that were initially conceived only as consultative entities and slowly redirected their activity towards jurisdictional functions.13 The multiplicity of realities took us to move away from a simple description of constitutional provisions. Our attempt to frame the action of national courts before regional courts demanded a more specific design.

Likewise, we considered that even if the European system has recorded important progress deriving from its earlier implementation, that does not mean that the American or African continent could not offer more audacious solutions to urgent rights violations.14

This initiative encouraged by the Justice Juan N. Silva Meza, President of the Supreme Court of Mexico, emerged from the State visit by the United Nations High Commissioner on Human Rights, Navy Pillay, to our country in 2011. The main objective aimed to foster a lighthearted dialogue that would allow gathering judges from every continent at one event that aimed

12 Like Germany, Italy or Spain (among them, we were graced by the participation of the latest). 13 This being the case of the French Constitutional Council (that finally adopted mechanisms of concrete control in 2009) or the Belgium Court of Arbitration (openly transformed into a Constitutional Court in 2004) 14 L. Bourgorgue-Larsen, “Le banissement de l’impunité: décryptage de la politique jurisprudentielle de la Cour IDH”, Revue Trimestrielle des Droits de l’Homme, no. 89, 2012, pp. 3-42. to achieve a better understanding of the similarities and possible challenges or common solutions in their function as interpreters of fundamental rights.15 Instead of looking to theorize the interaction that is still being constructed in most part of the contemporary constitutional regimes, we thought that informal dialogues would contribute to create a greater conscience with respect to the magnitude of the collective challenge; even as an initial approach.

The working sessions that were held in closed chambers, managed to Francisco Tortolero Cervantes generate among participants a cordial environment to talk about the internationalization of human rights based on national experiences. The perception of national judges regarding the actions of international jurisdictions was more easily extracted because judges of the latter directed the exchanges in the working sessions.16 At the end of the exercise, the conclusions announced by the participants (which can be read at the Final Declaration)17 reveal that the countries improve their constitutional systems to the extent in which the international protection of human rights is taken seriously in the domestic sphere.

XLII Nevertheless, these debates also left some pending assignments to carry on in preparing the field for the coming interpretative adaptations that courts will continue to face in every country. May a recognition be made to the Office of the United Nations High Commissioner for Human Rights, which assisted us in a very enthusiastic fashion through its office in Mexico, and from where it has continued to work in a model of human rights indicators that introduces the United Nations Human Development Indexes as a parameter to stablish the quality of human rights all around the world.18

15 Among the invited guests that had to notify their inability to assist (sometimes even during the inaugurating day) but whom manifested their interest in getting to know the results of this dialogue, we can underline the courts of the Anglo-Saxon legal tradition (England, Canada and Australia). We have registered some advances with these courts as well as with other ones whose absence we regret (like Italy and Germany), and we expect to follow up with it during the forthcoming years. 16 We have to underline the enthusiasm of the international judges and the representative of the High Commissioner of the UN in Mexico, who acted as presenters of the five working sessions that composed the colloquia. The same recognition must be made regarding the ten judges of the Mexican Supreme Court who were in charge of moderating every one of the ten topics in which the program was divided; their keenness and experience were central for attaining a productive dialogue. 17 During the preparation of its contents in three languages, we counted on the participation of Jester Helena Charewa, from the African Court on Human and Peoples’ Rights; Daniel Mackintosh, from the Supreme Court of South Africa; and Caroline Pétillon, from the French Constitutional Council. A final text was able to be adopted due to the kind help of Bernardo Sepúlveda, Vice-president of the International Court of Justice, Milton Ray Guevara, President of the Constitutional Court of the Dominican Republic, and Javier Hernández Valencia, representative in Mexico for the UNHCHR. A copy of the text can be found as an epilogue of this book. 18 The attendees heard the participation of Mila Paspalanova, from the Office of the UNHCHR in Mexico, that exposed the way in which development indicators transformed when the countries overcome the Bretton Woods’ economic dogma; cf. for the central ideas refer to Amartya Sen, The Idea of Justice, London, Penguin Books, 2009, 559 p. Within this internationalization frame, the protective model of rights seems to develop from the three continental schemes created up until today (European, Inter-American, and African), that by their sole existence, establish themselves not as a fourth instance, but as a minimal guarantee standards that harmonize the rights and public liberties in their respective continental scopes.

The program’s design was in charge of the Coordination for Human Rights Introduction and Advisory at the Office of the Chief Justice of this Supreme Court, along with the Office of the United Nations High Commissioner for Human Rights in Mexico. The heads of both offices, Carlos Pérez Vázquez and Javier Hernández Valencia, coordinators of this book, counted with the collaboration of the Unit for Institutional Relations of the Supreme Court, and worked closely with the General Direction for Human Rights and Democracy of the Foreign Ministry.

Regarding the structure of the book, we took into account the way in which the national courts have been adapting their jurisprudence, in a parallel track besides the protection offered by the regional jurisdictions. Given that XLIII both jurisdictional systems allow us to catch sight of deep links in respect to their central objectives and that the protection of these rights is turning into a priority for the state governed by the rule of law, we opted for a sequence going from general to specific. The reader will find three chapters, the first one brings together the participations concerning the internationalization of constitutional law; the second chapter displays national cases of domestic protection of the individual; finally, the third chapter describes several specific cases related with the access to justice and social rights.

At the end of the day, this institutional effort could be captured in concrete results thanks to the protocol and logistical work coordinated by Magistrate Arturo Pueblita, Secretary General for the Office of the Chief Justice of the Supreme Court, who directed since the beginning, the work of a great staff that were in charge of all the very different required tasks, from assuring the safety of the participants and as far as the publication of this book.

Francisco Tortolero Cervantes Senior Advisor to the President of the Supreme Court of Mexico Technical Secretary for the Summit of Presidents

A perspective of this ideas as model in construction can be found at the Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, available at: http://www2.ohchr.org/english/issues/indicators/docs/HRI.MC.2008.3_en.pdf a sensitivecallfordialogue Internationalization of Constitutional law:

First chapter

The International Court of Justice, Constitutional Interpretation by Supreme Courts, and the role of other branches of government

Bernardo Sepúlveda-Amor

Vice-President of the International Court of Justice

It is a pleasure to have the opportunity to address you today on the question of “The International Court of Justice, Constitutional Interpretation by Supreme Courts, and the Role of other branches of government”. While the title of this Panel directs attention towards the relationship between constitutional rights, as developed by Supreme Courts, and the actions or omissions of State branches, in these brief remarks I would like to broaden the scope of discussion to examine questions surrounding the implementation of, and compliance with, international obligations on the domestic level. These remarks draw on recent cases in the International Court of Justice that reflect the tensions that can surface as States seek to implement and uphold their international obligations.

The ICJ’s pronouncements on the international obligations of States have met with inconsistent responses on the domestic level. The five cases I will discuss provide a spectrum of reactions —both across States, and between the organs of a single State. These cases raise fundamental questions for the diligent State seeking to fulfill its obligations under international law. How is it that international norms are imported into the domestic system? What tensions may arise between the branches of government in their implementation? And what lessons can be taken from recent cases for a State seeking to fulfill its international obligations, and the obstacles it finds? 3 Jurisdictional Immunities (Germany v. Italy: Greece Intervening)

The first case I wish to discuss is that of Jurisdictional Immunities (Germany v. Italy: Greece Intervening).1 The case stemmed from a series of atrocities that German forces committed in World War Two during the German Reich’s occupation of large swathes of Italian territory. These International Court of Justice

Bernardo Sepúlveda-Amor atrocities involved the massacres of civilians and the deportation of large numbers of civilians for use as forced labor. Several hundred thousand Italian soldiers were taken prisoner and denied the status of prisoners of war.2 Efforts to provide appropriate compensation in the aftermath of the war were piecemeal and failed to compensate certain victims.3 In response to this situation, a series of decisions in the Italian courts asserted jurisdiction over claims brought against Germany for acts of its armed forces against Italian citizens or individuals during World War Two —in spite of Germany’s claim of sovereign immunity before the courts. The Italian government 4 appeared not to condone the path taken by the judiciary. In one case, the Solicitor-General of Italy submitted that lifting Germany’s immunity did not ‘seem to be in line with the current position of international law’.4

Germany consequently filed an application with the International Court of Justice alleging that the Italy, through its judicial branch, had violated its international obligation to respect Germany’s jurisdictional immunity under international law.

Greece intervened in the case as a non-party, noting that an ICJ decision on the effects of jurisdictional immunities would “guide Greek courts” and be “of major importance” to the Greek and Italian legal order.5 While Greek courts had similarly rendered a judgment against Germany and awarded damages in respect of the Distomo massacre in 1944, the Greek Minister of Justice refused to approve the enforcement of the judgment against Germany. This refusal was circumvented by the Italian Court of Cassation,

1 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) (3 February 2012, General List No. 143). 2 Ibid., p. 13, para. 21. 3 Ibid., pp. 14-15, paras. 23-26. 4 See Memorial of the Federal Republic of Germany, Case concerning the Jurisdictional Immunities of the State (Germany v. Italy) (12 June 2009), para. 26; Counter-Memorial of Italy, Case concerning the Jurisdictional Immunities of the State (Germany v. Italy) (22 December 2009), para. 1.4. 5 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), p. 12, paras. 18-19. which held that a Greek order obliging Germany to reimburse legal expenses of proceedings before the Greek courts was enforceable in Italy.6

In upholding the fundamental principle of the jurisdictional immunity of States, the ICJ held that Italy had violated its obligation to respect Germany’s immunity, and that it must, “by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of its courts and those of other judicial authorities” infringing Germany’s immunity cease to have effect.7 The Court noted that “the fact that some of Courts, and the role of other branches ... The International Court of Justice, Constitutional Interpretation by Supreme the violations may have been committed by judicial organs, and some of the legal decisions in question have become final in Italian domestic law, does not lift the obligation incumbent upon Italy to make restitution.”8

In the wake of the Court’s judgment, Italy’s legislature has shown willingness to implement the Court’s decision. A draft law was presented to the Italian Chamber of Deputies on September 11th 2012, which will lead to the ratification and implementation of the United Nations Convention on Jurisdictional Immunities of States and their Property. Article 3 of the draft 5 law refers specifically to the ICJ judgment. It requires Italian courts hearing such cases to find on their own motion that they lack jurisdiction, even where a preliminary judgment establishing its jurisdiction has already become res judicata, and whatever the state or phase of the proceedings. The law also provides that any ruling that already has the force of res judicata which is inconsistent with the ICJ’s judgment may also be subject to revision for lack of civil jurisdiction.

Israeli Wall Opinion

The willingness of Italy to remedy the breach of its international obligations committed by its judicial branch through legislation can be compared favorably to Israel’s reaction to the ICJ’s 2004 Wall Opinion.9 As we shall see, the Israeli government was hostile to the Court’s Opinion. The Israeli Supreme Court treated the ICJ’s Opinion with greater deference but nonetheless avoided implementing the Opinion directly.

The Wall Opinion arose in the context of the intractable Israeli–Palestinian conflict. The Court’s Opinion was requested by the United Nations General

6 Confirming a decision of the Court of Appeal of Florence. See ibid., p. 17, para. 33. 7 Ibid., p. 51, para. 139. 8 Ibid., p. 50, para. 137. 9 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136. Assembly in relation to Israel’s decision to construct a wall to deter terrorist attacks on its territory launched from the West Bank. The route of the planned wall spanned the border between Israel and the West Bank, but cut significantly into the Occupied Territories to encompass Israeli settlements and to enclave Palestinian populations.10 According to a Report of the Secretary-General, the wall as constructed would enclose 160,000 Palestinians in almost completely encircled communities.11 237,000 further Palestinians would be cut off from the rest of the West Bank by the International Court of Justice Bernardo Sepúlveda-Amor path of the barrier.12 The construction of the wall obstructed Palestinians’ access to agricultural lands, water sources, health services, schools, and workplaces.13 Under a new administrative regime that accompanied the proposed wall, non-Israeli residents living in areas designated as ‘closed areas’ were unable to remain in their homes without a permit. Access to and exit from ‘closed areas’ was only possible through access gates, which opened infrequently.14

The Court concluded that the Fourth Geneva Convention —which relates

6 to the protection of civilians in a time of war— was applicable in the Occupied Territories.15 Israel was also required to fulfill its obligations under the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC) in those territories.16

The Court found that the course of the wall chosen by Israel gravely infringed the rights of Palestinians and was not justified by military exigencies or national security.17 The construction of the barrier breached Israel’s obligation to respect the Palestinian peoples’ right to self-determination;18 impeded their liberty of movement, guaranteed by Article 12 of the ICCPR;19 and impeded rights to work, to health, to education and to an adequate standard of living under the ICESCR and the CRC.20 By contributing to shift in the demographics of the region, Israel’s actions also contravened the Fourth Geneva Convention.21 The Court held that Israel was “under an

10 Ibid., p. 170, para. 83. 11 Ibid., p. 170, para. 84. 12 Ibid. 13 Ibid., p. 190-191, para. 133. 14 Ibid., p. 171, para. 85. 15 Ibid., p. 177, para. 101. 16 Ibid., pp. 180-181, paras. 111-113. 17 Ibid., p. 193, para. 137. 18 Ibid., p. 184, para. 122. 19 Ibid., pp. 191-192, para. 134. 20 Ibid., p. 192, para. 134. 21 Ibid. obligation” to cease construction of the wall and dismantle existing structures in that area, and “to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto”.22 The Court also declared that Israel was under an obligation to “make reparation” for all damage caused by the wall’s construction in the Occupied Palestinian territory.23

Admittedly, the Wall opinion, as a case brought in the Court’s Advisory capacity in response to a request from the General Assembly,24 was not binding on Israel. Nevertheless, the Court’s finding was significant. One Courts, and the role of other branches ... The International Court of Justice, Constitutional Interpretation by Supreme could anticipate that it would have domestic repercussions.

The response to the Advisory Opinion from Israel’s Executive was hostile. Two days after the Opinion was delivered, the then Prime Minister Ariel Sharon declared at a Cabinet meeting that “the State of Israel completely rejects the ICJ’s opinion”,25 while Israeli Ambassador Dan Gillerman declared that the Opinion marked “a dark day for the International Court of Justice and the international legal system”.26 Although in February 2005, some seven months after the ICJ’s Opinion, Israel revised sections of the wall’s 7 route and reduced its incursion into the West Bank, the Cabinet based that decision solely on considerations stemming from rulings of the Israeli High Court of Justice and made no reference to the ICJ’s Opinion.27

Within Israel’s domestic courts, the ICJ Opinion was treated with greater deference but nonetheless circumvented. In the case of Mara’be v. The Prime Minister of Israel,28 the Israeli Supreme Court, sitting as the High Court of Justice, described the decision as an ‘interpretation of international law, performed by the highest judicial body in international law’29, which should be given its “full appropriate weight”.30 However, the High Court of Justice found that the factual basis of the ICJ’s decision, in particular inadequate attention to the security-military needs of Israel, in the materials before the

22 Ibid., pp. 201-202, para. 163. 23 Ibid., p. 202, para. 163. 24 Ibid., p. 139. para. 1. 25 Israel Ministry of Foreign Affairs, Cabinet Communiqué dated 11 July 2004. Accessed via . 26 ‘Ambassador Gillerman: Dark day for ICJ’, communicated by the Israel Mission to the UN (9 July 2004). Accessed via . 27 Israel Ministry of Foreign Affairs, Cabinet Communiqué dated 20 February 2005. Accessed via . 28 Mara’be v. The Prime Minister of Israel, HCJ 7957/04 (15 September 2005). 29 Ibid., p. 35, para. 56. 30 Ibid., p. 47, para. 74. ICJ —was utterly distinct from the facts before the High Court of Justice in this and earlier decisions.31 In its own proportionality analysis, the Court held nonetheless that the respondents were required to “reconsider” alternative routes for the wall (or fence, as it is referred to in the judgment) in the area of Alfei Menashe, while “examining security alternatives which injure the fabric of life of the residents of the villages of the enclave to a lesser extent”.32 International Court of Justice Bernardo Sepúlveda-Amor Diallo

An interesting case that concluded recently was that of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).33 The application was filed by Guinea on the basis that the DRC had seriously violated the rights of Mr. Diallo, a Guinean businessman. Guinea claimed that Mr. Diallo had been unjustly imprisoned by DRC authorities, had had his investments, businesses, and property seized, and was ultimately expelled from the country.34 8 The Court found that in expelling Mr. Diallo, the DRC breached its obligations under the ICCPR and the African Charter on Human and Peoples’ Rights.35 It is notable that this finding was based on the DRC’s failure to follow its own legal procedures in issuing an expulsion order. The decree expelling Mr. Diallo was not preceded by consultation with the National Immigration Board, as required by article 16 of the Zairian Legislative Order. 36 Nor did it indicate the grounds on which the decision was made, as required under the Order.37 Under both the ICCPR and the African Charter, an expulsion may only occur in accordance with the law.38 The Court additionally found that Mr. Diallo’s arrest and detention violated

31 Ibid., p. 37, paras. 60-61 (“the main difference between the legal conclusions stems from the difference in the factual basis laid before the court…[d]espite the fact that the data which each court received regarded the same wall/fence, the difference between each set of data is deep and great. This difference is what ultimately led to the contrary legal conclusions”); ibid., p. 47, para. 74 (“the ICJ’s conclusion, based upon a factual basis different from the one before us, is not res judicata, and does not obligate the Supreme Court of Israel to rule that each and every segment of the fence violates international law”). 32 Ibid., p. 63, para. 116. 33 Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (30 November 2010, General List No. 103). See also the Court’s recent decision on compensation: Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation owed by the Democratic Republic of the Congo to the Republic of Guinea, (19 June 2012, General List No. 103). 34 Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (30 November 2010, General List No. 103), p. 6, para. 1. 35 Ibid., pp. 24-26, paras. 64-73. 36 Ibid., p. 26, para. 72. 37 Ibid. 38 See ibid., p. 24, para. 64. the ICCPR and the African Charter, and the DRC’s failure to inform him without delay of his rights under the Vienna Convention on Consular Relations breached that instrument.39

In June of this year, the Court determined that the DRC was obliged to pay US$95,000 to Guinea for the injury suffered by Mr. Diallo.40 This judgment was novel, though not entirely unprecedented. As mentioned earlier, the Court in its Israeli Wall Opinion found Israel was obliged to make reparation for damage caused to natural and legal persons in the construction of the Courts, and the role of other branches ... The International Court of Justice, wall.41 However while that Opinion, given in the Court’s Advisory capacity, Constitutional Interpretation by Supreme was non-binding, this judgment has binding force.

In the Compensation judgment, the Court recalled that “the sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo is intended to provide reparation for the latter’s injury”.42 The judgment implies a responsibility on the part of Guinea to direct the reparation received by Guinea to Mr. Diallo, whose rights were ultimately infringed. The June

2012 decision therefore stands as the first time that the Court has obliged 9 a State to pay compensation for injury suffered by an individual citizen. In this way, the international obligations of Guinea become domestically applicable.

Avena and other Mexican Nationals

A troubling example is presented by the ICJ’s Avena decision and its repercussions in the United States.43 The case concerned 52 Mexican nationals on death row in the United States, whom Mexico argued had not been afforded due consular protections under article 36 of the Vienna Convention on Consular Relations. Under that article, if a foreign national is arrested or detained, he or she is entitled to communicate with consular

39 Ibid., pp. 49-50, para. 165. 40 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation owed by the Democratic Republic of the Congo to the Republic of Guinea (19 June 2012, General List No. 103). 41 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 198, paras. 152-153. Zyberi refers to this recognition of the right of natural and legal persons to reparations and the duties placed on the State as a “landmark finding”, as until the Court’s decision, “it was the State who was the sole beneficiary of any compensation while individuals hardly, if ever, got any share of it”: Gentian Zyberi, “The Development and Interpretation of International Human Rights and Humanitarian Law Principles through the Case-Law of the International Court of Justice” (2007) 25 Netherlands Quarterly of Human Rights 117, 130. 42 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation owed by the Democratic Republic of the Congo to the Republic of Guinea (19 June 2012, General List No. 103), p. 20, para. 57. 43 Avena and other Mexican Nationals (Mexico v. United States of America), I.C.J Reports 2004, p. 12. officers. “The competent authorities” of a State are required to inform foreign nationals of their rights under the Convention “without delay”. Mexico contended that 50 of the Mexican nationals were never informed of their rights under the Convention, and in the remaining two cases, the information was not provided “without delay”.44

The ICJ held that by not informing the Mexican nationals of their rights,

International Court of Justice and by not notifying the Mexican consular authorities, the United States Bernardo Sepúlveda-Amor had breached its obligations under the Convention. Accordingly, the Court held that the United States was required to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals.45

The Court’s decision did not however end the dispute between the United States and Mexico. Conflict over compliance endured within the United States between each branch of the State. An Executive Memorandum purporting to require State courts to ‘give effect’ to the Avena decision was declared 10 not to be directly enforceable in the notorious Medellín decision of the United States Supreme Court.46 The Supreme Court also held that while the Avena judgment constituted an international obligation on the United States, it did not have automatic enforceability in US federal or state courts. Despite the ICJ’s issuance of an Order on 16 July 2008 requiring the United States to “take all measures necessary” to ensure that Medellín, amongst others, was not executed pending judgment in a Request for Interpretation of the Court’s decision in Avena, Medellín was executed on 5 August 2008.47

In June 2011, a bill was introduced which would implement article 36 of the Convention as a matter of federal law.48 In July of that year, Leal García, a Mexican national, sought a stay of execution so that Congress could consider the proposed legislation.49 The United States government supported a stay of execution in an amicus brief. The United States Supreme Court declined to stay the execution, stating that “[i]f a statute implementing Avena has

44 Avena and other Mexican Nationals (Mexico v. United States of America), I.C.J Reports 2004, p. 26, para. 19. 45 Ibid., p. 72, para. 153. 46 Medellín v. Texas, 552 U.S. 491 (2008). 47 See Request for Interpretation of the Judgment of 31 March 2004 in the case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 19, para. 52. 48 S. 1194: Consular Notification Compliance Act of 2011, introduced by Sen. Patrick Leahy on 14 June 2011. See further David P. Stewart, Introductory Note to the U.S. Supreme Court: Garcia v. Texas, (2012) 51 ILM 44. 49 Garcia v. Texas, 564 U. S. (2011). genuinely been a priority for the political branches, it would have been enacted by now”.

Belgium v. Senegal

I would finally like to mention the ICJ’s recent decision in the caseQuestions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).50 This case is relevant both for the actions taken by organs of the Senegalese

government over the course of the dispute, and for the State’s reaction to Courts, and the role of other branches ... The International Court of Justice, Constitutional Interpretation by Supreme the ICJ’s ruling in July of this year.

The background to the case can be briefly stated. In 2009, Belgium filed an application instituting proceedings against Senegal in relation to Senegal’s obligations to prosecute or extradite Hissene Habré, the former President of Chad. Mr Habré settled in Senegal shortly after he was overthrown in 1990. Under the Convention against Torture, to which Senegal is a party, Senegal was required to implement legislative reforms to criminalize all 11 acts of torture in cases where an offender was present within its territory.51 If a person alleged to have committed such offences is found within a state party’s territory, that state is further required to “immediately make a preliminary inquiry into the facts” (art. 6(2)), and to “submit the case to its competent authorities for the purpose of prosecution if the alleged perpetrator is not extradited” (art. 7(1)). Belgium submitted that Senegal had breached its international obligations by failing promptly to incorporate into its domestic laws the required provisions, and by failing to fulfil its obligations of prosecuting Mr. Habré, or alternatively extraditing him to Belgium.

Early efforts to prosecute Mr. Habré in 2000 were thwarted in the Senegalese Courts on the grounds that the Senegalese Code of Criminal Procedure did not provide for universal jurisdiction.52 In making this finding, the Dakar Court of Appeal called on the legislature to amend the Code of Criminal Procedure to bring it into conformity with the Convention against Torture.53

50 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (20 July 2012, General List No. 144). 51 See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art. 4(1); art. 5(2). 52 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (20 July 2012, General List No. 144), p. 28, para. 76. 53 Ibid. Although Senegal became bound by the Convention against Torture in 1987, it only implemented the necessary legislative reforms to bring its domestic law into alignment with its obligations under the Convention in 2007, some 20 years later. Senegal implemented a number of legislative reforms to fulfil this obligation, adopting new articles under its Penal Code to criminalise genocide, crimes against humanity, war crimes, and other violations of international humanitarian law.54 These reforms also enabled Senegal to exercise universal jurisdiction over such crimes. International Court of Justice Bernardo Sepúlveda-Amor

Finding Senegal to be in breach of two provisions of the Convention, the ICJ held that “Senegal was obliged to take without further delay the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré”.55

Senegal’s actions to comply with the judgment were swift. On the 24th of July of this year, just four days after the ICJ handed down its judgment, Senegal agreed to an African Union plan to try Habré in a special court 12 within the Senegalese justice system, presided over by justices appointed by the African Union.56

Lessons for the Diligent State

What lessons can be drawn from these five cases, and from the tensions they reveal on the domestic sphere as States endeavour to comply with their international obligations? Three brief points can be made.

First, in considering the implementation of international obligations on the domestic level, two perspectives must be kept in mind simultaneously. Through the domestic law’s, perspective tensions are evident between the legislature, the executive and the judiciary. A court in Texas may act in conflict with an Executive Order from the President of the United States; a Greek Minister may refuse to give effect to a domestic judgment waiving the immunity of a foreign State. Through the lens of international law, however, a State is responsible for the acts of every branch of government, every political sub-division, and every act of a federal, state, or local official.57

54 Ibid., p. 14, para. 28. 55 Ibid., p. 39, para. 121. 56 Human Rights Watch, ‘Senegal: Agreement on Habré Court: After World Court Ruling, Plan to Try Chad’s ex-Dictator in Senegal with African Judges’ (24 July 2012). Accessed via . 57 See discussion in Request for Interpretation of the Judgment of 31 March 2004 in the case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, diss. op. Sepúlveda-Amor, pp. 33-34, paras. 8-11. Article 4, paragraph 1 of the International Law Commission’s Articles on State Responsibility provides that “the conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.”

Secondly, the fact that the international responsibility of a state is engaged by the various —and often conflicting— acts of its organs has implications Courts, and the role of other branches ... The International Court of Justice, Constitutional Interpretation by Supreme for a State’s diligent attempts to comply with its international obligations. The breach of an international obligation may occur by an act of any one of the branches of government. Similarly, the implementation of an international obligation may occur through any one of those branches. However, the most effective means to remedy the breach or comply with the obligation is often through legislative action. This is the case where domestic legal doctrines (such as the procedural default rule in the United States) act to stymie the implementation of international obligations before the courts. It is also a wise course of action where different arms of 13 government clearly hold different interpretations as to the content of a State’s international obligations. In this regard, Italy’s recent bill to give effect to the ICJ’s judgment in the Jurisdictional Immunities case is an effective step towards fulfilling its international obligations.

Thirdly, the responsibility of the domestic judiciary should be considered. Rosalyn Higgins, the former President of the International Court of Justice, argues that “in today’s world, no domestic judge can afford to be unfamiliar with the requirements of international law”.58 On a basic level, this is because international law is ‘everywhere part of the law of the land; as much as contracts, labour law, or administrative law’.59 However this attention is also required because, as the brief survey of ICJ case law presented shows, acts of the judicial branch engage the international responsibility of the State.60 Domestic courts must therefore be attentive to the obligations that bind the State as a whole on the international level. In certain cases the court will be prevented from acting by a lack of legislative authority —the inability of Dakar Court of Appeal to allow proceedings against Hissene Habré before the appropriate amendments were made to the Senegalese Code of Criminal Procedure is one such example. However

58 Rosalyn Higgins, “The Relationship between International and Regional Human Rights Norms and Domestic Law” in Rosalyn Higgins, Themes and Theories: Selected Essays, Speeches and Writings in International Law (OUP 2009), p. 545. 59 Ibid. 60 Ibid., p. 546. these cases call for an attentive, cooperative approach between the branches of government to ensure that international obligations are respected. Such an approach would be alive to the requirements of international law, and to the appropriate role that should be played by each of a State’s organs in ensuring their fulfillment. International Court of Justice Bernardo Sepúlveda-Amor

14 Report of the African Court on Human and Peoples’ Rights on the relevant aspects regarding the judiciary in the protection of Human Rights in Africa

Sophia A.B. Akuffo

President of the African Court on Human and Peoples’ Rights

Introduction

The African Union1 has endeavored to put in place a human rights regulatory framework, which comprises the basic African human rights instrument which is the African Charter on Human and Peoples’ Rights (the Charter), supplemented by other treaties, protocols and conventions such as the African Charter on the Rights and Welfare of the Child, The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the African Charter on Democracy, Elections and Governance, the African Youth Charter and the African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa. This regulatory framework is implemented by various institutional structures, among which the Court ranks as the only judicial organ mandated to protect human rights on the Continent through its decisions and judgments.

Establishment of the Court

In June 1998, the then Organization of African Unity adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol). This Protocol came into force in January 2004 when it received the required

1 This process started with the Organization of African Unity (OAU) adopting a raft of human rights instruments, and then transforming itself into an African Union, through the Constitutive Act of the Union, which vision is of integration on the continent predicated on democratic and human rights principles. 15 minimum fifteen ratifications. Consequently, in January 2006, the first judges of the Court were elected and, in July 2006, they were formally sworn in and assumed their duties.

The composition and role of the Court

Composition and Peoples’ Rights Sophia A.B. Akuffo African Court on Human

The Court is composed of eleven Judges, elected in their individual capacities from among eminent African jurists and judges of proven integrity, qualifications and experience; having been nominated by individual Member States. The election is also based on equitable representation of gender, the five major African regions, and major legal systems and jurisdictions. No two Judges may be from the same Member State.

The current composition of the Court is as follows: Hon. Justice Sophia A.B. Akuffo, President (Ghana), Hon. Fatsah Ouguergouz, Vice President 16 (Algeria), Hon. Bernard M. Ngoepe (South Africa), Hon. Gerard Niyungeko (Burundi), Hon. Augustino S. L. Ramadhani (Tanzania), Hon. Duncan Tambala (Malawi), Hon. Elsie N. Thompson (Nigeria), Hon. Sylvain Ore (Cote d’Ivoire), Hon. El Hadji Guisse (Senegal) and Hon. Ben Kioko (Kenya). [[Hon. Joseph N. M. Mulenga (Uganda) (deceased)]]

Role in contentious matters (article 3)

The Court has jurisdiction to deal with all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the States concerned. In this regard, and pursuant to Article 9, the Court also has power to promote amicable settlement of cases pending before it in accordance with the provisions of the Charter.

Role in advisory jurisdiction (article 4)

The Court may, at the request of a Member State of the African Union, any of the organs of the African Union, or any African organization recognized by the African Union, provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the African Commission on Human and Peoples’ Rights. Applicable law

Pursuant to Article 7 of the Protocol, in the determination of matters before it, the Court applies the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned. In this respect, the Charter itself, inter alia provides that, in the protection of the rights enshrined in the Charter, recourse may be had to the following sources of law: Report of the African Court on Human and Peoples’ Rights the relevant aspects regarding the judiciary ... a. The provisions of African instruments on human and peoples’ rights; b. The Charter of the United Nations; c. The Charter of the Organization of African Unity, (which is now the Constitutive Act of the African Union); d. The Universal Declaration of Human Rights; e. Other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights; 17 f. As well as the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the Charter are members. (Cfr. article 60. of the Charter).

Article 61 of the Charter also provides that consideration should be had, “as subsidiary sources to determine the principles of law, to other general or special international conventions, laying down rules expressly recognized by Member States of the Organization of African Unity (now the AU), African practices consistent with international norms on human and people’s rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine.”

Findings and judgments of the Court

The judgment of the Court is final and not subject to appeal. However, the Court may review its judgments. In addition, the Court may also interpret its own judgments and decisions. Where the Court determines that there has been a violation of human and/or peoples’ rights, it may issue appropriate orders to remedy the violation, including the payment of fair compensation or reparation. In cases of extreme gravity and urgency, and when deemed necessary to avoid irreparable harm to persons, the Court may adopt such provisional measures as shall be necessary... Progress and developments in the Court

2006-2008

During this period the Court worked mainly on its administrative operationalization. At the time the judges assumed duty the Court had no registry, no offices or equipment and resources, no budget or any rules of and Peoples’ Rights Sophia A.B. Akuffo

African Court on Human Court. The judges, therefore, during this time, among other things, negotiated a host agreement for the Seat of the Court in Tanzania, devised a registry structure and recruited registry staff, prepared and submitted budget proposals to fund the Court’s functions and drafted and adopted its Interim Rules of Procedure.

2008-2010

By October 2008 the Court had the minimum administrative facilities in place and was ready to discharge its judicial function. Unfortunately the

18 Court received only one application, Application 001/2008 Michelot Yogogombaye v. Republic of Senegal, brought by an individual against the Republic of Senegal in relation to its intended prosecution of the former President of Chad Mr. Hissene Habre. The Court found it had no jurisdiction as Senegal had not deposited the declaration in terms of Article allowing individuals and non-governmental organizations (NGOs) to bring cases against it at the Court.

2010-to date

However, since the beginning of 2011, a steadily increasing number of cases have been filed in the Court. As at September 2012, the Court had received twenty-one (21) applications in contentious matters during this period, and three (3) requests for advisory opinions, and conducted two public hearings on contentious issues of public interest. The Court has disposed of 12 of the contentious applications and two of the requests for advisory opinion. In fact, at its 25th Ordinary Session held in June 2012, the Court delivered, in public, its judgment in the public hearing it conducted at its 24th Ordinary Session in March 2012 in respect of Application 001/2011—Femi Falana v. African Union. With a total of 22 applications received, the Court has, therefore, started to develop its case law and jurisprudence.

Seizure of the Court

The Protocol and the Rules of Court make provision for ease of seizure of the Court by requiring no filing or administrative fee to be paid, allowing for seizure by post, fax, email or in person, and requiring an applicant to file only one original copy in any African Union language, the Court being responsible for extra copies and translations and consequent costs.

Of the twenty two (22) applications:

a. 17 are by individuals b. 3 are by NGOs, Report of the African Court

c. 2 are referrals by the African Commission on Human and Peoples’ on Human and Peoples’ Rights the relevant aspects regarding the judiciary ... Rights (against Libya and Kenya).

Further, of these 22 applications,

d. 3 are against non-State Parties to the Protocol (Morocco, Sudan and Cameroon), e. 3 are against non-state entities (the African Union (1) and the Pan African Parliament (2)); and 19 f. 16 are against State Parties to the Protocol—6 of which are against 3 States (Burkina Faso, Malawi and Tanzania) that have made the declaration in terms of Article allowing individuals and non- governmental organizations (NGOs) to bring cases against it at the Court.

And finally,

g. A total of 13 contentious cases and 2 requests for advisory opinions have been disposed of.

Unfortunately, the majority of cases received by the Court either involve States, that have not ratified the Protocol or are brought by individuals and NGOs against States that have not deposited the declaration required by Article 34(6) of the Protocol that would allow individuals and NGOs to bring directly to the Court claims against the States.

Of the 54 African Union Member States, only 26 are States Parties to the Protocol and of those 26, only 5 have deposited the declaration required in terms of Article 34(6) thereof. This affected the following applications where the Court found that it did not have jurisdiction ratione personae over the applications:

a) Application 001/2008—Michelot Yogogombaye v. Republic of Senegal, b) Application 002/2011—Soufianne Ababou v. Democratic People’s Republic of Algeria, c) Application 005/2011—Daniel Amare and Mulugeta Amare v. Republic of Mozambique and the Mozambique Airlines, d) Application 008/2011—Ekollo Moundi Alexandre v. Cameroon and Nigeria, e) Application 012/2011—Convention Nationale des Syndicats du and Peoples’ Rights Sophia A.B. Akuffo African Court on Human Secteur Education (CONASYSED) v. République of Gabon f) Application 002/2012—Delta International Investments S.A. & Mr. and Mrs. AGL de Lang v. Republic of South Africa, g) Application 004/2012—Mr. Emmanuel Joseph Uko and others v. Republic of South Africa h) Application 005/2012—Amir Adam Timan v. Republic of Sudan

In some applications, the Court found it lacked jurisdiction ratione personae since the NGO making the application did not have observer status with the Banjul Commission as required by article 5(3) of the Protocol. See 20 Application 006/2011—The Association of African Lawyers for Good Governance v. Republic of Cote D’Ivoire and Application 012/2011— Convention Nationale des Syndicats du Secteur Education (CONASYSED) v. Republic of Gabon.

In other applications, the Court lacked jurisdiction ratione personae for the reason that the Respondent is not a member of the African Union (See Application 007/2011—Youssef Ababou v. The Kindgom of Morocco) or is an entity other than a State Party to the Protocol (See Application 001/2011— Femi Falana v. African Union).

In one application in respect of matters of breach of an employment contract, the Court found that it lacked jurisdiction ratione materiae. (See Application 010/2011—Efoua Mbozo’o Samuel v. Pan African Parliament.

On the other hand, despite this, in accordance with article 27(2) of the Protocol and Rule 51 of the Rules, the Court may issue provisional measures at the request of a party or on its own motion. In such instances the Court has to establish that it has prima facie jurisdiction (See Application 007/2012—Baghdadi Ali Mahmoudi v. Republic of Tunisia) and it need not hear the parties. Thus, the Court, acting suo motu, issued provisional measures in Application 004/2011—African Commission on Human and Peoples’ Rights v. Great Socialist People’s Libyan Arab Jamahiriya which was an application alleging massive violations of the right to life and integrity of the person. Major challenges confronting the Court

Though it has started developing its jurisprudence, the Court faces certain challenges. The main challenges affecting the Court stem from the regime of the Protocol:

a. The requirement for ratification; b. The low rate of ratification; and c. The requirement that for individuals and NGOs to directly bring a Report of the African Court on Human and Peoples’ Rights the claim before the Court, the Respondent State must have made the relevant aspects regarding the judiciary ... declaration required under article 34(6) allowing them to do so.

Of the 54 African Union Member States, only 26 are States Parties to the Protocol and of those 26, only 5 have deposited the declaration required in terms of article 34(6). And as is apparent from the case analysis given above, the majority of applications received by the Court either involve States that have not ratified the Protocol or are brought by individuals and NGOs against States that have not deposited the declaration in terms of article 21 34(6) allowing individuals and NGOs to directly bring claims against the States.

In addition, there is an overall lack of awareness about the very existence of the Court among Africans across the board, let alone adequate knowledge about who may access the Court, how they may do so and the nature of applications that might be brought before the Court.

The response of the Court to the challenges

It is in this regard, therefore, that the Court has taken the unusual policy decision to strategically improve its visibility and accessibility to all relevant stakeholders by undertaking activities that inform them of its existence, its mandate and how it may be utilized. Starting with a Colloquium of Human Rights Courts and Similar Institutions held in October 2010,2 the Court has since held seminars and conferences in Tanzania, Malawi,3 Burkina Faso, Mali, Uganda, South Africa, Mozambique, Gabon, Nigeria, Ghana, Burundi and Ethiopia4 and Senegal, and plans to continue to sensitize all stakeholders on how they may utilize the Court for enhanced human rights protection.

2 Colloquium of Human Rights Courts and Similar Institutions, Arusha, Tanzania, 4-6 October 2010. 3 Continental Conference on the Promotion of the Court, Lilongwe, Malawi, 9-11 March 2011. 4 Regional Sensitization Seminar on the African Court for East and North Africa 22-24 August 2012. It is worthy of note that the increase in the number of applications to the Court, since 2011 coincides with the commencement of the Court’s sensitization program.

Another part of the Court’s strategy of enhancing access by stakeholders is by the development of its Strategic Plan for 2012-2015 in which it gives a significant place to interactions and initiatives with its publics. The Court and Peoples’ Rights

Sophia A.B. Akuffo involved a cross-section of social partners in the development of this plan. African Court on Human Further, the Court, in accordance with article 10(2) of the Protocol, is elaborating a legal assistance policy and scheme.

The institutional future of the Court

Before concluding, this report must mention two developments that will affect the future of the Court:

The Merged Court

On 1 July 2008, the Eleventh Ordinary Session of the Assembly of Heads of 22 State adopted the Protocol on the Statute of the African Court of Justice and Human Rights—merging the Court with the African Court of Justice, to create a unified Court with original jurisdiction over human rights and other civil matters, and appellate jurisdiction in the enforcement of the provisions of the African Union Staff Rules and Regulations. This Protocol requires the deposit of instruments of ratification by fifteen Member State to enter into force, and as at July 2012, there were five (5) ratifications.

Criminal jurisdiction

Additionally in January 2009, the Assembly of Heads of State, by decision Assembly/AU/Dec. 213 (XII) mandated the African Union Commission, in consultation with the Court and the Commission, to study the implications of extending the jurisdiction of the Court to cover international crimes. The results of the study process have seen proposals being made for the amendment of the Protocol on the Statute of the African Court of Justice and Human Rights to create a criminal jurisdiction section.

Conclusion

The Court constitutes one of Africa’s most valuable resources for timely adjudication of disputes related to human and peoples’ rights, and for affording effective remedies for the violation of these rights. Though seriously constrained by the challenges already mentioned, the Court is positioned in a state of readiness to receive all applications and requests with which it can competently deal and to tackle head on those challenges and constraints it confronts. The effectiveness of Human Rights protection in a multilayered european system1

Marc Bossuyt

President of the Constitutional Court of Belgium

The interplay between the constitutional courts, on the one hand, and the European Courts in Luxembourg and Strasbourg, on the other hand, is of primary importance in order to guarantee an effective protection of human rights.

The relationship between constitutional courts and the Court of Luxembourg

In particular since the Charter of Fundamental Rights of the European Union became binding, the Court of Justice of the European Union in Luxembourg extends its full effect doctrine,2 designed several decades ago in a framework consisting of merely economic principles, to human rights.

The Court of Luxembourg developed in its Rheinmuhlen judgment of 16 January 1974 a procedural principle allowing the domestic judge to set aside any domestic rule standing between him and his ‘widest discretion’ to refer preliminary questions on the interpretation of EU law to the Court.3

1 This contribution can be read in M. Bossuyt & W. Verrijdt, “The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki judgment”, 7 European Constitutional Law Review (EuConst), 2011, pp. 355-391. 2 This doctrine has been called a general principle of EU law (ECJ, 13 March 2007, Unibet, C-432/05, para. 37; ECJ, 15 April 2008, Impact, C-268/06, para. 43). See M. Claes, The National Courts’ Mandate in the European Constitution, Hart, 2006, pp. 124-140. 3 166/73, para. 2. See also ECJ, 16 December 2008, Cartesio, C-210/06, para. 88; ECJ, 9 March 2010, ERG, C-378/08, para. 32. 23 The implications of this principle stretch well beyond the preliminary reference procedure. The Court obliges all domestic judges to immediately take all action required in order to guarantee EU law’s full effect, and it stresses that the binding effect of a constitutional judgment does not alter this obligation.4 This full effect doctrine guarantees two of the Court’s main interests: a) the necessity of the uniform application of EU law in all 5 Marc Bossuyt Member States (Foto-Frost judgment of 22 October 1987); b) the need for original preliminary questions on the validity and the interpretation of EU Constitutional Court of Belgium law (Mecanarte judgment of 27 June 1991).6

Both interests apply, however, equally at the domestic level. If a constitutional court would be deprived of original questions on legal provisions’ constitutionality, it can neither develop its jurisprudence, nor perform its protective task, essential to the rule of law, of filtering unconstitutional norms from the legal order.7 The coherence of the domestic legal order may be considered even more important than the dogmatic question on precedence.8 This coherence would be in jeopardy if a constitutional court

24 could only fully exercise its tasks insofar as legal provisions do not possess a link with EU law.

The full effect of constitutional law is not less important than the full effect of EU law. None of both main actors, the Court of Justice and national constitutional courts, should undermine each other’s effectiveness.9 However, in systematically stressing the full effect of EU law, allowing10 domestic judges to escape domestic preliminary rulings procedures and to disobey constitutional judgments, the Luxembourg Court allows the stakes it demands for EU review to be undermined for constitutional review. Some recent judgments prove that the Luxembourg Court still sees its full effect doctrine as an absolute one.

4 ECJ, 27 June 1991, Mecanarte, C-348/89, para. 46; ECJ, 19 November 2009, Filipiak, C-314/08; ECJ, 8 September 2010, Winner-Wetten, C-316/07. 5 C-314/85, paras. 15-20; see also ECJ, 10 Jan. 2006, IATA and ELFAA, C-344/04, para. 27, and ECJ, 18 July 2007, Lucchini, C-119/05, para. 53. 6 C-348/89, para. 45. 7 Guaranteeing this supply of cases was one of the main reasons behind the Belgian priority rule. Originality is also the main criterion for transferring a “question prioritaire de constitutionnalité” to the Conseil constitutionnel. 8 A. Alen, «De Grondwet, hoogste rechtsnorm», in Itinéraires d’un constitutionnaliste. En hommage au professeur Francis Delpérée, Brussels, Bruylant, 2007, pp. 105-113, at p. 109; F. Delpérée, «Les rapports de cohérence entre le droit constitutionnel et le droit international public. Développements récents en Belgique’, Revue française de droit constitutionnel, 1999, p. 734. 9 W. Verrijdt, «Should the EU Effectiveness Principle Be Applied to Judge National Constitutional Review Procedures», in Liège, Strasbourg, Bruxelles: parcours des droits de l’homme, Liber amicorum Michel Melchior, Limal, Anthémis, 2010, p. 555. 10 This possibility cannot be turned into an obligation (ECJ, 19 January 2010, Kucukdeveci, C-555/07, paras. 54-55; ECJ, 5 October 2010, Elchinov, C-173/09). In the Elchinov case, Advocate General Cruz Villalon had suggested that the Court should modify its effectiveness jurisprudence, since several developments in EU law render it less necessary to turn the national judicial hierarchy upside down.11 He did mention alternatives such as a civil damages claim based on the judge’s erroneous application of EU law12 or the Commission introducing infringement procedures against Member 13 States for non-compliance caused by the Judiciary. He stated that the full european system effect doctrine is less proportional than the alternatives, and suggests the protection in a multilayered Court, pointing at its increasing workload and at the national procedures’ The effectiveness of Human Rights equivalence, to reconsider the Rheinmuhlen case-law. His interpretation of effectiveness allows all national instances to effectively perform their review.14 The Court, however, did not even mention this suggestion in its judgment in the same case. It recalled its Rheinmuhlen case-law and other aspects of its full effect doctrine.15 It concluded that a lower judge may never be bound by a the judgment of a higher court which refers the case back to it if that higher court has violated EU law (Elchinov judgment of 5 October 2010). 25 In the Winner-Wetten case, the German Constitutional Court had annulled a public monopoly on sports betting because of a violation of article 12 of the German Constitution. In that case, the Bundesverfassungsgericht nevertheless maintained the effects of the annulled provision in order to grant the legislature sufficient time to take other, constitutional, measures against gambling.16 The Luxembourg Court, however, found that such rules, although they are of a constitutional nature, may not undermine the unity and effectiveness of EU law, and requested the referring judge to ignore the maintaining of effects ordered by the Constitutional Court (Winner-Wetten judgment of 8 September 2010).17

In its Kücükdeveci judgment of 19 January 2010, the Court allowed a domestic judge, on the basis of his ‘widest discretion’ to refer a case to it, to set aside proprio motu a constitutional judgment which had stated that the domestic legislation did not violate the prohibition of discrimination on grounds of age.18 In its Melki judgment of 22 June 2010, the Court did not

11 Concl. Adv.-Gen. P. Cruz Villalon in C-173/09, Elchinov, 10 June 2010, para. 27. 12 ECJ, 30 September 2003, Kobler, C-224/01; ECJ, 12 November 2009, Commission v. Spain, C-154/08, paras. 64-65. 13 ECJ, 9 December 2003, Commission v. Italy, C-129/00. 14 W. Verrijdt, op. cit., p. 571. 15 ECJ, 5 October 2010, Elchinov, C-173/09, paras. 26-31. 16 BVerfGE 28 March 2006, n° 1 BvR 1054/01. 17 C-409/06, para. 61. See also ECJ, 19 November 2009, Filipiak, C-314/08. 18 ECJ, 19 January 2010, Kucukdeveci, C-555/07, paras. 52-55. downsize this full effect doctrine.19 It nevertheless states that one of its features (the immediateness rule) can be replaced by another feature (provisional measures), as long as the full effect of EU law remains guaranteed.

The relationship between constitutional courts

Marc Bossuyt and the Court of Strasbourg Constitutional Court of Belgium The balance between the effectiveness of EU review and the effectiveness of constitutional review seems to be lost. Moreover, besides the full effect of EU review and of constitutional review, the effectiveness of human rights also has broader aspects, both procedural and material, which can be read in the Strasbourg jurisprudence:

1) The European Convention on Human Rights guarantees rights which are not ‘theoretical or illusory’, but ‘practical and effective’.20 This general rule of effectiveness applies to all human rights provisions, 26 also the ones guaranteed in most national constitutions and in the Charter of Fundamental Rights of the EU.21 2) The Strasbourg Court read in article 6 of the European Convention a right of access to court and considers it as an essential feature of the rule of law.22 This essential right comprises both the procedure itself and the judgment’s execution.23 It implies a right of recourse to a court or tribunal in the substantive sense of the judicial function for all claims concerning civil rights and obligations.24 The effective right to access to court includes the right to obtain a determination of the dispute by the competent court.25 Although the Convention does not oblige its Member States to install constitutional review,26 the right of access to court implies that, if constitutional review does exist, access to it may not be hindered. 3) Article 13 of the Convention guarantees the right to an effective remedy for all arguable claims about a human rights violation. This

19 Aziz Melki and Selim Abdeli, C-188/10 and C-189/10. 20 E.g., ECHR, 25 April 1978, Tyrer v. United Kingdom; ECHR, 18 February 1999, Matthews v. United Kingdom; ECHR, GC, 4 February 2005, Mamatkulov and Askarov v. Turkey; ECHR, 10 February 2009, Sergey Zolotukhin v. Russia. 21 ECJ, 13 March 2007, Unibet, C-432/05, para. 37; ECJ, 15 April 2008, Impact, C-268/06, para. 43. 22 ECHR, 21 February 1975, Golder v. United Kingdom, paras. 34-35. 23 ECHR, 22 May 2003, Kyrtatos, para. 30; ECHR, 23 October 2003, Timofeyev, para. 40. 24 ECHR, 16 December 1992, Geouffre de la Pradelle v. France, paras. 36-37; ECHR, 22 May 2001, Baumann v. Germany, para. 39. 25 ECHR, 10 July 2003, Multiplex v. Croatia, para. 45. 26 ECHR, 21 February 1986, James and others v. United Kingdom. principle requires either the prevention of the violation or an adequate redress.27 The Strasbourg Court has also repeatedly

stressed that the exercise of domestic remedies may not be unjustifiably hindered.28 In its Kudla judgment of 26 October 2000, the Court stated that domestic human rights mechanisms must attain a high standard of effectiveness because of the subsidiarity

principle. According to the Court, the articles 1, 13 and 35 of the european system Convention enshrine the principle that national institutions must protection in a multilayered have the opportunity to redress human rights violations before a case is taken to the supranational judge.29 The right to an effective The effectiveness of Human Rights remedy is also linked to the obligation to exhaust domestic remedies before addressing the Strasbourg Court,30 because this obligation only applies to effective remedies.31

***

Strasbourg’s effectiveness criterion is clearly distinct from Luxembourg’s.

But apart from being distinct, both effectiveness criteria might also be 27 conflicting. The Luxembourg Court’s applying a procedural logic in which the case’s judge is the natural judge of EU law, might indeed weaken a Member State’s remedial powers in the light of the ECHR, as required by the Strasbourg Court. This is mainly because the Luxembourg reasoning ignores the specific features of centralized constitutional review,32 such as its erga omnes effect,33 its accessibility for complainants, third party interveners and the responsible government, its expertise and, as far as Belgium is concerned, its systematically taking into account Strasbourg case-law through its analogous human rights jurisprudence.

One might wonder whether, after the EU’s accession to the ECHR (which is currently being prepared), the Luxembourg Court can still maintain its full effect doctrine against these characteristics of constitutional review. It is to

27 Kudla v. Poland, para. 158. 28 ECHR, 18 December 1996, Aksoy v. Turkey, par. 95; ECHR, 27 June 2000, Ilhan v. Turkey, para. 97; ECHR, 26 October 2000, Kudla v. Poland, para. 157; ECHR, 1 June 2004, Altun v. Turkey, para. 70. 29 ECHR, 26 October 2000, Kudla v. Poland, para. 155; see also ECHR, 15 January 2009, Burdov v. Russia. 30 P. Leach, Taking a Case to the European Court of Human Rights, OUP, 2005, p. 165. 31 ECHR, 16 September 1996, Akdivar v. Turkey, para. 69. 32 On the effectiveness of French constitutional review, see G. Drago, Contentieux consdtitutionnel français, PUF, 2011, pp. 591-671. 33 Paradoxically, the Melki judgment even turns the erga omnes effect of constitutional review into a counterargument, by stressing that the annulment of legal provisions transposing secondary EU law would have the effect that a judge in that country cannot question the Luxembourg Court on the secondary EU law’s validity (ECJ, 22 June 2010, Aziz Melki and Selim Abdeli, C-188/10 and C-189/10, para. 55; W. Verrijdt, op. cit., p. 561). be regretted that the Melki judgment does not contain a single reference to these characteristics, nor to the Strasbourg effectiveness principle. Nevertheless, any hindrance to the effectiveness of constitutional control, apart from touching upon the right of access to court, constitutes a hindrance to the effectiveness of human rights protection. It should not be the Luxembourg Court’s call to sacrifice that effectiveness for the sake of the

Marc Bossuyt merely procedural effectiveness of EU law.34 Constitutional Court of Belgium Furthermore, one might wonder why it is so important for the Court of Justice to receive preliminary questions in case of coincidence of human rights. Since it may not examine a national legal provision’s conformity with EU law,35 its only job is to interpret or invalidate EU law. In case of human rights, this interpretation is, however, already sufficiently clear from the Strasbourg Court’s case-law, which must be implemented by all national judges, including the Constitutional Court, and by the Luxembourg Court.

Conclusion 28

The Luxembourg Court developed its doctrines on primacy and full effect in the 1960s and 1970s, when the European Community’s only competences concerned economic law. In those days, it was necessary to develop these techniques, urging national judges to fully cooperate, because other enforcement options were absent. In those days, most Member States did not possess a constitutional court, a fortiori not a fully effective one, and this situation explains the Luxembourg Court’s choice for the ordinary and administrative judge.

The Luxembourg Court’s human rights competence was developed later,36 alongside or even after a new wave of constitutionalism leading to the establishment or improvement of constitutional review. Therefore, it is not necessary to apply the Rheinmuhlen and Simmenthal logic in the field of human rights. The full effect of human rights is indeed, both within and outside the scope of application of EU law, already guaranteed by three distinct mechanisms, i.e., constitutional review, treaty review by the ordinary and administrative judge, and the Strasbourg Court’s supervision.

34 Ibid., p. 561. 35 ECJ 23 January 1975, Van der Hulst, C-51/74; ECJ 22 Oct. 1998, IN.CO.GE ’90 Srl, C-10/97. 36 ECJ, 12 November 1969, Stauder, 29/69, para. 6; ECJ, 14 May 1974, Nold v. Commission, 4/73, para. 13; Declaration 5 April 1977 by the Parliament, the Council and the Commission (Pb. 1977, C-103/1). The EU Treaty only anchors the ECHR in its Art. 6.2 since 1992. The Charter of Fundamental Rights of the European Union was only proclaimed in 2000 and it only possesses binding effect since 2009. Furthermore, the Luxembourg Court has always refused to balance its doctrines on the full effect and uniform application of EU law, which find no treaty basis other than article 267 TFEU, with other constitutional principles of EU law, most of which are enshrined in primary EU law.37 Today, 25 out of 27 EU Member States possess some form of constitutional review, 21 of which have opted for exclusive centralized review.38 The concept of constitutionalism is, by nature, the most fundamental ‘common european system constitutional tradition’ (article 6.3 TEU and article 52.4 Charter). The protection in a multilayered organisation and functioning of constitutional review is also part of the hard The effectiveness of Human Rights core of the exclusive national competences, since nothing is closer linked to the member states’ national history, culture and traditions than their own institutions and the way in which legal protection against the government is offered. These choices are thus protected under the principle of institutional autonomy and respect for national identity, enshrined in article 4.2 TEU and in article 52.6 of the Charter, by the principle of conferral, laid down in article 5.2 TEU and articles 51.1 and 51.2 of the Charter, by the subsidiarity principle in article 5.3 TEU, and by the principle of procedural autonomy. 29

Taking into account these principles does not have to lead to abandoning the full effect doctrine. As stated by Advocate-General Cruz Villalon, and as the Court proved in the Melki judgment, effectiveness can be obtained using several techniques. The techniques Advocate-General Cruz Villalon proposed39 are indeed less intrusive into national constitutional and procedural autonomy and into the effectiveness of human rights protection. Another asset of his solution is that it obtains full effect of EU law by techniques familiar to the Member States. This approach seems to be much more in accordance with the aforementioned constitutional principles of EU law.

Nevertheless, the Luxembourg Court’s aim of being able to perform a human rights review of secondary EU law still is a legitimate one. It only needs to be restated in a framework which takes into account parallel legitimate concerns for the constitutional courts and the Strasbourg Court.40 As long as both the Luxembourg Court’s review over secondary EU law and the constitutional courts’ review over their transposition proceed after these norms are adopted, the risk of collision remains.

37 W. Verrijdt, op. cit., pp. 562-570. 38 In eighteen of these countries, this task is conferred upon a separate constitutional court, whereas in Cyprus, Estonia and Ireland, the Supreme Court fulfils this function. 39 Concl. Adv.-Gen. P. Cruz Villalon in C-173/09, Elchinov, 10 June 2010, para. 27. 40 W. Verrijdt, op. cit., pp. 571-572. It might therefore be recommendable to install, before the Luxembourg Court, a binding a priori human rights review of secondary EU law. Such an a priori review is familiar to certain Member States, the Conseil constitutionnel being the best example. According to article 61 of the French Constitution, the President, the Prime Minister, the Presidents of the Assemblée and the Sénat, or sixty députés or sixty sénateurs, can refer

Marc Bossuyt an adopted legal provision to the Conseil constitutionnel before its promulgation.41 The Conseil then has to judge within a one month delay Constitutional Court of Belgium whether the legal provision is constitutional. A legal provision declared unconstitutional cannot be promulgated.42 For lois organiques, an article 61 examination is mandatory. Apart from that, article 54 of the French Constitution grants the same persons the right to refer a treaty, before its approval,43 to the Conseil constitutionnel.44 If the Conseil considers the treaty to be unconstitutional, it cannot be approved or ratified without amending the Constitution. If, however, the a priori constitutional control is not asked for, the treaty is iuris et de iure considered to be in accordance to the Constitution.45 30 An a priori review of secondary EU law,46 would, however, not depend from an optional referral, but would constitute a mandatory step in their adoption process. All legal instruments binding the Member States would be subject to this procedure, regardless of whether they possess direct effect. The most likely set of reference norms is the Charter of Fundamental Rights, but for the human rights which correspond to an ECHR provision, the actual state of the Strasbourg jurisprudence should constitute the minimum level of protection. The respect for the constitutional principles common to the Member States and the general principles of EU law should also be part of

41 G. Drago, op. cit., pp. 311-314. The Court declines its competence on the basis of this procedure if the law has already been promulgated (C.C., n° 97-392, 7 November 1997, Réforme du service national, Rec., 1997, p. 235), except when confronted with a non- promulgated legal provisions based on an older one (C.C. n° 89-256 DC, 25 July 1989, TGV Nord, Rec., 1989, p. 53). 42 If only some provisions are unconstitutional, the Conseil can decide whether the rest of the Act concerned still has any significance (C.C. n° 85-196 DC, 23 August 1985,Rec. , 1985, p. 63). 43 C.C., n° 92-312, 2 Sept. 1992, Traite sur l’Union europeenne, Rec., 1992, p. 76. 44 M. Claes, op. cit., pp. 469-476; J. Gicquel and J.-E. Gicquel, Droit constitutionnel et institutions politiques, Montchrestien, 2010, pp. 516-517; G. Drago, op. cit., pp. 552-524. In its constitutional review, the Conseil does, however, take into account France’s prior international obligations, especially in the field of EU law (C.C. n° 92-308 DC, 9 April 1992, Maastricht, Rec., 1992, p. 55; C.C., n° 2007-560 DC, 20 Dec. 2007, Lisbon, Rec., 2007, p. 459). 45 C.C., n° 77-90 DC, 30 Dec. 1977, Rec., p. 44; B. Chantebout, Droit constitutionnel, Sirey, 2007, p. 569; G. Drago, op. cit., pp. 520-522. 46 Such a procedure would require a treaty amendment (M. Claes, op. cit., pp. 538-541). It is not certain if the Luxembourg Court would be interested in such a procedure (H. Schepel and E. Blankenburg, ‘Mobilizing the European Court of Justice’, in G. De Búrca and J. Weiler (eds.), The European Court of Justice, OUP, 2001, p. 41. this a priori review. If the Court disallows a draft or parts of it, it or they may not be adopted.

It is evident that a general human rights conformity check will be less profound than the a posteriori review by the Luxembourg Court, because it lacks focus: some specific problems will only be noticed after they rise in a

specific setting. The Luxembourg Court’s preliminary jurisdiction on the european system same provisions of secondary EU law should therefore not be excluded, but protection in a multilayered it might be made subject to an originality check by the referring judge, who The effectiveness of Human Rights can examine whether the question which has risen, was sufficiently dealt with during the a priori control, or whether the circumstances have changed since that control.

As far as the review by constitutional courts on transposition acts is concerned, both the Conseil constitutionnel47 and the Bundesverfassungsgericht48 have announced that, although they will in principle not examine a transposition act’s constitutionality, they will censure parts of secondary EU law which are ultra vires or which violate the national constitutional identity.49 In a 31 multilevel setting, this option is recommendable: opposing all constitutional norms to secondary EU law would be too large a hindrance to the unity of EU law, but EU law may not run counter to the fundamentals of national constitutional law. Such an a posteriori constitutional review of EU law must, however, be conducted europarechtsfreundlich and zuruckhaltend (with restraint): the constitutional judge should first set up a preliminary dialogue with the Luxembourg Court and, after a negative answer by that Court, it should only disallow parts of secondary EU law if the violation of the constitutional identity or the principle of conferral is ‘sufficiently qualified’.50

Apart from competence and national identity issues, and apart from the emergence of original questions, the constitutional courts should not be able

47 C.C. n° 70-39 DC, 19 juni 1970, Ressources propres des Communautés européennes, Rec., 1970; C.C. n° 2004-505 DC, 19 november 2004, Charte des droits fondamentaux, Rec., 2004, p. 173; C.C. n° 2006-540, 27 juli 2006, Droit d’auteur et droits voisins dans la société de l’information, Rec., 2006, p. 88; C.C. n° 2010-605, 12 mei 2010, Jeux de hasard; C.C. n° 2010-79 QPC, 17 december 2010, Kamel Daoudi; S. Rossetto, “L’Union européenne face à l’identité constitutionnelle de la France” in P. Gélard e.a. (eds.), Constitutions et pouvoirs: Mélanges en l’honneur de Jean Gicquel, Parijs, Montchréstien, 2008, p. 446. 48 BverfG 30 June 2009, 2 BvE 2/08, Lissabon-Urteil, BVerfGE, band 123, p. 267; BVerfG 6 July 2010, 2 BvR 2661/06, Honeywell. 49 Adde the Polish (SK 45/09, 16 November 2011) and the Czech (Pl. ÚS 5/12, 14 February 2012) constitutional courts. This Czech Constitutional Court’s response to the ECJ’s Landtova judgment (C-399/09) was the first one in which a constitutional court declared a Luxembourg interpretation of EU law ultra vires. 50 A. Vosskuhle, ‘Multilevel Cooperation of the European Constitutional Courts-Der Europäische Verfassungsgerichtsverbund’, EuConst, 2010, pp. 175-198. The criterion of the ‘sufficiently qualified violation” was developed by the Luxembourg Court in theFrancovich jurisprudence. to call into question the result of the Luxembourg Court’s a priori review. If the norm of secondary EU law leaves the Member States some margin, the choice made by the legislator must nevertheless respect the constitutional rights.

In stressing the absolute character of its full effect doctrine, safeguarding

Marc Bossuyt its own interests, the Court of Justice of Luxembourg has endangered the same interests for the other mechanism. This other mechanism, however,

Constitutional Court of Belgium seems to be able to provide for the strongest and most effective human rights protection, as required by the ECtHR. The Luxembourg Court should not apply its full effect doctrine to the same extent in human rights matters, but should accept and sustain the effectiveness of domestic human rights protection by constitutional courts. In human rights cases, a distinction needs to be made between its task of interpreting EU law and its task of invalidating secondary EU law. In the first hypothesis, its Rheinmuhlen and Simmenthal case-law should be replaced by a posteriori techniques guaranteeing the same effectiveness of EU law. In the second hypothesis,

32 its aim of receiving a fresh supply of cases enabling it to conduct human rights review of secondary EU law can be obtained by a mandatory a priori review. Primacy or Supremacy of International and European Law in the context of contemporary constitutional pluralism

Evgeni Petrov Tanchev

President of the Constitutional Court of the Republic of Bulgaria

Introductory Remarks

This brief report focuses on the national constitutions and supranational legal orders interaction in the context of contemporary constitutional pluralism and multilevel governance instead of the more traditional and much broader issue of comparative prospective of interaction between public international law, EU law and national legal systems.

The reason the first prospective enjoyed preference over the latter is the theoretical speculation that after experiencing different stages of constitutionalization it seems that the terms constitutional pluralism and multilevel governance would be more indicative to prospective trend in the future development of supranational legal orders. This approach however reduces the sphere of analysis by excluding the legal cooperation based on customary international law and national legal systems concentrating on international treaties, supranational and national poly constitutional or mono constitutional acts. It leaves aside issues that are of not less importance to the interaction between the legal orders like the customary and principles of international law and soft supranational law especially concerned with commitments and soft law instruments.

No doubt the analysed phenomena should be reduced in order to stay within the limits of the length of the present report and to better focusing of the lense on their relationships and dependencies. 33 Another basic notion attempts to clarify the terminological difference in this report between primacy and supremacy. Both of these terms have been

applied interchangeably or treated as synonyms by the academia. Simultaneously or alternately both have been ascribed to the International or EU Law.

Contemporary supranational legal orders appear in different forms of Republic of Bulgaria Evgeni Petrov Tanchev Constitutional Court of the which most important are the international (universal and regional) law, the EU law and in some sense relations between member states and central governments of federations, confederations or sui generis unions of nation states with most unique of them being the EU (something like platypus—a sui generis international organization or sui generis statal union entity).

Types of interaction between national and supranational legal orders follow different paths, depending on the mode of multilevel governance, instruments of implementation or pre-eminence enforcement of supranational legislation, international and founding treaties, constitutional, EU

34 institutional and national legislation relationships.

Still the contemporary context when constitutional monism is undergoing a gradual transformation into constitutional pluralism complicated the picture and very essence of the interaction between multiple legal orders that slowly sometimes in a step by step trend transform interaction between different constitutional orders.

Due to the topic of the present conference, the emerging societal and global constitutionalism also should be left outside of this report concentrating on the interaction of supranational and municipal constitutional orders.

The Emerging Constitutional Pluralism

In the global age, constitutional pluralism poses challenges to traditional legal theory failure to explain emerging new issues. Here I will speculate on the coexistence and interaction between multiple constitutional orders referring to the national constitutions, European constitutional construct (having still the form of an unwritten constitution) and emerging beginnings of the world constitutionalism.

According to legal positivistic method including its most developed forms like the doctrine of law autopoiesis, all legal and constitutional systems are hierarchically structured and provide institutions for conflict resolution within the law. The courts protect human rights, enforce the hierarchy of law excluding the contradictions between provisions in various sources of law and guarantee the legitimate monopoly of violence, which lies at the heart of the Weberian definition of the state. Even libertarians and legal minimalists bring up catalaxy to rule out conflicts within the legal system. Without a hierarchical structuring the legal and constitutional systems are considered to be chaotic phenomena or amorphous conglomerate of inconsistent and disintegrated legal rules created by various regulatory bodies.

Treating the coexistence of constitutions in multiple layers of national and European Law in the context of contemporary constitutional pluralism and supranational governance, we find that they are not arranged bya or Supremacy of InternationalPrimacy straightforward hierarchical Kelsenian or Hartian pattern, identical to the nation state legal system of municipal law.

Scholars might identify plethora methods of structuring interrelationships between the international, EU and municipal law include harmonization of values through introducing international democratic standards (reception, transplants, mutual influence) and implementation of international law instruments in the national legal systems by the national legislation of 35 parliaments and bylaws of the executive bodies

Still another avenue to implement the international standards particularly in the field of human rights is applying decisions of the ECJ and ECtHR by the national courts Opening the national constitutional order by the European Community member states by amending the national constitutions. Pooling of sovereignties to secure division of competences. It seems that at least 3 types of relationship between the different levels of pluralism develop. Multilevel governance in constitutional pluralism should rely on toleration, legitimation built on common values, contrapunctualism and hierarchy within the powers consigned to different levels of Constitutional governance.

Lisbon treaty has added another dimension by providing the constitutional identity principle that balances the absolute supremacy of EU law.

The evolution of legal pluralism has taken centuries during the last milleniums of human civilization. For long time the legal pluralism appeared to follow the dualistic type of division depicted by Ulpian in the Digest of the Roman Law.1 Ius civile within many state legal systems existed simultaneously with the single ius gentium or law of the peoples. International and municipal law developed in separate realms of legal continuum that never collided for

1 Дигесты Юстиниана, Москва 1984, кн.І, титул І, 23 the implementation of international provisions in the national legal system was virtually non existent. Mutual influence between the plural legal

systems was experienced rather as reception of legal patterns and solutions through legal transplants by a scenario where various national legal systems played the roles of donor and recipient. Except for the last couple centuries when the international law expanded through multilateral treaties during the whole previous time period legal pluralism followed the dualistic Republic of Bulgaria Evgeni Petrov Tanchev Constitutional Court of the separation between multiple monistic municipal legal orders and common but limited by its regulatory ability international law. Emergence of global society bolstered diversification, structured the international law normative institutes to facilitate harmonization of different fields and universal or regional levels of international cooperation. Although being an interesting object of research legal pluralism has been a field much more explored by legal theory and comparative legal science.

In comparison to legal pluralism constitutional pluralism is of a more recent origin for it emerged at a much later civilization stage.

36 One of the most fascinating events of our age has been the emergence of multilevel constitutionalism.

For less than 3 centuries written constitutions have been monopoly of the nation state, which was perceived to be the sole legal entity in possession of constitutional capability to draft and adopt the supreme law of the land. Of course, national constitutional law coexisted with the international law, which though the pacta sunt servanda principle was irreversibly established in the legal and political reality after WW II, was considered to be within the scope of national constitutional supremacy. With the foundation of the European Communities a new transnational legal order emerged having the supranational, direct, immediate and horizontal effect within the legal systems of the EC member states. At a first glance supremacy of the community law might be considered to undermine position of the nation state constitutions as the supreme law of the land. In fact for the first time a supranational legal order has been gradually acquiring the formal characteristics of a constitutional system though founded on a typical unwritten constitutional arrangements. In this way European integration transformed the legal pluralism built on the coexistence of national and international law into interaction between various levels of constitutional arrangements. Initially it took the shape of interrelationship between unwritten EC constitution, which encompassed some primary EC law provisions from the founding treaties, seminal decisions of the ECJ, and few important rules created by the EC institutions, and written nation state constitutions of the EC member states. Since 1960’s constitutional pluralism was enriched with EC law —a new legal system reaching beyond the legal dualism of international and municipal law.

The term global constitutionalism has received wide range of connotations in legal theory. It has been approached from comparativist prospective referring to the national models of constitutional government in the world and not within the symbiosis of constitutionalization of power relationships in contemporary globalization process.22 and European Law in the context of contemporary constitutional pluralism Globalization of constitutionalism and adopting a constitution for a non or Supremacy of InternationalPrimacy statal entity has been treated in the context of unwritten constitution within the founding treaties.

During the last decade scholars tackled a new phenomenon or a new stage in the development of constitutionalism emerging on a global level.33 They have treated the global constitutionalism as but another form of governance where the power in order to meet benchmarks of democracy has to be framed with constitutional restraints.44 Primacy of international law, the 37 increasing role of many international organizations like WTO, development of human rights legal instruments at supranational level has been considered as different streams forming the fabric of global constitutional beginnings posing limitations on the actors of the emerging global governance. Although these phenomena resemble the guarantist function of the constitutions it would be an exaggeration and a simplification to look for supremacy of the global rule of law moreover for an emerging unwritten constitution. At present, proposing a draft world constitution is utopian illusion bordering science fiction like the Constitution of Mars.55 Within the context of global democratic governance international legal standards have

2 See for the best papers in this field with analysis of post World War II trends in T. Fleiner, Five Decades of Constitutionalism, in Publications de l’ Institute de Fedralisme Fribourg, Suisse vol. 5, 1999, pp. 315-344; also his Ageing Constitution, paper to the Conference The Australian Constitution in Retrospect and Prospect, Perth, pp. 21-23 September 2001; B. Ackerman’s seminal article The Rise of World Constitutionalism, Virginia Law Review, May 1977, N. 83, pp. 771-798. 3 Л.Ферайоли, Отвъд суверенитета и гражданството. За един световен конституционализъм, Съвременно право, 1995, кн.4, pp. 70-78. 4 One of the best liberal definitions of constitutionalism emphasizing the constitutions role as frame of government was offered in the second half of the 19 century in the US by John Potter Stockton “The constitutions are chains with which men bind themselves in heir sane moments that they may not die by a suicidal hand in the day of their frenzy.”, J.E. Finn, Constitutions in Crisis, 1991, p. 5. 5 See A CONSTITUTION FOR THE FEDERATION OF EARTH, As Amended At The World Constituent Assembly In Troia, Portugal 1991. Now being circulated worldwide for ratification by the nations and people of earth. Distribution for ratification under the direction of the World Constitution and Parliament Association and the Global Ratification and Elections Network (wcpagren.org). World Constitution and Parliament Association 8800 West 14th Ave. Lakewood, Colorado 80215 USA; See K.S. Robinson, The Constitution of Mars, in The Maritans, HarperCollins, 1999. been instrumental to the bridging national and global constitutionalism. Nowadays the intensity of legal binding and hierarchical structures are

strongest within national constitutionalism, they are present in federalism and are in the process of affirming in the relationship between EU constitution and the constitutions of the member states. In the current global constitutionalism there is some compatibility of democratic standards

Republic of Bulgaria but not a full-fledged hierarchy of constitutional orders. Globalization is Evgeni Petrov Tanchev Constitutional Court of the still looking for its own constitutional order and the rule of law and global standards interaction with national constitutional orders has still to rely on pacta sunt servanda principle. Significance of international legal standards increases since they compensate the weaker legal binding force of the emerging supranational global constitutionalism.66 National constitutions are affected by the emerging global constitutionalism for it is a challenge to the role of nation state constitutions as utmost expression of sovereignty. Global constitutionalism influences the status of the national constitutional self-determination in the idea of self-government, the form of participation,

38 power distribution and representation. The legal standards established by the international treaties and soft law might be interpreted as a fourth pillar through which the emerging global restraints on governance are transposed to national constitutionalism as universal criteria to the constitutional governance.

The EU unwritten constitution, which norms could be found mainly in the EU founding treaties and the EU charter of human rights, surpasses the proposition that the constitution is an attribute reserved for the nation states and marks a new stage in the constitutional civilization. For the first time in history, a non statal entity has adopted a written constitution.7 With the EU Constitution mankind has entered the third stage of constitutional civilization when constitutional governance has expanded beyond the nation state.

6 In a recent article, M. Maduro offers three pillar constructs of constitutions in a national and global context. M. Maduro, From Constitutions to Constitutionalism: A Constitutional Approach for Global Governance, Lead Paper to the Workshop Changing Patterns of Rights Politics: A Challenge to a Stateness?, Hamnse Institute for Advanced Studies, Delmenhorst, Germany, June, 2003, pp. 9-12. 7 For a brilliant critique on the thesis of no demos as reflected in the German Maastricht decision see J.Weiler, The State “uber alles, Demos Telos and the German Maastricht Decision, EUI WP RSC N95/19; The classical Jellinek trinity of territory, nation and sovereignty as a prerequisite to constitution drafting has been overcome. Some definitions extended the benchmarks of the state by adding independence, effective government, recognition by other states, capacity to enter in agreements with other states, states apparatus, organized economy, fictional pars of states as official residences of foreign diplomatic envoys, see LTA Seet Uei Lim, Geopolitics: The Need to Reconceptualize State Sovereignty and Security in the Journal of Singapore Armed Forces 1999, www.mindef.gov.sg/safti/pointer/back/ journals/1999/Vol25_2/7.htm Three distinct stages in the evolution of the governance and constitutionalism can be outlined. Mankind has lived for millenniums in a state without a constitution limiting governmental power. After the Westphalian treaty and especially after the last decades of the XVIIIth century when the first written constitutions were adopted —for centuries the constitutions became monopoly of the nation states. The rule of law has been entrenched in a written constitution as legal form of state legitimately structuring power built on supremacy of constitutional limitations, supporting hierarchy of

the legal and political system to ensure democratic government and protect and European Law in the context of contemporary constitutional pluralism human rights at the national level. or Supremacy of InternationalPrimacy

Sui generis state alike entities like EU and in some foreseeable future international organizations perhaps WTO and/or UN founded on agreement between the participating sovereign nation states with “open statehood” will entrench the rule of law in a written constitution coexisting and interacting with the national constitutions.

However, success of the EU constitutionalism rules out two primitive 39 conclusions.

It doesn’t mean that by adopting a constitution EU might be automatically transformed into a state or a full-fledged federation. It also doesn’t mean that the EU constitution and the emerging beginnings of global constitutionalism mark the process of the withering of nation states. Instead the EU and global constitutionalism will exist hand in hand with the constitutions of the nation states, will be made possible through the national constitutional and legal systems and will not replace them. Moreover, the nation states will be the main actors in the evolving constitutional pluralism and will work together with other non statal actors.

How supranational constitutional orders penetrate and influence nation state constitutional law

The most typical method of tackling the issue of the international legal standards is approaching them from international and comparative law prospective. The fourth generation national constitutions8 have been drafted in a globalized world in which primacy of international law has become an element of the rule of law. The constitutions of the emerging

8 See S.E. Finer, Notes Towards a History of Constitutions, in Constitutions in Democratic Politics, ed. V. Bogdanor, Aldershot, 1988, pp. 17-32; аlso Constitutions and Constitutional Trends Since World War II, ed. A. Zurcher, Greenwood Press, 1955. democracies adopted after the fall of Berlin wall reflect the international standards and include special provisions on supremacy of international law.

If these international standards especially in the area of elections are integral part of the treaties they are transplanted in the national legal orders after states adhere to the treaties.

The systems of implementing the treaty obligations however are different due Republic of Bulgaria 9 Evgeni Petrov Tanchev Constitutional Court of the to the choice of monistic or dualistic system in the national constitutions. Incorporation of the treaties provisions and international standards provided in the treaties follows two types of procedures.10

According to the dominant in Europe monistic system the international treaty becomes an integral part of the national law after having been ratified. When a country has adopted dualism implementation of treaty obligation can take place not by ratification but by drafting a special law or including a provision in the existing national legislation.

40 Comparative analysis of European systems demonstrates another type of difference due to the position of the international treaties in the national legal order.

In some countries like Belgium, Luxembourg and Netherlands the international treaties provisions have supranational effect and stand above the legal system superseding the authority of constitutional norms.

According to the constitutional practice of other countries like Austria, Italy and Finland the treaties having been ratified with parliamentary supermajority vote have the same legal binding effect as constitutional provisions.

The third type of implementation of treaties obligations under the monistic system in Europe places them above the ordinary parliamentary legislation but under the national constitutions according to their legally binding effect. This is the current practice in Bulgaria, Germany, France, Greece, Cypress, Portugal, Spain and others.

9 See for different legal orders in dualistic system and integrating the both legal orders in monism M. Kumm , Towards a Constitutional Theory of the Relationship between National and International Law International Law Part I and II, National Courts and the Arguments from Democracy, pp. 1-2, www.law.nyu.edu/clppt/program2003/readings/kumm1and2. pdf; L.Wildhaber, Treaty-Making Power and the Constitution, Bazel, 1971, pp. 152-153. 10 P. van Dijk, G., J. Н. van Hoof, Theory and Practice of the European Convention on Human Rights, Boston, 1990, 11-12; A. Drzemczewski, European Human Rights Convention in Domestic Law, Oxford, 1985, pp. 33-35. In Czech Republic, Lichtenstein, Romania, Slovak republic only the treaties relating to human rights stand above the ordinary legislation.11

The primacy of international law standards should always be regarded as a minimum, and if especially in the area of human rights and the electoral law national constitutions establish more democratic standards the national provisions should be preferred and would not be considered as a breach of treaties. and European Law in the context of contemporary constitutional pluralism 1991 Bulgarian constitution proclaims primacy of international law treaties, or Supremacy of InternationalPrimacy which have legally binding force, and supersede the contradicting provisions of the national legislation. Under the monistic approach international treaties, constitutionally ratified, promulgated, and having come into force as for the Republic of Bulgaria, shall be a part of the domestic law of the country. They shall take precedence over any conflicting legal rules under the domestic legislation.

The Constitutional Court of Republic of Bulgaria in an interpretative ruling 41 has extended the validity of this constitutional provision i.e. art 5, para. 4 to include all the treaties which were signed before the entry in force of the Constitution if they fulfill the requirements of art. 5, para. 4.12

Interpretation of art. 85, par. 3 and art. 149, para. 1, 4 in connection with art 5, para. 4 makes apparent that the 1991 Constitution of Bulgaria has situated treaties only second to the Constitution itself but above all the national legislation.13 In this way the primacy of international law has complied with

11 C. Economides, The Elaboration of Model Clauses on the Relationship between International and Domestic Law, The European Commission for Democracy Through Law, Council of Europe, 1994, pp. 91-113, pp. 101-102; L. Erades, Interactions between International and Municipal Law, T.M.C. Asser Institute –The Hague, 1993; The French Legal System: An Introduction, 1992, p. 45; Вж Й.Фровайн, Европейската конвенция за правата на човека като обществен ред в Европа,София,1994, 32; Вж също така Л. Кулишев, Прилагането на Европейската конвенция за правата на човека в българския правен ред, сп.Закон, бр. 2, 1994, pp. 3-25. 12 The Constitutional court ruled that the legal effect of treaties signed and ratified before 1991 Constitution entered in force is determined by the regime that was in effect at that time and especially according to the requirement for their publication. The treaties are part of the Bulgarian legal system if they are published or if there was no requirement to be published. If they are not published they do not have primacy to the contravening provisions of the national legislation. They might acquire the superseding effect over the contravening norms of Bulgarian legislation from the moment of their official publication. вж. Мотиви на Решение N 7 от 1992 г. по к.д. N 6 1992 ., ДВ, N 56, от 1992 г. 13 Article 85. (1) The National Assembly ratifies or denounces with a law international treaties that: 1. Are of a political or military nature; 2. Concern the participation of the Republic of Bulgaria in international organizations; 3. Call for corrections to the borders of the Republic of Bulgaria; 4. Contain financial commitments by the state; 5. Stipulate the participation of the state in any arbitration or court settlement of international disputes; 6. Concern basic human rights; 7. Affect the action of a law or require new legislation for their implementation; 8. Specifically require ratification. the requirements of art. 2 of the UN Charter respecting the nation state sovereignty. Of course supranational, direct, immediate and horizontal

effect of EU law will require introduction of EU clause in the Constitution providing for transfer of sovereign powers to the EU and its institutions.

The process of implementing treaty establishing international standards in the national legal system is different from interaction between EU legal Republic of Bulgaria Evgeni Petrov Tanchev Constitutional Court of the order and EU member state legal orders. If a European standard is provided by EU constitution or primary law, due to the transfer of sovereignty it prevails over the national constitutional norms and has legal binding effect after the EU member states have been notified. That is why implementing of the international legal standards bears no similarity to obligation to comply with acquis communautaire in adapting the national constitutions and approximation of legislation in order to provide supranational direct immediate and horizontal effect of primary and institutional EU law. This follows from EU law supranational, direct, immediate and universal effect on all national legal subjects within the territory of European Union member 14 42 states.

The term global constitutionalism has received wide range of connotations.

It has been approached from comparativist prospective as an instrument of analysis of constitutionalism within the different national models of constitutional government in the world and within the symbiosis of constitutionalization of power relationships in contemporary globalization process.15

(2) Treaties ratified by the National Assembly may be amended or denounced onlyin accordance with the procedures stipulated in the treaties themselves or in accordance with the universally accepted provisions of international law. (3) The signing of international treaties that require constitutional amendments must be preceded by the passage of such amendments. Article 149. (1) The Constitutional Court: 4. Rules on the consistency between the international treaties signed by the Republic of Bulgaria and the Constitution, prior to their ratification, as well as on the consistency between the laws and the universally accepted standards of international law and the international treaties to which Bulgaria is a signatory; 14 These undoubted characteristics of the European law are formulated by the Court as early as the beginning of the 60s, N.V. Algemene Transport -en Expeditie Onderneming van Gend & Loos, v. Netherlands Fiscal Administration; Case 26/62; Costa v. ENEL; Case 6/ 64. See in a detail E. Stein, Lawyers, Judges and the Making of a Transnational Constitution, American Journal of International Law, vol. 75, January 1975, N 1, 1-27; P. Pescatore, The Doctrine of Direct Effect, European Law Review, 8, 1983, pp. 155-157; J. Weiler, The Community System: the Dual Character of Supranationalism, Yearbook of European Law 1, 1981; A. Easson, Legal Approaches to European Integration in Constitutional Law of the European Union, F. Snyder, EUI, Florence, 1994-1995. 15 See for the best papers in this field with analysis of post World War II trends in T. Fleiner, Five Decades of Constitutionalism, in Publications de l’ Institute de Fedralisme Fribourg, Suisse vol. 5, 1999, pp. 315-344; also his Ageing Constitution, paper to the Conference The Australian Constitution in Retrospect and Prospect, Perth, pp. 21-23 September 2001; B. Ackerman’s seminal article The Rise of World Constitutionalism, Virginia Law Review, May 1977, N. 83, 771-798. Globalization of constitutionalism and adopting a constitution for a non statal entity has been treated in the context of unwritten constitution within the founding treaties and in the context of the written constitution drafted by the EU convention. Another glimpse at the standards of elections concerns the relationship between EU constitution and adapting of the national constitutions of EU member states i.e. the constitutional acquis.

Recently during the last decade scholars have made attempts to describe a

new phenomenon or a new stage in the development of constitutionalism and European Law in the context of contemporary constitutional pluralism emerging on a global level.16 They have treated the global as but another or Supremacy of InternationalPrimacy form of governance where the power in order to meet benchmarks of democracy has to be framed with constitutional restraints.17 Supremacy of international law, the increasing role of many international organizations like WTO, development of human rights legal instruments at supranational level might be considered as different streams forming the fabric of global constitutional beginnings posing limitations on the actors of the emerging global governance. However, it would be exaggeration and oversimplification to look for supremacy of the global rule of law moreover for an emerging 43 unwritten constitution. International legal standards are within this context a linkage between national and global constitutionalism. They provide compliance of different legal orders of contemporary constitutional pluralism. The intensity of legal binding is strongest within national constitutionalism, it is present in federalist context and it has been in the process of affirming in the relationship between EU constitution and the constitutions of the member states. In the global constitutionalism there is some compatibility of democratic standards but not a hierarchy of constitutional orders. The globalization is still looking for its own constitutional order and the rule of law and global standards interaction with national constitutional orders has still to rely on pacta sunt servanda principle. Due to this fact, significance of international legal standards increases and them since they are compensation to the weaker binding legal force of the emerging supranational constitutionalism at a global level.

Following M. Maduro’s three pillar construct of constitutions in a national and global context, we can look at the international standards as a fourth pillar through which the emerging global restraints on governance are

16 Л.Ферайоли, Отвъд суверенитета и гражданството. За един световен конституционализъм, Съвременно право, 1995, кн.4, pp. 70-78. 17 One of the best liberal definitions of constitutionalism emphasizing the constitutions role as frame of government was offered in the second half of the 19 century in the US by John Potter Stockton “The constitutions are chains with which men bind themselves in heir sane moments that they may not die by a suicidal hand in the day of their frenzy.”, J.E. Finn, Constitutions in Crisis, 1991, p. 5. transposed to national constitutionalism as universal criteria to the constitutional governance.18

Jumping in the semantic bog of primacy and/or supremacy or v.v. in the relationship of supranational or national legal orders Republic of Bulgaria Evgeni Petrov Tanchev Constitutional Court of the Constitutions, Treaties, and academic writings have addressed interchangeably, simultaneous or alternative impact on the relationship between supranational and national legal orders.

Most of the scholars have tried to separate and reserve the terms attributed to the relationship of legal acts within and between the legal orders.19 In a way overcoming scientific challenges was attempted to be resolved by the famous latin maxim to conquer territories and peoples:

Divide et impera. However, if this golden rule to conquer the enemy in war 44 or diplomacy played best through the centuries and romans wisely coined it in a maxim, reverting to this principle in the area of science is next to useless. In the area of science to approach new challenges means to conquer all accessible knowledge, to reconsider and reconstruct knowledge and only then produce new divisions. Or it seems the reverse maxim or Impera et divide is more relevant. Mastering and command of knowledge comes before division of values, principles, constructs categories and terms being attributed to real phenomena.

Most often division between primacy and supremacy follows the difference between hierarchical systems and heterachical entities of legal acts. In this train of thought supremacy is a term reserved for national law and primacy

18 Maduro’s three pillars in which national constitutions are affected by the emerging global constitutionalism are challenging the role of nation state constitutions as utmost expression of sovereignty and as criterion of ultimate validity of the legal system, national constitutional self-determination in the idea of self-government , the form of participation, power distribution and representation is also influenced by global governance., M. Maduro, From Constitutions to Constitutionalism: A Constitutional Approach for Global Governance, Lead Paper to the Workshop Changing Patterns of Rights Politics: A Challenge to a Stateness?, Hamnse Institute for Advanced Studies, Delmenhorst, Germany, June, 2003, pp. 9-12. 19 See E. Drumeva, Primacy of the EU law in the National Constitutional Space – Reflections in Ceci nest pas une Constitution – Constitutionalization without a Constitution, I. Pernice, E. Tanchev ed. Nomos, Baden Baden, 2009, pp. 100-104; M. Avbelj, Supremacy or Primacy of EU law-(Why) Does it Matter/?, European Law Journal, vol. 17, N 6, Nov. 2011, pp. 744-763; Darinka Piqani, Supremacy of European Law revisited: New developments in the context of the Treaty Establishing a Constitution for Europe, www.enelsyn.gr/.../PaperDarinka; Franz C. Mayer , Supremacy – Lost? WHI - Paper 2/06 Walter Hallstein-Institut für Europäisches Verfassungsrecht Humboldt-Universität zu Berlin. is related to prevalence, priority, pre-eminence, preference in legal application for supranational legal systems. From this conclusion follows the assumption that for any relationship between the treaties and national law the correct term is primacy. For others primacy and supremacy especially in the case of international and EU law do not have significant importance and ordering of different legal orders has to be decided not on special rules but on concrete conflict resolution following the ECJ and national constitutional, civil and administrative courts jurisprudence.20 and European Law in the context of contemporary constitutional pluralism The relationship between terms is not a semantical purity issue alone as it or Supremacy of InternationalPrimacy has been also presented but is at the heart of interaction between national and supranational legal orders. It is a question about the very essence of EU law characteristics. Even after the declaration of primacy was humbly annexed and argued of being of political nature alone, the debates remain alive and we can only cite and update a famous statement from the beginning of M. Kumm article that “Forty years after the European Court of Justice (ECJ) declared the law of the European Communities (EU law) to be the supreme law of the land in Europe,21 controversy over the relationship 45 between EU law and national law remains alive”22 with but for another decade more.23

If primacy means conquering and monopolization of terms referred in order of their chronological attribution and usage, the history of mankind would consist of inflation caused by coining words without any causal or functional relationship that is out of any other market than history.

The Lithuanian practice, as influenced by the jurisprudence of the German and the Spanish constitutional courts has enriched and contributed to the elaboration of the concept of relationship between the national and EU legal orders. I find extremely helpful the discourse by on the primacy of

20 For thorough overview of French, English, German and Italian terminological usage and review of ICJ practice see P.Ravlusevicius, The Enforcement of the Primacy of the European Union Law: Legal doctrine and Practice, Jurisprudencia, 2011, 18(4), pp. 1369-1388 internet version, www.mruni.eu/lt/mokslo_darbai/st/archyvas/dwn.php?id... 21 The leading cases are ECJ Case 6/44, Costa v. Enel, [1964] ECR 585; ECJ Case 43/76, Comet BV v. Produktschap voor Siergwassen, [1976] ECR 2043: ECJ Case 106/77. Amministrazione delle Finanze dello Stato v. Simmenthal, [1978] ECR 629. 22 For general overviews of note on the issue see A. M. Slaughter, A. Stone and J.H.H. Weiler, The European Courts and National Courts – Doctrine and Jurisprudence (Oxford, Hart Publishing 1998), Constance Grewe and Helen Ruiz Fabri, Droits Constitutionnels Européens (Paris, PUF 1995), Franz Mayer, Kompetenzüberschreitung und Letztbegründung (Muenchen, C.H. Beck 2000). For a collection of the leading cases across jurisdictions see A. Oppenheimer (ed.), The Relationship between European Community Law and National Law: The Cases (Cambridge, 1994 [Vol. 1] & 2003 [Vol. 2]). 23 Mattias Kumm and Victor Ferreres Comella Altneuland: The EU Constitution in a Contextual Perspective The Future of Constitutional Conflict in the European Union: Constitutional Supremacy after the Constitutional Treaty Jean Monnet Working Paper 5/04. EU law during the drafting and adoption of the amendments to adapt the national Constitution of the Republic of Lithuania to the accession to the

European Union.24 According to article 2 of the Constitutional Act, the norms of the European Union law are constituent part of the legal system of the Republic of Lithuania. The principle of primacy of the EU law in the Lithuanian legal order was recognized by the founding EU Treaties direct application, and their primacy in case of collision with the national laws except for the Republic of Bulgaria Evgeni Petrov Tanchev Constitutional Court of the supremacy of the Constitution. So the jurisprudence of Lithuanian courts as Guardians of the constitution has been founded on the primary role of the national Constitution.25 The Constitutional Court enforcing article 7 of the national Constitution ruled that no legal act within the hierarchy of the national legal system may violate the constitutional requirements and judged that the EU law could not contradict with the national Constitution. The approach of the Lithuanian Constitutional Court has been influenced by their monist perspective with regard to the relationship between national and EU law. The EU law has been automatically transformed into the national law through the ratification of the Accession Treaty. The Constitutional Court 46 position on primacy of the EU law is close to a similar judgment in the jurisprudence of the Spanish Constitutional Court. As the Lithuanian Constitutional Court, it has also recognised the primacy of EU law in the domestic legal order, however, it did not recognise the hierarchical supremacy of EU law against the Constitution. As it has been cited in literature the Lithuanian point of view was highly appreciated in the German and UK legal doctrine. Here I would like to add that this has been the position of the Bulgarian constitutional doctrine and Constitutional court jurisprudence that was just mentioned in the previous paragraph of my report based on the para. 4 of art. 5 of the 1991 Constitution of Bulgaria on the primacy of international law treaties. When the international law instruments that have been implemented are in conflict with national norm they prevail over all of the parliamentary law and subordinate legislation but surrender to the constitutional supremacy. However, the contradiction of the treaty provision to the constitutional norms has been taken care in advance for the Constitutional Court has been empowered to pronounce on the conflicts between before the treaty ratification. In that case the conflicts might be

24 For Lithuanian debate and practice on the primacy I am indebted to the article of P. Ravlusevicius, The Enforcement of the Primacy of the European Union Law: Legal doctrine and Practice, Jurisprudencia, 2011, 18(4), pp. 1369-1388, especially pp. 1379 -1382; see for reference to the Lithuanian practice Damian Chalmers, European Restatements of Sovereignty LSE Law, Society and Economy Working Papers 10/2013, London School of Economics and Political Science Law Department www.lse.ac.uk/.../law/.../WPS2013-10_ Chalmers 25 Constitutional Court of the Republic of Lithuania, Judgment of 22 June 2009 concerning the legal act of territorial planning, No 16/07-17/07-20/08. Jurisprudence. 2011, 18(4): 1369-1388. 1381. avoided either by amending the constitution before they treaty ratification or if the treaty is open to adhere with reservations where the conflict between constitution and the international norms is evident.

An interesting solution to resolve primacy v. supremacy debate has been offered by prof. E.Kuris by avoiding the riddle of competing supremacies by a concrete practical solution with court’s determination on the applicable law.26 This idea is especially important for it extrapolates the lowest common denominator in the row of terms signifying the relationship between different and European Law in the context of contemporary constitutional pluralism legal orders. So the term application of the relevant law (resembling the or Supremacy of InternationalPrimacy conflict resolution between different legal systems), comes before primacy and supremacy of the supranational legal orders over the national legal system.

If we resort to Okkam’s razor, the term of application of the relevant law is contained in the term primacy and primacy is encompassed by supremacy. Or paraphrased in other words, the construct might be simplified by using the formulae that application of the relevant law is subsumed in the term 47 primacy and primacy is subsumed by supremacy.

Now let us reconsider which term might be most adequate for national and supranational legal systems qualities arrangement of the legal acts by tracing the characteristic features for application (enforcement) of legal acts within the national and between the supranational and national legal systems

Without any doubt the legal systems in the nation states and federations are hierarchically structured and all of the normative legal acts enjoy direct, universal and immediate effect after they are made public and after expiry of vacatio legis.

While the International law primacy with no doubt (purest monistic systems like Netherlands being an exclusion) surrender to supremacy of the nation state constitution, the other supranational legal order —EU law has some extra qualities like supranational, direct, immediate and horizontal effect that complicate its impact over the national legal system of the EU member state countries. Particularly due to conferral of powers from

26 See Kūris, E. Europos Sąjungos teisė Lietuvos Respublikos konstitucinio teismo jurisprudencijoje: sambūvio algoritmo paieškos [The EU Law in the Jurisprudence of the Constitutional Court of the Republic of Lithuania: Search for the Algorithm of Coexistence]. In: Teisė besikeičiančioje Europoje. Vilnius: Mykolo Romerio universiteto Leidybos centras, 2008, p. 673, 707; cit. in P. Ravlusevicius, The Enforcement of the Primacy of the European Union Law: Legal doctrine and Practice, Jurisprudencia, 2011, 18(4), pp. 1369-1388 internet version https://www.mruni.eu/lt/mokslo_darbai/st/archyvas/dwn.php?id..., at 1381-1382 national to EU institutions sometimes referred as transfer of sovereignty, the relationship to the national constitution is different from the primacy of

International law treaties. In the areas where the powers were transferred to the EU institutions in a conflict institutional law (reglaments and directives after their transposition) should prevail over the constitutional norm under two conditions. Republic of Bulgaria Evgeni Petrov Tanchev Constitutional Court of the ▪ The first being if the national constitution is below the standard of the EU law or national constitutional limitation exceeds or poses a higher restriction that the EU law. ▪ The other point is that the EU institutional law does not conflict to the national constitutional identity, which is reserved to be regulated by national constitutions. In this case primacy of EU law acquires supremacy over the national law.

Within the areas where powers were not delegated to the EU institutions and sovereignty has been intact and has been reserved for the EU member

48 states national constitution should prevail if a conflict with secondary institutional legislation occurs. In this case primacy of the international law and primacy (supremacy) of EU law are almost identical.

Does EU Law Supremacy undermine nation state constitutional supremacy or there is fine tuning in the relationship between national and EU supranational constitutional order

EU Supranational effect has been associated with gradual affirmation of primacy, direct, immediate an horizontal effect of the founding treaties, part of mandatory secondary institutional legislation and ECJ jurisprudence which have been a part of the unwritten EU constitution since the 1960’s. In shaping the unique character of EU legal system two trends deserve special attention. The first one has been safeguarding and establishing absolute supremacy in the areas of conferral of powers and transfer of sovereignty in the process of opening constitutions to secure pooling of sovereignty of the EU member states. The second one has been the gradual expansion of the areas covered by EU law and its supremacy and penetration in new fields. Interaction between national judiciary and ECJ played crucial role in the process of affirming affirmation of primacy, direct, immediate a horizontal effect of EU law. From time to time there was vigorous reaction by some of the member state constitutional courts justified by partial and casual prevalence of national law that provided better human rights protection than community law. This sporadic reaction tempered but by no means undermined the EU primacy constant growth. Among the many novelties introduced Lisbon treaty reinforced national identity by transforming it into constitutional identity in the art. 4, para. 2 of TEU. A leading authority in the area of EU constitutional law Armin von Bogdandy has stressed that the biggest difference between identity notions as provided in Maastricht and Amsterdam treaties that it has been moved away from cultural, linguistic criteria and turns to the content of domestic constitutional orders thus becoming a constitutional, not a cultural. An attempt at classification of constitutional untouchable or nonamendable and European Law in the context of

core might contain features falling within three basic types. contemporary constitutional pluralism Primacy or Supremacy of InternationalPrimacy

The first one has been composed of those issues that are situated outside of any constituted and constituent powers constituting the so called eternity clauses. Constitutions of Germany,27 France (from the Third, Fourth and Fifth French republics stating that the republican government cannot be amended), some provisions in the 1991 Romanian constitution etc.

Other constitution like 1991 Bulgarian one contain quasi eternity clauses related to the form of government, unitary character of the state, form of 49 the established balance of powers or the established form of separation of power thus freezing or petrifying the constituent power. One of these provisions that is directly related to the EU supremacy is that under the Bulgarian constitution it is the Constitutional court alone that can proclaim unconstitutionality and refuse to enforce a provision or law that contradicts the constitution. Under Simmental decision doctrine affirming the EU law direct effect all courts in a country member state should directly enforce EU law instead of a contradiction provision of national parliamentary legislation. It is apparent that to provide legal basis of resolving this discrepancy Bulgarian constitution will have to be amended. However, this is extremely difficult for it requires action by the Grand National Assembly, whichis extremely difficult to call bringing de facto such an amendment to almost eternity clause.

The last group of provisions within the nonamendable core are specific national constitutional structure features whose amendment requires

27 The Eternity clause in 1949 German Grundgezetz, is the article 79 paragraph (3) of the Basic Law for the Federal Republic of Germany. The etenityclause is a very important topic, because it intends to protect (guarantee) “the basic principles” established in articles 1 and 20 of “this Basic Law”. Amendments of “this Basic Law” affecting “the basic principles” of Aricles 1 and 20 are prohibited outright (as “inadmissible”), because they are the formal identity for the Federal Republic of Germany. To affect “the basic principles” of articles 1 and 20 with amendments is to change the state’s identity and supplant “this Basic Law” with a different order, i.e., different set of principles and different objectives. See also U. Preuss, The implications of “Eternity clauses”: German Experience, Israel Law Review, vol. 44, 2011, pp. 429-448. absolute or qualified parliamentary majorities. In Italy, Germany, Ireland, Denmark, Spain and other European countries constitutional courts or

courts of general jurisdiction performing constitutional review posed some constitutional limits to the absolute preponderance of EU law.

The new normative constitutions of the emerging democracies in Central,

Republic of Bulgaria Eastern Europe and the independent republics of the former Soviet Union Evgeni Petrov Tanchev Constitutional Court of the brake away from nominal, instrumental constitutionalism. Drafted in the 90’s they generically belong to the last wave of the 4th constitutional generation born after the World War II. 28

All of them were created after the crisis of legitimacy of the old regime and collapse of the communist system.29 Building new legitimacy of transition was a notification of the emergence of new statehood to the world community and a foundation of the transformation of the legal, political and social systems of these countries oriented to the rule of law, parliamentary democracy and 50 market economy. By establishing the new legitimacy and implicit refutation of the legitimacy of the Ancien Regime, the new democratic constitutions are typical examples of reactive fundamental laws.

Adhering to the classical separation between constituent and constituted powers the new democratic constitutions belong to the rigid constitutions.30 The procedure of constitutional amendment has been complicated in order to prevent the opportunity of premature, rash, ill-considered and undemocratic constitutional revision by the parties in government. The popular sovereignty through its institutions acting by super-majorities and building a higher degree of consensus than the will of the winner of regular elections has been authorized as a sole repository of constitutional amendment.

28 For differentiation see K.C.Wheare, Modern Constitutions, Oxford, 1966, pp. 14-31; C.F.Strong, Modern Political Constitutions, London, 1970, pp. 59-79; H. van Marseveen and G.van der Tang, Written Constitutions, New York, 1978, pp. 241-262; G. Sartori, Constitutionalism: Preliminary Survey, The American Political Science Review, v. 56, 1962, p. 853; Ch.Debbach, J.M.Pontier, J. Bourdon, J.C. Ricci, Droit constitutionnel et institutions politiques, Paris, 1983, pp. 71-75; P. Pactet, Institutions politiques et droit constitutionnel, Paris, 1985, p. 69; G. Mobidelli, L. Pegoraro, A. Reposo, M.Volpi, Diritto Constituzionale Italiano e comparato, Monduzzi ed., 1995, pp. 82-87. 29 In general the crisis of legitimacy has been defined as a transition to a new social structure when the status of political institutions is threatened by the change or some of the political groups are excluded to the political system., S. M. Lipset, Op. cit., p. 78; However, his concept has been challenged by two of contemporary developments at least. In fact the erosion of the legitimacy of the communist regimes took place long before the beginning of the falling apart of the system in the 1989. Current stage of development of EU and the transformation of the nation states in Europe at the turn of the century have been treated as a lack of legitimacy and democratic deficit in the EU institutional framework functioning. 30 Hungarian constitution being the exception. Eternity clauses in some of the constitutions serve as limitations to constituent power and preclude the destruction of legitimacy of the transition through abolishing basic values by constitutional amendment.31

The most common limitations of constitutional revision concern human rights and in general correspond to the international standards of inviolability of human rights during the periods of emergency.

Some of the constitutions like the fundamental law of the Republic of and European Law in the context of contemporary constitutional pluralism Romania have provided extensive list of inadmissible constitutional or Supremacy of InternationalPrimacy amendments.32

Rigidity of the constitutions in the post-communist societies was conceived to safeguard the transition legitimacy, irreversibility of transformation and to create solid foundation of legality as a means of preserving the hierarchy of the juridical acts. This feature of the constitutions was efficient in providing stability of transformation process framing the changing majorities in the parliament and withholding the constitutional amendment 51 from the parties or coalitions in control of government. Some countries, like Poland, Lithuania and others, avoided objections to the early constitutional drafting by enacting interim or temporary fundamental laws at the initial stage of the transition.33 Rigidity of the new democratic constitutions, however, created some difficulties, which would have not been experienced with more flexible constitutions that could have been adapted during the transition. Constitutional courts’ activism in interpreting the constitutions with a different degree of success and acceptance of the

31 Nonamendability clauses are outcome of the experience of western constitutionalism to create safeguards to the preservation of constitutional democracy against the authoritarian encroachments or totalitarian takeover. 1949 German Grudgezetz proclaims inadmissibility of constitutional amdendment of federalism and democratic and social character of the Republic, basic constitutional principles of popular sovereingnty, constitutional supremacy to legislature and law and justice to the executive, right to resistance to anybody seeking to abolish the constitutional order if no other remedy is possible, human dignity, inviolability, inalienability and direct enforceability of human rights. (art. 79, 3; art. 20; art. 21). Following a tradition established by the 1875 Third republic, the 1958 constitution of the Fifth French republic provides in art. 89 that the republican form of government shall not be subject to amendment. 32 According to art. 148 of the 1991 Romanian constitution national, independent, unitary, and indivisible character of the state, the republican form of government, territorial integrity, independence of the judiciary, political pluralism, official language, elimination of human rights freedoms and their guarantees is explicitly placed out of the constitutional revision subject matter. 33 Another “revolutionary”solution proposed was that these countries should not engage in constitutional drafting at the start of the legal reform. A period of chaos with legality suspended was conceived to be a better and more efficient approach of purifying the legal system from the acts of communist legacy, see S. Holmes, Back to the Drawing Board, East European Constitutional Review, vol. 2, N 1, Winter, 1993, pp. 21-25. Even if we admit that this way would speed the legal reform it would have had a devastating effect on the low and shaky legal culture of the society emerging from communism. political actors and public opinion contributed to the solution to these problems within the framework of constitutional legality.

After the accession to EU rigid constitutions in some of the countries joining the EU during the first decade of the new millennium, might lead within the constitutional identity concept to malfunctioning in the EU membership by opposing EU law supremacy, direct immediate and horizontal effect. This Republic of Bulgaria Evgeni Petrov Tanchev

Constitutional Court of the might pose a danger to EU legal integration by eroding the constitutional acquis communautaire.

To conclude in short the basic trend has been evolution within two opposites —from absolute sovereignty of the Constitutions of the nation states to absolute prevalence of supranational law in the EU and achieving balance by the fine-tuning between EU and national constitutional law by posing limits to the rigid absolute supremacy community law by the constitutional identity notion.

52 The internationalization of Human Rights; the mexican judiciary’s turn1

Juan N. Silva Meza

President of the Supreme Court of Justice of Mexico

At the end of the Second World War, democracies had to renounce to the between wars liberal premise, which announced the triumph of governments that were supposed to be neutral. The minimum scale of interference of the State with respect to individual rights, as the dominant paradigm the Weimar Republic sought to establish, and the corresponding neutrality that should be reflected by the constitutional text, gave rise to the accession of dictatorial regimes that claimed to have electoral support, although they had actually come to power with the use of force and at the cost of restricting personal and civil rights.2 Individuals were now lacking the tools to defend themselves.

The end of the Second World War also meant the proliferation of international instruments to avoid that this terrible paradox would repeat itself. The new constitutional constructions could not represent neutral regimes. On the contrary, they had to assume a militant commitment in favor of democracy and human rights.3 A similar effect is produced in the

1 A previous version appeared in Juan N. Silva Meza, “El diálogo jurisprudencial en la internalización de los Derehos Humanos: el turno de la justicia mexicana”, Estado constitucional, derechos humanos, justicia y vida universitaria, Homenaje a Carpizo, Instituto de Investigaciones Jurídicas de la UNAM, 2013. 2 Arendt, Hannah, Los orígenes del totalitarismo, México, Santillana Ediciones Generales, 2004, chapters XI, XII. 3 Historically, one of the first paradigmatic resolutions of the German Constitutional Court was resolved in this matter by means of the proscription of the Nationalist (SRP) and Communist (KPD) parties in 1953 and 1956, respectively, under the premise of recognizing the renewed constitutional system as that of a militant democracy, where there is no room 53 community of nations: international relations were not solely agreements among States. Therefore, the rights of the individual, recognized in an international level, would then become a fundamental object of negotiations among States.

More than half a century after this internationalization, the challenge of diplomacy is no longer focused solely and exclusively on geostrategic Juan N. Silva Meza interests. The point was not only to place the individual and the universality 4

Supreme Court of Justice Mexico of his or her rights at the apex of international relations. Diplomatic efforts had to transcend the ratification of instruments to focus on the effectiveness of rights.

Little by little, States have been assuming these obligations of considerably greater dimensions, which today translate in the internalization of all those declarations of rights and human rights international treaties, integrating them in the day-to-day of domestic judicial orders and resolutions. Perhaps their importance today, in the two sides of the Atlantic, may be compared

54 to the related changes in paradigms caused by the constitutionalization of the end of the dictatorships during the first half of the last century.

With respect to the ideas developed in Part I of this work, we will see that the difficulty of normalizing the application of international rights in the domestic sphere is a problem without an evident or automatic solution. However, as we will see in Part II, the resistance that has been directed against accepting the normality of international law in the internal sphere is not insurmountable. We can also see that this is a challenge that is well worth the effort to accept.

Part I. The magnitude of the challenge

The constitutional reform of June 2011 incorporated the pro personae principle into Article 1 of the Mexican Constitution. Thereby changing the manner in which legal operators must understand the protection of rights. This shouldn’t surprise us; this is actually a sovereign decision that incorporates Mexican constitutionalism into a common framework that is shared with the countries that have traditionally served as institutional reference points.

for parties that go against the principles of equality or personal dignity. See, respectively, BVerfGE 2, 1 to 23 October 1953, and BVerfGE 5, 85 17 August 1956. 4 We can even provide notice that the manuals regarding international relations must be re-written. In Battistella, Darío, Théorie des relations internationales, 3è ed., Paris, Presses de Sciences Po, 2009. The intent to harmonize the interpretation of fundamental rights within the national jurisdiction has turned into a global project that expands progressively and is institutionalized around the world.5 The universality of rights are now reflected, while not in the equal treatment of the individual inany domestic sphere where he may find himself, but at least in the recognition of minimum standards the international community recognizes him, for the sole fact of being a human being. judiciary’s turn Human Rights; the mexican The internationalization of Is internationalization limited solely to inter-americanization?

International treaties and covenants regarding human rights, conceived as pieces of legislation called to be obligations in the domestic sphere, include not only the Inter-American system6, but also a series of provisions from the universal system of human rights protection that coexist as a harmonious whole, not competing with each other, but are rather called to complement and strengthen domestic laws.7 55

Now then, in light of the constitutional amendments of 2011, and the resolutions passed by the Supreme Court of Mexico (hereinafter, Supreme Court) regarding the validity of the Inter-American system in the national sphere), related to the validity of the Inter-American system, domestic judges of all spheres Mexican judges of all jurisdictions (starting with the first contact with the citizen) have jointly acquired the nature of Inter-American jurists. This, however, has not been by personal choice, nor because we have been invited to study the essence of the treaties to the disadvantage of our internal regulations; we have assumed this nature by constitutional mandate (this does not include solely the judicial sphere, but also all the

5 Silva Meza, Juan N. and Silva García, Fernando, Derechos Fundamentales, Bases para la reconstrucción de la jurisprudencia constitucional, Mexico, Porrúa, 2009, chapter II. 6 In order to illustrate the contents of this Inter-American system, the “basic documents” include the American Declaration of Rights and Duties of Man; the American Convention of Human Rights; the Inter-American Convention on Torture; the Protocols additional to the American Convention on Economic, Social and Cultural Rights and the Death Penalty; the conventions regarding violence against women, forced disappearance of persons and discrimination against persons with disabilities; also included are the OAS Charter and the Inter-American Democratic Charter; the Declaration of Principles on Freedom of Expression; the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas; the Rules of Procedure of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights; in the Interamerican Commission of Human rights, Basic documents in matters of human rights in the Inter-American system, Washington, OAS-SUPREME COURT OF MEXICO, 2012. 7 Burgorgue-Larsen, Laurence, “El sistema interamericano de protección de derechos humanos: entre clasicismo y creatividad”, in: Bogdandy, Armin, César Landa et al, ¿Integración sudamericana a través del derecho?, Madrid, Centros de Estudios Constitucionales- Instituto Max Planck de Derecho Público Comparado [Center for Constitutional Studies– Max Planck Institute for Comparative Public Law], 2009, p. 287. Branches of the Mexican State). We can at least use, as a base line, this new configuration.

This consequence came out due to the fact that the Vienna Convention on the Law of Treaties of 1969 confers the American Convention on Human Rights (hereinafter, American Convention), a specific status. This is due not only to the fact that it obliges the signatory parties reciprocally, but also Juan N. Silva Meza because it was conceived to generate, continent-wide, a series of domestic,

Supreme Court of Justice Mexico interconnected obligations that must be collectively guaranteed by the member states. The spirit of sustaining the universality of human rights must be manifest in the national jurisdiction. Furthermore, the non-regressive nature of the interpretations being constructed by the courts within the domestic sphere, are based on the Vienna Convention itself (article 31 item (c)), obligating judges to apply treaties with good faith, within the domestic context in which these legal instruments express their validity.

Although a few years ago the related nature of the resolutions continued to

56 be part of the discussion at the internal level, in the Inter-American system it has been constant the way in which such contents have developed, so that they form mandatory jurisprudence that works as the central axis in the making of future decisions within the courts of the system.8 It should be noted that in addition, between 2011 and 2013, the Supreme Court of Mexico has expanded successively the role of the Inter-American jurisprudence, first as a guiding principle,9 and then as mandatory.10

Under such terms, the exegetical criteria of the constitutional and conventional interpretations, once resolved by the domestic courts bind all those of lower hierarchy, in so far as the States have to adhere to any ulterior agreement regarding the interpretations that may arise in specific matters. In this respect, the interpretative task within the space of the Inter- American system seems to be approximating our judicial systems to the

8 As a result of the judicial reasons on which the principle of pacta sunt servanda, is founded, Inter-American jurisprudence has bound the States that have expressly accepted the mandatory nature of this jurisdiction (and in particular, Mexico, did so in 1998). Therefore, its disregard is a motive for international responsibility; in Buergenthal, Thomas, “Implementation of the judgments of the Interamerican Court of Human Rights”, El Sistema Interamericano de la Protección de derechos humanos en el Siglo XXI, (Memoria del Seminario), San José, Interamerican Court of Human Rights, 2001, pp. 185-193. 9 The resolution of the Radilla case, from the File Misc. 912/2010, determine don July 14, 2011, that the criteria contained in the resolutions of the IHR Court, where the Mexican State is a party, are mandatory in nature, while the rest of the jurisprudence is meant to provide counsel. This situation was supplemented two years later, as we will see. 10 In a decision dated September 3, 2013, which resolved the Challenge to Thesis 293/2011 which shall be analyzed at the end of this study, the Supreme Court of Mexico determined, however, that the entire corpus of Inter-American jurisprudence is mandatory for judges in the country in the measure in which their content implies an improved means of protection over the individual. positive results generated, slowly, within the member countries of the Council of Europe. I refer to their domestic judges’ practice, which consists of reading constitutional and conventional provisions together when integrating the content of the fundamental rights in concrete cases. This has to do with common practices within the countries that are members of the European Convention on Human Rights (hereinafter, ECHR). But the judicial practices are not an isolated fact; they correspond to the manner judiciary’s turn

in which we understand the relationships between states. This leads me to Human Rights; the mexican The internationalization of describe the structural causes of this evolution in the interpretation of international guidelines.

The reconsideration of international relations

International law has changed its sphere of application according to the passage of time. In the remote times of the foundation of the modern state, the affirmation of sovereignty implied the recognition of an absolute power within each national unit, which, notwithstanding, jointly inferred a projection 57 outside the domestic borders, although it was focused on preventing any interruption in the exercise of this sovereign power.11 Since it was personalized by the monarch, who was in charge of resolving conflicts and administering justice, he was invested with the power to issue the final resolution, even if there was no rule exactly applicable to the controversy in question.

It has been, therefore, only during the last half-century that domestic law has been influenced by international law, due, above all, to a renewed concept of international relations. This reality is only explained if we look back centuries into the past. In stages prior to modernity, when there were already conflicts related to invasions, interests of a kingdom over other territories, the international relations would have been understood as “the contemplative knowledge of the essential order of the world”.12

It was as of the signing of the Peace Treaty of 1648, in Westphalia, that the state would have been understood as the only party capable of legitimately intervening as an agent in international politics. From those remote times, the state transitioned from an absolute monarchy, to the bourgeois state, to lastly, the welfare state. These three phases contributed to the creation of differentiated national identities; however, in the framework of the last

11 Bodin, Jean, Los seis libros de la República, Caracas Instituto de Estudios Políticos, Facultad de Derecho, Universidad Central de Venezuela, 1966, Book I, Chapter VIII. 12 Aaron, Raymond, “Qu’est-ce qu’une théorie des relations internationales?” Revue Française de Science Politique, vol. 17, no. 5, 1967, p. 837. phase (which appears to continue to exist in Western society), the notion of the welfare state represents, for many, the “Golden Age of the Modern State”.13 Under this framework, a cooperative sense is what gives structure to the distribution of social benefits, as well as to international relations.

Afterwards, throughout the 19th Century, marked by the ambition of the powers to conquer and control remote lands, the colonial view of international Juan N. Silva Meza relations projected upon the texts of international law a relativism favorable 14 Supreme Court of Justice Mexico to the European empires, recognized as “civilized nations” to differentiate them from those national units, had no intention to comply with the practice of the international community, so considered.

To summarize, simplifying the progression of the historical phases that characterize international relations, whose relatively constant flow was interrupted by the failure of the Society of Nations, which was an international entity incapable of resolving the conflicts inherited from the First World War.15 International relations were, in essence, anarchic. This is due to the

58 fact that throughout this period of time, there was not a recognizable pole of concentration of legitimate violence at the international level.

The States hid behind their internal rules and alleged the involvement of other interests insofar as any external entity challenged their sovereign authority. In this manner, throughout this period, the “decentralized and anarchic” systems stood out to be contrasted with the domestic political regimes, which were, in essence, “centralized and hierarchical”.16 As a discipline, international relations have been limited to managing power relations, or more specifically, to solving them, or in the best-case scenario, to preventing conflict. They were the tools for war and for peace, and the States were recognized as the sole players on the field.

This is in contrast to our current reality; no one can question that the main objective of the United Nations is to prohibit the use of individual force, and not only resolve disputes before a threat to peace arises.17 It is in

13 Hobsbawm, Eric, The Age of Extremes: the Short Twentieth Century: 1914-1991, New York, Vintage, 1996. 14 Virally, Michael, El devenir del derecho internacional, Mexico, Fondo de Cultura Económica, 1998. 15 The thesis of perpetual peace, declared by Kant in 1795, was thought to have been put into practice after the First World War via the Society of Nations. A review of the failure of this first intent and its transition to the system of United Nations; in Moreau Defarges, Phillipe, “De la SDN à l’ONU”, Pouvoirs, no. 109, April 2004, pp. 15-25. 16 Waltz, Kenneth, Theory of international politics, New York, McGraw Hill, 1979, p. 88. 17 Opinion of Judge Mohammed Bennouna, of the CIJ, in Sepúlveda amor, Bernardo (coord.), Nuevos Diálogos sobre la Justicia Internacional, México, Secretaría de Relaciones Exteriores-UNAM [Ministry of Foreign Relations-UNAM], 2012, p. 43. part due to these transformations of the central purpose of international relations, that the protection of the individual is now considered as a central interest; such individual has not only become the object, but also the subject of international law. This gives rise to a rereading of the formerly called “law of the nations”.18

The consistent reconsideration judiciary’s turn

of international law Human Rights; the mexican The internationalization of

International law is, without a doubt, an indispensable element to understand the “most important social phenomenon that was constructed by the will of man”, as Georg Jellinek would define the State in a text published for the first time in 1900.19 With such terms, he alluded the state phenomenon as the essence of modernity, this being the last generator of a new social order.

From the diffusion of the thesis of Hugo Grocio in the XVII century, the 59 founding fathers of the first schools of international law, passing through modernity and all the way to the transition to the contemporary age of public international law, the affirmation of the need to impose limits on sovereignty continues to be made. All intents to encourage international relations should then begin through the dissolution of the notion of the “reason of state”.20 From this point, when constructing the international community, sovereign nations must assign part of their attributions of decision making in the last instance to international entities. As of that time, the need to cooperate with other nations became a constant in the international concert, in such a measure that the State may no longer unilaterally separate itself unilaterally from its commitments.21

A first fundamental problem of the discipline is centered upon the delimitation of the sources of international law, and the second, on its reception in domestic law. Regarding the first, there is a more or less constant agreement of dividing them into formal sources (including the treaties and international customs) and real sources (containing the principles of international law

18 Schreuer, Christoph, “The Waning of the Sovereign State: Toward a New Paradigm for International Law?”, European Journal of International Law, no. 4, 1993, p. 447. 19 Jellinek, Georg, Teoría General del State [Allgemeine Staatslehre], tr. by A. de los Ríos, Buenos Aires, Albatros, 1943, p. 32. 20 Una visión del nuevo papel de las instituciones internacionales, in Liebfried, Stephan and Zurn, Michael, Transformations of the State, Cambridge, Cambridge University Press, 2005. 21 De Vree, J. K., Political Integration: The Formation of Theory and its Problems, The Hague, Nomos-Verlag, 1972. and the jurisprudence issued by international courts).22 The difficulties that arise in our country from the second problem include the infrequency, for domestic judges, to study the interpretative guidelines and principles established by international law that allow them to apply treaties and conventions in the internal sphere regularly.

In the past, those of us that were educated in the judiciary were not aware Juan N. Silva Meza of the practice of regarding the discretional nature of the state legitimately

Supreme Court of Justice Mexico limited by virtue of Mexico’s international obligations. Due to a generalized jurisdictional concept, international guidelines were conceived that, while not foreign to our sphere of knowledge, at least, were foreign to us in very specific uses. For this reason, those that start out or are re-introduced to the study of international institutions (whether a practicing judge or not) must remember that the perception that dominated in the judiciary for decades, must stand aside to be reinterpreted in its current context, affirming that this does not deal in the substitution of legal sources, where the sources of law have been reconsidered. No hierarchical rearrangement of the Treaties 60 shall operate in detriment to domestic law. The point is to understand the dimension of the international guidelines as elements that complete the domestic judicial order, not as “other” elements that proscribe, or annul them. Therefore, the good faith principle (that all interpretation must arise out of the postulate of international law) assumes a central role in the interpretation of these provisions.

Article 31 of the Vienna Convention on the Laws of Treaties bases its interpretation on good faith, which is extended in addition to unwritten guidelines, such as international custom. This is a structural or fundamental custom, considered as such by virtue of the Charter of the United Nations,23 which is additionally assumed as a document that predominates over other Treaties.24 These provisions, read in light of Resolution 2625 (XXV) of the UN General Assembly of October 24, 1970, continue to signify, even today, the international bases of the principles, which include the compliance with “the good faith of the obligations contracted by the States in accordance with the Letter, which is of the greatest importance to keep international peace and security …”.

22 Fitzmaurice, Gerald, “Some problems regarding the formal sources of international law”, en Koskenniemi, Marti, Sources of international law, Dartmouth, Ashgate, 2000, p. 58. 23 Art. 2.2. of the Letter of the United Nations. “The members of the Organization, in order to ensure the rights and benefits inherent to the condition of the same, shall comply, in good faith, with the obligations contracted by the same under this Letter”. 24 Art. 103 of the above-cited. Charter “In the event of a conflict between the obligations agreed to by the Members of the United Nations in virtue of this Letter and its obligations agreed to in virtue of any other international treaty, the obligations imposed by this Letter shall prevail”. Not wanting to impose an univocal idea, it has been said that good faith is “the opposite of formalism; it is the rejection of the absurd, and the recognition of good sense [if it is given that] that when executing a Treaty it is difficult to determine which one of the conventional guidelines are ambiguous”.25 Of course it is not easy to determine the exact point of this type of standards of conduct of the appliers of international law. In this sense, we can see the resistance towards standardizing the application of international judiciary’s turn

law in the internal level. Human Rights; the mexican The internationalization of

Resistance to the reception of International Law

It seems that the old discussion that has been repeated for generations in law schools, regarding the dilemma between monoism and dualism in public international law, has been left behind. The monoist theory appeals to the unit of legal order ensured by the State, making prevail, as the case may be, domestic or international law. On the other hand, the dualist theory claims an initial disengagement of international law from domestic law, in 61 such a way that both orders can be in contact, but cannot over-impose each other. They operate in different spheres, and therefore the guidelines of international law may not abrogate the guidelines that may be contrary in domestic law.26 The complexity of this eternal dilemma, however, continues to be an obstacle to its generalized comprehension.

Although it may seem evident that each legal system has chosen one or the other framework, this debate has decreased in intensity by virtue of the possibility of the demand for international criteria before specific Courts, although this does not depend upon the existence of laws that include the same within the sphere of domestic law. The common language of human rights has allowed us to make the tacit recognition of legal pluralism within the international sphere, where a multiplicity of texts and jurisdictions co-exist, offering spheres of complementary protection that work as harmoniously as possible, in order to offer greater guarantees to the universality of these rights.27 Although the emergence of this renewed alternative for legal interpretation allows for a concrete result that shall transform the theory into practical application tool, the resistance towards

25 Zoller, Elizabeth, “Commentaire à l’art. 2.2”, cit. by Fernández de Casadevante, Carlos, La interpretación de las normas internacionales, Pamplona, Aranzadi, 1996, p. 47. 26 Moreno Quintana, Lucio M., Tratado de derecho internacional, Buenos Aires, Editorial Sudamericana, 1963; t. I, pp. 83-85. 27 Von Bogdandy, Armin, ¿Hacia un Ius Constitutionale Commune en América Latina?, in La Justicia constitucional y su internalización, México, IIJ-UNAM/Instituto Max Planck de Derecho Público Comparado, 2010; t. I, chapter II, p. 559. the standardization of the validity of international law within the internal venue, continues to reappear.

The above shows, with certain clarity, the tendency of the North American Courts (starting with the Supreme Court of the US). The jurisdictional practice of our neighbor to the North conceives of international law as a foreign standardization that is incapable of being linked to domestic law. Juan N. Silva Meza Within the Court itself, Justice Stephen Breyer has affirmed, “I respect the

Supreme Court of Justice Mexico use of foreign law; it is understandable that a judge may not be able to read it completely. But if lawyers find a foreign case that is both useful and interesting, and they make reference to it in the case at hand, it is quite probable that judges will read it as well, using it to feed their reflections, but not as a linking precedent”.28 It is quite possible that such opinion may be read in the North American forum as being a proclivity towards judicial comparisons. Although expressed in such a manner by a liberal judge sitting on the Supreme Court, the affirmation confirms, at the same time, the resistance by the US legal system, which actually tends to question the 62 mandatory nature of international law.

Therefore, in spite of a condemnation against the US State, the execution of the Mexican José Ernesto Medellín in 2004 could not be stopped, indicating, not only that the resolution by the International Court of Justice (hereinafter the ICJ) was not respected in the Avena decision,29 but rather it was expressly breached by the US State.

The US judges’ resistance, which the Supreme Court considered founded due to the absence of domestic legislation that would expressly recognize the manner in which the international resolution should be validated, also seems to extend to the domestic jurisdictions of other countries, as well. All judges have reasons to avoid, at all costs, the postulations of the law, which imposes strict obedience of the law.30 The situation is much more understandable if we consider that there are very few legal systems that

28 Dorsen, Standardn, “The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer”, International Journal of Constitutional Law, vol. 3, no. 4, 2005, p. 519. 29 We cannot forget to recognize both the participation of the then ad-hoc Judge, Bernardo Sepúlveda Amor, before the CIJ at the Hague, as well as the work of the Mexican Chancellor, which together did an exceptional job trying to indicate reason and the international law in this case, which as we know, ended up as a breach and in the execution of the resolution within the terms provided by the internal jurisdiction of the US. Sepúlveda Amor, Bernardo, La Corte Internacional de Justicia y la protección de los derechos del individuo: el Caso Avena, México, Supreme Court of Justice of the Nation (in the media). 30 Horvitz, María Inés, “Las nociones del Estado de Derecho y Rule of Law. Origen, evolución y contenido”, en Estado de Derecho y reformas a la justicia, Santiago, Heidelberg Center for Latin America, 2004, pp. 19-25. have provided, in their secondary legislation, the concrete manner to receive international law internally. In the Inter-American region, only

Colombia, Argentina and Peru have taken concrete legislative measures to insert, in their legislation, rules that make reference to this reception.

At first glance, it may seem less erroneous for judges of a country to have a road map of the law, which of course, does not only guide them, it also judiciary’s turn

binds them. In this respect, our diplomats (let us remember that we have Human Rights; the mexican The internationalization of a proven tradition of diplomacy in Mexico, one of the most solid on this continent) have pointed out that Mexican legislation should define the terms and conditions related to the compliance of our international obligations, which “is really minimal”.31

They have also pointed out that Mexican foreign policy related to the ratification of Treaties cannot be considered sufficiently timely, because the Executive sends the texts to the Senate for ratification (we have 1,372 bilateral or multilateral treaties in effect),32 but the Congress does not have the capacity to generate the secondary legislation that will allow the 63 authorities of the country to be aware of the manner in which our international obligations should be complied with. In order to illustrate this point, there are specific provisions in the Federal Law of Patrimonial Liability of the State, which only make reference to the payment of damages, and which complement the resolutions of the Inter-American Court of Human Rights (hereinafter, the IHR Court) or recommendations of the Inter-American Commission. Certainly, the reparations derived from our international obligations, are not exclusively limited to pecuniary aspects. Therefore, faced with the lack of a timely reaction from the domestic legislator, the courts are in charge of exercising the sovereign competence of the State and of issuing resolutions, even in the absence of internal, harmonizing laws.

In contrast, domestic judges of the European States, assume that when a Treaty exists, then subjective law has arisen. This is due to the tendency of attributing a self-executing character to the Treaties in such countries.33 Also, in our context, the difficulty faced by judges is focused on the fact that

31 The opinion of Ambassador Joel Hernández García under Sepúlveda Amor, Bernardo, cit. n. 16, pp. 110-112. 32 Information provided by the Department of International Policy of Civil, Political and Democratic Rights of the Ministry of Foreign Relations, September 26, 2013. 33 We should not lose sight of the fact that our Constitution attributes to the Treaties, the character of “self-executing”, and in the measure in which the ratification process of such treaties is considered concluded, then such instruments are considered the “Supreme Law of the Nation”, as provided, literally, under Article 133 of the Constitution. frequently, the international rules do not establish a foreseeable procedural rule to make the rights mandatory as established in the sphere of the community.34 To apply European or international law, may sometimes be perceived as the substitution of a domestic law by a foreign order, although this might have to do with complementary sources.

Juan N. Silva Meza Lastly, this by no means exhaustive list of aspects that accentuate this resistance, I also mention the issue of originating will of the parties that Supreme Court of Justice Mexico signed the Treaty at a certain time. Given that there is a certain consensus with respect to the reserves issued by the States when signing a Treaty, that with the passage of time, may no longer make sense;35 indeed, they may even be considered jurisdictionally invalid, or be subject to restrictive interpretation.36

By virtue of international cooperation, the intentions of the parties that signed an international instrument may not condition the evolutionary 64 character of the instrument itself. Therefore, the commitment acquired with another or other international entities,37 would imply that the interpretative tendencies, such as originalism, so related to the conservative makeup of the current Supreme Court of the US, shall have a difficult time supporting themselves in the sphere of international jurisdictions.

Without taking into account the will of the signatories as a topic lacking of interest, the Treaties establishing institutions or rights emerge as entities that have their own personalities, regardless of the intent of their founders.38 Therefore, certain texts, such as the American Convention on Human Rights, cannot be read literally, but rather in the light of the jurisprudential evolutions that came later.

34 Taxil, Bérangère, “Les critères de l’applicabilité directe des Traités internationaux aux États-Unis et en France”, Revue Internationale de Droit Comparé, no. 1, january-march 2007, pp. 158-176. 35 By mentioning the reserve proposed by the Mexican State in 1947 with respect to the jurisdiction of the CIJ, which no longer has grounds, and which some consider should be formally abolished by the Senate. From the participation of Juan Manuel Gómez Robledo in Sepúlveda Amor, Bernardo, cit. n. 16, pp. 100-101. 36 Regarding these two aspects, see first the resolution of the CEDH in the case Belios v. Suiza, April 29, 1988, as well as General Comment no. 24 of the Committee of Human Rights of the United Nations of 1994, in González Campos, Julio y Sánchez Rodríguez, Luis, Curso de derecho internacional público, Madrid, Civitas, 2002, p. 742. 37 Klabbers, Jan, An Introduction to International Institutional Law, Cambridge, Cambridge University Press, 2002, pp. 28-30. 38 Gerstenberg, Olivier, “Denationalization and the very idea of democratic constitutionalism: The Case of the European Community”, Ratio Juris, no. 14, 2001, pp. 298-302. From the matters set forth here, we can measure the magnitude of the challenge faced by the Mexican judiciary. However, we can also ensure that this challenge has the possibility to be faced.

Part II. How to assume the challenge judiciary’s turn We are living in a time in which territorial borders are yielding to cultural, Human Rights; the mexican linguistic and social changes. Now, mobility is one of the most valued The internationalization of attributes of human beings in the 21st Century, the universality of rights should be able to find an effective guarantee that allows every single individual to easily move from one region or country to another in order to seek out better opportunities, with the certainty that their rights will be respected regardless of the place where they can be found.

Taking a specific case into account, migration among countries implies the guarantee of many other rights, just to mention a few: religious freedom; the right to health and education; security and access to justice. As judges, we 65 resolve controversies, which may imply the confrontation between standards and personal history. This equilibrium between facts and standards, allows us to take in consideration that the harmonization of the law, including in this operation, the standards and principles of different places, is a better option than the one we lived years before, where the rights of each national unit were prevalent. Personal stories no longer have a geographical anchor; neither do standards.39 The individual has the right to have his rights recognized regardless of the place where he is located. The achievement of this objective is well worth the effort.

Jurisdictional response to resistance

The initiative by the Mexican Federal Executive Branch in 1998, ratified by the Senate, regarding the express acceptance of the IHR Court, is certainly an advance in non-arithmetic dimensions, but rather geometric ones, in favor of all the actions subject to legal review in our country. Not because the Inter-American Court has become a fourth jurisdictional instance where any person that is unsatisfied, can continue to litigate its legal position regarding a case lost in the domestic courts.40 It is rather naïve and

39 Regarding the Law and the democratic state of the law under the terms of the theory of discourse. See Habermas, Jürgen, Facticidad y validez, Madrid, Editorial Trotta, 1998, Chapter I. 40 The Court itself has determined that this jurisdiction shall not act as the fourth venue that will review the aspects of the trial that should be reviewed by the judge of the cause, to wit: “establish whether the mother or the father of the three girls can offer a better home for even dishonest that lawyers present their customers with litigation strategies that generate false hope, for instance, “if we lose the amparo proceeding (Constitutional Writ for Relief), we can win in the Inter- American Court”. In reality this change in constitutional paradigm is a situation of much larger dimensions. The sole existence of the jurisprudence of this regional Court is a call to substantially change the manner in which we present arguments that re related to the protection of the person, given Juan N. Silva Meza that every individual has the power, from now on, to call upon a much more

Supreme Court of Justice Mexico complete and consistent catalogue of rights.

Following a chronological order in the manner in which the interpretations were made (and including, how each of these went from one court to another, in what is now known as “cross-fertilization of criteria”),41 it is important to begin to understand the operation of the dialogue between the European jurisdictions.

The task of the Court of Justice of the European Union (known, in those 66 first few years of existence, as of the European Communities), in the sense of limiting internal law with respect to international law, started after the decision in the Van Gend & Loos case of February 5, 1963. In this decision, the Court stated that the Treaty of the then-called European Economic Community was not limited exclusively to linking the signatory domestic institutions, but it also involved citizens of the community, who as of that time could invoke European law before their domestic Courts. The same Court complemented the precedent the following year on July 15, 1964 when it resolved the case of Costa v. Enel. From its headquarters in Luxembourg, such Court determined that domestic jurisdictions were linked, within such States by the standards of European law, and that no reasons arising out of internal law could be alleged not to follow a community provision.42

But these paradigmatic criteria are no exclusive to the European perception of the protection of human rights. Although they may take time to travel from one country or content to another and be implemented, they are part of a common corpus that is included in the relevant decisions of the IHR Court. In the case of Almonacid Arellano y otros v. Chile, resolved on

them, evaluate the tests for this specific purpose, or issue a resolution regarding the tuition of the girls”, extract from the Atala Case, see Infra. 41 Groppi, Tania y Ponthoreau, Marie-Claire, Use of Foreign Precedents by Constitutional Judges, London, Hart Publishing, 2013. 42 These developments can be found recently in various references, cf. Mezzetti, Luca y Fanotto, Luca, Constitución y políticas de la Unión Europea [Costituzione e Politiche dell’Union Europea], tr. by V. Barreto, Bogotá, Universidad Javeriana, 2008, pp. 35-42. September 26, 2006, with similar implications, or at least related to the criteria of the European court just mentioned, Chile was sentenced by the IHR Court by considering that an amnesty law cannot be promulgated as a reason to create an exception to slow down the validity of the international standards for the protection of rights.

It should also be noted that it has been infrequent that European judiciary’s turn jurisdictions impose a unanimous interpretation in their conception of Human Rights; the mexican rights. For instance, in 2004 the ECHR was in favor of respecting the The internationalization of national appreciation regarding the voluntary interruption of a pregnancy. “Taking into account the diversity of conceptions, facing the problem of the commencement of life, references to judicial cultures and to the standards of national protection which give rise to the ample discretional power of each State”.43

With more celerity than the example above, the IHR Court took over some aspects of this resolution in the case of Artavia Murillo y otros v. Costa Rica of November 28, 2012, where the Costa Rican government was sentenced 67 for having concluded, from a Reading of its constitution, a right to life, which the domestic legislator was trying to make compatible with the declaration of the same under Article 8 of the American Convention on Human Rights, voting on a law prohibiting in vitro fertilization.

The fact is that within a wide range of maters that interest Courts sitting in different regions, there are coincidences and contrasts that are worth the try to understand and harmonize them, in order to better protect an individual. It is in this regard, since a few years ago, the notion of jurisprudential dialogue was created.

The notion of jurisprudential dialogue

Since at least 40 years ago, European constitutional judges have had to get used to harmonizing the interpretation of internal law against the jurisprudence of two courts of European law (one, sitting in Luxembourg, that safeguards the regularity of the treaties on which the functioning of the European Union is based, and the internal sphere of its current 28 member states; and another court, sitting in Strasbourg, which adheres the actions of the authorities of the 47 countries that are members of the Council of Europe, the continental equivalent of our OAS). Despite how complicated

43 Delmas-Marty, Mireille, “Les droits de l’homme: processus d’humanisation réciproque”, La conscience des droits: mélanges en l’honneur de Jean-Paul Costa, Paris, Dalloz, 2011, p. 212. this system may seem, the harmonization of criteria has been functional and beneficial for everyone.

These developments have become possible due to the fact that the two European courts are assumed to be the subsidiaries of the judge of first instance in each one of these countries, and the latter are responsible for guaranteeing the regularity of the ECHR as well as all of the European Juan N. Silva Meza guidelines regarding human rights. Supreme Court of Justice Mexico

To limit oneself to a domestic perception (which may lead to nationalist restrictions) of rights, during a completely global era, is simply nonsense.44 The so-called “jurisdictional wars” have been characterized even using expressions of strong connotation, such as the one penned by the Colombian press as a “train wreck” to describe the interpretative conflicts that arise between the constitutional Court and all other domestic Courts of last resort (the Council of the State, the Supreme Court of Justice and the Superior Council of the Judiciary). Their magnitude has even hinted at a certain 68 showing off of some before the others, driving certain parties to impose a government by judges, according to the term coined by Edouard Lambert.45

There should be no doubt that the best road to internalization and in order to avoid the extremes of an eventual “war” among judges, is that of the standardization of a dialogue between jurisdictions. While we know that a judge will always be circumscribed to a certain territorial sphere (for the domestic judge), and he will be subject to a group of specific guidelines (applicable to the domestic as well as the international judge), the reality, nowadays, is that it pushes us towards opening ourselves up to other rule universes or systems.

It is in this manner that the bases have been established; through the dialogue between jurisprudential criteria, from the generation of the referenced effet utile of the international obligations of the countries. Certainly, we should note that the form of these efforts is not isolated, but rather supported in the Inter-American level by the Supreme and Constitutional Courts, which establish a domestic venue providing the manner in which the control of conventionality should be exercised. At least up to now, this dialogue puts our Supreme Court of Mexico on a level playing

44 Bourgorgue-Larsen, Laurence, “De l’internationalisation du dialogue des juges”, from Le dialogue des juges: mélanges en l’honneur de Bruno Genevois, Paris, Dalloz, 2009, p. 98. 45 López Daza, Germán Alfonso, “El juez constitucional colombiano como legislador positivo: ¿un gobierno de los jueces?”, Cuestiones Constitucionales, no. 24, Jan-June 2011, pp. 170-178. field of similar efforts developed by the High Courts of Argentina, Bolivia, Colombia, Costa Rica, Guatemala, Panamá, Perú and the Dominican Republic.

However, the above-mentioned dialogue is produced not only from the domestic to the regional Courts. The magnitude of the challenge implied by this interpretative operation also permeates the interior of our domestic

legal systems, and as of this time, we undertake the test of conventionality judiciary’s turn of the laws and actions - we are not just the supreme courts of instance; that Human Rights; the mexican is the responsibility of the judges with which the citizen has the first contact. The internationalization of

As of today, the judges in charge of resolving exceptional recourses for the protection of rights (such as the amparo, or constitutional writ of relief, in the case of Latin America), shall have to respect and guarantee that the exercise of the application of the Conventions by the first instance judges has been in accordance with the guidelines and international principles subscribed by each country.

The considerations of the resolutions of the regional Courts, and not just in 69 the Inter-American or European contexts, but also, recently, in the African system, are constructed through the dialogue using the criteria pronounced by other domestic Courts, or including the regional courts, among them. It should not be foreign to us that the IHR Court is starting to resume the considerations drafted in the heart of the Mexican Supreme Court.

In the first place, we can citeAtala Riffo y niñas v. Chile, from February 24, 2012 (para. 126), where the IHR Court revisits the fact that the Supreme Court of Mexico took into consideration studies regarding sexual orientation in the development of the child and determined that from them it cannot inferred a personality disorder in a minor arising from the cohabitation with homosexual parents. “Each family has to be analyzed specifically, not from a statistical point of view” (as provided by the Supreme Court of Mexico in the Unconstitutionality Motion A.I. 20/2010, dated August 16, 2010).

In the second place, in the Supervision of compliance dated March 20, 2013 (para. 81), related to the resolution of the case Gelman v. Uruguay dated February 24, 2010, the IHR Court refers expressly (para. 19) to the file of Various 912/2010 issued by the Supreme Court of Mexico on July 14, 2010, determining that the criteria of the Inter-American resolutions in which Mexico is a party are mandatory in the internal venue for the Federal Judicial Branch.

Likewise, in the Supervision of Compliance issued by the IHR Court on March 14, 2013, pertaining to the case of Rosendo Radilla Pacheco v. Estados Unidos Mexicanos, dated November 23, 2009, the IHR Court recognizes the manner in which the Supreme Court of Mexico establishes limitations on the military, taking into account the obligation of the Judicial Branch to exercise ex officio conventionality controls between the internal guidelines and the American Convention, determining the bases for the principle of pro persona, but above all, establishing clear limits in terms of the so-called compliant interpretation. Juan N. Silva Meza

Supreme Court of Justice Mexico Does being able to discuss, imply open authorization not to apply guidelines?

As a first case, the dialogue among jurisdictions needs a minimum standard of unity. The dialogue seeks the law that best protects the individual, as established by the amendment to article 1 of the Constitution in June 2011, and does not imply the open authorization to every judge not to apply domestic law. Or similarly, to seek, at any cost, the manner in which it is able to understand a domestic provision as against the guidelines y the principles of 70 the American Convention on Human Rights. This will make the application of the Inter-American standards automatic in terms of preference for the judges in the country, to the determinant of domestic law.

Very much to the contrary, the tacit commitment of seeking out compliant interpretation gives rise to the obligation to seek out the manner in which the domestic provision that is being claimed against, may be read harmonically, in such a way that it does not contravene the valid international provisions in that regulatory sphere.46

As operators of the Mexican judiciary, subject to the demand of the unity of the legal system, we see ourselves constrained to integrate the law as compliant interpretation; in the manner of a harmonious whole, incapable of being opposed to the National Constitution, or the human rights international law (such as the American Convention or other instruments of the Inter-American system). The intention of this interpretative operation is to direct the judicial order towards recovering its unity without having to wait for a case to go through the successive courts (and much less, without having to arrive at the superior courts). In this manner, rules from various formal hierarchies will be equipped to pass through a unifying screening in order to be realized as of the first time the individual has contact with a judge. The armor that protects the Court, understood as under the form of

46 Luciani, Massimo, “L’interprétation conforme et le dialogue des juges”, in Le dialogue des juges… cit. n. 43, pp. 694-698. discretional appreciation in the sphere of its jurisdiction, has been submitted to the guidelines that shall be standardized in coming years.

But the latter does not allow for each judge to be invited to seek out his valid interpretation, contributing to the fact that the standardized order turn into a tangled mess of unconnected legal lectures. It is, on the contrary, the seeking out of a compliant interpretation as common ground, or a basic rule, that judiciary’s turn

does not only refer to the rules of the game and their proceedings with the Human Rights; the mexican The internationalization of sufficient level of congruence, but rather also to the elements that explain the sense of the legal system itself, which is contained, above all, in their fundamental principles. Reading a contract, decoding an arbitration clause, determining the sphere of a regulation or of a code in the light of the principles of the democratic system, the constitutional State of law, the Universal Declaration of 1948. This is the way in which the interpreter must carry out everything that is in his reach to provide a sense of coherence to the domestic regulation being interpreted, and not vice versa. If we present the first purpose as how not to apply, the jurisdictional dialogue shall be both plain and a monologue. 71

The exceptional character of the non-application of standards as a result of conventionality may give rise, then, with the formula: “laws are not declared contrary to the Constitution simply because unconstitutional interpretations can be attributed to them, but rather it is impossible to assign them a compliant interpretation from the Constitution”.47

Our Supreme Court is in charge of providing all the Mexican legal stakeholders the elements necessary to propitiate, not only this dialogue (as it appears is starting to occur and permeate all of the Courts in the country). Above all, this dialogue has to be fruitful and respectful; that it develops without the desire to show off, and with the responsibility to achieve the best reading possible of each hypothesis.48

Sometimes, the best protection might arise from a standard from internal law. We must not forget that the new task of the judges consists in extracting the best from each of these guidelines, finding the equilibrium of the standards tending towards the harmonization, always keeping the individual in mind. An example of this approach is the resolution achieved by the German Constitutional Court in 2009; it may also be possible not to apply a standard of community law, giving priority to a domestic standard. In this resolution,

47 Emphasis added, Idem., p. 697. 48 Dworkin, Ronald, Law’s Empire, Boston, Harvard University Press, 1986. the Court provides that the domestic judge, may even prefer the application of sub-national legislation (one of the Länder) to the conventional provisions of the ECHR, in order to provide better individual protections at the internal level. In fact, the German Court put aside the European standard, due to the fact that the same may be against the constitutional identity of Germans.49 Juan N. Silva Meza On occasion, this better protection of the individual is based on a decrease

Supreme Court of Justice Mexico of its complexity. The judge must also consider that the constant increase in the letter of rights is not always synonymous with automatic greater protection. The proliferation of guidelines may even turn into a sort of interference among rights, where the appearance of a new law does not always result in a positive balance, jurisdictionally speaking; from here on, the resurgence of the importance to carry out the evaluation of the proportionality of each law in the normative order.

This point leads to carry out, lastly, the quick evaluation of one of the most 72 relevant resolutions issued by the Supreme Court of Mexico in the last few years with respect to the application of international norms in the internal sphere. After a few years of waiting, and of constitutional and legal amendments that gave rise to the process, in September 2013, the Supreme Court of Mexico resolved a contradiction of criteria between two collegiate courts and established a relevant interpretation, clarifying some of the most significant guidelines and outlines the jurisdictional dialogue in which the courts of this country are involved. Dissident voices appeal to resist against a supposed regression.

It seems, however, that those initial reactions are regular. Together with the notion of the jurisprudential dialogue, some European Constitutional Courts have made interpretations that allow for the avoidance of obstacles that the internal law seems to present before the standardization of international law in the domestic venue.50 But in other resolutions, the same courts set certain prior methods as a condition for a Treaty, with unconstitutional clauses, to be able to govern in the internal sphere. Shall we then have to admit that before a domestic constitution, the universality of human rights is not an absolute whole.

49 2 BVerfGE 2/08 E.A., June 30, 2009, regarding the constitutionality of the treaty of Lisbon. It should be noted that hits decision resumes, almost completely, the argumentative ties with the decisions of Solange I & II as well as that of the Constitutionality of the Treaty of Maastricht of 1993, previously cited. 50 Decision 2004-505 DC of the Constitutional Council dated November 19, 2004, regarding the prior control of the constitutionality of the Treaty of Lisbon. Within the confines of the dialogue: constitutional reservations of treaties

Under international law, it is a principal of jus cogens that the international treaties regarding human rights do not impeded that the Constitutions establish limits and restrictions to them. As an example, the European Charter of Regional and Minority Languages, executed in Budapest in judiciary’s turn

51 Human Rights; the mexican

1998, caused diverse reactions in the countries on the continent. Under The internationalization of constitutional terms, the promotion of languages in danger of disappearing (and above all, the recognition of the collective rights of the speakers of such languages), cannot be read as an intrusion on the principles held by domestic law. This was considered as such in Italy as well as in France. In the latter case, the Constitutional Council declared various clauses of the above-mentioned letter to be unconstitutional, because they considered that they went against the principles of the indivisibility of the Republic and equality under law. By virtue of constitutional justice, the current constitutional framework prevents languages other than French to be 73 employed anywhere in the public sphere.52

When the dialogue between jurisdictions alluded to herein is produced, some courts have also read certain domestic constitutional precepts that cannot be but translated into concrete restrictions on the content of the treaties in the matter. This is this way because the domestic constitutions can install specific conditions at the validity of the Treaties, which can only be explained by the irreductible character of all States.

The jurisdictional exception that is most quoted in this respect in the European sphere was the one established by the German Constitutional Court in the cases of Solange I and II. The first of these resolutions clearly established that the jurisprudence of the court of Luxembourg should not systematically and principally, predominate. The application of European Law in the internal sphere would depend, therefore, on the proving that the application of a community standard shall not restrict the constitutional bases of the Federal German Republic. European Law has to show protection of the individual that is at least equivalent to the protections that can be obtained from internal law.53

51 Jensdottir, Regina, “Qu’est-ce que the Charte européenne des langues régionales ou minoritaires?”, Hérodote: Révue de Géographie et de Géopolitique, vol. 2, no. 105, 2002. 52 Decision n° 99-412 DC dated June 15, 1999. 53 BVerfGE 37, 271, May 29, 1974. In Solange II, the German Court completed the above criteria, to the contrary, establishing that its jurisdiction would not interfere when the European courts could ensure an equivalent list of protected fundamental rights.54 In this manner, German constitutional justice decided not to absolutely apply the criteria cited above from the case Costa v. Enel, which seemed to impose the absolute primacy of the European law on the internal venue.55 Juan N. Silva Meza Now then, this does not mean that a Treaty cannot be considered mandatory

Supreme Court of Justice Mexico after an internal review of constitutionality. Prior the coming into effect of the Treaty of Maastricht in 1992, the constitutional courts in Germany, Portugal, Spain and France committed themselves to issue resolutions acting as warnings to the permanent constituents: “or the constitution is amended, or reserves are imposed upon the treaty, but within the state in which it was negotiated, this treaty shall not be valid”. The countries provided above amended their constitutions, and by virtue of the extension of the corresponding competence, the Treaty could not come into effect.

74 In our country, the Supreme Court of Mexico resolved, on September 3, 2013, the Contradiction of Thesis 293/2011, clarifying three fundamental aspects related to the application of international law on the internal venue. As of this moment, a) the entire corpus of the jurisprudence of the IHR Court (not just the resolutions condemning the Mexican State) are understood to be binding on the Mexican authorities as long as this implies a greater protection for individuals; b) the human rights contained in our Constitution are arranged in the same hierarchy, or in other words, the same constitutional value before the provisions of the international treaties; and c) human rights granted under the Constitution may be limited, as long as such restrictions are contained in the actual constitutional text.

It should be noted that when referring to the third of these aspects, our solution is in contrast to the solution adopted by European countries, where by virtue of a dialogue between courts, it was decided to determine the guidelines to define the mandatory nature of European Law under each case.

In France, the constitutional judge is not called to analyze the actions of the application of treaties, given that these are equal to the control of legality. In that country, the controls over legality make up an exclusive competency of the jurisdictions of the first contact by the citizen (at the apex is the Council of State and the Court of Appeals). Even so, when analyzing the

54 BVerfGE 73, 339, October 22, 1986. 55 Supra, n. 41. requirements imposed upon the voters in the territories of New Caledonia,56 these looked different from those demanded from the voters residing in the metropolitan area of France, and both jurisdictions declared in the same sense, affirming that they could not place in doubt the supremacy of the French Constitution over the Treaties.57 This does not mean that the State has been hiding behind its own laws to try and avoid complying with the content of a Treaty.58 The constitutional judge may only pronounce judiciary’s turn

himself before the voting into effect of such international instruments by Human Rights; the mexican The internationalization of means of the control of the constitutionality of the Treaties.

Without a doubt, it would be useful to explore the functioning of the preventive mechanism of the constitutional regularity of the international guidelines before these come into effect, in order to incorporate them to the sphere of Mexican constitutional litigation. In effect, the prior control of the Treaties (which also exist in Germany and Spain) allow for a review of the terms of diplomatic negotiation of an international instrument (and then a determination can be made of the predominance of the clauses contrary to 75 the same, recorded in the domestic constitution itself). In addition, in such operation, the criteria of the hierarchy of the Treaties before the Constitution should not represent the only aspect to be taken into consideration. Let us remember that in the Mexican context, an evaluation could be avoided based solely on the hierarchical aspects, thanks to the sense that is imminently favorable to the individual as imposed by the new Article 1 of the Constitution as the pro personae principle.

However, the standardization of the jurisprudential dialogue seems to be an operation that shall take time to assimilate among all of the legal actors in this country. The days following the one in which the Supreme Court of Mexico resolved the above-cited Contradiction of Thesis 293/2011, a public debate arose regarding the apparent unconventionality of the constitutional

56 An island in the South Pacific located more than 1,000 km from Australia, which in 1999 acquired a unique legal status for its internal matters, with a territorial assembly and its own currency. Although the statute does not grant electoral rights equal to that of the French and Kanaks, this exception was resolved after 2014, year in which a referendum has been scheduled to determine the type of adscription of the island with the metropolis. 57 In the Sarran, Levacher y otros case, resolved on October 30, 1998 by the litigious department of the Council of State of France, it was determined that by contrasting a provision of a Treaty with the provisions of not only the Constitution, but also the Declaration of 1789 (with constitutional value in France), its control must be based on an exercise that could only be made preventatively by the Constitutional Council. Therefore, the international order can never be given priority over the internal order. 58 Regarding this point, the Council of State pronounced, on June 2, 2000, in the Pauline Fraisse case, that although this time the analysis included domestic law (which had been considered constitutional since it was part of electoral law), compared to the guidelines of the European system (to wit, the CEDH), but also the international system (specifically, the International Agreement on Civil and Political Rights). restrictions imposed on human rights in the Constitution itself. A part of the judicial sector qualified the resolution as regressive, disappointing, and even disrespectful to human rights. Such perceptions seem to be based on the belief that the exercise of human rights cannot be subject to restrictions and limitations.

In the case of Mexico, the clause that some consider “unconventional”, was Juan N. Silva Meza the prolonged temporary detention (arraigo), introduced in our Constitution

Supreme Court of Justice Mexico in 2008 under Article 16, paragraph eight.59 Although a superficial reading of the same may warn of the fact that granting an arrest warrant requested by the Public Prosecutor, is not an obligation for the judging parties.

Another reason that explains the reaction against the resolution cited from 2013 is based on the fact that since 2005, the Plenary of the Supreme Court of Mexico had declared the unconstitutionality of Article 122 bis of the Criminal Procedures Code of Chihuahua, which introduced the arraigo, although the text of the federal Constitution does not mention anything in 76 this respect.60 This first resolution serves as a basis for the Mexican State to receive international recommendations directed towards the suppression or review of these measures of exception under criminal procedure. But the reaction of the permanent constituent was actually to the contrary, amending the Constitution in 2008 so that, in the exercise of their sovereign attributes, including arrest as an exception within its own Constitution. Two years after this amendment, the Human Rights Committee of the United Nations reiterated a recommendation, suggesting that the Mexican State eliminate this practice.61

Now then, after introducing this provision in the constitutional text in 2008, the Supreme Court of Mexico has still not had the opportunity to make a pronouncement regarding the secondary laws that regulate extrajudicial

59 “The judicial authority, at the request of the Public Attorney General and when dealing with organized crime, may declare the extrajudicial detention of a person, in the time and the place indicated under law, which may not exceed a period of forty days, as long as it is necessary for the success of the investigation, the protection of persons or property, or when there is a founded risk that the guilty party shall be removed to the action of justice. This term may be extended as long as the Public Attorney General evidences that the causes that gave rise to the same continue to exist. In any case, the total duration of the extrajudicial detention may not be greater than eighty days”. 60 Amparo under review, 99/2005 April 13, 2005 61 “…In light of the decision of 2005 of the Supreme Court of Justice of the Nation regarding the unconstitutionality of criminal extrajudicial detention and its classification as arbitrary detention by the Work Group on Arbitrary Detention, the party-State must adopt all the means necessary to eliminate the practice of detention through extrajudicial detention, at both the federal and state levels.” See Examination of the reports presented by the Party-States in virtue of Article 40 of the Pact for Civil and Political Rights of the Committee Human Rights of the United Nations. detention as of the constitutional text. What is true is that as of the reforms of 2011 to Article 1 of the Constitution, every interpretation regarding a person subject to this exceptional precautionary measure should be carried out within the hermeneutical framework of 2011, within the pro personae principle.

It is timely to clarify, in addition, that when resolving the Contradiction judiciary’s turn 293/2011, the Supreme Court of Mexico did not decide that the express Human Rights; the mexican restrictions on individual rights are applied automatically and systematically. The internationalization of The Mexican judges on all levels, transformed into conventionality judges, must carry out exercises of weighting in order to make such limitations effective. These limits are only understood in harmony with the principle of pro personae. The rights can be limited, in order to achieve the best protection.

Final considerations

The parties that participated in the Summit of Chief Justices of Supreme 77 Courts, International and Regional Courts, organized jointly by the Office of the High Commissioner of the United Nations and the Mexican Supreme Court in November 2012 in Mexico City, can observe that the countries that have assumed the challenge of interiorizing the guidelines of the human rights treaties and conventions, but we are not trying to face a cultural change by decree. This transformation arises out of a policy of the State in each one of our domestic spheres that has been arising out of the deliberate option of our sovereignties, each one intertwined and committed to the purpose of guaranteeing the universal character of human rights.

It is in the constitutions (before secondary laws) where the road map of this internationalization route, and we are the domestic jurisdictional body that is in charge of designing the outline of this standardizing change through our resolutions. Although as a jurisdiction of last instance we do not pretend to impose the mandatory nature of letters and conventions basing ourselves on arguments of authority. Neither is this a voluntary exercise of judges that wish to impose our criteria above the other branches of power due to the simple fact of cementing our influence or notoriety. This is, however, an interpretive exercise which main ratio is centered upon an operation (of course, a complex one) of normative harmonization. Such interpretative operation contributes to a greater foreseeability to the rights of individuals, and is exercise through a constitutional mandate.

In México, the abovementioned road map was redesigned in June 2011, through the amendments to Article 1 if the Constitution. Less than two years hence, I allow myself to affirm that our amended constitutional text has contributed to the lessening of difficulties to achieve the very yearned for effet utile of the international law of human rights, which allows for the standardization of equal treatment among individuals, regardless of the physical space where the same may be found. In our country, the solution that was presented by the new constitutional framework is allowing for the distancing from the normative order of a perception that is very deeply Juan N. Silva Meza rooted, which, by the way, has not lost its modern nature: the tendency to

Supreme Court of Justice Mexico present the domestic assimilation of international law as of hierarchical valuations.

Our constitutional text have given rise to the pro personae principle as an interpretive tool that grants the judge of conventionality the possibility to escape the traditional, formalist approach. Traditionally, judges were used to resolving this question using a positivist solution, inserted in that nineteenth-century tradition. The judge, acting before the above-cited amendment, asked himself: “From among the standardizing criteria applicable

78 to resolve a certain controversy, which one is the most hierarchically superior: the law, the Treaties or international jurisprudence?”

Having transformed our constitutional norms, now it is the turn of all the judges to ask them, “Which of the guidelines protects the individual in the best way?” No one should be surprised to find out that starting two years ago, Mexican judges in all spheres are immersed in the process of assimilating that the universalization of the rights has as a corollary the internationalization of judicial systems and behaviors. The sovereign tightening up of the law and their proceedings, have been ceded to the rule of human rights.

Now then it is the turn of the Mexican judges of all the spheres of competence, to assume, as their own, the task of controlling legal contents, practicing this new responsibility with an important intent in mind: avoiding that the assimilation of international interpretative criteria guide us to a “war between jurisdictions”. The normative harmonization that we face shows us the need that judges have to dialogue among earth other, and is based on the pluralism of the guidelines that coexist in domestic orders with various instruments of international origin. The dialogue between judges in distinguishing constitutionality and conventionality

Ruddy José Flores Monterrey

President of the Constitutional Plurinational Court of Bolivia

Delimitation of the scope of analysis

Control of conventionality or convention review, as noted by Bazán (2012: 23 ff.), goes through two aspects, one on the international perspective and the other domestically. At the international level, it is the Inter-American Court of Human Rights, which exerts control over the internal rules contrary to the American Convention on Human Rights and other conventions, from the specific cases which are submitted to their knowledge. The Court, once the incompatibility of the standard is confirmed, can provide that the concerned State reforms, reveals or repeals a specific standard or, in some cases, directly arrange the expulsion of such a standard of the legal system, as in the “Barrios Altos”, “Constitutional Court of Peru” and “La Cantuta” cases, where, as Hitters states, the Inter-American Court of Human Rights behaved as a true constitutional court, to declare inapplicable in the country and with erga omnes effect the amnesty laws passed in Peru (2009: 123 Hitters).

But also in this control of conventionality in the international arena, the Inter-American Court may require that the concerned State takes measures to comply with the obligation contained in article 2 of the American Convention on Human Rights to adopt provisions of national law in order to guarantee the exercise of human rights recognized in the convention (Bazán, 2012: 24).

On the domestic side, conventionality control should be exercised, fundamentally, by national judges, but also by all public servants, in order 79 to analyze the compatibility of the rules of a State in the American Convention on Human Rights. The jurisprudence of the Inter-American Court of Human Rights, at the beginning, established as the recipient of the control of conventionality in the domestic sphere the judicial body (case Almonacid Arellano et al v. Chile; Dismissed Congressional Employees v. Peru), but it then extended the spectrum to the bodies linked to the administration of Bolivia of justice (case Cabrera Garcia and Montiel Flores v. Mexico) and, subsequently, to any public authority and not only to the judicial body Constitutional Plurinational Court Ruddy José Flores Monterrey (Gelman v. Uruguay) (Bazán, 2012: 31).

However, the scope of the conventionality control, as regards the derogations from the internal rule considered contrary to the American Convention on Human Rights and other conventions, is an issue which, as it will be analyzed, will depend on the type of control of constitutionality taken by each State, because, ultimately, the Inter-American Court of Human Rights has not imposed a particular system of control of constitutionality or conventionality (Nash, 2012: 160).

80 This second area of analysis (internal) is the one to which this paper is limited, considering the levels of dialogue between judges in the control of conventionality; however, it is necessary to provide beforehand a brief reference to the Bolivian constitutional framework.

The Bolivian constitutional framework for dialogue between judges

Human rights are the cornerstone of the Political Constitution of the State (PCS), not only because the extensive development made thereupon, which occupies almost a third of its text, but because of the privileged position that the Constitution has granted them, by enshrining the International Treaties and Conventions on Human Rights as part of the block of constitutionality and recognizing criteria of interpretation that, on the one hand, determine that the rights should be interpreted in accordance with the International Treaties and Conventions on Human Rights —which implies a recognition of the obligation of judges and authorities to exercise conventionality control— and, on the other, give priority to rules —either international or domestic— which are more favorable (pro homine or pro personae principle).

The constitutionality block

Article 410.II of the Bolivian Constitution establishes that this is the supreme law of the Bolivian legal system and enjoys primacy versus any other regulatory provision; adding that, the constitutionality block consists of International Treaties and Conventions on Human Rights and the rules of

Common Law, ratified by the country.

From the constitutional recognition of the block of constitutionality, we conclude that International Treaties and Conventions on Human Rights and the rules of International Common Law, although they should be considered with the hierarchy of standards provided for in the aforementioned article and conventionality 410, by mandate of the same Constitution, share the same regulatory force The dialogue between judges than the Constitution. Also, they have been covered by the principle of in distinguishing constitutionality constitutional supremacy, as the jurisprudence of the Constitutional Court has understood it in SC 110/2010-R:

…the doctrine of the constitutionality block recognized by article 410 of the PCS, foresees as part thereof the International Treaties concerning Human Rights, which unequivocally are part of the Pact of San José, Costa Rica, also known as the Inter-American Convention on Human Rights, ratified by Bolivia by the Act 1599 of October 18, 1994, rule that by its essence and subject matter is 81 covered by the principle of constitutional supremacy, underpinned the structural axis of the ruling hierarchy in the Plurinational State of Bolivia.

Pursuant to that hierarchy, International Treaties and Conventions on Human Rights and, in particular the American Convention on Human Rights, could be invoked internally, with the same force as the Political Constitution of the State, by express mandate of the Constitution. Thus, in constitutional justice, one may plead infringement of its provisions, whether in the field of guardian control of constitutionality, through the presentation of defense actions,1 or in the area of regulatory control of constitutionality, as a parameter for analyzing constitutionality of the internal rules, as it has happened in many cases even before the validity of the current Political Constitution of the State.

Indeed, the theory of the constitutionality block was made jurisprudentially open from the clause contained in article 35 of the repealed Constitution,2 aspect that has been superseded by the current Political Constitution of the State.

1 The actions of defense, according to the Constitution and the code of constitutional procedure are as follows: action of constitutional protection, action of freedom; Action of protection of privacy, compliance, popular action and action of unconstitutionality, which has a mixed nature because of the scope of regulatory control of constitutionality part. 2 Such standard noted: ‘declarations, rights and guarantees proclaimed this Charter not will be understood as a denial of other rights and guarantees, not statements that are born of the sovereignty of the people and the Republican form of Government’. The first ruling that made reference to the block of constitutionality, was the SC 0095/2001 of December 21;3 but there were other rulings passed afterwards which developed this theory and used the rules contained in International Covenants on Human Rights as a parameter of constitutionality, such as the SC 02/2003, of November 4, pronounced within an incidental

of Bolivia resource of unconstitutionality, which, in a concrete way, used as a parameter of the judgment of constitutionality the rules of the American Convention on Human Rights, in particular, the right of access to justice or Constitutional Plurinational Court Ruddy José Flores Monterrey right to effective judicial protection, pointing specifically to “…according to what has been established by this Constitutional Court through integrative interpretation, the treaties, conventions and declarations on human rights are part of the legal system of the State within the constitutionality block, then they become also parameters of the judgment of constitutionality of challenged laws...”.

In the field of guardian control of constitutionality, the SC 1662 / 2003-R, of

82 November 17, within a constitutional action of protection alleging injury to the right to conscientious objection, not provided as a right in the repealed Constitution, noted:

...this Constitutional Court, making the inclusive constitutional interpretation, within the framework of the open clause provided for in article 35 of the Constitution, has established that international treaties, declarations and conventions on human rights are part of the legal order of the Bolivian constitutional system within the block of constitutionality, so these international instruments are prescriptive in nature and are of direct application; therefore, the rights enshrined therein are invoked by persons and guardians through the resources of habeas corpus and constitutional protection as appropriate.

As it has been stated, the Bolivian Constitution, currently sets forth in article 410 the International Treaties on Human Rights as part of the constitutionality block and, in that regard, has authorized that the block of constitutionality enjoys preferential application even above constitutional norms, under the performance criteria in articles 13 and 256 of the PCS, as they will be analyzed below.

3 The statement noted that “… the State must provide legal certainty for citizens ensuring the effective exercise of their fundamental rights and constitutional guarantees proclaimed by the Constitution, treaties, covenants and conventions signed and ratified by the State as part of the block of constitutionality, as well as the ordinary laws to all persons”. The constitutional interpretation criteria

a. The interpretation in accordance with International Human Rights Treaties

Article 13.IV of the PCS, in its latter part, determines that “rights and duties enshrined in this Constitution shall be interpreted in accordance with the and conventionality international treaties on human rights ratified by Bolivia”. The dialogue between judges in distinguishing constitutionality

For its part, article 256.II of the PCS determines that “II. The rights recognized by the Constitution shall be interpreted in accordance with the international treaties of human rights when these provide more favorable rules”.

The decision of the constituent to constitutionalize the interpretation criterion in accordance with the International Treaties and Conventions on Human Rights, is a proof of the importance given to the tutelage and consideration by, not only, judicial authorities of different jurisdictions 83 and constitutional justice, but also by public servants in general. On the other hand, it is a reflection of the will of the constituent that the hierarchy of the International Treaties on Human Rights makes domestic law compatible with the international law on human rights, which means that there must be a comprehensive interpretation of both sources —international and domestic—, therefore, giving rise to a duty to integrate and harmonize the interpretation of fundamental rights, resorting, then, to international treaties on human rights.

However, it is true that the Bolivian Constitution refers only to the interpretation in accordance with International Treaties and Conventions on Human Rights, not to mention the jurisprudence of International Courts; however, we must consider that these are the ones that determine the scope and the meaning of the rules contained in international instruments and, therefore, how the Inter-American Court of Human Rights itself has understood it and the constitutional jurisprudence of Bolivia —as it will be seen later— such interpretation should be considered when applying the rules and interpreting rights domestically.

b. The pro personae principle (pro homine)

The aforementioned interpretation criterion is supplemented by the pro homine interpretation criterion laid down in article 29 of the American Convention on Human Rights4 and constitutionalized, in Bolivia, in articles 13 and 256 of the PCS.

Indeed, article 13.IV of the PCS, in its first part, determines that “International treaties ratified by the Plurinational Legislative Assembly, which recognize

of Bolivia human rights and prohibit their limitation in the States of Exception prevail in internal order.” Constitutional Plurinational Court Ruddy José Flores Monterrey Article 256 of PCS provides that “I. Treaties and international instruments in the field of human rights that have been signed, ratified or adhered by the State, that establish a more favorable view to that contained in the Constitution, shall apply in a preferential manner thereover”.

Accordingly, the Bolivian Constitution establishes the preferred application not only of conventional rules —in accordance with article 410 of the PCS, as it has been pointed out, are part of the block of constitutionality— but also 84 of non-conventional rules, to make reference, in general, to the international human rights instruments, assuming, therefore a wide and favorable criterion in relation to the interpretation of human rights, leaving aside the distinction between conventional and non-conventional standards to consider only the application of more favorable rights.

It should be noted, moreover, that article 256.II, in the last part, points out that the rights recognized in the Constitution shall be construed in accordance with international treaties on human rights, and condition this criterion to them foreseeing more favorable standards. It is evident then that the interpretation criterion, in accordance with the International Covenants on Human Rights, has its exception in cases where the internal rules develop a broader, more extensive and favorable law. This constitutional standard allows the opening of a jurisprudential horizontal dialogue between the international jurisdiction and the domestic jurisdiction.

4 The article 29 of the American Convention on Human Rights establishes: No provision of this Convention may be interpreted in the sense of: a) allow any of the States parties, group, or person, to suppress the enjoyment or exercise of the rights and freedoms recognized in the Convention or to restrict them to a greater extent than is provided in it, b) restricting the enjoyment or exercise of any right or freedom that may be recognised in accordance with the laws of any of the parties or in accordance with other Convention to which is one part of Member States; c) exclude other rights and guarantees that are inherent to the human being or resulting from the democratic representative form of Government, and d) exclude others or limiting the effect that can produce the American Declaration of Rights and Duties of Man and other international acts of the same nature. With this understanding, it is concluded that while Bolivian judges, courts, and public servants must interpret the rights in accordance with International Human Rights treaties and, in that sense, they must adopt international standards on human rights, as well as the jurisprudence of the Inter-American Court of Human Rights (a vertical dialogue); however, in applying the pro homine principle, should contrast these standards with those provided for in the Political Constitution of the State to determine and conventionality which is the most extensive and favorable to the law, with the aim of The dialogue between judges achieving a better protection of human rights (a horizontal dialogue). in distinguishing constitutionality

As noted by Bazán, “cooperation between the domestic and international courts is not aimed at generating a formalized hierarchy relationship between the first and the latter, but to draw alink between cooperation in the pro personae interpretation of human rights” (2012: 48); affirmation that, on the other hand, is backed in article 29 of the American Convention on Human Rights that determines that any provision of the Convention can be interpreted in the sense of restricting the enjoyment or exercise of any right 85 or freedom that may be recognized in accordance with the laws of any of the parties or in accordance with other convention or human rights treaty to which one of these States is a party.

This decision by the constituent to provide favorable interpretation criteria of human rights, is a sign of the importance that its guidance and consideration by the judicial authorities in different jurisdictions has; so much so, that respect for the rights constitutes a principle of the power to administer justice, as stated in article 178 of the PCS, principle which is the basis of the administration of justice according to the Law of the Judiciary. In this way, under the constitutional scheme, while all public servants are obliged to respect the rights and adopt a comprehensive conception thereof, through the incorporation of standards in their interpretation, judges assume a fundamental role to be their guarantors.

The dialogue of judges from a predominantly concentrated system of constitutional control in force in Bolivia

Once establishing the importance that the system of international protection of human rights has in the Bolivian constitutional system, pursuant to the interpretation criterion and the block of constitutionality previously stated, it is relevant for a proper understanding of the Bolivian system, to analyze the concentrated control of constitutionality, so that, on that basis, we can analyze the type of control of conventionality which public servants, judges and courts must abide by.

With this understanding, it should be noted that the Inter-American Court of Human Rights, in the case Almonacid Arellano et al v. Chile, in referring

of Bolivia to the control of conventionality, stated:

The Court is aware that domestic courts and judges are subject to Constitutional Plurinational Court Ruddy José Flores Monterrey the rule of law and, therefore, are obliged to apply the provisions in force in the legal system. But when a State has ratified an international treaty such as the American Convention on Human Rights, its judges, as part of the apparatus of the State, are also subject to it, which obliges them to ensure that the effects of the provisions of the Convention are not undermined by the application of laws contrary to its object and purpose, and that from the beginning do not have legal effects. In other words, the Judiciary 86 must exercise a sort of control of conventionality between domestic legal rules that apply to specific cases and the American Convention on Human Rights. In this task, the Judiciary should take into account not only the treaty, but also the interpretation that the Inter-American Court has made, ultimate interpreter of the American Convention.

Subsequently, in the case Dismissed Congressional Employees v. Peru, the Court noted that “the bodies of the Judicial Branch should exercise not only their control of constitutionality, but also of ex-officio conventionality between internal rules and the American Convention, clearly in the framework of their respective competences and their relevant procedural regulations (...)”.

Reading both understandings, there arises the question whether, pursuant to the jurisprudence of the Inter-American Court of Human Rights, judges and courts should, necessarily, exercise a diffuse control of conventionality, which could obviously result in conflict in countries, as in the case of Bolivia, that have adopted a system predominantly concentrated in constitutionality. It is relevant first to explain briefly the system adopted by Bolivia and, subsequently, to analyze the role of ordinary judges within the same so as to, ultimately, contextualize the control of conventionality that commands the jurisprudence of the Inter-American Court with the Bolivian model. The predominantly concentrated constitutionality control system, in force in Bolivia

Bolivia was, until 1994, a diffuse system of constitutionality control in which all the judges could stop applying the law considered contrary to the Political Constitution of the State; however, the 1994 constitutional reform created and conventionality the Constitutional Court as a specialized body in constitutional justice, typical The dialogue between judges of the concentrated judicial control of the constitutional system; however, in distinguishing constitutionality the constitutional rule stated that courts, judges and authorities should preferably apply the Constitution over the laws, and the latter in preference to any other resolutions. Therefore, a sector of the doctrine considers that it was a mixed system in which the diffuse and concentrated control elements concurred (Rivera, www.tribunalconstitucional.gob.bo/ArticuloId-10.html., accessed 10/1/2012), since, on the one hand, a specialized body in constitutional justice was created and, on the other, all judges had a duty to not apply legal provisions that were contrary to the fundamental law, which was included in the diffuse system of constitutionality. 87

Other sector of the doctrine considers that the concentrated constitutionality control is born in the constitutional reform of 1994, because the Constitutional Court as a specific body responsible for that control is created, and in that sense, “no judge, court or administrative body, is authorized to not apply any legal standard, because in case of doubt on the constitutionality of a rule to be applied to the specific case that has to be decided, the incident of unconstitutionality should be brought before the Constitutional Court. This interpretive understanding fully agrees with the provisions of Article 2 of the LTC, when it states that ̀Constitutionality of any law, decree, resolution and acts of the bodies of the State is assumed until the Constitutional Court resolves and declares its unconstitutionality´” (Duran, 2003: 187-2002; Asbun, 1999: 139-164), article 228 of PCS should be interpreted in this context.

It is evident, however, that, as Fernández Segado (Fernández, 2003; 245 and ff) stated, it is not possible at present to refer to a pure constitutionality control model, since systems are characteristic of the concentrated and diffuse one; for this reason, one might conclude that the system that was born in Bolivia in the constitutional reform of 1994 is a predominantly concentrated constitutional system, although it also contains characteristics of the diffuse system, because:

a. There is a specialized body for the control of constitutionality, characteristic of the concentrated constitutionality control; b. The existence of the incidental appeal of unconstitutionality is expected, whereby parties, and even the judge or authority ex-officio, may request the regulatory control of constitutionality of the standard to be applied in a judicial or administrative process; resource that even though it is a hybridization of the concentrated system of constitutionality with the diffuse one, also implies that judges may of Bolivia not directly apply the standard, but that the incident must be formulated so that the Constitutional Court rules on its constitutionality Constitutional Plurinational Court Ruddy José Flores Monterrey or unconstitutionality; c. The control of the respect for the constitutional rights and guarantees, is shared with the ordinary judges that, knowing the resources of constitutional protection, habeas corpus and habeas data, became judges and courts of guarantees; d. The rulings dictated in appeal against taxes and other public taxation, according to the Act of the Constitutional Court, merely did not apply the contested rule and had inter partes and not erga omnes effect, which broke the scheme of concentrated system of constitutionality, 88 introducing a characteristic of the diffuse system.

The current Constitution essentially maintains the design of the system introduced in the constitutional reform of 1994, emphasizing the predominant character of the concentrated system of constitutionality:

1. A specialized body for the control of constitutionality is foreseen, such as the Plurinational Constitutional Court; 2. There is a concrete action of constitutionality that can be presented within the judicial or administrative proceedings, which assumes the obligation of the judge or the administrative authority, in case of doubt about the constitutionality of the rule that will be applied, to promote, ex-officio, the regulatory control of constitutionality, for the Constitutional Court to be the one that defines the constitutionality and not the rule; 3. It establishes that the effects of rulings that declare the unconstitutionality of a rule on appeals against taxes, patents, or special contributions are erga omnes and not inter partes (article 138 of the Constitutional Procedural Code).

However, there are two important differences with the previous control system:

1. The plural aspect of the constitutionality control system, because the control can be exercised not only on formal rules but also on those of nations and peasant native peoples, in addition to knowing the

conflicts of competence between different jurisdictions, 2. The express mention, in the constitutional text, of the block of constitutionality and the special hierarchy of the International Human Rights treaties and the interpretation criteria; aspects that although moderately used by the previous constitutional court, were not constitutionalized. and conventionality As it was previously concluded, these treaties meet the principle of The dialogue between judges constitutional supremacy by constitutional mandate and, therefore, in distinguishing constitutionality as it will be discussed later, civil servants, judges and justices, before applying a rule, are required to compare it not only with the Political Constitution of the State, but also with the block of constitutionality rules and the decisions of the Inter-American Court of Human Rights.

In that area, and pursuant to the block of constitutionality, when Bolivia refers to the control of constitutionality, it includes the control of the rule that the judge or court —and all public servants— must observe in relation to the International Covenants on Human Rights. In that sense, the control 89 of conventionality by the Constitutional Court has been made without expressly stating it, and the only two rulings of the Constitutional Court (SSCC 1888/2011-R and 1907/2011-R) that have expressly mentioned that control, have done so within the constitutionality framework. Thus, SC 1888/2011R of November 7, 2011, established:

... Bolivia has signed and ratified the Pact of San José de Costa Rica, on February 11, 1993 by means of Act 1430 and as State Party of the American Convention on Human Rights, also recognizes the Inter-American Court of Human Rights for the construction of this regional instrument; hence, the Constitutional Court, as the body responsible for the defense of human rights, the control of constitutionality and competence, has also among its tasks, the control of conventionality, protecting the compatibility of the regulatory system with the block of constitutionality formally integrated into the Bolivian legal plexus (emphasis added).

The work of judges under the constitutional system focused predominantly, in constitutionality, based on the jurisprudence of the Inter-American Court of Human Rights

According to the principle of constitutional supremacy of the provisions of article 410 of the PCS, the Constitution is the supreme law of the Bolivian legal body and has precedence over any other legal provision; standard that has been developed by art. 15.I of the Judiciary Act which states that “In judicial matters, the Constitution shall apply with preference over any other law or regulation”.

Under these rules, there is a mandate to the judge or court to apply the Constitution preferently and, of course, by express mandate of the PCS, of Bolivia the rules of the constitutional block; however, this mandate should not be understood as the possibility of not applying those rules contrary to the PCS Constitutional Plurinational Court Ruddy José Flores Monterrey and the rules of the constitutional block, because according to the predominantly concentrated system of constitutionality assumed by Bolivia, this work is performed by the Plurinational Constitutional Court. Therefore, how should that mandate be understood?

The role of the judiciary is translated into an obligation to make an interpretation of the rules to be applied from and in accordance with the Political Constitution of the State and, therefore, the rules of the constitutionality block, safeguarding the respect for fundamental rights and constitutional 90 guarantees, which, as seen above, have a privileged position in our constitutional system and its compliance should be the basis of the judge.

When an interpretation consistent with the Constitution and consequently the rules of the constitutional block, is not possible, the judge is obliged to promote, ex officio, the concrete action of unconstitutionality, so that the Plurinational Constitutional Court determines the compatibility or not of this standard with the Constitution and the rules of the constitutionality block.

In that order of ideas, it should be noted that the interpretation made by the judge or court of law may be submitted to constitutional review when it is detrimental to the constitutional rights and guarantees; since although the interpretation of the ordinary legality corresponds to regular courts, constitutional justice, through the actions of defense may analyze such interpretation when it is arbitrary and, therefore, adversely affects the constitutional rights and guarantees, as understood by the Plurinational Constitutional Court in numerous judgments, such as the SSCC 1846/2004-R, 718/2005-R, 35/2006-R, 77/2006-R.

As noted, under the principle of unity of the judicial function foreseen in art. 179.I of the PCS, all jurisdictions under the Constitution (agro- environmental, indigenous peasant and specialized) aim at achieving respect for human rights and the protection of the State Constitution; an aspiration, that the Constitutional Court gave a critical role, given that both the interpretation made by the judge, court and indigenous authorities

—in the scope of their legal systems—, and the doubts they may have on the constitutionality of a rule, may be known by the Plurinational Constitutional Court; this body becomes the main axis of the plural justice model designed by the State Constitution, which decisions are binding and mandatory (Art. 203 of the PCS). and conventionality The dialogue between judges

The principle of unity of the judicial function, therefore, is a consequence of in distinguishing constitutionality subjecting all jurisdictions to the principle of constitutionality and, crucially, to the respect of human rights. However, only in so far as the interpretation by judges and courts, and then by the Constitutional Court is in accordance with the International Human Rights treaties and the criteria derived from the Inter-American Court of Human Rights, the true unity of criteria between the domestic courts and the Inter-American Court of Human Rights is achieved, and it is precisely at this point where the constitutional control and conventionality control converge. 91

The Inter-American Court of Human Rights has held as an obligation of judges to ensure that the effects of the provisions of the Convention are not diminished by the application of laws contrary to its object and purpose, and, therefore, there should be an oversight over conventionality (Almonacid Arellano et al v. Chile case); however, this does not imply that the Inter- American Court had imposed a difuse control model of constitutionality, but that judges must adopt an interpretation from the Constitution, which should be in accordance with the American Convention of Human Rights and the interpretation made by the Inter-American Court of Human Rights.

As Nash notes, the control of conventionality “is an interpretive assurance mechanism, similar to the one done by Court, but the consequences of this analysis depend on the functions of each operator of justice and, therefore, that does not necessarily imply that judges have the power to expel rules from the internal system. A particular model for constitutional or conventionality control could not be imposed by the Inter-American Court of Human Rights. Therefore, can say that what judges and all state officials are bound to do is interpret the internal law in such a way that it is compatible with the international obligations of the State and give effect to the rights recognized domestically and internationally, whether by way of preference of the international rule, through the hermeneutic exercise or other ways that could be established by the domestic law” (Nash: 2012: 60). The dialog of judges based on constitutional jurisprudence

As it has been stated, the former Constitutional Court, and now Plurinational Constitutional Court, both within the regulatory control of constitutionality and the tutelary control, has resorted to the rules contained in International of Bolivia Human Rights treaties, mainly the American Convention on Human Rights and the jurisprudence derived from the Inter-American Court of Human Constitutional Plurinational Court Ruddy José Flores Monterrey Rights, in the context of the theory of the constitutionality block and, therefore, has not made any distinction between constitutionality control and the conventionality control, may, in the only two judgments in which reference was made to control of conventionality, it was limited to the scope of constitutionality control, given the constitutional configuration and the constitutionality block foreseen in art. 410 of the PCS, as it has been stated.5

In this context, it is necessary to mention that while international human rights standards derived from the theory of the constitutionality block were

92 used in the Constitutional Court before the entry into force of the current Constitution, since the enactment the transitory Constitutional Court and the Plurinational Constitutional Court they have strongly resorted to the constitutionality block standards and the jurisprudence of the Inter- American Court of Human Rights.

In the course of recent case law of the Constitutional Court and the Plurinational Constitutional Court, as from entry into force of the current Constitution of the State, linked to the jurisprudential dialog, the following jurisprudence milestones can be mentioned:

a. The reflection on the constitutionality block and interpretive criteria of human rights

From the first judgment of the 2010 administration6 the Transitory Constitutional Court reflected on the constitutionality and interpretive criteria established in articles 13 and 256 of the PCS. Thus, we can mention

5 The SC 1888/2011-R, making an approach to the control of conventionality, stated that it “is exercised by Judges and Courts, regarding the compatibility between internal legal standards applicable in the cases that they know, and the American Convention on Human Rights; considering not only the treaty, but also the interpretation made thereof by the Inter-American Court, ultimate interpreter of the American Convention; given that when the State has ratified an international treaty as the aforementioned Pact San Jose de Costa Rica, its judges are also subject to the understandings, forcing them to ensure that the effectiveness of the Convention is not reduced or annulled by the application of laws contrary to its provisions, object and purpose.” 6 During the 2008 and 2009 administrations, due to the resignation of the judges of the Constitutional Court, no Constitutional Rulings were issued, resuming the jurisdictional that SSCC 004/2010-R and 002/2006-R, among others, which in order to justify the application of the Constitution promulgated on February 7, 2010 to constitutional complaints filed before, resorted to the theory of constitutionality block7 and the pro homine principle.8

SC 110/2010-R, pronounced within a constitutional amparo raised by four accused in a criminal case on charges of deprivation of liberty, humiliation and conventionality The dialogue between judges in distinguishing constitutionality activity in the 2010 administration through Transitory Constitutional Court, which applied the current State Constitution in the resolution of the cases. 7 The SC 004/2010-R stated: “The application of the constitutionality block in this transition constitutional regime, makes the legal system to be harmonized and that cases initiated under the previous regime are resolved under the current regime without violating the principle of non-retroactivity, since the irradiation effect of the Constitution makes it to be applicable to situations pending resolution. Also, the International Treaties on Human Rights of fully in force at the time the causes pending resolution where filed and are still alive in the constitutional transition, a matter that reinforces the legitimacy of this doctrine. Likewise, in case there are any beneficial aspects recognized by the abrogated Constitution, using the criterion of interpretation of “favorability for human rights”, without it meaning any contradiction with the new order, they could be introduced into the constitutionality block as constitutional values and rules, applicable to specific cases. 93 8 The SC 006/2010-R, stated: “1. Human rights and the corresponding guarantees preexist their constitutional recognition, insofar they are based on the universal values and principles contained in International on Human Rights, according to the doctrine, the jurisprudence of the Constitutional Court, and now, art. 410 of the State Constitution (PCS) in force, which are part of the constitutionality block. In that sense, any extension of the fundamental rights and guarantees made by the Constitution, implies a regulatory acknowledgment domestically, of human rights contained in international agreements that, notwithstanding, have already been incorporated into the constitutionality block by the constitutional jurisprudence and, to that extent are protected by the constitutional jurisdiction. Moreover, it worth mentioning that the abrogated Constitution, in the clause under Art. 35 —which was the basis for the development of the constitutional block theory— stated that: “The declarations, rights and guarantees proclaimed by the Constitution will not be construed as a denial of any other rights or guarantees which are not expressly stated and are born out of the people’s sovereignty and the republican form of government.” Under that rule, the abrogated Constitution, by virtue of the progressive character of the rights, left open the possibility of recognizing other rights not expressly set forth in its rules, which effectively happened through constitutional jurisprudence. Besides the abovementioned, it is worth mentioning the art. 109. I of the current Constitution, states that: “All the rights recognized in the Constitution are directly applicable and have equal protection guarantees.” 2. Both the International Covenant on Civil and Political Rights and the American Convention on Human Rights recognized in their articles 5 and 29, respectively, the pro homine principle as the interpretive criterion of Human Rights standards. Under this principle, the judge should apply those rules that are more favorable to the person, their freedom and their rights, when the State, through its officials or public servants, is the one that affects them. This principle also implies that Human Rights standards should be interpreted in the sense that is most favorable to the person, therefore linking with the principle of progressive interpretation of rights, by virtue of which, among the multiple possible understandings, the one that limits to a lesser extent the right or warranty denounced as breached should be chosen, i.e., the most extensive interpretation regarding the recognition of rights should be chosen and the most restrictive interpretation when it relates to the exercise thereof. The pro homine principle, on the other hand, is recognized in articles 13.IV and 256 of the PCS, rules expressly foreseen that the most favorable interpretation for human rights must be adopted. However, in analyzing the current Political Constitution, it can be held, generally, that those rules that recognize constitutional rights and guarantees, in no way restrict their; on the contrary, it is clear that they broadly protect them, providing them with greater guarantees”. and torture, conspiracy, criminal corporation and murder, initiated as an emergency in the Trujillo Oroza v. Bolivia, which was brought before the Inter-American Commission on Human Rights on 28 September, 1992 and submitted to the Inter-American Court of Human Rights on June 9, 1999 has a particular relevance. The pronounced Judgment on the merits on January 26, 2000, determining that the Bolivian State violated the rights to of Bolivia life, to physical integrity, the prohibition of torture, personal liberty, a fair trial of José Carlos Trujillo Oroza and on February 27, 2002, delivered the Constitutional Plurinational Court Ruddy José Flores Monterrey Judgment on reparations, where the Court ordered, inter alia, that the Bolivian Government should use every possible means to locate the remains of the victim and deliver them to his family, to define the crime of forced disappearance of persons in its domestic law and the State should investigate, identify and punish those responsible for the events.

In the criminal proceedings, the accused filed an exception for the extinction of the prosecution due to procedural state, arguing that the process exceeded the maximum period provided by the Code of Criminal Procedure. The 94 precautionary judge, in first instance, declared the extinction of the criminal action, but the decision was overturned on appeal, and it was against such determination that the accused filed the constitutional amparo discussed, which was determined in SC 110/2010-R.

Under such reasoning, the aforementioned judgment concluded that the decisions derived from the Inter-American Court of Human Rights are part of the constitutionality block, for two legal reasons:

1) The purpose of the jurisdiction of the Inter-American Court of Human Rights; and 2) the application of the doctrine of the effectiveness of judgments that deal with human rights.9

9 Explaining both legal reasons, the SC 110/2010-R said: “Indeed, being the Human Rights Commission the last and ultimate guarantor at the supranational level of the respect for Human Rights, the object of its jurisdiction and the decisions derived therefrom, constitute the cornerstones to effectively guarantee the validity of the “Constitutional State” which currently translates into the Social and Democratic State of Law, which main pillars are, inter alia, precisely the observance of Human Rights and the existence of effective mechanisms that enforce them. That is why the Judgments derived from this body are part of the constitutionality block and provide the bases not only for the options of public officials, but also subordinate them in terms of content to the entire infra-constitutional legislation in force. Likewise, other reason to support, in the domestic law, the constitutional status of the Judgments issued by the Inter-American Court of Human Rights, is the so-called doctrine of the effectiveness of the Judgments that deal with Human Rights, which was developed by the Inter-American Court itself. In fact, the Judgments issued after a finding of violation of Human Rights, generate for the wrongdoing State an international responsibility, premise from which the state assumes international compliance obligations that are inescapable and inexcusable. From the standpoint of the International La of Human Rights, compliance with these international obligations, reflects fundamental principle underlying the own Inter-American Under this reasoning, the judgment, analyzing the specific case, concluded that the internal rules relating to the extinction of the criminal process due to maximum duration thereof10 and SC 101/2004,11 which construed such rules establishing the conditions for the extinction of the criminal case were not applicable to the present case, since there was a judgment in the Inter- American Court Human Rights which stated that the State should investigate, identify and punish those responsible of the events, according to the following and conventionality reasoning: The dialogue between judges in distinguishing constitutionality

...the Third Transitory Provision of the CPP and, therefore SC 0101/2004, are not applicable to this specific case, provided that the Bolivian government must comply with its international obligation to ensure the regular conclusion of the process which identifies and punishes the violation of fundamental rights held by the Inter-American Court of Human Rights as infringed, especially since in this specific case, there was no due process in relation to José Carlos Trujillo Oroza, as determined by the Inter-American Court in Judgment of 26 January, 2000. 95

b. The interpretation of the internal law from the rules of the American Convention on Human Rights and the jurisprudence of the Inter-American Court of Human Rights

There are numerous constitutional rulings that have interpreted the internal law based on the international human rights treaties and the jurisprudence of the Inter-American Court of Human Rights. So, in terms of the conditions of validity for the restriction of the right to physical or personal freedom, the Constitutional Court, SC 010/2010-R, resorted to art. 7.2 of the American Convention on Human Rights and the interpretation made by the Inter- American Court of Human Rights in the Advisory Opinion 06/86 of May 9,

System for the Protection of Human Rights, which is “good faith”, also called “pacta sunt servanda”, under which the States must meet their international obligations, foundation more than supported to argue that the member states of the system cannot by internal reasons stop assuming their international responsibility. For these reasons, we can say that is precisely the good faith principle which provides the Judgments of the IACHR the useful or effective protection effect, and therefore the location of these Judgments within the so-called constitutionality block is fully justifiable”. 10 According to art. 133 of the CPP, “every process shall have a maximum duration of three years, as of the first procedure act” and the Transitory Provision Three, “The causes that are to be processed under the previous litigation system should be completed within a maximum of five years, counting as from the publication of this Code”. 11 The SC 101/2004 interpreted art. 133 and the Transitory Provision of the CPP, stating that both are only consistent with the Constitution and the International Covenants on Human Rights, and the jurisprudence of the Inter-American Court of Human Rights, when delays not attributable to the defendant, but to the prosecutor or the judiciary body are shown. 1986, subject expression of laws in article 30 of the American Convention on Human Rights12 and the Gangaram Panday v. Surinam case, of January 21, 1994 where the Court stated that “...No one can be deprived of his freedom except for reasons, cases or circumstances specifically established by law (material aspect) but also, strictly in compliance with the procedures objectively defined thereby (formal aspect)”. of Bolivia

The Constitutional Court also resorted to the jurisprudence of the Inter- Constitutional Plurinational Court Ruddy José Flores Monterrey American Court of Human Rights, specifically the Advisory Opinion OC-8/87 of January 30, 1987, habeas corpus under suspension of guarantees, on the interpretation of the articles 25.I and 7.6. of the American Convention Human Rights in relation to the last sentence of article 27.2 of the Convention, in order to interpret the scope of the protection of the action of freedom, which, according to article 125 of the PCS not only is applicable unlawful threat or deprivation of the right to physical or personal freedom, but also in cases of threats to life. Thus, the SC 44/2010-R after quoting that Advisory Opinion in which it was concluded that the function of habeas

96 corpus is essential as “...a means to control the respect for life and integrity of the person, in order to prevent his/her disappearance or in keeping of whereabouts secret and in protecting him against torture or other cruel, inhuman or degrading treatment”, also cited the cases of Castillo Paez v. Peru of November 3, 1997 and Neira Alegría v. Peru of July 19, 1995.

It should also be noted that SC 061/2010-R in which, following the Advisory Opinion 16/1999 of 1 October, 1999, the right to information on consular assistance in the framework of the guarantees of due process of law”13

12 Article 30 states that “The restrictions permitted, under this Convention, to the enjoyment and exercise of the rights and freedoms recognized herein, may not be applied except in accordance with the laws enacted for reasons of general interest and for the purpose they have been established”. The Advisory Opinion 006/1986 stated that the term Law, within the framework of the protection of human rights, would be meaningless if it did not refer to the idea that the mere determination of the public power is not enough to restrict such rights. Otherwise, it would be as recognizing an absolute virtuality of the powers of the rulers against the ruled. Instead, the term laws has full logical and historic sense, when it is considered as a requirement of the necessary restriction of the governmental interference in the area of rights and freedoms of the human person. The Court concludes that the word law used by Article 30 can have no other meaning than that of a formal law, i.e., a legal rule adopted by the legislative body and promulgated by the Executive Branch, following the procedure required by the internal law each State (Paragraph 27.). 13 According to the Advisory Opinion 16/1999, the information to the foreigner regarding the right to communicate with the consular representative of his country, contributes: “...to considerably improve their chances of defense and that the procedural steps in which he participates —and among which are the police diligence— are made with greater respect of the law and respect for human dignity”. Concluding that this individual right must be recognized and considered in the context of the minimum guarantees to give foreigners the opportunity to adequately prepare their defense and receive a fair trial, for which the Court stated that: “...the individual right of information established in article 36.1.b) of the Vienna Convention on Consular Relations allows practical effects in specific cases, of the right to due process guaranteed in Article 14 of the International Covenant on Civil and Political Rights...”. concluded that this right is an integral part of the guarantee of due process.

In the same judgment, it was reasoned on “the importance of unconventional instruments, noting that they have a fundamental importance for the application of the rules contained in international human rights treaties and the Constitution of the State, as they are in the guidelines for their interpretation”, adding that the rules that are part of international instruments (corpus iuris) “are linked together and must be holistically understood, and conventionality resorting to the different international instruments in order to determine The dialogue between judges the scope and content of the rights and guarantees”. in distinguishing constitutionality

In the Judgment being discussed, moreover, the legal guarantee contained in article 120.II of the PCS is also analyzed, which states that “all persons in a legal process must be judged in their own language, exceptionally, on a mandatory basis, they shall be assisted by a translator, or an interpreter”.

This guarantee was contrasted with the international human rights treaties and, under a horizontal dialog, the Constitutional Court concluded that

“...our State Constitution provides more guarantees than the rules contained 97 both in the International Covenant on Civil and Political rights and the American Convention on Human Rights, since these rules only refer the right to have a translator or an interpreter, while our Fundamental Law states that all persons under process must be judged in their own language, and only exceptionally it is expected to have the person assisted by a translator or an interpreter”.

After verifying that end, the Constitutional Court interpreted the rule based on the plurality and linguistic pluralism principles:

it could be interpreted, under the pro homine and the progressiveness of rights principle, that it would have preferential application, in all cases, the constitutional provision; however, it should be understood that this guarantee of process in the language of the accused is the rule related to people of Bolivian nationality, given the multinational nature of our state and the principles of plurality and linguistic pluralism foreseen in article 1 of the PCS, which require public servants, especially those serving in the judiciary, to respect the cultural manifestations of the various groups and nations, one of which is language. Note that it is the Constitution of the State itself the one that imposes an obligation on all public servants to speak two languages. In this regard, the trial in the language of the accused, should not post any greater conflict, among people who have Bolivian nationality; however, in the case of foreigners who have committed a crime in Bolivia, such guarantee is not presented in its entirety and, therefore, in such cases the exception provided in the constitutional provision shall apply, since, it would not be meritorious to require the judge or court to carry out a trial in a language he does not know or is not obliged to learn.

Finally, we should mention that SC 300/2012, given within unconstitutionality of Bolivia action filed against Law 222, which calls for the process of free and informed Prior Consultation with indigenous peoples of the Indigenous Territory Constitutional Plurinational Court Ruddy José Flores Monterrey and National Park of Isiboro Secure (TIPNIS), where the Plurinational Constitutional Court ruled with an interpretative Judgment, conditioning the constitutionality of Law 222 to making the consultation in horizontal relationship between the State and indigenous peoples of the TIPNIS.

That ruling fully assumed the standards set by the Inter-American Court of Human Rights regarding consultation, especially in the case of Pueblo Saramaka v. Suriname of November 28, 2007. In development of the Judgment, not only the criteria assumed by the Court were cited, but also

98 Law 222 was interpreted according to the State Constitution, the Convention 169 of the ILO, the United Nations Declaration on the Rights of Indigenous Peoples and the interpretation taken by the Inter-American Court of Human Rights.

As this brief review jurisprudence review, it appears that the Plurinational Constitutional Court, based on the recognition of the constitutionality block (article 412 of the PCS), and the interpretation criteria under the international human rights treaties and pro personae, assumes internally the interpretation made by the Inter-American Court of Human Rights. It has also shown that, from a horizontal dialog based on the constitutional provisions, which contain more extensive and comprehensive precepts, it is possible to adopt a more favorable interpretation. The challenge is to continue and intensify the jurisprudential dialog, opening communication channels to achieve, in the best way possible, the protection of human rights. As Bazán noted, “such task should not be undertaken in the framework of a strict and exclusive unidirectional logic from the IACHR to the national jurisdictions, but it is necessary to create conditions the further jurisprudential dialog between the courts concerned: Inter-American and internal “(Bazán, 2012: 54).

Bibliography

Asbún, Jorge, “The Constitutional Court to begin the third millennium”, Journal Constitution, Constitutional Court, Sucre, Bolivia, 1999, pp. 139-164 Bazan, Victor, “The control of compliance: uncertainties, challenges and

prospects”, Justice and Constitutional rights. The control of compliance 2011. Konrad Adenauer Stiftung, Centre for Human Rights, Faculty of Law, University of Chile, Colombia, July 2012, pp. 17 to 55.

Duran Ribera, Willman “The system of constitutional force in Bolivia”, Constitutional Justice and Rule of Law, Memorial No. 7, VI International and conventionality Seminar, Sucre, 26 and 27 June 2003, the Constitutional Court, Sucre The dialogue between judges Bolivia, pp. 187-202. in distinguishing constitutionality

Fernandez Segado, Francisco, “Constitutional justice to the XXI century: The progressive convergence of the American and European systems Kelsen”, Constitutional Justice in Bolivia 1998-2003, Constitutional Court, AECI, 2003, pp. 201-272.

Hitters, Juan Carlos, “Control of constitutionality and control of compliance. Comparison (Criteria established by the Inter-American Court of Human

Rights)” 7/7/2, Constitutional Studies, 2009, pp. 109-128. 99

Nash, Claudio, “Commentary on the work of Victor Bazan: 'The control of compliance: uncertainties, challenges and prospects'” Justice and Constitutional rights. The control of compliance 2011. Konrad Adenauer Stiftung, Centre for Human Rights, Faculty of Law, University of Chile, Colombia, July 2012, pp. 57-69.

Websites consulted

▪ http://www.corteidh.or.cr/docs/casos ▪ http://www.tribunalconstitucional.gob.bo

International Law, legal pluralism and the Rights of Indigenous Populations

Diego García-Sayán

President of the Inter-American Court of Human Rights

Little more than three decades have passed since the Inter-American Court of Human Rights was introduced in 1979. Today, we can say without a doubt, that the Inter-American Court has left behind that space we used to call “utopia”; in other words the initial phase in which few believed that the court could resolve different cases and that the States —basically of Latin America— would comply with the jurisdictional resolutions. The Inter-American Court of Human Rights has vigorously complied with the elevated objectives the American States have created. With this mind, today they exercise their jurisdiction over more than 500 Million inhabitants in the Americas.

In the last decade, the Court has reviewed more than 70% of the legal matters submitted to its jurisdiction and in turn, has made more efficient its proceedings to be able to substantially reduce the time for the solution of cases. The Court has been enriching and fine-tuning its jurisdictional production and today, has growing impact on the realities of our region. The linking traits of the resolutions of the Court are not in discussion and the same, essentially, are complied with by the States. The most notable, however, is the jurisprudential dialogue, through which the domestic courts are inspired every day more by the jurisprudential criteria used by the Inter-American Court, applying more and more, controls over conventionality.

A centralized aspect to be discussed herein is that of the expression of International Human Rights Law, and particularly with respect to Inter- American justice with the demographic, social and cultural sector of 101 enormous relevance as is the indigenous population. In light of the above, it is important to point out the space earned by the matters of the rights of indigenous populations within the jurisprudence of the Inter-American Court. This is, per se, a significant fact given the usually marginality afforded to this subject in the decisions and priorities of the public institutions on our continent. of Human Rights Inter-American Court Diego García-Sayán Inter-American jurisprudence is cementing progressive and creative judicial development in the rights of indigenous groups. It is possible to prove that the problems related to the rights of the indigenous groups have access to international justice, and find protection under the Inter-American Court. In addition, the conflicts known by the Court have not been regarding related aspects, but rather conflicts that are essential to such rights.

An essential aspect referred to hereunder has to do with the institutional and judicial expression of multiculturalism which prevails in the legal sphere of the majority of our countries, specifically with respect to legal pluralism and 102 its relationship to the rest of the laws and in particular, with the fundamental standards and institutions of the States.

From the conceptual polarization of antagonistic, judicial ethnocentrism v. absolute autonomy of “indigenous law” emerges the recreation of the International Human Rights Law in light of the specific, concrete circumstances of the rights of indigenous groups.

International law and the laws of indigenous groups

The distance between international law and the laws of indigenous groups is much broader and dramatic today than it was in the past. However, it has been, and continues to be, a problem of great complexity that touches, certainly, a sector of the population that has been strongly affected by a long history of oppression and exclusion. As Nash notes:

A good measure of the violations of human rights on our continent is concentrated on especially vulnerable groups (women, indigenous peoples, children, migrant workers), and these violations are directly related to cultural patterns that allow for the repetition of these violations in perpetuity. … The indigenous groups of our continent clearly belong to the categories of vulnerability…1

1 Nash Rojas, Claudio E. Los derechos humanos de los indígenas en la jurisprudencia de la Corte Interamericana de Derechos Humanos. Article published in “Derechos Humanos y Ever more frequently, however, indigenous communities turn to international law in order to invoke their rights, which are, indubitably, both a transcendental and innovative step. The rights of indigenous groups, and the historical dramas related to the same, as well as exclusion and discrimination, were not centrally present, at least in the beginning, in Inter-American justice. Populations

During the first years of life of the Court, the truth is that it was exceptional and the Rights of Indigenous for such Court to take cases regarding the rights of indigenous groups. The International Law, Legal Pluralism first case, about Surinam, was dealt with only recently, in 1993. As of 2001, or when the Court was in existence for more than 20 years, was when these matters started to reach the Court with more regularity.

Various analysts, including Pasqualucci,2 consider that the Inter-American Court of Human Rights is one of the key engines on the global level in the progressive development of law3 in this subject. Key aspects, such as non- discrimination, the right to participate in public matters and the respect to common law are, today, important ingredients of the International Human 103 Rights Law. As noted by Nash:

The jurisprudence of the Inter-American Court in its litigious function, while it cannot solve every single problem regarding indigenous peoples (it is not the role of the international courts to do so), it can be of assistance, determining the content and scope of the obligations of the State in this regard.4

Legal pluralism and democratic society

Legal pluralism is a concept that is gaining more and more acceptance and legitimacy, and from which the Inter-American Court draws in order to draft its jurisprudence in these types of cases. Pluralism, in general, is an essential ingredient of a democratic society. In fact, it can be stated that “the construction of a liberal society is based on the idea of pluralism”.5 However, as we will see, in order to “guarantee” pluralism, the classic liberal

Comunidades Indígenas. Tendencias internacionales and contexto chileno”, J. Aylwin (editor), Instituto de Estudios Internacionales, Universidad de la Frontera, Temuco – Chile, 2004. p. 3. 2 Pasqualucci, Jo M. The Evolution of International Indigenous Rights in the Inter American System. Article in the Human Rights Law Review. Oxford University Press, 2006. 3 Pasqualucci qualifies it as “progressive case law” (p. 1). 4 Nash, Claudio E. Op. cit. p. 1. 5 Pérez Vazquez, Carlos. Necesidades, intereses y jueces. Universidad Nacional Autónoma de México. Law Research Institute [Judicial Research Institute]. México DF, 2006. p. 19. focus on organization and behavior of the State is insufficient and even, contradictory.

Pluralism, as an essential ingredient of a democratic society, as is evident, manifests itself in a variety of ways such as pluralism and legal pluralism, arising out of multi-ethnicity, as the precision of the respect to the principle

of Human Rights of non-discrimination within the social and historical context of ethnic Inter-American Court Diego García-Sayán plurality. This is a complex subject, which causes serious judicial and political tension. Furthermore, it leads to deep reflections regarding the limits, complementary parts or contradictions —as the case may be— between individual rights and collective rights. Can they be harmonized? If the answer is yes, then how?

Before moving further, we need to clarify the fact that the principles of non- discrimination and equality are fundamental in the International Human Rights Law. There is, in fact, the international obligation of the State to guarantee human rights “without any discrimination whatsoever for 104 reason of race, color, gender, language, religion, political opinions or of any other nature, national or social origin, economic position, birth or any other social condition” as stipulated under Article 1 of the American Convention of Human Rights. The Convention stipulates, in addition, the principle of equality, reaffirming that everyone “has the right, without discrimination, to equal protection under the law” (Article 24).

These obligations entail, simultaneously, the obligation to adjust the State’s laws to the Convention adopting the “legislative or other means necessary to realize such rights and freedoms” as stipulated in Article 2. It is not a question, then, only of “respecting” pluralism, but also a question of the State’s obligation to guarantee it. Obviously, the State must abstain from adopting laws or regulations that are discriminatory in practice,6 not just abstaining from certain conducts.

The “duty to guarantee” entails, simultaneously, with the duty of the State cause it to be an active entity and that it occupies spaces in society. That it, at least, dictates the legal provisions required to face discrimination. In addition, and essentially, that the public institutions, in general, behave with equal respect towards pluralism.

In its jurisprudence opinions, the Inter-American Court has established that States have the obligation “… to not include in their laws, any regulations

6 Pasqualucci, Jo M. Op. cit. p. 3. that are discriminatory in nature, to eliminate regulations that are discriminatory in nature, fight against practices of this nature, and to establish standards and other measures that recognize and ensure the actual equality before the law, of every single individual. A distinction between individuals that lacks objective and reasonable justification is

7

considered discriminatory”. Populations

A right that draws great attention in this matter is that of participation in and the Rights of Indigenous

8 public matters as stated in article 23 of the American Convention. This International Law, Legal Pluralism matter is related to non-discrimination and equal protection under law. In this aspect, the jurisprudence issued by the Inter-American Court has advanced in the specifics of this right within a multicultural and multiethnic environment and seeks to fit this individual right within the context of the rights of indigenous populations.

The Court emphasizes, for example, that the electoral guidelines cannot block the participation of the indigenous populations by imposing 105 organizational forms that are foreign to their practices and customs. This was determined by the Court in the Yatama v. Nicaragua case resolved in 2005. From this, we can deduct that the State has the obligation to establish standards and implement institutionalism that makes reasonable the exercise of participation in the public activities of a certain collective, such as, of course, an indigenous group.

The conflict in the Yatama case arose as of the legal demand, that in order to present candidates to the local municipalities, the same must be carried out simultaneously, at least in 80% of all of the municipalities in the entire country. For the indigenous populations located on the Atlantic coast of Nicaragua, it was impossible to comply with this demand and therefore they were denied the registration of their candidates. The Court determined not only that the State should abstain from discrimination, but also that it must issue the laws and administrative measures meant to recognize the

7 Case Yatama v. Nicaragua (2005). Paragraph 185. 8 Article 23. Political Rights. All citizens shall enjoy the following rights and opportunities: a) To participate in the direction of public matters, whether directly or by means of freely elected representatives; b) To vote and be elected in periodic, authentic elections, featuring universal and equal suffrage using a secret voting system guaranteeing the free expression of the will of the voters; and c) Having equal access, to the public functions of their country. 2. The law regulates the exercise of the rights and opportunities referred to in the item above, exclusively based on reasons of age, nationality, residence, language, instruction, civil or mental capacity or by a resolution, by a competent judge, in a criminal proceeding. right of participation, as well as effectively guarantee equality in the particular conditions of Nicaragua’s Atlantic Coast populations.9

In essence, this deals with the particularities of the individual’s rights to participate in public matters within the framework and specifics of a particular ethnic identity, where we can assimilate to what Kymlicka calls

10 of Human Rights “special rights of representation” and from which we can call “differentiated Inter-American Court Diego García-Sayán citizenship”. What is at play, then, is a collective right that includes the exercise of individual rights including, in this case, the power to vote and to stand for election.

From the above we can infer that in these types of circumstances, the design and application of adequate standards and practices by the authorities is on essential democratic principal in order to make the exercise of certain rights viable.

Indigenous populations, 106 individual rights, collective rights

The Inter-American Court has taken important steps in constructing a focus on the effective recognition of ethic identities and pluralities as an essential part of a democratic society. The link between the focus on rights we might call “liberal” (basically, individual rights), with collective rights is possible, provided that within certain ethnic particularities the actual carrying out of such individual rights is made in collective spaces.

In light of the above, the jurisprudence of the Inter-American Court has highlighted certain ample and non-restrictive criteria regarding the concept of the indigenous individuals and specifically, regarding the condition of “indigenous populations” in the connection to “individual rights” as established under an instrument such as the American Convention on Human Rights. Therefore, there has developed a novel instrument to focus upon the application, in the context of indigenous populations, of the international obligations of human rights. In this perspective, the Court has

9 Caso Yatama v. Nicaragua (2005): “186. Article 24 of the American Convention prohibits discrimination by law or fact, not only with respect to the rights granted under such treaty, but rather with respect to all the laws approved by the State and the application thereof. That is, it is not limited to reiterating the provisions of Article 1.1 of the same, with respect to the obligations of the State to respect and guarantee, without discrimination, the rights recognized under such treaty, but rather grants a right that also obligates the State to guarantee and respect to principle of equality and non-discrimination in the safeguard of other rights and the internal laws that approve the same.” 10 Kymlicka, Will. Ciudadanía Multicultural. Una teoría liberal a los derechos de las minorías. Ed. Paidos. Barcelona, 1996. pp. 52-53. made use of various pieces of the standards of international law in their interpretation of the condition of “indigenous”.

The jurisprudential development of the Court has actually been assisted by tools such as Covenant 169 of the ILO. It exercises, therefore, its jurisdictional action of protection by innovating in the field of international Populations law and enriching itself, in various cases, with the fundamental aspects of such international instrument in order to establish the international and the Rights of Indigenous responsibilities of the State and the determination of subsequent reparations. International Law, Legal Pluralism In particular, this has been the case of the development of jurisprudence with respect to the right to prior, free, and informed consultations of the fundamental international referral to standards provided under the above- mentioned Covenant for the International Labor Organization.

In this regard, the Inter-American Court jurisprudence has not had a formal perspective. The focus has been substantive, and of the creation of the right based on the general aspects included in an instrument such as the 107 American Convention.

The process, therefore, has been one that is meant to identify the concept of “indigenous” and of “indigenous population” in function of the specific ethnic, social and environmental characteristics corresponding to their decision. It must be noted that there is a reference to the pluricultural environment to produce harmony with the exercise of individual rights, “adjusted” to this environment.

The concept of multiethnicity and pluriculture, in fact, has not been, nor is, circumscribed in the jurisprudence of the Inter-American Court with respect to “founding populations”, strictly in the sense of the reflections and processes of interpretation that point towards more globalized space of multicultural societies of different origins and sources, like, for example, that of multiculturalism constructed hastily from international migrations.

In fact, on occasion, the Inter-American Court has studied cases that were not specifically with respect to indigenous or founding groups, but of groups with similar characteristics. This occurred, for example, in the case of the Saramaka People v. Surinam, which was resolved by the Court in 2007, with respect to which Shelton,11 affirms that this was the first time that the

11 Shelton, Dinah L. Yearbook of International Environmental Law 2007, Oxford University Press, 2008. En www.jus.uio.no/forskning/grupper/intrel/YBIEL/Reports-- 2Asst-Editor/01-01-HR%20&%20Environment.doc. Court extended the protection afforded to indigenous populations to tribal groups.

We should keep in mind, however, that this focus, as was noted by Price,12 of considering tribal groups to be included within the concept of “indigenous populations”, had already been established by the Court as early as 1993 by

of Human Rights the resolution of the Aloeboetoe v. Surinam case. Similarly, the Court also Inter-American Court Diego García-Sayán rendered a decision in the case of the Moiwana Community v. Surinam in 2005 when it established (for an ethnic group similar to the Saramaka) that:

… The jurisprudence of this Court, with respect to indigenous communities and their communal property rights, according to Article 21 of the Convention, must also be applied to the members of the tribal community that resides in Moiwana: the traditional occupation of the village of Moiwana and their surrounding lands —which have been recognized and respected for years by the N’djuka clans and the neighboring indigenous communities— 108 should be enough to obtain recognition by the state of their lands.13

By focusing matters in this manner, and by not using restrictive, analytical tools to take a group of humans into consideration as an “indigenous group”, the Inter-American Court is doing so in accordance with the terms of Covenant 169 of the International Labor Organization in the measure that such instrument —known as the “Covenant Regarding Tribal and Indigenous Groups”—make reference to the protection of not only indigenous, but also tribal, groups. The first are defined under Article 1 of the Covenant, as follows:

… are considered indigenous by the fact that they descend from populations that inhabited the country or a geographical region of the country during the conquest or colonization of the current country borders and, regardless of their legal status, maintain all of their own social, economic, cultural and political institutions, or part of them.14

Tribal groups, also according to Article 1, are defined as follows:

12 Price, Richard. Contested Territory: The Victory of the Saramaka People v. Suriname. Simpósio Internacional: Territórios Sensíveis: diferença, agência e transgressão. 15 jun. 2009 : Museu Nacional, Rio de Janeiro. En www.richandsally.net, p. 2. 13 Caso Comunidad Moiwana v. Surinam. Resolution dated 15 June 2005. Paragraph 133. 14 Covenant Nº 169 regarding Indigenous and Tribal groups. Article 1.b. … which social, cultural and economic conditions separate them from the other sections of the national collective, and which are totally or partially governed by their own customs, traditions or by special legislation.15

Legal pluralism and multiculturalism Populations

All of the above does not simplify this matter, but rather, adds complexity and the Rights of Indigenous to the terms of multiculturalism and multi-ethnicity in their legal and institutional expressions. Actually, the factual matter of legal pluralism International Law, Legal Pluralism connects us to an essential aspect such as multiculturalism and the challenges that this matter presents in the democratic development of society.

The democratic processing of the contradiction that may be presented between individual rights, as they are expressed in the instruments of human rights, on the one hand, and on the other hand, with collective and communal identifies that eventually develop dynamics that are in contradiction with these rights, is a matter of particular importance. 109

In this respect, Eduardo Hernando Nieto makes reference to the matter as a process that shows us:

… the tendency of the liberal State is to standardize every subject over the basis of the principles closest to the traditions of the dominating groups…16

It is with this matter in mind that Will Kymlicka has discussed, in his work Ciudadanía Multicultural,17 the urgent matter of the rights of the minorities, and the preservation of the identities of ethnic minorities. He considers, quite correctly, that the ethnic and cultural factors are based out of the great conflicts in history.

In this perspective, in the measure in which they are recognized, or not, the rights of all the groups within a plural, multi-ethnic and democratic context, are a matter of great important in international law and in the democratic development of different societies. Looking at the problem from another similar angle, another relevant reflection is that of space, or the “limits” of pluralism due to the standards of individual human rights as contained in

15 Ibid, Article 1.a. 16 Hernando Nieto, Eduardo. ¿Derechos Culturales u Obligaciones Naturales? En http://www.insumisos.com/lecturasinsumisas/Rights%20culturales.pdf, p. 2. 17 Kymlicka, Will. Op. cit. the international instruments discussing rights, including the American Convention.

In light of the above, Kymlicka emphasizes what he calls the “collective rights of the minority”, touching upon a substantial phenomenon regarding such problem and which takes as a basis, without a doubt, that of legal

of Human Rights pluralism. In the liberal perspective of Kymlicka the emphasis is placed on Inter-American Court Diego García-Sayán the fact that individual freedom is related to belonging to your own group.

We propose, then, that individual liberties of the members of the group are affirmed through the same and are not opposed among themselves.18 The fact that we can recognize that there are two types of collective rights of minorities that can be recognized refers to the “internal restrictions” as well as “external protections”. The latter, in Kymlicka’s judgment, must be guaranteed more than the “internal restrictions”.19

Without a doubt, this approach is intriguing; it seeks to establish limits on

110 the power of the State and economic power, as well as standards of the protection of groups within a liberal focus. Eduardo Hernando Nieto has questioned the limitations of the focus and whether the “external protections” are sufficient to ensure the existence of a culture or religion, “… or is it that we really require internal restrictions to be able to comply with this objective”,20 in which case, “the synthesis between individual and collective rights, would be unfeasible”.21

The issue is a complex one. What Kymlicka calls “internal restrictions” may perfectly consist of codes and values, which in that environment identify the group in question, and therefore, may and should be subject to defense and protection. Here, the liberal perspective over human rights perhaps has not allowed Kymlicka to accompany the rich development of the matter by circumscribing the somewhat rigid concept of the protection of individual rights, whose compatibility with the collective rights of indigenous groups is a challenge which in one way or another is assumed —not exclusively, however— by the exercise of the creation of jurisprudence within the scope of the International Human Rights Law.

Within the slim focus of legal pluralism, a special place is held by some of the substantive elements of the shape of indigenous rights in complex

18 Ibid, p. 80. 19 Ibid, pp. 66, 68 and 266. 20 Hernando Nieto, Eduardo. Op. cit. p. 4. 21 Ibid. matters. This is the case of the collective ownership over land and the territory and the recognition of indigenous justice in the application of penalty proceedings and mechanisms, which may not be the same as those, provided under law. None of these aspects is the simple sum of all individual rights, but rather involved a particular substantive dimensions consisting of, in essence, collective rights and those that demand that the State take a dynamic, active and “intrusive” role little related to the issue of “liberalism”, Populations unless the term is referred to in the most orthodox sense. and the Rights of Indigenous

Actually, the prevalence of collective property may be opposed, in International Law, Legal Pluralism appearance to the liberal and individualist perspective of private property. It should be noted however, that Inter-American jurisprudential developments establish that under certain circumstances, the method of establishing an individual right, is precisely, the collective space in the context of specific identities, for which the sense of the property isan absolutely necessary ingredient without which the identity of the group itself is affected.

111 Legal pluralism for the protection of human rights

In a similar perspective, we can find the treatment of a matter that is even more complex: the contradictions that may arise between the oversight of certain individual rights with penalizing rules and mechanisms that speak to indigenous or collective spaces. Can “collectivity” prevail, against all odds, over individual rights, if it is done in from a long-established stance, or one of immense social illegitimacy? Are there “limits”? If so, who imposes them, and how?

The matter is complex and very current. If it is true that human rights as a category established by international instruments over the matter deal essentially with individual rights, it is also true that their precision and development can be processed and specified through collective references. In other words, precisely, the perspective developed in the jurisprudence of the Inter-American Court, as has been said, can be found in the treatment of a matter as relevant as the right to property.

This is the vision and focus that has nourished the affirmation of fundamental rights such as that of non-discrimination and the right to equal treatment, as well as the obligation of the State to fully exercise its “guarantee duty”. Not only —not even fundamentally— “tolerating” this development, but rather, in particular, ensuring that these rights that in various cases are translated into the means and policies published, and specifically directed to the affirmation of collective property of the land of indigenous groups, as well as the assumption factually, and legally, that the communities are and should be recognized as subject to rights.

Some analysts’ state, furthermore, that the Inter-American Court has explicitly assumed the matter of “collective rights” as such, not being

of Human Rights understood as the aggregate sum of individuals; constructing, therefore, a Inter-American Court Diego García-Sayán different space of human rights differentiated from individual rights, and which may be entitled the “liberal perspective”.22

We leave behind, therefore, the antiquated doctrine of human rights (constrained to the fact) that the State “not violate” certain individual rights, and deal exclusively with a strict and solely individual perspective for the processing of this highly relevant judicial category. Not only does this support the perspective that the State must actually guarantee the validity of all rights, but also, in turn, interpret them specifically and creatively in function of each individual case. 112

This includes, for such purpose, a space for multiculturalism, pluralism, and the rights of the collectives as a space to achieve individual rights and therefore, deserving of protection. Thereby, conclusions are reached, such as those that are discussed below, with respect to the obligation of the State to guarantee the collective ownership over the land of the indigenous groups in question. Is this the desirable “harmonization” of the individual/ liberal categories of the collective categories? It is difficult to ensure that is so, but it is, in any case, a route towards development, which specific course should be followed very closely.

The concept of “human rights” then is created and recreated in jurisdictional resolutions and goes beyond the perspective of being solely “liberal”. Actually, this seems to be the course that we are taking regarding the decisions referring to contexts in which legal pluralism and multiculturalism are relevant ingredients that have been explicitly recognized as the richness of reality. And therefore, they strengthen concepts and values such as that of equality, and non-discrimination, which are formally separated from the contents and developments of international instruments such as the American Convention. This perspective, compatible with the ideas of Kymlicka regarding the conservation of the diversity of the unit, is in

22 Price, Richard. Contested Territory: The Victory of the Saramaka People v. Suriname. Simpósio Internacional: Territórios Sensíveis: diferença, agência e transgressão. 15 jun. 2009 : Museu Nacional, Rio de Janeiro. In: www.richandsally.net, p. 2. essence coherent with the standards established by the international standards of human rights.

Therefore, it is probably not the most appropriate thing to make of this development one in which the liberal concepts are opposed to the “traditional” ones regarding human rights. We face, the fact that the protection of human Populations rights, within a creative perspective, has integrated and may continue to integrate many of many of the concerns and matters presented by authors and the Rights of Indigenous such as Kymlicka. Within this approach, the challenge is to find —or International Law, Legal Pluralism construct— a course of interaction between legal spaces and concepts for which the most adequate and useful instrument, is that of the International Human Rights Law.

Integration de rights v. dualism

In this perspective, substantive frameworks of creative integration within the “Laws of the State” and “Indigenous law” are constructed —not without difficulty and spaces of contradiction—. These, seen from a formalist 113 perspective that does not feed from these judicial and institutional tools, may lead to a dualist focus that is quite far from the rich reality generated by the current conditions of the evolution of the international law of human rights.

In the name of the autonomy of the indigenous peoples and the confrontation with what in genere is qualified as “ethnocentrism” or “eurocentrism” are profiled, which are, however, debatable dualist tendencies, which might dangerously distance themselves from the real-life dynamics of the institutional and social evolution of the indigenous groups. This staunch dualism may end up being, at its core, the conceptual and ideological sustenance of a reactionary and conservative course of action, because it encapsulates, in stagnant compartments, social and judicial realities which in reality are connected by life in general, in particular by the economy, the rich social dynamics and by communication, as well as phenomena such as internal and international migration.

In our region, there are various manifestations of the same, which appear, generally, presented as a progressive viewpoint, which defend both pluralism and multi-ethnicity.23 Among other perspectives, for example, is the

23 See also, Becerra Becerra, Carmen Andrea. La jurisdicción especial indígena y el derecho penal en Colombia: Entre el pluralismo legal y la autonomía relativa. El otro derecho. No. 35 pp. 213-236 Bogotá, Colombia, 2006. Edit. Instituto Latinoamericano de Servicios Legales Alternativos [Latin American Institute of Alternative Legal Services]. conceptual organization of “legal pluralism”, understanding indigenous rights as a space that corresponds to a sort of absolute autonomy. It would be, then, “conditional autonomy” or “legal ethnocentrism” that the indigenous laws will have to keep within certain institutional or regulatory parameters.24

of Human Rights Without a doubt, we can agree on something as fundamental as the fact Inter-American Court Diego García-Sayán that indigenous laws must be respected and understood. If this is not so, we would not be talking about “pluralism”. The problem is that the matter is not limited to the formal aspect of whether a state authority can or cannot review the decisions of the indigenous authorities. In a historical and real social dynamic, this dilemma cannot be presented or resolved simplistically and abstractly, or assuming that a contradictory reality is not being faced. Everything shall depend upon the concrete conditions and contents of the contradiction.

It is debatable therefore, that the review by a high judicial authority, such 114 as the Colombian Constitutional Court, regarding the provisions issued by the indigenous authorities considered to be posing a threat to any fundamental right be, per se, a condemnable expression of “conditional autonomy”.25

The basic matter at hand, however, is not essentially on the formal plane; but it is, factually speaking, important. It should be noted that from the relation or articulation among the fundamental rights contained in internal and international guidelines, on the one hand, and indigenous laws and authorities, on the other. What are the limits or parameters —if any— to each judicial or institutional space, when dealing with existing, co-existing or co-habiting orders, the relationship of contradiction assumes that any absolutist approximation must be rejected.

The logic of formal analysis allows us to directly and frontally arrive at a sort of dilemma or antagonism between “individual rights” v. “collective rights”. What is in reality the central aspect is whether there are or not, certain minimums within the legal pluralism which must —or must not be— respected. From rights including the right to life or physical integrity, to other, more “sophisticated” rights, like the essential aspects of due process (the right, for example, to be previously notified of an accusation against the party, and to be able to defend oneself from the same). In this respect,

24 Ibid, p. 217. 25 Ibid, p. 227. we are actually entering into core concepts that may, subject to discussion, constitute “ethnocentrism”.

Perhaps the reticence of Kymlicka to what he calls the “internal restrictions” or what Becerra calls “conditional autonomy”, may comply with the fact that maybe the frameworks of the international law of human rights in effect were not taken account, its legality and especially, its legitimacy. That Populations it is not solely the text of what certain international instruments can say as and the Rights of Indigenous a catalogue of individual rights, but also its creative application within the conceptual focus of legal pluralism in multiethnic societies that allow for International Law, Legal Pluralism the showing, in all of their richness, the various dimensions of human rights. Should this be rejected? Should it be thought of simplistically as a “dominant” focus because it was designed and approved by “Western” state authorities?

This is, in fact, an essential theme and one that is being developed: international obligations with respect to human rights, and the limits on legal pluralism. In other words, the democratic parameters of the exercise 115 of multi-ethnicity. This does not reduce the formal contents of international instruments —whether these are universal or regional— but rather refer to their real dynamics of application, interpretation and reinterpretation by society itself, and especially, by the international bodies for protection.

This problem has to do with a very difficult and complex matter that is the weighting between values that are supposedly “absolute”, and those that arise out of specific ethnic identities, such as the indigenous identity. It should be noted that the wide field that goes from what we can qualify as the “eurocentrism” of values that are supposedly “absolute” —such as those that sometimes assume certain liberal currents— up to the complete relativism where everything is free of the particularities of the local ethnicities. The fact is that such “absolute” values do not exist, but rather are historical in their origin and constant, dynamic interpretation and reinterpretation.

The above determines certain parameters and courses for the necessary exercise of this weighting. This exercise of deliberation, in the legal order, should not be made as have or revolve around the ideological concepts or individual ethics of each one. This is not law. It would open, therefore, an indeterminate and indeterminable spectrum foreign to judicial order.

The response is not, then in the intent to construct “absolute” values, but rather in locating the spaces in which social, institutional and political development is a keystone in the democratic states governed by the rule of law, which include human rights. When I say “human rights” I do not mean ideological categories, or ethical examples, but rather the substantive standards —and to the jurisprudential development as of the same— that have been constructed in the international order as the axis of contemporary democratic society.

of Human Rights The Colombian case Inter-American Court Diego García-Sayán

These jurisprudential developments have occurred, however, not only in the space of “Inter-American justice” in the restricted sense (in other words, the Inter-American Court of Human Rights) but rather in the space of domestic courts that in the measure in which they are members of the States part of the Inter-American human rights system are an active and essential part of the process for the adaptation and agreement between internal regulations and the obligations acquired through an instrument such as the American Convention of Human Rights.

116 With respect to legal pluralism and the rights of indigenous groups, the jurisprudence issued by the Colombian Constitutional Court is rich, taking into account that Colombia is the Latin American country, where the highest judicial body for the interpretation of its constitution, has made the biggest contributions with respect to jurisdictional matters, regarding this issue. Bonilla qualifies, with reason, the Colombian Constitutional Court as “one of the most progressive constitutional and legal frameworks in Latin America, with respect to multicultural matters”.26

There have been various jurisdictional decisions that may be commented upon, but I am going to make reference to one over which various analysts have highlighted their significance and relevance. I make reference to the Decision of the Constitutional Court Nº T-349/96 of August 1996, declared in light of the guardianship motion presented by an indigenous person (Ovidio González Wasorna) against the General Assembly of Indigenous Council of the Chamí Region and the Sole Chief Councilman.

From the case, it can be noted that the claiming party considers that his rights were violated, during the course of a trial for homicide assumed directly by the indigenous community and carried out in the internal community instances. The file includes the fact that claimant alleged that he had been applied the punishment of the restrains and that this was

26 Bonilla, Daniel. La Constitución multicultural. Siglo del Hombre Editores, Universidad de los Andes, Pontificia Universidad Javeriana, Instituto Pensar. Bogotá, 2006. p. 25. considered “cruel and inhuman punishment”. To the margin of this evaluation, in the case before the Constitutional Court, no one disputed the fact that the punishment of the pillory had actually been applied.

The Main Councilman of Risaralda sentenced Ovidio González Wasorna to “8 years in jail” in a decision adopted in a meeting with the local Councilmen Populations and the General meeting of the community. Thereafter, the Councilman

increased the sentence of González Wasorna to 20 years. The “condemned” and the Rights of Indigenous alleged that he could not use any defense, as a recourse because against the International Law, Legal Pluralism decisions of the community, no recourse was permissible. There was also discussion of whether or not this was an expression of “customary law”.

Since this was the first case of homicide resolved by the community, according to the claimant, this was not considered customary law because “there was no (...) custom, no use, that would allow application with respect to the proof, and term and in the decision of the wisdom of the knowledge of this ethnic community”.27 They alleged, among other things, 117 that they had been judged with standards that did not pre-exist the facts, and the party being processed was denied the possibility of presenting evidence and to challenge the same, and accusing the community of having adopted a decision that lacked impartiality, the claimant stated that for such effects, they acted as the judges and family members of the victim.

The conclusion of the Constitutional Court was that the indigenous community concerned went beyond its jurisdictional powers and violated due process since it affected the principle of legality of the sentence. This was obvious from the examination of the basic ingredients of the principle of legality for the adoption of a criminal decision. It is obvious that when it arrived at this conclusion, the Constitutional Court was incorporated conceptual and regulatory elements that go beyond the indigenous rights conceived as an absolute, and self-sufficient space.

This may give grounds to the hypotheis that this could qualify as “conditional autonomy” or “legal ethnocentrism” in the reasoning and conclusion determined by the Constitutional Court in this case. On the contrary, if we go beyond this conclusion, we can confirm that this may be considered limited and partial to limit the violations declared by the Constitutional Court to the right due process, due to the proceedings used by the indigenous authorities.

27 Resolution by the Constitutional Court of Colombia Nº T-349/96. August 1996. As it has been stated above, this an essential ingredient in a democratic society. As it has also been said, this is related, of course, not only to what we call “ideological pluralism”, but also to the key concept of ethnic and legal plurality as the precision of the respect to the principle of non- discrimination within the social and historical context of ethnic plurality.

of Human Rights Legal pluralism, as a democratic conceptual approximation, includes Inter-American Court Diego García-Sayán international human rights obligations as a fundamental regulatory parameter and of the principles of a democratic society. The customary indigenous laws are not the only reference that must be taken into account in the analysis of its consent and the character of legal pluralism in a democratic society.

As stated by Bonilla, with reason, this is a complex matter that causes “serious legal and political tension”28 and constitutes “… one of the most important challenges currently faced by the democracies on our planet”.29 This information, however, cannot be considered an “anomalous” element. Therefore, on the contrary, it is a tension that is part of the structure of the

118 contradictory social dynamics and more so, in the contemporary States where the “democratic demand” of the various sectors of the population have more legitimate channels and impact on their actions and mechanisms of representation. In addition, as a result of their complexity, this is a dynamic of conflict that cannot be processed with standard solutions and answers, but rather requires solutions on a case-by-case basis.30

In Bonilla’s opinion “…human rights are insufficient to properly respond to the demands of these communities”,31 it is clear that in the process of the overcoming of these tensions, it is an international obligation of the State to guarantee human rights within a perspective that goes beyond individual reductionism. Therefore, a “course” is mapped out as conceptual ordering criterion.

Obligation to guarantee legal pluralism

An international obligation, freely and sovereignly contracted by the States, is that of non-discrimination. Actually, therefore the States undertake the

28 Bonilla, Daniel. La Constitución de 1991, la Corte Constitucional y la tensión entre derechos individuales y diferencia radical. From readings of the Seminar “New Theoretical Focus Regarding Jurisdictional Function “ [Lecturas del curso Seminario Nuevos Enfoques Teóricos en relación con la Función Jurisdiccional]. Masters in Law with Special Mention in Jurisdictional Policy. Pontificia Universidad Católica. Professor Dr. Roger Rodríguez S. p. 153. 29 Bonilla, Daniel. La Constitución multicultural. Op. cit. p. 20. 30 Ibid, p. 105. 31 Ibid, p. 21. obligation to guarantee the rights of persons “without any discrimination whatsoever arising out of race, color, gender, language, religion, political opinions or any other reason, national or social origin, economic position, birth or any other social condition” which is clearly logical in a completely democratic conception and as expressly stated by Article 1 of the American Convention on Human rights. The Convention also stipulates the principle of “equality” reaffirming the fact that all people “have the right, without Populations discrimination, to equal protection under law” (Article 24). and the Rights of Indigenous

These obligations also entail, as has been said, not only the commitment International Law, Legal Pluralism to not violate the law as well as to guarantee it, but also of specifically guaranteeing the adjustment of all the state laws to the Convention. For this purpose, States must adopt “the legislative measures or of another type that are necessary to make such rights and liberties effective” as stipulated under Article 2.

It is not a question; therefore, of only “respecting” pluralism, but also that the State must guarantee it using the adequate measures and policies. This 119 takes into account that not only will the legal provisions required be passed, but also that public institutions, in general, behave with equal respect within the conceptual framework of pluralism. In its jurisprudence, the Inter-American Court has established, for example, that the States have the obligation to “eliminate the regulations of a discriminatory nature, combat all discriminatory practices, and establish standards and other measures that ensure and recognize actual equality before the law of every person”.32 With this we do not magically resolve, however, the tensions and contradictions that exist in both multicultural and pluri-ethnic contexts.

Bonilla presents five “normative criteria” to resolve this tension.33 They are relevant, among them, in that the State is impartial, the self-governance rights are maximized and that the intervention of the State minimized, as well as the importance of intercultural dialogue. This presentation opens up, a wide range of reflection but is not an operational answer that gives the public institution the adequate tools to make decisions.

The conceptual, substantive criteria to resolve all of these can be found in the instrumental, substantive human rights. In some measure this is what the Colombian Constitutional Court did in the case provided above, garnering assistance from a substantive instrument that can be the

32 Yatama v. Nicaragua. Resolution dated June 23, 2005. Paragraph 185. 33 Bonilla, Daniel. La Constitución multicultural. Op. cit. pp. 42-43. affirmation of legal pluralism, but inserted within the international standards of human rights. The analysis might also include other rights, but to be considered “conditional autonomy”, this exercise is an error. This only states that every individual, social group is inserted in an order that is greater than the one with which it must be interrelated.

of Human Rights The key is not that there are other cultural patterns —normative or Inter-American Court Diego García-Sayán jurisdictional— at play. These exist and the tension and contradiction is part of everyday reality as it should be, and in addition, is of practically every society. In addition it might be growing because as reality has shown us, the globalization expressed in all dimensions and lands is not antagonistic of the flowering of multiculturalism and the reinvigoration of both ethnic and domestic identities.

The key, in any case, is whether any of these components which we might call “Major society”, affects, or not, the basic elements of the ethnic identity

120 of the indigenous groups and with this, the essential aspects of legal pluralism and of multi-ethnicity.

It can be interpreted, within reason, however, that the international obligations of human rights do in fact establish limits on unconditional legal pluralism and to paraphrase Becerra, unrestrained. This is true. There are various legal orders in effect over the same spaces, and they have to interact, and not just co-exist in separate compartments. This is probably the essential aspect of the problem.

We are not saying that the solution is a comfortable “medium” point, but rather the dynamic articulation between legal orders in a complex and always tense process, and in the adequate weighting of rights and legal orders. How can we train and give an adequate course in the dynamics of weighting?

That is, without a doubt, the fundamental question. This weighting exercise in the legal order cannot and should not be done, as has already been stated, “as of” or “as a result of” the individual ethical concepts of each, because this would open up a channel and a type of solution that is foreign to the legal order we seek. The response is not in the supposed “absolute” values, but rather in the conceptual, articulating central concepts arising out of existing consensus and agreements. As occurs exceptionally with the human rights conceived as substantive regulations that have been constructed in international standards as central ideas of contemporary democratic society. These principles and standards arising out of human rights are not simple declarations or rhetorical expression either. They are codified in international treaties and their supervision and oversight are entrusted to international jurisdictional bodies such as the European Court of Human Rights or the Inter-American Court of Human Rights. Populations In a context in which pluralism is a right, the bet is to guarantee and develop, in synchronicity, the respect to plurality and international and the Rights of Indigenous obligations. Both ingredients feed and get feed back from each other and in International Law, Legal Pluralism doing so provide a clear, substantive direction towards pluralism. This is the “common denominator” within which legal pluralism is inserted and “limited”, not to impose a “western” vision, but rather to establish substantive guidelines that the State must guarantee, and society must respect.

Having said this, the judgement by the Constitutional Court, as an example, illustrates the complexity and practical difficulty of the exercise of weighting and of the need to set off from a perspective of constructing exits for 121 successive approximations. Here, for example, we can consider that the judgement of the Constitutional Court applies a mistaken, restrictive and limited criteria of the standards and principles that must serve as a channel to “community justice”. This focus may complement itself with the most complete, comprehensive and advanced criteria in the identification of the rights or guarantees that must be respected at all times, in all places, and in all circumstances.

The thing is to identify the nucleus we can qualify as “untouchable”. This is not easy, and there are various approaches to do it. The Constitutional Court has explored one: in the sentence of the Colombian Court mentioned above, it mentions, for example that the “nucleus of intangible rights shall only include the right to life, the prohibition of slavery and the prohibition of torture”. The Court based this conclusion on the rights that the international instruments consider “intangible” for effects of states of exception.

This approach is heartily debatable because the states of exception are also an “exceptional” situation, as is inferred b its own name. The standard for these cases (states of exception), therefore, is specific, but it is not synonymous without the fundamental standards that must be respected in a democratic society that respects pluralism. The parameters must be constructed, then, beyond the “emergency” response, and making reference not to a situation of “exception” but rather to contradictions and tensions that are structural in nature; matters, therefore, that are very different. The use of states of exception in order to construct the list of the “intangibles” was so limited that the sentence of the Constitutional Court adds the “principle of legality” to the intangible rights chosen, but without explaining why this right is chosen which is not a part of the “intangible nucleus” —supposed criteria of “order”— and not any other. As Bonilla points out, the Constitutional Court does not adequately sustain the principle of the 34

of Human Rights “maximization” of the autonomy of indigenous justice when it does not Inter-American Court Diego García-Sayán justify the supposed intercultural character of certain values, nor why did it choose only the three rights mentioned.35

Other judgements of the same Constitutional Court had already established the universal character of human rights, and the fact that there are not culturally relevant.36 It does not follow legal or doctrinal grounds to establish “categories” of rights nor does this focus entail what Bonilla calls “cultural liberalism”.37 “Intangibles” rights and other “not so very” intangible rights, is a differentiation that is not conditioned under international obligations. We are dealing with a situation that is not “exceptional”, but 122 rather one of normality of the existence of the various legal orders of a same society.

Of all of the above we cannot conclude, by the way, that indigenous communities shall move on to becoming one more piece of the puzzle that is the State, or a social space that is subject, in every single aspect, to written state law. At this stage of legal and conceptual development, the logical course is that the rights can be interpreted and reinterpreted in different manner, in function of their specific contexts.

This is the case, for example, of the interpretation of the Inter-American Court of Human Rights with respect to private property. For example, we have the case of Awas Tingni v. Nicaragua,38 which interpreted that, the manner in order to guarantee this right was collective property; provide that this mode is the specific, ethnic space, which serves as a channel to specify individuals’ rights in this respect. A similar focus was met in the case of Saramaka v. Surinam (2007).

The complexity of the matter may be seen if we assume, for example, that the rights affected in the case resolved by the Constitutional Court have not

34 Bonilla, Daniel. Op. cit. p. 157. 35 Bonilla, Daniel. Op. cit. pp. 175-176. 36 Bonilla, Daniel. Op. cit. p. 161. 37 Bonilla, Daniel. Op. cit. p. 158. 38 Awas Tingni v. Nicaragua. Resolution dated August 31, 2001. been circumscribed to those mentioned under the sentence, in what Bonilla classifies as “radical interculturalism”.39 Dealing with the matter in this way may not be understood as “ethnocentrism” or “eurocentrism”, but rather the organization of the legal orders within the lines and channels which take in consideration basic standards and obligations that the international community and the communities, in great measure, support. Populations

In the Colombian case, for example, the right to personal integrity, personal and the Rights of Indigenous

freedom and to defense can also be considered rights that have been International Law, Legal Pluralism affected. The first because the physical pressure applied is corporal punishment banned under Article 5 of the Convention; the second, because the freedom of the party in question was taken away as banned under Article 7 of the Convention, and the third, among other things, because the mere presence of the family members in the meeting that adopted the decision did not preclude the complainant from defending himself from the accusations against him, nor comply with the guarantees provided under

Article 8 of the Convention itself. 123

The constant jurisprudence of the Inter-American Court has established that Article 8 is applicable not only to penal processes, but also to the group of requirements that must be observed in all stages of the proceeding, whatever they may be.

Actually, the constant jurisprudence of the Court when expansively interpreting the guarantees provide under Article 8.2 to extend the judicial guardianship in various cases: “in spite of the fact that the above-referenced Article does not specify minimum guarantees in matters that concern the determination of the rights and obligations of a civil, labor, tax or other nature, the group of minimal guarantees established under no. 2 of the same precept, also apply to these orders”.40

Provided that in the non-judicial sphere, there may be the expression of punitive power, the Court has understood that “the characteristics of impartiality and independence […] must govern all the bodies in charge of determining the rights and oblations of persons. […] Which not only correspond to strictly jurisdictional bodies, but also the provisions of

39 Bonilla, Daniel. Op. cit. p. 169. 40 Case Ivcher Bronstein (Peru). Judgment of February 6, 2001. Paragraph 103; Case of the Constitutional Court, Cit., paragraph 70, as well as Exceptions to the Exhausting of Internal Resources (Articles 46.1, 46.2.a and 46.2.b American Convention regarding Human Rights), Cit., paragraph 28. Article 8.1 of the Convention which apply to the decisions of the administrative bodies”.41

Even without this jurisprudence, constantly reiterated, it is clear from the text of Article 8.1 of the American Convention on Human Rights that the determination of the rights and obligations “of any nature” must be made within a protectionist framework that guarantees the rights of the people. of Human Rights Inter-American Court Diego García-Sayán As a result of this consideration, the constant interpretation of the Court has invariably, been overly liberal.

Democracy, governability and legal pluralism

In the dynamics of the interaction between domestic public institutions and the Inter-American system, there has been considerable, good advancement. In the successful results of the Inter-American jurisdictional development process, and of the interaction with the domestic tribunals and in general, domestic public institutions, the stability of democratic 124 institutions and of the democratic state governed by the rule of law, come into play.

In the development of these concepts, the democratic state governed by the rule of law is nothing more than the capacity of the Sate to process the social demand and the social conflict with proceedings and results that are democratic in nature. This is the path to both progress and development.

The Inter-American Court is declaring binding jurisprudence that the States tend to apply, and determining guidelines and standards regarding certain public policies, but the central starring role is, and shall be, held by the domestic states. Within these, in addition to the political authorities, particularly judges, in which each level has a everyday relationship with the population.

Judges have always been the first line of defense in the guarantee of human rights, but on occasions this was only a formal position. In the adoption of international standards and to substantive criteria that places the rights of the people foremost, the national judicial systems make their role more dynamic and legitimate, and therefore, that of Law as a re-evaluated petition.

It is encouraging that the domestic courts grow every more inspired by the international orders, and the criteria of the jurisprudence of the Inter-

41 Case Vélez Loor v. Panama. Judgment of November 23, 2010. Paragraph 108. American system. Without having opened the door to the so-called “government of judges”, it is evident that domestic judges are in charge of safeguarding the presence of the categories of human rights in all actions of the State, including the fundamental aspects of public policies.

The exclusion has been, throughout history, constant. It has generated not only of injustice, but also of political instability and social conflict. There Populations are international commitments that make us face them. There is also the and the Rights of Indigenous democratic demand of communities that today, command a starring role. What they expect —and seek– is that the States organize themselves very International Law, Legal Pluralism well in order to face with courage and decision, the exclusions and injustice faced in the present.

In the context of multiethnic societies, the rights of the indigenous groups are a fundamental matter on the agenda of respect and guarantee of human rights. In this measure, the jurisprudence of the Inter-American Court of Human Rights has been particularly innovative and relevant in which legal pluralism has been and is a fundamental concept. This has nurtured and 125 fed the jurisprudence of the Inter-American Court, understanding that in a democratic and pluriethnic society, it is a precision of the respect to the principle of non-discrimination.

Legal pluralism gives rise to substantive questions regarding the articulation of what can be called “the rights of the state” and the “indigenous rights”, which is an important space of both tension and contradiction; it is not merely an “accident” of history, but the natural expression of the contradictions of society itself. This tension, which is structural in the majority of contemporary States, requires solutions on a case-by-case basis.

The jurisprudence of the Court has opened up a road to process these types of contradictions. Adjusting the “individualistic” text of the international law of rights, to the specific social context of the problems of indigenous groups in which in other aspects, the precision of the individual rights tends to be closely linked to the collective duties and interest.

International obligations in terms of human rights and the limits on legal pluralism are therefore, an essential mater in law and of contemporary society. In other words, the definition of the democratic parameter of the exercise of multi-ethnicity. Human rights in such contexts are exercised in the community and the processing of the same in the indispensable exercise of weighting that has to be done on a case-by-case basis, coming up with the integration of perspectives and realities, and not the stimulation of inadequate dualisms. In this perspective, we have inserted the Inter-American jurisprudence in what relates to the rights of the indigenous groups and which express, therein, fundamental concepts that may be of use in the processing and solution of complexities and practical difficulties in the exercise of weighting different aspects, and continue to construct a democratic perspective that affirms certain rights. of Human Rights Inter-American Court Diego García-Sayán Prove that there do exist various other cultural patterns —normative or jurisdictional— in play is only the starting point. The key is to construct an order in which the interaction of these components within the greater society does not affect the major elements of the ethnic identity of the indigenous groups and, therefore, essential aspects of legal pluralism and of multi-ethnicity. This is, precisely, the complex scenario of the deliberative exercise.

This is the perspective that should continue to contribute to the affirmation of the fundamental rights of indigenous groups as a singularly important

126 space to specify the affirmations of non-discrimination and right to equality, as well as the obligation of the State to fully exercise its “duty to guarantee”.

The concept of “human rights”, then, is created and recreated in contexts such as these, where legal pluralism and multiculturalism are relevant, recognized ingredients in jurisdictional decisions, as rich data of reality.

Those that are law professionals, and in particular, judges, have a historical opportunity and responsibility in the successful processing of conflicts related to the rights of the indigenous groups. This sets out channels and routes that are promising in future economic development and, by the way, very large challenges.

Governability and development depend, in great measure, on the weighted focus of jurisdictional decisions in this matter and that the public policies be efficient and part of a framework of the respect of the fundamental rights that would eliminate exclusion, and assume that democracy and non- discrimination are not the uncomfortable or passing visitor, but that they have come to stay.

International obligations, far from being a nuisance or contradiction, may actually be an inspiring utopia that serves as a guide for improved organization and the generation of greater justice and integration in multiethnic diversity. Janus, illuminate us with the future, and the vision of action as the art of preventing and moving beyond conflict. That is what the communities and history expect. Interpretation and sentences issued by the Inter-American Court of Human Rights: their binding force

Óscar Urviola Hani1

Vice-President of the Constitutional Court of the Republic of Peru

Introduction

Only in a democracy can fundamental rights and liberties have full effects and be adequately protected when they are threatened or infringed upon by acts or omissions carried out by public authorities and even by private agents. This is why every constitutional and democratic State has the primary duty to guarantee the full observance of human rights, as provided for by article 44 of the Constitution.

This constitutional duty of the State evidently demands designing and implementing an internal system for the protection of the rights and liberties acknowledged in the Constitution. In our legal order, the Constitutional Tribunal (CT), in its capacity as “entity for the control of the Constitution”, is the topmost and final ruling authority in constitutional processes for the protection of rights. But the protection of said rights and liberties does not end with an internal legislation, since the Constitution itself ensures the possibility of resorting to international jurisdiction for the protection of human rights.

In this sense, there are three constitutional provisions that are key for integration of the internal protection of rights with the international system for the protection of same: first is article 56-1 of the Constitution, which grants Constitutional status to all international treaties on human rights;

1 In collaboration with Jorge León. 127 second is article 205, which grants access to the international system for the protection of human rights; and third is the Constitution’s Final and

Transitional Fourth Provision (CDFT, by its Spanish initials), that incorporates the principle of a Constitutional interpretation of fundamental rights as contemplated by International Law on Human Rights.

Republic of Peru Inasmuch as the first of the above provisions is the basis on which the Óscar Urviola Hani

Constitutional Court of the Peruvian State obliges itself to comply with certain international obligations regarding human rights, the purpose of this study focuses, rather, on analyzing two subjects: the first one is the interpretation made by the Inter- American Court of Human Rights (ICHR) of the American Convention for Human Rights (hereinafter, the Convention) and its legal value on our internal legislation; the second one is the binding force of sentences given by the ICHR; i.e., the Peruvian State’s compliance of said sentences, based upon the jurisprudence of the Peruvian Constitutional Tribunal.

The legal worth of interpretation

128 by the ICHR in the internal legislation

Just as a Constitution that is not interpreted is a “dead” Constitution, a Constitutional Tribunal that does not interpret is an inert Constitutional Tribunal and, therefore, a useless one. The power to interpret the Constitution is inherent to the legal nature of all Constitutional Tribunals, in correspondence to the fact that the Constitution’s provisions are not always rule-standards, but largely principle-standards. The inevitable axiological load of the Constitution must also be taken into consideration inasmuch as it is underpinned by constitutional values such as the dignity of human individuals, democracy, equality, pluralism which bear an even greater margin for interpretation.

Constitutional provisions that acknowledge fundamental rights are especially characterized for being open and usually do not define precisely neither their content nor their limits. In these cases, the interpretive activity of the Constitutional Tribunal, in its role as supreme interpreter of the Constitution, is necessary in order to define the scope within which each of these rights is protected; this is achieved by resorting to specific principles of constitutional interpretation, such as the principle of unity for the Constitution and that of practical harmony. Given the above, the classic methods of legal interpretation are insufficient when interpreting the Constitution as if it were just one more law within the source system.

The Constitution’s specificity and the provisions that acknowledge fundamental rights —and, therefore, Constitutional interpretation— ensure that the interpretative activity of the Constitutional Tribunal regarding the latter benefits from the jurisprudence deriving from other constitutional courts or tribunals and not only regarding fundamental rights, but also regarding other Constitutional Law institutions, thus enabling a universal jurisprudential dialogue that results in a better protection of fundamental rights and liberties.

But resorting to the jurisprudence and to the doctrinary and ruling materials Interpretation and sentences 2 Human Rights: their binding force from other compared legal systems is not always peacefully accepted. issued by the Inter-American Court of While this is not the general case, there are always objections. This has given way to the identification of, basically, two theses: the universalist thesis allows constitutional courts and tribunals to resort to foreign jurisprudential and ruling materials for the purpose of interpreting the catalogue of fundamental rights.

This thesis is based on the acknowledgement that “in the Constitutional State corresponding to our evolutionary phase, a comparison of fundamental 129 rights becomes an indispensable ‘fifth’ method of interpretation”.3

On the other hand, the isolationist thesis forbids domestic judges to interpret fundamental rights by resorting to the decisions of foreign constitutional tribunals or courts or of international human rights tribunals.4

Our Constitution does not prevent domestic judges to avail themselves of dogmatic and jurisprudential elements that derive from compared Law at the time of interpreting the fundamental rights that it provides for. In recognition of this, the CT has assumed the first thesis. It is especially clear to see nowadays that its jurisprudential development is many times influenced by the sentences and rulings of other constitutional courts or tribunals,5 especially the IHRC.

In some sentences, the CT has implicitly adopted the universalist thesis. It has thus manifested that the principle of interpretation of fundamental

2 Regarding this, see the speech by Prof. Gustavo Zagrebelsky at the fiftieth anniversary of the Italian Constitutional Court, in Justicia Constitucional, Revista de Jurisprudencia y Doctrina, Año II, Nº 3, january-june, Lima, 2006. pp. 391-394. 3 Häberle, Peter. El Estado Constitucional. Mexico D.F., Lima: UNAM-Fondo Editorial de la PUCP, 2001-2003. p. 162. 4 See Antonin Scalia’s (a magistrate of the United States’ Supreme Court) paper of May 28, 2007, given for the X Anniversary of the UPC’s Law School. 5 For example, on STC 7624-2005-PHC/TC (FJ 8) the CT refers to the sentence dictated by the European Human Rights Tribunal on the Kenmache Case, for the purpose of considering a criminal judge’s “special diligence” in a process as a parameter for determining the reasonability of the duration of detention. rights as per the terms of International Law of Human Rights, “is not restricted solely to those treaties that have been signed by the Peruvian

State (...), but also includes the jurisprudence that the agencies in charge of protecting human rights may have issued in connection with said international instruments”.6

Republic of Peru At other times, the CT has openly acknowledged compared Law as a method Óscar Urviola Hani

Constitutional Court of the for constitutional interpretation by pointing out, for example, that article 4 of Protocol 7 of the European Convention on Human Rights is not binding for the Peruvian State, but is nevertheless useful to determine the constitutionally protected content of the non bis in idem in the context of a legal process, as comparative Law has been accepted as a fifth method of constitutional interpretation.7 It has acted in a similar fashion in other cases where it has found the need to resort to foreign rulings and jurisprudence in connection with other matters.

But it is with regards to the jurisprudence of international tribunals for 130 human rights that some clear definitions must be made. In the first place, we must acknowledge that the legal worth of interpretations made by those tribunals is not the same in every case. Regarding this, we believe two binding degrees must be distinguished: a weak binding, so to speak and a strong binding.

The first one refers to those hypothetical cases in which the CT, as in the example cited before, invokes the interpretation of the European Court of Human Rights of an international agreement of which the Peruvian State is not a party, which certainly does not exclude the possibility of considering its terms, even more so when the CT itself has acknowledged comparative Law as a method for constitutional interpretation. In any case, what legitimizes and justifies such an interpretation is its contribution to better protect a specific fundamental right; however, it could not be invoked for the purpose of reducing its efficacy and much less to call for justifying not acknowledging it.

Strong binding, in contrast, has its constitutional basis in the very Constitution’s CDFT, which points out: “standards and rulings concerning the rights and liberties which the Constitution acknowledges are interpreted in accordance with the Universal Declaration of Human Rights and with

6 STC 4587-2004-AA/TC (FJ 44). 7 STC 3360-2004-AA/TC (FJ 4); STC 729-2003-HC/TC (FJ 5); STC 002-2005-AI/TC (FJ 45); STC 0027-2005-AI/TC (FJ 34); 0042-2004-AI/TC (FJ 26). the international treaties and agreements concerning the same subject matter which may have been ratified by Peru.8

More precisely, the Constitutional Procedural Code, in article V, acknowledges that “the contents and scope of those Constitutional Rights that are protected by the processes regulated by this Code must be interpreted in accordance with the Universal Declaration of Human Rights, with treaties on human rights, as well as with those decisions adopted by international courts on Interpretation and sentences Human Rights: their binding force

human rights which may have been constituted in accordance with the issued by the Inter-American Court of terms of treaties of which Peru is a party”.

Two ruling senses derive from the Constitution’s CDFT and from the aforementioned provision from the Constitutional Procedural Code: (1) that the internal entity in charge of interpreting the constitutional provisions on fundamental rights must fulfill its duty as per said international instruments; (2) that the internal entity interpreting the constitutional provisions on fundamental rights must fulfill its duty in accordance with the interpretation of said international instruments that the IHRC may have made. 131

The first principle allows for the internal jurisdictional entity to directly interpret the human rights international instruments of which the Peruvian State is a party in order to determine the contents and limits of the fundamental rights acknowledged in the Constitution. Thus, the CT defines the essential content of the right to a trial with no undue delays, as recognized by the Constitution’s article 139-3, directly interpreting the principle of reasonable term alluded to in articles 7.5 and 8.1 of the Convention.

It understands that this has the purpose of “preventing defendants to be kept for a long time under an accusation, ensuring said accusation is brought to a swift decision[…]. As a consequence, the right of a due process

8 This constitutional provision is similar to article 10.2 of the 1978 Spanish Constitution, which establishes: “[…] 2. Standards and rulings concerning fundamental rights and liberties acknowledged by the Constitution shall be interpreted in accordance with the Universal Declaration of Human Rights and with the terms of those international treaties and agreements on the same subject which may have been ratified by Spain”. Concerning this article, the Spanish doctrine has expressed the following questions: 1) The treaties alluded to by the article are only those whose direct object is the acknowledgement and protection of human rights or should it also include those unregulated others that deal in a general way with principles that have incidence on the fundamental rights and liberties referred to by article 10.2 CE? 2) Must the same interpretive force contemplated by article 10.2 CE be given to the decisions of agencies that institute those treaties for the purpose of guaranteeing the rights acknowledged in them? 3) Must other texts that are legally relevant and which may be issued by international organizations of which Spain is a party also constitute interpretive parameters, even if those texts cannot be considered treaties by their nature? Cfr. De Carreras, Francesc. “Función y alcance del artículo 10.2 de la Constitución”. In Revista Española de Derecho Constitucional, Año 20, N. 60, setiembre-diciembre, Madrid, 2000. p. 328. with a time limit between its beginning and its end is part of the minimal nucleus of rights acknowledged by the international system for the protection

of human rights and, therefore, cannot be ignored”.9 Here, the CT directly interprets the Convention —and not through the interpretation given by the IHRC.

Republic of Peru The second principle obliges the entity in charge of interpreting the Óscar Urviola Hani

Constitutional Court of the constitutional provisions on fundamental rights to fulfill its duty in accordance with the interpretation of said international instruments that the IHRC may have made. Here, the IHRC’s interpretation, having been constitutionally and legally acknowledged may not be ignored when interpreting the contents and limits of fundamental rights and liberties.

The CT has been very clear regarding this. It acknowledges that the Constitution’s CDFT contains “an obligation to follow the interpretation given of same by the supra-national entities in charge of protecting those attributes that are inherent to human individuals, especially the interpretation 132 given by the Inter-American Human Rights Court, the highest authority in terms of the protection of those rights in the Region”.10

In this sense, it has pointed out that “the imperative mandate deriving from the interpretation of human rights implies, then, that all public activity must consider the direct application of those standards that have been set out in international treaties on human rights, as well as the jurisprudence of international entities of which Peru is a party”.11

The mandated consideration of interpretations by the IHRC cannot be limited only to those sentences in which the Peruvian State has been the defendant, but should extend to all the sentences the IHRC may have issued. Nevertheless, it is necessary to specify that in those cases in which the State has appeared before the IHRC as defendant, the binding nature covers not only the resolutive part of the sentence, but also the ratio decidendi.

In contrast, in cases where the Peruvian State has not appeared as defendant, it is evident that the resolution part is not binding for it; this, however, should not be interpreted as meaning internal jurisdictional entities should omit a sentence’s essential basis when interpreting the catalogue of rights and liberties acknowledged by the State’s Constitution.

9 STC 549-2004-HC/TC (FJ 4). 10 STC 0217-2002-HC/TC (FJ 2). 11 STC 2798-2004-HC/TC (FJ 8); vid. also STC 1417-2005-AA/TC (FJ 7). It is also clear that, as the CT has said, “the constitutional quality of this binding nature that derives directly from the Constitution’s CDFT has a double function in each specific case: a) a repairing one considering that, once an interpretation has been given of an infringement on a fundamental right in the light of the Court’s decisions, the possibility of affording it an adequate and efficient protection is thereby optimized; and b) a preventive one because, by compliance, the negative institutional consequences that come with IHRC adverse sentences —with which, unfortunately, our State Interpretation and sentences Human Rights: their binding force

is very familiar with— can be avoided. It is the duty of this Court and, in issued by the Inter-American Court of general, of all public authorities, to avoid a reiteration of this negative phenomenon. To summarize, from the authority of the constitutional canon that is this Tribunal’s duty to protect, an additional duty is derived that all public authorities ought to comply with; to wit, the mandatory adherence to the terms of all treaties on human rights that have been ratified by Peru, as well as of the interpretation made of them in all processes made by international tribunals that may have been constituted as per the terms of any treaties Peru may be a party to”.12 133

A final question that may be posed is whether there exists a hierarchical relationship between the CTs interpretation and that of the IHRC, since the Constitution appoints the former as a direct interpreter of those human rights international instruments Peru is a party to. We believe that, rather than proposing a hierarchical relationship it is better to speak of a coordination and integration relationship, since both systems have the goal of protecting the dignity of human individuals and their rights and liberties.13

Under this thesis, the CT on the one hand sustains that “it is necessary to understand international Law as an integration Law on the basis of the international responsibility of States. Thus, in connection with said responsibility no automatic cancellation of internal standards is posited in the case of a conflict with international obligations, nor is non-compliance of the latter mandated at the domestic level, but rather to seek their harmonization and integration”.14

Concerning interpretation, it has pointed out that “there is no need to posit a formalized hierarchical relationship between human rights international courts and internal ones, but rather […] a relationship of cooperation for the

12 STC 02730-2006-AA/TC (FJ 13-14). 13 Landa, César. “Implementación de las decisiones del Sistema Interamericano de Derechos Humanos en el ordenamiento constitucional peruano”. In his book Constitución y fuentes del Derecho. Lima: Palestra Editores, 2006. p. 125. 14 STC 00679-2005-AA/TC (FJ 35). interpretation pro homine of fundamental rights”.15 On a practical level, the coordination or integration thesis of the CT’s decisions and those of the

IHRC is a two-way street, one of jurisprudential dialogue, as we have already mentioned, between domestic juridictional entities and international tribunals.

Republic of Peru And this has happened at the CT regarding the IHRC and vice versa. This Óscar Urviola Hani

Constitutional Court of the is the case, for example, of the sentence issued by the latter in the (Caso Pensionistas vs. Perú) Five Pensioners v. Peru Case.16 This is the expression of a lively interaction between the IHRC and domestic jurisdictional entities, making it “a fundamental ingredient in the process of translating international legal and institutional developments on human rights to domestic legal processes and institutions within individual countries”.17

The binding force of ICHR sentences

134 When the IHRC issued the sentence providing for the repair of damages in the Caso Loayza Tamayo vs. Perú (Loayza Tamayo v. Peru Case), one of the Chambers of the Supreme Court of Law issued, on June 14, 1999, a sentence in which it claimed for itself the power to “revise” the IHRC’s ruling. In the Caso Castillo Petruzzi y otros vs. Perú (Castillo Petruzzi and others v. Peru Case),18 the Court’s sentence was declared “unexecutable” by the Supreme Council of Military Justice something which, it has already been stated, has no precedents in the History of the Inter-American System for Human Rights.19 Only under a democracy and with the dictatorial Fujimori regime gone did the Peruvian State fully comply with the Court’s decision; an annulment of Legislative Resolution Nº 27152 was also declared, thereby allowing the Peruvian State to once again be under the competence of the IHRC.

Even though, as is evident, no comparison can be made with the formerly mentioned cases, characteristic of dictatorships, in the wake of the sentence issued by the IHCR, some months ago, in connection with the Caso del Penal Miguel Castro Castro vs. Perú (Miguel Castro Castro Prison v. Peru

15 STC 02730-2006-AA/TC (FJ 15). 16 February 28 2003 sentence, basis 103. 17 García-Sayán, Diego. “Una viva interacción: Corte Interamericana y tribunales internos”. In La Corte Interamericana de Derechos Humanos: Un Cuarto de Siglo: 1979- 2004. San José de Costa Rica: CIDH, 2005. pp. 325 y ss. 18 May 30 1999 sentence. 19 Faúndez Ledesma, Héctor. El Sistema Interamericano de Protección de los Derechos Humanos. Aspectos institucionales y procesales. San José de Costa Rica: Instituto Interamericano de Derechos Humanos, Third edition, 2004. p. 915. Case),20 the State of Peru has openly expressed its disagreement with the sentence, in exercise of the provisions of article 67 of the Convention, which states: “[...] in case there is disagreement on the sense or scope of a ruling, the Court shall interpret same at the request of any of the parties [...]”. We, therefore, consider it pertinent to ponder some considerations regarding the binding force of IHRC sentences.

As per the Peruvian legal order, the CT is the closing jurisdictional entity of Interpretation and sentences the internal system for the protection of the rights of individuals, as per the Human Rights: their binding force issued by the Inter-American Court of terms of article 202-2 of the State’s Constitution. But, as has already been said, the protection of said rights and liberties does not end with the terms of domestic order, since the Constitution itself ensures the possibility of resorting to international jurisdiction for the protection of human rights.

Thus, constitutional provision 205 contemplates that “once the domestic jurisdiction has been exhausted, whomsoever considers him/herself injured in terms of the rights acknowledged by the Constitution may resort to international tribunals or entities that have been constituted as per the 135 terms of treaties or agreements of which Peru is a party”. This makes article 205 of the Constitution a domestic closing clause of the domestic system for the protection of human rights but, at the same time, an international opening clause for the purpose of gaining access to the Inter-American system for the protection of human rights.

This constitutional provision, when considered as an opening clause, only acquires full sense if the Peruvian State, as a party to the Convention, complies with its international obligations for the purpose of guaranteeing the rights and liberties recognized therein or for the purpose of adopting the corresponding measures for guaranteeing said rights and liberties in an effective manner as provided for, respectively, by articles 1 and 2 of the Convention.

The international obligation for the State of Peru to comply with the sentences issued by the IHRC derives from the pacta sunt servanda and bona fide principles according to which “every treaty in force is binding for its parties and must be complied with in good faith”, as provided for in article 26 of the Vienna Convention on Treaty Law which, article 27 of which contemplates: “no party shall invoke the provisions of its domestic laws as a justification for non-compliance with the terms of a treaty”. This is supplemented by the provisions of article 68.1 of the Convention, which

20 See Diario El Comercio, January 23 2007, political section. contemplates that “the States that are parties to this Convention hereby commit to comply with decisions issued by the Court in connection with

any case they may be a party to”.

Accordingly, article 115 of the Constitutional Procedural Code has contemplated that “resolutions by jurisdictional entities to which the State

Republic of Peru of Peru has expressly submitted to do not require, to be valid and effective, Óscar Urviola Hani

Constitutional Court of the to be acknowledged, revised or previously examined in any manner whatsoever […].” This article, in contrast to what could be considered, does not imply a diminishment in the sovereignty of the Peruvian State, as it is in its full exercise that it assumes the international obligation of complying with the Convention’s terms and, therefore, with the IHRC’s sentences.

A State that is a party to the Convention cannot use its sovereignty as a justification for not complying with its obligation regarding the protection of human rights, as only an instrumental conception of said protection, in the service of human individuals and their dignity, can justify any form of 136 exercise of power. It has therefore been pointed out that sovereignty today is not to be construed as a State’s absolute power, since this power is based on the self-determination of human individuals as the central element of said individuals’ dignity and of their active role as citizens in a constitutional, democratic State and in the political community in which they act.21

It would be a contradiction if article 205 of the Constitution, while acknowledging an opening clause to the international system for the protection of human rights, at the same time would not guarantee compliance with the rulings of international courts the jurisdiction of which the State of Peru has acknowledged and submitted to. Once the international process reaches a conclusion, any State which has been found to be in breech, is obliged to carry out every action needed for the effective compliance of said process decision.22 From this perspective, compliance with the IHRCs sentences is a part of the contents concerning the fundamental right to have access to international justice, which derives from the Constitution’s articles 205 and 139-3.

21 Heller, Hermann. La soberanía. México D.F.: Fondo de Cultura Económica, 2a. edición, 1985. pp. 223 and ss.; Kotzur, Markus. “La soberanía hoy. Palabras clave para un diálogo europeo-latinoamericano sobre un atributo constitucional moderno”. In Peter Häberle and Markus Kotzur. De la soberanía al Derecho constitucional común: palabras clave para un diálogo europeo-latinoamericano latinoamericano. México D.F.: UNAM, 2003. pp. 111-112. 22 Salmón, Elizabeth. “Los aspectos internacionales del nuevo Código Procesal Constitucional: una necesaria y prometedora coincidencia”. In Cathedra, Espíritu del Derecho, Revista de los Estudiante de Derecho de la Universidad Nacional Mayor de San Marcos, Year XI, Nº 12, Lima, 2006. p. 111. Inasmuch as the above is true, non-compliance by the State of Peru of the sentences issued by the IHRC is truly an omission in compliance with its international obligations, given that the State is a party to the Convention. But it is equally true that said non-compliance would also be non- compliance of the Constitution, specifically of article 44, which imposes upon the State the obligation to “guarantee the full protection of human rights”. Said constitutional duty goes without compliance when the binding force of the IHRC’s sentences is conditioned or simply when it is openly Interpretation and sentences disavowed. Human Rights: their binding force issued by the Inter-American Court of

Even when article 65 of the Convention states that “the Court shall submit to the Organization’s General Assembly’s consideration a work report concerning the previous year at the beginning of each ordinary sessioning period. It will especially point out those cases in which a State has not complied with its rulings, together with any and all applicable recommendations”, this is not enough to guarantee compliance with the IHRC’s sentences.

137 Nonetheless, the lack of an enforcement mechanism in the Convention for ensuring compliance with the IHRC’s sentences does not mean said sentences are not binding for every State that is a party to the Convention. It may therefore be said that compliance with the sentences issued by the IHRC depends greatly on the degree of commitment a State which is a party to the Convention has in connection with respecting and guaranteeing human rights and with its own democratic system.

Conclusion

It is evident that the interpretation made by the IHRC is legally binding and that compliance with its sentences is mandatory. As the CT has pointed out, “obligations regarding the interpretation of constitutional rights do not extend only to the ruling content strictu sensu of the Convention, but to the interpretation of said Convention that the Court makes through its decisions”.23

But International Human Rights Law has few possibilities of compliance if the States that are parties to the international instruments for the protection of human rights in general and to the Convention specifically do not assume a solid commitment in connection with the protection of human rights.24

23 STC 02730-2006-AA/TC (FJ 8). 24 Landa, César. Tribunal Constitucional y Estado Democrático. Lima: Palestra editores, Third edition, 2007. p. 867. In the meantime, the jurisprudential integration between international courts and tribunals and the internal jurisdictional entities is a contributing

factor for strengthening the internal and supra-national system for the protection of human rights, as they have a common goal: the protection of human individuals, their dignity and the rights and liberties inherent to them. Republic of Peru Óscar Urviola Hani Constitutional Court of the

138 Human RightsProtection on domesticgrounds

Second chapter

The new Turkish Constitutional Court and Human Rights: towards a paradigm shift?

Zühtü Arslan

Judge Constitutional Court of the Republic of Turkey

In democratic countries, supreme or constitutional courts are conceived as “a bulwark of fundamental rights”.1 The main function of the courts, according to liberal theory, is to give effect to rights and protect them against unjustified interference by governments. This function stems from the “rights conception” of the rule of law according to which “judges do and should rest their judgments on arguments of political principle that appeal to the political rights of individual citizens”.2

This paper will take up the role of Turkish Constitutional Court (TCC) in protecting human rights. In the first part, the organisation and powers of the Turkish Constitutional Court will be briefly explored in a historical context. The second part of the paper deals with the issue of protection of human rights in Turkey with special reference to the judgments of the European Court of Human Rights. The statistical data concerning violations of the Convention by Turkey urged the authorities to take necessary measures to protect human rights better. The third and final part will analyse one of these measures, namely individual constitutional complaint mechanism, together with other constitutional means for the judicial protection of human rights.

1 Sir John Laws, “Is the High Court the Guardian of Fundamental Constitutional Rights?”, Public Law, (Spring 1993): 59-79, at 59. 2 Ronald Dworkin, A Matter of Principle, (Cambridge, MA: Harvard University Press, 1985), p. 11, and Ronald Dworkin, Taking Rights Seriously, (London: Duckworth, 1977), p. 87. 141 The main thesis of the paper is that the 2010 constitutional amendments concerning the composition and powers of the Turkish Constitutional

Court have provided an unprecedented opportunity for the Court to adopt a rights-based approach. In particular, the introduction of individual constitutional complaint procedure may lead to a paradigm shift in the jurisdiction of the TCC. Zühtü Arslan Republic of Turkey

Constitutional Court of the The Turkish Constitutional Court: Composition and powers

Composition

The idea of judicial review was originated in the United States, and eventually expanded to the rest of the world. Although Austria adopted the model of constitutional review by a centralised court after the First World War, the expansion of constitutional justice was realised in the continental Europe after the Second World War. The establishment of the constitutional 142 courts was a direct response to the gross violations of human rights during the War. Especially Germany and Italy have introduced constitutional courts as a reaction to abuses of their pre-war political regimes. The inclusion of rights provisions in post-war European constitutions has determined the principal role of constitutional judges. “The protection of human rights”, as Stone put it, “is a central purpose of modern European constitutionalism, and constitutional judges are the agents of that purpose”.3

The Turkish Constitutional Court, celebrating its 50th anniversary this year, may be counted as one of the most experienced constitutional courts. It was founded by the 1961 Constitution, which was drafted and accepted following the 1960 military intervention. The TCC’s creation was a direct response to a prevalent perception among the military elite that the Democrat Party, which formed a parliamentary majority between 1950 and 1960, had abused power in an effort to eliminate political opposition and (more importantly) to destroy the basic principles of the Republic of Turkey. In a nutshell, the Court was established as an effective instrument to protect the political regime against the potential threats of democratically elected powers.

The Court was originally composed of 15 regular and 5 substitute judges. The 1982 Constitution reduced the number of regular judges to 11 while keeping

3 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe, (Oxford: Oxford University Press, 2000), p. 29. 5 substitute judges. The 2010 constitutional amendments have modified, among others, the composition of the TCC by increasing the number of the judges to 17 and abolishing substitute membership.

The model of electing judges has also changed over time. Under the 1961 Constitution one third of the members of the Court were elected by the

Parliament (The Grand National Assembly of Turkey). The President of a paradigm shift? the Republic selected two members, while remaining members were elected Court and Human Rights: towards by the high courts themselves. The 1982 Constitution radically changed The new Turkish Constitutional the mixed system of the previous constitution by granting the President of the Republic the monopoly of power to elect all members of the Court. The President had the power to appoint three regular and one substitute judges directly from among the senior executives and lawyers. The President appointed eight regular and three substitute members from among the members of the high courts and academics nominated by the relevant high courts and the Council of Higher Education.

143 After the 2010 constitutional amendments, the Parliament is given the power to elect by secret ballot three out of seventeen members of the TCC from among the members of the Court of Auditors and lawyers nominated by the Bars (article 146). Other members of the Court are still appointed by the President of the Republic in direct and indirect ways. The President selects three members from the Court of Cassation, two members from the Council of State, one member from the High Military Court of Appeals, and one member from the High Military Administrative Court from among the three candidates nominated for each vacant position by their respective plenary assemblies. The President selects three members from among the three candidates nominated for each vacant position by the Council of Higher Education from among academicians in the fields of law, economics and political science. The remaining four members are directly appointed by the President from among senior executives, lawyers, senior judges and public prosecutors or rapporteurs of the Constitutional Court (article 146).

To be eligible for appointment as a member of the Constitutional Court the candidates must have certain qualifications. Academics are required to possess the title of associate professor or professor; lawyers shall be required to have practiced as a lawyer for at least twenty years; senior executives shall be required to have completed higher education and to have worked for at least twenty years in public service, and senior judges and public prosecutors with at least twenty years of work experience, provided that they are all over the age of forty five (article 146). Until 2010, the only restriction concerning the terms of constitutional judges was the retirement age of 65. Now, the members of the Constitutional Court

shall be elected for a term of single twelve years.4 The executive cannot dismiss members of the Constitutional Court, but they retire automatically after twelve years or upon reaching the age of 65 (article 147). The main purpose of limiting term of office is, as Özbudun put it, “to ensure that

Zühtü Arslan changes in public opinion are reflected on the composition of the Republic of Turkey

Constitutional Court of the constitutional courts, thus preventing the court from being detached from the society”.5

The Constitutional Court shall elect a president and two deputy presidents from among its members for a term of four years by secret ballot and by an absolute majority of component members. They may be re-elected at the end of their term of office (article 146).

Functions and powers

144 As the highest court in the country, the TCC’s rulings are final and legally binding on all branches of state power. The TCC assumes four main tasks and powers. First, it reviews the constitutionality of laws, decree laws and standing orders of the Parliament. Second, it rules on cases involving certain politicians and senior state officials for offences relating to their duties. Third, the TCC has the authority to dissolve political parties. Finally, the TCC was recently granted the power to receive individual petitions concerning human rights violations.

A brief explanation of these four powers of the TCC will help to better understand the real functions and role of this organ in Turkish legal and political life.

a) Constitutional review of laws: The primary function of the Constitutional Court is to interpret the Constitution and apply it to particular cases. The role of the TCC as the “negative law-maker” can be seen in abstract and concrete review of laws, decree laws and standing orders of the Parliament in respect of both form and substance. The President of the Republic, the

4 Provisional article 18 of the Constitution, which came into force following the referendum held on 12 September 2010, provided two important transitory provisions. First, it stipulated that the substitute members of the Constitutional Court would automatically become regular members. Second, it states that already serving members of the Court shall retire at the age of 65 without subjecting to the term of twelve years. 5 Ergun Özbudun, “Restructuring of the Constitutional Court”, Serap Yazıcı (ed.), A Judicial Conundrum: Opinions and Recommendations on Constitutional Reform in Turkey, (İstanbul: TESEV Publications, 2010), p. 14. The full text of this book can be downloaded at www.tesev.org.tr parliamentary groups of the party in power and of the main opposition party and one-fifth of the total members of the Parliament are eligible to lodge an annulment action alleging the unconstitutionality of laws (art. 150) Likewise, the courts may appeal to the TCC requesting the invalidation of any law applicable to the case before them (art. 152).

The TCC is also given the power to review and annul constitutional a paradigm shift? amendments in respect of form only6 Article 148 explicitly states that the Court and Human Rights: towards review of constitutional amendments is restricted to the question whether The new Turkish Constitutional the amendment complies with (a) the requisite majority for proposal (1/3 of the MPs), (b) the quorum for decision (3/5 or 2/3 of the MPs) and (c) the rule that the bill must be deliberated at least twice in the Parliament. Nonetheless, the TCC expanded its power of controlling constitutional amendments by interpreting in a very broad way article 4 of the Constitution, which prohibits any effort to change the provisions protected in the first three articles of the Constitution, including the principles of rule of law, human rights and secularism. 145

The TCC interpreted article 148 of the Constitution in the light of article 4, and produced the condition of so-called “proposability” or “valid proposal”.7 Despite explicit wording of article 148, the TCC has declared that “the review of constitutional amendments in terms of substance must be restricted to the consideration whether the amendments will destroy or undermine the unamendable principles of the Constitution”.8

It must be noted that the TCC may invalidate ordinary laws and decree laws by absolute majority, whereas a qualified two-thirds majority of members attending the meeting is required to annul constitutional amendments (article 149). b) Acting as Supreme Court: The Constitutional Court in its capacity as the Supreme Court has the power to try the President of the Republic, the Prime

6 On the review of constitutional amendments, see Kemal Gözler, Judicial Review of Constitutional Amendments: A Comparative Study, (Bursa: Ekin Press, 2008). The full text of this book may be downloaded at www.anayasa.gen.tr/jrca-1.htm 7 Under the 1982 Constitution, the TCC invalidated the constitutional amendments on two occasions. First, the Court annulled in 2008 amended provisions of article 10 and 42 of the Constitution aimed at removing “headscarf ban” at universities. Second, in 2010 the TCC has also invalidated certain provisions of the Constitution related to the election procedures of members of the Constitutional Court, and to the election procedures and certain qualifications of members of the Supreme Council of Judges and Prosecutors. See respectively, E. 2008/16, K.2008/116, K.T. 5.6.2008, and E.2010/49, K.2010/87, K.T. 7.7.2010. 8 Anayasa Mahkemesi Kararlar Dergisi (AMKD), (Decisions of Constitutional Court), 47/2 (2010), p. 1161. Minister, other ministers, presidents and members of the Constitutional Court and other high courts for offences relating to their functions. The

2010 constitutional amendments expanded this list to include the Speaker of the Parliament, the Chief of Staff, the Commanders of the Land Forces, Naval Forces and Air Forces and the General Commander of the Gendarmerie. These amendments also provided the right to appeal against the decisions

Zühtü Arslan of the Supreme Court. Decisions taken by the plenary assembly of the Court Republic of Turkey

Constitutional Court of the regarding this application shall be final (article 148).

c) Dissolving Political Parties: Ever since its establishment, the TCC has been regarded as the main actor of so-called militant democracy, the idea that stands for the protection of democracy against its enemies. The TCC has generously used the power to dissolve political parties.

The 1982 Constitution provides three main reasons for the dissolution of political parties. A political party shall be dissolved, if (a) its statute and programme contravene the provisions of the fourth paragraph of article 68

146 which protects most notably the indivisible integrity of the state, the principles of the democratic and secular Republic; (b) the TCC rules that party in question has become a centre of activities contrary to abovementioned constitutional principles; and (c) it accepts financial aid from foreign states, international institutions and foreign persons and corporate bodies (article 69).9

The 2010 constitutional amendments have introduced two important changes in favour of political parties. First, the quorum for dissolution of political parties was increased from three-fifths to two-thirds majority with a view of making the dissolution more difficult (article 149). Second, the last paragraph of article 84 of the Constitution was abolished to remove one of the most severe sanctions imposed on the party members as a result of dissolution. According to the abolished provision, the dissolution of a political party resulted in, among others, the loss of MP status of those whose words and deeds were considered to cause the dissolution of the party concerned.

d) Constitutional complaint: Since 2012, the TCC has also power to receive individual complaints alleging a violation of certain rights and liberties protected by the Constitution. According to article 148 of the Constitution,

9 Zühtü Arslan, “Conflicting Paradigms: Political Rights in the Turkish Constitutional Court”, Critique, 11/1, (Spring 2002): 9-25. On the TCC’s approach to political parties in comparison with the judgments of the European Court of Human Rights, see also Ergun Özbudun, “Party Prohibition Cases: Different Approaches by the Turkish Constitutional Court and the European Court of Human Rights”, Democratization, 17/1 (2010): 125-142. “everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are at the same time guaranteed by the Constitution has been violated by public authorities.”

The practical purpose of adopting constitutional complaint was to decrease the number of files lodged against Turkey before the European Court of a paradigm shift? Human Rights. A cursory analysis of the statistical data about pending Court and Human Rights: towards applications and violation judgments against Turkey will reveal the relevance The new Turkish Constitutional of this practical purpose.

Turkey’s Human Rights record before the Strasbourg Court

Turkey, as one of the founding members of the European Council, participated in the drafting process of the European Convention on Human Rights and ratified it in as early as 1954. However, Turkey recognised the rightto 147 individual petition in 1987 and the competence of the Court in 1990.

Despite relatively short history of recognising compulsory jurisdiction of the Strasbourg Court, Turkey is the second on the list with 12,1 % (16850) of all pending applications (See Chart 1).10

Chart 1: Pending Applications (30/09/2012)

10 The statistical data was retrieved from the official web site of the European Court of Human Rights on … . (www.echr.coe.int). As Chart 2 reveals, Turkey’s record concerning the violation judgments delivered by the Strasbourg Court is far from being better. In the period

between 1959-2011, the European Court has delivered more than 15,000 judgments, almost half of which concerned four contracting states, namely, Turkey (2,747), Italy (2,166), Russia (1,212), and Poland (945). Zühtü Arslan

Republic of Turkey Chart 2: Violation judgments by State (1959-2011) Constitutional Court of the

148

The Court declared inadmissible or struck out 88 per cent applications concerning Turkey. However 87 per cent of the Court’s judgments ended up in violation, while 8 per cent of admissible applications resulted in friendly settlements. The Court found no violation in only 2 per cent of the admissible applications. The Court has found 83 per cent violation and 6 per cent no violation in admissible applications against all 47 states (See Chart 3).

Chart 3: Type of judgments (1959-2010) The subject of violations by Turkey is similar to those of other contracting states. As Chart 4 indicates, in the period 1959-2011, among the most violated rights by Turkey are right to fair trial (33 %), right to property (16 %), and right to liberty and security (15 %).

Chart 4: Subject matter of violation judgments - Turkey (1959-2011) a paradigm shift?

Number of Court and Human Rights: towards

Rights and Freedoms The new Turkish Constitutional violations Right to life- deprivation of life (art. 2) 92 Lack of effective investigation (art. 2) 138 Prohibition of torture (art. 3) 29 Inhuman or degrading treatment (art. 3) 243 Lack of effective investigation (art. 3) 135 Right to liberty and security (art. 5) 554 Right to a fair trial (art. 6) 729 149 Length of proceedings (art. 6) 493 Non enforcement (art. 6) 37 Right to respect for private and family life (art. 8) 83 Freedom of expression (art. 10) 207

Freedom of assembly and association (Art. 11) 53 Right to an effective remedy (art. 13) 237 Protection of property (P1-1) 611 Other articles of the Convention 51

TOTAL (Judgments finding at least one violation) 2404

The great number of violations point to the fact that Turkey suffers from a persisting human rights problem. Despite efforts to change the legislation and practice following the judgments of the European Court of Human Rights, there remain serious obstacles. One should keep in mind that Turkey is still in a transitory process of consolidating its fragile democracy and the rule of law. In this transitory period, Turkey faces some structural and individual problems leading to violation judgments by the Strasbourg Court. It should be also kept in mind that Turkey has been fiercely combating terrorism for more than thirty years. Such peculiarities may explain the background of violation judgments, but they cannot be used as excuses to justify violations. This is however only one side of the coin. We must also look at the other, brighter side of the violation judgments. Indeed, ever since its recognition

of judicial competence, the European Court of Human Rights has significantly contributed to the protection and promotion of human rights in Turkey. The violation judgments of the Court urged Turkey to amend its legal rules including the Constitution, and to adjust the practice of state agents to comply Zühtü Arslan

Republic of Turkey with the requirements of human rights. To give a few examples, reducing Constitutional Court of the detention periods, abolishing death penalty, restricting the jurisdiction of military judiciary, abolishing the State Security Courts, lifting some bans on political parties, and more recently introducing constitutional complaint have been direct results of the case-law of the Strasbourg Court.

The new Constitutional Court of Turkey and constitutional complaint

The introduction of constitutional complaint mechanism represents a

150 radical change not only in the powers and functions of the TCC, but also in Turkey’s relations with the European Court of Human Rights.11 This mechanism creates a further and ultimate domestic remedy to be exhausted for those who desire to file a case against Turkey before the Strasbourg Court. It is therefore conceived as a kind of “filter” system at domestic level for alleged violations of human rights.

It is significant that for the first time in Turkey’s constitutional history, the Constitution has explicitly referred to the European Convention on Human Rights as a yardstick to determine the scope of individual complaints. In line with article 148 of the Constitution, the Law on Constitutional Court (Law no: 6216), adopted on 30 March 2011, declares that “everybody may apply to the Constitutional Court with an allegation that any of his or her constitutional basic rights and freedoms, within the scope of the European Convention of Human Rights and its Protocols to which Turkey is a party, has been violated by a public authority” (article 45/1). All administrative and judicial remedies provided by the law must be exhausted before launching a complaint (article 45/2).

The Law on Constitutional Court provides a number of restrictions as to the subject matter of constitutional complaint and the persons who are entitled to it. The followings are not subject to constitutional complaint (art. 45/3):

11 The TCC started to receive individual complaints as of 23 September 2012. a) Legislative proceedings such as laws, parliamentary decisions and

standing orders. b) Regulatory administrative proceedings like by-laws and other regulations. c) Acts and activities excluded from judicial review by the Constitution, such as some decisions of the Supreme Military Council, and of the

Supreme Council of Judges and Prosecutors. a paradigm shift? d) Decisions of the Constitutional Court itself. Court and Human Rights: towards The new Turkish Constitutional Only those alleging that their actual and personal rights have been violated, and that they are direct victims of a violation, have right to individual petition. Private law legal persons are also entitled to individual petition, while public legal persons are excluded. Foreigners may not lodge constitutional complaints concerning rights granted exclusively to Turkish citizens (article 46).

The question is very simple and straightforward: Will the constitutional 151 complaint turn the Turkish Constitutional Court into a national human rights court? The answer depends on the successful implementation of constitutional complaint procedure, which itself requires a number of pre-conditions. Following observations may be made at this very early stage:

1. The TCC is bound to establish an effective filtering system, simply because it may run the risk of being overloaded by the flux of frivolous complaints. The massive applications may have the potential to paralyse any legal organ set up for the protection of human rights. To avoid such a consequence, the Law on Constitutional Court has taken two measures:

▪ First of all, committees consisting of two members of the Court were set up to examine the admissibility of the individual applications. As a matter of fact, the TCC was reorganised after the 2010 constitutional amendments to cope with the complaints. The Court currently consists of two chambers and a plenary assembly. The chambers convene under the chairmanship of the deputy presidents with the participation of four members. The chambers and committees will be responsible for dealing with the admissibility and merits of constitutional complaints. The only role of the plenary of the Court in this regard is to resolve possible conflicts that may arise among the decisions of the chambers. ▪ Secondly, strict admissibility criteria were introduced, as a means of filtering the applications. The Court may declare a complaint inadmissible on the ground that it has no “constitutional significance” (article 48/2). 2. Since the subjects of the constitutional complaint are the rights and freedoms guaranteed at the same time by the European Convention on

Human Rights, the TCC must interpret them in line with the Strasbourg Court. This requires a great deal of knowledge on the case-law of the European Court of Human Rights. Zühtü Arslan

Republic of Turkey The Venice Commission has warned the TCC on this point as follows: Constitutional Court of the

The Constitutional Court will be called upon to interpret the ECHR. In doing so, it will have to avoid as much as possible that its interpretation diverge from that given by the Strasbourg Court. The risk of divergence will be even greater in cases where the Constitutional Court will also interpret the rights and freedoms laid down in the Constitution. The two interpretations of a similar right (the one based on the constitution, and the other based on the ECHR) might diverge, and lead to different conclusions.12

3. The success of the constitutional complaint depends also on the 152 effective functioning of the national legal system as a whole. It requires a well-functioning, effective, and just legal system rooted in a firm legal and political culture that gives priority to rights and freedoms. It is hard to say that the Turkish judiciary has played a positive role in enhancing the standards of democracy and human rights. On the contrary, it has usually acted as a missionary dedicated to the cause of protecting the state and its official discourse rather than the individual and his/her rights and liberties.13

The courts, including the TCC, must adopt a rights-based approach in their respective jurisdictions. Indeed, the Constitution itself provides necessary instruments for the courts in this regard. Under article 90 of the Constitution, “international treaties duly put into effect carry the force of law. No appeal to the Constitutional Court can be made with regard to these agreements, on the ground that they are unconstitutional.” In 2004 a provision was added to article 90 underlining the primacy and priority of international human rights agreements vis- à-vis national laws. Accordingly, in case of conflict between international human rights treaties and national laws the former prevails.

12 European Commission for Democracy Through Law (Venice Commission), “Opinion on the Law on the Establishment and Rules of Procedure of the Constitutional Court of Turkey”, CDL-AD(2011)040, Strasbourg, 18 October 2011. 13 See Zühtü Arslan, “Reluctantly Sailing Towards Political Liberalism: The Political Role of the Judiciary in Turkey”, Terence C. Halliday, Lucien Karpik and Malcolm M. Feeley (eds.), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, (Oxford: Hart Publishing, 2007), 219-245. Generally speaking, the TCC itself has been referring to international human rights documents, particularly to the European Convention on Human Rights and its interpretations by the Convention organs not as a “primary norm”, but a “supplementary norm” to justify the decisions already reached in the light of the Constitution. In dissolving the Socialist Party, for instance, the Court held that “there is no doubt that the activities of the Socialist Party which are found in breach of the Constitution will also a paradigm shift? be in violation of this Convention (on Human Rights).”14 Although the TCC

has increasingly used the case-law of the Strasbourg Court in its decisions, Court and Human Rights: towards The new Turkish Constitutional the Convention has not been incorporated into the block of constitutional norms.

Conclusion

The adjective “new” in the title of this paper refers to the restructured Constitutional Court of Turkey after the 2010 constitutional amendments. Indeed, the composition and powers of the Court were revisited and changed to the extent that it is justified to speak of a “new” or in any case 153 renewed constitutional court.

Perhaps the greatest challenge that the Constitutional Court of Turkey has faced ever is to become the real guardian of human rights. The adoption of constitutional complaint presents an unprecedented opportunity for the Court to protect rights and liberties, even though this mechanism is not a magical stick to remove all sorts of shortcomings in this area.

Finally, it is yet to be seen if the constitutional complaint will be successfully implemented. But it is by no means premature to predict that the success of the Turkish Constitutional Court in protecting human rights will help not only to restore and consolidate its (long weakened) democratic legitimacy, but also to bolster Turkey’s international reputation by decreasing the number of violation judgments before the European Court of Human Rights.

14 E. 1991/2, K.1992/1, K.T. 10.7.1992, AMKD, 28/2. p. 809.

Effective judicial remedy and enlarging transparency: legitimacy consequences for Constitutional Court of Georgia

George Papuashvili

President of the Constitutional Court of Georgia

Introduction

On behalf of the Constitutional Court of Georgia I am pleased to submit the present paper addressing the Institutional features of the Georgian Constitutional Court, access to justice and transparency issues. The conclusion reflects the legitimacy consequences of the standards and the practice established by the Constitutional Court of Georgia with regard to the effective judicial remedy and enlarging transparency.

Institutional features of the Constitutional Court of Georgia

Georgia is located in the Caucasus region on the borders of Europe and Asia with a population of about 4.4 million. On April 9, 1991, shortly before the collapse of the Soviet Union, Georgia declared its independence. The Constitution of Georgia was adopted in 1995, however in 2003 Georgia was faced with economic problems and political failure to carry out reforms. After November 23, 2003, Georgia entered history with the name “Rose Revolution,” which resulted in important and rapid reforms initiated by the new Government of Georgia. The reform process is still ongoing, and will require further implementation to achieve stated objectives.

Recently we have celebrated three important legal and political events in Georgia’s history: The first being, the 90th anniversary of the Constitution of 1921, the second, 20 years from Restoration of the State Independence of Georgia and the third, the 15thanniversary of Constitutional Court of Georgia. 155 The Constitution of 1995 of Georgia introduced a special institution in charge of judicial review. From the very beginning diffuse model of judicial review was actively discussed in the Working Group on Judiciary of the State Constitutional Commission. Even in the draft version of constitution the Supreme Court of Georgia was authorized to exercise constitutional control. However, Georgia chose and preferred centralized, i.e. European model of judicial review. The rationale for this choice is that ordinary courts

George Papuashvili were perceived unfocused and unfit for the task of judicial —constitutional Constitutional Court of Georgia review since ordinary courts hear lots of appeals each year, most of which contribute little to the clarification or evolution of legal principles. Another argument in favor of choosing European model relates to the role of ordinary court judges under Communist rule. During the Communist period, the judiciaries were perceived as incompetent and corrupt, equating judges and the judicial system with the state and the Communist Party (Schwartz, 2000: 22). Therefore, reform of such judicial system needed reformers to invest considerable effort and time. Thus, it was assumed that the Constitutional Court would be composed of highly qualified legal scholars/

156 lawyers and it would be a more authoritative and legitimate body in charge of judicial —constitutional review. Bearing in mind the absence of the valuable and reliable legal traditions and taking into the consideration that Georgia had to make necessary steps in the transformation and reform process, the establishment of the Constitutional Court of Georgia was essential. Like in most European countries, the Constitutional Court of Georgia is created on the basis of the Constitution of Georgia. The Constitutional Court and ordinary judiciary are separated in Georgian constitutional legal order by their functions and jurisdictional structure. Hence, the Constitutional Court of Georgia is the independent judicial body exercising constitutional review from 1996, after one year of adoption of the Constitution.

The official seat of the Court was the Capital of Georgia —Tbilisi. However, in 2006 the seat of the Court was shifted to Batumi— the administrative center of Autonomous Republic of Adjara located in the western part of Georgia, on the shores of the Black sea. Shifting of the seat of the Constitutional Court of Georgia from Tbilisi to Batumi was a significant feature of the decentralization policy, which positively influenced the institutional strength and independence of the Court. The Constitutional Court was detached from the politically active center and the risks that the Court would be used for political populism were reduced. At the same time, transferring the seat of the Court was symbolic as well, since the first Constitution of Georgia of 1921 was published in Batumi.

The Constitutional Court of Georgia consists of nine judges. The appointment procedure of constitutional justices reflects the fundamental principle of separation of powers since the President, the Parliament and the Supreme Court of Georgia, i.e. each branch of the government, appoints three members to the Court. Hence, the Constitutional Court of Georgia, in principle, enjoys more democratic legitimacy, because it is much more representative and, on the other hand, such a system of appointment reduces counter – majoritarian objection to judicial-constitutional review.

The Constitutional Court of Georgia consists of the Plenum (Grand Chamber) Effective judicial remedy and two chambers (Collegiums). Each Chamber (Collegium) includes four and enlarging transparency: legitimacy members of the Court, while the composition of Grand Chamber includes consequences for Constitutional Court ... all nine members of the Constitutional Court. Sitting in Grand Chamber (Plenum) is presided over by the President of the Constitutional Court. The Grand Chamber examines issues which have paramount political and legal importance, for instance, violation of the Constitution of Georgia by the high political bodies, or the issue of overruling its old case-law.

The next section will refer to the issue of access to the Constitutional Court of Georgia and addresses the established practice and the case law of the 157 Court in that context.

Access to justice

The Constitutional Court of Georgia serves as a judicial body of constitutional review which decides on the constitutionality of normative acts and, in doing so, acts as a guardian of constitutional legal order. Despite the fact that the Constitutional Court of Georgia is a separate judicial organ exercising constitutional-judicial review, like its counterpart from the US, it declares that “legislature repugnant to the constitution is void” (Marbury v. Madison, 5 U.S. 137(1803)).

The right of access to the court is at the very essence of the rule of law principle upon which a democratic society is built. The overwhelming importance within the Georgian constitutional order, in the context of access to justice, is attached to article 42 (1) of the Constitution. According to this provision, everyone has the right to apply to a court in order to protect his/her rights and freedoms. It can be mentioned, for statistical reasons that between1996 and 2011, 20,6 percent of constitutional complaints concerned the right protected by that article (See statistical data provided for on the official website of the Constitutional Court of Georgia, at: www. constcourt.ge consulted 1/11/2012).

It has to be stated that the proceedings before the Constitutional Court of Georgia can be initiated by numerous applicants exercising their right under the respective legal procedure governing the issue of eligibility to approach the Court. The Constitutional Court of Georgia upon the constitutional complaint or submission lodged with the Court by the President of Georgia, the Parliament of Georgia, the Georgian government, the highest representative organs of autonomous republics, checks the constitutionality of normative acts of state bodies, the constitutional agreement (Agreement between Georgia and Apostle Autocephalous Orthodox Church of Georgia),

George Papuashvili ordinary legislation and international agreements. The above mentioned Constitutional Court of Georgia procedure is referred to as an abstract norm control which is a characteristic feature of the European model of constitutional-judicial review.

The overwhelming importance is also attached, in the context of access to justice, to the right of natural persons and legal entitiesto apply to the Constitutional Court of Georgia in order to protect their fundamental rights and freedoms entailed in the second chapter of the constitution of Georgia. According to article 45 of the Constitution and the practices of the Constitutional Court of Georgia, the basic rights and freedoms enshrined

158 in the fundamental law, with due regard to their content, shall apply to legal entities. The term “legal entities” in Georgia’s legal system inter alia encompasses the Political Parties, Private Companies, Non Governmental Organisations, Religious Organisations and etc. It has to be stressed that, in such cases, the Court becomes active on the basis of constitutional complaints submitted by individuals and legal persons.

Until 2002, Georgian citizens and legal entities could submit constitutional complaints only in one particular case, namely, if they believed that their rights and freedoms had been infringed. With the introduction of legislative amendments to the Law on Constitutional Court of Georgia in 2002, legal basis for the submission of constitutional complaints has been widened. Thus, citizens and legal persons are granted the right to apply to the Constitutional Court if their rights and freedoms might be directly infringed upon in the future. The Court had to deal with this question in 2007 since the applicant, in the constitutional complaint, argued about the eventual violation of her right to privacy by the Law of Georgia on Operative- Investigative Activity providing for the possibility of intercepting communication without an order of the judge. The Court held that despite the lack of possibility to prove a direct infringement of applicant’s right to privacy, the violation of her rights by the contested norm was realistic and might occur in the future. Therefore, the Court accepted the constitutional complaint for consideration.

In order to illustrate the significance of the constitutional complaint as an effective judicial remedy, a reference can be made to article 310 (d) of the Criminal Procedure Code of Georgia. This norm stipulates that a respective verdict of an ordinary court shall be reviewed if, on the basis of the decision passed by the Constitutional Court, the norm of the criminal code applied in the case, has been found unconstitutional. In contrast to criminal procedure, the decision of the Constitutional Court does not affect the revision of the rulings of ordinary courts on civil matters. However, in civil proceedings (in criminal procedure as well) individuals have the right to raise initiative requesting the ordinary court to lodge a constitutional submission with the Effective judicial remedy Constitutional Court if he or she deems that the law applicable to a particular and enlarging transparency: legitimacy civil dispute is unconstitutional. If the court of general jurisdiction concludes, consequences for Constitutional Court ... that there is a sufficient ground to deem the law fully or partially incompatible with the Constitution, the court shall suspend the consideration of the case and apply to the Constitutional Court (Organic Law on the Constitutional Court of Georgia, article 19 paragraph. 2). The latter competence of the Constitutional Court is generally referred to as a concrete review and is described as an effective judicial remedy.

At the same time, the role of the Georgian Public Defender (Ombudsman of 159 Georgia) has to be emphasized, the latter enjoying the right of applying to the Constitutional Court in order to ensure full respect for those rights and freedoms guaranteed in the second chapter of the constitution. It has to be stressed that, from the very beginning, Georgia refused to introduce actio popularis tool. The rationale behind this was to avoid overload to the Court. Framers of the constitution feared the Court would turn into a policy-maker and leave the realm assigned to a judicial body. Hence, the consensus was reached that the Ombudsman of Georgia would be a person with the right to approach the Court by means of actio popularis complaint in order to ensure the protection of constitutional rights and freedoms.

It should be mentioned that a majority of constitutional cases (approximately 90 percent) concerns the constitutional complaints for protection of constitutional rights and freedoms. As for the statistical reasons, from 1996 to 2001, 85 percent of constitutional complaints were submitted by individuals and legal entities. Since 2002, 40 percent of applicants represent human rights groups, political parties, NGOs or Public Defender (Ombudsman of Georgia).

Furthermore, on the basis of the constitutional law passed in 2010 a new chapter was added to the constitution of Georgia, thus expanding the circle of complainants eligible for applying to the Constitutional Court. The chapter in question concerns local self-government. As a consequence of this legal novelty, a representative body of local self-government is entitled to lodge an application with the Constitutional Court challenging the constitutionality of a normative act within the scope of the chapter containing the novelty mentioned above. At the same time, in accordance with respective amendments of legislation, the High Council of Justice of Georgia (an independent state organ, created to co-ordinate the judiciary system) is empowered to apply to the Constitutional Court in order to check the normative acts alleged to violate constitutional principle of judicial independence and impartiality. George Papuashvili

Constitutional Court of Georgia For the time being, the Constitutional Court of Georgia cannot review constitutionality of ordinary courts’ decisions, i.e. the Constitutional Court is not authorized to exercise the so called “real control.” Acquiring competence of real control is advocated by some interest groups basically for two reasons —the first, review of constitutionality of ordinary courts’ decisions will establish consistent and unified practice of interpretation of constitutional norms and laws in question, and the second, real control constitutes efficient and immediate tool for the protection of constitutional rights and freedoms. Debates about this competence have been continued in Georgia

160 since 1995. The last serious discussion on this issue took place in 2009 when constitutional amendments were being drafted. Despite the fact that the working group considered this issue, it was not reflected in constitutional amendments of 2010. However, this issue is still being discussed among legal scholars and political groups.

The issue of access to justice is closely connected with the competences of the Constitutional Court. The significance of the effective judicial remedy was emphasized by the Court in the Case of Giorgi Kipiani and Avtandil Ungiadze v. The Parliament of Georgia (November 10, 2009). The Court stressed that the “Right of access to the court… is instrumental for protection of other rights and interests on one hand, and constitutes the crucial part of the checks and balances architecture between the branches of Government, on the other. Access to the court of individuals is the means of initiating the exercise of judicial power and thus, from this perspective its constitutional value is closely tied to effective functioning of judiciary in general.”

However, until 2010, foreigners and stateless persons not residing in Georgia were excluded from the right to apply to the Constitutional Court. But, in 2010, the Constitutional Court of Georgia upon the submission of constitutional complaint of the Ombudsman of Georgia changed the legal situation. The Ombudsman asked the Court to recognize the norm of “Organic law on the Constitutional Court of Georgia” as unconstitutional. This norm excluded stateless persons and foreigners (foreign legal entities as well) not residing in Georgia from the list of potential petitioners. The case was particularly complicated by the fact that the Respondent —representative of Parliament of Georgia, was referring to the article 89 of the Constitution, arguing that this norm of the Constitution, which sets forth competences of the Constitutional Court, did not grant the right to apply to the Constitutional Court to foreigners and stateless persons. However, the Constitutional Court declared that “everyone, despite citizenship, has the right to access to the Constitutional Court. The Constitution expresses the will of the citizens that individuals shall have the remedy to protect their rights and this aim may not be achieved through the approach of differentiating between citizens Effective judicial remedy and foreigners since they are equally entitled to the fundamental human and enlarging transparency: legitimacy rights recognized by the Constitution.” (Decision of the Constitutional consequences for Constitutional Court ... Court of Georgia, N 466, 28.06.2010). Moreover, the Constitutional Court of Georgia held that the norm describing competences of the court, i.e. article 89 of the Constitution, could not and should not diminish the right to apply to the Court. The Court considered that the purpose of every constitutional provision is to protect and not to harm constitutional rights. Accordingly, the norm of the law which omitted non-resident foreigners and stateless persons in the list of potential petitioners was found unconstitutional.

161 Consequently, the door of the court is now open to many more litigants inter alia to foreigners and stateless persons. It should be mentioned that the number of foreign applicants has grown. For instance, in 2011 a citizen of Denmark submitted the constitutional complaint to the Court stating that the certain norms of the Law on the Ownership of Agricultural Land were unconstitutional. In particular, claimant challenged the norm stipulating that a “foreigner can become the owner of agricultural land only if the land was inherited or lawfully had been owned by a person who had been a citizen of Georgia before.” At the same time, according to the contested norm, a foreigner was obligated to sell the land to a citizen of Georgia or/and Georgian legal entity within the period of 6 months after obtaining ownership of the land. The Court checked the constitutionality of the disputed norms in terms of Right to Property guaranteed by the constitution of Georgia and held that “one of the characteristics of the human rights is their universal nature. Having human rights is not contingent on citizenship and equally applies to every person. Recognition of an individual as subject of the right to property is emanated by the simple fact that s/he is a human being; It is not dependent on his citizenship” (Decision of the Grand Chamber of the Constitutional Court of Georgia, N 512, 26.06.2012). Therefore, prohibition on the purchase of agricultural land by foreigners was declared as a restriction of their right to acquisition of property enshrined in the article 21 of the Constitution of Georgia. At the same time, it was recognized by the Court that the named prohibition did not achieve the important public interests and did not provide for the reasonable balance between private and public interests. Therefore, disputed norms were found violating the right to property and were declared unconstitutional (Decision of the Grand Chamber of the Constitutional Court of Georgia, N 512, 26.06.2012). The issue of acquiring agricultural land by foreigners was the subject of tense debates among scholars in Georgia. Thus, the Court received several Amicus Currie on this issue which later, in a certain degree, was reflected in the judgment as well.

George Papuashvili Accordingly, as it becomes apparent, the recognition of foreigners’ rights to Constitutional Court of Georgia have access to the Constitutional Court significantly contributed to the development of foreigners’ and stateless persons’ rights in the constitutional legal order of Georgia.

The access to Justice, in this particular case to the Constitutional Court, has also been facilitated in the context of technical requirements established for the submission of constitutional complaints. For instance, according to article 16 (1) of the Law of Georgia on the Constitutional Legal Proceedings, a respective constitutional complaint has to be drawn up in accordance with

162 the application form adopted on April 18, 2011, on the basis of the resolution #81/3 of the Plenum (Grand Chamber) of the Constitutional Court. Those practical guidelines entailed in the application form assist the citizens in submitting their constitutional complaints without external help. Thus, they ease the task of submitting the complaint which will meet the admissibility criteria. In doing so, by the end of the day, those guidelines simplified access to justice.

Judicial transparency

Judicial intervention quite often influences the relationship between the state and citizens, as well as the relationships between the various social actors. Current political science research illustrate that the decisions of the Constitutional Courts exert political effects, by means of recognition of new rights, controlling state powers, or by means of affecting state policy-making. (Elke Luise Barnstedt, 2007: 39) In this context, enlarging the transparency by judiciaries could have “a positive effect on their institutional capacity, increasing their legitimacy, their authority vis-à-vis other political players, and their relationships with citizens.” (Álvaro Herrero, 2010: 3) Transparency reforms are also relevant since they can contribute to the improved operation of the Judicial Branch and hence foster inclusive governance.

It should be said in all fairness that there is no dividing line between citizens (individuals) and Constitutional Court of Georgia. The Court by means of management of internal administration and by means of legislative amendments as well, continuously tries to increase its transparency. In this context, I would like to stress on the two important issues, the first, access to the information on the Court and the second, the Court’s efforts to foster inclusive governance.

The Constitution and the General Administrative Code of Georgia guarantee freedom of information, meaning that everyone may claim public information irrespective of its physical form or the condition of storage (art. 41 of the Constitution of Georgia and Third Chapter —Freedom of Information— of Effective judicial remedy the General Administrative Code of Georgia). Therefore, the Constitutional and enlarging transparency: legitimacy Court of Georgia has designated a public servant responsible for ensuring consequences for Constitutional Court ... the accessibility of public information. The Constitutional Court of Georgia provides both public information related to the internal operation and administrative aspects of the court and information related to jurisdictional functions of the Court as well. It should be mentioned that the Court actively co-operates with international and local NGOs in this regard, for instance with Transparency International –Georgia which recently requested a bulk of information from the Court.

163 Almost all disputes in the Court are considered at oral hearings. Holding oral hearings is advantageous for several reasons: the first, parties of the dispute have the impression thatan oral hearing is the best option to present their arguments, and the second, the Court itself, has the opportunity to exhaust all the questions related to the dispute, which at the end will be reflected in the judgment and increase the cogency and legitimacy of the decision. At the same time, oral hearings are public —everyone has the right to attend the hearing at the court (art. 27 paragraph. 1 of Organic Law on the Constitutional Court of Georgia, art. 2 paragraph 1 of the Law of Georgia on the Constitutional Legal Proceeding). However, there is one exception, “upon the petition of the parties a sitting of the Constitutional Court or a part thereof may be closed to the public for the protection of personal, professional, commercial or state secret.” (art. 27 paragraph 2 of Organic Law on the Constitutional Court of Georgia). The Press Secretary of the Court closely co-operates with media and facilitates access to and transparency of the Court. Information about hearings and announcement of decisions and rulings is available at the official website of the Court but, in addition, the Press Secretary contacts all local media agencies in order to ensure that activities of the Court are covered. The reasoning of this policy of the Court is to significantly increase public awareness about the Court.

Furthermore, on the initiative of the Constitutional Court of Georgia which was supported by the Parliament of Georgia, by means of legislative amendment Amicus Curiae institute was successfully introduced by the legislature. Hence, the Constitutional Court of Georgia was the pioneer among Post Soviet Countries providing Amicus Curie Institute. This institute guarantees the active engagement of civil society in constitutional adjudication which increases respect, cogency and legitimacy of court’s decisions. Since 2009 NGOs, University professors and various interest groups have submitted Amicus Currie to the court and the Constitutional Court has always carefully studied these submissions, which later on, in certain cases, has been reflected in judgments as well. George Papuashvili

Constitutional Court of Georgia The Constitutional Court of Georgia remains proactive also in the field of science, i.e. with regard to the developments within the realm of constitutional law. In this sense, the Court already hosted various important conferences and enabled, in this way, heated discussions on the problematic issues of constitutional law and the role of constitutional courts among distinguished scholars in the field. Thus, the Court is open to this kind of “academic activity” and facilitates the interchange of ideas and perceptions regarding the significant constitutional issues. In sum, the Constitutional Court of Georgia has organized more than two dozen international and

164 regional events, conferences, seminars and trainings with the aim to promote constitutional justice and human rights, values of democracy and individual freedoms. One of the most recent conferences was organized by the Constitutional Court in cooperation with the German Development Cooperation (GIZ) in July 2012. This was the Black Sea Regional Conference on the “Right to Equality-Scope of Constitutional Protection”.

The Constitutional Court of Georgia is involved in the editing and publishing of the quarterly law journal, “Constitutional Law Review.” Several issues of the Constitution of Georgia, inter alia in foreign languages, have been printed. The legislation on the Constitutional Court, the trilingual collections of judgments of the Constitutional Court have been issued. It follows that the decisions of the Constitutional Court are available in Georgian, English and Russian languages not only in printed form, but their electronic version can also be accessed on the official website of the Constitutional Court of Georgia. At the same time, the judgments of the Constitutional Court can be retrieved by accessing different electronic databases. Bearing in mind these considerations, it has to be stated that the degree of accessibility of the Court’s decisions serves as another indicator denoting the overwhelming importance attached to the issue of transparency in this institution.

The Constitutional Court of Georgia also hosts various official delegations, those wishing to get familiar with the process of constitutional-judicial review in Georgia and with the characteristic features of the Georgian Constitutional Court. Thus, a meaningful dialogue is conducted among respective participants on both sides during such meetings. For instance, the Court recently hosted the delegation within the framework of festivities dedicated to the German Days in Batumi. This visit led to interesting exchange of information and experience between the Georgian side represented by the President of the Constitutional Court and the German delegation headed by the Ambassador Extraordinary and Plenipotentiary of the Federal Republic. These kind of events, together with other informative visits of various interested groups to the Court, demonstrate, once again, the openness of

this judicial body and promote its transparency. Effective judicial remedy and enlarging transparency: legitimacy consequences for Constitutional Court ... The Constitutional Court of Georgia has actively co-operated with similar bodies throughout the last two decades. At the same time, the Constitutional Court of Georgia is a full member of the Conference of European Constitutional Courts. Moreover, according to the decision made in September 2012 within the framework of the XVI Congress of the Conference of European Constitutional Courts, from 2014 to 2017 the Congress will be chaired by the Constitutional Court of Georgia. Hence, all high-level events within the framework of the Congress will be hosted by Batumi, the seat of 165 the Georgian Constitutional Court.

One of the most important instruments in respect to maintaining contacts with other courts is the Memorandum of Cooperation signed by respective parties. The most recent document was signed by the Georgian side with the Constitutional Court of the Republic of Moldova. On the basis of the Memorandum of Cooperation parties agreed to organize bilateral meetings with representatives of constitutional courts and to exchange judgments, decisions, opinions and other legal materials of interest. Such cooperation is aimed at exchanging the experience on the bilateral basis and contributes to the enhancement of transparency within respective institutions.

The Constitutional Court of Georgia co-operates also with the Venice Commission of the Council of Europe “Democracy through Law”. Within the framework of co-operation with the Venice Commission an annual international scientific-practical seminar is held on the subject “actual problems of the Constitutional Court”. Various projects are carried out in cooperation with following important partners: UNDP, GIZ, ABA, USAID, European Commission TAIEX program, etc.

Since 2008, the Court has launched a Summer School program which takes place in Batumi. Every year the Court receives hundreds of applications from various university students. In order to make the Summer School competitive and interesting for students, we invite professors and scholars from top universities in the US, UK and other European states. Thus the Court makes every effort to contribute to the development of legal education in Georgia as well.

Conclusion

Constitutional Judicial –Review is criticized by the Counter Majoritarian Arguments and challenges the legitimacy of constitutional justice itself. George Papuashvili According to the criticism “Judges who are not politically responsible, are Constitutional Court of Georgia telling the people’s elected representatives that they cannot govern as they’d like, because constitutional-judicial review gives unelected judges a special position above and inside political system and accordingly they can declare null decisions produced by elected governments and legislatures.” (Doli and Korenica, 2009, http://legalpoliticalstudies.org/ consulted 01.11.2012). Here the question —where is the peoples’ say?— arises, known as the Counter-Majoritarian objection to judicial review. However, it is also well known that in certain cases “Courts can be more democratic... than legislatures.” The fact that parliament is elected, while on the other hand, 166 judges are not, is not sufficient proof to assume that the former is more democratic than the latter, because “quite often the realization of political equality through elections, representation, and legislative process is imperfect. Electoral systems are often flawed... All in all, it should be said in all fairness that the election is not the end of democratic society or democracy. One should also bear in mind that democratic legitimacy of the judge may be attained not only through democratic election but if the judge defends democracy itself. “(Leon and Rivera, 2010: 33). Furthermore, judges are selected from the “people that are not segregated by lines of race, religion, income and wealth, for instance.” (Lever, 2009: 809) In addition, judges do have qualities that other public servants do not possess and they exercise their duties transparently.

As for the institutional legitimacy, the Constitutional Court of Georgia, as mentioned above, is composed by the participation of all three branches of the government, reflecting the separation power doctrine and thus it enjoys more legitimacy. The decisions of the Constitutional Court of Georgia will always enjoy legitimacy as long as it preserves constitutional rights and freedoms and ensures better protection of human rights. Therefore, concerning a substantial legitimacy issue, it has to be concluded that by establishing a high legal standard of the court accessibility and by extending the scope of that right to foreigners and stateless persons, the Court acquires further substantial legitimacy. As it has already been mentioned above, the transparency of justice also significantly contributes to the elevation of the degree of institutional legitimacy, which is vitally important in this context. References

Books and Journals

Álvaro Herrero, Gaspar López, Access to Information and Transparency in the Judiciary, (2010).

Boulanger, in the Book Spreading Democracy and Rule of Law? The impact Effective judicial remedy of EU enlargement on the rule of law, democracy and constitutionalism and enlarging transparency: legitimacy in post-communist legal orders, Sadurski (editor) (2005). consequences for Constitutional Court ...

Doli and Korenica, A Comparison Between Judicial-Constitutional Review Models: Towards a Hypothetical Approach on the Logic of Each Model, Group for Legal and Political Studies Press, available at http:// legalpoliticalstudies.org/(consulted 01.11.2012).

Elke Luise Barnstedt, Judicial Activism in the Practice of the German

Federal Constitutional Court: Is the GFCC an Activist Court? Juridica 167 International, 2007, vol. XIII, pp. 38-46.

Leon and Rivera, The Counter–Majoritarian Difficultie, Bickel and Mexican Case, Mexican L. Rev. Vol. 3. N. 1, (2010).

Lever, Democracy and Judicial Review: Are They Really Incompatible? Perspective on Politics, Vol. 7, N. 4, (2009).

Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe, University Of Chicago Press (2000).

Normative Acts

▪ Civil Procedure Code of Georgia of November 14, 1997. ▪ Criminal Procedure Code of Georgia of October 9, 2009. ▪ General Administrative Code of Georgia of June 25, 1999. ▪ Law of Georgia on the Constitutional Legal Proceeding of March 21, 1996. ▪ Organic Law of Georgia on the Constitutional Court of Georgia of January 31, 1996. ▪ The Constitution of Georgia of August 24, 1995.

International standards for the protection of human rights as per the practices of the Constitutional Tribunal of the Russian Federation

Vladimir Yaroslavtsev

Judge of the Constitutional Tribunal of the Russian Federation

In accordance with the Constitution of the Russian Federation, human rights are acknowledged and guaranteed as per the principles and standards of International Law (article 17, paragraph 1) and considering the provisions of the international treaties that the Russian Federation is a party to (article 15, paragraph 4).

The Constitutional Tribunal is based on the provision that, in case a federal law contemplating the ratification of an international treaty is lacking in special mechanisms for the implementation of its provisions (a set of legislative measures and of measures for the application of the law so as to comply with the corresponding international obligations), the priority of the international treaties signed by the Russian Federation with regards to the Federal Legislation stipulated in the Constitution offers possibilities for the direct application of the terms of any such international treaty by the entities in charge of ensuring compliance with the law. Nonetheless, in certain cases, in order to carry out a real incorporation of the standards of International Law into domestic legislation, as well as to ensure the best combination with the basic mechanisms of domestically applied legal regulations, legislators are required to adopt specific measures.

Even though the Constitutional Tribunal’s competence applies directly only to those questions concerning verification of the correspondence to the Constitution of the Russian Federation of international treaties that did not come into force (article 125, paragraph 2 of the Constitution of the Russian Federation; article 3 of the Constitutional Federal Law “On the Constitutional 169 Tribunal of the Russian Federation”), the practice of the Constitutional Tribunal in the realm of implementing the standards of International Law is much

broader and consists of the following lines:

▪ Regular, continuous use of the Russian Federation’s international treaties and the acts of international entities that the Russian Federation is a party to, as well as the legal positions of the European Russian Federation

Vladimir Yaroslavtsev Court for Human Rights (including those formulated in the sentences Constitutional Tribunal of the issued in cases against other States), as supplementary legal reasons supporting its own conclusions in the cases examined; ▪ Use of these international legal instruments, as well as of the legal positions of the European Court for Human Rights for the purpose of interpreting the contents of the constitutional rights and liberties of citizens and for the purpose of comparing the standards of Russian Legislation with international legal standards, especially European ones. ▪ The argument in favor of a mandatory consideration of international legal instruments or of decisions made by supra-national jurisdictional

170 entities, both on the part of the Legislature and by all entities in charge of enforcing the law in the Russian Federation.

In the legal systems of those countries that are members of the European Council, including the Russian Federation, specifically in the realm of the regulation of social relations, the significance of resolutions made by the supra-national jurisdictional entity invested by the European Agreement for the Protection of Human Rights and Fundamental Liberties, which enjoys exceptional powers for interpreting the standards of said Agreement, is growing. The Activity of the European Court for Human Rights also exerts an important influence on the reform processes of domestic Legislation, in order to adapt it to universally acknowledged international standards.

When ratifying the European Agreement for the Protection of Human Rights and Fundamental Liberties, Russia assumed the obligation to harmonize its domestic legal practice with the standards established by the aforementioned Agreement. Ratification of the Agreement has pre-determined a special significance of the decisions made by the European Court for Human Rights with regards to the Russian legal system. During the period under examination, Russia ratified Protocol Nº. 14, which improves the efficiency of the European Court for Human Rights regarding the acceptance of claims and the issuance of resolutions.

Resolutions issued by the European Court for Human Rights are fully complied with by the Russian Federation and mostly within the time frame established for it. This alludes both to payment of compensation to claimants in specific cases and to, if necessary, the adoption of internal measures for re-establishing the right infringed upon. Thus, upon approval of the Federal Law “Regarding compensation for infringement upon the right to judiciary procedure within a reasonable time frame or the right to compliance of a judiciary act within a reasonable time frame”, the direct recommendations of the European Court for Human Rights were given force as formulated in the sentence concerning the case “Burdov against Russia” (Nº. 2) in connection with the creation of an internal means for the legal protection against violation of the right of compliance of legal sentences within a International standards for the protection of human rights as per reasonable time frame. At the same time, the specific mechanism for practices of the Constitutional Tribunal ... implementing the resolutions of the European Court for Human Rights (at the level of general provisions deduced from the resolution of typical cases) is not expressly determined. Specifically, this refers to those situations when the State takes general measures in connection with systematic violations uncovered by the European Court for Human Rights.

Acknowledgement by the Russian Federation of supra-national jurisdiction in questions regarding the interpretation and application of the European 171 Agreement for the Protection of Human Rights and Fundamental Liberties and their Protocols gave rise to the need to clarify the question of interconnection between resolutions issued by the European Court for Human Rights and the standards of the Russian legal system, including legal instructions contained in the resolutions issued by the Constitutional Tribunal.

In general, the Constitutional Tribunal and the European Court for Human Rights are united by constructive cooperation in order to attain maximum protection of human rights and fundamental liberties. This is facilitated by the coincidence in the catalogue of the rights guaranteed by the European Agreement for the Protection of Human Rights and Fundamental Liberties and the rights guaranteed by the Constitution of the Russian Federation (this is even broader in the Constitution of the Russian Federation as social rights at the European level are guaranteed by another international treaty —the European Social Charter— which has also been ratified by the Russian Federation).

Aside from the above, consideration of the conclusions reached by the European Court for Human Rights in connection with systematic problems caused by disagreement between the provisions of the European Agreement for the Protection of Human Rights and Fundamental Freedoms and the legal regulation, combined with its practical enforcement, is also carried out through verification of the corresponding standards in the constitutional procedure. Such verification, specifically, took place when the Constitutional Tribunal was examining questions concerning the revision of judiciary acts in exercising supervision of civil procedure; procedural guarantees of the rights of individuals that have been declared legally

disabled; and the responsibility of the State concerning an undue use of justice, including undue execution of the sentences against the State, etc.

During the years 2009-2011, the Constitutional Tribunal in more than thirty resolutions used both the standards established by the European Russian Federation

Vladimir Yaroslavtsev Court for the Protection of Human Rights and Fundamental Liberties and Constitutional Tribunal of the its Protocols and the practices of the European Court for Human Rights, including resolutions against other States, in order to argue its conclusions. Thus, arguing the fundamental conclusion of the inadmissibility of retroaction in the legal interpretation of the standard, which was issued by the superior judiciary entity, and which worsened the conditions of individuals in their relationship with the State, the Constitutional Tribunal made a detailed analysis of the practices followed by the European Court for Human Rights in connection with the cases regarding annulment of judiciary resolutions that had entered into force because of a change in the interpretation of the

172 standards upon which these resolutions were based, issued by the superior judiciary entity (January 21, 2010 Resolution Nº. 1-P). Said resolution is an important example of comparison by the Constitutional Tribunal of the practices of the European Court for Human Rights and Russia’s legal system, with regards to a concrete question.

During the period examined, the Constitutional Tribunal paid attention to the problem of executing the sentences of the European Court for Human Rights in claims made against Russia on the aspect of the procedural mechanisms established by Russia’s Legislature. Concentrating on the analysis of the obligations of Russia as defendant, the Constitutional Tribunal discovered the legal consequences deriving from the adoption of the sentence issued by the European Court for Human Rights in the claim made against Russia. Acknowledging a flexible approach of the agreement’s entities regarding the questions of electing the modes of execution of the European Court for Human Rights’ sentences in connection with specific claimants, the Constitutional Tribunal nevertheless considers necessary to review the sentences dictated in the system of domestic jurisdiction in case elimination of violations of the European Agreement for the Protection of Human Rights and Fundamental Liberties proves to be impossible without annulling the corresponding judiciary acts (February 26, 2010 Resolution Nº. 4-P).

Thus, acknowledging the constitutionality of the standards contained in the Russian Federation’s Civil Procedures Code (paragraph 2, article 392), the Constitutional Tribunal simultaneously noted that this decision cannot be examined as something that allows denying a citizen, in the course of a case revision, newly discovered circumstances of the judiciary act issued in connection with the corresponding case if the European Court for Human Rights has clarified a violation of the standards of the European Agreement for the Protection of Human Rights and Fundamental Liberties, committed in the process of studying such individual’s case and of making the decision leading to the claimant’s request from the European Court for Human Rights.

Besides, the Constitutional Tribunal has indicated the obligation of legislators International standards for to include the changes to the Russian Federation’s Civil Procedures Code the protection of human rights as per practices of the Constitutional Tribunal ... that guarantee the possibility of revising judiciary decision in force when the European Court for Human Rights finds violations of the standards of the European Agreement for the Protection of Human Rights and Fundamental Liberties made by the court in the process of investigating a specific affair and of making a decision leading the claimant to address the European Court for Human Rights. Appropriate changes in regulatory standards were contributed by the Legislature. Thus, in those cases when in the course of the European Court for Human Rights’ practice the problem of incompatibility 173 emerges between the terms of the European Agreement for the Protection of Human Rights and Fundamental Liberties and domestic Legislation in the interpretation issued by the European Court for Human Rights on behalf of the Russian Federation as defendant, the internal legal regulation correction mechanisms are used. The Constitutional Tribunal, in the course of studying the conformity of legislative standards with the Russian Federation’s Constitution in those cases in which it is necessary, considers the positions of the European Court for Human Rights, which has highlighted the incompatibility of some Laws in the European Agreement for the Protection of Human Rights and Fundamental Liberties in the interpretation of them made by the European Court of Human Rights.

The introduction of the European Court for Human Rights’ criteria and positions is greatly complicated. Most Law practitioners are not prepared to use them. One of the reasons is of a legal-technical character: the official translations of the European Court for Human Rights’ resolutions are missing. In this situation, the role of the Constitutional Tribunal, which consists in helping to adapt the conclusions of the European Court for Human Rights to the legislative system of the Russian Federation acquires special importance.

Despite the fact that both the European Court for Human Rights and the supreme national entity for Constitutional Justice were established to comply with the sole function of guaranteeing the protection of human rights and liberties, their collaboration is characterized by some contradictions. Thus, the sentence adopted by the European Court for Human Rights on October 7, 2010 in the case Konstantin Markin v. Russia provoked a very

serious legal problem with regards to the interpretation of the standard of domestic Legislation issued by the Constitutional Tribunal and that of the European Agreement for the Protection of Human Rights and Fundamental Liberties which was subsequently approved by the European Court for Human Rights and which resulted in the incompatibility of the aforementioned Russian Federation

Vladimir Yaroslavtsev domestic Legislation standard with the European Agreement for the Constitutional Tribunal of the Protection of Human Rights and Fundamental Liberties.

In resolving this problem the point of departure has to be the fact that constitutional standards have priority over International Law standards included in the domestic legal system. In any case, the contents of article 15 of the Russian Federation’s Constitution in its linkage with articles 17 (part 1), 46 (part 3) and 125 of the Russian Federation’s Constitution do not establish a priority for the interpretation of international treaties as approved by the supra-national entity over the standard established by domestic Legislation

174 issued by the Constitutional Tribunal.

Respectively, conclusions by the European Court for Human Rights on the incompatibility of some standards of the Russian Federation’s Legislation with obligations deriving from the European Agreement for the Protection of Human Rights and Fundamental Liberties, even considering the appraisal of said standards by the Constitutional Tribunal, cannot be considered as unconditional obligations of the State, as represented by its authorized entities, for the purpose of adopting common measures for change in legislative regulation.

Another way of looking at this question could violate the role of the Russian Federation’s Constitution as supreme legal force; that is, it could violate the basis of the Russian Federation’s constitutional regime from whence its sovereignty as a State derives.

The main Constitutional value determining perception of the conceptions prepared by the European Court for Human Rights is the balance between the components that form the basis of the constitutional regime which is the object of verification carried out by the Constitutional Tribunal in each specific case. Taking this as a departure point, the Constitutional Tribunal carries out implementation of the conceptions prepared by the European Court for Human Rights as applied to individual cases whenever this allows increasing the level of protection of human rights in the Russian Federation, without causing damage to the equivalent constitutional values: State independence and sovereignty. The obligation to interpret and use the European Agreement for the Protection of Human Rights and Fundamental Liberties taking into consideration the legal positions of the European Court for Human Rights imposed upon the public national institutions is limited by the obligation to respect the priority of the Russian Federation’s Constitution in the hierarchical system of legal acts to which the European Agreement for the Protection of Human Rights and Fundamental Liberties belongs as one of the international treaties signed by the Russian Federation. International standards for the protection of human rights as per As is well known, at the end of March 2012, the Grand Chamber of the practices of the Constitutional Tribunal ... European Court for Human Rights approved a new decision in the Markin affair, eliminating the requirements to change national Legislation and the controversy with the conceptions applied in the framework of the national legal system was considerably toned-down (especially with regards to the positions adopted by the Constitutional Tribunal).

The methodology used by the Grand Chamber of the European Court for

Human Rights made a distinction between said decision and the resolution 175 adopted on October 7, 2010. Generally avoiding controversy with the legal positions of the national entity for Constitutional Justice, the Court focused on the investigation of events, including even new events that were brought up by the parties, as well as on the analysis of applicability of the standards of the European Agreement for the Protection of Human Rights and Fundamental Liberties. A definitely positive circumstance that we also need to underline is that, in considering all the specific features of military service (this was the main argument in favor of the position adopted by the Constitutional Tribunal), the Grand Chamber of the European Court for Human Rights made the decision to abstain from formulating the recommendations for changing the Legislation regarding the social statute of the Russian Federation’s military personnel made on October 7, 2010.

As a party decidedly in favor of establishing a constructive dialogue with the European Court for Human Rights, the Constitutional Tribunal notes with great satisfaction the development and deepening of this interaction.

The constitutional interpretation through the jurisprudence of the Constitutional Council of the Kingdom of Morocco —The human rights cases—

Mohamed Achargui

President of the Constitutional Council of the Kingdom of Morocco

The Moroccan Constitutional Council, created by the 1992 Constitution as part of the reforms that Morocco has implemented since 1990 for the consolidation of the rule of law and the promotion of human rights, has received, from the outset, through the powers assigned to it by the text of the Constitution it created, the mission to interpret the Constitution and to ensure respect for its provisions.

It should be noted that the Constitutional Council will be replaced, under the July the 29th, 2011 Constitution, by a Constitutional Court whose responsibility has been extended to include the control of conventionality and the admissibility of the exception of unconstitutionality raised during a trial, when one of the parties contends that the law on which the outcome of the proceedings depends violates the rights and freedoms guaranteed by the Constitution.

It is true that the mission of constitutional interpretation is not expressly included in the constitutional texts, but, as a contemporary author rightly points out, “when the judge declares himself competent to entertain an unconstitutionality motion, whether he likes it or not, he is called to interpret the Constitution. The Constitution then becomes in this case a standard of reference for the law under scrutiny”.1

1 Cf. Babacar Kanté, les méthodes et techniques d’interprétation de la Constitution: exemple des pays d’Afrique occidentale francophone, in «L’interprétation constitutionnelle s/ la direction de Ferdinand Mélin-Soucramanien, Dalloz, 2005, p. 162. 177 The reference standards to which constitutional judges adhere include, first of all, the provisions relating to the rights and freedoms of citizens.

Furthermore, modern Constitutions have fairly robust preambles, and in most cases, these include standards pertaining to human rights, which appear as true declarations of citizens’ rights.2 The role of interpretation of the constitutional courts today has become, in some countries such as Morocco, that of defender of the citizens’ fundamental rights, which is far Kingdom of Morocco Mohamed Achargui 3 Constitutional Council of the more than that of regulator of the activities of the public authorities.

Safeguarding individual freedoms and rights has thus become, for the Constitutional Council, a major goal under its power of interpretation of the constitutional norms.

Before presenting the outline of this interpretation through the countless decisions it has handed down in this regard, it would be appropriate to make some remarks on the developments of the general framework for the interpretation of the Constitution by the Constitutional Council. 178

The general framework of the power of interpretation of the constitution by the Constitutional Council

In its mission as defender of the citizens’ fundamental freedoms and rights, the Constitutional Council naturally refers to the constitutional system enshrined today in the new July 29, 2011 Moroccan Constitution. For this reason, it seems appropriate to first present the advances of the new Constitution, particularly in regards to human rights, as well as the main features of the method of interpretation adopted by the Constitutional

2 This has to do with the Constitution’s modern concept. The idea, so to speak, that the Constitution contains a detailed project for a «just society», obviously promotes the direct application of the Constitution by any judge in any dispute. Such a concept, as we have underlined, is today fairly spread in Western legal thought: it seems justified by the content of several contemporary Constitutions, especially after the Second World War, including —next to the standards on the political organization of the State— general principles and standards, capable several «concretizations», cfr. Riccardo Guastini, “l’interprétation de la Constitution”, in « Traité international de droit constitutionnel », Paris, Dalloz, 2012, p. 476. 3 Prof. Luchaire had the opportunity to note, about France, that «the Constitutional Council long regarded as ‘a canon aimed against Parliament’ or as ‘the regulator of the activities of the public authorities’ appears today as the defender —at least an sporadic one, that is when it has taken a case— of the rights and freedoms of the before the authorities’ power». This second aspect of the mission of the Council is more important than the first because when the parliamentary majority coincides with the presidential majority because the jurisdictional disputes between the legislative and the Executive take a relatively minor aspect; when the law no longer appears as an act of Parliament but rather as the will of a Government followed by a faithful majority, the rights and freedoms of the citizen obviously require a greater protection» cf. Luchaire, Mélanges Marcel Waline, Paris, L.G.D.J., 1974, p. 563. Council, before looking at a few cases of constitutional jurisprudence in this area.

The advances of the July 29, 2011 Constitution, in the field of human rights

Morocco, which has acknowledged, since the 1962 Constitution the existence of fundamental rights and freedoms, and which had already Council of the Kingdom Morocco ... foreseen back then the creation of a Constitutional Court on the same level The constitutional interpretation as the Supreme Court, has just adopted by referendum, on July 1, 2011 a through the jurisprudence of Constitutional new Constitution in which it reaffirmed, as it had done in the constitutions of 1992 and 1996, its “commitment to human rights as they are universally recognized” and “its commitment to protect and promote the safeguards of human rights and international humanitarian law and to contribute to their development in their indivisibility and universality”. (Preamble)

The new Constitution, in addition to the consecration of the principle of the separation of powers, the independence of the judiciary, the increase of 179 the legislative and political powers of the Parliament, includes a title specially devoted to “fundamental freedoms and rights” that is a true “Charter of rights and duties” of the citizen. It also contains a new title on “institutions and instances of protection of rights and freedoms, good governance, human and sustainable development and participatory democracy”.

What are then the freedoms and the rights proclaimed by the new Constitution?

A quick reading of the rights and freedoms proclaimed by the Constitution of 2011 shows that the new constitutional text marks a considerable progress in the constitutionalization of rights and freedoms in Morocco and their protection safeguards.

1. Among the rights and freedoms guaranteed by the new Constitution, we find all three generations of rights, the 1st (civil and political rights), the 2nd (economic and social rights) and 3rd (solidarity rights). 2. It is important, in this regard, to highlight the new special place reserved, by the new constitution, to the common citizen, who now has the right of legislative initiative, may submit petitions and even seize the Constitutional Court. The Constitution grants, similarly, a status to civil society, and recognizes the role of NGOs as actors of participatory democracy at the national, local and community levels. 3. It is important to note, too, the right granted by the Constitution to foreign nationals, who enjoy the “fundamental freedoms recognized to Moroccan citizens, in accordance with the law” and to participate, for those who reside in Morocco, in local elections according to law,

to the application of international conventions and to reciprocity agreements. 4. Also, one must underline the status, recognized for the first time, of the parliamentary opposition which gives it “the rights enabling it to perform properly its missions pertaining to its parliamentary duty Kingdom of Morocco Mohamed Achargui and political life” (art. 10). Constitutional Council of the 5. Together with these rights and freedoms, the new Constitution gives the citizens the responsibility of their duties: “all citizens must respect the Constitution and comply with the law. They must exercise the rights and freedoms guaranteed by the Constitution in a spirit of responsibility and committed citizenship” (art. 37).

Method of interpretation

It should be noted, first of all, that the feature which better promotes the

180 power of interpretation of the Constitution by the Council, is, it can be said, its status as a specialized Court independent of all three classic powers of the State, as well as the authority of its rulings, which are without appeal and are binding on all concerned public authorities and all administrative and judicial authorities which gives these decisions an absolute standing and therefore preclude any revision (Dec. no. 408/2000 - Dec. no. 250/1998).

a) References

1. It is naturally the Constitution that represents the essential foundation for the competence of the Council on constitutional interpretation. “The Constitutional Council exercises the powers entrusted to it by the articles of the Constitution or by the provisions of organic law. It shall, moreover, statute on the regularity of the election of the members of Parliament and referendum operations”, reads article 81 of the 1996 Constitution. The same wording is also reflected in the new Constitution for the Constitutional Court, which is to replace the Constitutional Council currently in place. (art. 132).

The Council has had the opportunity to clarify, concerning that Constitution “enjoys a primacy over all other texts, and it is the duty of all citizens to respect it. The Constitution must be applied in its letter and its spirit. The Constitutional Council must watch over this on all affairs submitted to it” (Dec. no. 819/2011), knowing that the Council refers in its constitutional interpretation to the preamble to the Constitution by formulas such as: “as stated in the preamble of the Constitution (Dec. no 818/2011) or in accordance with the provisions of the Constitution found in its preamble” (Dec. no 817/2011).

2. After the Constitution, the organic laws are the next fundamental element of the jurisdiction of the Constitutional Council on matters of interpretation. The Constitution specifies on this matter that organic laws before their promulgation and the rules of procedure of each Chamber, before their implementation, shall be subjected to the Constitutional Council, Council of the Kingdom Morocco ... which decides on their conformity with the Constitution. The constitutional interpretation through the jurisprudence of Constitutional

The Constitutional Council has considered that the organic laws emanate from and complement the Constitution (Dec. no. 786) and are thus part of the block of constitutionality.

3. In the exercise of its interpretation power, the Constitutional Council refers, in addition to the Constitution and the organic laws, to other standards that are also part of what is commonly called “The block of constitutionality”, to which the Council acknowledges, in all its components, a constitutional 181 value, and that demands the compliance of the legislator. This block is made primarily of the constitutional principles or of principles of constitutional value or yet the larger constitutional principles. It is also made up of the “objectives of constitutional value”.

On the issue of the constitutional principles, the Constitutional Council has had the opportunity to clarify what is meant by these principles: “The principles explicitly enshrined in the Constitution” (Dec. no. 818/2011). As such it makes reference to “the larger constitutional principles” (Dec. no. 819/2011) or to the “stable fundamental principles” on which the Constitution is based on the issues pertaining to the exercise of political rights, including inter alia, citizenship, the right to vote and be elected by universal suffrage, on equality of rules and conditions, equal opportunities, as well as the prohibition and the fight against all forms of discrimination, in accordance with the provisions of the Constitution in its preamble and in articles 2, second paragraph, 19 (first paragraph) and 30 (second sentence of the first paragraph) (Dec. no. 817/2011). In several decisions, the Council also coined the idea of the principles of constitutional value such as the presumption of innocence, public order, the multiparty system... (Dec. no. 250/1998, no. 382/2000, no. 630/2007, no. 659/2007).

4. One also finds in the decisions of the Council, the reference to “constitutional objectives” which it considers as complementary to the principles set out by the Constitution. Accordingly, the Council stated that the legislature has by virtue of article 23 of the Organic Act, reserved for women (in the House of representatives) 60 seats, with no age limit, so as to enact the legal provisions designed to benefit women candidates with

special provisions in order to achieve a constitutional objective, that of offering women real opportunities to occupy elected positions, in accordance with the provisions of article 19 of the Constitution, which states that “the State seeks to achieve parity between men and women” and article 30, which states explicitly that “the law includes provisions aiming at the Kingdom of Morocco Mohamed Achargui promotion of equal access of women and men to elected functions” (Dec. Constitutional Council of the no. 817/2011).

In the same decision, by implicitly applying the principle of affirmative action, the Council stressed the importance of “the extension and generalization of the participation of youth in the social, economic and political development of the country … since (youth finds itself), in terms of representation of citizens in the House of representatives, in a weakened situation which does not correspond to its size and its role in society”.

182 b) Scope and limits of interpretation

1. In its method of interpretation of the constitutional provisions, the Council has often thought of itself as a regulator of the authorities (e.g. Dec. no. 842, 845), in some cases it recognizes having an implicit power when extensively interpreting its own jurisdiction, to watch over, in particular, the work of Parliament and the trust citizens have towards it. This is the result of Dec. no. 819, in which the Council examined and rejected the resignation presented by 17 members of the House of Councilors before the end of their legal term of Office and on the eve of the legislative elections of the House of Representatives. For the Council, “this resignation not only weakens the parliamentary institution by introducing a difference between the two chambers of Parliament, it also constitutes a behavior inconsistent with the values and constitutional principles that seek to strengthen the constitutional institutions through the consolidation of the principles of honesty, responsibility and obligation between rights and duties. Such behavior might affect the credibility of the parliamentary institution and the confidence of citizens towards it” (Dec. no 819/2011).

Nevertheless, the Constitutional Council (like its predecessor, the Constitutional Chamber, in Dec. no. 1) considers itself bound by the principle of the separation of powers (Dec. no. 182), and will not encroach on the legislative power of Parliament, as it respects its choices and discretionary power (Dec. no. 817 and 854). Accordingly, the Constitutional Council considered that it is for Parliament to enact the rules it deems appropriate for the improvement of the representation of women in the Councils of the territorial communities. The role of the Constitutional Council will thus be limited to controlling the compliance of these provisions with the Constitution (Dec. no. 821/2011).

In the same line, the Constitutional Council, in one of its most recent decisions, recused itself in a domain where it acknowledged Parliament’s discretionary power as long as the exercise of that power was not affected by a manifest error (Dec. no. 854/2012). The matter at hand in this case was the determination of the list of institutions and strategic public enterprises Council of the Kingdom Morocco ... provided for in article 49 of the Constitution, and that the Council The constitutional interpretation considered was part of the jurisdiction of the legislature since the same through the jurisprudence of Constitutional article 49 attributes the drawing of this list to an organic law.

c) The Caveat provisions

Like many constitutional courts, the Moroccan Constitutional Council often makes use, in the control of the constitutionality of the organic and ordinary laws and internal rules of the Parliament, of some well-known provisions of interpretation caveats, allowing it to not sanction some legislative provisions 183 while clarifying their meaning and the manner in which they must be applied, (thus exercising, cautiously, a certain “normative power”).

As such, the Constitutional Council sometimes uses the “neutralizing” caveat (Dec. no. 817/2011 concerning the organic law relative to the House of representatives, Dec. no. 818 concerning the organic law on political parties), sometimes called “constructive” caveat (Dec. no. 821/2011 concerning the organic law on the election of local councils members) and, in some cases the so-called “directive” caveat (Dec. no. 829/2012 concerning the procedure rules of the Chamber of representatives).

Through these provisions, the Constitutional Council, in order to ensure a correct application of the Constitution, exercises a certain “normative power”, albeit very carefully, since the Council, as previously specified, respects the principle of the separation of powers and agrees not to encroach upon the legislative authority of Parliament.

The interpretation of the constitutional norms relating to human rights through constitutional jurisprudence

It should be noted, first of all, that if the Constitutional Council, onthe issues of relations between Parliament and the Government, generally adopts a restrictive interpretation of the constitutional and relevant provisions, thus confirming the position of its predecessor, the Constitutional Chamber, which had considered that, on the issues of relations between Parliament and the Government, it is not permissible to interpret extensively the text

of the constitution (Dec. no. 65), on the other hand, on Human Rights issues, the Council interprets extensively the constitutional provisions, standing always on the side of fundamental freedoms and the exclusive jurisdiction of the legislature. This is the result, for example, of Dec. no. 382 in which, the Council considered that, under the provisions of the Constitution Kingdom of Morocco Mohamed Achargui

Constitutional Council of the “the right of every citizen to have access to public jobs and functions is one of the liberties enshrined in the Constitution and that any derogation of this right... is the responsibility of the legislature... this derogation must also conform to the principles contained in the Constitution or having constitutional value”.

With this clarification, I should like to look, in the jurisprudence ofthe Constitutional Council, at certain decisions relating to fundamental rights and freedoms.

184 In this context, the Council upheld the principle of equality amongst citizens. It has also rendered decisions that go in the direction of the safeguarding of freedoms and political rights, the protection of the rights and freedoms of members of Parliament and the affirmation of the principles of pluralism and free competition between political parties, as well as freedoms pertaining to the latter.

1. On the issue of equality between men and women, for example in the access to election posts, the Constitutional Council, in its November 19, 2011 Dec. no. 821 has interpreted the provisions of the Constitution in this area in favor of affirmative action in favor of women. The Council considers that section 76 of the Act, concerning the election of the members of the Councils of local jurisdictions, which created two electoral districts in each prefecture or province, and set aside one of these for women, does not contradict the Constitution, which provided in article 146 for an organic law that would establish provisions to ensure a better representation of women in these councils. The Constitutional Council also considered that, in deciding to set aside a post for women in each of the established electoral districts, the legislature acted in the sense of the application of other principles enshrined in the Constitution in article 30, which called upon the legislature to establish rules encouraging equality of opportunity between women and men for access to elective posts in order to achieve parity, which is seen as a goal that the State seeks to reach in accordance with article 19 of the Constitution. In the field of public service, the Council insisted on the right of all citizens to have access, under equality of conditions, to public jobs and functions, considering that “the right of all citizens to have access to government jobs and functions is one of the liberties enshrined in the Constitution, and that any derogation from this right falls within the jurisdiction of the legislature and must be limited in its scope, delimited with respect to its enforcement, specified with respect to the conditions of its implementation and justified by the legal and functional conditions relating to the missions Council of the Kingdom Morocco ... inherent to the exercise of the Government posts and jobs. This derogation The constitutional interpretation must be consistent with the principles contained in the Constitution or through the jurisprudence of Constitutional having constitutional value” (CED 382/2000).

The Constitutional Chamber of the Supreme Court which had preceded the Constitutional Council had also insisted on full respect for equality between jobs candidates (Ch. cons. Dec. no. 20/1964).

In addition to equal access to public jobs and functions, the Council upheld, in an extensive way, in its interpretation of the provisions of the Constitution: 185

▪ Equality before the law (Dec. 829/2012). ▪ Equality between inmates (Dec. 52/1995). ▪ Equality between voters (Dec. 52/1995 - Dec. no. 70/95 - Dec. no. 218/98). ▪ Equality between the lists of candidates in elections (Dec. 630/2007). ▪ Equality between Deputies (Dec. 817/2011). ▪ Equality before the criteria adopted for financial support from the State for the benefit of political parties (Dec. no. 818/11). ▪ The equality of opportunity and the prohibition of all forms of discrimination (Dec. no. 817/11). ▪ Equality between men and women and respect for parity between them in accordance with article 19 of the Constitution (Dec. no. 820/11).

2. In the area of the defense of political rights and freedoms, the control of the regularity of the election of members of Parliament is for the Constitutional Council the opportunity to draw rules and principles that move in the direction of safeguarding these rights and freedoms, specially the right to run for office and the voters’ freedom of choice. Their violation has led the Council to cancel irregular decisions of the competent administrative authority that had rejected some candidates’ application to run for office (Dec. no. 218/98, no. 449/2001.).

It can be observed, in this regard, that the Constitutional Council will always act against such behavior, especially when it undermines the authority of judicial decisions and thus violates both the right of running for office and the voters’ freedom of choice (Dec. no. 795, 796 and 800/2010).

Thus the Constitutional Council sanctions all facts which are liable to vitiate the freedom of election and consequently restrict the voters’ freedom of choice: “whereas these acts, which have vitiated the freedom of the ballot are by nature such as, by the fraudulent maneuvers that they contain, to cast Kingdom of Morocco Mohamed Achargui

Constitutional Council of the doubt on the scope of the freedom given to voters to express their will...” (Dec. no. 393/2000 and also decision 646/2007 and no. 704/2008)

The Council also considered in this sense, “that it is clear from the record and the circumstances of the case that the electoral operation which was carried out... was not held in a climate allowing voters to exercise the free choice of the candidate for which they wanted to vote...” (Dec. no. 363/2000- 2000/399). In this area the Council referred, on many occasions, to article 11 of the Constitution which provides that “free, sincere and, transparent

186 elections are the foundation of the legitimacy of democratic representation”.

The freedom to vote and equality amongst voters constitute other principles on which the Constitutional Council has insisted in its decisions.

It is in this sense that it has censored provisions of the organic law on the House of Representatives (3rd paragraph of article 65 of Act no. 06-02 amending and supplementing Act organic no. 31-97) as “contrary to the freedom to vote, to equality amongst voters and the electoral lists”, provisions, which consequently “are inconsistent with the Constitution”. (Dec. no. 475/2002)

3. In the area of the defense of the rights and freedoms of members of Parliament, one can make reference to several decisions that go in the direction of strengthening the democratic state in the Kingdom.

In one major decision made by the Council in this regard, it claimed the absolute right of members of Parliament to form parliamentary groups and to join groups of their choice. It is in this sense that it has censored the provision of the rules of procedure of the House of Representatives, which pretended that the formation of parliamentary groups be done on the basis of the parties represented in Parliament. “The members who derive their mandate from the Nation have independence and total freedom to form parliamentary groups amongst themselves, whether they belong or not to political parties” (Dec. no. 213/98). One can also mention Dec. no. 52, dated January 3rd, 1995, in which the Council affirmed the right of members of Parliament to participate in parliamentary duties even if they are not members of parliamentary groups. The Council thus recognizes their right to explain their votes, to comment on the minutes of the meetings and to intervene in the debate following the response of the Government to the oral questions. These are rights they have just as other parliamentarians belonging to parliamentary groups. Council of the Kingdom Morocco ... In addition to these decisions, one may also recall the decision in which the The constitutional interpretation through the jurisprudence of Constitutional Council stated that “the obligation of a Member of Parliament, summoned by the Attorney general, to make a statement, is in all cases a violation of his freedom and violates also one of the fundamental rights guaranteed by the Constitution, since it is understood that, even in the event of prosecution, the accused is free to refrain from making any statement in accordance with the principle of the presumption of innocence” (Dec. no. 586/2004).

4. On political issues, the Council has had the opportunity, from an extensive interpretation of the provisions of the Constitution, to assert the 187 principles of pluralism and free competition between political parties. In its 23 January 2007 Dec. no. 630, the Constitutional Council was able to insist on compliance with these rules as “principles of constitutional value”.

On this issue the Council has declared that:

The Constitution contains, in addition to the determination of the functions which are the responsibility of the political parties, a concept of the legal framework for their action, because, political parties, in having as one of their functions to contribute to the formation of representative institutions, by presenting as candidates to elections their members and those who are close to them, by offering the citizens choices and programs, and by participating in the supervision of the electoral process, perform these duties in a party system that is incompatible with that of the single party system, and based on principles of constitutional value, including the multiparty system and the free competition between parties, having as a corollary required by such a constitutional system of parties, the necessary autonomy in the management of their internal affairs, and their equality before the law.

This decision was the result of the referral to the Constitutional Council by the Prime Minister to examine the constitutionality of Organic Law no. 22-06 amending and supplementing the 31-97 Act relating to the House of Representatives. The provisions of this Act that were challenged pertained to those that required new parties or those who had not received 3% of the vote in the

2002 ballot to gather the signatures of 100 electors in order to be able to run in the legislative elections that would be held in 2007.

The Constitutional Council invalidated these provisions by estimating that they were contrary to the principles of such constitutional values as Kingdom of Morocco Mohamed Achargui

Constitutional Council of the pluralism and equality of opportunity between political parties.

This decision was, moreover, welcomed by most of the political parties as a very significant step forward in the strengthening of the democratic system in Morocco.

Still in political matters, and in addition to pluralism and free competition between political parties, one can also add other principles outlined recently by the Constitutional Council in its last decisions and in particular in one pertaining to the organic law on political parties (Dec. no. 818/2011). 188

The issues at hand are:

▪ The freedom of citizens in the creation of political parties with, however, the prohibition laid down by article 7 of the Constitution against political parties on a regional basis. ▪ The political parties’ intellectual and political freedom, as well as their freedom to self-organize. ▪ The limitation of the freedom of the elected official to change his political affiliation “by the right of voters and those of the political formations which made him a candidate for elective office, as part of a moral contract between the two parties” and in accordance with the principle of political loyalty on the part of elected officials to their constituents.

Conclusion

So, as we can gather from these law cases, the Constitutional Council acts much more a defender of the citizens’ freedoms and fundamental rights than as a regulator of the activities of public authorities.

It was thus able, through its power to interpret constitutional standards, to develop jurisprudence in the promotion of human rights without forgetting its important contribution to strengthening the democratic state and the rule of law in the Kingdom. The Constitutional Court, soon to be set up, will face new challenges concerning issues including the specificity and universality of human rights, the hierarchy between international conventions and national laws, in accordance with the provisions advanced by the new Constitution on human rights, to the content and scope to be given to certain new principles and rights introduced by the new constitution... But in all this the Constitution, as HM the King Mohamed VI stated so well, can only be interpreted democratically. Council of the Kingdom Morocco ... The constitutional interpretation through the jurisprudence of Constitutional

189

Constitutional interpretation before the branches of the State

El-Hachemi Addala

Judge of the Algerian Constitutional Council

For several reasons we are interested in the constitutional interpretation of “before” the branches of the State:

Constitutional interpretation, in all its forms, whatever the method of interpretation to which the constitutional judge resorts, places him before texts that are not “clear”, that lead him to interpret the intention of the authors, which is not an easy task, most of all when the context changes and the texts are actually belated as to the author’s primary intention.

On the other hand, the word “before” included in the title should not evoke a situation of “confrontation” between the constitutional judge and the powers of the State, the relationship between them is on certain occasions complementary or conciliatory, particularly when the constitutional judge resorts to certain constructive interpretations to avoid prevent the legislator from proceeding to another lecture.

This finally leads us to believe what we understand as “the branches of the State” when mentioning the legislative power, the executive power and the judicial power.

The main concern of the constitutional judge is to guard a balance between these powers, leading them to observe the principle of the separation of powers, and a respect for the areas of competence invested on each of them, and by applying such care, one may note certain “answers”, most of all from the legislative power, and through the latter, to the executive power, which 191 often assumes the initiative in projects of laws, and is thus deprived of the instruments that permit it to implement its policy, which evidently, in case the law being amassed is declared totally or partially non-abiding with the Constitution.

In regard to the relationship of the constitutional judge with the judicial power, this may be “conflictive” when the judge extends himself beyond his El-Hachemi Addala domains of competence, as in the case of the administrative judge who Algerian Constitutional Council impregnates himself of constitutionality, particularly in the system of “concentrated” control; what may be complementary, is the role of the French Court of Appeals where the priority constitutionality matter is exposed in a procedure.

According to H. Kelsen: “if a juridical body must apply the law, it is mandatory that it establish the meaning of the rules it is meant to apply, it is necessary that it interpret these rules” and therefore inform the judge that he is not the word of the law, if this were “clear”, it would essentially 192 reduce the role of the judge.

We must note that the interpretation the constitutional judge makes of texts is different in methods and also in effects, from the interpretation of an ordinary judge, and according to Italian doctrine, (mainly M. Tallero), a constitutional judge does not pronounce judgment over the “legal provisions”, but the rules which they contain. This is how, in his work when interpreting the law, the constitutional judge “not only provides it a meaning, but also gives it life, a consistency by determining under what conditions it may be declared according to the Constitution”.(1)

Under the method of preparing the interpretative decision, it is all a matter of tact and the extent of how it is used. To interpret the law might not give the text an entirely different meaning; as parliament must assume its own responsibilities, particularly before the diplomatic corps and the judge, were he a constitutional judge, he could not supplant (Di Manno) from where derives that “the method of reservations on interpretation must have limits”,(2)* under this method there is the trend to distinguish three kinds of interpretative decisions, interpretative restrictive, constructive and directive; each is further subdivided into different genders.

* (1) and (2) “le juge constitutionnel et la technique des decisions interprétatives en France et en Italie”, (the constitutional judge and the technique of interpretative decisions in France and in Italy), Thierry DI MANNO, Eonómica-PUAM, April 1997, published on the internet. One can easily refer to searching the intention of the authors of the constitutional rule, during the interpretation; this is less when the fundamental law is adopted by referendum, in which case the people have adopted a text and not “intentions”. At this moment the fundamental text “escapes” the authors, follows its own dynamics and may or must necessarily evolve beyond its historical context.

It is clear that “the law does not express the general disposition beyond before the branches of State than with respect to the Constitution” according to a principle consecrated Constitutional interpretation by jurisprudence of the French Constitutional Council, adopted on several occasions by certain authors, among them, H. Kelsen: “and if the meaning and the specific scope of a text are not always obtained through literally reading it, the legislator is obliged to respect a constitutional jurisprudence that is explicit with respect to and prolongs the fundamental law”.

General disposition is not formed by the single vote of the law, but also by the efficacy which it confers to the position of the constitutional judge, 193 without the latter being able to substitute the legislator.

The interpretation may lead to a decision of unconstitutionality, of legal or regulatory provisions as may lead a constitutional judge to “save” the text submitted to his control, resorting to the so-called “reservations on interpretation”, for which professor Thierry Di Manno provides the definition: “under this method not provided for by the texts and purely praetorian, the Constitutional Council releases itself from the decisive binary scheme, to act directly over the regulatory substance of the law with the intention of harmonizing it with constitutional demands”.

To this title the Algerian Constitutional Council may be introduced through initiative by the President of the Republic, by the President of the National Popular Assembly, by the President of the Council of the Nation (Senate). In the case of so-called “ordinary” laws, we are before a facultative recourse.

However, for organic laws (which appeared with the 1996 Constitution) and before they were promulgated, the President of the Republic resorts to the Constitutional Council for an opinion, and any provision declared not according to the Constitution may not be sustained in the body of laws subject matter of this legal recourse. This opinion is obligatory (decisive).

To interpret a provision of the Algerian Constitution only the President has authority to resort to the Council, which in this case is the Constitutional Council that in December 25, 2000 had to resolve over the interpretation of the provisions of the Constitution concerning partial renewal of the members appointed of the National Council (Senate).

Questioned in view of declaring over the constitutionality of a text, can the constitutional judge extend the “acceptance” to other texts related to the later?

According to opinion no. 12/A.L/C.C./01 dated January 13, 2001, after

El-Hachemi Addala having reformulated the title of the law as well as its article first, the Algerian Constitutional Council Constitutional Council declared certain provisions, subject to recourse, were not according to the Constitution, having extended such non-conformity to the provisions of another law in relation to the latter. We then refer to a self-recourse and of elasticity (extension).

Under this role of interpretation the Constitutional Council initially seeks to assure a balance between the different bodies of the State, resorting to the principle of the separation of powers, or to the principle that refers to distribution of areas of competence, referring to boundaries between the

194 organic law, the so-called “ordinary” law and regulations, and obviously, to the principle of equality of all before the law.

Thus, under recent opinion no. 02/A.C.C/11 dated July 6, 2011, a provision of the organic law referring to areas of competence, to the organization and operation of the Council of the State, was declared contrary to the principle of the separation of powers, whose provision established the obligation for the Justice or his representatives to appear before the Council of the State, having been requested for consultation concerning the text referring to his sector.

Under opinion no. 03/A.C.C/11 dated 12/22/11, in regard to control of conformity of the organic law, concerning its electoral system, the Constitutional Council declared on behalf of the Constitution, that the provisions which obstructed the commission supervising the elections from attributions that release the Constitutional Council, in electoral matters, by the Constitution were not according to the Constitution.

Under opinion no. 08/A.L.O/C.C/99 the Constitutional Council declared not according to the Constitution the fact that the legislator had included in the organic law which establishes the organization and performance of the National Popular Assembly and of the Council of the Nation, as well as the functional relationships between the chambers of parliament and the government, a provision granting the presidency of the National Popular Assembly and the president of the National Council alternation, without specifying the cases where such alternation is exercised. Under opinion no. 09/A.R.I/99 dated November 22, 1999 on conformity of the interior regulations of the National Council, amended and completed, the Constitutional Council considered one of its provisions was not according to the Constitution, providing for the creation of ad-hoc Commissions without knowing article 161 of the Constitution, as in the case of the other provision which established the agenda of public or closed meetings would be decided by the office of every chamber through agreement with the government, the reason why this provision was adopted without knowing before the branches of State article 116 of the Constitution. Constitutional interpretation

Under opinion dated January 13, 2001, no. 12/A.L/C.C/01 on the constitutionality of the law that recognizes the statute of a member of parliament, the Constitutional Council has considered unconstitutional several provisions, among which we quote two:

▪ The first provided for exercising control over the different public institutions beyond action by the government, thereby contradicting 195 the provisions of article 99 of the Constitution. ▪ The second refers to indemnities, retirement and other money benefits for the members of parliament, which was ruled to lack constitutional grounds.

At the moment of a control according to the organic law, related to the judicial organization of the Constitution, it was determined that it had been assumed without knowing the constitutional principle of the distribution of areas of competence of the provisions inserted in the organic law (purpose of the recourse), while they were reserved by the constituent for other legal texts (notice n. 01/A.L.O/C.C/05 dated June 15, 2005).

Under this same decision, it was considered that the legislator, admitting the possibility of creating special judicial extremes and desisting from the prerogative of their creation, in benefit of the regulations, might have reached beyond his competence, on the one hand, and contradicted article 122.6 of the Constitution, on the other hand.

The Constitutional Council also considered that the legislator, referring to regulatory texts (orders by the executive) over the referendum of the organic law subject matter of the recourse, may not have been aware of the principles of separation of powers and of competence (opinion no. 02/A.L.O/C.C/04 dated August 22, 2004) concerning the low control over conformity, of the organic law with a statute by the judiciary of the Constitution. If the Constitutional Council itself cannot execute an action according to the current condition of the system of control as it is instituted by the constituent; it did, however, have the opportunity of resorting to what was known as “provocation of the action”. This is the reaction by the Constitutional Council due to the promulgation of an order on July 19, 1995 (amending and complementing the law of August 07, 1989, being an electoral law), introducing the condition of adding to the declaration of the

El-Hachemi Addala candidacy to the Presidency of the Republic, a certificate of origin of Algerian Algerian Constitutional Council nationality of the candidate’s spouse, condition that was previously declared that was not according to the Constitution by the Constitutional Council through its decision of August 20, 1989 over the electoral law, to which the Council reacted issuing a public declaration on July 25, 1995 whereby the provision contained in its decision brought forward is recalled. This declaration had the effect of provoking a (recourse by the Constitutional Council on July, 29, 1995, by the President of the Nation before the provision “denounced” of the order in question would be examined, for which the recourse was followed by a decision on August 06, 1995 whereby the

196 Constitutional Council wished to recall −quoting:

▪ “Considering the terms of article 159 of the Constitution, when the Constitutional Council determines a legislative or regulatory provision is unconstitutional, it loses any effect on the day of the decision by the Council. Consequently, decisions by the Constitutional Council are final and conclusive and are imposed on the aggregate public powers. ▪ Considering, on the other hand, that decisions by the Constitutional Council continuously produce effects, as long as the Constitution has not been revised and as long as the motives grounds of its device have not disappeared. ▪ Considering that, particularly, reinsertion of the same condition in the dossier of the candidacy for the Presidency of the Republic, already declared not according to the Constitution, did not recognize the authority of the decision by the Constitutional and that resulted in newly deciding over its conformity with the Constitution”.

These are some examples of opinions and decisions by the Algerian Constitutional Council on control of constitutionality, having approved certain legislative provisions. But what about reservations on interpretation and cases where the Council was forced to reformulate certain provisions and laws submitted to its control?

The Constitutional Council also uses the “conformity under reservation” method, also known as “reservations on interpretation”; method that consists in declaring a provision according to the Constitution subject to strictly abiding with its interpretation by the Constitutional Council. (To this effect, as example see notice no. 08/A.L.O/C.C/99 dated February 21, 1999, and notice no. 02/D.O/C.C/2000 dated February 27, 2000).

Always to this effect, and under the latest decision (no. 01/A.cc/12 dated January 18, 2012), the Constitutional Council, during control of consent to the organic law concerning the political parties of the constitution, while revising one of its provisions, requiring the founder of the political party to before the branches of State issue a certificate of residence (article 20 last paragraph), “that if the Constitutional interpretation intention of the legislator does not require the founder of the political party to have a residence in domestic territory; (which would be opposed to article 44 of the Constitution which consecrates the right of citizens to choose their residence), but to request this document as an administrative part of the dossier; that in this case, the last paragraph of article 20 of the organic law subject matter of the recourse is according to the Constitution.

There was also a recourse against the “method of reformulation” that 197 consists in rewriting a provision to make it more precise, less ambiguous and eliminate it from that fact to an inevitable declaration of unconstitutionality (see notice no. 3/A.R.I/C.C/97 dated June 31, 1997 concerning conformity with the interior regulation by the National Popular Council of the Constitution).

However, this method resulted in several criticisms against the Constitutional Council, its authors reproached the Constitutional Council by having placed itself instead of the legislator.

And what can one say about constitutional control over treaties, agreements or conventions?

In its first paragraph, article 165 of the constitution provides “beyond other attributions expressly conferred to it by other provisions of the Constitution, the Constitutional Council pronounced itself over the constitutionality of treaties, laws and regulations through opinions if these are final and conclusive facts, either by a decision in the contrary case”.

With respect to article 168, formulated as follows: “if the Constitutional Council considers that a treaty, agreement or convention is unconstitutional, it is not ratified”.

One must, however, consider that treaties ratified by the President of the Republic under conditions as provided under the Constitution are above the law (article 132 of the Constitution) —which the Constitutional Council wishes to recall under its decision no. 1-D.L.CC.89 dated August 20, 1989 over the electoral code.

In this respect we must keep in mind that to date the Constitutional Council has no recourse in the light of pronouncing over the constitutionality of a treaty, of an agreement or of a convention.

El-Hachemi Addala In conclusion: Algerian Constitutional Council

▪ One may anticipate that the binding opinions (obligatory) and the decision by the Constitutional Council are immediately final and conclusive and are opposed to the aggregate of public powers as has been mentioned above (see p. 8). ▪ What about the effects of “reservation over interpretation”, the latter, although published in the same and by the same means of the law, are observed by the proceedings in charge of applying the law or causing that it be applied? And most of all, they are followed by the

198 judicial judges? This would seem to be the common concern in several constitutional jurisdictions. The constitutional protection of Human Rights in the Principality of Andorra

Pierre Subra de Bieusses

President of the Constitutional Court of the Principality of Andorra

Thanks to institutions whose founding texts date back to the XIII century, the small Principality of Andorra has enjoyed seven centuries of peaceful life, without wars against the neighboring States or conflicts of civil nature, and thus free of major cases of violation to human rights. This includes the enactment in 1993 of its current constitution. Modern, democratic Constitution, that guarantees the rights and liberties promulgated by its Title II, which additionally integrates the Universal Declarations of Human Rights to the Andorran law.

According to the article 41-1 of the Constitution, the fundamental rights are firstly protected by the ordinary jurisdictions, in first instance andwith possibility of appeal. In case of a violation to the rights protected by chapters III and IV of title II, the person subject to trial must appeal to the ordinary jurisdiction by way of an “urgent and preferential appeal”, and alongside with the seizing of the essence of the case. Once the ordinary jurisdiction’s decisions on the specific appeal have been emitted, he may appeal to the Constitutional Court by means of an appeal against infringements of fundamental rights. However, in regards to the fundamental rights protected by the article 10 of the Constitution, especially the right to a lawful decision and to a “degut” process before an unbiased court, there is no ground to resort to a simultaneous process of “urgent and preferential appeal”. Once the ordinary judge makes the decisions concerning the matter of the case (first instance and appeal) and if he considers that the violation of the right or liberty is directly attributable to the judicial institution, the petitioner 199 can formulate the appeal against infringements of fundamental rights before the Constitutional Court.

In the case of Andorra, the appeal to a Constitutional Court that emits the appeal against fundamental rights is globally favorable, in relation to the modes of the appeal and the proceedings of the instance, as well as to the judge’s decisions and their consequences. Principality of Andorra Constitutional Court of the Pierre Subra de Bieusses The modes of appeal to a constitutional judge and the instance’s proceedings

Appeal to a judge

The degree of the effectiveness of the protection granted by the judge, and by the constitutional judge given the case, depends mainly on the conditions of the referral to the court and on the appeal’s admissibility.

200 From these initial points of view, it doesn’t seem likely that the situation in Andorra could undergo serious critique.

Referral to a Constitutional Court

According to the articles 102 of the Constitution and 87-1 and 95 of the Qualified Law on the Constitutional Court, the individuals entitled to file an appeal against infringements of fundamental rights by public authorities are:

▪ Persons involved, directly or as third parties, in the process before the ordinary jurisdictions; ▪ Persons whose legitimate interests are at risk because of the decisions or acts of the General Council (i. e. the Parliament) with no legal binding.

In addition, as a result of the case law of the Constitutional Court, in certain hypothesis, legal entities governed by public law and associations can also file appeal against infringements of fundamental rights.

The appeal against infringements of fundamental rights can be directed against the acts of public authorities, including jurisdictional authorities, who prejudice fundamental rights.

It must be exerted within fifteen workdays starting from the notification date of the prejudicial question of the last decision that exhausts the modes of appeal for the defense of the fundamental right in the jurisdiction, or

counting from the notification or publication of the disposition, resolution or act of the General Council.

No article of the Constitution or of the Qualified Law on the Constitutional Court foresees the urgency or the possibility of a summary judgment. Being so, in practice the Court gives verdict without significant delays and respects, The constitutional

except in rare cases, the two month delay foreseen by the article 91-2 of the Principality of Andorra protection of Human Rights in the LQTC (Qualified Law on the Constitutional Court) counting from the admissibility date of the appeal against infringements of fundamental rights.

Having stated all the previous information, it is pertinent to add that, aside from the direct referral to the Court by the person subject to trial, the latter can also indirectly benefit from the protection by a constitutional judge. The constitutional judge can be addressed by means of a prejudicial question of constitutional validity, not directly by the person subject to trial, but with his initiative, when, in case of an instance, he asks the ordinary jurisdiction to present the prejudicial question to the Constitutional Court. 201

This is done by enforcement of the article 52 of the LQTC that establishes that the Batlles and the Batllia (first instance civil judges and jurisdiction), the Court of Corts (Tribunal de les Corts)” (criminal court) and the Superior Justice Court (jurisdiction of appeals) “are empowered to demand the opening of an incidental process of constitutional invalidity against laws, legislative decrees and legally binding rulings, whichever is their enforcement date”. The jurisdictional organ may act upon its own motion, but also, and this is what we try to underline here, at the request of the parties.

If the possibilities of referring to a court are largely integrated in the Andorran law, it is still pertinent that the appeal presented to the Constitutional Court is considered admissible.

Admissibility of an appeal

Admissibility is firstly made easier by the fact that in Andorra the constitutional justice is free of cost. However the petitioner must be represented by a lawyer registered at the Bar of Andorra and the fees of the lawyer (as well as those stemming from the judicial investigation commanded by the Court) are at the expense of the parties.

Logically, the admissibility of the appeal is subordinate to the petitioner’s interest in acting. Since the fundamental rights are inherent to the person, the Constitutional Court decides, for example (Ruling 2002-12-RE of February the 28th, 2002), that “the only one entitled to the right to intimacy is the bearer thereof”.

Thus, only the persons involved in the ruling can make a referral to the Constitutional Court (art. 95 LQTC), but this demand has been made less strict by the constitutional case law. Principality of Andorra

Constitutional Court of the Effectively, by means of a ruling of June the 10th, 2002 (Aff 2002-2-RE), it Pierre Subra de Bieusses was concluded with the admissibility of an appeal filed by a private school, against a decision of the General Council that would violate the rights of its students.

Additionally, but still in a classical fashion, the admissibility of an appeal against infringements of fundamental rights is subordinate to several formal conditions : identification of the petitioner, ability to act, representation of the latter, exposition of facts, act against which the appeal is directed, person or organ to which the facts are attributable, juridical grounds for the 202 demand, definition thereof.

The absence of one or more of these conditions implies the non-admissibility of the appeal (art. 36 LQTC), but according to the article 37-1 of the LQTC, the Constitutional Court can demand the compensation for a procedural irregularity.

In case of non-admissibility the Court must justify its decision which may become the object of an appeal within six work days starting from the reception date of the non-admissibility decision notification.

In must be clarified that in the particular case where the petitioner alleges a misreading of the law in the jurisdiction, according to the article 10 of the Constitution, the Constitutional Court must, before deciding on the admissibility, request a report on the case to the Public Prosecutor’s Office, but is not bound by this report.

The instance’s proceedings

The procedure before the Constitutional Court is essentially presented in writing.

The petitioner or petitioners will submit the minutes to the Court clerk, attaching the documents they believe to be useful for the defense of their measures and pieces of evidence. When the case is deemed admissible by the Court, the latter must present

an admissibility decision and a ruling which will be submitted to all parties involved in the process before the ordinary jurisdiction, so that, within fifteen work days, they in turn may present their arguments and allegations during the appeal. After the receptions of these minutes, a new phase of deliberations will be opened, which will allow the parties to present their conclusions within six days. Thereafter, the Constitutional Court will The constitutional

deliberate on the case, after having studied all the minutes presented by the the Principality of Andorra protection of Human Rights in parties.

At first, the reporter will proceed to an examination of the file and inform his colleagues of his first findings. Then, he will write up a decision project which will be submitted in advance to other magistrates, so than a written debate starts between them. The Court —taking into account the minutes and the attached pieces of evidence, the Public Prosecutor’s Office report, the file requested to the ordinary courts and the allegations and conclusions presented— will deliberate in plenary session and present a decision of rejection or granting of the protection. In case of a tie, the Constitution 203 foresees that the opinion of the reporter, and not the President’s, will be decisive. We are dealing here with an original formula, which seems not to have an equivalent in other constitutional jurisdictions. It is justified by the fact that the reporter is the person with the most thorough knowledge of the file. The deliberations and the votes are not public.

Created to protect the fundamental rights and liberties of the citizens and subject to respecting the rights pronounced in the article 6 of the European Convention of Human Rights, the Constitutional Court of the Principality of Andorra is particularly careful of the respect of the rights inherent to an equitable process. Its case law is especially scrupulously attentive to the respect of the principle of contradiction. It deduces, for example, from the content of the article 10 of the Constitution related to the right to case law, “the need of a contradictory process, that complies with all the procedural guarantees preventing every situation of absence of defense, so that the parties may enforce their rights, points of view and arguments by reason of the principle of equality, before the organ which, according to jurisdiction, must decide” (ruling of December 19th, 1996, Aff 96-4-RE).

Likewise, the dispositions of the Qualified Law of the Constitutional Court, regarding the process carried out in respect to appeals against infringements of fundamental rights; organize the contradictory proceedings of the process. Thus, at the instance, the parties may present their allegations and written conclusions and, if they so desire, produce elements that will support them. The parties are briefed with all the minutes and may reply to them. The rulings and decisions of the Constitutional Court are always grounded on the law. The LQTC demands that they are justified, informed

to the parties and published on the Official Bulletin of the Principality of Andorra.

Additionally, the Constitutional Court is also very respectful of the right to a process, within a reasonable period of time. As a general rule, the decisions Principality of Andorra Constitutional Court of the

Pierre Subra de Bieusses are quickly presented, without exceeding (except very exceptional cases) as a maximum, a lapse of five months, from the submission of the instance- inducing minutes to the ruling that ends the process.

If, as stated above, the constitutional audience is not public, it is because, since no text demanded openness to the public, the practice was established so. However, since the texts don’t forbid public openness, nothing prevents this situation from changing if the Constitutional Court deems it desirable.

If the conditions of the referral to a court, admissibility and proceedings 204 of the instance prove to be globally satisfying from the point of view of the person subject to trial, likely to have been a victim of a violation to his fundamental rights and liberties as guaranteed by the constitution, then how should the decisions of the constitutional judge and their consequences be regarded, from this same point of view?

The decisions of the judge and their consequences

Questioning ourselves on the scope of the judge’s decisions in regards to the person subject to trial leads to distinguishing whether it was referred directly or indirectly by way of a prejudicial question of the constitutional validity.

The decisions on direct referral

▪ When an appeal against infringements of fundamental rights is presented, the Constitutional Court is always bound to give a ruling, even if it’s to pronounce a non-admissibility or the closing of a case with no further investigation.

According to the article 36-4 of the LQTC, “if the Court declares the forfeiture of the action because of a non-appearance or withdrawal of one of the parties during the process, this will not prevent it from proceeding with the process until a final decision is made”. Setting aside this type of particular case, the Constitutional Court may

decide whether to reject a request for protection or grant a constitutional protection, totally or in part.

The total acceptance entails the invalidation of the judgment subject to appeal and of all its effects as well as the declaration of the violation presented before the constitutional law. The petitioner is returned his right, The constitutional

by means of the measures necessary to this effect. the Principality of Andorra protection of Human Rights in

Partial acceptance takes place when the Court deems valid one or several of the declarations contained in the judgment subject to the appeal.

If the violation is materially irreparable, the Court will determine the type of responsibility the author of the violation to the constitutionally protected right is liable to, so that it can be investigated before the ordinary jurisdiction.

The rejection of the appeal against infringements of fundamental rights 205 entails the sentence of the petitioner to pay for legal costs.

If the Constitutional Court must, then, by principle, submit the case before the corresponding jurisdiction in order for the petitioner to request the compensation, it is empowered to, given the case, fix itself the amount of the indemnification to be granted to the victim. Thus, for example, in a case of law violation during a process of reasonable duration, by referring to article 92 of the LQTC which foresees the “restitution to the petitioner of his complete rights by means of the adoption of the necessary measures”, the Court, taking into account the details of the amount itself, charged the State for the compensation of the damages caused by the abnormal functioning of the justice system (ruling of October the 12th, 2009, Aff 2009-9-RE).

▪ As any jurisdiction, the Constitutional Court can not decide ultra petita, extra petita nor infra petita. According to the article 88 of the LQTC, “no appeal against infringements of fundamental rights that modifies the content of the conclusions developed before the ordinary jurisdiction as a part of the urgent and preferential procedure will be admitted”. Consequently, when this type of situation occurs, the Constitutional Court declares the appeal against infringements of fundamental rights non-admissible, by reason of the non-exhaustion of the ordinary modes of appeal (for example, ruling of May 18th, 2001, Aff 2001-3-RE).

▪ It occurs sometimes that the petitioner upholds before the Constitutional Court that the fundamental right or liberty violation of which he believes to be the victim results from the application of a legislative ruling which, according to him, is unconstitutional. Consequently, he requests the Court

to make a decision on this point.

In the context of an appeal against infringements of fundamental rights, this type of request can not proceed because it does not the role of the

Principality of Andorra Constitutional Court to make a ruling on the compliance of a law with Constitutional Court of the Pierre Subra de Bieusses the Constitution at the request of a person subject to trial. In fact, in terms of appeals against infringements of fundamental rights, the Andorran constitutional judge is only empowered to verify if there was a violation of the rights and liberties of the citizens, as recognized by the Constitution and to demand the ordinary jurisdictions to compensate this violation. Thus, it cannot make a ruling or undertake a question of conformity of any legal disposition with the Constitution.

Its case law is constant on this point and regularly it is ruled that the 206 argument, according to which a fundamental right violation was produced by the fact of the enforcement of certain legislative dispositions by the ordinary jurisdiction, will not proceed.

Considering it “a direct appeal on constitutional protection against laws”, it underlines that “even if it exists in other legislations, this possibility doesn’t exist in the Andorran constitutional legislation”.

Being so, in enforcement of the dispositions stated in the article 99, 100 and 101 of the Constitution, the appeal of non-constitutionality against the law may be enacted, for example, under the initiative of a fifth of the members of the General Council (the Parliament), of the Prime Minister or of three Commons (art. 99).

In this case the rulings that declare the partial or total non-constitutionality of one or more of the questioned laws may eventually have consequences favorable for the person subject to trial, but will only have effect starting from the date of publication in the official newspaper of the Principality.

Except in case of a favorable retroactive enforcement, the discussed effects produced by the non-constitutional law before its revoking are still valid as long as new laws are not adopted in order to rule on preexistent juridical situations (art. 58 LQTC). The decisions on indirect referral to court

▪ As we pointed out above, the possibility is offered to an ordinary jurisdiction court which had doubts on the constitutionality of a law or of a decree made on legislative delegation, and whose enforcement is indispensable for the resolution of the dispute, of referring to the Constitutional Court for a prejudicial question (articles 100 of the Constitution and 52 LQTC). The constitutional the Principality of Andorra protection of Human Rights in This prejudicial question may be submitted to the constitutional judge at the initiative and request of the parties.

According to the article 53 of the LQTC, “the constitutionality control request submitted to the Constitutional Court is admissible if, in a given phase of an ordinary jurisdictional process, the judiciary organ who has knowledge thereof deems by its own motion or at the instance of one of the parties that one of the norms whose enforcement is indispensable for solving the main case, or any given incident prepared for judgment in within it, is contrary to the Constitution”. 207

If the person subject to trial has the initiative, it is not him, however, who triggers the action since he can only access the constitutional jurisdiction directly by means of an appeal against infringements of fundamental rights.

The constitutional laws that may be invoked by the citizen are all the rights and principles contained in the Constitution.

Once the Constitutional Court is addressed with the prejudicial question, the process before the judges of the core of matter continues up to the phase of judgment. From this phase on, the procedure is suspended until the Constitutional Court makes a ruling on the prejudicial question.

When the admissibility of the action is declared, the magistrate-reporter takes a ruling of the communication of the decision to the President of the organ, which dictated the law in dispute, so he can expose his arguments within fifteen days.

The parties present at the judiciary process may appear as stakeholders, but need to be represented by a lawyer. They benefit from the same time lapses as the other parties to produce pieces or elements of evidence to support their arguments.

Once the procedure is finished, the Constitutional Court must make a ruling within fifteen days after the day of the presentation of conclusions by the parties and, in any case, with a maximum delay of two months starting from the date of the acceptance of the appeal.

The decision of the Constitutional Court that has the authority of a ruled- upon case, is considered binding for the public authorities and private citizens. The judiciary organs must thus comply therewith. Principality of Andorra

Constitutional Court of the The decisions that declare the compliance of the legal complied-with Pierre Subra de Bieusses disposition with the Constitution, before the Constitutional Court, prevent any subsequent questioning of the same rules by means of alleging a violation against the same constitutional prescriptions.

The decisions that declare the conformity with the total or partial conformity with the Constitution and the complied-with laws are enacted at the date of publication in the Official Bulletin of the Principality of Andorra.

For an illustrations of the eventually beneficial consequences for the

208 persons subject to trial, of the decisions that result in the non-compliance with the Constitution, one can, among other examples, point out a ruling of September the 7th, 2010 (Aff 2010-1-2-3-4 PL). In response to four incidental questionings of non-constitutionality submitted by the Court of Courts, in respect to the conformity with the Constitution and with the European Convention of Human Rights, of the dispositions of the criminal procedures code that only allowed to assign a lawyer after 24 hours of custody, the Constitutional Court declared them contrary to the Constitution and, by doing so, invalid. As a consequence, as soon as the Official Bulletin was published, this decision was enforced directly to the people involved in the process that was the origin of the four incidental actions of invalidity. Thus they immediately benefited.

Additionally, for any person subject to administrative decisions based on a disposition declared non-constitutional, it is immediately possible to address the Constitutional Court with an appeal against infringements of fundamental rights, grounded on this decision. The Spanish system of jurisdictional protection of fundamental rights: the role of the Constitutional Tribunal

Pascual Sala Sánchez

President of the Constitutional Court of Spain

Historical and general aspects

A Constitution has the purpose of establishing the basic framework for coexistence and must comply with the difficult task of resolving through the reasons of the Law, the conflicts that are born within the political community. In order to prevent constitutional mandates from becoming mere formal declarations without any real substance, our Constitutions have created Constitutional Tribunals for the purpose of ensuring the effective enforcement of constitutional standards in the actual application of legal systems. The main challenge of every Constitutional Tribunal is precisely to rationalize problems of a political origin, in order to solve them in legal terms. Through legal reasoning, an interpretation of the Constitution is sought, as well as to promote the essential values of every democratic society, such as freedom, justice, equality or political pluralism; Constitutional Tribunals are aware that technical reason alone cannot be applied when devoid of substantive value, since Law is not a neutral form, but rather the rational structure of the freedom attained by a certain community at a certain point in its history.

In the 1920s, in accordance with the theoretical control model of concentrated constitutionality designed by Hans Kelsen, the priority was to ensure the Constitution was respected by political institutions, especially the legislating entity and also to ensure that the Constitution ruled effectively the practical application of Law, i.e., when resolving social conflicts. Nonetheless, towards 1950 the German and Italian Constitutional Tribunals 209 were established, as the very first of their type of all that exist in Europe nowadays; to the challenge of submitting the Legislature to the control of a specialized tribunal, a further challenge has been added: to ensure respect of human rights. The terrible experience of Nazism and World War II led to the proclamation of the rights every human being is entitled to, as expressed through the 1948 Universal Declaration, through the European Convention that was signed in Rome in 1950, and in post-war Constitutions.

Pascual Sala Sánchez Once again, a jurisdictional mechanism is trusted in order to ensure Constitutional Court of Spain compliance in everyday life: all justice courts must comply and ensure compliance of rights and liberties; but the ultimate guarantee is entrusted to Constitutional Tribunals and, in the European plane, to a European Court of Human Rights, which was created by the aforementioned 1950 Rome Convention.

In the case of Spain, once democracy was re-established after the long dictatorship of General Franco, the 1978 Constitution entrusted its guarantee to a Constitutional Tribunal. The current Spanish Tribunal has

210 the Constitutional Guarantees Tribunal as precedent; this was established during the Second Spanish Republic by the 1931 Constitution and uses the Austrian and German concentrated and specialized Justice model. Indeed, the Spanish Constitutional Tribunal is the supreme interpreter of the Constitution, specifically charged with defending the Constitution’s legal dimension through jurisdictional methods. Unique and having jurisdiction throughout the national territory, it exercises the competences defined in article 161 of the Constitution. The Constitutional Tribunal is independent from the other constitutional entities —it is not a part of the Judiciary Branch— and is directly and acknowledges no other authority outside of the Constitution and its Organic Law.

The current Spanish system of constitutional justice is characterized by an inter-connection of constitutional and ordinary jurisdictions, since ordinary jurisdiction is also in charge of enforcing the Constitution by, among other means, interpreting the Law as per the terms of the Constitution; the constitutional jurisdiction is charged with examining the laws that are submitted to judgment or those that are applicable to the infra-legal acts and standards it is set up for controlling, so as to determine in each case what the constitutionally correct interpretation of the law is. In summary, the task of interpreting the Constitution and the constitutionality of laws are shared by the Constitutional Tribunal and by ordinary jurisdiction. Therefore, the Tribunal is not the sole interpreter in connection with that task, although it is the supreme entity for that purpose, as established by the system and also by the Constitution itself and by the Organic Law of the very Constitutional Tribunal. The authority of the Spanish Constitutional Tribunal is related to the

Constitution’s article 161 and are developed in article 2.1 of the 1979 Constitution’s Organic Law (thereafter reformed). It is an open listing, which expressly provides the Tribunal authority over any and all matters assigned to it by the Constitution or by organic laws. Its authority may be grouped in three categories:

▪ Constitutionality control of all standards having the rank of law, role of the Constitutional Tribunal

using for that purpose the recourse and question of unconstitutionality; protection of fundamental rights: the ▪ The resolution of constitutional conflicts of a territorial nature, such The Spanish system of jurisdictional as establishing the authority of State and of Autonomous Communities or those brought for the defense of local autonomy by municipalities and provinces; also, conflicts of attribution between the State’s constitutional entities; ▪ Constitutional Amparo for the defense of fundamental liberties and rights.

The Constitutional Tribunal of Spain has issued some of its most significant 211 judgements in connection with fundamental rights and public liberties by resolving several unconstitutionality recourses, direct and abstract contests against laws (by the Government’s President, the government or parliamentary entity of one of the Autonomous Communities, the People’s Defendant and by political opposition —at least fifty representatives or senators of a total of 350 in Congress and 264 in the Senate). For example, concerning strikes;1 concerning education;2 or concerning constitutional guarantees during criminal procedures, in which the right to be assisted by a lawyer, the impartiality of judges or the presumption of innocence have led to a deep reformation of the criminal justice system.3

The Constitutional Tribunal may also issue verdicts in connection with rights and liberties through the constitutionality question, which may be brought up by any jurisdictional entity that, in the case of a process brought up before it, considers that the law applicable to the case upon the validity of which the verdict would depend, might be contrary to the Constitution. Using this pre-legal and incidental mechanism, by judging a broad spectrum of laws ruling over real-life cases, the Constitutional Tribunal’s control is brought to bear not on the abstract text of one law, but on a “live” legal text that has been interpreted by courts and which is the source of rights and

1 (April 8th’s STC 11/1981). 2 (February 13th’s SSTC 5/1981, and June 27th’s 77/1985). 3 (July 28th’s SSTC 31/1981, July 12th’s 145/1988, April 5th’s 49/1999, or September 16th’s 162/2002). obligations of concrete people: for the parties in the litigation where the question is raised, in the first place, but also for the hundreds or thousands of individuals under the questioned standard. For example, the legislation that contemplates severe punishments for gender violence.4

Nonetheless, in connection with the protection of liberties and rights, the amparo recourse in the case of violations of fundamental liberties and

Pascual Sala Sánchez rights referred to by the Constitution’s article 53.2 must be singled out Constitutional Court of Spain among the fields of authority of the Constitutional Tribunal, a recourse that will be expounded upon hereinafter.

Fundamental rights in the Spanish Constitution: nature and guarantees

The 1978 Spanish Constitution includes a broad declaration of rights and establishes also a complex system of guarantees, aligning itself with post- 212 World War II Constitutions and basing itself on the premise that any right is legally worth as much as its guarantees. Guaranteeing rights and liberties is an essential component of authentically democratic States, together with the Rule of Law, the principle of popular sovereignty or the separation of branches of government. Any attack upon those rights is an attack against the Constitution and therefore reinforcing the Constitution’s protection in this sense is also a reinforcement of the democratic State. The “constitutional jurisdiction of liberty” thus comes to fruition in a special instrument guaranteeing the effective respect of individual rights and liberties through their guardianship or protection before public authorities.

The first Title of the 1978 Spanish Constitution is indeed about liberties and rights, lending a stamp that is strongly geared towards guarantees to the whole of the Fundamental Norm. Section 1 of article 10 proclaims that “the dignity of individuals, of the inviolable rights inherent to them, the free development of personality, respect for the law and for the rights of others, are the basis of political order and social peace”. This article is the key stone and departure point of all the system of rights and liberties acknowledged in the Constitution.

The double dimension that characterizes the fundamental rights acknowledged in the Constitution must be underlined. Objectively, they play a legitimizing role for all the legal-political system, since they are the

4 (May 14th’s SSTC 59/2008, and February 19th’s 45/2009). basis of all legal order and of the Constitution itself. These rights reflect values and are configurating elements, given their integrating and transforming nature with regards to the positive legal order of the national community, and provide the basic contents of the framework for a just and peaceful coexistence that is the basis for the Rule of Law in a democratic and social State.

Also, from a subjective perspective, they establish direct links for both individuals and institutions as they provide the heads of said institutions role of the Constitutional Tribunal protection of fundamental rights: the with a set of powers that are legally applicable. These are subjective rights The Spanish system of jurisdictional for the protection of individuals before the State and also positive duties for the State: the general duty of public powers to provide protection, which includes a negative obligation to abstain from acting in a way that injures fundamental rights; and a positive obligation to contribute to said rights’ effectiveness through protection and public acts that allow their fullest possible development.

For the purpose of guaranteeing the effectiveness of fundamental liberties 213 and rights acknowledged in the constitutional text, guaranteeing legal mechanisms have been established in the Fundamental Standard, which have been articulated in a three-level protection system. In accordance with the greater or lesser intensity of the constitutionally established legal guarantees (article 53), the following triple classification of rights and liberties may be made:

1. The “fundamental rights and public liberties” acknowledged in the First Section of the Second Chapter of Title 1 (articles 14 to 29 and, with a unique regime, the conscience objection to article 30), which enjoy the greatest jurisdictional and constitutional protection. 2. The other “rights and liberties” acknowledged in the 2nd. Section of the Second Chapter of Title I (articles 30 to 38). 3. The “governing principles of social and economic policy” contemplated in Chapter Three of the same Title (articles 39 to 52).

Under the heading “Of fundamental rights and public liberties”, the Spanish Constitution acknowledges rights such as the right to life, to liberty or honor. These are the fundamental rights of the most classical liberalism, the essential rights of individuals which, given their status, enjoy the maximum level or legal protection. Therefore, in order to guarantee this highest level of protection, aside from the measures provided for in connection with all the rights contemplated in the Second Chapter —which are hereinafter listed—, the specific measure ofamparo is contemplated in its two tiers: legal and constitutional. What is established in section 1 of Article 53 applies to the rights included in the two Sections of the Second Chapter: which “link all public powers” which “only by law that must in every case respect its essential content may the exercise of said rights and liberties be regulated” and which may be guarded “in accordance to the provisions of article 161.1 a)”. This means, for both categories of rights —the rights acknowledged in the Constitution’s articles 14 to 13— a triple guarantee: Pascual Sala Sánchez Constitutional Court of Spain ▪ Immediate efficacy of rights: link public powers and can be directly invoked before Justice Courts without the need for any other standard developing them. In case such a development occurs, their “essential content” operates —as is hereinafter explained— as an authentic limit to the Legislature. ▪ Principle of reserve of law for developing and regulating the exercise of these rights and liberties. A law which, as per the provisions of the Constitution’s article 81, must be organic —must be approved by absolute majority— for the development of fundamental rights and st 214 public liberties (those acknowledged in the 1 . Section), which enjoy the fullest possible protection. ▪ Guardianship of its essential contents through the constitutionality control of development laws. Beside the obvious caution that any law may be brought under judgment to determine its constitutionality before the High Tribunal, legislation of the development of rights and liberties will have to be respectful, in every case, of their essential content, “that part of a right’s content without which it loses its peculiarity, (…) that part of its content that is unavoidably necessary for the right to enable its beneficiary to satisfy those interests for the attainment of which the right is granted”, as per Judgment 11/1981 of the Constitutional Tribunal. This is the reason why the essential content of a right is violated “when the right is submitted to limitations which prevent or make its exercise more difficult than is reasonable or remove the necessary protection granted to it”.

Under the heading “Of the governing principles of social and economic policy” (Third Chapter of Title I) very different precepts are included, from authentic social rights —such as the right to health or housing— to general interest ones —the equitable distribution of income, social and economic progress—, to true mandates for the Legislature —such as punishments for damaging the historical, cultural and artistic legacy of Spain’s peoples—. Article 53 says about all of them, without distinction, that they “will inform positive legislation, legal practice and the acting of public powers” and that “they may only be argued before ordinary jurisdiction in accordance to the provisions of the laws developing them”. It is therefore clear that this Third Chapter does not regard authentic rights: rather, these are tenets that have an orienting function for the actions of public powers, especially the Legislative and Executive branches of government, even though judiciary practice is also cited. They are not immediate application standards, either, nor are they standards the “rights” of which have an immediate origin in the Constitution, since they require legislative development in order for them to be argued before ordinary Courts. Of themselves, they do not have access to the Constitutional role of the Constitutional Tribunal

Tribunal, even though they are protected by the general principle of protection of fundamental rights: the constitutional rigidity and by the co-related possibility of questioning the The Spanish system of jurisdictional unconstitutionality of a legal standard that may damage them.

Judiciary and constitutional amparo

The guaranty to liberties and rights of individuals is guarded, first and foremost, by the Judiciary Branch’s Judges and Courts, through the paths and remedial actions offered by procedural laws. As a second-tier option, whenever ordinary courts and judges may have not remedied the damage 215 to the fundamental right being denounced, there is the Constitutional Tribunal. The Constitution has granted it the power to hear an extraordinary, exceptional, ultimate or subsidiary process, addressed to guaranteeing everyone the exercise of fundamental rights and public liberties, thus reinforcing ordinary jurisdictional mechanisms.

Through this procedural path, although not solely by it, the Tribunal has exercised its duty of supervising the Legislative Branch of government in connection with its acts that are not Laws, as well as of supervising the Executive and Judiciary Branches. Thus, using this path, the Tribunal has constitutionalized public and political life, but also social and private life, extending the defense and protection of fundamental rights to the relationships between private individuals, after having intervened in a public power, which generally is the judiciary one. Indeed, constitutional amparo has proved to be a very valuable tool for identifying the scope of the contents of fundamental rights, especially in the first years of constitutional jurisprudence, thus contributing to adapt the jurisprudence of ordinary Judges and Courts to constitutional tenets and values.

As per section 2 of the Constitution’s 53rd. article, any citizen may seek the preservation of his/her fundamental rights and public liberties —those that are acknowledged in article 14 and in the 1st. Section of the Constitution’s Second Chapter, aside from the conscience objection acknowledged in article 30— before the ordinary Courts through a procedure based upon the principle of preference and summary nature and, if necessary, through resorting to amparo before the Constitutional Tribunal. The jurisdictional protection of individual rights is therefore also the responsibility of ordinary courts: in order for amparo to become available, all previous jurisdictional paths must be exhausted first, which means “constitutional amparo” is a real resort against judiciary resolutions before the supreme authority in connection with constitutional guarantees.

Pascual Sala Sánchez To conclude, the defense of fundamental rights and public liberties within Constitutional Court of Spain the Spanish legal order can only be made by adding parties defended by Judiciary amparo and those defended by Constitutional amparo, since it is a system where both jurisdictions are interconnected and share the task of interpreting the Constitution and the constitutionality of the Law. The influence of the Constitutional Tribunal, which is the supreme interpreter, albeit not the only one, in connection with the defense of public liberties has grown through its jurisprudence, as is expected of a system strongly geared towards guarantees, in which the right to an effective judiciary preservation and the constitutional guarantees to due process acknowledged

216 by the Constitution’s article 24 also play a key role.

Thus, the Tribunal is configured as a supreme jurisdictional entity in connection with constitutional guarantees and, therefore, as the ultimate guarantor of the fundamental rights and liberties acknowledged in the Constitution.

Judiciary amparo

The preservation of fundamental rights and public liberties before ordinary Courts is ordained through a special and preferential procedure of summary nature, as prescribed by article 53.2. In the words of the Constitutional Tribunal itself, in its Judgment 81/1992, “preference implies absolute priority of the standards regulating functional authority over affairs; in connection with its summary nature, as the doctrine has made clear, its technical sense cannot be resorted to (since jurisdictional protection processes are special and not of a summary nature), but rather to its common meaning, which refers to speed”.

This special procedure was regulated in an early fashion, immediately after the Constitution has been approved, through Act 62/1978, dated December 26, for the jurisdictional protection of individual fundamental rights. Said Act identified three paths for the protection of fundamental rights: criminal, civil and administrative, all of them featuring common characteristics, such as shortening of times for resolution, elimination of filings and a reduction in the number of requirements. This special procedure has been since reformed and it is currently regulated by Act 1/2000 of January 7 with regards to the civil guarantee; by Act 29/1998 of July 13 in the realm of Administrative Jurisdiction, with regards to the administrative guarantee; and by Act 38/2002 of October 24 with regards to the criminal guarantee, which partially reforms the Criminal Indictment Act. To the above, the guarantees contemplated in Labor Procedural Law (Royal Legislative Decree 2/1997, dated April 7) must be added with regards to the rights of union liberty; the same goes for the role of the Constitutional Tribunal

5/1985 Organic Law of June 19 in the realm of the General Electoral Regime protection of fundamental rights: the regarding the right to vote; and for Organic Law 2/1989, dated April 13, The Spanish system of jurisdictional with regards to Military Procedure.

Constitutional amparo

Through the amparo recourse, the Constitutional Tribunal becomes the supreme guarantor of fundamental liberties and rights. This is a remedy that any person —regardless of whether such person is of Spanish or foreign nationality, is an individual or a legal entity— can resort to when there is 217 injury to any of the specially protected rights acknowledged by articles 14 to 30 of the Constitution by way of provisions, legal acts, omissions or simple actions of public authorities. This is a subsidiary recourse and thus requires exhaustion of all previous judiciary paths, with invocation of the right being infringed upon, in order for judiciary entities to have the opportunity of issuing a conclusion in connection with the alleged infringement.

In the words of the Constitutional Tribunal itself, in its Sentence 284/2000: “article 53.2 CE assigns the preservation of fundamental rights first to ordinary Courts (…), so the link between constitutional and ordinary jurisdictions must preserve the field that the Constitution reserves for the Judiciary Branch of government (…) Respect of the temporal priority in guardianship granted to ordinary Courts demands use of the possibilities that procedural paths offer through the judiciary option for the reparation of the fundamental right that is deemed injured (…) this demand, far from being an empty formality, is an essential element for respecting the subsidiary nature of the amparo recourse and, lastly, for guaranteeing the correct articulation between this Tribunal and the entities that are part of the Judiciary Branch, who are the first instance for reparation of possible violations of the rights invoked by citizens, so the constitutional jurisdiction may only intervene once said reparation has been attempted and failed”.

The constitutional amparo review is regulated by Title III of Organic Law 2/1979 of the Constitutional Tribunal (articles 41 to 58) establishing the requirements to be met for resorting to it, the admissibility and filing procedure, the resolution of the recourse and its effects. Any of the two Chambers (made up by 6 magistrates each) of the Tribunal may receive the recourse and transfer it to the Sections (four of them, made up of 3 magistrates each). The full Tribunal deals with those that are transferred to it by the Chambers that may require changes in the doctrine, as well as those that it expressly agrees to take directly.

Pascual Sala Sánchez During the previous admission phase of the amparo suit, filing must be in Constitutional Court of Spain accordance with a series of procedural requirements established by articles 43, 44 and 49 of the Organic Law that must be satisfied for the suit to be admitted, allowing the Tribunal to resolve upon the matter thus presented. These procedural requirements have been modified by subsequent reforms, especially the 2007 one (Organic Law 6/2007, dated May 24th.). Aside from the new requirement for “special constitutional transcendence of the recourse” —the complexity and cardinal importance of which deserve a separate analysis—, the most relevant procedural demands have to do with the timing of filing of the suit; the correct exhaustion of the judiciary path; the clarity 218 and concision of the facts upon which the suit is based; and, finally, the previous jurisdictional formal ordinary invocation of the fundamental right or rights allegedly violated, thereby making possible the reparation of said alleged constitutional violation before appearing before the Constitutional Tribunal for the purpose of filing the recourse of amparo.

The new filing for admittance of the constitutional amparo recourse

The aforementioned reform of the Organic Law for the Constitutional Tribunal carried out by OL 6/2007 of May 24th was due to a hyperinflation of amparo suit filings, which seriously affected in a negative way the normal workings of the High Tribunal, to the detriment of the exercise of its other obligations, especially that of controlling the constitutionality of legislation. The reform has strengthened the nature of exceptionality, limited admissibility and subsidiary nature that must be a feature of the constitutional amparo jurisdiction; especially through the introduction of the acts annulment incident contemplated by article 241 of the Organic Law for the Judiciary Branch of government as the last phase of the previous path that must be preceptively exhausted before the ordinary jurisdiction before resorting to a constitutional amparo. Another important modification in this sense contemplates that amparo suits must justify the special transcendence of the recourse, configuring a sort of writ of certiorari that will make admission of the filing conditional, in a trend the doctrine has defined asan “objectivation” of the amparo process. This new admissibility requirement demands that any filings for constitutional amparo be justified by the need of a decision on substance by the Constitutional Tribunal, given its special constitutional transcendence, which will be appreciated because of its importance in interpreting the Constitution, in applying it or to ensure its general efficacy and for determining of the content and scope of fundamental rights (as established in new article 50.1.b of the Organic Law). This special transcendence, determined as a function of the aforementioned legal role of the Constitutional Tribunal

criteria, is different from reasoning the violation of the right to be protection of fundamental rights: the safeguarded through amparo which, firstly before ordinary Courts and The Spanish system of jurisdictional then before the Constitutional Tribunal, will have been denounced by the filer. Reasoning such violation continues to be the starting point, a necessary but insufficient requirement. This has led to a sort of objectivation of the amparo recourse, in spite of the fact that it continues to be an authentic subjective recourse for the safeguarding of fundamental rights.

Given the open and indeterminate character of the notion of “special constitutional transcendence”, the Constitutional Tribunal has sought to 219 specify the concept and scope of this new admissibility requirement, establishing in its Sentence 155/2009 a series of criteria for its appreciation. For example, concerning new constitutional questions lacking a constitutional doctrine; for clarifying or changing doctrine (due to new social realities, relevant changes in the standards or a new doctrine of the guaranteeing entities in charge of interpreting international treaties, etc.); when violation comes from the applied law or standard (the so-called “self-question” or internal unconstitutionality question); by way of non-compliance of the constitutional doctrine by ordinary jurisprudence; or by the general transcendence of the effects of the amparo beyond a specific case. In any case, it is an open list of criteria for appreciating special transcendence, due to the necessarily dynamic nature of exercising the constitutional jurisdiction.

The international dimension of fundamental rights in the Spanish Constitution

In line, once again, with post-war European constitutionalism, the Spanish constitutional system is open to cooperation and international integration processes and in connection with International Human Rights Law. Thus, the international dimension adopted by domestic political and legal structures is put in evidence, as well as the international dimension of fundamental rights themselves. In this sense, section 2 of the Spanish Constitution’s article 10 contemplates that “standards and rulings concerning fundamental rights and liberties which the Constitution acknowledges are to be interpreted in accordance with the Universal Declaration of Human Rights and with the international treaties and agreements concerning the same subject matter which may have been ratified by Spain”. Those international treaties Spain is a party to, as well as the standards that are part of the Spanish legal order —provided they have been validly executed and officially published— are therefore a mandatory interpretation criterion

Pascual Sala Sánchez for Spanish public authorities concerning rights and liberties. Constitutional Court of Spain

Among the international treaties alluded to by article 10.2, special consideration should be given to the European Convention on Human Rights executed in Rome on November 4, 1950; and the abundant and rich jurisprudence of the European Court for Human Rights should be among the interpretive parameters when applying and construing the Rome Agreement. Even though the sentences of the Court based in Strasbourg are merely declaratory in nature, their jurisprudence is a strong influence on the jurisprudence of Constitutional Tribunals regarding fundamental

220 rights. Other international treaties that are especially relevant in this sphere are the International Covenant for Civil and Political Rights and of Economic, Social and Cultural Rights of 1966, other conventions executed under the United Nations (such as the refugee statute, the statute against torture, the elimination of racial discrimination and of discrimination against women, children’s rights, the rights of the handicapped, etc.); or the European Social Charter of 1961. Applicability of article 10.2 is also posited in connection with the European Union’s Charter of Fundamental Rights and any interpretation thereof that the Court of Justice of the EU may make.

In conclusion, by virtue of the legal hermeneutics clause in article 10.2, those international standards that may determine the contents of the constitutional and legal standards for all the rights and liberties contained in Title I of our Constitution are invoked, regardless of their systematic location in the aforementioned Title and, therefore, their guarantee level. International standards that may be employed as a reference by the jurisprudence, both of ordinary courts and by the Constitutional Tribunal when safeguarding these rights. Indeed, the aforementioned clause is applied frequently by Spanish courts for the purpose of interpreting and giving content to fundamental rights, just as they are formulated in the internal ordering. Thus, the European system of human rights is, at its turn, an ultimate guarantor of fundamental rights, by way of the Strasbourg Court’s provision of an elaborate doctrine that is used as a basic interpretation instrument for approaching the general and specific scope of said rights. Nevertheless, it is necessary to clarify that the interpretive clause of article

10.2 gives no constitutional standing to the rights and liberties proclaimed in international treaties unless they are specifically acknowledged by our Constitution. The Constitutional Tribunal has set limits to the value of this stipulation in its Judgment 36/1991, where it declares “this standard is limited to establishing a connection between our own system of fundamental rights and liberties, on the one hand, and International treaties and others on the same matters that Spain is a party to, on the other hand. It does not role of the Constitutional Tribunal

give a constitutional rank to internationally proclaimed rights and liberties protection of fundamental rights: the when these are not also specifically enshrined in our own Constitution, The Spanish system of jurisdictional even though it mandates interpretation of the corresponding precepts of said Constitution in accordance with the contents of said Treaties so that, in practice, this content becomes, in a certain way, the constitutionally declared content on rights and liberties contemplated by the second chapter of Title I of our Constitution”.

Thus, in the words of the Constitutional Tribunal (in Judgment such as

64/1991, 372/1993, 41/2002 or 236/2007) “even though international 221 texts and treaties contemplated by article 10.2 are an interpretive source that contributes to a better identification of the contents of rights the guardianship of which is requested from this Constitutional Tribunal, the interpretation alluded to by the aforementioned article 10.2 of the constitutional text does not make them an autonomous canon for the validity of standards and acts of public authorities from the perspective of fundamental rights; that is, it does not make them an autonomous canon for determining constitutionality. If this were so, the constitutional proclamation of said rights would not be necessary, making it sufficient for the constitutional text to make a reference to international Human Rights treaties or, in general, to the treaties executed by the Spanish State regarding fundamental rights and public liberties”.

It must be pointed out that consent of the State to abide by the terms of treaties affecting fundamental rights and duties established in Title I shall require a previous authorization issued by the General Courts (the Parliament), as per the terms of article 94.1 c of the Constitution. Furthermore, it must be pointed out that, in accordance to the terms of article 95, execution of an international treaty containing stipulations that are contrary to the Constitution —as could be the acknowledgement by a treaty of a new right that is not consecrated by said Constitution— demands a previous constitutional revision; and the Government or any of the legislative organs may demand from the Constitutional Tribunal a declaration of the existence or non-existence of said contradiction, through a previous constitutionality verification. Finally, treaties referred to by article 10.2 must be officially published in Spain in order to be considered both by the internal legal ordering and for use concerning interpretation, as is established in article 96.1 of the Constitution.

Conclusion

Spain’s Constitutional Tribunal has been a key institution in the consolidation

Pascual Sala Sánchez of democracy, by guaranteeing and disseminating constitutional values and Constitutional Court of Spain by promoting their taking root both among society and inside Spanish institutions, thereby guaranteeing an adaptation of legal order to the Constitution and interpreting the latter as per international standards concerning human rights. The Tribunal’s doctrine has therefore constituted a powerful vehicle for impregnating the legal order with these values; and, through this constitutional interpretation work, it has guaranteed the Constitution’s supremacy over the Law and prevented the Constitution to be redefined through subordinated standards, something that has at times tempted legislators.

222 The Tribunal has assumed an unequivocal commitment to the defense of fundamental rights and public liberties, the guaranteeing of which is a primordial component of the European system of constitutional justice, configuring its essential content in a manner that is consistent withthe conception of Spain as a social and democratic State under the Rule of Law. National Report

Joaquim de Sousa Ribeiro1

President of the Portuguese Constitutional Court

“Human Rights” as “fundamental rights” in the Constitution of the Republic of Portugal

“Human rights” —as rights that have universal value and, as such, are recognized as belonging to all human beings under international law, regardless of the way they are enshrined in a given constitutional order— are also inscribed in the Constitution of the Portuguese Republic (hereinafter referred to as CPR) as “fundamental rights”, since they are affirmed and protected in said Constitution.

The CPR does in fact contain in part I —articles 12 to 79— a large catalogue of fundamental rights. These rights are systematically structured into two broad categories: that of “rights, freedoms and guarantees” and that of “economic, social and cultural rights.” The first category is sub-divided into “rights, freedoms and personal guarantees”, “rights, freedoms and political participation guarantees” and “rights, freedoms and guarantees of workers”.

Such an expanded affirmation and guarantee of fundamental rights in the CPR is not, however, a closed system of fundamental rights. Indeed, article 16, paragraph 1, stipulates that “The fundamental rights enshrined in this Constitution shall not exclude such other rights as may be laid down by law

1 Presented by the President of the Constitutional Court of Portugal, Justice Joaquim de Sousa Ribeiro, written in collaboration with his legal assistant, Judge Esperança Mealha. 223 and in the applicable rules of international law”. According to paragraph 2 of the same article, “The provisions of this Constitution and of laws concerning fundamental rights shall be interpreted and construed in accordance with the Universal Declaration of Human Rights.”

In terms of Portuguese constitutional order, those rights were conceived as attached to human condition and dignity by themselves. Such a conception ended up recognizing personal human dignity, the way it has been Joaquim de Sousa Ribeiro Portuguese Constitutional Court established at the art. 1 of the RPC: “Portugal is a sovereign Republic, based on the dignity of human person and the will of the people and committed to building a free, fair and solidary society”. Considering the dignity of human person as one of the founding elements of the Portuguese Republic, it exerts a matrix extension intended to enlighten the whole constitutional order, and bringing about the State, not only to stand for protection, but also for promotion. In those terms, economic and social rights are also based on this element.

224 “Respecting human rights” concerns a principle orienting Portugal activities on the field of international relationships, such as clearly established by art. 7 paragraph 1, of the PRC. In fact, supranational and universal approaches related with personal rights conceived as human rights appears as crossing over the whole system of fundamental rights, and exerting a particular meaning, by establishing, at art. 15, paragraph 1 of the PRC, the principle of assimilation applicable to foreigners or stateless persons living or remaining on Portuguese territory. In terms of this principle, being beneficiary of fundamental rights do not depend on Portuguese citizenship, other that specific exceptions of paragraph 2 of the same article. Assimilation implies, basically, economic and social rights; i.e., those for which the implementation means financial charges for the State.2

This supranational approach to human rights is clearly reflected in the protection foreigners enjoy against dangers confronting them in their home States. Thus, extradition is not allowed for crimes that are punishable, according to the applicant State’s law, “by death or by any other sentence that results in irreversible damage to a person’s physical integrity” (article 33, paragraph 6, of the CPR). Extradition punishable by a penalty or security measure depriving of freedom for life or for an undefined period is allowed only under certain conditions, including that the Requiring State “offer

2 Cfr. Jorge Miranda/Rui Medeiros, Constituição Portuguesa Anotada, I, 2nd ed., 2010, 276. As after mentioned, constitutional provisions defined specific charges granted to immigrants. This kind of charges are determined at article 74 paragraph 2 section f), by imposing as an obligation to the State “the guarantee to immigrant’s sons to an appropriate aid corresponding to the right of public instruction”. guarantees that such a sentence or security measure will not be applied or executed” (article 33, paragraph 4). According to paragraph 8 of the same article, the Portuguese Constitution also guarantees a quite generous right of asylum to “foreigners and stateless persons who are the object, or are under grave threat, of persecution as a result of their activities in favor of democracy, social and national liberation, peace among peoples, freedom or rights of the human person”. (Emphasis added). National Report

The defense of the rights of foreigners, accordingly to article 33, has resulted in an abundant jurisprudence including the Rulings no. 417/95 and no. 1146/96—3 in the sense that extradition is not constitutionally permissible in cases where the application of the death penalty is legally possible, even if it is not predictable; on the other hand, it is admissible when the non- application of such a sentence is certain, because it is no longer legally possible. In this sense, it interpreted the expression “in accordance with the law of the requesting State” as an internally-binding law of that State, thus excluding the possibility that extradition could be granted based on a (even if binding in the international level) guarantee of substitution of the death 225 penalty.

This jurisprudence was applied, in Ruling no. 474/95, to a request for an extradition by the United States (the “Varizo” case) pertaining to a crime punishable by life imprisonment.

In the same jurisprudential line, Ruling no. 01/2001 did not rule unconstitutional, with general binding force, a rule allowing the extradition when the requesting State, by an irrevocable and binding act to its courts or other competent entities, has previously changed the death penalty or even another sentence which could result in irreversible damage to the integrity of the person; in addition, Ruling no. 384/2005, following a request for extradition submitted by the Indian Union, did not rule unconstitutional a provision of the “International Convention for the Suppression of terrorist bombings”, interpreted to mean that Portugal would be obliged to grant extradition for a crime abstractly punishable by the death penalty, but where the law of the requesting State results in the legal impossibility of implementing such a sentence, and for crimes abstractly liable to

3 Ruling no. 417/95 was motivated by a request for the extradition by the People’s Republic of China of a Chinese citizen held in Macau. Ruling no. 1146/96 declared unconstitutional, with general legally binding force, a provision in force in the territory of Macau that allowed extradition for crimes punishable, in the requesting State, by the death penalty, in exchange of the guarantee of its replacement even when this guarantee, according to the penal and criminal procedure law of the requesting State, was not legally binding for the respective courts. imprisonment for life, when there is reciprocity in the duty to extradite and that the requesting State has offered the internationally legal binding guarantee of the non-imposition of a prison sentence of more than 25 years.

The nature of the review of constitutionality. The access to constitutional jurisdiction Joaquim de Sousa Ribeiro Portuguese Constitutional Court In Portugal, the review of constitutionality by the Constitutional Court only aims juridical norms, since Portuguese law does not grant the possibility of a “constitutional challenge” or “appeal through an “amparo” (appeal in defense of one’s rights).4 The Constitutional Court looks at the violation of fundamental rights only in the context of the judicial review of the provisions whose content could affect those rights. This control can be abstract (preventive and successive) —and is of the exclusive competence of the Constitutional Court— or concrete. This one can be examined by any court, and an appeal to the Constitutional Court is possible, as this Court has the 226 final say on the issue of constitutionality.

The system includes four types of control: previous, abstract, concrete and preventing the omission of state organs. The first, second and fourth modalities are exclusively issued by the Constitutional Court. Certain public entities detain the attribution of submitting the review procedure (as for the previous control, only the President of the Republic would be authorized, and concerning regional legislative decrees, only representatives of the Republic upon autonomous regions would be able to do it: art. 278 paragraph 1 and 2 of the CPR). For everything else related with concrete control, the Portuguese model is rather dual, “diffuse at the bottom and concentrated at the top”: all courts are able to unapply rules infringing constitutional norms (art. 204 of the CPR), those decisions being also able to be submitted upon the jurisdiction of the Constitutional Court, intended to say the last word about those constitutional interpretation aspects.

Individuals could have access to the Constitutional court only while acting on terms of concrete control, through constitutionality trial introduced against judicial decisions produced by other courts relating constitutionality issues. Such a concrete control could be initiated essentially considering two types of cases: either while the inapplication of a rule should be justified

4 Rulings issued by courts or by administrative authorities are challenged before ordinary courts only. on its own unconstitutionality or those where a rule might be not applicable while being mentioned as unconstitutional all along the legal procedure.

The Constitutional Court and the legislator. Control of legislative omissions

The rules that enshrine human rights are at the forefront of the constitutional National Report parameters invoked by the Constitutional Court when it evaluates the conformity to the Constitution of the provisions of ordinary law.

Constitutional jurisprudence has been instrumental in the elaboration, implementation and consolidation of the catalogue of fundamental rights enshrined in the Constitution of the Portuguese Republic. Even in the case of a decision of non-unconstitutionality, the rationale for the decision can be an important contribution to the densification of the prescriptive content of a particular legal provision. The necessary balance of conflicting rights and interests, which are constitutionally recognized, leads to the jurisprudential establishment of the “framework of effective warranty” of the rights 227 enshrined prima facie in the constitutional text. Moreover, in view of the tendency of the courts to follow closely this jurisprudence, even in cases not pertaining directly to article 80, paragraph 3, the Court has made a decisive contribution to the implementation, in judicial practice, of a strong “culture of constitutionality”.

During this review, the Portuguese Constitutional Court acts as a “negative legislator”, meaning that a unconstitutionality verdict nullifies the law being challenged —with general binding force, in the case of the abstract control; and in the controversial issue at hand when it’s a concrete control.

When applying the abstract review, the Constitutional Court plays a “nullifying” role over the unconstitutional provisions: the declaration of unconstitutionality of a provision removes it from the legal order, and, as a consequence of this, in principle; it restores the revoked provisions when the law that revoked them has been declared unconstitutional. However, the Constitutional Court cannot take the place of the Assembly of the Republic or the Government in writing legislation to replace those that have been declared unconstitutional. The Court refrains even of any hint or recommendation to the legislature, although it may encourage it to seek an approach in a specific direction.

A ruling of unconstitutionality does not always produce ex tunc effects, that is, from the moment of the unconstitutional standard’s entry into force. The CPR gives the Constitutional Court the option, for reasons of legal certainty, fairness or an especially important public interest, to attribute another time frame to the decision in question (cf. article 282, paragraph 4, of the CPR). The Court has used this option quite often, usually to determine simple ex nunc effects, that is, from now on, thus excluding all effects (and not only those that would necessarily be excluded because of previous cases) already produced up to the publication of the declaration of unconstitutionality on the official journal (Diário da República). In some decisions, the Court

Joaquim de Sousa Ribeiro admitted implicitly that certain legal and/or de facto effects of the provisions Portuguese Constitutional Court in question could remain in force after the declaration of unconstitutionality, as was recently the case with Ruling no. 353/2012 of July 5, 2012, that declared the unconstitutionality with general binding force, based on violations of the principle of equality, of certain provisions of the 2012 State Budget which suspended payment of holiday and Christmas bonuses to civil servants. The Court determined that the effects of this ruling would not be applied to the fiscal year in progress, i.e., for the year 2012.

228 As for the preventive review, one must point out that even if the Assembly of the Republic is able to confirm, by a qualified majority, the law that was ruled unconstitutional (cf. article 279, paragraph 2, of the CPR), it has so far never done so, rather it has always rewritten or amended the legislation struck by an unconstitutionality ruling.

Although it may be appropriate to qualify the Constitutional Court as a “negative legislator”, it must however be recognized that constitutional jurisprudence often has a “positive” effect on legislation, as it has often inspired new decisions and the rationale for later legislation.

As an example there’s Decree-Law no. 64-A/89, dated February 27th, 1989, which adopted the legal framework for termination of individual employment contracts, which in its preamble mentions the ‘tags’ imposed by the Constitutional Court’s Ruling no. 107/88, which had examined the constitutionality of several provisions of the Decree of the Assembly of the Republic that had authorized the Government to legislate on this issue.

Another example is Ruling no. 23/2006 that confirmed the earlier jurisprudence of Ruling no. 486/2004, and declared unconstitutional with general binding force, a provision of the Civil Code, which mandated a maximum two-year period, starting from the majority of the person concerned, for the right to investigate a possible paternity. Following this decision of unconstitutionality, the legislature changed the provision in question, increasing it to ten years. In another case, the interpretation of the Constitutional Court (recorded, inter alia, in Ruling no. 474/95 cited below) of the constitutional provisions relating to the conditions for Portugal to grant extradition for offences punishable by death or life imprisonment, would have resulted in Portugal adding an additional reserve to the Convention on extradition between the Member States of the European Union (Dublin Convention).5 National Report The most remarkable examples of the “silent” dialogue between the Constitutional Court and Parliament are possibly those relating to the Court’s review of legislative omissions (article 283 of the CPR). Even if the decision declaring an unconstitutionality by omission is not binding with respect to the legislature but has only a declaratory effect, it turns out that to simply begin a process of review of the constitutionality of omission is often enough to encourage the legislature to correct the omission. Indeed, in four of the seven cases that have, so far, launched an application for review of the constitutionality of omission, the simple expectation of a Constitutional Court ruling has led the legislature to adopt the necessary legislative measures: Ruling no. 182/89 led to Law no. 10/91 (law on personal data 229 protection against cyber-crimes); and Ruling no. 474/2002 pushed the legislature, after several failed attempts, to adopt the missing measure, in Law no. 11/2008, which dealt, among other things, with unemployment insurance for government workers.

In some rare cases, in the application of the principle of equality, it can be said that the unconstitutionality ruling (“negative”) has (‘positive’) additive effects, extending the most favorable regime to the category of people that had been subjected to unequal or discriminatory treatment.

This is the case of Ruling no. 449/87 which, on the issue of a concrete review, held as unconstitutional, based on the violation of the principle of equality, a provision that granted higher pensions to widows than to widowers whose spouses had died in job accidents. The rationale for this decision stressed that “there is a violation of the principle of equality when a class of citizens is given the right to certain benefits, or benefits are not granted to another class (or because they are granted in a greater degree to the first class), this violation can be overcome, in a simple logical or factual approach, by throwing out or eliminating the least favorable regulation (or even both, and their replacement by another)”. That provision was later declared unconstitutional, with general binding force, in Ruling no. 191/88.

5 On this issue and on questions raised, following the Varizo (Ruling no. 474/95) case, as to the question of if the Portugal would be willing to apply the Convention implementing the Schengen Agreement, cf. Decision no. 1/2001. In that case, however the Constitutional Court ruled that it did not have the power to review the part of the request which requested that, based on the unconstitutionality ruling, the provision be given the interpretation of “rendering applicable to widowers the more favorable regime prescribed for widows.”

This is also the case of Ruling no. 359/91, which declared unconstitutional

Joaquim de Sousa Ribeiro with general binding force, based on the violation of the prohibition of Portuguese Constitutional Court discrimination of children born out of wedlock, a certain interpretation, in a ruling by the Supreme Court of Justice, that would not apply to de facto unions, even if minors were born, the provision of the Civil Code which permitted, in keeping with the children’s best interest, in case of divorce, the right of the residential lease to be transferred to the non-tenant spouse. The Constitutional Court ruled, inter alia, that the “children’s best interest” in the assignment of the lease rights mentioned in said provision of the Civil Code, when taken as an appropriate criterion for the assignment of that

230 right, should be respected, either in the case of children born of a marriage or in the case of children born in de facto unions.

It should be noted that, according to the principle of the interpretation of laws in keeping with the Constitution, when a law’s wording admits more than one interpretative meaning, the one leading to a result in keeping with the Constitution must prevail. Under the concrete review procedure, the Constitutional Court may, pursuant to article 80, paragraph 3, of the Law of the Constitutional Court, make “interpretative judgments”, by recommending to the court that a particular provision be interpreted and applied, in the case under review, in a sense that defines it as being consistent with the Constitution (cf., among others, Rulings no. 163/1995, 35-2008 and 2009-491). Even if the interpretation given in the Constitutional Court’s ruling has a legally binding force only in the case that gave rise to the constitutionality challenge, there is a tendency of the other courts to replicate, in similar cases, the interpretation of a provision, as set out by the Constitutional Court for a given case. When this happens, the Court’s interpretation acquires a scope beyond the specific case, to the point of almost replacing the provision’s text as adopted by the legislature.

This power to interpret ordinary laws has been used sparingly by the Constitutional Court and has sometimes been the object of criticism by some, who increasingly question the possibility for the Constitutional Court to hand down mandatory interpretations of ordinary laws, thus interfering with the interpretive powers of other jurisdictions. Economic and social rights in the Portuguese Constitution. Their justiciability

In the CPR, the “constitutionally imposed tasks” of giving legal protection to the social and economic goods do not derive from simple programmatic rules, general principles or organizational standards: rather, they are the result of rules ensuring subjective legal approaches, and since these are National Report fundamental rights, they commit the authorities to a specific practice aimed at preserving the common good. Beyond a simple negative guarantee, these rights are the basis for claims to State benefits and give a concrete configuration to a social Rule of Law, subject to the necessary mediation of a legislative expression.

The group of economic, social and cultural rights established at the Constitution is extremely broad, building all together a very advanced and sophisticated block of rules, hardly compared to others constitutions. It provides workers’ rights (arts. 58 and 59), consumers (art. 60), the right to social insurance (art. 63), health (art. 64), housing and urban development 231 (art. 65), environment and quality of life (art. 66), family protection (art. 67) and fatherhood and motherhood (art. 68). Special protection is given to the most vulnerable categories, such as children (art. 69), including the “orphans, abandoned children or those who, in any form, are deprived of a normal family environment” (paragraph 2 of the same article), young people (art. 70) and citizens with disabilities (art. 71). The State undertakes to carry out “a national policy of prevention and treatment, readaptation and integration” of these citizens, as well as elderly people (art. 72). Moreover, the public social security system seeks, in general, to remedy situations that entail a lack of or reduction in means of subsistence or ability to work, including illness and old age, and when they are disabled, widowed or orphaned, as well as unemployment (article 63, paragraph 3, of the CPR).

Such rights are formulated following the typical regulatory organization of the rules of law that consecrate the fundamental rights when the right to a guaranteed juridical position is recognized (for example, in the case of a universal scope: “any person has the right to…”) Furthermore, the structure of the majority of such provisions includes a paragraph concerning the attribution of the State of specific responsibilities and of obligations with regard to its conduct to guarantee effectiveness of rights (for example, see paragraphs 2 of articles 58, 59, 63, 65, 66, 67 and 74, as also paragraph 3 of article 64).

In certain areas the CRP itself provides and imposes a specific organizational structure to be created and sustained by the State to guarantee that the benefits of social rights are actually granted. Such is so obviously the case of the provision that establishes a “unified and decentralized social security system” (article 63, paragraph 2) and an “universal and general national health service” [article 64, paragraph 2, paragraph a].

Within this context, one may not deny that economic, social and cultural rights enjoy the typical regulatory force of the fundamental rights, and might pose matters of constitutionality in regard to them and their scope. Joaquim de Sousa Ribeiro Portuguese Constitutional Court

It has often been the case, such that there are numerous rulings by the Constitutional Court over these rights. In most cases, such rulings relate to an abstract review of legislative measures that reduce levels of protection and effectiveness already achieved. Only in one case (ruling no. 474/202), the Court ruled over the failure to promulgate measures needed to grant effectiveness of a guarantee —the case involved granting an unemployment subsidy to civil service workers (and resolved that such omission was unconstitutional). 232

However, the “justiciability” of this category of rights authorizes differences between standards of control and levels of intensity in applying it, based on the scope of the right questioned and the kind of equivalent obligation of the State.6 In case of an obligation of respect by the State to which a negative right of non-interference by the public authority corresponds, the question arises as in the case of those which result from complying with the rights to freedom within the frame of the rights, liberties and guarantees of persons. In turn, when referring to an obligation for protection by the State that seeks to determine to what extent the insufficiency has been proscribed, the legislator has more freedom regarding the structure of the provisions, as in a general manner, the Constitutional Court cannot impose any form of specific protection, but simply a conduct that tends to achieve such result. What is at stake is not as in the case of proscription of excess of a given measure, but the conformity with the demand that “the constitutional right may altogether offer an efficient protection”.7

There are various rulings within these focuses and motives, as for example under Ruling no. 590/2004 over the revocation of credits to the young to acquire housing. The Court evaluated such legislative measure in the light

6 For a tripartition of the obligations of the State in obligations of respect, protection and promotion, also within the frame of social rights, see Jorge Novais, Direitos Sociais. Teoria juridica dos direitos sociais enquanto direitos fundamentais. Coimbra, 2010, p. 255. 7 See Canaris, Direitos fundamentais e direito privado, Portuguese translation by Ingo Scarlet and by P. Mota Pinto, Coimbra, 2003. of the provisions of article 70, paragraph c) of the CRP that grants special protection for the young to enjoy the right to housing. The Court ruled the measure unconstitutional on the grounds of other means of special protection for young people concerning lease agreements that continued in effect. According to that ruling, the elimination of a form of protection “only manifests a constitutionality problem when there do not subsist other measures for the same matter, as there could result a violation of a National Report constitutional determination, that under similar circumstances is equal to unconstitutionality by omission”.

The only case where this criterion might not be applied would be when a form of protection would have been fully determined under the Constitution. To control the constitutionality it would then suffice to immediately ascertain compliance of this specific regulation without analyzing whether the protection granted is sufficient because there exists a set of other regulations. Such is the case, for example, of the constitutional prohibition of labor among minors in a scholastic age established by the frame for protection of childhood (article 69, paragraph 3 CRP). 233

Nonetheless, the principal dimension and the most characteristic of social rights is its positive dimension of imposing specific benefitsfor the account of the State. Either through a regulatory density, normally less abundant in provisions that consecrate it, either because they imply financial acts subject to conditions, normally, within this level economic and social rights do not grant a guarantee to immediate individual access to the benefits that might be compared with the essential guarantees granted by the rights of freedom.

However, and referring to the same matter, it all definitely depends on the level of precision contained by the rule of law. In some not quite frequent cases the constitutional regulation goes beyond establishing a policy that focuses on promoting some social benefit and establishes a firm guarantee of access to certain benefits through the precise description of a conduct to which the authority is bound to achieve a certain result. In such case, there is no reason to change or mitigate the standards of control in regard to those that influence the guarantees of individual rights. Such a situation results, for example, in the case of article 74, paragraph a) which provides that, for the right to education to be effective, the State must “guarantee obligatory and free primary education”.

One must also take into consideration the general applicability, such as parameters of judicial appreciation of the constitutional principles, whether of those that conform the constitutional order altogether, or the general principles that govern the fundamental rights —all the fundamental rights, including social rights, and no longer simply rights, freedoms and guarantees. Among the first will be the essential principal of the dignity of the human person and the principles of trust and of proportionality, both as expressions of the principle of the democratic Rule of Law consecrated under article 2. Among the second is, above all, the principle of equality, as it was recorded in article 13 of the CRP. Joaquim de Sousa Ribeiro Portuguese Constitutional Court All those principles were often considered in decisions concerning the constitutional conformity of legislative provisions that negatively affected successful focuses of enjoyment of benefits derived from social rights. The moment when ruling over a possible violation of such principles, we ponder over the values that quite often do not defer much from what is realized within the frame of the analysis of the limitations imposed on another kind of fundamental rights.

Among the most important decisions within this scope is aforementioned 234 ruling no. 353/2012 whereby, within the right to receive remuneration for work, the unconstitutionality was pronounced with a general binding force because of violation of the principle of equality in regard to the principle of proportionality of some provisions of the 2012 budgetary law of the State that authorized to suspend paying for holiday or Christmas bonuses to employees of public entities and pensioners through retirement or seniority of the public social security system. In its ruling the Court considered it was obvious “that the differentiated treatment imposed on any person receiving remunerations or pensions through public provisions violates the principle of proscription of excess from the point of view of proportional equality”.

Such ruling —which had an enormous impact— was invoked to justify a significant turn in the policy of the government on applying the measures of budgetary consolidation imposed by the “memoranda of understanding” signed with the IMF and the European Commission.

The primary regulatory idea of the dignity of the human person also achieved a governing-genetic efficacy within the scope of social rights as an operational tool of the “revelation” of fundamental rights not explicitly enshrined.8 This is why constitutional jurisprudence concluded a “minimum right to a dignified existence”, beginning with ruling no. 232/91 which reaffirmed that “the unconditional respect for the dignity of the human

8 See for example and also in this matter, Ruling no. 130/88 that, based on the same idea, recognized the fundamental right “that a person may personally dispose of his cadaver”. person, above all, demands the guarantee of the minimum requirements to subsist”.

The first rulings recognized such right, the negative aspect was the matter debated: the fact that a person could not be deprived of his minimum requirements in order to live a dignified existence. Such was the specific case of a series of rulings related to the provision of the Civil Procedure National Report Code that authorized to withhold or attach against the third party income on account of salaries and pensions, regardless of the amount. In ruling no. 177/2002, the Court declared unconstitutional, with general binding force, the authorization to withhold or attach as much as one third of the monthly benefits paid as social benefit or pension for a total amount not in excess of the amount of the minimum national salary.

However, in ruling no. 509/2002, the Constitutional Court also recognized this right from a positive viewpoint, as a right to have access to benefits of the State which are considered essential to live a human life. On the other hand, the provision was declared unconstitutional, which intended to deny 235 young people between the ages of 18 and 25 the right to collect “social income of insertion” (formerly “minimum guaranteed income”).

Are conventions and international agreements on human rights: parts of a “constitutionality block”?

The expression “constitutionality block” reflects the possible plurality of the sources of parameters that might have a constitutional value, and the possible conformation of a widened and reinforced system of rules of control that might include not only the Constitution, but other regulatory elements of a constitutional scope.

Within the European ambit, above all, the question rises concerning the European Convention for Protection of Human Rights and Fundamental Liberties approved in Rome in 1950 and elevated to a constitutional level. Elevating such an international conventional right (or at least of some of its principles and rules) to a constitutional level grants it the efficacy of an autonomous and direct criterion of constitutional validity; thus, its contradiction by an internal rule of law will always be a “constitutional questioning”.

The question now is whether within the frame of the Portuguese Constitution one may affirm, by the fact of having recognized in the European Convention on Human Rights a formal constitutional status, that there exists a “constitutionality block”. The provisions mentioned under article 16, paragraph first of the CRP appear to point toward an affirmative answer to the question. We must recall that such article establishes: “the fundamental rights consecrated by the Constitution do not exclude any of the other rights derived from the laws and the applicable international rule of law”. For this authentic reason, “the open clause of fundamental rights”,9 “the fundamental rights external to the Constitution” are recognized, particularly as rights consecrated by the “legal international instruments on human rights and ratified by the Joaquim de Sousa Ribeiro Portuguese Constitutional Court Portuguese State”.10

Despite this privileged constitutional focus concerning international agreements on human rights, the Portuguese Constitutional Court “never took a step toward recognizing the ‘autonomous’ value of the European Convention on Human Rights as a parameter of evaluation of the constitutionality”. On the other hand, it is also true that “it has never expressly excluded this possibility”.11 Although it has often been requested in petitions for judicial review, in its rulings the Portuguese Constitutional 236 Court has never considered any provision of the Agreement or of a ruling by the European Human Rights Court that constituted a ratio decidendi.

The foregoing, because as stated above, the Portuguese Constitution exhaustively records a detailed compound of the fundamental rights. Therefore, one cannot easily identify vacuities that might have to be exclusively satiated based on “external”12 sources, much less when the original set of the fundamental rights was explicit and newly extended with the elevation to the constitutional level of new rights introduced by the constitutional reforms. In fact, the Convention and the Universal Declaration of Human Rights acted as privileged sources in formulating the fundamental rights of the Portuguese Constitution.

The explicit or implicit definition in the Portuguese Constitution of a wide spectrum of fundamental rights has prevented that the sources of conventional international law be mobilized as regulatory grounds of the

9 Jorge Miranda/Rui Medeiros, Op. cit., 290. 10 Gomes Conotilho/Vital Moreira, Constituição da República Portuguesa Anotada, I, 2nd edition, Coimbra, 2010, pp. 365-366. 11 « Rapport du Tribunal Constitutionnel de la République portugaise » in Les relations entre les Cours constitutionnelles et les autres jurisdictions nationales, y compris l’interférence en cette matière de l’action des jurisdictions européennes. II, Paris, 2002, pp. 565-595. 12 Jorge Miranda/Rui Medeiros (op. cit., 295) mention the rights concerning the penitentiary system (article 10 of the European Agreement) as also the right to know the language of the criminal procedure (article 6, paragraph 3, paragraphs a) and e); Gomes Canotilho/Vital Moreira (op. cit., 366) refer to interdiction of incarceration because of debt (Additional Protocol no. 4 of the Agreement, article 11, paragraph 1). fundamental rights not consigned in the Constitution, excepting from it, so as to say, a practical scope of the provision of article 16, paragraph first,in fine, of the CRP. The Court also rejected the “duplication” of parameters of the ruling, which remained very clear in the case of ruling no. 352/98, reading:

“In regard to the above, one must outline that although the European Convention on Human Rights must be interpreted to the effect that it be National Report directly applied to domestic rule of law, this must not cause us to forget that if the constitutional provisions on the fundamental rights already have, in all their fundamental aspects (…), the scope and the meaning consigned by such Convention, and if the latter adds nothing further to them, there is no real sense in resorting to the Convention”.

However, although the provisions of the Convention have not performed as autonomous parameter in rulings of constitutionality, the foregoing has not prevented that, within the framework of a connective relationship 237 with the Portuguese constitutional order, that belongs to a same “common constitutional European culture” inspired on a same “system of values”, they may often have been taken into consideration as “elements that help to explain the meaning and the scope” of the provisions related to the fundamental rights (the expression for which they are featured appears in ruling no. 223/95). To invoke a rule or a certain conventional principle, from an argumentative point of view, reinforces the grounds of the decision that already derives from the principles and interior constitutional rules.

An explicative development influenced by the Convention, of the scope of the rules of law already consecrated in the Portuguese Constitution was particularly clear in the frame of the guarantees of jurisdictional tutelage which led, inclusive, to introduce new regulatory declarations. In its article 20, the CRP consecrates the “access to law and to an effective jurisdictional defense”. Until the 1997 constitutional revision, this provision only contained two paragraphs, the first established the guarantee of “access to law and to the courts” in general, and the second recognized the “legal right to information and juridical consultation, as also legal defense”. Article 6 of the European Convention has a much more precise regulatory density as it designates in detail the requirements to provide substance and efficacy to the “right to a fair trial”. The 1997 constitutional revision lead to the inclusion, by obvious influence of the European provision, of several new paragraphs of article 20 of the CRP seeking to comply with the requirements contained in the material idea of a guarantee of a fair trial.13

Jurisprudence of the European Court of Human Rights has relevant resonances in the jurisprudence of the Constitutional Court. In a case (Feliciano Bichão v. Portugal; Case no. 40225/04), a decision by the European Court that was precisely based on article 6 of the Convention and concerning a ruling by the Portuguese Constitutional Court led it to change Joaquim de Sousa Ribeiro Portuguese Constitutional Court its previous practice. In such decision the European Court had censured the Portuguese State, and indirectly, the Portuguese Constitutional Court because the petitioner had not been notified of the opinion delivered by the Public Prosecutor. The focus defined by the European Court was adopted, and there was stronger demand for enforcement of the principle of contradiction by approving a procedure to notify the petitioners of the written reply by the Public Prosecutor assigned to the Constitutional Court in cases where new questions would be raised that might affect analysis of the matter subject of the appeal. 238

In the case of rulings no. 160/95 and no. 12/2005, the Constitutional Court was forced to face the problem of the obligation of the State to provide indemnity for deprivation of liberty in violation of the Constitution or the law (see article 27, paragraph 5, of the Constitution).14 Within the frame of the explanation of the scope and of the limits of the obligation for redress, the Court first affirmed that article 5, paragraph 5 of the ECHR “adds nothing further to provisions already contained in the Constitution [article 27, paragraph 5]”, by having ceased to analyze the possible non-conformity between the provision of the Constitution and the article of the ECHR as it had been so required. However, it did not fail to confront the provision of the Criminal Procedure Code, the unconstitutionality of which had been

13 Despite the role of “auxiliary source” of article 6, paragraph I of the Convention in the current formulation of article 20 of the CRP, constitutional jurisprudence often considered that in the light of such formulation, resorting to this conventional disposition was not justified within the frame of analysis of the constitutionality of a provision of ordinary legal rule. To this effect, see ruling no. 362/12 reading, with respect to the matter mentioned under ruling no. 632/99: “The provisions of article 6, paragraph 1 of this Convention, which establish the right that any person be heard within the reasonable periods in a fair and public trial before an independent and impartial court does not grant other rights or broader rights than those established by our Constitution, inclusive under its article 20; therefore, an analysis of the possible non-conformity between the internal rule of law and the provisions of the Convention is not justifiable”. 14 Ruling no. 160/95 deemed the provision was not unconstitutional of the Criminal Procedure Code that governs granting indemnity to any person under detention or preventive arrest when interpreted to the effect that it only applies to clearly illegal cases of provisional detention; ruling no. 12/2005 deemed that such provision was not unconstitutional in the means it submits granting indemnity for “preventive detention that, although it was not illegal, it was unjustified” because there existed some “gross error while examining the presumptions of the fact for which it was pronounced”. questioned, with the provisions of the ECHR and jurisprudence of the European Court of Human Rights, quoting several rulings by that Court on granting redress following deprivation of freedom.

In the case of rulings no. 121/97, 416/2003 (mentioned above) and 589/2006, regarding the compatibility between the right to defense and the confidentiality during the investigation —stage of the procedure protected National Report by confidentiality of the proceedings (article 86 of the Criminal Procedure Code)— the question was how to determine the scope of the defendant’s right to have access to the criminal file of his case as is required bythe Constitution. In such rulings, before analyzing the problem in the light of the Constitution, the Constitutional Court emphasized on the general criteria of jurisprudence of the European Court of Human Rights concerning Article 5, paragraph 4 of the ECHR, particularly the Lamy case, and further, the Lietzow v. Germany, Garcia Alva v. Germany and Schöps v. Germany cases, although it did not strictly abide by jurisprudence of the European Court. In fact, as emphasized in ruling no. 589/2006, in the light of criminal doctrine it is not possible to merely transpose the principle of equality of 239 weapons to rule in favor of a violation of Article 5, paragraph 4 of the ECHR because the Portuguese criminal procedure is not a procedure of parties, as procedural interventions by the Public Prosecutor are governed by strictly objective criteria.

Also at a criminal level, but now in regard to the constitutional situation of detainees, ruling no. 20/2012 established that a provision of the Code on the Enforcement of Criminal Sentences was unconstitutional if interpreted to the effect that prisoners could not appeal the administrative decision for detention under a maximum security regime. In fact, and continuing with the interpretation which it had of the extension of the protection guaranteed under Article 30, paragraph 5 of the Constitution, the Court invoked a ruling by the European Court of Human Rights over the case Stegarescu and Bahrin v. Portugal and the rules established under the European Penitentiary Rules (Recommendation (2006)2 by the Council of Europe).

The purpose of convergence with the jurisdiction by the European Court of Human Rights was clearly affirmed in ruling no. 345/99: “In view of the reasons invoked by the jurisdictional bodies of the European Convention on Human Rights and the clear historical disposition of the constitutional legislator to follow the course of European jurisprudence in development of the fundamental rights also established in the Convention and in the Constitution, it would be necessary to review jurisprudence prior to the 1997 constitutional revision”. What was questioned was the constitutionality of a rule of the law of procedures of the administrative courts which established the Public Prosecutor assigned to the Administrative Supreme Court or to the Administrative Court of Appeals “attends the hearings and is heard during the debates” while the appellant was denied that possibility. Under aforementioned ruling no. 412/2000, the Constitutional Court declared in favor of the unconstitutionality in the light of the principle of a “fair trial” consecrated by article 20 of the Portuguese Constitution. To such effect, it manifested such principle is a clear transposal of the “right to a fair trial” consecrated under article 6 of the ECHR. It also invoked jurisprudence of the European Court based on ruling over the Lobo Machado v. Portugal Joaquim de Sousa Ribeiro

Portuguese Constitutional Court case of February 20, 1996, which established that the right to a fair trial included the “right to adversarial proceedings”, which implies “the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision”.15 That rule of law was declared unconstitutional with general binding force16 under ruling no. 157/2001.

One must also emphasize that under Article 70, first paragraph, section i) of the Law of the Constitutional Court, provides for the right to appeal 240 against decisions by courts who “refuse to apply a provision contained in a legislative act, arguing it contradicts an international convention or that they are being applied in a manner contrary to a previous decision by the Constitutional Court over the same matter”. As established under article 71, paragraph 2 of the same law: “the appeal is limited to matters of a juridical- constitutional and juridical-international nature involved in the ruling being appealed”, which does not include the subject matter of the litigation, that is, the question to know whether the convention invoked was contradicted or not by some legal provision, as the competence with regard to this approach corresponds to ordinary courts. In the presumptions and within the established limits, the Constitutional Court is competent to assure itself in a specific case, that there exists a provision in international law, and determine its scope in internal law.17

Note: The rulings quoted may be consulted on the webpage of the Constitutional Court of Portugal (www.tribunalconstitucional.pt). Summaries in English are also available for a selection of relevant rulings (www.tribunalconstitucional.pt/tc/en/acordaos).

15 Ruling Lobo Machado v. Portugal, 02.20.1996, Recueil des arrêts et décisions 1996-I, p. 195 and subsequent, p. 206, § 31. 16 According to article 281, paragraph 3 of the CPR, “The Constitutional Court analyzes and declares with general binding force the unconstitutionality or illegality of any legal rule, as long as it is found unconstitutional or illegal in three specific cases”. 17 See Gomes Canotilho, Direito Constitucional e Teoria da Constituição, 5th edition, Coimbra, 2002, pp. 1030 and subsequent. Jean-Louis Debré’s speech

President of the Constitutional Council of the French Republic

Article 55 of the October 4th, 1958 French Constitution reads: “treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party”. Thus the French Constitution expressly asserts the primacy of international over domestic law.

On the one hand, the review of the conformity of legislation to the treaties, or “conventionality review”, is within the jurisdiction of the administrative and judicial courts. On the other hand, the review of the conformity of laws with the Constitution, or “constitutional review”, is the responsibility of the Constitutional Council. If these reviews are thus clearly separated (I), they are articulated and coherent (II).

The Constitutional Council, judge of the constitutionality of laws, does not judge the conventionality of the laws, which is the responsibility of the judicial and administrative courts

1. In its January 15th, 1975 decision on the Voluntary Interruption of Pregnancy Act, the Constitutional Council held that, notwithstanding the principle of the primacy of treaties over laws laid down by article 55 of the Constitution, it lacked jurisdiction to examine the conformity of the laws with France’s international commitments and in particular with the European Convention on Human Rights. “It is therefore not for the 241 Constitutional Council, when a referral is made to it under Article 61 of the Constitution, to consider the consistency of a statute with the provisions

of a treaty or an international agreement”. (Ruling No. 74-54 DC, January 15th, 1975).

This decision is based on two essential arguments: French Republic Jean-Louis Debré ▪ A legal argument, based on a strict interpretation of article 61 of Constitutional Council of the the Constitution: “Article 61 of the Constitution does not confer on the Constitutional Council a general or particular discretion identical with that of Parliament, but simply empowers it to rule on the constitutionality of statutes referred to it”. If the provisions of article 55 of the Constitution give the treaties a higher authority than that of the laws, ‘they neither prescribe nor imply that this compliance with principle must be ensured in the framework of a review of the conformity of statutes with the Constitution as provided by article 61’. 242 ▪ A practical argument: according to the Constitution, the Constitutional Council has a one-month period to render its decisions. It would be very difficult to examine within such a brief period the conformity of the legislation with the numerous international commitments undertaken by France.

2. In subsequent decisions, the Constitutional Council has made explicit what was only implicit in the 1975 decision: If the review of the superiority of treaties over laws cannot be carried out under the framework of the legislation’s constitutionality review, it must be done by the ordinary courts under the review of the Court of Cassation and the Council of State (Decision no. 86-216 DC of September 3rd, 1986; no. 89-268 DC December 29th, 1989).

The Court of Cassation exercises this review since a May 24th, 1975 decision (Chambre mixte, 24 mai 1975, Société des Cafés Jacques Vabre). The same is true for the Council of State since 1989 (Assemblée plénière, 20 octobre 1989, Nicolò).

To review the compliance of legislation with the treaties and in particular with the European Convention on Human Rights is now a daily task for the judicial and administrative jurisdictions.

3. The Constitutional Council holds on steadfastly to its VIP jurisprudence so in order not to review the conventionality of laws. It has however deduced from article 88-1 of the Constitution that “the transposing into domestic law of a Community Directive thus derives from a constitutional requirement” (Decision no. 2004-496 DC June 10th, 2004).

On the one hand, this case-law led the Council to rule that “it is not competent to control the conformity with the rights and freedoms guaranteed by the constitution of legislative provisions “that are limited to the necessary consequences of the unconditional and precise provisions” of a European Union directive. Jean-Louis Debré’s speech

On the other hand, it pertains to the Constitutional Council, when it considers a law seeking to transpose into the national legislation a Community directive, to ensure compliance with this constitutional requirement. Insofar as the Constitution mandates it to decide within a period of one month, which prevents it from seizing the Court of justice of the European communities for a preliminary ruling, the Council cannot rule against Article 88-1 “any legislative provision other than that provision clearly incompatible with the directive that it intended to transpose”. The Council 243 also reserved the hypothesis where the Community provisions in question would be contrary to a rule or a principle “inherent in the constitutional identity of France” (Decision no. 2006-540 DC, July 27th, 2006).

The July 23th, 2008 Constitutional Revision organizes the complementarity of the constitutionality and the conventionality reviews

1. The specialization of judges. The July 23rd, 2008 Constitutional Revision and the December 10th, 2009 Organic Law have articulated the constitutionality and the conventionality reviews. The VIP case-law has been consecrated in the December 10th, 2009 Organic Law, pertaining to Article 61-1 of the Constitution.

Article 61-1 recognizes to any litigant the new right to present a constitutionality challenge. This “QPC” (“question prioritaire de constitutionnalité”) benefits from a procedural rule which gives priority of consideration to the means of constitutionality over the means of conventionality. This priority requires judges to consider first if there are grounds to transmit the constitutionality issue which could, if taken up, allow deciding the dispute.

The choice of the legislator to distinguish between the conventionality means and the constitutionality issues has as a consequence to prevent confusion between these two. The French organic legislator has ruled out the possibility that conventionality and constitutionality reviews be associated and symmetrical as is the case in some European States.

The Constitutional reform has thus led to a clear specialization of judges.1 On the one hand, the Constitutional Council is strengthened by the July 23rd, 2008 Constitutional Revision in its role as constitutional judge. But it

French Republic is not a conventionality judge. It is the sole constitutional judge of the law Jean-Louis Debré but it is only that. On the other hand, the Council of State and the Court of Constitutional Council of the Cassation are and remain, within their jurisdiction, the Supreme courts responsible for judging the law’s conventionality. Furthermore, the Constituent has directly linked them to the constitutionality review. They have become negative constitutionality judges.

2. Harmonization of reviews. Each of the decisions of the Constitutional Council is reached by examining the case-law of the European Court of Human Rights. Each time, that case-law is taken into account. The rights and freedoms guaranteed by the Constitution and those guaranteed by the 244 Convention are now quite close. The Convention encompasses most of the fundamental rights as they derive, in France, from the 1958 Constitution and its Preamble, from the 1789 Declaration, the Preamble to the 1946 Constitution and the fundamental principles recognized by the laws of the Republic to which it refers. At the same time, the Constitutional Council has drawn from these texts the rights recognized by the Convention and the case-law of the Court: the right to carry out a “normal family life”, the right to a private life, the freedom to marry.

The proximity of the rights and freedoms in the constitutional and conventional senses is nowadays very significant. As a result, it is desirable that the administrative and judicial courts consider that a statutory provision considered to be constitutional by the Constitutional Council enjoy a presumption of conventionality. Here lies the whole interest reason for the dialogue among judges.

***

The French system for the protection of the fundamental rights and freedoms is original. It is based on three courts, the Constitutional, the Administrative, and the Judicial Courts, and on two jurisdictional levels. It makes a distinction between the conventionality and the constitutionality

1 Cons. const., déc. 3 déc. 2009, no. 2009-595 DC. - Cons. const., déc. 12 may 2010, no. 2010-605 DC. reviews. Beyond this apparent complexity, the effectiveness of this system must be noted. Thus, since 2008, with the QPC, the Constitutional Council has handed nearly 300 decisions. These have often marked a decisive progress in the rule of law, for example on overnight custody of suspects. To be understood and accepted by the citizens, it is natural that the protection of the fundamental rights and freedoms come first of all, not from treaties, but the Constitution that unites all French citizens around their common values. Jean-Louis Debré’s speech

245

The Mexican Revolution of Human Rights1

Juan N. Silva Meza

President of the Supreme Court of Justice of Mexico

Since several months, the Mexican judicial system of protection of human rights is going through the second phase of a revolution, materialized from the moment when the new constitutional dispositions that were promulgated in June of 2011 came into effect. This phase is part of a process that initiated a century ago, and that seems to lead to a change in the mentalities of all the country’s key judicial actors about the conception of human rights, and especially about a new justiciability.

Next I will describe (1) the institutional progress that results from the mutations of a Court that is historically inspired by the institutions of t he United States, but that since less than twenty years ago has acquired characteristics that bring it closer to the European model of concentrated constitutional justice. What I refer to as “the first phase” of this (judicial) Revolution corresponds to a new institutional framing raised in a major constitutional reform, approved in 1994 (2).

Later, the second (and present) phase of this radical transformation of the court cannot be understood without other political and jurisdictional decisions that hastened the beginning of this second phase.

1 A prior version of this paper can be read in Juan N. Silva Meza, “La Cour suprême de justice de la Nation du Mexique: La Révolution mexicaine des droits de l’homme”, Nouveaux Cahiers du Conseil constitutionnel FR, N° 39, april, 2013; pp 317-326; Dossier: La Constitution et le droit des personnes et de la famille http://www.conseil-constitutionnel. fr/conseil-constitutionnel/francais/nouveaux-cahiers-du-conseil/les-nouveaux-cahiers- du-conseil-constitutionnel.5069.html 247 In any case, the objective of this report consists on taking a tour through the recent jurisprudence of the Supreme Court that seems to enroll the Mexican judicial system in a definite internationalization of the protection of human rights (3). Such tendencies are expected to lead to the consolidation phase (of the aforementioned change of mentalities) in the coming years.

Justiciability of rights, Juan N. Silva Meza a revolutionary matter Supreme Court of Justice Mexico

In spite of the fact that the Mexican Revolution drafted in the 1917 Constitution the first manifestation of the world’s social rights (although these are contemporary to the constitutional text adopted in Weimar or even common ground with the tone of some of the vindications of the October Revolution in Russia), the Mexican judicial system had to wait, for many years, adjustments before taking the judicial apparatus to efficiency in the system of human rights.

248 This long journey was made possible until the Inter-American Court of Human Rights (from now on ICHR) declared in 2009 a sentence against the Mexican State, derived from the Rosendo Radilla case, a political activist in the 70’s, who was disappeared by Mexican soldiers, and whose family never had access to a compensation by the Mexican authorities.2 When the unconventionality of the military jurisdiction was established, still applicable in the ordinary constitutional legislation, set forth at the Inter-American level, this offered the Supreme Court the first occasion to speak up about the importance of the pro personae3 principle, incorporated in article 1 of the Constitution in 2011, to expand, later on, throughout the country’s courts in terms of control and conventionality, but, above all, in terms of a consequent change of mentalities.

However, it is well known by everyone that a change of mentality doesn’t happen overnight. And although Mexico already had procedures of judicial protection before other countries, the conquest of the fundamental rights has had to face many different challenges.

Let’s remember that the Mexican Revolution is considered a popular movement of great magnitude (inspired even in an artistic and cultural creation of exceptional quality during the 20th century), with an armed uprising that initiated in 1910, overthrowing the authoritarian regime of

2 ICHR. Case Radilla Pacheco v. Mexico, judgment of November 23, 2009. 3 Miscellaneous 912/2010 Case of Rosendo Radilla Pacheco of July 14, 2011. Porfirio Díaz (1876-1911), and with realities that reflected the existing differences since the arrival of the Spaniards to America in the 16th century.

The Revolution brought up declarations in favor of the equality of the peasants and laborers mistreated by their employer’s exploitation. Such vindications make up the central demands that grant an identity to the

Constitution approved by the Constituent Assembly of 1917: the agricultural of Human Rights communal property and the system of social protection for the workers. The Mexican Revolution

In the years that followed the Revolution, the task of promoting and accomplishing the adoption of a considerable number of legal and constitutional reforms was centered in the Legislative and the Executive branches, and reforms were designed to defeat the great social differences. The presidential system was in search of a new social balance. However, the victims of the disparities also knew that the fragility of the rule of law and the lack of predictability of the individual’s system of protection would fall on in the agenda of such a Revolution. Justice was not available to everyone. 249

It is enough to walk along the halls of our Supreme Court and stop in front of any of the pictures of the judges of this high jurisdiction, who served at some point in the 19th century. Today we would be talking about an Assembly of Notables or a school of wise men, who with notable individualities (like Silvestre Moreno Cora, León Guzmán, Ignacio Ramírez “Nigromante” or José María Iglesias), and a somewhat liberal tendency, would fit in an interpretive tendency undoubtedly far from the reality that the society of the time lived, which was majorly rural and illiterate.

It was in this context that an exception procedural remedy was created with the objective of individual protection. It was implemented in 1841 for the first time in the Constitution of the state of Yucatán, proposed by Manuel Crescencio Rejón, seeking to control through jurisdictional means the excesses of power, and the individual had the chance of placing this legal recourse (called “amparo”) against constitutionality deficiencies in the current laws. When the amparo was introduced in the federal legislation (article 25 of the reform Act of 1847), influenced by Ignacio Vallarta and Mariano Otero, such procedural legal remedy would remain established in order to analyze situations of exception that needed to be corrected by the judicial branch. It is worth noting that the effigies of these three jurists, considered the “fathers of the amparo”, are represented in the main hall of the Supreme Court. The first petitions of amparo coincided with the occupation of Mexico by the American troops between September 1847 and February 1848.4 And while this trial had been considered part of the competences of the first instance federal Judges, soon its use went outside of the framework of an exception procedure to become a remedy used more often by common citizens. Thus, the decisions made by the political powers confronted arbitration (not political but constitutional), emitted by a judicial branch Juan N. Silva Meza that would probably get an immeasurable importance, becoming capable of

Supreme Court of Justice Mexico nullifying any kind of public decision. Historical archives kept in this Supreme Court can be consulted, as well as judicial files that show the day-to-day use that this agonistic procedure acquired as a means of eluding arbitrariness in the Government’s decisions of any kind.5 Even the revolutionary leaders had to trust, at some point, the federal justice against the dictatorship’s excesses.6

The end of the revolutionary struggle seems to be marked by the regrouping of the military leaders, first around the leaders of the regional armies (some of 250 which became presidents of the Republic; several of them, murdered).7 And later, around the Partido Revolucionario Institucional (PRI), founded at the request of Plutarco E. Calles a year after he finished his presidency in 1929. From that moment on, the Chief of State became the major decision maker in the country (thought about in terms of the Mexican presidential system). Counting on an absolute majority in both Congress chambers as

4 There is a record of the first Amparo trial, applied for by the editor and journalist Vicente García Torres in 1847, against the arrest warrant dictated by the General in chief of the Ejército de Oriente; I also refer to the petition of Amparo of Colonel Tomás Andrade, against the decree of moving from Mexico City to Huichapan, from July 28,1848; and the Amparo resource against those provisions that deprive Darío Servín de la Mora of his job as Squadron Commander, removed from the army on August 4, 1848. 5 A petition of Amparo can be referred which was presented in 1871 before federal courts, requesting the nullification of the death penalty imposed by the political leader of the city of Lerma, in a sentence dictated on October 13, 1871; the court would confirm the sentence imposed to José María Lozano, José Castro and Amado Nava; there is also a record of the petition of Amparo against the prefect of San Juan del Rio, carried out on July 31, 1871, for depriving Mr. Gerardo de la Torre from making a public protest. The Supreme Court confirmed his sentence that granted an Amparo. In 1902, the federal justice nullified the arrest warrant against a 92 year-old indigenous accused of begging by the mayor of Guanajuato. 6 There is also an important resolution of a District judge in 1908, to nullify the Amparo instigated by one of the sisters of Emiliano Zapata against Dictator Díaz ordering his obligatory recruitment in the national army for being imprisoned. 7 Francisco I. Madero who won the elections in 1911 against the dictator P. Díaz, was murdered in 1913. Other military leaders would succeed him in the Presidency of the Republic; V. Carranza, leader of the Constitutionalist Army (and later, father of the Constitution in 1917), murdered in 1920. A. Obregón, who embodied the first stable presidential period (1920-1924); and last, Plutarco E. Calles, great leader of the Revolution, President (1924- 1928) and initiator of the model of the “greatest” regime of the Revolution that was granted to a party, that represented the great national unity; founder of the PRI who, however, was obliged by president Cárdenas to go to exile to California in 1936 (although he comes back to die in Mexico in 1945). well as in all the State Governments in the Mexican Republic, it would be through the initiative of the succeeding presidents that would boost to the great project of the Revolution.

Although in this new period that includes a great part of the 20th century, the Executive seemed to have a relation of respect with the judiciary, the courts ended up working under the logic of appealing against decisions of Human Rights

of the lower courts, or as a stage of the adversarial administrative process. The Mexican Revolution It seemed then that no arbitration was necessary within a regime that concentrated the power of the State in the Executive. From the side of the courts, the materialization of the declarations of the Revolution would come about through other means, more judicial than political.

A revolution that permeates the courts

Since it was established, the amparo has become more and more a mechanism 251 to correct the procedural defects of the resolutions of lower courts as well as from acts of the administrative authorities. Facing the years to come, the operation of a court created to protect human rights was focused on the principle of legality and the verification of the procedural formalities, enshrined in articles 14 and 16 of the Constitution.

At the same time that precautions were taken not to broaden the control competences of the political powers, the judiciary supported self-restraint, (term used in the United States). That is why according to constitutional jurisprudence established since the end of the 19th century, the effects of the amparo decisions were applicable only on the litigating parties. In contrast to the North American system, established on the basis of the Stare Decisis, where the precedent’s force is produced since the first interpretation of a high range court, the Mexican judges didn’t agree with the diffuse control of constitutionality (again in contrast with the dominating scheme in the United States, shared with all the judges in the country). For us, the strength of jurisdictional decisions of the lower courts was conditioned to the sum of criteria. This way a quite singular system of jurisprudential criteria reiteration was created (best known as mandatory jurisprudence, that remains in effect nowadays but with some variants). Even though I. Vallarta designed this system in response to the objection against majorities, already present at the time, it ended up being created to limit the allocation related to the decisions of the federal judges, established at first on five consecutive judicial decisions and in the same sense. An initial phase of our Judicial Revolution had to be targeted to other areas of institutional development. The progressive openness of the political system would play a fundamental role in the perception of the institutional place that had to be granted to the highest judicial authority of the country.

Even though the political actors tried to alienate the making of politically relevant decisions from the judiciary, the Supreme Court would end up Juan N. Silva Meza playing a role of increasing importance in the making of the fundamental

Supreme Court of Justice Mexico country’s decisions.

During the post revolutionary years, the establishment of the (legal) Rule of Law seemed to be the most important condition for the economical development of the country. The government propaganda talked about the “Mexican miracle”, whose industrial boom was owed to the legal monopoly of oil expropriation, that would mark the ideological basis of the Revolution during many years, and from which the Supreme Court wouldn’t be detached.8 The years of the Second World War would give Mexico a privileged opportunity 252 to grant labor and raw materials to the American economy. An emerging middle class constituted itself little by little between the years 1940 and 1960; the access to college education and the coverage of public health became a reality for more people.

However, the apparent economical progress didn’t help open the channels of political participation. The Presidential system, transformed into a corporatist system, would become the victim of its own lack of dynamism (let’s think of the government reaction during the students’ movement of 1968, with an impulse that can be compared with the spring in Paris; let’s think also about the only candidature of the PRI during the presidential elections of 1976, could we talk about democratic normality in a country that has no presidential candidates in the opposing parties?). Such emblematic symbols would mark the beginning of the end of the Presidential system.

During the years to follow, the lack of politics based on social balance would be aggravated by an insufficient management of the economy. The increase of the international prices of oil in the 70’s, that considerably incremented the government’s income, presented to the leaders of the hegemonic party reasons to restore the Executive using the generalized populist means. With an external debt that multiplied itself in several occasions, the implemented budget inconsistency would translate into a hyperinflation.

8 The fourth Supreme Court judges that existed then would have rejected the petition of Amparo from the foreign oil companies that had suffered those expropriations due to public interest reasons, (1938). A long process of democratization (still existing), would be formally launched through a political reform published in 1977 and reproduced in all government levels in the following years. Simultaneously, the political actors appealed to the need of an economical reactivation recommended by the neoliberal paradigm that appeared around the second half of the 80’s, that demanded the guarantee of a Rule of Law again and the defense of the fundamental rights as a previous condition to the new social pact. of Human Rights The Mexican Revolution

The democratization waves, after the fall of the Berlin Wall, would impact the configuration of our political and constitutional system, granting judges, from this period on, the guarantee of legality, although only through the exercise of tasks that were not invasive on the decisions made by the Executive. The same concepts that had inspired the reconstruction of the constitutional systems of Eastern European countries (including the democratic system, the Rule of Law, judicial independence and human rights) served as structural principles for our adaptations towards a democratic model. The time had come to guarantee the traditional negative freedoms, and, at the same time, 253 positive freedoms became not only good intentions. The discourse of human rights could finally emerge.

An initial response in the area of the individual’s protection came up in 1990, with the creation of the Human Rights Commissions, independent and conceived at a federal level at first, based on the Scandinavian model of ombudsman adapted to the framework of the presidential system (and years later, reproduced to the level of the 32 federal entities). However, it can’t be denied that our tradition of judicial protection was still culturally inclined to the use of the amparo. That is the reason why it was necessary to broaden the outreach of such judicial control to the area of government decisions. That is how there was no way of delaying the establishment of a specialized Supreme Court, similar to the function of a Constitutional Court of European inspiration (regarding the awarding of constitutional competences). Putting aside the cassnionist operation of a Court of Appeal, our Supreme Court needed radical transformations. Then, the first phase of the judicial revolution was considered.

From the political side, the dominating thesis until the decade of 1990, that described a party system, although not unique, practically hegemonic, would have to give way to irreversible transformations, derived from the last years’ evolution. The party system would become plural; specifically the successive legislations in the Chamber of Deputies would be conformed, since the intermediate elections in 1997, by party majorities that didn’t coincide to the Republic’s President party.9 This tendency would also be implemented at the level of the local governments, where governors of the 32 federative entities and the more than 2,400 municipalities started to be inclined in favor of the opposing parties since the end of the 80’s. Political plurality as well as alternation of the majorities, both present at a municipal level, local and federal, needed new arbitration mechanisms. Juan N. Silva Meza Since December 1994, several days after assuming the Presidency, Ernesto

Supreme Court of Justice Mexico Zedillo (thirteenth and last candidate to be consecutively elected under the registry of the PRI, since the presidential elections of 1930), promoted a constitutional reform related to the federal judicial system and the Supreme Court, as one of the first measures of his government.

It was a critical moment in the institutional development of the Supreme Court; an actual judicial revolution that would test the court’s institutional maturity, conformed then by 21 justices and 5 auxiliary justices (at that time the appointment was a lifelong one, but due to the reform, everyone had 254 to be in favor of the new structure of 11 justices). And in spite of everything, the transition was completed with normality.

From this moment on, the contentious competences of the Court were considerably broadened, with the presence of new actors entitled to initiate resources before it, such as the municipalities, the ombudsman representatives or the leaders of the national political parties, who would become legitimate to raise litigations in the Supreme Court and thus solve jurisdictional conflicts before the other State powers. The resource called Constitutional Controversy, had been introduced since 1917, but hadn’t been used regularly. Before the constitutional reform of 1994, the procedure was limited to the Congress Chambers, to the Federal Executive and to the State governors. However, we mentioned that conflict solution was only conceived through arbitration mechanisms formally decided by Congress Chambers, even though often controlled by the Executive.10

9 The electoral system had eliminated the overrepresentation rates in a constitutional reform approved in 1996, reason why from that moment, the three party system (whose strength relation was almost by thirds), would avoid that only one party would have an absolute majority in the Chamber of Deputies. Since 1997, the Mexican presidential system lives under a scheme of “divided governments”. 10 This procedure had been useful for the State governors to claim for certain prerogatives; but before 1994, the Supreme Court would have solved very little controversies of this kind. In 1933 the state of Oaxaca made an appeal to solve a conflict of competences in the care of archeological sites, preventing this way that the pieces of the area of Monte Albán would be taken to Mexico City; but before the court’s decision was made, the Federal Executive power promoted a constitutional reform, granting the federal authorities the jurisdiction over the archeological sites. Between 1917 and 1994 a dozen initiated Constitutional Controversies can be counted (even though many were solved with no need of a ruling). That situation contrasts the reality of nowadays, where an average of fifty controversies can be solved in a year, even getting to duplicate this number in several years.

On the other hand, the 1994 reform established the creation of a new of Human Rights

mechanism of abstract constitutional control, called Unconstitutionality The Mexican Revolution Action. This resource initiates after the voting of the law, and allows parliamentary minorities (in the Federal Congress as well as in the 32 Federal Entities) and also State governors, mayors, the Federal Attorney General, and the Commissioner for Human rights, to present this action before the Court because of the possible unconstitutionality of a law that has just been approved. For the first time, the defeat of a debate between partisan groups in the Chamber could still cause nullification through judicial means regarding any judicial deficiency of the new laws.

This may not be the proper venue to recount how in 1994 the constitutional 255 processes stated in article 105 of the Constitution (Constitutional Controversies and Acts held unconstitutional) became the main drive leading to the institutional repositioning of the SCJ (in relation to the phenomenon known worldwide as judicialization of politics (juridización de la política). This phenomenon has occurred and seems to repeat itself, even in the awakening of the constitutional reform of human rights, and as we shall soon see, it is not likely that there will be a decline in the use of these instruments, since it is equivalent to an institutional standardization.

The recent jurisprudence of the Supreme Court in relation to the division of competences among the different entities has paved the way for government measures promoted at the federal level, overseeing the division of competences between the Federal and State branches, in order to define the prosecution of petty drug trafficking, which was formerly an exclusive task conducted by the federal authorities. The idea of immediacy authorities could finally become a decision invested with great power, with both the support of the police authorities and the local investigative authorities.11

On the other hand, it appears that these two litigation procedures, which embody what I also referred to as “the first phase” of this judicial revolution, are no longer the only vehicle to challenge the exercise of a competence, or

11 Acts held unconstitutional 20 and 21/2010, “Competence of the local legislatures”, and “commencement of local sentences on petty drug trafficking”, both dated June 21, 2011. even the inaction of any one of the branches.12 As I said, it does not necessarily mean that these constitutional processes (in the hands of State entities) are withering, but rather that in the near future, the person might take part in the litigations, in order to possess a grasp of the initiative to conduct a public scrutiny to assess the performance of the institutions. This could also mean that the second phase of the so-called “revolution” might find in the litigant the boost that was still missing, in order to fine-tune the defense Juan N. Silva Meza model of the Constitution in Mexico. Supreme Court of Justice Mexico A revolution that spreads over rights

The 2011 reform, that introduced in title I of the Constitution the wording “human rights and their guarantees”, leaves behind the old concept of “individual guarantees”. In making a reference to “human rights”, this Title appears to have gained in quality, in favor of a scope of action, which is gradually expanding, as we shall soon see. 256 However, the expansion of the field of action has involved the good will of the Court; this is a complement to the amendment of article 1. In this regard, recent interpretations of the SCJ have recognized the existence of diffuse interests, as the scope of legal protection has been extended, for this had traditionally been the role of the writ of amparo (limited, by definition, to redress the wrong-doing directly suffered by an individual and who can prove his/her case in a trial). In regard to this new idea of diffuse rights, some of the abstract damages onto society may be redressed. I bring to your attention the Tulum-Tancah case: a Mayan archeological site in the municipality of Tulum, State of Quintana Roo, which allegedly had been harmed by the urbanization of tourist venues in an adjacent area to the aforementioned ecological reserve.13 A similar claim was presented to analyze the potential harm resulting from cigarette smoking, in a way that an imposed legal restriction to limit cigarette smoking to public areas must be understood in terms of the Constitution. Along these same lines, another finding stated that establishing confined areas for smokers14 was a valid act.

12 A while ago, legislative omissions were not justiciable by writ of amparo; they could only be presented through Constitutional Controversy. The First Chamber of the SCJ shall soon resolve whether these matters are justiciable by writ of amparo (pending resolution 1st Chamber, same-sex marriages in Oaxaca). SEFA 201/2012; at the session of August 22, 2012, the First Chamber resolved unanimously by five votes, to exercise the authority to draw into appeal. 13 Constitutional Controversy 72/2008, “Tulum National Park, a protected ecological zone” and Tulum-Tancah an Archeological Monument Zone, dated May 12, 2011. 14 Amparos under Judicial Review 96, 97, 160, 123, 234 and 340/2009, “The Protection of Non-Smokers Health in Mexico City Act” and “The Operation of Commercial Establishments In addition, the exercise of “Constitutional interpretation” was incorporated to the new text of article 1 of the Constitution, although to some it is a mere sketch of a constitutionality block, made up by the Constitution and the treaties which became the binding reference for all judges nationwide.15 On the other hand, they embrace the principles of universality, interdependence, indivisibility and progressivity, and in their light, these rights are to be

interpreted by all judicial operators nationwide. In relation with these two of Human Rights questions, we have started to refer to the “effect utile” of International The Mexican Revolution Human Rights Law (IHRL). By virtue of this interpretation method, and the insertion of these principles, the protective domain of the amparo is now deeply ingrained in the international realm of protection; it still fosters its own internal sphere, in so far as the defendant may invoke these principles and demand their enforcement in the procedural system he/she knows best and trusts: the writ of amparo.

Undoubtedly, opening the constitutional code to IHRL has already yielded positive outcomes in relation to the resolution stated in the Miscellaneous file 912/2010, which was specifically created to full fill the Inter-American 257 Court for Human Rights (ICHR) the obligations deriving from the (ICHR) ruling, in the Radilla Pacheco v. Mexico case directed towards the Mexican judicial branch. Indeed, this case is a landmark in the Mexican justice system, and I must underline that after this resolution was issued, it became compulsory for every judicial entity to conduct, in compliance with the ICHR, a constitutionality and conventionality16 diffuse control.

With this background, every court and tribunal nationwide is to be the guarantor of individual rights, in the understanding that the internal legal framework must be harmonized with the international legal system, since it not only embraces specific international human rights treaties, but also every human rights norm conteined, in any international treaty subscribed by the Mexican State, as well as the interpretations given to the legal texts in

in Mexico City Act” March 15, 2011; in the likelihood of an opposing hypothesis, see Amparo under Review 2/2012 “It is Constitutional to establish in public or private locations, exclusive smoking areas” February 29, 2012. 15 Currently, the existence or non-existence of a constitutionality block still awaits definition by the Plenum of the SCJ, which postponed the discussion until further notice (Thesis contradiction 293/2011). Of the two seemingly opposing perspectives, one supports the permanence of the pyramidal constitutional hierarchy, while the opposing view strives for the integration and alignment of the different legal sources pertaining to the pro persona principle. 16 Thesis contradiction 434/2011, “Against the omission of the Public Prosecutor’s Office to procure conciliation in the preliminary proceedings, shall proceed the Indirect Amparo Trial”, March 07, 2012; 393/2010 “The offended party or the victim of the crime may request an Indirect Amparo Trial invested as the aggrieved third party, as long as the requested act is an arrest warrant or a jail sentence”, February 23, 2011; and 229/2011 “The victim or the offended party is entitled to promote a Direct Amparo Trial against the acquittal of the accused”, December 07, 2011. the sentences issued by the Inter-American Court of Human Rights, within a regional scope.

Furthermore, the legislative process which gave way to this constitutional reform focuses on the fundamental decision of the legislator, which puts the national authorities in a potential situation that could incurred in international responsibility by the Mexican State in case their acts Juan N. Silva Meza jeopardize the human rights catalogue. Supreme Court of Justice Mexico

Based on these amendments, the constitutional jurisprudence has taken a stance about the responsibility of the authorities, for example, whenever they are involved in crime investigation cases, it has been determined that the Public Attorney’s Office (Ministerio Público) should not only be accountable to the victim, but also to the offended or affected (for example, their relatives), but for their actions or inactions as well. As of now, the victim, or the offended may lodge an appeal against the verdict or declaration of innocence.17 As for

258 the status of the current prison system, this is no doubt a pending item in our analysis of jurisdictional issues, the Supreme Court’s decision has granted the offender found guilty the right to serve his/her sentence in prison in the city closest to his/her address.18

However, I must underscore the fact that the 2011 reform has taken a stride forward regarding the problem on the domestic application of the treaties, which can now be viewed from a different angle, to will likely enable the national judges to overcome foregone old discussions which seem to have been turning in circles for many decades, and which could hardly foster definitive solutions.

Although article 133 established from the onset that both the national legislations and the agreements subscribed by the Executive and duly ratified by Congress were to be regarded as the “supreme law of the Union”, our Supreme Court had comprehended this precept in quite an inconsistent fashion (even contradictory, I would say), throughout its different stages. For years, the constitutional case-law deemed that whenever conflicting issues would arise between an agreement and the scope of a constitutional

17 Thesis contradiction 434/2011, “omissions of the Public Prosecutor’s Office to procure conciliation in the preliminary proceedings”; and 393/2010 “The right of the victim or the offended party to partake in the criminal Amparo trial”; and 229/2011 “The victim or the offended party has the right to challenge the acquittal of the accused”. 18 An act held Unconstitutional 20/2011, January 09, 2012 and Amparo under judicial Review 151/2011 January 12, 2012. precept, the latter would prevail.19 Subsequently, the prevailing trend was that both acts and treaties should hold the same rank in the hierarchy.20 But later on, this criterion was rejected; for it was thought that all treaties should prevail over the Law (but not over the Constitution), except if it is the Constitution’s decision to deem it a special case.21 Furthermore, in regard to this interpretation, I should add that three types of regulations (the

Constitution, the treaties and the general laws) should prevail over ordinary of Human Rights law, since that is “the highest judicial order”.22 The Mexican Revolution

In the unlikelihood of resolving these conflicting arguments, which only focus on the hierarchy of the regulations, it would seem that the principle which embodies this revolutionary undertaking (and at least shows a different mindset for the legal operators), derived from the new constitutional human rights model, is the incorporation of the pro personae principle, which may eventually help untangle (or dodge, at best), a few of the interpretative knots which have hindered the progress of IHRL in our country.23 There are some promising signs of a case-law dialogue rising between domestic and 24 international jurisdictions, at least in the Inter-American scope. 259

In the context of this changing outlook, the Supreme Court has set out to review a few personal rights, or better said, of the standard chapter of

19 Criminal Amparo under Judicial Review 7798/47, Betllia López José Roberto, March 3, 1941. 20 However, in view of the Court, this would not mean that the agreement could serve as a parameter to assess the constitutionality of a law; Amparo under Judicial Review 2069/91 June 30, 1992. 21 Amparo under Judicial Review 1475/98, National Union of Air Traffic Controllers, May 11, 1999. 22 Amparo under Judicial Review 120/2002, McCain México S.A. de C.V., February 13, 2007. 23 During this short period of time, subsequent to the entry into force of the constitutional reform, the First Chamber of the SCJ had the opportunity to draw a compulsory case-law, whereby a guideline was established to determine the type of control (constitutional or conventional) to be applied in every case (refer to case-law 107/2012). However, at a procedural level we still need to weigh over the convenience of creating, within the system of constitutional litigation, an arbitration mechanism among jurisdictions (similar to the French QPC), in order to set the boundaries of constitutional control tasks versus conventionality control tasks, and not compel the constitutional court to resolve all the cases submitted to both control modalities. See President Jean-Louis Debré’s report on this same issue. 24 When referring to remedy mechanisms for violations of human rights, the First Chamber has issued a decision in regard to the creation of the fundamental right to remedy, which this entity refers to as article 63 of the American Convention on Human Rights; it is then that the victims may choose to resort to the Writ of Amparo to defend their constitutional rights. [1st Thesis CXCIV/2012 (10th) and 1st CXCV/2012 (10th)] Thesis: 1st. CXCIV/2012 (10th.) Registration Number: 2001744. INTEGRAL COMPENSATION OF THE DAMAGE CAUSED OR FAIR INDEMNITY. THIS FUNDAMENTAL RIGHT WAS INCORPORATED INTO THE MEXICAN LEGAL MANDATE AS A RESULT OF THE AMENDMENT TO ARTICLE 1 OF THE CONSTITUTION, PUBLISHED IN THE OFFICIAL GAZETTE OF THE FEDERATION ON JUNE 10, 2011. Thesis: 1st. CXCV/2012 (10th.) Registration Number: 2001626. THE FUNDAMENTAL RIGHT TO RECEIVE FAIR COMPENSATION FOR THE DAMAGE CAUSED OR TO RECEIVE FAIR INDEMNITY. DOCTRINE AND SCOPE. persons in civil law. In case-law proceedings it has been recognized that the right to not be discriminated against translates into the right of a transsexual male or female to change his/her name without registering this event in the document of vital records.25 Other relevant decisions, such as the determination declaring, in compliance with the Federal Constitution, the amendment to Mexico City’s Civil Code, recognizing same-sex marriages,26 or recognizing the right of a person to legally claim the paternity of a child born in wedlock, Juan N. Silva Meza in spite of not being the husband,27 come to show that the great majority in Supreme Court of Justice Mexico our Highest Court is gradually accepting, like in many countries, that the traditional family archetype: a male, a female and their children has ceased to be an immutable way of life. Applying this rationale to the context of social rights, the SCJ has granted the right to any gay couple to have access to health care services, a right which had been denied to them in the past by the Mexican Institute of Social Security.28

But it also seems that in this jurisprudential dialogue, the criteria established

260 by our Supreme Court begin to interact with those of other jurisdictions. Recently, Chile’s civil justice sector had recognized possible infringements on the daughters of a woman who had separated from her husband, and then joined a scheme of a stable homosexual partner, as a the criterion of taking away her daughters’ custody. When this matter was taken to the Inter-American system, the ICHR decided to condemn the Chilean State.29 Based on this reasoning, the Inter-American Court cited specifically built criteria at the level of the European Court of Human Rights, on the part of the experts that must present their opinions in front of a court of justice, and it also cited the criteria issued by this Supreme Court regarding the right granted in 2010 to homosexual couples to adopt minors. This estimated that scientific studies known nowadays cannot justify a psychological affectation in minors under the custody of a couple formed by two people of the same sex, highlighting that each family’s living conditions must be evaluated individually and not from a statistical point of view.30

25 Direct Amparo 6/2008. 26 An act held unconstitutional 2/2010 «Same-sex marriages and the right to adopt children in Mexico City.» August 16, 2010; Constitutional Controversy 7/2010 «Recognition of a same-sex wedding celebrated in Mexico City» on March 23, 2010 Amparo under Judicial Review 824/2011 «The right to receive alimony finds no gender-based limitations» February 15, 2012. 27 Thesis contradiction 152/2011, “Legitimization of a male, who is not the husband, to debate about the paternity of a child born in wedlock” November 23, 2011. 28 Amparo under Judicial Review 86/2012, “Writ of Amparo against the denial of the IMSS to grant insurance to a same-sex couple” March 28, 2012. 29 Atala Riffo and girls v. Chile Case, judgment of February 24, 2012. 30 Inconstitutionality Act 2/2010 August 16, 2010, paragraph 338. However, let us not celebrate yet, since some of the constitutional reforms and their implementation are still questioned by some legal operators, due to its unusual use and the potential dispersion of case-law criteria that could generate among 1,100 existing federal courts and in just as many other local tribunals which might be taking their first steps in diffuse conventionality control, led by vague criteria. A possible solution to this difficulty was 31

envisaged by the Supreme Court in the Radilla case sentence, when stating of Human Rights that the parameters for conventionality control must be understood within The Mexican Revolution the prevailing constitutional control system. From this moment on, the principle of diffuse control of conventionality opened up to the principle of diffuse control of constitutionality.32

261

31 Miscellaneous 912/2010, paragraph 36 and rear table. 32 The SCJ has reacted to this determination issued by the ICHR, ordering that the previous judicial criteria, openly forbidding other courts to exercise diffuse constitutional control, have no longer any effect (see Case-law modification request 21/2011). The Plenum of the SCJ has emphatically determined that it is not possible to challenge the sentences issued by the ICHR (Miscellaneous 912/2010, paragraph 17). On the other hand, the First Chamber ruled that the sentences of the ICHR are compulsory in the internal sphere [Thesis 1st. XIII/2012 (10th.)]. Part of the discussion still pending is whether all decisions issued by the San José Court are binding, or whether the sentences issued are only binding if Mexico has taken part in the trials, or whether only the verdicts sentencing the Mexican State are binding.

The Constitutional Court and the effective protection of fundamental rights: The Constitutional Court in building a constitutionality block

Milton Ray Guevara

President of the Constitutional Court of the Dominican Republic

The constitutionality block in Dominican constitutional justice

The constitutionality block in the Dominican Republic is a recent phenomenon which, given the extent and the norm related indetermination of its contents, has proved difficult to apply. Taking the Supreme Court of Justice’s Resolution 1920-2003 as a starting point, the first steps were given for the purpose of building the concept of constitutionality block, in what constitutes the first phase. Nevertheless, counting from the Constitutional reform of January 26, 2010 and the promulgation of the Constitutional Court’s Organic Law and Constitutional Procedures no. 137-11, a second phase in building the constitutionality block began which, together with the jurisprudence of the Inter-American Court of Human Rights, which has been employed by the Constitutional Court in its jurisdictional exercise, will eventually lead to a strict and concrete concept of what the constitutionality block is and represents with regards to the Constitution regulating the Dominican Republic.

First phase: Resolution 1920-2003 and the Supreme Court of Justice’s jurisprudence

Building of the constitutionality block begins with Resolution 1920-2003, dictated by the Supreme Court of Justice, and which assumes a broad criterion for the concept of the constitutionality block. As per the quoted text, the constitutionality block is integrated by: 263 In consideration of the fact that the Dominican Republic has a constitutional system integrated by equal-hierarchy provisions emanating from two essential regulating sources: a) the national source, composed of the Constitution and local constitutional jurisprudence, both the one issued by diffuse control and by concentrated control; and b) the international source, composed of international agreements and conventions, by consultation Dominican Republic

Milton Ray Guevara opinions and by decisions issued by the Inter-American Court of Constitutional Court of the Human Rights; the above regulating sources jointly, as per the terms of the best doctrine, integrate what has been named the constitutionality block, to which the formal and material validity of all adjective or secondary legislation are subjected to;

The aforementioned resolution also adds:

Considering that the constitutionality block encompasses, among its tenets and standards, a series of values, such as order, peace, security, equality, justice, liberty and others which, when assumed 264 by our legal order, constitute reasonable patterns, a principle established in article 8, section 5 of our Constitution;

As can be seen, the Supreme Court of Justice, before the enactment of the January 26, 2010 Constitution, developed a broad concept of the constitutionality block in the aforementioned Resolution 1920-2003. In this sense, according to the Supreme Court, the block would be integrated by the national legal sources, that is the Constitution and the local jurisprudence developed by diffuse and concentrated constitutionality controls; and international sources deriving from international treaties, as well as by the contentious and consulting jurisprudence of the Inter-American Court of Human Rights.

This concept of a constitutionality block was later subjected to a new interpretation, one that established that, in case of conflict between an international treaty and the Constitution, the Constitution will have priority. Indeed, the Supreme Court of Justice declared (S.C.J. Const. 4, February 9, 2005, J.B. 1131, Junco et al:

Considering that it is convenient to determine, before an analysis of the incidence of the conventions mentioned on the law being questioned, the superiority of which is alleged over domestic law, given that those standards derive from International Law; that Domestic Law, in opposition to the former, is the set of standards for the purpose of internally organizing the State, which obviously and necessarily includes such State’s Constitution, reason for which it is improper to affirm that a convention prevails on all internal laws of the Dominican nation, as no domestic or international standard can prevail over the Constitution which is the main part of our Internal Law, a fact currently acknowledged by our positive law, in establishing article 1 of Law 16-02 (Procedural Criminal Code), when referring to the Constitution’s primacy and the treaties, in the sense that the latter “always prevail over the law”, from which it can be inferred that, even if they are part of the set of guarantees recognized by the Constitution and constitutional jurisprudence, The Constitutional Court and rights: The Constitutional Court ...

as well as supra-national standards constituted by international the effective protection of fundamental treaties, pacts and conventions signed and ratified by the country, consulting opinions and rulings issued by the Inter-American Court of Human Rights, which has been called constitutionality block, which acknowledges an equal rank to all standards of which it is constituted, it is no less true that, in the face of a confrontation between a treaty or convention and the Republic’s Constitution, the latter must prevail, from which follows that, for an internal law to be declared unconstitutional, it is not enough that it may contradict

or violate a convention or treaty of which the Dominican State is a 265 party, but rather it is necessary for said contradiction or violation to attain the very Constitution, unless it is a provision regarding human rights and comprised within the constitutionality block by virtue, first, of the Dominican Nation’s sovereignty principle, established in article 3 of our Fundamental Law; and second, that there is no general rule in international law according to which, save for anything expressly consigned, an international standard would automatically prevail over an internal one, either older or newer, which may contradict the former, especially if said internal standard is a part of the Constitution of the State;

This decision makes a distinction in connection with the hierarchy given to international treaties on human rights and treaties, pacts and covenants that do not deal with these rights; nonetheless, in 2009 the criterion stands, with the esception that it will not apply with regards to international treaties on human rights (S.C.J. Discipline 1, J.B. 1185, Ortiz v. Grandell):

Considering that, domestic of this last consideration, it is convenient to state that, even though domestic law includes the set of guarantees acknowledged by the Constitution and by constitutional jurisprudence, as well as the supra-national standards established by the international treaties, agreement and conventions signed and ratified by the country, the consulting opinions and the rulings issued by the Inter-American Court of Human Rights, which collectively are known as the constitutionality block that recognizes an equal rank to the standards that make it up, as prescribed by Resolution 1920-03, issued by the Supreme Court of Justice on November 13, 2003, it is no less true that in the case of a confrontation

between a treaty or convention and the Republic’s Constitution, the latter must prevail; therefore, for an internal law to be declared unconstitutional, it is not enough that said law contradicts or violates a convention or agreement of which the Dominican State is a party, but rather it is necessary that such violation affects Dominican Republic Milton Ray Guevara the Constitution itself, given that our country is ruled by the tenet Constitutional Court of the of the Constitution’s supremacy and therefore no international agreement or internal legislation will be valid when it conflicts with principles expressly established in our Constitution;

The contents of the constitutionality block, given these decisions, becomes imprecise at the time of determining which of them applies to a specific case and relegates the importance of international human rights treaties as part of the contents of the constitutionality block because, in the opinion of the Supreme Court, treaties would not apply as a parameter for evaluating 266 the constitutionality of infra-constitutional standards. It is only with the adoption of the January 26, 2012 Constitution and of Organic Law 137-11 of the Constitutional Court that the construction of the constitutionality block varies by way of important definitions made by ruling provisions and by establishing that the determination of said constitutional block’s extent and limits will be defined by the Constitutional Court.

Second phase: Constitution of 2010 and Organic Law 137-11 of the Constitutional Court and of Constitutional Procedures

Dominican constitutional jurisdiction, under the idea of a Social and Democratic State governed by the Rule of Law (article 7 of the Republic’s Constitution) is instituted for the purpose of “effectively protecting the rights of persons, the respect of their dignity” (article 8 of the Constitution). The Constitution places this mission under the charge of the Constitutional Court in article 184 of the Republic’s Constitution, which establishes:

Article 184.- Constitutional Court. There shall be a Constitutional Court for the purpose of guaranteeing the supremacy of the Constitution, the defense of the constitutional order and the protection of fundamental rights. Its decisions will be final and constitute mandatory precedents for all public branches of power and for all entities of the State. It shall have administrative and budgetary autonomy. This idea is in consonance with the purpose and scope of the exercise of constitutional justice through the Constitutional Court, as can be gleaned from the contents of article 2 of Organic Law 137-11 of the Constitutional Court and Constitutional Procedures:

Article 2.- Purpose and scope. This law has the purpose of regulating the organization of the Constitutional Court and the exercise of constitutional justice in order to guarantee the supremacy The Constitutional Court and

and defense of constitutional standards and tenets and of rights: The Constitutional Court ... International Law applicable within the Republic, its uniform the effective protection of fundamental interpretation and application, as well as the fundamental rights and liberties established in the Constitution or in applicable human rights international instruments. [Author’s emphasis.]

It can be seen that the purpose of the Constitutional Court is not limited solely to the defense of constitutional supremacy, fundamental rights or constitutional order, but also extends to the Court the duty to guarantee compliance with international law applicable within the Dominican Republic. 267 Besides, the jurisdictional purpose of the Constitutional Court acquires greater relevance when dealing with the defense of fundamental rights, especially human rights incorporated via treaties, covenants and conventions on human rights. In this sense, we see how the Constitution establishes a preferent position of human rights international treaties, by establishing what follows in article 74, section 3:

Article 74.- Regulation and interpretation principles. Interpretation and regulation of fundamental rights and guarantees, recognized by this Constitution, are ruled by the following principles:

[...]

3) Treaties, covenants and conventions on human rights, signed and ratified by the Dominican State have Constitutional hierarchy and are directly and immediately applicable by courts and all other entities of the State;

[...]

This preference position may be also argued based on the provisions of article 74, section 4 of our Constitutional text, and by article 7, section 5 of Organic Law 137.-11 of the Constitutional Court and Constitutional Procedures, which establish the pro homine or pro personae principle. It establishes that the interpretation and application of fundamental rights standards will be made in the manner most favorable to the person, something that implies application of the treaty in a preferential fashion, if this were more beneficial to said person:

Article 74.- Regulation and interpretation principles. Interpretation and regulation of fundamental rights and guarantees, recognized by this Constitution, are ruled by the following principles: Dominican Republic Milton Ray Guevara [...] Constitutional Court of the

4) Public authorities shall interpret and apply the standards regarding fundamental rights and their guarantees in the sense most favorable to the person who is the subject of same and, in case of a conflict between fundamental rights, shall endeavor to harmonize the goods and interests protected by this Constitution.

[...]

Establishment of the constitutional hierarchy of international human rights 268 instruments in the aforementioned article 74, section 3 allows us to reasonably conclude that they constitute a parameter for constitutionality control. Through this parameter, together with the rest of the constitutional principles, values and rules, the Constitutional Court is allowed to punish constitutional violations incurred by public authorities, both through acts and omissions.

Regarding this, a violation of the Constitution or a constitutional infraction is to be understood in terms of article 6 of the Organic Law 137-11 of the Constitutional Court and Constitutional Procedures:

Article 6.- Constitutional infractions. A Constitutional infraction exists when there is a contradiction between the text of the regulation, action or omission being questioned, of its effects or its interpretation or application, and the values, tenets and rules contained in the Constitution and in international human rights treaties signed and ratified by the Dominican Republic or whenever the former have the consequence of reducing the effectiveness of the tenets and mandates contained in the latter.

In the realm of the human rights incorporated into our legal order, their disregard will be considered a Constitutional infraction to be punished by the Constitutional Court. In this matter, the Constitutional Court must ensure that the act or omission being questioned does not have the effect of reducing the effectiveness of the principles and mandates contained in the human rights international instruments approved and ratified by the Dominican State.

On the basis of the aforementioned provisions, especially the constitutional provision regarding the hierarchical standing of human rights international instruments, we may derive an essential part of the contents of the constitutionality block. Furthermore, the precise definition of this content is also supported by Organic Law 137-11 of the Constitutional Court The Constitutional Court and itself, which establishes in its adequate realm the constitutionality block as rights: The Constitutional Court ... the effective protection of fundamental a parameter of constitutionality control.

In addition to this, the constitutionality principle (article 7, section 3 of the Organic Law of the Constitutional Court) establishes the obligation of guaranteeing the supremacy, integrity and efficacy of the Constitution and of the constitutionality block. This tenet is strictly related with the interdependence principle, which defines the minimal ruling content of the block: 269

Article 7.- Ruling principles. The constitutional justice system shall be ruled by the following principles:

[...]

10) Interdependence. The values, principles and rules contained in the Constitution and in international human rights treaties adopted by the public authorities of the Dominican Republic, together with the fundamental rights and guarantees of an equal nature to those expressly contained in the former, shall constitute the constitutionality block that serves as a parameter for constitutionality control and to which the formal and material validity of intra-constitutional norms are subjected.

[...]

In consideration of the above, we may conclude that within the constitutionality block lie the values, principles and rules contained in the Constitution and in international human rights law, as well as the fundamental rights and guarantees of an equal nature to those expressly contained in the former, from whose formal and material validity infra-constitutional standards depend.

On the other hand, for the purpose of continuing to define the contents of the block, it is important to point out that Organic Law 137-11 of the Constitutional Court and Constitutional Procedures also establishes the binding principle, which provides for the following:

Article 7.- Ruling principles. The constitutional justice system shall be ruled by the following principles:

[...] Dominican Republic Milton Ray Guevara Constitutional Court of the 13) Binding principle. Decisions made by the Constitutional Court and interpretations adopted or made by international courts regarding human rights constitute binding precedents for all public authorities and all entities of the State. [Author’s emphasis.]

Thus, public authorities, in accordance with the Organic Law of the Constitutional Court are not only bound by the rulings made by the Constitutional Court, but also by its interpretations. However, while there exists a content of ruling provisions in the concept of the constitutionality 270 block, that derive from both the Constitution and the 137-11 Organic Law of the Constitutional Court and Constitutional Procedures, it is not less true that the content of the constitutionality block is yet to be determined regarding the interpretations made by the entities created by virtue of human rights international instruments, such as the Inter-American Court of Human Rights, and which are binding for public authorities. This construction is explained by the abundant ruling content, especially regarding fundamental rights, that the Dominican Constitution contains, which would lead to a restrained concept of the constitutionality block.

Construction of the constitutionality block: Jurisprudence of the Inter-American Court of Human Rights in Dominican constitutional jurisprudence

Even though the Constitutional Court has not defined the scope and content of the Constitutionality Block, it has nevertheless given the first steps towards this in applying some of the provisions of the 137-11 Organic Law of the Constitutional Court and some practices concerning the Inter- American Court’s jurisprudence. Indeed, through some of its sentences, the Constitutional Court has submitted to constitutional control, within the framework of their respective competences, acts deemed unconstitutional because they violate fundamental rights, based upon rulings made by the Inter-American Court of Human Rights. This dialogue with the Constitutional Court and the rulings of the Inter- American Court of Human Rights begins with the case of Severino Fornet v. Olivero Espinosa (TC/0007/12). In determining the scope of the recourse of appealing a habeas corpus verdict, the Constitutional Court determined that, while there is a right to appeal, it does not imply there is an obligation to institute a recourse for appealing. In this sense, the Court maintained the following concerning the right to appeal, based on the sentence given in Herrera Ulloa v. Costa Rica (Preliminary Exceptions, Merits, Reparations The Constitutional Court and rights: The Constitutional Court ... and Costs. July 2, 2004 sentence. Series C, Nº. 107), which: the effective protection of fundamental

This principle has been confirmed by the Inter-American Court of Human Rights, the jurisprudential precedents of which reinforce the criterion establishing that the recourse to appeal is not mandatory in all matters. Indeed, in the Herrera Ulloa case, said high jurisdiction established, on the one hand, that: “The right to appeal a verdict is a primordial guarantee that should be respected in the framework of due legal process, so as to allow an adverse 271 sentence to be reviewed by a different judge or court having a higher organic hierarchy. The right to appeal a verdict should be guaranteed before the sentence acquires the status of res iudicata (a judged matter). What is sought is to protect the right to defend oneself by granting the possibility of appealing in the course of the process, so as to prevent the finality of a wrong ruling or ofa ruling with mistakes, which would unduly harm the interests of an individual”. (July 2, 2004 sentence. Series C Nº. 107, paragraph 158); and, on the other hand, that: “Beyond the name given to the existing recourse to appeal a ruling, the important thing is that said recourse guarantees an exhaustive examination of the ruling being appealed”. (ibid., paragraph 165). The ruling states that the recourse pursues the protection of the right to defense, in order to counter the possibility of damaging the fundamental rights of the person having the recourse, without reference to the type of recourse nor to its denomination or realm of applicability, but rather to its scope.

On the other hand, the Constitutional Court has used some standards for the purpose of controlling legal decisions on habeas corpus when a habeas corpus judge examines the admissibility of habeas corpus remedies. In this sense, article 70 of the 137-11 Organic Law of the Constitutional Court and Constitutional Procedures gives habeas corpus Judges the possibility of refusing to admit the habeas corpus recourse, among other requirements, when there are more effective legal avenues to pursue: Article 70.- Causes of Inadmissibility. A judge before whom a habeas corpus recourse has been brought, having instructed the process, may dictate a sentence declaring the action inadmissible, without having to sustain his verdict, in the following cases:

[...] Dominican Republic

Milton Ray Guevara 1) When there are other legal avenues to pursue that allow a more Constitutional Court of the effective way to obtain the protection of the fundamental right being invoked;

[...]

Indeed, admissibility of the remedy depends on the lack of any other effective legal avenues to defend the right being violated, based upon the presumption that the legal standard for each case contemplates the recourses that are adequate for the protection of rights. Through this provision, it is presumed that the legal standard guarantees an adequate protection of the 272 fundamental rights recognized in the Constitution and in human rights international treaties.

In the presence of the indeterminate legal concept contained in article 70, section 1 of Law 137-11, which the habeas corpus judge must determine, there is a situation in connection with which, due to the mere appearance of a process or ordinary procedure established for defending a violated fundamental right, judges proceeded to declare habeas corpus actions inadmissible, without providing specific reasons. This entails some problems in terms of article 25 of the American Human Rights Convention, which establishes the right to an adequate and effective recourse; and the Constitutional Court resolved the question through 2 important rulings, which we shall describe hereinafter.

In the first one, concerning the Santos Bucarelly v. Superintendencia de Electricidad case (TC/0021/12), the Court fixed important limits to the exercise of that power by the habeas corpus judge, through the imposition of two conditions. In this sense, the Court has ruled that:

Exercise of the aforementioned inadmissibility power is conditioned to an identification of the judicial path that the court considers ideal, as well as to identifying the reasons why said path is considered to offer the efficacy elements required by the legislation. In the example case, the habeas corpus judge did not indicate which was the most effective path considered and therefore the appealed sentence lacks an identification of motives in the examined aspect. In the second sentence, the case of Ferretería Ochoa v. Ayuntamiento del Municipio de Villa González (TC/0030/12), the Court not only defines the meaning of effectiveness, but also defines the manner in which a path is to be considered adequate or ideal (a prescription not stipulated in the law), for which definition it based its position on the jurisprudence of the Inter- American Court of Human Rights, with reference to the case Velázquez Rodríguez v. Honduras (Preliminary Exceptions. July 26, 1987 sentence. Series C, Nº. 1). In this sense, the Court maintained that: The Constitutional Court and rights: The Constitutional Court ... the effective protection of fundamental In connection with the existence of another effective path, the Inter-American Court of Human Rights, in its first contentious case, Velásquez Rodríguez against Honduras, established the parameters for determining when a recourse is adequate and effective. In this sense, it established: “For a recourse to be adequate its function must, within its respective internal law system, be ideal to protect the legal situation under infraction”. This is to say that, even though “all internal systems contemplate multiple recourses”, “not all of them are applicable to all circumstances”. On the other 273 hand, “a recourse must also be effective; that is, it must be capable of producing the result for which it has been conceived”.

Here, we see how the Constitutional Court determines the control standard employed by habeas corpus judges when making use of their power to declare a habeas corpus recourse inadmissible on the basis of the existence of an adequate and effective remedy. Furthermore, in article 70.1 of the 137-11 Organic Law of the Constitutional Court and Constitutional Procedures, mention is only made of “effective”, without saying that the other path must be adequate, a requirement the court adopts by reason of the Inter- American Court’s jurisprudence.

Returning to the Santos Bucarelly v. Superintendencia de Electricidad (TC/0021/12) sentence, which analyzed the question of the unjustified delay of an administrative entity in resolving some hierarchical resources presented before it, in a combined application of article 8 of the American Human Rights Convention, which establishes judicial guarantees, and article 69, section 10 of our Constitution, which guarantees application of due process in judiciary and administrative procedures, the Court considered that the administrative entity violated the guarantees of due process. In this same respect, by applying the mythical case on due process and administrative procedure of the Inter-American Court, Baena Ricardo and others v. Panama (Merits, Reparations and Costs. February 2, 2001 Sentence. Series C Nº. 72), the Constitutional Court maintains that: In this sense, the Inter-American Court of Human Rights has established what follows: “It is a human right to obtain all guarantees allowing the attainment of just decisions and the administration is not excluded from complying with this duty. Minimum guarantees must be respected in the administrative procedure and in any other procedure whose decision might affect the rights of persons” (Inter-American Court of Human Rights. Baena Ricardo and Dominican Republic

Milton Ray Guevara others v. Panama February 2, 2011 Sentence, Number 127). Constitutional Court of the

On the other hand, as a result of an administrative punitive process, the Court dictated Sentence TC/0048/12 in the case of Javier Novas Novas v. Head Office of the National Police, a case referring to due process and the punitive administrative procedure, in connection with the firing of Police officers for having incurred serious offenses, even though these offenses had not been proven. In its sentence, the Court used as a standard, among other things, the jurisprudence of the Inter-American Court regarding the interpretation of rights and the application of guarantees of due process

274 before State entities exercising materially jurisdictional functions.

Regarding article 8 of the Convention, the Constitutional Court maintained, based upon the case of Durand and Ugarte v. Peru (Merits. August 16, 2000 Sentence. Series C, Nº. 68); and of Blake v. Guatemala (Merits. January 24, 1998 Sentence. Series C Nº. 36), that:

Said text, as the Inter-American Court of Human Rights has pointed out, must be interpreted in a broad manner, taking into account both the letter and the spirit of the text, and must be appreciated in accordance with paragraph c) of the Convention’s article 29, according to which none of its provisions may be interpreted to the exclusion of other rights and guarantees that are inherent to the human being or that derive from a democratic and representative form of government.

Also, based upon the Inter-American Court’s jurisprudence, especially the Baena Ricardo and others v. Panama case (Merits, Reparations and Costs. February 2, 2001 Sentence. Series C Nº. 72) and the Consulting Opinion on judiciary guarantees in emergency states (OC-9/87 of October 6, 1987. Series A Nº. 9), the Constitutional Court limits the contents of article 8 of the American Human Rights Convention in the sense that follows:

The Court has also understood that due process encompasses the “conditions that must be complied with to ensure an adequate defense of those whose rights or obligations are under judiciary consideration”, so that “people are in a position to adequately defend their rights against any kind of State action that may affect them”.

Furthermore, the Constitutional Court maintained that any public authority must dictate rulings that respect the guarantees to due process and also that the right to be heard prevails before any authority exercising functions that may be materially jurisdictional. In this sense, given the sentence in the case Constitutional Court v. Peru (Merits, Repairs and Costs. January 31, The Constitutional Court and rights: The Constitutional Court ...

2001 Sentence. Series C Nº. 71), the Constitutional Court indicates that: the effective protection of fundamental

The Inter-American Court has also established that: “As per the separation of public authorities existing in a State under the Rule of Law, even if the jurisdictional function is mostly the competence of the Judiciary Branch, other public entities or authorities may exercise the same kind of functions (…). That is, when the Convention alludes to the right of every person to be heard by a “competent judge or court” for the “determination of his/her rights”, this 275 expression refers to any public authority, be it administrative, legislative or judiciary which, through its resolutions, may determine rights and duties of people. Because of the aforementioned reason, this Court considers that any entity of the State exercising functions which are materially jurisdictional has the obligation of adopting resolutions that respect the guarantees to due legal process in the terms of article 8 of the American Convention.

In this case, the firing of a National Police officer was carried out without respect for the guarantees of due process, a requirement that becomes even more important when punitive processes are involved. In this sense, the Court revoked the sentence and granted the habeas corpus requested by Mr. Javier Novas Novas.

Standards regarding democracy and fundamental rights developed by the Inter-American Court of Human Rights have also been incorporated by the Constitutional Court in all its rulings. In an important sentence regarding the right of access to public information and personal data, the Court analyzed the following question: Is it a violation to the right of privacy when public information is divulged containing the names of advisers of a public institution and the wages they draw? The Court ruled that this did not constitute a violation to the right of privacy, given the democratic character of access to public information and the control against acts of corruption. The Constitutional Court, based on the emblematic sentence regarding the case Claude Reyes and others v. Chile (Merits, Reparations and Costs.

September 19, 2006 sentence. Series C Nº. 151), maintained that:

Indeed, the sentence of reference has defined the importance of the right of access to public information for exercising democratic control of public administration and the duty States have of Dominican Republic

Milton Ray Guevara guaranteeing said control, as per the following terms: “(...) all State’s Constitutional Court of the acts must be ruled by the principles of publicity and transparency in public administration, which make possible for the people under their jurisdiction to exercise democratic control over State acts, so as to enable them to question, investigate and consider if public functions are being adequately carried out. Access to information under control of the State which may be of public interest can allow participation in public administration through social control exercised through said access” (paragraph 86). Democratic control by society through public opinion promotes transparency in State activities and the responsibility of officials for 276 their public behavior. To this end, for people to exercise democratic control, it is essential that the State guarantees access to information under its control that may be of public interest. In allowing exercise of this democratic control, a greater participation of individuals in the interests of society is promoted (paragraph 87).

In defining the criterion of the Inter-American Court of Human Rights, the Court maintained that:

Also, the right to free access to public information has the purpose of controlling the use and management of public resources and, in consequence, make administrative corruption more difficult, given that it is a scourge that, as noted in the foreword to the Inter-American Convention against Corruption (dated March 29, 1996) and the United Nations’ Convention against Corruption (dated October 31, 2003), undermines “(...) the institutions and values of democracy, ethics and justice (…)”.

The Court concluded that:

The Constitutional Court considers that, even though the right to intimacy is a fundamental value of the democratic system, as is the protection of personal data, these cannot in general —although there are exceptions— restrict the right to free access to public information, since limiting said access would deprive citizens from an essential mechanism for controlling corruption in the Public Administration. In this sense, the court that dictated the appealed sentence allowed the habeas corpus action because it considered that the data required by the party that requested the information was not of a confidential nature.

Lastly, in the case of Inversiones Bretaña, S.A., regarding Sentence TC/0050/12. This sentence is related to a dispute connected with the obligation of every person recusing a civil Judge to present an economic bond within a certain period and, failing to do that, the Court will then not The Constitutional Court and accept the recusation. Thus, the question analyzed by the Court was, among rights: The Constitutional Court ... the effective protection of fundamental others, whether or not it constitutes a violation to the right to an impartial judge to condition the recusation against a judge to a formality having to do with the economic or credit standing of the plaintiff.

Regarding the constitutionality block, this sentence has the peculiarity that, while not defining the constitutionality block, it begins to define its ruling contents. Indeed, the Constitutional Court reveals that part of the content of the constitutionality block is made up by international human rights treaties that may have been approved and ratified by the Dominican 277 State. The Court maintained that:

In that order of ideas, it is necessary to point out that the Constitution of the Republic, in its article 69.2, establishes the fundamental right of access to an impartial jurisdiction by every person subject to trial. In addition to the above, this fundamental right is recognized by some of the most important international instruments on human rights, such as: (i) article 10 of the Universal Declaration of Human Rights, approved through Resolution Nº. 217A (III), dated on December the tenth (10th.), nineteen forty eight (1948), issued by the United Nations (UN) General Assembly; (ii) article 14 of the International Covenant on Civil and Political Rights; and (iii) article 8.1 of the Inter-American Human Rights Convention, the latter ratified by the National Congress through resolutions dated on January the fourth (4th.) and twenty-first (21st.) nineteen seventy eight (1978), respectively. Therefore, said standards are an integral part of the Dominican constitutionality block, by virtue of the provisions of articles 74.3 of the Constitution and 7.10 of the aforementioned Law Nº. 137-11.

Taking the above as a starting point in connection with the definition of the essential content of the right to an impartial judge, the Court has maintained that:

The essential content of the fundamental right to an impartial judge has two dimensions: one of them objetive, referring to the impartiality of the judge in connection with the structure of the justice system; and the other one, subjective, pointing to the impartiality of the judge in connection with the process’ parties, so that the jurisdictional decision to be produced is not contaminated by passions, interests and subjectivities having nothing to do with the objectivity that judging should entail. Dominican Republic

Milton Ray Guevara This criterion was adopted given the influence of the Inter-American Court’s Constitutional Court of the jurisprudence regarding the case Palamara Iribarne v. Chile (Merits, Reparations and Costs November 22, 2005 Sentence. Series C Nº. 135) in connection with which the Constitutional Court maintains that:

This criterion is shared by the Inter-American Court of Human Rights (IACHR), which points out: “The Court considers the right to be judged by an impartial judge or court as a fundamental guarantee of due process. That is, it must be guaranteed that the judge or court, acting as judgment party, displays the broadest objectivity possible in making a ruling (…) The impartiality of the 278 court implies that its members may not have a direct interest, a taken position or preference in favor of any party and requires that they not be involved in the dispute (…) The judge or court must separate itself from a cause brought before it whenever there is a reason or doubt that may affect the integrity of said court as an impartial entity” (Palamara Iribarne v. Chile; November 22, 205 Sentences by the Inter-American Court of Human Rights).

Final thoughts

Even though there may be a construction of the contents of the constitutionality block, this content will have been fixed, on the one hand, by the Constitution, based upon the preferential character of the international instruments on human rights; and by the 137-11 Organic Law of the Constitutional Tribunal and Constitutional Procedures, on the other. In addition to the jurisprudence of the Constitutional Court, a constant dialogue between the Court and the Inter-American Court of Human Rights appears evident in connection with the guarantee and effectiveness of the rights acknowledged in the American Convention on Human Rights. As a consequence, the jurisprudence of the Inter-American Court represents a useful instrument for constructing a more defined concept of the constitutionality block as a parameter for constitutionality control, which will be defined by the Constitutional Court in its scope and limits.

It is worth noting that the possible limited definition of the scope of the concept of the constitutionality block would have a justification adapted to Dominican Constitutionalism. In this sense, let us remember that the French Constitution of 1958 was characterized by its brevity regarding the establishment of a broad list of fundamental rights and liberties, which led the French Constitutional Council, in the celebrated cases of Liberté d’Association (C.C. 71-44 D.C., July 16, 1971) and Loi Portant Amnistie (C.C. 88-244 D.C., July 20, 1988) to assume a broad criterion of the constitutionality block, in order to correct the deficit concerning fundamental rights. Nevertheless, as the Dominican Constitution has a high ruling content and, The Constitutional Court and above all, a rich catalogue of fundamental rights with direct and immediate rights: The Constitutional Court ... the effective protection of fundamental application —something the 1958 French Constitution lacked—, the contents of the constitutionality block must be very concrete or expressed in a strict sense, as has been developed by the jurisprudence of the Colombian Constitutionality Court.

This strict construction of the concept of the constitutionality block would prevent the assumption of a broad catalogue of the block, something that would affect the ruling effectiveness of the Dominican Constitution. Thus, it is no coincidence that both the Constitution and the Legislation have 279 shaped the way which the Constitutional Court must consider in constructing the constitutionality block, by recognizing the constitutional hierarchy of international treaties on human rights; as well as the establishment in advance of the human rights international treaties as part of the minimal content of the constitutionality block in article 7, section 10 of Law 137-11; and the establishment of the binding principle of interpretations issued by international courts in connection with Human Rights, such as the rulings made by the Inter-American Court of Human Rights, which the Constitutional Court has taken as its own in some of its sentences. This guarantees the effectiveness of the rich ruling content that the Dominican Constitution already has and defines the only constitutionally adequate way in which a concept of constitutionality block can be built.

Jurisdictional protection of Human Rights in Puerto Rico: the constitutional interpretation as a catalyst in front of legislative inactivity

Federico Hernández Denton

President Judge of the Supreme Court of Puerto Rico

Introduction

In this report, and in attention to the particular traits of the Puerto Rico constitutional legal legislative system, I am intended to discuss the protection of human rights in the domestic field and to present some ideas on how the judiciary can serve several cases as a catalyst and protector of human rights before legislative inactivity. To start with, I will offer a brief review of the historical development of human rights in Puerto Rico and how these rights were included in the domestic sphere of the judicial legislative system, specifically through the Constitution. I will later discuss the doctrine of constitutional judicial review, of English-American origin, which has been adopted in the constitutional judicial legislative system of Puerto Rico, given that the interpretation and protection of the human rights depends on its interpretation by the Judiciary. For that reason, I will also examine the hermeneutical standards contained in our Civil Code and adopted by our jurisprudence as the theoretical framework that serves as the guide for the courts in the role of interpreting the Constitution, the laws and regulations. I will finally discuss, as a means of example, the most highlighted jurisprudence in our Supreme Court on the constitutional interpretation as a potential catalyst before legislative inactivity in the context of the jurisdictional protection of human rights.

The historical development of human rights in Puerto Rico

Puerto Rico, like many of the countries represented herein, is a member of the Ibero-American community. Naturally, that historical coincidence is 281 translated into other cultural, social and legal coincidences that many times are not adverted, but whose presence is undeniable.

In the legal environment, these countries were foundationally nourished from the continental civil law culture, one of the main legal traditions in the world. But even when our legal system had a common core, by the end of the XIX century our paths followed different tracks. The change of sovereignty in Puerto Rico —from Spain to the United States— took place in Supreme Court of Puerto Rico Federico Hernández Denton 1898 as a consequence of the Hispanic American War, which caused the inclusion in our legal system of different legal institutions of the English- American right. In particular, our public right was invested by the principles of “common law” in areas like constitutional law, administrative law, procedural law and probative law, among other areas of law. Our private law, on the other hand, essentially preserved its civilist connection.1

As a result, the legal system of Puerto Rico that emerged from the evolutionary historical process has been classified as “mix” or “hybrid”. Nonetheless, it 282 did not prevented “common law” to also play an influential role on the judges and the lawyers with regards to the private law in Puerto Rico. The scope this influence must have has generated, through several decades, an intensive debate in the legal community of Puerto Rico on which tradition must domain or have supremacy in certain areas of law.2

Now, irrespectively of what has been mentioned above, there is no doubt that in Puerto Rico there is an interesting merging of the two largest legal traditions in the world, a merging only replicated in few jurisdictions like Louisiana’s and Quebec’s. As we have mentioned before, the co-existence and fitting of both traditions in a so peculiar jurisdiction generated a lot of tension in different spheres of the judiciary: in the legal institutions, in the language, in the forensic procedures and in the most elemental practice of law and the tribunals.

However, as time has gone both legal cultures have found their place. From the English-American tradition the evidentiary and forensic rules were taken, as well as the substantial standards of public law y and the criminal law. As a practice adopted from the “common law”, the oral trials were also established since early the 20th century in practically all the contentious

1 José Trías Monge, Historia Constitucional de Puerto Rico, Vol. I, Ed. UPR (1995); Liana Fiol Matta, Civil Law and Common Law in the Legal Method of Puerto Rico, 40 Am. J. Comp. L. 783 (1992). 2 José Trías Monge, La Crisis del Derecho en Puerto Rico, in the book Sociedad, derecho y justicia: discursos y ensayos. Ed. UPR (1986). judicial procedures. On the other hand, the criminal law established simple procedures to establish the cause of detention and preliminary visit rooted in the typical procedures of the United States criminal procedures. In turn, the judge consolidated its role as impartial judge, lacking investigative on inquisitorial roles, so prevalent and fundamental in some countries here represented.

As a result of these events and after half a century of the historical process Jurisdictional protection of of the inclusion of the different elements of both legal traditions, in 1952 Human Rights in Puerto Rico: the the Constitution for the Commonwealth of Puerto Rico (Constitución del constitutional interpretation as a catalyst ... Estado Libre Asociado de Puerto Rico) was passed. Of particular relevance for the purposes of this conference, the aforementioned document adopted a Charter of Rights that expanded the rights traditionally granted and new economic and social rights derived from the Universal Declaration of Human Rights in 1948 and the American Declaration of the Rights and Duties of Man (American Declaration), approved by the Ninth International Conference of American States, were included. Among the new rights the State acknowledged and committed itself to do its best to concretize by 283 approving the Constitution, we highlight as follows, as an example: the right to privacy, equality and inviolability of human dignity, the right of free association, the right to vote and education, interdiction to intercept telephone communications, right to bail, the rights of workers, as well as the interdiction of certain discriminations.

As stated in, La Nueva Constitution de Puerto Rico (The New Constitution of Puerto Rico), the inclusion of the new rights mentioned above in our Constitution responded to the understanding that in that historical moment “the people of Puerto Rico [had] proven, both ideologically and in practice”, that had “faith in the fundamental values of the liberal tradition, in liberty and dignity of the human being as the last point of assessing reference for the social organization”.3 Therefore, as of 1952, in Puerto Rico we have a Constitution that, in addition to include the fundamental standards that establish the legal grounds of the political and social-economic organization of our people, protects the rights and the essential dignity of the human being. These principles and values that, as we know, we share with the Latin-American community and many more counties here represented, it is evident from the constitutional reform processes that many jurisdictions went through in the 20th century, are imbedded in the peculiarities of its historical, social and cultural reality.

3 La Nueva Constitución de Puerto Rico, Escuela de Administración Pública, Universidad de Puerto Rico, Río Piedras, Ed. U.P.R., 1954, p. 216. The judicial review: theories and regulatory practices

In addition to the big influence of the Anglo-American tradition on the forensic and procedural practice in Puerto Rico, the organization of our courts system has been substantially nourished by the judicial structures that are common in the United States, both at the federal level and at the level of the confederated states. Article V of the Constitution states that Supreme Court of Puerto Rico Federico Hernández Denton “the tribunals of Puerto Rico shall constitute a unified judicial system with regards to the jurisdiction, performance and administration. The Legislative Assembly, as long as it is not incompatible with this Constitution, will be able to create and eliminate tribunals, with exception of the Supreme Court, and define their jurisdiction and organization”.4

The Supreme Court is currently constituted by eight associate judges and a President Judge, to make a total of nine judges who make decisions as a single body. According to the Constitution, the President Judge “will lead 284 the management of tribunals and shall appoint a managing director, who will perform his role at the discretion of said judge”.5 On top of being the judicial instance with the highest hierarchy on the law of Puerto Rico, the Supreme Court also holds the quasi-legislative roles of adopting procedural regulations and rules of evidence, subject to be modified or refused by the Legislative Assembly. It also holds the competence to adopt the tribunals administrative rules, which are subject to the laws on supplies, personnel, allocation and taxation of funds, and other applicable laws in general for the government.6

Particularly relevant for the subject of the jurisdictional protection of human rights, the Constitution of Puerto Rico establishes a diffuse system of judicial review highly contrasted by the focused model of constitutional allocation that prevails in many of its jurisdictions. For example, in Puerto Rico any tribunal can release a constitutional statement, or even, it can state the unconstitutionality of a law or government performance if it is presented with a case susceptible of said jurisdiction, according to the standards of justiciability and hermeneutics that we will discuss later. Both the Trial Court —where trials are celebrated and where attestations and documents are presented— and the Appeal Tribunal and the Supreme Court, can judge on the constitutional validity of a new law or government action.

4 Art. V, sec. 2, Const. E.L.A. 5 Art. V, sec. 7, Const. E.L.A. 6 Id; Art. V, sec. 6, Const. E.L.A. However, a statement of unconstitutionality by the Trial Court or the Appeals Tribunal exclusively applies to the particular case of that judicial forum and the parties involved in the specific litigation. In contrast, a statement of unconstitutionality released by the Supreme Court of Puerto Rico generally applies to the whole jurisdiction and the people under that jurisdiction. Although it would not explicitly expel or abolish the legislation missing the permanent rules of the legal legislative system —as it could happen in a jurisdiction of constitutional allocation established through the Jurisdictional protection of amparo proceeding— its enforcement to citizens and the pending and Human Rights in Puerto Rico: the future cases if it becomes inefficient. constitutional interpretation as a catalyst ...

Thus, a different element derived from the “common law” tradition is the state decisis doctrine or the precedent as a primary and binding source for the whole jurisdiction.7 However, only the opinions of the Supreme Court of Puerto Rico and the United States Supreme Court —about the minimal making of the rights acknowledged by the Constitution and the federal legislation— have the background force in our legal legislative system, which is not the case of the decisions of the judicial forums of lower hierarchy. 285

Theoretical framework of the judicial review

In the emblematic decision of Marbury v. Madison,8 the United States Supreme Court acknowledged the existence of the judicial review doctrine as the corollary for the constitutional legal system of that country. In turn, the Constitution of the Commonwealth of Puerto Rico textually considers the exercise of the judicial review power in the constitutional environment.9 Said doctrine is based on the principle that the Judiciary is the final referee of any case or controversy and the maximum interpreter of the Constitution and the law.

This is to say, the judges shall have the capacity to judge the constitutional validity, and even stating the invalidity of any law or government acting on the basis of the applicable constitutional regulation, that as we have commented before, includes the protection of the human rights of all the citizens and inhabitants of the country. To many jurists, this doctrine is the original point of departure of the United States and Puerto Rico constitutional system, because the basis of this rules has historically defined the way to develop

7 D. Rivé Rivera, La doctrina de ‘stare decisis’ y el derecho civil en Puerto Rico, 63 Rev. Jur. UPR 131 (1994). 8 5 U.S. (1 Cranch) 137 (1803). 9 Artículo V, Sección 4 de la Constitución del Estado Libre de Puerto Rico. the national constitutional law in attention to the hermeneutical standards and of allocation methodology that we will discuss later.

The doctrine of the judicial review in Puerto Rico derives from the following fundamental hypotheses:

▪ Our legal system is based on the government of laws, where the rule of law and legal security prevails. Because of that, every government Supreme Court of Puerto Rico Federico Hernández Denton body or person that breaches the rights of others must respond to their acts before the justice tribunals, because they hold the responsibility to vindicate the individual rights and the human rights protected by the Constitution. ▪ All the issues affecting the particular rights of people of judicial meddling (or enforceable controversies). However, those issues not affecting the individual rights, but affecting the general well being conferred by the Constitution to the executive and legislative branches are not enforceable.

286 ▪ The Constitution, in its role as the supreme law, binds the three branches of government, which in turn are forced to observe it and enforce its provisions. ▪ When the acting of one of the branches of the State violates the rights that the Constitution grants to person, that person has the access to the Judiciary to enforce his/her rights. ▪ The Judiciary decides on the applicable legislation to solve any controversy presented before it. Through the application of the judicial standards the Tribunal has the capacity to interpret them, because this is an inherent competence of the Judiciary. ▪ In the event of a constitutional controversy, this is to say, when it is alleged that certain laws or government actions violate the Constitution, it is the role of the Tribunal to interpret the applicable legal and constitutional provisions. If there is any conflict between the Constitution and the law or between the Constitution and the challenged government action, the Tribunal shall grant priority to whatever the Constitution states in it nature as supreme law. It means that the tribunals can order the unconstitutionality of a law, a regulation, a rule or any action of the Executive Branch or the Legislative Branch.

It must be noticed, however, that the judicial review has to be enforced with caution and sensibility, because it implies that a forum that is not usually elected through direct voting releases a statement on the constitutional validity of a law or the actions of the executive and legislative branches, political government powers directly elected by the people. For this reason, it is understood that allowing the indiscriminate review by the other government branches would affect the democratic grounds and the constitutional order of the government.

The judicial review procedures in the Supreme Court of Puerto Rico

Article III of the United States Constitution textually restricts the acting Jurisdictional protection of of the federal judicial branch to “cases and controversies”. In Puerto Rico, Human Rights in Puerto Rico: the the Supreme Court adopted, through jurisprudence, the same American constitutional interpretation as a catalyst ... concept of justiciability of constitutional controversies shortly after the approval of the current Constitution of the country.10 Due to the fact that a statement of unconstitutionality through the exercise of being able to judicially review by the tribunals represents a potential conflict between the judicial branch and any of the other two branches of the State, the constitutional jurisprudence of the United States and Puerto Rico has developed several doctrines intended to limit the execution of that capacity.

287 These doctrines derive from the constitutional text and the sensible or institutional considerations made by the judicial branch as measures of self restriction, in order to avoid going into unnecessary conflicts with the other branches of government and to preserve the legitimacy, moral authority and prestige of the judicial branch. According to these doctrines, a case is not enforceable when the parties involved do not have standing or laws study because they have not received a sufficiently concrete damage, when the case is not mature, in the event of a political issue that the Constitution textually delegates to other branch of the government or when the controversy has become academic. These restrictions to the judicial branch rest on two hypotheses: (1) that the tribunals can only solve problems derived from an adversative context that can be solved judicially (an aspect I made reference to before), and (2) that the judicial branch will not intervene, sensibly, in areas reserved by the Constitution to other branches of the Government.11

One of the doctrines derived from this sensible approach, called active legitimization (“standing”), meets the goal of guaranteeing the tribunal that the party promoting judicial action has a sufficient interest that moves him/ her to vigorously look for a cause of action.12 In absence of the legislation

10 E.L.A. v. Aguayo, 80 D.P.R. 554 (1958). 11 Noriega v. Hernández Colón, 135 D.P.R. 406 (1995). 12 Hernández Torres v. Gobernador, 129 D.P.R. 824 (1992). However, in the administrative context the complainant may also present allegations sufficiently specific about the way the government action would specifically affect them. SeeLozada Sánchez v. A.E.E., 2012 TSPR 50; Fundación Surfrider v. ARPE, 178 D.P.R. 563 (2010). that textually grants it, there is an active legitimating event when a demanding party proves that: (1) has been clearly and feasibly damaged; (2) the damage is real, immediate and accurate, but not abstract or theoretical; (3) there is a reasonably causal relation between the cause of action enforced and the damage (4) the cause of action comes from the protection of the Constitution or any law.13

In the specific case of legislators, the Supreme Court has acknowledged its Supreme Court of Puerto Rico Federico Hernández Denton active legitimating role in several events: (1) in front of any controversy on the eligibility of a legislator to occupy a legislative role,14 (2) when any of the chambers of Congress has authorized one or several legislators to vindicate the rights and capacities of that chamber,15 (3) by questioning rules that restrict the constitutional law to participate in the events celebrated by the Senate commissions,16 (4) when a legislator is directly affected in his/her personal character by government actions,17 and (5) in front of the claim of unconstitutionality of an internal rule of the body that prevented the recording of the omission to vote of legislators.18 288 However, the Supreme Court of Puerto Rico has decided that a legislator does not have active legitimacy to file a complaint in representation of his/ her voters or public interest.19 Legitimacy has not been recognized to it either when there are allegations that his/her capacities have been affected by not allowing it to supervise the legislative work in circumstances where his/her has participation in the legislative processes.20 In any case, the legislator shall prove the existence of the requirements established in the doctrine to acknowledge its legitimating role. Thus preventing the legislator from moving the legislative debate to the judicial forum where it did not prevail.21

On the other hand, the doctrine of maturity has a temporary projection and refers to the question if a sufficiently concrete controversy that deserves judicial allocation is stuck or is the case is a premature one for the purposes

13 Id.; Col. Peritos Elec. V. A.E.E., 150 D.P.R. 327 (2000); P.P.D. v. Gobernador I, 139 D.P.R. 643 (1995); Asoc. De Maestros v. Torres, 137 D.P.R. 528 (1994); Hernández Torres v. Hernández Colón, 131 D.P.R. 593 (1992); Hernández Agosto v. Romero Barceló, 112 D.P.R. 407 (1982). 14 Santa Aponte v. Srio. del Senado, 105 D.P.R. 750 (1977). 15 Hernández Agosto v. Romero Barceló, supra. 16 Silva v. Hernández Agosto, supra. 17 Noriega v. Gobernador, 122 D.P.R. 650 (1988). 18 Noriega Rodríguez v. Jarabo, supra. 19 Hernández Torres v. Gobernador, supra. 20 Hernández Torres v. Hernández Colón, supra. 21 Noriega v. Hernández Colón, supra; Sánchez v. Sec. de Justicia, 152 D.P.R. 643 (2000). of judicial allocation. In general, the proposal of maturity is more frequently manifested in conflicts that look for a preventive remedy to a unconstitutional action. The decisive element of the maturity doctrine is the imminence of the allegedly unconstitutional action. This is to say, proof must be presented on the definition of a foreseen event most probably taking place, as for instance, that there is a threat that the applicable law to be enforced or the applicable rule has been applied before.22 Jurisdictional protection of Like the maturity, the doctrine of the academicity can also be described as Human Rights in Puerto Rico: the a temporary aspect of justiciability. It does not refer to if a controversy has constitutional interpretation as a catalyst ... been conceived, but if the controversy that may have existed continues to exist. This is to say, a controversy has an academic nature when several further events take place that cause that the alleging party actually loses the interest to file a complaint because is no longer affected. In such a case, a judicial decision would lack of practical effects.

A controversy is of academic nature, and therefore not fit for the constitutional allocation, when the facts or the applicable law has varied in a way that 289 there is no more current controversy between the opposing parties. This legal precept demands the existence of an actual controversy in all the stages of the judicial process, both in the forums of instance and appealing stages. Its analysis demands the assessment of preceding, next and future events to decide if its condition of current and alive controversy subsists after the elapsing of time.

This regulation aims the purpose of preventing judicial decisions that cause wasting of time, conflicts with other branches of government or that may be designed without the benefits of arguments by the conflicting parties.23 It attempts to prevent, in turn, the unnecessary use of judicial remedies and preventing authority statements by the tribunals that result to be useless. In spite of the above mentioned, different exceptions to the doctrine of academicity are acknowledged:24

1) When recurrent issues capable of preventing the judicial review are faced and it is considered that, because of the nature of the issue, it is reasonable to think that they will be presented again, either between the parties or with other parties.

22 Comisión v. Giménez Muñoz, 109 D.P.R. 715 (1980). 23 Asoc. de Periodistas v. Rivera Schatz, 180 D.P.R. 920 (2011); Moreno v. Pres. UPR II, 178 D.P.R. 969 (2010). 24 Asoc. de Periodistas v. González, 127 D.P.R. 704 (1991); El Vocero v. Nogueras, 138 D.P.R. 103 (1995); Angueira Navarro v. Junta de Libertad bajo Palabra, 150 D.P.R. 10 (2000). 2) When the situation of events has been modified by the defendant, but there are no features of permanence, this is to say, when the defendant voluntarily stops the anti constitutional behavior in order to avoid the judicial review. 3) In the prevalence of collateral consequences of a controversy that has become academic. In such a case the alleged unconstitutionality has ultimate adverse effects like imprisonment because of the commission of a crime which is alleged to be unconstitutional. Supreme Court of Puerto Rico Federico Hernández Denton 4) When a class action has been certified, even if the controversy becomes academic for the representatives of the class that have individually appeared, the conflict is not academic for the other members of the class.

On the other hand, the doctrine of the judicial review acknowledged, from its origins, the difference between justifiable controversies that violate individual rights and political affairs. While the enforceable controversies emerge when an official has the legal obligation to respect a right, either by 290 doing something or by refraining from doing it, the political controversies are those that derive from the exercise of discretion that the Constitution has delegated to one of the government branches to do a role.

The doctrine of political nature basically derives from the constitutional principle of separation of jurisdictions. It states, in essence, that some matters are not susceptible of judicial decision, because their resolution corresponds to the other branches of government, the legislative or the executive branch, or as a final resource the electorate. The jurisprudence criteria to decide if the presented matter constitutes a political issue are as follows:25

1) The Constitution textually delegates the matter in controversy to a different branch of government. 2) There are no appropriate judicial criteria or standards to solve the controversy. 3) It is impossible to decide on the controversy without doing an initial assessment of public policy not corresponding to the tribunals. 4) It is impossible to make a decision without stating a lack of respect to another branch of government. 5) There is an unusual need of self adhesion, without questioning, to a previously made political decision.

25 Córdova v. Cámara de Representantes, 171 D.P.R. 789 (2007); Santa Aponte v. Secretario del Senado, 105 D.P.R. 750 (1977); PPD v. Rosselló González, 139 D.P.R. 643 (1995). 6) The potential confusion coming from statements from several government departments on a matter still prevails.

The doctrine and jurisprudence acknowledge three branches of the political nature doctrine:

1) the one that requires that the tribunals do not assume a jurisdiction on a matter, because it was textually allocated by the Constitution to Jurisdictional protection of another branch of Government; Human Rights in Puerto Rico: the

2) the one that states that the tribunals must refrain themselves from constitutional interpretation as a catalyst ... participating, either because there are no decision criteria that can be discovered and be managed by the tribunals, or because of the presence of other analogue factors, and 3) the one that advises the judicial abstention due to considerations derived from cautiousness.26

If the Constitution grants an explicit capacity to a branch of government and it is of political nature, the actions carried out under the protection 291 of said capacity shall not be subject to judicial review, unless they are incorrectly performed and affect the constitutional rights of equal hierarchy. Therefore, the doctrine of political nature must be applied in functional terms, based on the specific facts of every particular case. Nonetheless, as we will see next when we discuss a case that exemplifies the jurisdictional protection of human rights by the Supreme Court, the doctrine is not applicable if there are important individual constitutional rights that should be affected if the judicial branch does not act.

Rules of hermeneutics in the Puerto Rican constitutional interpretation

In the regular exercise of their duties, the tribunals are generally compelled to respect the legislative will even if the judges disagree with the wisdom of the legislative acts or the public policy promoted by the legislation. The interpretation of a law in disagreement with the intention of the legislator implies the alienation by the judicial branch of the prerogatives of the legislative branch. Therefore, the interpreter must refrain him/herself from substituting the legislative criterion by his/her own concepts of fairness, what is reasonable and desirable.27

26 Íd. 27 R.E. Bernier y J.A. Cuevas Segarra, Aprobación e Interpretación de las Leyes de Puerto Rico, 2da. Ed. San Juan, Pubs. J.T.S., 1987, Vol. I, p. 299. It is a ratified hermeneutics norm that the clear text of a law is the best expression of its spirit. For that reason, article 14 of the Civil Code of Puerto Rico provides that when the law is clear and free of ambiguity, its text must not be disregarded under the excuse of fulfilling its spirit. This statutory precept acknowledges that the law is subject to be interpreted, but it restricts the interpretation to what emerges from the legislative text. The duty of tribunals, in the republican form of government, requires the interpretation of the law and to clear some existing lagoons by using the intention of the Supreme Court of Puerto Rico Federico Hernández Denton legislator as a guideline. Article 19 of the Civil Code of Puerto Rico establishes this by acknowledging that the spirit of the law, reflected in the legislative intention, is the best too, to find the true sense of a law.28

Therefore, in our jurisdiction the judge is generally considered an interpreter, not a creator or a legislator. His capacity of interpretation gets relevance when different probable meanings that give an adequate margin for the judicial discretion emerge, but if the language is as clear as to state a single meaning, a thorough sense of caution and judicial self discipline requires 29 292 the full application of the legislative will. The rule of strict hermeneutics does not demand nor justifies the elimination or substitution of any part of a law through “judicial legislation”, irrespectively of the tribunal opinion on the matter.30

Thus, by outlining the capacities of the judicial branch, the Supreme Court of my country has continuously stated that the tribunals have the limited role of interpreting the laws, and not of issuing judgments of public policy on the desirability of a given legislative course of action. It is the judicial branch responsibility, then, to solve the cases and controversies presented to it through the interpretation of the Constitution and the laws.

The constitutional interpretation as a catalyst in front of the legislative inactivity in the environment of human rights

In spite of the justiciability and hermeneutics standards that, as discussed before, define the judicial discretion in front of a controversy of constitutional nature, it must be taken into consideration that the Supreme Court of Puerto Rico the guarantor of human rights included in the domestic environment through the very constitutional text and a different legislation

28 Alejandro Rivera v. E.L.A., 140 D.P.R. 538 (1996). 29 Clínica Juliá v. Sec. de Hacienda, 76 D.P.R. 509 (1954). 30 Corraliza v. Bco. Des. Ec., 150 D.P.R. 892 (2001). for that purpose. Even more, the Constitution of Puerto Rico textually provides in Section 19 of its Charter of Rights that “the preceding list of rights shall not be restrictively understood and does not mean the exclusion of other rights of the people in a democracy, and nor specifically mentioned”.31 It might seem to suggest, then, an urgency of constitutional nature on the wide, liberal and inclusive interpretation of human rights in our jurisdiction, like the right to privacy. Jurisdictional protection of On this sense, assumptions can come up in which the constitutional Human Rights in Puerto Rico: the interpretation acts like a catalyst in front of the legislative inactivity to constitutional interpretation as a catalyst ... guaranty and protect the human rights of citizens and inhabitants of a country contained in the Constitution. I would like to present you, then, a regulatory decision of the Supreme Court of Puerto Rico where the Judiciary assumed said jurisdictional responsibility. It is the opinion of the Supreme Court in the case of Figueroa Ferrer v. ELA, in 1978, issued by the then President Judge José Trías Monge.32

In this case, the complainants were a couple who wanted to get divorced, 293 but the circumstances of their relationship did not meet any of the culpable causes required by the legal system of that time to justify a claim of divorce (like, for example, adultery, cruel treatment and abandonment). Even more, article 97 of the Civil Code of Puerto Rico textually stated that “… in no case divorce can be granted if the cause that gives ground to the claim is the result of an agreement or collusion between man and wife or an acquiescence of any of them to get it”.33

Because of this reason, the spouses presented a claim against the State in which they alleged that, in mutual agreement, they wanted to dissolve the link that kept them united, but they were not interested in “lying or discussing their marriage privacy in the present system of adversaries”.34 Before that, they asked the Supreme Court to state the statutory provisions of the divorce legislation as a legal intromission that forced them to stay married against their will, or even more, to deceitfully invoke a fault based cause in order to dissolve the legal link that kept them together.

After examining the controversy, the Supreme Court defined the constitutional provisions at stake. In particular, it assessed article II, Section 8 of the Constitution for the Commonwealth of Puerto Rico, which states as follows:

31 Art II, sec. 19, Const. E.L.A. 32 107 D.P.R. 250 (1978). 33 31 L.P.R.A. sec. 331. 34 Figueroa Ferrer v. ELA, supra. “Every person has the right to be protected by the law against abusive attacks to their honor, reputation and private or family life”.35 It is, therefore, a textual copy of article V of the American Declaration of the Rights and Duties of Man (American Declaration) also related to article 12 of the Universal Declaration of Human Rights. Also particularly relevant was article II, Section 1 of the Constitution, by stating that: “the dignity of the human being is unbreakable…”.36 Supreme Court of Puerto Rico Federico Hernández Denton Certainly, said rights have no analogue or parallel provisions in the United States Constitution. As it is known, the United States Supreme Court has acknowledged the existence of the right to privacy not because its existence is textually present in the constitutional text, but because it was derived through an interpretation exercise of the darkness of the due process and other constitutional rights in really important and controversial cases like Griswold v. Connecticut and Roe v. Wade.37 In front of this significant contrast between both constitutions, the Supreme Court of Puerto Rico explained that in this former jurisdiction there was a wish to “prepare a 294 Charter of Rights of a broader manufacture than a traditional one, which included the collective opinion of different cultures on new categories of rights.”38

To provide contents to the aforementioned constitutional provisions, and in attention to its independent origin, dynamic condition and inaccurate condition, the Supreme Court in the Figueroa Ferrer v. ELA case reviewed the divorce treatment in other societies, both those similar an different from ours, and concluded that the enforced rule of law in Puerto Rico was outdated with regards to the divorce legislation. Lastly, it examined the performance of the current legislative standard, in the context of contemporary reality and the values stated in the Constitution.

After that regulatory and comparative review, the Supreme Court stated that article 97 of the Civil Code was not constitutional on the grounds of the following matters:

Sections 1 and 8 of Art. II of the Constitution does not allow the limitation of the divorce causes in Puerto Rico in one of the circumstances of this case derived from the concept of guilt. Said constitutional provisions are based on principles of universality

35 Art. II, sec. 8, Const. ELA. 36 Art. II, sec. 1, Const. ELA. 37 381 U.S. 479 (1965). 38 Figueroa Ferrer v. ELA, supra. intent and the prevailing reality in today’s world, as we have seen, is the acceptance of divorce without guilt. The Commonwealth Constitution protects the right of Puerto Ricans to protect their dignity and private life in the divorce procedures through the mutual statement on the decision to get divorced or the recording of irreversible rupture of the links of marital coexistence.39

When facing a constitutional problem of this size, the Supreme Court

designed a solution that undoubtedly had an almost legislative character. Jurisdictional protection of Human Rights in Puerto Rico: the The procedure prepared by the judicial branch to serve these divorce cases constitutional interpretation as a catalyst ... by mutual agreement was as follows:

There is no need for the mediation of opposing parties; it can be done by joint request of the spouses. […] The parties do not have to state the reasons for their decision if in their judgment it leads to the unwanted statement of painful details of their private life. The State can and has to make sure that the decision to jointly ask for the dissolution of the marital link is not the product of unthought-of action or coercion. The tribunals will interview the 295 parties on these particular issues. As an additional measure that tends to guarantee that the due deliberation has mediated, no divorce request shall be accepted under the aforementioned principles without the attachment of the corresponding provisions by the divorce applicants on the division of their assets, the support of the parties and other consequences of divorce. The tribunal shall not grant divorce if in its view any of the parties will not receive adequate protection.

Until it is decided by the Legislative Assembly, in the current constitutional scheme, to prescribe other rules tending to guarantee the decision of dissolving a marriage by mutual agreement is not result of the lack of thought, the tribunals shall not admit renouncing to the term to ask for a review and the request of divorce can be withdrawn in any moment before the decision becomes final and constant. The Legislative Assembly can establish other reasonable safeguard measures to duly defend the family stability, only if it does not violate the non legislable rights protected by Sections 1 and 8 of article II. They can establish, within said parameters, conciliation mechanisms, minimal terms of marriage before presenting the claim of divorce in some cases and take other measures grounded on priority interests of the State.40

39 Id. 40 Id. Lastly, the Tribunal stated that:

It shall be the full capacity of the Legislative Branch to regulate on this matter only if it is decided that this Tribunal, under the Constitution, cannot protect the right to privacy of the citizens in this country in this aspect of family relationships; which equally lacks of the capacity to prevent the degradation many times imposed on spouses under the prevailing situation; and its role not Supreme Court of Puerto Rico

Federico Hernández Denton trespassing the role of a simple witness at the most limited to regret the discredit necessarily suffered by a legal system divorced from the reality it allegedly serves.

It is true that the changes listed in the concept of divorce in different countries has been carried out through legislation, but this has happened under circumstances different from ours. In said countries it happens that the judicial branch plays a role different from the role that our society allocates to those that the constitutional texts to be interpreted are different and lack the element of 296 universal aspiration that promotes our organic rule. In a good allocation theory, additionally, the parliaments are not the only agents of necessary social changes. In the case of keeping alive a constitutional scheme, of keeping it in fine tune with the reality in the country, it is the main duty of the judiciary to equally pursue said goal, although with the restraint and circumspection imposed by its role in our government system and not exceeding the framework of their powers.41

It was not until last year that the Legislative Assembly finally legislated the divorce by mutual agreement and elevated it to statutory rank, this is to say, to be part of the permanent laws of the legal system in Puerto Rico.42 As a consequence, the judicial remedy designed by the Supreme Court of Puerto Rico to protect the human rights of the people who wanted to get divorced without disclosing the reasons for that remained current and not affected for more than three decades.

As you can observe, the case we have discussed deals on a clear example where the judiciary protects the human rights included in the domestic environment through the Constitution. This decision is also a clear example of an assumption where the judicial branch has vigorously acted in front of

41 Id. (Our emphasis). 42 See the 192-2011 law, which adds as causes for divorce: “(11) The recording of the mutual agreement of the spouses to dissolve the marriage; jointly presented through ex parte request; and (12) the recording of an insolvable rupture of the links of marital coexistence individually presented”. the legislative inactivity, without prejudice of the parliamentary branch of formulating its own mechanism to make possible the individual exercise of the constitutional law.

Conclusion

Under the light of the stated before, the fundamental role played by the Supreme Court of my country is prominent, not only in its task to allocate Jurisdictional protection of controversies between private parties, but to also safeguard the human Human Rights in Puerto Rico: the rights of our citizens that have been included to the domestic sphere constitutional interpretation as a catalyst ... through the Constitution. The Constitution of Puerto Rico, like those of many countries here represented, has delegated on the judges with the roles of constitutional allocation a huge power and responsibility before the country. After all, we the judges, are the defenders of the rights of our citizens, the interpreters of the Constitution and the restriction to the usurpation of power by the political branches of the government.

Honesty, respect for our democratic system of government and the judicial 297 cautiousness shall always be our guidelines. However, it does not prevent that in those deserving cases and the existence of the circumstances susceptible of constitutional allocation, the judicial branch acts as a catalyst in front of the legislative inactivity, only if the goal of judicial action is guaranteeing and protecting the human rights stated in the Constitution, in international treaties or in the social legislation aimed to those goals.

Constitutional control in Uruguay

Jorge Ruibal Pino

President of the Supreme Court of the Oriental Republic of Uruguay

History

Our first National Constitution from 1830 was inspired in the American and specially the 1812 Cadiz Constitution, and did not provide for any constitutionality control. Without prejudice thereof, article 152 of the Constitution provided that only the Legislative Branch had the authority to interpret and enforce the Constitution. It was believed that, when making the laws, legislators were adjusting to the Constitution and, therefore, judges were banned from interpreting it.

The “High Court of Justice” (today, the Supreme Court of Justice) was created in 1907, and the following year the government submitted a bill whereby it conferred the “High Court” the authority not to enforce an unconstitutional law in the remedies filed against it.

Likewise, the constitutional amendment of 1919 maintained the original text from 1830.

It was only until the Constitution of 1934 that the procedure was included, and was amended in 1952 and remains in effect until this date. Such procedure is set out in Section XV, “The Judicial Branch”, Chapter IX, articles 256 to 261.

Pursuant to article 261 of the Constitution, the regulations thereto were created under law number 15.982 of l989, named General Procedural Code, articles 508 to 523. 299 Features

▪ Competence: article 257 of the Constitution grants the Supreme Court of Justice the exclusive authority to hear and resolve on processes dealing with the unconstitutionality of the law or statutes in their jurisdiction (orders of Provincial boards or communal legislative bodies). That is, the Constitution vested the Supreme Republic of Uruguay Jorge Ruibal Pino

Supreme Court of the Oriental Court of Justice with the authority of a Constitutional Court, the only body in charge of constitutionality control. ▪ Opportunity principle: In principle, neither the Constitution nor the regulating law provided a term to file an unconstitutionality action. But the regulation provided for an unequivocal opportunity to do so. Article 508 of the General Procedural Code provided that “whenever a law or statute has to be enforced… it can be filed…”

The most recent jurisprudence (Sent. No. 4199/2011) stated that “The

300 Supreme Court of Justice has stated several times that it is not its duty to issue an opinion on whether a legal text complies with the constitution once it has been irrevocably enforced. Thus, it is indispensable that, in order to analyze whether the request is valid, the challenged law must be in process of execution or susceptible of execution, so the action is not valid when the statute has already been executed”. And then: an opinion about the core of the matter would mean an abstract, generic judgment that is not relevant to resolve a specific case. This activity is not provided for by the statute (art. 508 C.G.P.)”. And, finally, “…based on the premise that the purpose of seeking an unconstitutionality ruling is to prevent the application of the challenged law to a specific case, and it is legally impossible to attain such objective when the statute has already been enforced.”

▪ Forms of determination: An unconstitutionality ruling can be requested in three ways (article 258 of the Constitution): a) by legal action directly submitted to the Supreme Court of Justice; b) by a plea in any legal procedure against the merits of the cause that can extend until the process concludes, and c) by the Judge or Court as district attorneys (even the administrative courts) which is hearing the cause.

In b) and c) scenarios above, the process will be stayed and the case will be escalated to the Supreme Court of Justice. Naturally, in cases that are commonly brought to the Supreme Court of Justice, it may resolve on a matter of unconstitutionality. In all cases, the unconstitutionality claim may refer to form (process of making the statute) or the content of the statute (article 256 of the Constitution).

▪ Legitimacy. The unconstitutionality claim can only be filed by those who consider that their “direct, personal and legitimate” interests have been affected, as provided in article 258 of the Constitution, in Uruguay and article 508 of the General Procedural Code as the regulation

thereto. Constitutional control

Renowned lawyers and constitutionalists have agreed on the specific determination of these statutory conditions. “The Court has stated several times, referring to the scope of the provision, that ‘a legitimate interest’ is that which does not contravene the rule of law, morality or good custom” (Enrique Véscovi, El proceso de inconstitucionalidad de la Ley”, in Cuadernos de la Facultad de Derecho y Ciencias Sociales, No. 18, pág. 148); while “personal” means “he who acts as a part” and not the “sheer invocation of a popular or third party interest” (work and page cited above.), and “direct” means that it evidences that “it is affected by the 301 application of the unconstitutional Law, which is not the same as an interest that could be remotely compromised if the Law were applied” (Justino Jiménez de Aréchaga, La Constitución de 1952, t. 3, page 183).

In a similar thesis, the renowned lawyer states that a ‘direct interest means an immediate interest, not a future or possible interest. The existence of a direct interest implies that the person is in a defined and current legal situation in relation to the Administration’ (Héctor Giorgi, El contencioso administrativo de anulación, page 188, Cfr., and Sentence No. 35/97)” (Sent. No. 180/00; Cfr. and Sentences No. 797/95, 335/97, 205/99 and 370/99, among others).

Requirements

The submission requesting legal action or the pleas must necessarily contain a clear and accurate statement of the statutes that are challenged as unconstitutional and the principle or statute being breached, or an explanation of what the unconstitutionality consists of. It must also state all the provisions and/or principles that are being breached and the Supreme Court shall be authorized to fully reject the statements that do not adjust to the requirements. Cfr. Sentence No. 1.979/2012:

“Article 512 C.G.P. provides that ‘the request for an unconstitutionality ruling shall be made in writing and must clearly and accurately state the statutes that are challenged as unconstitutional, as well as the constitutional

principle or standard that are deemed infringed..’.

The provision states ‘...the need to accurately and clearly state what are the specific statutes that contravene the Constitution, the merits therefor and such conditions are certainly not met in the petitioner’s submission’ (Cfr. Sentencias Nos. 89/91, 312/95 and 39/2008, e/o). Republic of Uruguay Jorge Ruibal Pino Supreme Court of the Oriental Now, the petitioner stated that Law No. 18.091 (which amended the term of expiry of the employment credits) would contravene articles 8, 53 and 72 of the Constitution, but failed to provide clear merits for such a statement.

In his confusing original submission, the petitioner made a general reference to the right of equal standing, the right to work, and to what he called “prevalence of the provisions that are more favorable to the human person,” but failed to concretely explain the relevance or application of 302 such principles to the specific case being examined.

Therefore, as the original submission failed to comply with the requirements, it was not valid and relieved the Court from ruling anything about the substance of the matter”.

Procedure

The request for an unconstitutionality ruling shall always be notified to both parties (in the event of a plea or a prosecution by the court itself, in an ongoing process), or to those that “could be affected” by the law, in the event a legal action is filed. In all cases, the Court Attorney and the Attorney General shall be heard. It might be necessary to submit evidence in the short term.

The sentence will rule whether the challenged statute or its provisions are unconstitutional or not, and may not change it at all.

It is provided that an early ruling may be issued (article 519 of the General Procedural Code), when there is evidence that the underlying purpose is to delay the process under which the request for an unconstitutionality ruling was filed or when there is jurisprudence about the matter and the Court decides to maintain its former criteria. In these cases, the Supreme Court may adopt that pathway, except for the relevant process. The sentence, whether favorable or negative, shall not admit any appeal. Effects

▪ Spatial efficacy: The sentence declaring the unconstitutionality of the challenged provisions will only be effective for the specific case that caused the ruling. The statute will not disappear, be repealed or annulled but shall remain in effect and will continue to be applied or unapplied —after a new ruling of the Supreme Court of Justice— in Uruguay

each time another specific case arises (according to Horacio Cassinelli Constitutional control Muñoz, constitutionalist). We must bear in mind article 259 of the Constitution, according to which the ruling of the Supreme Court of Justice shall only refer to the specific case and according to Berro Oribe “...if the affected subject (by the unconstitutionality ruling) was not specific, there shall be no action due to the lack of a ‘specific case’. The author later explains that “there cannot be a binding specific case, jurisdiction or res judicata if there is an undetermined person” (See: “Del juicio extraordinario de inaplicación de disposiciones legales por razón de inconstitucionalidad” in Rev.

Facultad de Derecho y Ciencias Sociales, Year XIV, April-June 303 1963, pages 266 and 274). And such a conclusion through a legal action can naturally be transferred to a plea at the time one realizes that the intended outcome is a ruling of inapplicability of Law No. 15.848 to the whole subjective universe (military and law enforcement) comprised by it, so the defense would have the effect to repeal the challenged statute. In this regard, Berro Oribe states that: “the intention of the constituent assembly must have been, at least in the beginning, that one could not even dare to think that the Judicial Branch could have the ability to render a Law invalid, to repeal it in general. Despite insisting on the fact that “Laws can be ruled unconstitutional’ (articles 256 and 260), the system that has been ncorporated to the system is different, which is the “inapplicability of the Law to the specific case” (article 258 of the Constitution)” (work cited above, page 285) “and there is no specific case if there are no specific persons (work cited above, page 276). Thus, I reaffirm the universal or comprehensive inapplicability of the subjective elements of the Law whose inapplicability is intended, as this would otherwise mean repealing the statute, which is inadequate to our function of controlling the constitutionality of Laws”.

More specifically, claims that “the main issue is that the specific case was not brought by he who rules on the inapplicability but by the one who has access to it and who files the new action...” (cited above, page. 259). And he adds, “...our work is not about the unconstitutionality of a Law, but the inapplicability of the Laws by reason of unconstitutionality...It is not

about ‘judging’ a Law with the pattern of the Constitution. The Constitution can only be interpreted by the Legislative Branch. It is their jurisdictional function to rule on the applicability of a Law regarding a legal action that has been submitted or that could be submitted to the Judges, but they can rule only about the relative efficacy of the challenged Law or legal provision in terms of its contravention of a certain constitutional text or Republic of Uruguay Jorge Ruibal Pino principle. Supreme Court of the Oriental

▪ Temporary efficacy: As the sentence is a declaration and its interpretation and application must adhere to the Constitution, the retroactive effect of the unconstitutionality ruling cannot be absolute and extend back to the date on which the challenged statute came into effect, but it can be so if the petitioner is affected by the statute if there is injury or conflict of interest. The Court, in sentence number 264/98 states, in connection with out topic of interest, that “…the effect of the unconstitutionality ruling —while limited to the specific

304 case— goes back to the time at which the contest occurs, according to the effect of any ruling. As Dr. Esteva states in a note criticizing the abovementioned sentence (Rev.U.D.Constitucional y Político No. 50 page 193 and ss.), in the specific caase referred to in the Constitution does not emerge from the submission of the petitioner, but it has existed before, and it is that specific case which reveals the efficacy of the Court’s ruling (Conf. Risso Ferrand, Derecho Constitucional, T. I, 1996, pág. 176)”.

If on the contrary, the position agrees that the effects are caused by the execution of the ruling, then we would have a taxpayer who would have a contradictory position before the same statute. Thus, for a while he would be subject to the statute, and when it were ruled unconstitutional he would not be subject to the same statute. It is worth mentioning that in the abovementioned ruling, the Court stated, with respect to the opinion of the Court Attorney: “…should the position sustained by the Court Attorney be adopted, then the petitioner would be rendered defenseless before a claim from the State, which could file an action to collect an unconstitutional tax and the petitioner could not defend himself and could not claim the unconstitutionality of the statute imposing the tax on him”.

▪ Specific efficacy: The sole beneficiary of an unconstitutionality ruling for a specific case is the petitioner (article 259 of the Constitution). And the basis for this principle of constitutional control is clear. The purpose is to avoid infringement or disturbance of the democratic republican concept of “Separate Branch”. Following the principle of separation of powers, an unconstitutionality ruling and thus the inapplicability of the statute for the specific case, shall be only for illegitimacy reasons and not because it is inconvenient or untimely.

As the Supreme Court of Justice has repeatedly stated: “…judging a constitutional issue is made on the basis of two considerations: in Uruguay Constitutional control a) Every Law is presumed to adhere to the Constitution as long as no evidence to the contrary is provided (Sentences No. 212/65, 64/97, 29/80, 235/85, 266/86, 184/87, 152/91, 86/93, among others), which is a shared view by Prof. Vescovi, who has said that: “... the constitutionality of the Law is the principle, and illegitimacy the exception. And as an exception, it is limited and interpreted under stringent criteria. This is the petitioner has to provide irrefutable evidence that the constitutional and the legal statutes are incompatible. This would be a ‘presumption of legitimacy’ (‘El proceso de inconstitucionalidad de la Ley’, page 130 and ss.)”. Thus, incompatibility must be evident, because as W. Willoughby states (“The 305 Constitutional Law of the United States”, T. I, page 26) “...the actions of a coordinated legislative body must not be ruled unconstitutional if, through a reasonable interpretation of the Constitution or the Law itself, they can both be harmonized” (cited in sentence no. 744/94)”. b) The Court does not judge the legislative merits or lack thereof, but only whether the Law is constitutionally valid. The statute that within its institutional jurisdiction provides for an erred, mistaken, inadequate solution to the issue it intends too govern, will be a bad Law, but is not necessarily unconstitutional (Cfr. Sentences No. 12/81, 69/82, 404/85, 237/87, 184/88, 152/91, 86/93 —among others—)” (Cfr. Sentence No. 45/2010).

▪ Final comment: Any unconstitutionality ruling on a statute or a statutory provision in a certain jurisdiction shall be notified to the Legislative Branch or to the Provincial Government, as the case may be. This provision also refers to the principle of separate powers (article 522 General Procedural Code), because in a democratic regime, assuming that the constitutionally competent body has detected breaches to the Constitution, those who have the legislative authority to prevent situations of open inequality, shall take the necessary measures to adjust the statute to Constitution.

This is what should happen and usually happens, as has happened in the case of Income Tax on Liabilities, which was ruled unconstitutional (by the majority of the Court) and amendments were made to the name, content

and destination. And one time a provincial tax was rendered void by the Provincial Government after it was ruled unconstitutional several times.

Main criticism to the mechanism

While there are several groups that oppose to this control institute, we Republic of Uruguay Jorge Ruibal Pino could group them into two groups that have the same arguments, which Supreme Court of the Oriental we will call Legitimacy of Judges and Counter-Majority Authority. In the former, the criticism focuses on the officer; in the latter, to the content of their ruling.

▪ Legitimacy: In theory, it refers to technical officers who were not elected for office, and are mostly unknown to most of the people and have become part of the Court by reason of the length of time they have held their position. Judges are not elected by the citizens, are not liable to their constituents but decide on substantive matters. 306 Good constitutional control must rely on good judges.

It is clear that judges have an institutional position that is defined in the National Constitution. And, while it is difficult to acknowledge, the majorities provided for in our Constitution for the General Assembly (both Legislative Houses gathered together) to appoint a Magistrate as member of the Supreme Court (enabling him to rule on the unconstitutionality of a statute challenged as such), go beyond the governing party. Therefore, consensus must be sought for such appointment, which means, to say it clearly, that a special majority amongst the people’s representatives who make the decision. So they are responsible of electing he who is most capable and not he who responds to political interests and opportunities.

The aging mechanism is totally subsidiary and depends on the inefficacy to have reached consensus once the relevant term has elapsed. It must me noted that the Constitution permits that a citizen outside the Judicial Branch (art. 235 of the Constitution) be appointed, but this provision dates back to the Constitution of l830. It must be acknowledged that the few times the General Assembly made such a decision, it made it in full respect of the judicial career of the Magistrates. While becoming a member of the Supreme Court of Justice is uncertain, it is clear that it is a legitimate expectation of any magistrate that has worked appropriately and with dedication. Most of the magistrates that become members of the Court leave behind more than 30 years of work without regard. Finally, in our system of government it is essential to limit the powers of the State and the supremacy of the Constitution is unquestionable, and there is no doubt that it is a form of expression of the citizens.

In short, magistrates in charge of constitutional control are appointed by the people’s representatives and their functions are provided for in the constitution. Their legitimacy seems unquestionable and out of scope for in Uruguay

positive debate. Constitutional control

▪ Counter-Majority Authority: In principle, it would seem clear that unlike the Executive and Legislative Branches, the Judiciary is essentially the power of a counter-majority, and this is noticeable in the matters of constitutional control. However, this is nothing new nor pertains only to Uruguay. Professor Barry Friedman, of New York University, refers to a premise regarding judicial control of constitutionality: “The premise is that constitutional control pertains, by nature, to the counter-majority”. And then, “…when judges

override government decisions based on constitutional requirements, 307 they act against the preference of the citizens.” (“Mediated popular constitutionalism”, Michigan Law Review, No. 101).

Of course the opponents believe that constitutional texts exist to limit the majority, that constitutional rights are not subject to the will of the majority (author and work cited above). For them, judicial control by the counter- majority is legally desirable in a democratic state. This is a core element of the (North American) system of government which is indispensable to protect basic rights and freedoms from the possible deviations of the majority (quoting Manuel José García Mansilla in “Estado actual del debate”, August 2008). This author concludes, vindicating the institutional nature of the actions of the Legislative and Executive Branches, together with several protections granted by the Constitution to the Judiciary, that they are still core elements of the Constitutional Rule of Law. As Barnett (Randy) explains, relying on the judges is inevitable in a constitutional system in which they are only empowered to act between the citizens and the majorities and minorities operating through representatives. When legislation threatens freedoms, only a revision by impartial judges can guarantee the protection of citizens’ constitutional rights” (author and work cited above). A clear example is the situation of the Judicial Branch of Argentina in past decades.

In our country, this criticism has even less merits, not only because the ruling is only valid for a specific case and never has an abstract and generic scope and the legislator is requested to analyze whether the statute must be amended based on his knowledge of the public opinion and avoiding

inequality, but also because the Constitutional Court (in this case the Supreme Court of Justice as the court in charge of constitutional control) does not operate with its own guidelines but under those of the Constitution —the quintessential symbol of citizens’ will— and through a technical-legal opinion that does (can) not have a political connotation other than that given to it by politicians themselves. Republic of Uruguay Jorge Ruibal Pino Supreme Court of the Oriental But above all, judges in charge of constitutional control do not lose sight of the reality of the country, of society at large and of their current circumstances, because they belong to such society at that same time and place and face the same fate as all citizens.

So, due to the fact that judges that rule constitutional control are appointed by the citizens’ representatives beyond the power of the ruling party, and because they work with constitutional guidelines based on the citizens’ opinions, and because they are part of society, in my judgment and in my

308 country, such judges should not be subject to criticism about their legitimacy and the authority of the counter-majority, being the latter definitely ruled out by the specific effects of an unconstitutionality ruling.

In short, in my opinion, the whole problem is an issue of judge independence, in all senses, while regarding their institutional position provided for under the Constitution, which contains the ultimate rules and guidelines of citizens in any democratic government. The role of the domestic judge in light of the Paradigm of Human Rights

Gloria Smith

Senior Puisne Judge of the Supreme Court of Jamaica

Introduction

The promulgation of human rights has been the product of our experiences. Since the age of the Renaissance movement the thinking has developed that each individual is equal and should be accorded with rights necessary to protect his existence. The American Declaration of Independence in 1776 and the French Declaration of the Rights of Man in 1789 represents the first time political expression was given to the universality and naturalness of rights.1 In the years following this initial development, States have sought to entrench the principle of the universal and alienable rights of all human beings in international instruments such as the Universal Declaration of Human Rights (1948), the International Covenants on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Ah l these human rights based treaties have helped to influence several Charters and Bills of Rights which are in existence in many countries today. However, while it is recognized that the world has made many strides in this arena, human rights continue to be a very hotly debated issue in domestic jurisdictions such as Jamaica. This is so as human rights is no longer viewed as a “fringe activity”, but is instead seen as an area of the law which is fundamental to everyone and which permeates all legal, economic and

1 Per Professor Lynn Hunt in the book Inventing Human Rights as referenced in the article “The Church and Human Rights”, author Jan Boyne, published March 15, 2012, The Jamaica Gleaner Company. 309 social activity in both the public and private sphere.2 Owing to the importance which is attached to human rights in contemporary societies, the legal profession, notably Domestic Judges will have a significant role to play in the preservation of those rights. The Domestic Judge will be required to be at the forefront of the charge in ensuring that the human rights of the citizenry are vigorously guarded especially in these times when States

Gloria Smith are often willing to sacrifice their responsibility in aid of survival at the

Supreme Court of Jamaica expense of their people.

Human Rights Challenges in Jamaica

In small democratic states such as Jamaica, the importance of human rights is increasingly becoming a part of our conversation. In the age of information technology and with the passage of access to information legislation, the citizens are becoming aware of what their individual rights and freedoms are. The work of non-governmental organizations such as 310 Jamaicans for Justice (JFJ) and the Independent Jamaica Council for Human Rights (IJCHR) in promoting, advocating and identifying human rights breaches has also assisted in broadening the awareness. The State has also been active in attempting to improve the human rights experience of Jamaicans. In this regard, the Jamaican Parliament recently amended its Bill of Rights by replacing it in its entirety with a new Charter of Rights. This charter is expected to expand rights protection in certain areas.

Despite these admirable steps towards improving human rights in Jamaica, the country has been criticized by both International Human Rights Organization and local human rights lobbyists on various human rights breaches which continuo to be evident. One such breach which has been identified is that surrounding the conduct of the security forces inthe carrying out of their duties. This issue became a particular sore point for many in May 2010, following what has been described as the Tivoli Gardens Incursion. An extradition warrant had been issued by the United States for the arrest of noted “Don Man” Christopher “Dudus” Coke. The security forces went in search of Mr. Coke in what was heavily fortified Tivoli Gardens. During the search for Mr. Coke, allegations of egregious breaches of human rights were leveled at the security forces.3 The Extradition of Mr. Cake to

2 Editorial of Lord Goldsmith Q.C. and Nicholas R. Crowley Q.C., “The Role of the Lawyer in Human Rights” in HR1 News (Newsletter of the IBA Human Rights Institute) Vol. 4, no. 2, 1999, pl. 3 Through the office of the Public Defender, the Government of Jamaica has requested that a report be done as a means of determining the culpability of persons involved. At the time this paper was written, no such report had been tabied in Parliament. the United States also sparked discussions about the Government’s ability to make certain guarantees under Mutual Assistance Legislations which might be seen as infringing the human rights of citizens. Extra-judicial killings by the security forces have also been cited by human rights group as an area which continues to be of grave concern.

Jamaica continues to be criticized for its approach to the issues of the Lesbian, Gays, Bisexuals and Transgender (LGBT) community. While there

is no specific law which outlaws homosexuality, it is a criminal offence for The role of the domestic judge consensual males to engage in sexual activity with each other.4 There are no in light of the Paradigm Human Rights provisions for homosexual couples to have their unions legitimized by the state and as such those couples do not enjoy the benefits afforded to such relationships under the law.5 The Charter of Rights has also been criticized on these issues as well. Critics have cited the failure of the Charter to make provisions for discrimination on the basis of sexual orientation and gender identity. The perceived inaction of the State in protecting the LBGT community continues to be a blemish en our human rights report card.

It also continues to be an issue which the country continues to struggle with 311 given the strong opinions and beliefs that is held by the Jamaican people on this issue. Recently, Women and Children rights have been included in the human rights challenges that are facing the country. With the high incidences of attack on our children and women, human rights lobbyist have observed that more needs to be done to protect these vulnerable members of our society. It is argued that episodes of sexual exploitation and sexual assaults which are inflicted on both women and children highlight the need for the state to strengthen the human rights of these individuals.

Freedom of Conscience and Expression is also another area where Jamaica has seen some challenges developing. Different sectors of the society have been voicing their concerns on the State’s action or inaction in some respects in interfering with their freedom to express themselves. Entertainers (popularly called “Deejays”) have been complaining about the States regulating, through the Broadcast Commission of Jamaica the content of their music. This action on the part of the State they argue runs counter to the ideals of a free society. Journalists have also added their voice to the mix as well. They have argued that the country’s antiquated libel laws are

4 Section 76 of the Offences Against the Person Act. 5 The Charter of Rights makes it abundantly clear that marriage is between a man and a woman. Section 18(2). of the Charter goes further to say that “no form of marriage or other relationship other than the voluntary union of one man and one woman may be contracted or legally recognized in Jamaica. This is also echoed in the Matrimonial Causes Act as well as the Property Rights of Spouses Act, which has given credence to common law relationships between heterosexual couples. an affront to the journalist ability to freely report and comment on issues. Interestingly as well Maurice Tomlinson a Jamaican Gay Rights Activists has brought an action in the Supreme Court of Jamaica against two of Jamaica’s major television station on grounds that their refusal to air a paid advertisement promoting tolerance in Jamaica amounts to a breach of his freedom of expression right.6 Gloria Smith

Supreme Court of Jamaica The above examples highlight some of the human rights challenges which are affecting Jamaica and other Caribbean Commonwealth Countries. It is important that action is taken to ensure that breaches of these kinds are not allowed to become pervasive. It is therefore important for ah l stakeholders within the judicial process, particularly Judges, to embrace a sense of activism in ensuring that the rights of individuals are given adequate protection.

Role of the judge defined

Judges are often viewed as serious characters wearing wigs and garbed in 312 red or black robes. The ordinary man often times does not perceive Judges as understanding and appreciating what is happening on the streets. However, in this new dispensation where human rights has become the foundation which informs much of our thinking, judges must now become au fait with what is happening outside the windows of their chambers. As was observed by Justice Honorable Enoch Dumbutshena,7 “lt is there [outside the windows of the judge’s chambers] that their judgments have an effect. It is outside there where justice is seen to be done or to be denied to the real people.” This philosophy should inform the Domestic Judges role in the protection of human rights. The Domestic Judge is now under an obligation to ensure that the jurisprudential products of such experiences are of a quality that further strengthens the human rights system within their domestic jurisdiction.

Understanding domestic and international human rights framework

Domestic Judges are to ensure that they do not act in an arbitrary manner when adjudicating cases involving human rights issues. Judges must endeavor

6 Silvera, Janet. Gay Activists Takes TV Stations to Court. Retrieved November 1, 2012 from http://jamaica-gleaner.com/gleaner/20121029/lead/lead4.html 7 Commonwealth Judicial Colloquium held in Abuja Nigeria in 1991. Justice Enoch Dumbutshena presented a paper entitled “The Role of the Judge in Advancing Human Rights Norms.” to apply human rights laws in a manner that reassures people that their rights will be protected as well as act as a deterrent to those who would seek to infringe such rights. To effectively discharge this function, Judges must understand the domestic and international framework which governs their human rights regime. In some countries such as Jamaica, local rights and freedoms of citizens can be found in Bills or Charters of Rights forming part of Constitutional instruments or existing in independent legislations. This is the domestic platform from which citizens derive locus standi to bring

Constitutional motions when aggrieved. Countries may also be signatories The role of the domestic judge in light of the Paradigm Human Rights to international treaties and protocols, which may give citizens additional rights. It is also important that Judges become familiar with such instruments, especially where such instruments have been ratified and incorporated into domestic law. Domestic Judges must also be familiar with Customary International Human Rights Law as a source of law. As will be seen further in this paper, this area offers Judges a unique opportunity to advance human rights causes in their respective localities as well as it can be a useful interpretive tool. 313 Having a sound knowledge of human rights treaties and other instruments will greatly assist the judge in better appreciating the diverse rights which are in existence, the State’s obligation in securing these rights and the redress or remedies available to individuals. The Judge will be better equipped to give effect and enforce these rights as well as to determine the merit of a particular claim.

Applying generous rules of interpretation to human rights provision

In ensuring that public confidence is maintained in the adjudication of human rights issues, Domestic Judges must employ principles of interpretation, which are favorable towards giving effect to human rights. Judges must not subdue themselves to the traditional principles of statutory interpretations when dealing with the application of human rights nor must they yield to the restrictive view that Bills of Rights are a mere codification of what existed.8 The Domestic Jude should avoid what Lord Wilberforce9 has described as “the austerity of tabulated legalism” when approaching human rights provision. Instead, Judges must seek to give a generous interpretation to such provisions as it is deemed to be the more

8 Barnett, Lloyd G. International Human Rights Norms and their Domestic Application: Judicial Methods and Mechanisms. Vol. 29. 9 Lord Wilberforce articuiated this position in the Privy Council decision of Minister of Home Affairs y Fisher [1980] A.C. 319, (328). effective means to give to individuals the full measure of the fundamental rights and freedoms referred to.10

Whilst the domestic Judge should be prepared to construe human rights liberally, he or she must be conscious of Limitation Provisions, which may affect the extent to which a judge may be able to apply such a canon of

Gloria Smith interpretation. In many countries the Legislature has been conferred with the

Supreme Court of Jamaica authority to abrogate the rights of citizens on the basis that it is reasonably required for the security or economic interest of the State. To counter the effects this may have on the Judges ability to liberally interpret human rights provision, it has been proposed that Judges may “invoke a heightened standard of judicial review” where it appears that the State is attempting to circumvent its human rights through limiting provisions.11 This mechanism will assists the Judge greatly in ensuring that he or she is able to give full effect to human rights considerations. It will also bolster the notion that the Judiciary is not fearful of the Legislative or Executive arms of the State and that the Judiciary will not shirk the important role which it has in protecting

314 the rights of citizens.

Giving effect to international human rights

In Contemporary Human Rights system, the Domestic Judge is expected to give effect to International Human Rights norm or standards (otherwise called Customary International Human Rights) as part of the mandate to promote human rights. International Human Rights norms are important, as they may give rise to rights which are not necessarily a part of domestic laws, but which the International Community of Nations has accepted as being a right. Since these are merely norms, the traditional view has been that unless such norms are contained in a ratified treaty and incorporated into domestic law, they cannot be legally enforced.12 However recent pronouncements, such as those encapsulated in the Bangalore Principles,13

10 Ibid, 9, it is to be noted that this approach which has been adopted by much of the Commonwealth Caribbean, including Jamaica. 11 Ibid, 7. 12 The Traditional view was commented on by Lord Atkin in the Privy Council decision of Chung Chi Chung v The King [1939] AC 160, (168). This is also in line with the academic school of thought known as “Dualism”. This school of thought advocates that international human rights law and domestic law are distinct and separate and thus the only way, international human rights law can become part of domestic law is by being incorporated into domestic legislation. This differs from the “Monist” perspective which contends that there is one system, with different aspects to the system. The monists believe that in this system international law is superior in that it represents a higher set of rules to which domestic law must yield. 13 These are principles which were formulated during Commonwealth Judicial Colloquium held in Bangalorc, India, 1988. As part of the concluding statement, it was said this approach have displaced this traditional thought and have given Judges the ability to rely on international human rights norms in giving effect to human rights provision in their own jurisdiction. Now, where there are issues of uncertainty (arising from a lacuna in the Common law, the Constitution or Statute), a Domestic Judge can seek guidance from the general principles of international human rights norms as an aid to interpreting domestic legislation. When Domestic Judges do this, Customary International Human Rights becomes part of the domestic system and this adds additional protection for citizens. Incorporation of International Human Rights in The role of the domestic judge in light of the Paradigm Human Rights domestic jurisdiction can have beneficial effects. The Privy Council decision of Pratt v. Morgan14 provides an excellent example of this. In that case the Judicial Committee of the Privy Council placed reliance on international human rights norms manifested in the various instruments not a part of the domestic laws of Jamaica to hold that it would be unconstitutional to carry out the death sentence after five (5) years. Judges should be encouraged by these happenings in the law, as they further support the importance International Human Rights norms can have on domestic human rights 315 systems. Domestic Judges must therefore not shy away from these important sources of human rights, but be ready to embrace and apply them when the need arises.

Need for an independent judiciary

It is all well that comments are being made on the Domestic Judges role in promoting human rights. But it would be very unfortunate if something was not said, albeit briefly, on the quality of the system which is necessary to promote the kind of judicial activism reference was made to. It is essential that the Judiciary is an independent institution. Independent in the sense that it is distinct from the Legislative and Executive arm of the state. In Commonwealth jurisdictions such as Jamaica, this sort of separation is manifested in what is called the separation of powers doctrine. The Judges who are appointed to the Judiciary must be able to execute their responsibilities without being influenced inappropriately. To insulate Judges from outside influence, certain basic structures should be in place providing adequate protection, compensation and security of tenure for Judges. Also the notion needs to be abolished that a human rights oriented judge or lawyer is ipso

shows a “Respect for the universality of fundamental human rights and freedoms and the vital role of an independent judiciary in reconciling the competing claims of individuals and groups of person with the general interest of the community.” 14 [1994] 2 A.C.1. facto subversive.15 As a matter of fact such persons add to the quality and efficiency in the overall administration of justice. Where such virtues are observed, Domestic Judges will be able to fully embark upon the protection of human rights within their own sphere.

Conclusion Gloria Smith

Supreme Court of Jamaica Eleanor Roosevelt, one of the drafters of the Universal Declaration on Human Rights had commented that Human Rights begin in “small places close to home, so close and so small that they cannot be seen on any map in the world. Unless these rights have meaning there, they will have little meaning elsewhere.” She is right. Unless human rights have meaning to the common man members of the legal profession, notably Judges would not have achieved their objective. The paragraphs before highlighted the role of the Domestic Judge in ensuring that human rights are given full effect. The Domestic Judge was first entreated to become acquainted with the domestic and international human rights framework which is to govern his

316 adjudication. It was then suggested that Domestic Judges apply a generous interpretation when construing human rights provision, but caution was given that this must done in the context that human rights are not absolute and can be limited legally by the State. It was however pointed out that Judges should be alert to spot those cases where the State is attempting to circumvent the human rights of his citizens under the guise of a limitation provision. Lastly, the Domestic Judge was motivated to incorporate and give effect to international human rights norms in domestic law. This will not only assist in the construction of such provisions, but it also adds to the menu of rights which can be enjoyed by citizens. It is hoped that if Judges strive to apply the principles espoused in this paper, it would allow them to better understand their roles in this very multi-faced human rights environment.

15 Ibid, 11. (apex) Courts as representatives, or representation without representatives1

András Sajó

Judge of the European Court of Human Rights

According to public expectations prevailing in contemporary democracies, popular election generates representativeness and the representativeness of political bodies grants legitimacy to the decisions of these bodies. Traditionally, the legitimacy of the judiciary as a mechanism of law enforcement and individual conflict resolution was not based on the same assumptions of electoral democracy. But with the advent of judicial review and constitutional adjudication, a new function was attributed to courts, and apex courts in particular: They have the power to review legislation that is deemed to be the legitimate expression of democratic popular will. This raises new issues of the legitimacy of courts.

In the present paper the representation problem is discussed in the context of apex courts like supreme and constitutional courts. The issue of their democratic legitimacy is related to, but distinct from, the demand that courts be socially or culturally representative of the society, or that they be democratically accountable through popular or other election. But representation is not an unambiguous concept. It connotes a wealth of meanings, including some that indicate that courts and their activities can be better conceptualized within broader concepts. In order to understand

1 © 2013. András Sajó. This paper is based on a Lecture given at Oxford University on 18th October 2012 organized by the Foundation for Law, Justice and Society. However, the following remarks do not concern the UK directly, given that the traditional doctrine of parliamentary supremacy and the absence of a written constitution minimize judicial review of legislation in Great Britain and hence the need for democratic representativeness of the judiciary. The author wishes to express his gratitude to Denis Galligan for his inspiring comments. 317 the basis of apex courts’ legitimacy when they meddle with legislation, the paper reviews various understandings of representation and applies them to courts. Beginning with a discussion of the legitimacy deficit of elected political bodies, I will first provide a short overview of competing concepts of representation in order to clarify elements of representativeness in the judiciary. Following Hanna Pitkin, the paper argues that representation is

András Sajó also an act of creation. It is in this regard that apex courts may contribute to the formation of social representation within the current constitutional

European Court of Human Rights mandate of constitutional and judicial review.

Courts Blamed for the Democracy Deficit of Pure Electoralism

Judicial and political branches of representative governments need legitimacy, though for different reasons. When courts act in the absence of legitimacy, in particular when they overrule legislation and replace it with their own solutions, they are attacked for usurping legislative power without

318 popular endorsement (and for not having proper skills or adequate procedures to understand or form conclusions about political questions). The charge of usurpation draws from the fact that judges are not elected, at least not popularly. Needless to say, this accusation is not always correct. Judges in the highest courts are generally indirectly elected, or appointed in cooperation with the elected leaders of other branches of power. Moreover, beginning with the French Revolution and continuing with a number of state courts in the United States, judges were and are popularly elected.

Notwithstanding the above criticism, it is not obvious that the election of judges by the people would lend legitimacy to judgments that run against laws enacted by representatives in Parliament. At the level of everyday experience, at least in some instances, the judicial election process —the way it is carried out and the resulting appearance of dependence on donors and electors— may undermine the independence of judges, as well as their entitlement to authority and respect. Similar arguments can be made in regard to the politically motivated selection of judges, a process that is quite common in the case of constitutional court judges elected by parliaments or appointed by specific political bodies (as in France).

The above criticism of judges’ lack of democratic representativeness is partly motivated by legislative (political) and populist discontent. More importantly, this criticism reflects a misunderstanding concerning the importance of elections: there are a number of processes of gaining power other than elections that can result in legitimate power. On the other hand, even fair elections can be insufficient to grant legitimacy, though they may offer, prima facie, a semblance of “democracy”.

Insistence on popular election might be doubtful even outside the judiciary, that is, with respect to other political bodies. The riddle of why and how legitimacy and authority emanate from the fact of being elected contains an element of mystery. It remains contested that the act of election amounts to a transfer of power from the electorate to elected representatives. In fact, elections rarely generate such a miracle, one that would be reminiscent (APEX) Courts as representatives, or representation without representatives of transubstantiation. All that a popular election does is to enable the representative to participate in the work of a legitimate organ of power. As David Plotke2 has demonstrated, the identification of democracy and elections was a tool for distinguishing Western states and totalitarian regimes. Today the dangers of falling into communist oppression are non- existent. Therefore, the thin concept of electoral legitimacy may not satisfy contemporary needs of power legitimation among the electorate, especially given current fears that individuals are losing agency. Of course, election as a fair procedure diminishes some of the democratic difficulties of 319 representative government. It also provides formal equality to citizens, without, however, enabling full self-government. After all, the fundamental expectation of self-government is captured in the slogan “let the people decide”. But being elected does not guarantee responsiveness to citizens.

Behind the attacks on the legitimacy of judicial review and related judicial interventionism that describe them as the usurpation of the legislative function, hides a second, partly different legitimacy problem. This legitimacy problem relates not to the judiciary, but rather the elected legislative branch. The representativeness of legislation is controversial and often lacking. Politicians act through Parliament in ways that appear in the eyes of the public as government by partisan bias and special interests. The free election of politicians and political parties looks insufficient on empirical grounds as a means of expressing the popular will and promoting the public interest. The electoral process is better designed for choosing among candidates than for channeling the will of the electorate, or even that of the majority. I leave aside the important problem of the statistical representativeness of elected office holders, an issue also relevant for the judiciary.

Politicians assert that by being freely elected they express the popular will, while other branches of power, critical of politicians’ performance, are

2 D. Plotke, Representation is Democracy, Constellations: Int’l J. Critical & Democratic Theory, 1997, pp. 19-34. acting without comparable popular legitimacy. Attacks on the non-elected judiciary originate in the fear among parliamentary politicians of losing status to judges and of having their legislative projects run into constitutional obstacles. They hope to keep their supreme and privileged position, and public immunity for their collective unconstitutional action, by successfully arguing that unelected courts are not legitimate in criticizing legislation.

András Sajó Whereas the legitimacy of constitutional review originates from the recognition of the imperfections of electoral democracy, the political bodies

European Court of Human Rights generated by the electoral process have to counterattack in order to protect their privileges. The defenders of rigid separation of powers and parliamentary supremacy claim that irrespective of the alleged shortcomings of the political branches, the judiciary has no democratic mandate to replace them in the realm of political representation. The popular will is to be expressed solely by the electorally anointed representatives of the people.

Irrespective of the possible sources or grounds of the attack on the judiciary, there is a broader and genuinely puzzling issue here. The politicians and

320 scholars who castigate courts for not being elected and therefore not being representative highlight a dilemma of governance and an intertwined difficulty of governmental legitimacy in the modern constitutional state. Modern constitutional systems grant increased powers to constitutional courts to protect the constitution and to international courts to protect and enforce international regimes. This does not sit well with a democratic concept of separation of powers.

It would be wrong to conceive of electoral representation only in the context of the political constitution of collective bodies. Electoral representation is also an attempt at self-government by the people. The two efforts, popular self-government and the constitution of a modern polity, were to some extent historically interrelated. But for practical reasons self-government occurs only through the mediation of representatives. Even in self- government the problem of the principal-agent relationship (the people being the principal and the representatives the agents) remains to be solved.

Facing disenchantment with electoral politics, constitutional arrangements have historically moved toward granting a greater role to the judiciary in the solving of the principal-agent problem.3 This shift towards the judiciary in the determination of certain issues which pertain traditionally to the

3 At least this was the prevailing trend until recently, when a strong intellectual counter- movement of judicial review scepticism emerged, as illustrated by the popularity of court bashing. See e.g. M. Tushnet, Taking the Constitution Away from the Courts, Princeton University Press, 1999. See further J. Waldron, Law and Disagreement, Oxford University Press, 2001. elected legislative branch was facilitated by the legitimacy of courts as defenders of justice. The modern state, in a mode that is different from that of the Kingdom or Empire, is to a great extent about Justice, or at least it claims so in the form of welfare justice. As Judith Resnik and Dennis Curtis have stated: “More recent social movements have transformed adjudication into a democratic practice, and courthouses have come to replace Justice as an icon not only of adjudication but of government more generally”.4

This form of judicial governance is a challenge to traditional nation-state- (APEX) Courts as representatives, based sovereignty where the legislative branch, i.e. Parliament, has the or representation without representatives ultimate and unlimited power, at least on paper. Where the legitimacy of constitutional review originates from the recognition of the imperfections of electoral democracy, the branches whose members are selected through electoral democracy, may have the tendency to counterattack the legitimacy of constitutionally mandated judicial review. The criticism of courts for being non-representative originates from the belief that political representation creates supreme and legitimate power. In many regards this simplistic truism serves the interest of the political status quo which finds it inconvenient to 321 be subjected to authoritative criticism by another branch. The truism is regarded as the foundation of political government in everyday discourse. It is reinforced by a shallow understanding of democracy. One of the crucial arguments of the elected branches’ counterattack is that irrespective of the alleged shortcomings of legislation, the judiciary has no democratic mandate to take on a lawmaking role, and not just because this would violate the separation of powers, even if sanctioned by the constitution. It is argued that without the democratic legitimacy quintessential for legislative power that originates in political/popular representation, judicial lawmaking is illegitimate. In the formative years of modern political democracy, French Revolution theorist Abbé Sieyès argued forcefully for vesting trust in elected representatives. He held them to be trustworthy for the very reason that they represent the people, and that elections provide a guarantee for the people’s trust.

Some separation of powers doctrines insist on exclusive powers of elected representatives, at least with respect to originating legislation. Democratic theory claims that legislation is the privilege of the elected branch precisely because the branch is electorally accountable and representative. However, new constitutional developments, such as the need to protect the constitution and the very complexity of governments, gravitate in favor of a

4 J. Resnik, D. Curtis, Representing and Contesting Ideologies of the Public Spheres: Representing Justice: Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts, Yale J. Law & Human, 2012, p. 19. more mixed system of legislation and a more nuanced understanding of the inter-branch relations. The involvement of the judiciary in legislative dialogue has gained traction. For the judiciary to be involved in the electorally legitimated democratic and constitutional process, it must demonstrate its accountability. Representativeness is or could be part of that process. András Sajó Representativeness: A Contested Concept European Court of Human Rights

The debate about the proper allocation of powers within the constitutional system cannot solve the deeper issue of the representativeness of the democratic political system. Even in those democracies where parliamentary sovereignty is not the prevailing doctrine, it is not clear how far judicial review may extend, given the importance of the separation of powers, and especially given that legitimacy for the whole system comes from democracy, which operates through electoral processes. 322 Representativeness of the democratic polity has become a contested concept. Huntington was quite clear in regard to the performance of electoral representativeness: “Elections, open, free and fair, are the essence of democracy, the inescapable sine qua non. Governments produced by elections may be inefficient, corrupt, shortsighted, irresponsible, dominated by special interests, and incapable of adopting policies demanded by the public good. These qualities make such governments undesirable but they do not make them undemocratic. Democracy is one public virtue, not the only one”.5

Representative government is first and foremost a democratic technique of legitimating power. It defines the subjects participating in the selection of delegates and the process of selection, and it claims legitimacy on the grounds of satisfying these preset criteria. Electoral representation is also an attempt at self-government by the people. But elections do not guarantee self-government. “The people”, composed of individuals, is not necessarily really governing itself. Representation is a constitutive act of self-government. By defining a form of representation, the represented create the community that they themselves would like to govern. This is the creative aspect of self- government as representation.

5 S. P. Huntington, The Third Wave: Democratization in the Late Twentieth Century, Oklahoma, 1991, pp. 9-10. Self-governing people (individuals and the community) are driven by a common sense or ordinary meaning of representation. In this ordinary meaning, representation presupposes some correspondence or reproduction: The represented object or subject wishes to see some commonality between himself or herself and the products of representation. There are uncertainties, however, as to who and what is to be represented. In the simplest terms representation as a political concept relates to Parliament. Traditionally, a Member of Parliament is conceived either as a delegate or as a trustee. The latter metaphor potentially reduces the MP’s accountability, and it is no (APEX) Courts as representatives, surprise that it is favored by power-holders. Of course, dissatisfied members or representation without representatives of the electorate complain as if their MP were a delegate, or at least a trustee in breach of trust.

A terminological clarification that is obvious in some languages is useful at this point. There is a difference between what the German call vertreten and darstellen, a difference between what the representative does and what the representative is (what is he “standing for”). Speaking in legal terms, Vertretung is a mandate. Perhaps because of the power of the ordinary 323 meaning of words, this is the standard expectation of German citizens regarding the delegate. For scholars like Hanna Pitkin, however, representation goes beyond strict mandate, and it includes all the acts of the mandate-holder, irrespective of ultra vires. This role is close to the role of the guardian. Guardianship as a political concept, however, smacks of paternalism. The second meaning, darstellen refers to a loose reproduction of an original, the reproduction of a single feature. In terms of political decision-making it refers primarily to the actualization of the wishes or desires of the represented. John Stuart Mill, in his Considerations on Representative Government, stated that what makes government representative, beyond maintaining the consent of an educated people, is taking public opinion into consideration and making decisions that correspond to it.6 Finally, it should be added that in German a third term is also used for representation, namely that of raepresentieren, which means the incorporation of a moral principle or notion. This may, of course, be relevant for what constitutional courts do in a Dworkinian sense, but one has to admit the ambiguity of such an approach. This ambiguity becomes clear in the meaning attributed to Raepresentation by Carl Schmitt. For Schmitt this term means the making publicly visible of something existential. The mystical uncertainties of what he calls “existential” cause difficulties for this theory with respect to legal certainty and democracy.

6 J. S. Mill, Considerations on Representative Government, Everyman’s Library, 1936, 175. The relation to public opinion will play a role in the representational efforts of apex courts too. To end this survey it should be added that representation is often understood as similitude, which is also a source of legitimacy. Similitude is understood, among others, as a guarantee of identity. Where the issue is law, politics, art, or even everyday virtue, the authenticity of the represented is of utmost importance. Similitude is a sign or proof of such authenticity. It looks like the original, it has its characteristics, and it is, therefore, authentic even if it

András Sajó is not the original and even if it is not identical. All this points to Plato, and to Aristotle’s concept of mimesis. Originating in concepts of aesthetics,

European Court of Human Rights there is a form of political representation that is based on the correspondence with the represented. The correspondence is not necessarily limited to the individual or community but also to their fundamental characteristics; in contemporary politics, the similarity of some characteristics of the representative to the represented is ordinarily considered a sufficient justification for the representative’s authority (see the “One of Us” ideology). This is particularly true in identity politics, where political representation is understood as identity representation. Similarity is crucial for representativeness in populist democracy: representativeness means 324 popularity in public culture, on television in particular. If politics and political choices operate in the same manner as show business, or “politique spectacle” as the French call it, then representativeness corresponds first and foremost to attractiveness and sex appeal. Attractiveness is a function of similarity, similis simili gaudet. Achieving popularity in elections means being selected for the traits that reflect the identity of the people making the choice. To a considerable extent, popularity based on similitude thus serves as the basis for electoral choices. Similitude fosters acceptance of the representative and therefore to his or her legitimacy.

In order to address the representation issue in the context of courts, one must look briefly into competing concepts of political representation. A quick glance at the history of concepts and practices of representativeness and representation indicates that electoral representation’s cachet results from the power of mental oversimplification in politics. Representatives, representativeness and representation are distinct concepts and their indistinct use in the everyday discourse of representative government is part of the war of legitimacy. Following Hanna Pitkin, I understand political representation as an act of creation, including the creation of the very community that is represented. For Pitkin, political representation is not static, it is not a matter of perfect correspondence, but of selecting “which characteristics are politically relevant for reproduction”.7 Talleyrand was able to capture this dialectical or “creationist” meaning at the very moment

7 H. F. Pitkin, The Concept of Representation, University of California Press, 1967, p. 87. of its enfolding. This is what he said in the debate on the binding mandate at the National Assembly in 1789: “The deputy […] who was charged by the electoral borough [bailliage] to will in his name is charged to will as the borough would have willed, were it transported to the general meeting, that is after having maturely deliberated and compared all the motivations of the different electoral boroughs”. For Talleyrand it is the liberty of the deputy to deliberate that makes him a genuine representative.8

The election of representatives was historically understood as a constituent/ (APEX) Courts as representatives, or representation without representatives reaffirmative moment in the sense that the political community was reaffirmed by the fact of electing local representatives. This approach lies at the heart of Burke’s famous Bristol address of 4 November 1774. Burke expressed his “poor sentiments” in the following famous terms:

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of 325 the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament.9

Needless to say, in the 18th century political landscape of single constituencies and in the absence of political parties, Burke lost his seat in Bristol, though not necessarily because of the electorate’s dislike of his honorable theory. It is more likely that merchants of Bristol were not particularly inclined to accept free trade, which was advocated by Burke; it was certainly a public good at the imperial level, but a disaster to their treasure chests.

Though the binding mandate has been pushed out from modern constitutionalism, the mandate problem resurfaces in radically democratic

8 Talleyrand on 7 July 1789 at the National Assembly, Archives parlementaires, Tome 8., at 201, quoted in P. Brunet, La representation, in M. Troper, D. Chagnollaud (dir.), Triaté international de droit constitutionnel, Tome 1., Dalloz, 2012, p. 629. 9 E. Burke, Speech to the Electors of Bristol, 3 November 1774, Works 1:446-448, in P. B. Curland, R. Lerner, The Founders’ Constitution, University of Chicago Press, Liberty Found, 2000. Vol. 1, Ch. 13, Doc. 7. Available at . It is quite remarkable that in Conor Cruise O’Brien’s magisterial work on Burke this radical innovation of political theory is left out from the long quote from the Address that is understood as an act of personal honesty, which it indeed was. This is an astonishing example of the difference professional perspectives may cause. See O’Brien, The Great Melody. A Thematic Biography of Edmund Burke, University of Chicago Press, 1993, p. 75. propositions. Different forms of referendum bring into representative government elements of the binding mandate and is not unheard of in contemporary constitutionalism.

Contrary to Burke, whose main concern was a government that represents common interests, the delegates of the Third Estate in France (in search of András Sajó the general will) assumed that political representation was about collective representation and not the representation of a specific sub-entity of actual European Court of Human Rights citizens of any electoral borough. In this regard, election-based representative democracy is a specific method of self-definition for the collective political entity. The collective body to be represented is constituted by the very representation, it can exist solely through a special identification process that occurs primarily through elections. Of course, at least in principle non- democratic representation may also do the trick, for example via corporate or estate delegates, as long as they act as constituents of a collective. The popular electoral process is, however, more credible because it fits into individualist equality. It was egalitarian democracy that gave a new credibility 326 to the legitimacy of elected representative governments. As Thomas Paine stated:

The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives. The rich have no more right to exclude the poor from the right of voting, or of electing and being elected, than the poor have to exclude the rich; and wherever it is attempted, or proposed, on either side, it is a question of force and not of right.10

This revolutionary idea of equality was in clear contrast even with the French revolution’s prevailing ideas of national representation (except for a brief moment in 1792 in the election to the Convention nationale.) In the long run, however, electoral representation became a legitimate means of satisfying enhanced demands for equality, in the sense that in principle all citizens —all those affected by the common decision— have equal standing in the general election and hence in the determination of the policy through elected representatives. But the election of the representative is understood to be a temporary power-granting act: The electors transfer their decision- making power. This conception of representation as something that is

10 T. Paine, Dissertation on the First Principles of Government, 1795, Life 5:221-225, in P. B. Curland, R. Lerner, The Founders’ Constitution, University of Chicago Press, Liberty Found, 2000. Vol. 1, Ch. 13, Doc. 40. Available at . equally shared by citizens resulted in the comfortable slogan that being popularly elected grants power to govern. However, this conclusion is not inevitable, and it does not sit comfortably with Madison’s concept of constitutional self-government.

Madison considered representative government, i.e., government by the elected few, to be an antidote to direct self-governance (understood as unruly democracy). He claimed that passing views through the medium of a chosen body offers better wisdom. This concept of mediated self- (APEX) Courts as representatives, or representation without representatives government is only distantly related to contemporary understandings of democracy, a word that was anathema in the early days of people’s power and constitutionalism.

It is well known that Madison considered the republican form of government a dispassionate, professional, and therefore a good institutional arrangement against factionalism. In this mediated process the election offers chances to bring in less biased decision-makers, and people who are above local prejudice: 327 Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.11

In other words, the Madisonian argument for representative government was not based on a concept of mandate or delegation, or even true representation of the Nation as a community of interests and values. Instead, government is just a space for rather transparent interest negotiation, which has built-in mechanisms to prevent extreme preferences from prevailing.

Political representation is a historically established solution to the specific difficulties of coordinating collective entities, including political entities. It enables a collective to appear as a singl entity. Representation is discussed in terms of authorization, both in regard to the constituent elements (e.g., citizens) and to the external world. In many regards correspondence —i.e. correspondence with the constitutive elements— is the source of authority: the citizen accepts the decision of the delegates because she recognizes herself as an actor of the decision, or at least she recognizes in the decision

11 J. Madison, The Utility of the Union as a Safeguard against Domestic Faction and Insurrection (continued), The Federalist, November 22, 1787, No. 10. her wishes and her identity. The contemporary criticism of elected representatives and of democracy is based on the assertion that such recognition does not occur because similitude is absent. Representative governments cannot be representative as they are alienated from the electorate; the electors do not recognize themselves in the delegates nor do they find their preferences reflected in the collective acts that emerge

András Sajó from the deliberations of the representatives. This might not be a relevant objection in a Burkean theory, but the underlying criticism is related to a

European Court of Human Rights non-Burkean theory of representation, namely that of representation being the faithful image of an original. The idea of a faithful image animates a fundamental contemporary psychological concern at the level of everyday political practices with serious political consequences.

Historically, correspondence, mandate (civil law delegation) and election were prescriptive concepts that served to generate legitimate political power. Although to some extent their existence in politics is parallel, they are sometimes in competition. The interrelations between these concepts can

328 be demonstrated with reference to development of the power of the Christian congregation over its members, and later on the power of church leadership over the congregation and the Church. The medieval way of thinking about this relationship influenced modern concepts of political representation of the state. In one approach, the congregation or even the whole community of Christians is a mystical body in need of a representative, i.e., a decision-making head. This approach was abandoned when it became necessary to affirm the power of the King over an increasingly sovereign state, where sovereignty meant the supreme and exclusive power.

Parallel to this concept of representation of the body is the Roman law concept of the mandate. The distinct body was enabled one way or another to give instructions as to how to be represented, or at least, it was supposed to be bound to respect some inherent characteristics and interests of the represented. This relationship is like a guardianship as in the case of minors, widows etc. To some extent the identification element of representation was amalgamated into the concept of royal power as representation of the community. The National Assembly of the French Revolution was composed of the representatives of the Third and Second Estate, who were elected with clear binding mandates on behalf of specific communities which were considered to constitute the realm (though the realm was already represented in the body of the King). Technically, of course, the difficulty with this binding mandate was that such a mandate would have made it nearly impossible for those assembled on behalf of the Third Estate to work towards their radical national plan. But the real issue was the recognition of the national collective entity beyond the King in the existence of elected representatives, who were in their individual capacity authorized to represent the Nation by being locally elected. In these circumstances, they recognized each other as being elected on behalf of the Nation, where the Nation or the People could not have existed, or at least could not have expressed itself, outside its representative body.

While concerns about the communities (national versus local) that legislators represent are not absent from contemporary constitutional (APEX) Courts as representatives,

thought, they have been overshadowed by democratic equality ideologies or representation without representatives which are in partial conflict or tension with these more community-oriented concerns. For practical purposes the emphasis was and is on the empowerment of the individuals who constitute the people. It is in this context that the act of election was singled out and elevated to a method of formally legitimating the power of legislators. Nevertheless, the products of the elected representatives are not necessarily representative.

At this point, the need for trustees acting for the insufficiently represented 329 collective entity or its good comes to the fore: are constitutional courts such trustees? If so, what are these courts going to correct, and how? After all, most constitutions with strong constitutional review provisions mandate only the protection of the constitution and the rights and competences written into the constitution. This is not necessarily an invitation or authorization to correct misrepresentations of the will or identity of the people.

The discontent that originates from popular dissatisfaction with political/ parliamentary representation can be articulated as one of improper representation of the intentions of the individual subjects. This approach is what Hanna Pitkin calls a “one-to-one, person-to-person relationship”. For Pitkin, however, representation is a “public, institutionalized arrangement” where the arrangement is intended not only to promote the public interest but also to be “responsive to popular wishes when there are some”.12 In other words, representation is satisfactory if it is responsive. Other formal theories of legitimation in constitutional theory seem to suggest that is a one way street, which contributes to the democratic deficit and growing political alienation of minorities. This alienation is particularly pronounced where these minorities remain electorally unorganized or where they can only be heard after giving up certain constituent elements of their identity and existence.

12 H. F. Pitkin, The Concept of Representation, op. cit., 221, p. 233. Political representation is a principal-agent problem. A normative theory of representation thus has to answer, first, what makes the principal honor the commitments of the agent. Second, what makes the agent honor the preferences of the principal? Third, a theory of representation should consider that, at least at a certain point, the principal should pass judgment on the content of the agent’s decision or performance, beyond the fact

András Sajó that the agent had the right to act. It seems to me rather a shallow claim that authorization by formal election, and accountability, if it exists at all, are

European Court of Human Rights sufficient for asking the electorate (and the community) to honor the agent’s decisions, though this would follow under a contract theory of mandate (though ironically electoral authorization denies contract theories).

This takes us to the interrelation of the representative, the represented and the representation. So far the emphasis has been on political representation as electoral representativeness. But even if the representatives are a constitutive and renewable element of the represented community—that is, if the community is shaped by the very act of selecting the representatives

330 and by allowing the representatives to shape the community—this does not grant them legitimacy. All that follows from being elected is a sort of procedural legitimacy because representatives must act within the formal rules. For substantive legitimacy, the act of representation has to be recognized by the represented as their own act, an act corresponding to their wishes or accepted by their future actions. However, popular participation in decision making is generally limited to electoral choice; the elected can therefore feel alienated or even betrayed. They understand themselves as not being represented. They see no representation in the sense of similarity, which boils down these days to identity and identity politics. The same applies to representation on the basis of a mandate, which is the alternative justification of the legitimacy of representation that has been in many regards out of favor after Burke’s address to the electorate in Bristol. Binding mandate is a constitutional rarity and only floor crossing is an issue: electoral promises are “more honored in the breach than in the observance”.

Judges as Trustees: Traditional Theories

The idea that courts and judges fit into one or another form of representation was historically quite widespread. Of course, the primary role of judges is understood to be conflict resolution according to preexisting rules. Therefore the standard problems of political representation cannot be simply transferred to the judiciary. However, we pose the question: Ought a judge do what his constituent society wishes, or what he thinks best for society? This question seems to be fundamentally contrary to the notion of unbiased and independent judicial decision-making. But an independent decision- making process does not rule out the representativeness of the judicial product. If the judgment should be some kind of correspondence and therefore representation, even if primarily to a textually reflected image of the popular will, the consequences of the decision’s representational value do matter. If judges have a duty to represent and make visible a legal reality, is this a factor constraining or enlarging judicial power? Burke, halfway between tradition and modernity, considered judges to be trustees of the (APEX) Courts as representatives, or representation without representatives people, in the sense that the King was also a trustee. 13 The French revolution reflects an ambivalent position in this regard: Judges were elected in the name of a representation theory of the Nation. This was intended to counter traditional concepts of Parlement, the territorial judicial authority in the Ancien Regime. The judges, like the delegates of the National Assembly, were seen as decoupled from territorial communities. This decoupling was intended to reinforce centralization without increasing the powers of the King. However, the French judge was not considered a delegate. The insistence 331 on elected judges stemmed from the election frenzy of the Revolution: That was the first age that succumbed to the sex-appeal of a simplified popular representation – legitimacy by participation. Election was the ultimate source of legitimacy. In 1790 even priests had to be elected in revolutionary France. Election of judges was also seen as a remedy against the venality and corruption of the earlier system of judicial appointments.14

It should be added that except in moments of revolutionary fervor, the practice or even theory of popularly elected judges was hardly ever popular outside the United States. In the United States the Founding Fathers did not contemplate the popular election of judges. Nevertheless, in the populist movement of the early decades of the 19th century, popular election became

13 “It would (among public misfortunes) be an evil more natural and tolerable, that the House of Commons should be infected with every epidemical phrensy of the people, as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of the people out of doors. By this want of sympathy they would cease to be a House of Commons. For it is not the derivation of the power of that House from the people, which makes it in a distinct sense their representative. The king is the representative of the people; so are the lords; so are the judges. They all are trustees for the people, as well as the Commons; because no power is given for the sole sake of the holder; and although government certainly is an institution of Divine authority, yet its forms, and the persons who administer it, all originate from the people”. E. Burke, Thoughts on the Cause of the Present Discontents, 1770, Works 1:347-349, in P. B. Curland, R. Lerner, The Founders’ Constitution, University of Chicago Press, Liberty Found, 2000. Vol. 1, Ch. 13, Doc. 6. Available at . 14 T. L. Anenson, For Whom the Bell Tolls: Judicial Selection by Election in Latin America, 4 Sw. J. L. & Trade Am., 1997, 262, argues that popular election would be appropriate in Latin-America, given the need to be responsive to local community needs, and in the fight against corruption. attractive in some of the American states. Today in a number of states in the US, and very exceptionally in Japan and Switzerland, state court judges are popularly elected. Courts of commercial arbitration (recognized by members of a chamber of commerce) and religious and community tribunals are sometimes elected. The 1993 constitution of Peru provides that judges can be elected, but no use has been made of this enabling provision. Apex

András Sajó courts, being closer to politically relevant decision-making, are often indirectly elected (i.e., they are often elected by political branches). Non-

European Court of Human Rights popular election (i.e., election by Parliament) is more common, especially for apex courts. Such election, just like appointment by the political branches, is problematic in part because it undermines impartiality and independence. In one country, the members of the federal tribunal are elected by legislators for a period of six years, are eligible for re-election and the parliamentary tradition is that judges are elected in proportion to the political party representation in that Parliament. One of the major parties recently declared that judges who consider international law applicable against domestic law are to be considered ineligible on the ticket of that 332 party. I will not name this democracy but it is clear to see that this approach is based on a firm belief in representation through parties.

The French liberal theory of the 19th century accepted that the judge is a representative of the Nation but has a function that is different from that of political representatives.15 This was never considered to be an argument for popular election. Contemporary continental legal ideology maintains the core of the 19th century concept insofar as judges exercise their power on behalf of (and in the name of) the Nation. The objections to a contemporary judicial representation theory might be the following: As a rule, courts cannot have formal legitimacy as representatives because there is no way a constituency may formally recognize them or their acts as representing the people. Traditional, election-based answers to the principal-agent problem are in conflict with the judicial function and the rule of law (in the sense that judges are law-bound). There is no specific political community that would recognize a court as its own representative. While transparency and accountability are democratic concerns that apply to the selection of judges, it does not follow that democracy requires popular election.16

Like politicians, judges are in some ways accountable for their decisions, and accountability of some elected officials is comparable to that of judges.

15 Laboulaye, Séance du 21 juin 1875, Annales de l’Assemblée nationale, 1875, Tome 39, 86. Cited in Brunet, La representation, op. cit., p. 635. 16 J. Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, CLR, 2004-2005, p. 579. The accountability of parliamentarians is limited as it does not apply during their mandate, and it is not personal vis-à-vis the constituents who vote for parties. To the extent that a judicial decision is subject to review, judges are accountable, and disciplinary requirements are stronger for judges than for politicians. As to apex courts, there is less direct accountability, but to a considerable extent their decisions are renegotiated in legislation and in lower courts.

The appropriateness of popular election of judges is particularly hotly (APEX) Courts as representatives, debated in the United States, especially because of the distortions inherent or representation without representatives to the judicial electoral process, with all the resulting conflicts of interest. Should judges be elected at all, rather than appointed in a non-popular selection process? In this regard I limit myself to quoting The Economist. The weekly magazine discussed the matter in the following terms: “Back in 1906 Roscoe Pound, a scholar at Harvard Law School, started a campaign to have judges appointed by saying: ‘Putting courts into politics, and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench.’ When he spoke, eight in 333 ten American judges stood for election. Today, the figure is 87 percent. Americans are still reluctant to accept that politicians should be chosen by the people, but not judges”.17

Undeniably, judicial selection is an important problem for democracy, and where the dominant mode of legitimation is by popular election, judicial selection is under stress. To quote Resnik and Curtis again, “Democracy has not only changed courts but also challenged them profoundly. Egalitarianism poses deep problems for polities that have thus far been unwilling to commit the resources that would support all the adjudicatory opportunities promised”.18

The legitimacy of the selection or election process has to satisfy a number of sometimes contradictory considerations. The legitimacy of the judiciary, and apex courts in particular is sometimes evaluated in terms of the background of judges (gender, minority status, or, especially in the case of international courts, national diversity).19 However, this matter is better

17 Guilty, Your Honour? This year’s judicial elections may be worryingly free-speaking. (The Economist, 22 July 2004). For a review of judicial selection and arguments against popular judicial election see e.g., L. Epstein, J. Knight, O. Shvetsova, Comparing Judicial Selection Systems, Wm. & Mary Bill Rts. L. J., 2001, p. 7, 18 J. Resnik, D. Curtis, Representing and Contesting Ideologies of the Public Spheres: Representing Justice: Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts, op. cit., p. 24. 19 The European Assembly, the representative body that elects the judges of the ECHR has formal rules on achieving gender balance and as an international court it is based on the framed in terms of diversity and not representation. Of course, the social composition of the judiciary is a genuine problem in terms of potential class or group bias. Wolfgang Kaupen’s pathbreaking research has demonstrated that the family background of the German judiciary did play an important role in their interpretation of the law, which might have had an impact on the public perception, and reluctant social acceptance of the judiciary.20 But

András Sajó I will limit myself to problems of judicial representativeness as symbolic representation. More properly, we are confronted here with the signaling

European Court of Human Rights function of selection resulting in some kind of representation of people or recognized virtues of society. Here the representation is understood in terms of likeness or similarity: In this approach, the socio-cultural background of the composition of a court or of the whole judiciary is understood to signal political preferences. Here the issue is: do judges in their person reflect society correctly? Is it correct from the perspective of constitutionalism and is it possible as a matter of practicality that courts, and apex courts in particular, have to be socially representative in the sense of reflecting the socio-cultural composition of society? In a broader sense: Political recognition 334 of social diversity increases the symbolic legitimacy of courts but is this a (proper) source for the legitimacy of judgments, which are in principle legitimate because they correspond in a specific way to laws, and perhaps result in socially acceptable conflict resolution? The representative social diversity of the judiciary may signal important political choices, but it enhances legitimacy in law only to the extent that it creates a prima facie respectability: The socially representative court is less likely to be elitist. It promises the respect of all of us by embodying traits that are similar to the body of people it represents. It does not necessarily provide an internal legal legitimacy. Special personal experiences of the judge related to his or her social background may contribute to better understanding of a problem, but this idealized improvement of background knowledge does not guarantee legally credible judgments. Justices Thurgood Marshall and Clarence Thomas offered opposite solutions to discrimination on the basis of their somewhat similar life experiences and racial background. Judgments are not expected to represent public opinion in the statistical sense. The politics of mirror representation correspond to a concept of symbolic representation. This has important political functions, especially in terms of identity politics.

Irrespective of its pragmatic merits, the ideal of social likeness that is based on the socio-cultural composition of the judiciary is open to criticism.

rule that each state has to have a judge on the court, justified by equality of states as sovereigns. 20 W. Kaupen, T. Rasehorn, Die Justiz Zwischen Obrigkeitsstaat und Demokratie: Ein Empirischer Beitrag zur Soziologie der Deutschen Justizjuristen, Luchterhand, 1971. Hannah Pitkin describes such likeness as a strategy of power. The representative judges are appointed within a power game between the ruled and the ruler, where the ruled accept leadership. Here the ruler (the agent) is not identifying himself with the electorate through shared or jointly developed policy goals but he works “on the minds of the people who are to accept” leadership.21 While soft quota may serve symbolic representation and increase credibility among certain excluded groups (and it may well be part of a general affirmative action project) the genuine issue is more one of exclusion than inclusion. Singling out certain relevant experiences and (APEX) Courts as representatives, or representation without representatives representations excludes other experiences a priori. For example, to insist on prior judicial experience in the nomination of human rights judges disregards the relevance of human rights advocacy or academic experience.

Traditionally it was assumed that legislation’s “constitutional role is to be representative rather than impartial, to make policy rather than to apply settled principles of law”.22 However, we live in a world where the government’s promises to serve the public good are not observed. In order to correct this mischief of bias, where the corrective power of the democratic process does 335 not manifest itself, or where such correction might be delayed with serious consequences, a traditionally judicial virtue may come to the rescue. Here the shortcomings of the democratic process are remedied by judicial intervention, primarily through judicial control of legislation and of the political branches more generally. Moreover, rule of law and other settled principles do matter even to legislation. When it comes to the rule of law, or to blatant human rights violations, lawmakers have difficulties relying on the fact that they are representative in one or another sense of the term, since they may sometimes need to disregard socially endorsed values in favor of recognized principles of law. (Retroactive legislation, for example, remains an aberration even if supported by the majority.) Moreover, government is expected to do more than govern—it must also satisfy demands for some kind of justice, which is a traditionally judicial function. Judicial interference in matters that are socially construed as issues of justice are easy to accept. Indeed, one can see that public administration is increasingly judicialized. For example, it is increasingly accepted that hearing officers are built into the system of US federal administration.

The opposition between making and applying policy that was so elegantly articulated by Justice Powell is increasingly blurred. Given the political bias of legislation, constitutional courts (referring to various constitutional

21 H. F. Pitkin, The Concept of Representation, op. cit., p. 101. 22 Fullilove v. Klutznick, 448 U.S. 448, 502 (1980) Justice Powell, concurring. formulations) assume that the ordinary political-legislative process has to observe fundamentals of impartiality and fundamental principles of law. I will argue that apex courts do have a constitutional mandate to correct certain imperfections of the representative system. They may even correct some of the bias of legislative choices to the extent that these choices do not represent the constitution’s vision of society. András Sajó

Where the political system itself denies some people participation in self- European Court of Human Rights government, the system of representation will be flawed. This flaw creates a clear task for the apex courts, which legitimately interfere to correct this shortcoming. Secondly, when courts stand up on behalf of the excluded, they represent the interests of the excluded in the fashion of a guardian, without a mandate coming from, or through, election. In this regard courts are delegates without a mandate; they act as if being delegated by the powerless. A second representative function is clearly encompassed by the theory of “insular minority” protection. In this regard it is the constitutional duty of courts to provide protection to those who are excluded from the 336 minimum protection that stems from participation in the democratic decision-making process. This was the famous program of the Supreme Court outlined in Footnote Four of Carolene Products.23 In this sense, constitutional and human rights courts do have a representative function; they correct flaws in electoral process, enabling the participation, and therefore representation, of the excluded. In a broader sense, it is a constitutional issue, and therefore, at least to some extent, a matter for the courts, to participate in the definition of the people, that is, who is entitled to participate in elections, or who is to be represented; in other words who is “the people”. The Supreme Court of the US decided the question of assisted suicide on these grounds: It was held in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) hat there is no federal right to assisted suicide and this is a matter or right to be determined by the people of the various states.

Moreover, at least some courts consider themselves as having a duty to provide special protection to the historically oppressed and vulnerable who cannot have proper substantive representation through the political process, though the justification is generally based more on dignity than on equal electoral rights. The Supreme Court of India sometimes acts as the representative of the powerless (without special mandate). This may fit into Pitkin’s concept of “substantive acting for others”,24 but the courts only

23 United States v. Carolene Products Co., 304 U.S. 144, 155 (1938). 24 H. F. Pitkin, The Concept of Representation, op. cit., p. 141. rhetorically refer to the represented and prefer references to rights and values.

It can be argued that the popularly elected delegate has a better understanding of the appropriate action to take than the judge whose horizon is case-bound. This is not fully correct. Within the understanding provided in law and precedent, the judge is in a situation comparable to the legislator. What makes the difference is that the judge is not acting on behalf of the constituency and is, perhaps, less concerned with secondary (APEX) Courts as representatives, consequences. But this is a big “perhaps”. A constitutional court, however, or representation without representatives is not expected to follow the best or “objective” interests and will of the constituents (understood as national community), but rather, only certain values embedded in the constitution. The court’s legitimacy comes from the constitution on behalf of the community as a whole that accepted self-government. The assumption is that the constitution describes the “genuine”, fundamental value preferences of the constituency, irrespective of the actual majoritarian or other preferences. The courts may bona fide claim that specific constitutional values that the court relies upon in quashing 337 legislation serve the interests of the underrepresented.

Representation of Fundamental Constitutional Values

The above corrections to electoral democracy are either procedural, or concern indirect interest representation for those whose most fundamental constitutional rights cannot be meaningfully taken into consideration in the majoritarian legislative process given the persistent distortions built into that process. There is, however, an additional concept of representation-based judicial intervention that relies on the need for substantive representation. In some instances apex courts are understood as representing or acting on behalf of fundamental constitutional values that are unrelated to specific constituencies. In practical terms, the “insular minority/vulnerable group interest representation” and the “fundamental value/substantive representation” concepts overlap. It can be argued that courts “represent” people in one or another of the above senses, thereby complementing elected democratic institutions, for example by identifying and sustaining the people’s fundamental values. Even when the empirical people turns against such attributed values, for example through its elected representatives, the theory holds that courts still faithfully and legitimately represent and defend genuine popular wishes. According to this understanding, courts sustain the very democratic system that enables people to self-govern while fully respecting all of the members of the community. At this point it is appropriate to recall Burke once more. He attributed to the House of Commons the duty to act in harmony with “the public sentiment of people”.25 This is what Hamilton called “a due sympathy between the representative body and its constituents”.26 Constitutional judges may be capable of reasoning in harmony with the public sentiment, for example by taking notice of uncontested judicial findings emerging in the laboratory of András Sajó lower courts that reflect public sentiment. Judicial representation of people’s “true” constitutional self (if it exists at all) has the advantage that the European Court of Human Rights judiciary is not beholden to special interests or party politics, and can avoid the pragmatic and temporary pressures created by shortsightedness and whim. But the judiciary’s representation will never be purely reflective of the public’s opinion and sentiment; it will be selective and creative too, in the hope that thanks to its own legitimacy, the people, at least by acquiescence, will recognize the accuracy of the judicial finding.

From the perspective of theories of representation, when courts stand up for

338 underlying social and constitutional values, adding to, or even contradicting legislation, such acts may count as representation of the community so long as they may be “in some way or for some reason, […] be ascribed to another”,27 i.e. the represented. I hasten to add that even if this claim of representation makes sense, it cannot, in itself, make the act of judicial interpretation constitutionally legitimate. Constitutional adjudication has to satisfy specific requirements of formal constitutional legitimacy. However, constitutional legitimacy is not a purely formal legal issue; it has clear political and even cultural dimensions.

Are constitutional value judgments generated or confirmed by courts representative, especially where they supplement legislation? How can we evaluate such claims of representativeness? These judgments are acts of re-creation, they bring into presence an already existing practice or value. The pre-existing is reinforced, legitimated by judicial endorsement. A fair number of social acts must point in the same direction in order to qualify as a pre-existing practice or value. The re-creativity in judicial review is limited by the constitution and by the previous acts of the apex court. Moreover, such constitutional value judgments need at least tacit endorsement by the represented community, for example through acquiescence.

25 E. Burke, Thoughts on the Cause of the Present Discontents, op. cit. 26 A. Hamilton, Concerning the General Power of Taxation (continued), The Federalist, January 5, 1788, No. 35. 27 H. F. Pitkin, The Concept of Representation, op. cit., p. 139. This type of judicial action on behalf of the community may be legitimate, at least in the eyes of a constitutional theory that recognizes that democracy (and parliamentary representation in particular) needs corrections. But judicial correction will continue to suffer from a democratic legitimacy deficit in the sense that the judiciary does not interact as much with the electorate as the political representative bodies. The represented have little chance to influence the judicial process. Judicial “representation” of public interests or constitutional values in cases where legislation is non-existent or disregarded is analogous to a guardian who acts on behalf of incompetent (APEX) Courts as representatives, actors (agents). It is not clear what would legitimize such action other or representation without representatives than the desire for paternalism and for combatting the intrinstic biases that characterize the political branches.

It is similitude that makes such determinations of constitutional values credible from the point of view of representativeness. The values protected by the courts resemble values cherished by people. Judges cannot claim that they represent society in any sense of delegation of power through election or other form of transfer of power. But they can claim that, because 339 of their impartiality, they are the best-suited institution for producing a correspondence between the values or sentiments of the people and the values or sentiments expressed in their judgments. In addition, constitutional courts may claim that they are formally called upon by the constitution to carry out the task of identifying partly unidentified values that correspond to the values held by the people. They are not representatives of the people, but what they discover in their judgments is nonetheless representative of what is essential in the constitution and hence for the people.

Obviously, the idea of representation as the discovery of essential features derives from Plato. For Plato, the Equal exist behind the imperfect similarities of objects. With respect to the law, similarities in precedents and other relevant legal findings can be found to point toward an underlying value. The claim that judicial findings represent true values may well refer to these findings’ creative discovery of such similarities. A Platonic theory of “courts as representers” claims that the judge is capable not only of reproducing reality through similitude, but also expressing the hidden reality that underlies that similitude.

Such Platonic representation, even if one disregards its metaphysical assumptions about pre-existing knowledge, remains open to criticism, which legal scholarship has supplied in abundance. Platonic representation runs against robust democratic theories that rely on representing the will of empirical people. Notwithstanding the German doctrine of the objective hierarchy of values in the German Basic Law, there is no uncontested empirical evidence that there is a pre-existing thing (value), at least not beyond the constitution, waiting for discovery. The alleged similarity of the constitutional value with recognized social practices can be characterized simply as the creative result of interpretation. Activist constitutional judgments are a mixture of empirical references to expressions of otherwise imperfect popular will and underlying, non-empirical or non-popular András Sajó trends.28 European Court of Human Rights The difficulties and dangers of essentialism loom large. One can be rightly afraid that a constitutional court that claims to discover and enforce “essentials” will claim powers originating in a thought process not accessible to others and not open to public scrutiny. Such priestly access to justice is a recipe for arbitrariness and results in judges’ isolation from society.

Notwithstanding the above objections, the “bringing into presence” of underlying values is an appropriate form of constitutional interpretation

340 when it implies representation of society’s values. The personal characteristics of the judges themselves do not need to be representative, only the values they discover. A likeness to underlying social values can be established within judicial reasoning. But this cannot be confused with a search for essentials. Of course, apex courts generally have the mandate to be relatively autonomous and creative in this regard, at least according to the theory that constitutional courts must protect the constitution. The discovery of the constitutional values in social values (and practices) is a creative act in the sense of careful and balanced selection and harmonization. Such selection is inherent in all representation and it constitutes, at least in some cases, an act of limited and bounded creation.29

28 See, e.g., the ECtHR references to “European value consensus”. See e.g. S.H. and Others v. Austria, ECtHR, Application no. 57813/00, Judgment of 3 November 2011, Paras. 96, 106, Separate Opinion of Judge De Gaetano, Para. 4, Joint Dissenting Opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria, Paras. 7-8, 10-11; Stummer v. Austria, ECtHR, Application no. 37452/02, Judgment of 7 July 2011, Paras. 105, 132, Partly Dissenting Opinion of Judge Tulkens, Para. 10; A, B and C v. Ireland, ECtHR, Application no. 25579/05, Judgment of 16 December 2010, Paras. 235-237, Concurring Opinion of Judge Finlay Geoghegan, Paras. 1, 4-10; Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi, Paras. 2-9; Dickson v. The United Kingdom, ECtHR, Application no. 44362/04, Judgment of 4 December 2007, Paras. 79-81; Animal Defenders International v. The United Kingdom, ECtHR, Application no. 48876/08, Judgment of 22 April 2013, Para. 123, Concurring Opinion of Judge Bratza, Para. 14, Joint Dissenting Opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinič and De Gaetano, Paras. 8, 15. See also the reference to the allegedly growing number of US states decriminalizing sodomy in Lawrence v. Texas, 539 U.S. 558 (2003). 29 Obviously, creative representation of constitutional values, asserted against the position of the political branches must remain exceptional, and has to be used with care. It has to be used sparingly, among others for pragmatic reasons. It will loose its credibility if it does not fit into less controversial judicial activities, and it will become irrelevant if it runs too often into political opposition. Aristotle’s related concept of art, one certainly inspired by Plato’s intuitively attractive approach, might be a source of inspiration for a theory of judicial representation as correspondence. According to Aristotle, art is mimesis, meaning a form of imitation. “Imitation … is one instinct of our nature”.30 It presupposes, arguably, that nature or reality is a given, an object that is independent of the imitation, even if reality becomes stylized through artistic interpretation. The artistic, image-oriented approach to representation emphasizes presence by likeness, where likeness is created by reproduction. (Political science theories of substantive representation reflect this concern.) (APEX) Courts as representatives, or representation without representatives In the Aristotelian approach mimesis is an act of choice or selection: Sophocles chose his heroes like Oedipus, and he indicated why Oedipus is the hero. For Aristotle, tragedy is selective at least in the sense that tragedy is the imitation (mimesis) of certain kinds of people and actions. Correspondence is not purely mirror-like. The act of making present is also an act of choice or selection. In the case of constitutional (re)presentation (which is authenticated by the tools of constitutional and interpretative reconstruction), the legitimacy of the constitution as a living instrument is based on the credibility of the legal tools used to reconstruct it. By this logic, 341 one could argue that the judge chooses to represent certain people, in particular those denied a voice in the current political system.

Nevertheless, the concept of mimesis remains of limited value for legal representation: in theatrical performances, the playwright writes the script and the actor performs for an audience. There is no such audience for the judge, at least in principle. The judge acts as a constitutional interpreter, attributing a non-political meaning, an objective reality, to the constitution. To interpret the law, she should not concern herself with the reactions of the “audience”, that is of politicians or even society at large. In practice, however, this may not be true. Theories that emphasize the political nature of constitutional adjudication imply that constitutional adjudication sometimes cannot be evaluated by legal considerations alone and argue that constitutional adjudication may rely on methods that go beyond positivist techniques of statutory interpretation.

Pitkin emphasized that representation is “re-presentation, a making present again”.31 This implies that only the existing, be it essential or not, is to be made present, visible. In this sense representation means that what is made present was already present in some form. However, this does not rule out an element of creativity in the sense that the already present has to

30 Aristotle, Poetics, Cosimo, Inc., 2008, p. 6. (1.IV.) 31 H. F. Pitkin, The Concept of Representation, op. cit., p. 8. be selected, formalized and reinforced against other possibilities. This is important and even crucial for a constitutional court. It means that in some form the legally reproduced has already existed socially (and even legally in the form of an applicable principle); it is not, therefore, an arbitrary creation of the judge (nor that of parliamentarians). However, Pitkin advocated a dynamic concept. Political representation should be able to reflect the

András Sajó changing nature of the represented agent both at the individual and collective levels: the individual preferences change as well as the self-understanding

European Court of Human Rights and needs of the collective entity, and these changes are exactly the result of the interaction between the represented collectivity and the delegate. The performance of courts as representatives (or in carrying out a related role) can be satisfactory so long as they understand these dynamics. They cannot be the only institution responsible for this reflection and they cannot claim exclusive powers in that regard.

Within a theory of political representation the central issue is this: why exactly one particular absentee or another has the right or other claim to

342 have her views made present in constitutional interpretation? Why should a court look to a specific understanding and corresponding empirical reality of the people instead of another one, in particular the one that is represented in the parliamentary majority of the day? Why should, for example an idealized and speculative political community of the constitutional founders’ generation be of more importance than the majority behind a law enacted yesterday? Why constituency X versus Y, and in particular, why an imaginary or idealized Y instead of an empirically existing X?

Legislation can be accused time and again of being out of touch with constitutional realities, i.e. constitutional values of the society of the day. After all, legislation does not always reflect the genuine wishes and interests of the majority or even those in whose name the legislature acted, and even less the public interest. The standard response is that such criticisms are legally irrelevant and even destructive: law and legislation are about attributing exclusive authority to the elected body to determine what is in the public interest, or what corresponds to the majority’s will. These criticisms are illegitimate because they invoke actors outside the parameters of the poltical system. But external critics of the legislative process should not be ostracized completely, ignored until the next elections come around (which do not always usher in desired or even promised legislative corrections). Judicial review is intended to provide an exterior source of corrections to electoral democracy, though in some jurisdictions judicial review is meant primarily to correct executive decisions only. A considerable number of democracies recognize in a fundamental way that the constitutional system as such requires judicial oversight as well as corrections to the democratic process; finding the right form of cooperation between these (and perhaps other) constitutional life forms is a matter for debate and negotiation.

Contemporary pluralistic multicultural societies are often divided on value- laden issues, and this may result in legislative inaction. For example, certain practices might be considered socially permissible and in line with very abstract constitutional values. The legislature, however, may fail to act in light of such practices and may remain silent on the matter, even if inaction perpetuates previous legislative decisions that hamper or even criminalize (APEX) Courts as representatives, socially permissible practices. How a court can determine what is the “genuine” or representation without representatives and constitutionally valid popular will in the absence of legislative action? Consider the criminalization of sodomy or the growing acceptance of various forms of death with dignity or in vitro fertilization. Public opinion is commonly cited with respect to the permissibility of these practices, usually in the form of public opinion polls. Of course, the judge is not bound by such data, and public opinion is in any case only consideration the judge might make. But it is quite possible that legislators will follow a minority view because they can be reelected with the support of that minority. Such 343 “over-representation” of minority preferences is an ordinary consequence of collective action. A small interest group will organize itself where the issue is of great importance to that group. Because of the organized and even institutionalized representation of the group interest, it can present itself as the public interest, the national tradition etc. The group will have more influence than the majority, which might consist of uninterested, isolated individuals.

It is rather problematic to determine what kind and form of majority is needed for a claim that reflects a fundamental moral choice of society. Public opinion is very malleable in the age of mass communication. While up to 70 per cent of the American public favored assisted dying in public opinion surveys,32 when the time came to vote on referenda that proposed legalizing the practice, majorities in state after state rejected the proposal (with two exceptions, so far). Likewise, gay adoption was supported by the majority of the French in 2012, and that position was perhaps confirmed by granting a majority to the Socialists in the national elections. Once gay adoption legislation was seriously considered and debated for in the legislature, this majority seemed to disappear. It is likely, however, that if gay adoption were to adopted, and in the absence of major scandals, people would quickly accept the practice. And what if they didn’t? Is this a decisive

32 The Pew Research Center, More Americans Discussing – and Planning – End-of-Life Treatment. Strong Public Support for Right to Die, January 5, 2006. Available at . factor for a constitutional court? Take the example of the abolition of the death penalty by the Hungarian Constitutional Court in 1990. This was a highly unpopular decision at the time, but one that the political elite considered to be a constitutional and political necessity for the acceptance of Hungary into democratic Europe, an uncontested societal goal at the time.33 Today, even after a new generation has come to participate in public life,

András Sajó the general public is still in favor of the death penalty. Is this to say that the Constitutional Court did not represent the nation’s constitutional values? European Court of Human Rights

Certain theories of constitutional adjudication consider that judicial review is part of the legislative process, which is, after all, not only about representation. Such a blurred understanding of the legislative process may run against a quasi-Rousseauist theory of democracy wherein the general will is to be formed and expressed by the people/nation. Brunet, however, offers a better interpretative framework: if it is the constitution that expresses the general will, and if legislation has only an accidental relationship to the general will, then the elected legislator does not represent popular will.

344 The constitutional judge or court, on the other hand, is arguably one of the best representatives of the people, or at least a trustee acting within the mandate of the constitution.

Habermas, too, offered an account of judicial correction of parliamentary representation. In his view, public autonomy goes way beyond majority representation and is threatened by unequal social power. It is the role of constitutional courts to stand up against both state and private encroachments into this public autonomy.34

According to these accounts, courts may become representatives of community values (and interests). These values serve as foundations of the community. As such they are also part of the mandate that the constituent people gave to its elected delegates. If Pitkin is correct, for a democracy the goal is not symbolic representation but rather the “accurate reflection of the popular will”.35 Courts do have or should have a role in evaluating whether the legislative process does accurately reflect the popular will. Such evaluation may have a secondary effect on the parliamentary electoral process, for example by delegitimizing the incumbent party or its opposition. There are good reasons to believe that there is a constitutional

33 Hungarian Constitutional Court, Decision 23/1990 (X. 31.) AB. See e.g. L. Sólyom, G. Brunner, Constitutional Judiciary in a New Democracy. The Hungarian Constitutional Court, The University of Michigan Press, 2000, pp. 118-138. 34 J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, The MIT Press, 1996, pp. 277-279. 35 H. F. Pitkin, The Concept of Representation, op. cit., p. 106. mandate for courts not only to reflect the accuracy of legislative action in terms of Kelsenian negative legislation (striking down unconstitutional laws) but also filling in legislative gaps in conformity with the community’s fundamental value choices and constitutional project, particularly when the community is divided. Accountability for such evaluation is not limited to the electoral process, as a shallow concept of democracy would suggest, even if the accountability of courts remains unsettled.

Concepts of representative democracy operate with false certainties. It is (APEX) Courts as representatives, taken for granted that representation is valuable, since it enables people to or representation without representatives exercise sovereignty. However, sovereignty remains a concept dependent on its definition, and it is, therefore contestable and contested; and the very concept and, most importantly, related practices, are changing.36 Similar uncertainties emerge in the context of defining the people. Who can be a citizen? To what extent are non-citizens to be counted among the people, even if they do not possess participatory rights? Are non-citizen nationals, for example those living abroad, to be counted among the people? These matters were non-issues in homogeneous and stable nation states, but such 345 states are historical accidents, and the assumption no longer reflects contemporary European realities. These are divisive social issues; it is understandable that for the sake of social stability they are often left to judicial gestation and partial judicial solutions. Decisions related to granting or denying citizenship are subject to judicial review, demonstrating the inherent difficulties of popular representation.

In these contexts, the legitimacy of courts cannot come from mimetic representation of fundamental values, though reference to such recognized values is crucial in judicial decision-making. The representativeness of judicial determinations will to some extent be creative, although this creative representation will only be credible if it corresponds to some sort of reality. In other contexts, the legitimacy of constitutional adjudication originates from the need to correct the imperfections of political representation. This is not a matter of representing the popular will but rather of judicial reasoning and evaluation. The social and political mediation between social groups that electoral representation provides may fail, and in these circumstances courts may have to fill the gap or attenuate the conflict. The procedural aspects of constitutional adjudication (including the relevance of precedent as distilled and accepted through social practices and popular

36 It is, among others for this reason that, at least on the Continent, courts are regularly called to determine whether the legislative and executive branches are or are not violating national sovereignty in granting new attributions to the European Union. See, e.g. the Lisbon judgment of the German Federal Constitutional Court, BVerfG, 2 BvE 2/08, Judgment of 30 June 2009. wisdom) provide credibility to judicial determinations of social facts and values. In this regard, the activities of apex courts may fit well into the larger scheme of representative government or democracy as envisioned by Madison. By exercising judicial review over the decisions of the elected branches, apex courts, as professional and dispassionate bodies, act as important parts of republican government, limiting factionalism and

András Sajó preserving unity. European Court of Human Rights

346 Third chapter

Access to courts, social rights and bioethics

Presentation on access to justice and transparency in the context of the African Court on Human and Peoples’ Rights

Sophia A.B. Akuffo

President of the African Court on Human and Peoples’ Rights

Access to justice and transparency

There are two basic approaches to access to justice; there is the normative approach and the human rights approach. The normative approach involves the provision of legislation and jurisprudence to safeguard and enshrine the fundamental right of access to justice. The human rights approach (path to justice approach) involves the availability of litigation and enforcement mechanisms and information justice, which include transparency in the requisite processes. The latter includes the access to court procedures, legal aid, extra-legal mechanisms to resolve disputes; and is seen as problematic when these are not available.

Measuring access to justice

It has now been established that access to justice can actually be measured. These efforts have emerged due to a call for improvement of provision of legal services and quality of procedure at large. A pertinent research on this subject is on; “Measuring Access to Justice in a globalizing world. The Hague Model of Access to Justice”,1 which identified the most urgent needs

1 Dr. Martin Gramatikov, Prof. Ivo Giesen, Malini Laxminarayan, Dr. Peter Kamminga, Dr. Laura Klaming, Jin Ho Verdonschot and Corry van Zeeland, , final report, 2010. The project was undertaken by the Tilburg University and Utrecht University, and funded by the Hague Institute for International Law. www.measuringaccesstojustice.com 349 associated with paths to justice.2 This paper was a report for a research and development project whose principle goal was to formulate, refine and provide a framework for measuring the three aspects of access to justice: costs, quality of procedures and quality of outcomes. The project aimed to develop, operationalize and pilot test a methodological framework for measuring access to Justice in international and national settings. A group

Peoples’ Rights of national and international experts met regularly and produced a final Sophia A.B. Akuffo

African Court on Human and report in 2010.

A path to justice was defined as the first action taken to resolve alegal problem. On this path obstacles such as costs, opportunity costs and intangible costs are incurred. The outcome of a path to justice is the moment when a neutral decision takes place and the parties come to an agreement or one of the parties leaves the procedure. The methodology created considered whether the path to justice was perceived as affordable and accessible. Cost of procedure includes monetary costs (e. g travel costs, legal advice); opportunity costs (e.g. time spent at hearings, waiting but also forgone 350 earnings and profits) and intangible or emotional costs (e.g. stress and negative emotions) and also includes costs of procedure (e.g. court fees and execution costs).

Figure 1

Source: Measuring Access to Justice in a Globalizing World; The Hague Model of Access to Justice

The figure below also provides an illustration of the components ofthe concept of access to justice.

2 Other papers include ‘Identifying legal needs: a bottom up approach to rule of law and access to Justice, 2007’, by M. Barendrecht, P. Kamminga and J. H. Verdonschot and ‘How to measure the Price and Quality of access to Justice’, 2006, by M. Barendrecht, J. Mulder, & I. Giesen. Court on Human and Peoples’ Rights transparency in the context of African Presentation on access to justice and

Sourc United Nations, available at:-http://www.undp.org/content/dam/ 351 undp/library/Democratic%20Governance/RoL-A2J%20GP%20Annual %20Report%202010%20DGG%20BDP.pdf

The normative framework for access to justice

The normative framework for access to justice first sets the foundation for access to justice by providing the rights of the individual. Various international instruments have been adopted to this effect on the substantive aspect of access to justice. These are drawn mainly from human rights treaties and guidelines. They cover issues such as the right to legal representation/ assistance, right to fair trial and right to early and prompt information on charges and the availability and accessibility of procedural documents.

Trindade, 2011,3 submits that one of the most significant developments in international human rights law in the last six decades has been the consolidation of the procedural capacity of the individual as a subject of international law in the domain of human rights protection. This is illustrated by individuals’ standing before international tribunals: by the full exercise of the right of individual petitions and guaranteeing of the direct

3 Antonio Augusto Cancado Trindade, 2011, ‘The Access of Individuals to International Justice’, Oxford University Press, ISBN 978-0-19-958095-8(Hbk), 978-0-19-958096- 5(Pbk). access of the individual to justice at the international level. Previously individuals were left entirely at the mercy of discretionary intermediation of their nation-states for their protection. The change in the international legal order was cultivated by the massive human rights violations and atrocities experienced in the late twentieth century and the beginning of the twenty first century, which awoke the universal judicial conscience to

Peoples’ Rights necessitate the re-conceptualization of the foundations of the international Sophia A.B. Akuffo legal order. African Court on Human and

The international and regional judicial organs that individuals may petition directly include the African Court on Human and Peoples’ Rights (subject to conditions hereinafter stated), the European Court of Human Rights and the Inter-American Court of Human Rights and the various UN Human Rights Treaty Bodies, including the Human Rights Council.

Quality of procedure

352 The quality of procedure, which is also viewed as procedural justice, is determined by the normative framework which dictates the path to justice. Quality of procedure is believed to play an important role in access to justice.

Klaming and Giesen, 2008,4 submit that the quality of procedure is high if people evaluate it as fair, as fair procedures increase access to justice. They submit further that there should not be any barriers such as costs that would prevent individuals or groups from accessing justice. They also submit that ‘costs’ could take various forms; monetary costs, time costs, knowledge of legal rules and procedures costs and psychological costs. People’s perceptions of procedural justice are likely to be influenced by emotional distress both as a consequence of the conflict itself or the fact that the matter has to be pursued through legal action. The fact that the outcome is usually unknown before undertaking the procedure is the root of the said distress and is likely to persist before undertaking the procedure and during the litigation process. This issue of distress determines procedural justice perceptions and determines the quality of legal procedure.

Klaming and Giesen also submit that a procedure is viewed and perceived as fair when the procedures allow litigants voice. The cognitive theory is that voice procedures give litigants the opportunity to present their case.

4 Laura Klaming and Ivo Giesen, February 2008, ‘Access to Justice: the Quality of the Procedure’, TISCO working paper Series on Civil Law and Conflict Resolution System, No. 002/2008, Version:1.0; Available on the Social Sciences Research Network. Additionally a litigant expects to receive an outcome based on accurate information and people regard an outcome as fairer if the procedure used when obtaining it was fair. And likewise if people received an unfavorable outcome they would be more satisfied if the procedure was fair.

Another explanation is found in the group-value model and the group engagement models. According to these models, procedural justice is important to people because it indicates the degree to which they are valued by authorities and the group to which they belong people are concerned Court on Human and Peoples’ Rights transparency in the context of African with the long-term social relationship with authorities and institutions Presentation on access to justice and that employ procedures. The two models emphasize the importance of interpersonal treatment by focusing on an individual’s experience of enhanced social standing in a group as determined by the perceived treatment of the authorities as a basis for procedural justice judgments. Relational aspects of fair procedures include neutrality, trustworthiness and integrity.

Another theory, the fairness heuristic theory, is derived from the group- value theory and relational models, and denotes that people use their 353 judgments of fairness as heuristic in order to evaluate the fairness of outcomes and procedures and depend on that to make decisions about their subsequent reactions; and whether to accept and comply with the authorities’ decision. It is usually used in situations where there is a risk of exclusion or exploitation. The opinion is formed on the basis of the information available to the public; when important information is not availed to the public, people react. This theory is closely linked to distributive justice. This is due to the fact that people do not know whether an authority is trustworthy and whether they shall receive a procedure characterized by voice, consistency, bias, suppression, accuracy, correctability and ethics.

Quality of outcomes

Verdonschot, Barendecht, Klaming, & Kamminga, 2008,5 submit that an outcome of the path to justice may be a decision by a court or an arbitrator. They developed a measuring instrument to evaluate access to justice from the perspective of the users: a criterion people on a path to justice are likely to be satisfied with, in essence a form of social justice. They created the instrument by first short listing indicators and criteria for justice which include distributive, restorative, corrective, retributive, transformative, informational, formal justice; and legal pragmatism; then developing questionnaire items. They submit that this can be used to measure outcomes of paths to justice.

5 See Note 2 supra. How does the African Court on Human and Peoples’ ‘Rights (the Court) provide access to justice vis-a-vis the indicators enumerated?

The Court was established in accordance with article 1 of the Protocol to the

Peoples’ Rights African Charter on Human and Peoples’ Rights on the Establishment of Sophia A.B. Akuffo an African Court on Human and Peoples’ Rights (the Protocol). Its mandate African Court on Human and is to adjudicate complaints brought against those member states of the African Union (AU), which have accepted the jurisdiction of the Court. Under article 2, its mandate is also to complement the protective mandate of the African Commission on Human and Peoples’ Rights (Commission). The Court’s jurisdiction is set out under articles 3 and 4 of the Protocol, as contentious and advisory. It may interpret the African Charter on Human and Peoples’ Rights (the Charter), Protocols to the Charter and any other human rights instruments ratified by the States concerned. The operation of the Court is governed by the Protocol and the Rules of the Court which 354 prescribe the procedural law relating to it. The substantive law of the Court is the Charter6 and any relevant human rights instruments adopted by states concerned. This forms the normative framework of the Court.

According to article 11 of the Protocol, the Court comprises of 11 Judges, nationals of AU Member States. This provision ties in with the quality of procedure especially, in that, the requirement is that the Judges should be of high moral character with recognized practical, judicial or academic ability in the field of human and people’s rights. They are nominated by states but elected by the Assembly of Heads of State, who must ensure the bench as a whole is representative of the main regions and legal traditions in Africa; and that adequate gender representation is achieved7 (article 14(2) and (3) of the Protocol).

Additionally article 22 of the Protocol states that a judge may not participate in a case in which his or her state of nationality is involved. In accordance with article 17(2) of the Protocol, a judge may also not sit on a case which he or she was involved as a party, representative, a member of another

6 Article 7. SOURCES OF LAW. The Court shall apply the provisions of the Charter and any other relevant human rights instruments ratified by the States concerned. 7 Article 14 of the Protocol, ELECTIONS. 1 ... 2. The Assembly shall ensure that in the Court as a whole there is representation of the main regions of Africa and of their principal legal traditions. 3. In the election of the judges, the Assembly shall ensure that there is adequate gender representation. dispute settlement body, or in any other capacity. According to article 23 of the Protocol, the Court sits in plenary (with seven judges constituting a quorum). Article 26 of the Protocol allows the Court to receive written and oral evidence including expert evidence. All these provisions are intended to enhance the transparency of the procedure and its fairness thus ensuring the quality of procedure and outcomes.

Applications filed at the Court must comply with the admissibility 8

requirements set out in article 56 of the Charter and reflected in article 6 of Court on Human and Peoples’ Rights transparency in the context of African the Protocol and Rule 40 of the Rules. Of particular note is article 56(5) Presentation on access to justice and of the Charter which requires that applications must be sent after exhausting local remedies, if any, unless the procedure to obtain such remedies is unduly prolonged and article 56(6) of the Charter which requires that the application must have been submitted within a reasonable period from the time local remedies are exhausted. These provisions allow some flexibility in the consideration of admissibility of applications.

There is also evident flexibility in the requirement that applications may be 355 made in any of the official languages of the Court, which are the same as those of the African Union (Arabic, English, French, Portuguese, Spanish, Kiswahili (and any other African language). The Court bears translation costs as necessary, thus reducing costs of procedure for the parties. Litigants’ costs are also minimized since Rule 34 (1) requires that only one copy of the application be filed with the Court.

Further, in line with article 10(2) of the Protocol and Rule 31, legal assistance and/or legal representation may be provided when the interests of justice require and within the limits of available financial resources.

Pursuant to Rule 41, the Court may also ask the parties to adduce more evidence and provide relevant explanations, and this enhances the quality

8 Article 56 of the Charter. Communications relating to human and peoples’ rights referred to in 55 received by the Commission, shall be considered if they: 1. Indicate their authors even if the latter request anonymity, 2. Are compatible with the Cher of the Organization of African Unity or with the present Charter, 3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4. Are not based exclusively on news discriminated through the mass media, 5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7. Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter. of procedure as parties are given a fair amount of leeway to make relevant submissions. Applications may be decided on the basis of written pleadings only or the Court may, in addition to the written pleadings, and in line with article 10(1) of the Protocol, hear the parties in a public hearing. Under article 5(2) of the Protocol and Rule 53 of the Rules, the Court may allow third party interventions from AU Member States, and it has taken the step to allow

Peoples’ Rights Amicus Curiae submissions, while under Rule 46(1) the Court is allowed to Sophia A.B. Akuffo

African Court on Human and issue summons to any witness, expert or person whom it desires to hear. All these procedures enhance the parties’ participation in the proceedings and underline the transparency thereof.

In terms of the quality of outcomes, pursuant to article 27(2) of the Protocol and Rule 51 of the Rules, the Court may order provisional measures in cases of extreme urgency and gravity, if such measures are needed to avoid irreparable harm to persons. The Court may issue this of its own accord or at the request of a party or the Commission. In addition, in line with Rule 56 parties may enter into an out-of-court settlement and article 9 of the 356 Protocol and Rule 57, the Court may promote an amicable settlement between parties in accordance with the Charter. In accordance with article 27(1) of the Protocol, the Court may make “appropriate orders to remedy the violation, including the payment of fair compensation or reparation”. These provisions assure the quality of outcomes of the Court.

In accordance with article 28 of the Protocol, the Court’s decision is to be delivered 90 days from the end of deliberations, and is prepared in the form of a reasoned judgment and then publicized. The time limit for the delivery of the judgment enhances the certainty of the proceedings. In line with the principle of judicial independence, judges are entitled to deliver separate or dissenting opinions. The majority judgment may be interpreted or reviewed by the Court.

Lastly, the enforceability of the Court’s judgments directly affects the quality of outcomes. Firstly, in accordance with article 29 of the Protocol, the judgment shall be notified to all relevant parties, including AU Member States and the Council of Ministers who shall monitor its execution. Secondly, in terms of article 30, the States parties to the Protocol have an obligation to comply with the judgment of the Court within the stipulated time and to guarantee its execution. And thirdly, pursuant to article 31, the Court shall in its annual report to the Assembly of Heads of State, specify all cases of non-compliance with its decisions for follow up. These provisions are also captured in Rule 64 of the Rules of Court, and Rule 61(5) which provides that the decision of the Court is binding on the parties. To effect these provisions, any number of actions can be taken by the Assembly, including sanctions.

Challenges and areas for improvement

Due to the low rate of ratification of the Protocol (only 26 out of 54 AU Member states have ratified the Protocol) and the low rate of deposit of declarations (5 out of the 26 ratifying member states have deposited the Court on Human and Peoples’ Rights transparency in the context of African declaration), the Court’s jurisdiction only extends to the 26 State Parties to Presentation on access to justice and the Protocol and only to the 5 that have made the declaration, with respect to applications by NGOs and individuals, in accordance with articles 5(3)9 and 34(6)10 of the Protocol limit access to the Court for individuals and NGOs. The Court is currently undertaking sensitization visits and seminars hoping to increase the numbers of ratification of the Protocol and the deposit of the declaration.

Additionally, there is lack of awareness about the Court and its mandate 357 among African publics and the sensitization initiatives aim to correct this.

The issue of equality of arms, which affects both quality of procedure and outcome, is still an issue under deliberation of the Court due to the fact that the Court is yet to develop the scope and magnitude of the legal assistance programme.

Conclusion

The Court constitutes one of Africa’s most valuable resources for timely adjudication of disputes related to human and peoples’ rights, and affording effective remedies for the violation of these rights. Though seriously challenged by the limitations imposed on it by the articles 5(3) and 34(6) of the Protocol, yet, the Court has positioned itself in a state of readiness to receive all applications and requests with which it can competently deal with a transparent manner.

9 Article 5(3). The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol. 10 Article 34(6). At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5(3) of this Protocol. The Court shall not receive any petition under article 5(3) involving a State Party which has not made such a declaration.

Social Rights: a specific category of human rights?

Marc Bossuyt

President of the Constitutional Court of Belgium

Since the Universal Declaration of Human Rights, the catalogue of human rights has been expanded with the inclusion of social rights. It is worthwhile to examine to what extent the role of international supervisory organs, on one hand, and national courts, on the other hand, is different when dealing with social rights rather than with civil rights and fundamental freedoms. The role of national courts will be examined with reference to the judgments of the South-African Constitutional Court in the field of social rights.

Social rights and the role of international courts

Human rights

“Human rights” is a subject often talked about. However, little attention is given to the exact meaning of the concept of human rights. In a time that efforts are undertaken continuously to expand further the list of human rights with one or another novelty, the question may be raised what conditions should be fulfilled by a given interest to qualify as a human right. What quality requirements should be satisfied to be able to speak properly about human rights? As its denomination itself indicates, one may assume that human rights are rights everyone is entitled to, purely and only because he or she is a human being.

Inflation is a negative phenomenon in economics. Unfortunately, inflation of legal concepts is also rampant. A few examples may illustrate how difficult 359 it appears to be to stick to a pure terminology. Not every ill-treatment is inhuman treatment and certainly not torture. Not every alien staying illegally on the territory is an asylum seeker and every asylum seeker is certainly not a refugee. Not every massacre is a genocide. And not every right is a human right. Sometimes it is assumed that every legitimate aspiration is a human right. If the concept of human rights should have any

Marc Bossuyt significance at all, it should foremost apply to “rights” only. What is not a right is a fortiori not a human right. According to the classical definition of Constitutional Court of Belgium von Jhering, a right is an “interest protected by law”. Consequently, it must be an interest recognized, protected or guaranteed by the national legislation, by the Constitution or by international treaties. This is a formal requirement. But there are also substantive requirements.

A legitimate aspiration, however important or desirable, is not necessarily a right. Here too, some examples may clarify this. What is more important for a human being than “happiness”? Does not every human being attaches the highest importance to “love”? How much we may regret it, there is 360 however, at least in the legal meaning of the concept “right”, no “right to happiness” and no “right to be loved”. How much we may regret it, particularly in the country I come from (Belgium), there is not a “right to fair weather”. Of course, anybody may claim the contrary but that has no legal consequence whatsoever. Non-lawyers pretend sometimes that they favour a non-legal definition of the concept “right”. They simply overlook that in doing so the very concept of a right loses its significance and becomes entirely worthless.1

Civil rights

In its traditional meaning a “human right” is not only a right everybody —whoever, wherever and whenever— is entitled to, but also a right the public authorities are supposed to be capable to respect, whatever the available resources may be, and foremost, it is a right the judge can legally enforce. A State where this is not done, is —by definition— not a State respecting the Rule of Law. We are talking now about “civil rights” such as the rights enshrined in the oldest declarations of human rights: the French and the American Bills of rights.

Those civil rights are well known: they are the so-called classical freedoms such as freedom of thought and freedom of expression, freedom of assembly

1 See also BAUDET, Thierry, The Significance of Borders: Why Representative Government and the Rule of Law Require Nation States, Leiden, M. Nijhoff Publ., 2012, 272 p., at pp. 112-114. and association, the right to life and the right to liberty, the prohibition of torture, the prohibition of slavery and, last but not least, the prohibition of discrimination in the enjoyment of those rights and freedoms. It is the essence of those freedoms in their classical meaning that they impose upon States the obligation to abstain from certain acts by not interfering in the enjoyment of those freedoms, by not disturbing anybody’s private and family

life, home and correspondence, by not torturing anybody or by not holding Social Rights: anybody in slavery, by not depriving someone of his life and by not depriving

someone of his freedom, save in a number of strictly limited cases and in a specific category of human rights? accordance with a procedure prescribed by law.

Those freedoms impose in essence (but —and it should be underlined— not exclusively) negative obligations every State can respect. Even States with scarce resources are capable of doing that. It is in that sense that the recognition of those rights is declarative and that they are universal because they ought not only to be respected but also they can be respected wherever in the world. Those are characteristics typical for the concept of “human rights” in its classical meaning. When civil rights and fundamental freedoms 361 are not respected, the Rule of Law is not respected.

The expansion of social rights

If we speak about human rights in their classical meaning, it is because modern developments have given a different meaning to those rights. The catalogue of human rights has been expanded in the Universal Declaration of Human Rights of 1948 with so-called “social rights”. This expansion has changed the very concept of human rights. Those rights are not less legitimate or less important than classical civil rights but their legal characteristics are different. Social rights are rights such as the right to work, the right to social security, the right to education, the right to health care, the right to housing, etc. Those rights impose upon States positive obligations requiring considerable resources and forcing them to make choices. Priorities must be set as well ratione materiae, ratione personae as ratione temporis. Each State must decide which social rights (ratione materiae) of which persons (ratione personae) should be realized first (ratione temporis).

Social rights can only be enforced by a judge when sufficiently precise regulations indicate which right under which conditions and according to which modalities ought to be granted to which categories of persons. Even if a State would like to realise them all and how much the legislative, the executive and the judicial branch of the State may be willing to favour their realisation, it will not always be possible to realise all those rights for everybody when the State does not dispose of the necessary resources to do so. As far as social rights are concerned, it is, even in a highly developed part of the globe such as Europe, not possible to guarantee a universal minimum standard from Albania to Switzerland, from Moldova to Monaco or from Belgium and the Netherlands to Bulgaria and Romania, and indeed certainly not at a world scale. Social rights are not less legitimate and not less important than civil rights and fundamental freedoms and it is not

Marc Bossuyt superfluous to stress it. But in particular the role that can be fulfilled by courts in the realisation of social rights is —without being non-existent— Constitutional Court of Belgium nevertheless different when they deal with those rights rather than with civil rights and fundamental freedoms. The mistake consists in believing that by labelling socials rights as human rights they acquire the same legal characteristics as civil rights and fundamental freedoms.2

Definition of social rights

The definition of social rights is not without problems. A right is not, as far as it legal characteristics are concerned, a social right simply because it 362 concerns a social matter or because it is included in a treaty concerning social rights. E.g., “the right of everyone to form trade unions and join the trade union of his choice […] for the promotion and protection of his economic and social interests”, contained in article 8 of the International Covenant on Economic, Social and Cultural Rights (but also in article 22 of the International Covenant on Civil and Political Rights), is not a social right but it is a fundamental freedom. It has indeed all the characteristics of a fundamental freedom.

When a right or a prohibition is interpreted in a manner that it imposes upon States positive obligations requiring considerable resources, it becomes a social right. One of the consequences this entails is that its realisation may come into competition with the realisation of other rights. As far as civil rights and fundamental freedoms are concerned which everybody is entitled to enjoy, the discretionary margin of the State is very limited. That margin is confined to the extent that some of those civil rights and fundamental freedoms may be subjected to restrictions under strict conditions (prescribed by law, necessary in a democratic society and in the interest of a limited number of objectives). The risks that the judge will censor the considered choices of the legislator in that matter are not very high. Those risks are much higher with respect to social rights. Moreover, as a result of the prohibition of discrimination, certain categories of persons may even be

2 Bossuyt, Marc, “Should the Strasbourg Court exercise more self-restraint? On the extension of the jurisdiction of the European Court of Human Rights to social security regulations”, 28 Human Rights Law Journal, 2007, pp. 321-332, at p. 329. granted rights not prescribed by the national legislator, nor by a treaty.3 This can result in a considerable increase of expenditures, possibly at the expense of the realisation of other social rights with respect to the same or other categories of persons.

It is not because the difference between the two categories of human rights 4 5 is not minimized —contrary to the contemporary trend in the field — that Social Rights: it is presented as a white/black distinction. There is a grey zone: as well pale

grey as dark grey. Indeed, civil rights and fundamental rights may also a specific category of human rights? entail positive obligations and expenditures. Only when those positive obligations result in expenditures many States cannot afford and when they require making choices and setting priorities at the expense of other rights or other categories of persons, those rights cannot be considered anymore to be civil rights but they have become social rights. Important is the measure in which positive obligations and expenditures are required. When interpreting civil rights and fundamental freedoms, international courts in particular must be aware that the scope of those rights and freedoms is not unlimited. 363

The role of international courts

When recognizing the competence of international courts to verify the respect of treaty obligations in the field of human rights, the transfer of competences from the national legislator to the international judge is much greater with respect to social rights than with respect to civil rights and fundamental freedoms. That is the reason why States are very reluctant to confer to international courts jurisdiction in controlling the realisation of social rights. It suffices to refer to the control mechanism of the European Social Charter and to that of the International Covenant on Economic,

3 Bossuyt, Marc, L’interdiction de la discrimination dans le droit international des droits de l’homme, Brussels, Bruylant, 1976, 262 p., at pp. 218-219. 4 On the distinction between those two categories of rights, see Bossuyt, L’interdiction …, op. cit., pp. 169-191; “La distinction juridique entre les droits civils et politiques et les droits économiques, sociaux et culturels”, Revue des droits de l’homme, 1975, pp. 783-820; “International Human Rights Systems: Strengths and Weaknesses”, in Mahoney, Kathleen, and Mahoney, Paul, Human Rights in the Twenty-first Century, Dordrecht, Kluwer Acad. Publ., 1993, pp. 52-55 ; Vierdag, Egbert W., “The Legal Nature of the Rights granted by International Covenant on Economic, Social and Cultural Rights”, Netherlands Yearbook of International Law, 1978, pp. 69-105. 5 See van Hoof, G. J. H., “The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views”, in Alston, Philip, and Tomasevski, Katharina, The Right to Food, The Hague, M. Nijhoff, 1990, pp. 97-110; Meyer-Bish, Patrice, Le corps des droits de l’homme. L’indivisibilité comme principe d’interprétation et de mise en œuvre des droits de l’homme, Freiburg, 1992, 401 p., at pp. 135-155; Arambulo, Kitty, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights. Theoretical and Procedural Aspects, Antwerp, Intersentia, 1999, 449 p., at pp. 71-81; Maes, Gunter, De afdwingbaarheid van sociale rechten, Antwerp, Intersentia, 2003, 523 p., at pp. 28-30 and 488-491. Social and Cultural Rights which are much more modest than those set up by the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

It has been said that it was due to the opposition between western and socialist States during the Cold War that the two categories of rights are

Marc Bossuyt contained in two different treaties. The “travaux préparatoires” of the two International Covenants on Human Rights do not confirm this. They show Constitutional Court of Belgium precisely that if are the differences in the nature of the rights and in the obligations of States that led the drafters of the International Bill of Human Rights to opt for two covenants.6 The Council of Europe, whose Member States were exclusively western and did not wage a Cold War among each others, opted also for two conventions: for civil rights and fundamental freedoms the European Convention on Human Rights and for social rights the European Social Charter.

Consequently, questions may be raised when an international court does 364 interpret a civil right or a fundamental freedom in a manner which amounts to the transformation of such a right or freedom into a social right. At the international level also it belongs to the States to set out the applicable regulations and to international courts to interpret and apply those regulations, bound however by the limits the States parties have set to their jurisdiction. To affirm that, those courts are competent, in particular with respect to their jurisdiction, to disregard knowingly and willingly the intentions of the States parties and that they are only bound by the limits they impose themselves, undermines the Rule of Law.

This does not imply that civil rights and fundamental rights should not be interpreted “in the light of present-day conditions”,7 quite the contrary. But an interpretation extending the jurisdiction of the European Court of Human Rights to social rights is difficult to reconcile with the respect of the intention of the States parties as required by the rules of interpretation applicable to treaties. The so-called “teleological” or “dynamic” interpretation favoured by European courts is sometimes inclined to loose sight of those rights. The more the norms of reference are open and abstract, as is the case with those contained in the European Convention on Human Rights and in the more recent Charter on fundamental rights of the European Union, the more caution and restraint is required, at the risk

6 Bossuyt, Marc, “Les travaux préparatoires”, in Decaux, Emmanuel, (Dir.), Le Pacte international relatif aux droits civils et politiques, Commentaire article par article, Paris, Economica, 2011, pp. 1-9, at pp. 5-6. 7 ECHR, Tyrer v. the United Kingdom, 25 April 1978, § 31. otherwise of curtailing without sufficient democratic legitimation the discretion of national parliaments.

The South-African Constitutional Court and social rights8

The South African experience in dealing with social rights presents an Social Rights: interest far beyond the country or even the continent concerned. Those rights were included in the Bill of Rights of the Constitution and gave rise a specific category of human rights? to several important cases dealt with by the South African Constitutional Court. Even admitting that the difference between civil and political rights, on the one hand, and social rights, on the other hand, is one of degree rather than one of nature (a largely academic dispute),9 the question remains what the extent of that difference is and what are its implications. The cases relating to social rights dealt with by the South African Constitutional Court provide interesting elements to answer those questions.

365 A the time of drafting of the South African Bill of Rights (1991-1993), the so-called “anti-constitutionalizers” opposed the inclusion of social rights, because they believed that those rights were not justiciable and that entrusting judges to enforce those rights would violate the principle of separation of powers.10 On 6 September 1996, the South African Constitutional Court, called upon to “certify” the final Constitution which was adopted on 8 May 1996, rejected both objections:11 it considered the task of enforcing social rights not “so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers” and, in its opinion, the fact that those rights “will almost inevitably give rise to [budgetary] implications does not seem to be a bar to their justiciability”.12

In the Grootboom judgment of 4 October 2000, Justice Zak Yacoob stated that “The state’s obligation […] may differ from province to province, from

8 Bossuyt, Marc, “The South-African Constitutional Court and socio-economic rights”, in Liège, Strasbourg, Bruxelles: parcours des droits de l’homme (Liber amicorum Michel Melchior), Limal, Anthemis, 2010, pp. 281-309. 9 Bossuyt, Marc, “Should the Strasbourg Court exercise more self-restraint? On the extension of the jurisdiction of the European Court of Human Rights to social security regulations”, 28 H.R.L.J., 2007, pp. 328-329. 10 Cf. Christiansen, Eric, “Adjudicating non-justiciable rights: socio-economic rights and the South African Constitution”, 38 Col. Hum. Rts L. Rev. 321 (2007), at pp. 324-325; Mureinik, Etienne, “Beyond a Charter of Luxuries: Economic Rights in the Constitution”, S. Afr. J. on Hum. Rts, 1992, pp. 464-474. 11 Certification of the Republic of South Africa, CCT 32/96, [1996] ZACC 26; 1196 (4) SA 744 (CC); 1196 (10) BCLR 1253 (CC). 12 Ibid., §§ 77-78. city to city, from rural to urban areas and from person to person”.13 One cannot imagine that this could be the case with respect to civil rights or fundamental freedoms as the enjoyment by everyone of all those rights and freedoms should be respected at once. In the Mazibuko judgment of 8 October 2009, Justice Kate O’Regan also stressed that what is required by a social right “will vary over time and context” (§ 60) and, more particularly,

Marc Bossuyt that the obligation “in relation to the right of access to sufficient water will vary depending upon circumstance” (§ 62).14 Constitutional Court of Belgium

The minimum core approach

In legal doctrine much effort has been put in trying to convince the Court to adopt the minimum core approach favoured by the UN Committee on Economic, Social and Cultural Rights.15 That Committee had in 1990 expressed the view that:

A minimum core obligation to ensure the satisfaction of, at the very

366 least, minimum essential levels of each of the rights is incumbent upon every State party”.16

In an article17 published in 2003, David Bilchitz stated:

It is by no means clear that the problems in South Africa arise from an absolute scarcity of resources; in this context, the problems seem to be rather about the highly unequal distribution of resources.

Should social rights be used by judges as a tool to engage in a major programme of redistribution of resources? It is one question whether this is the ultimate purpose of provisions on social rights in international conventions and in national constitutions. It is another question whether such a revolutionary task should be entrusted, if ever, to the judiciary rather

13 Government of the Republic of South-Africa and Others v. Grootboom and Others, § 76, CCT 11/00, [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169. 14 Lindiwe Mazibuko and Others v. City of Johannesburg and Others, §§ 60 and 62, CCT 39/09, [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC). 15 Scott, Craig & Alston, Philip, “Adjudicating Constitutional Priorities in a Transnational Context: a Comment on Soobramoney’s Legacy and Grootboom’s Promise”, S. Afr. J. on Hum Rts, 2000, pp. 206-268. See also Bollyky, Thomas, “R IF C > P + B: A Paradigm for Judicial remedies of Socio-Economic Rights Violations”, S. Afr. J. on Hum Rts, 2002, pp. 161-200; Pieterse, Marius, “Coming to Terms with Judicial Enforcement of Socio- Economic Rights”, S. Afr. J. on Hum Rts, 2004, pp. 383-417 & “Resuscitating Socio-Economic Rights: Constitutional Entitlements to Health Care services”, S. Afr. J. on Hum. Rts, 2006, pp. 473-502. 16 General Comment 3, UN Doc E/1991/23, Annex III, §§ 9-10, December 1990. 17 Bilchitz, David, “Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence”, S. Afr. J. on Hum. Rts, 2003, pp. 1-26, at p. 17, note 52. than to the legislative or to the executive. In other countries with enormous differences in distribution of wealth, there seems to be not even a beginning of an awareness that the social rights enshrined in the International Covenant on Economic, Social and Cultural Rights or in their own national Constitution would have that purpose. It would nevertheless be the logical outcome of the minimum core approach. Social Rights: As stated in Section 26(2) of the South African Constitution, the State has

to achieve the progressive realisation of social rights “within its resources”. a specific category of human rights? In his concurring opinion in the Soobramoney of 27 November 1997, Justice Albie Sachs had stated that “unfortunately, the resources are limited”.18 In the book19 he wrote at the end of his 15 years at the South African Constitutional Court, he refers in his chapter20 on social rights to that opinion when he states:

Socio-economic rights in this respect were different in their mode of enjoyment, if not in their essence, from civil and political 21 rights; 367

The exercise of a right that by its nature is shared, often competitively, with other holders of the right, must have different legal characteristics from the exercise of a classical individual civil right that is autonomous and complete in itself.22

The main question is

Should the Constitution be read as handing over to each judge in each court the right and duty to decide who should have priority access to social goods in short supply?.23

Prioritisation and accountability

The realisation of social rights is an exercise in prioritisation. The inability to realise all social rights for all persons at once, due to the insufficient availability of resources, makes it essential to determine which social rights of which persons will be realised first. By adopting the minimum core

18 Soobramoney v. Minister of Health KwaZulu-Natal, § 59, CCT 32/97, [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696. 19 The Strange Alchemy of Life and Law, Oxford University Press, 2009, 306 p. 20 Chapter 7 (“The Judge Who Cried: The Judicial Enforcement of Socio-Economic Rights”), ibid., pp. 161-201. 21 Ibid., p. 176. 22 Ibid. 23 Ibid., p. 182. approach the Court should establish which classes of needs enjoy priority over others.24 National courts, conscious of the immensity and the eminently political sensitivity of that task,25 will not engage easily26 in such an endeavour. That does not mean that they cannot fulfil a meaningful role in providing guidelines to the responsible political authorities.27 They may certainly judge the reasonableness of the programmes and the policies set Marc Bossuyt out by the legislature and by the executive,28 but that is different from

Constitutional Court of Belgium determining precisely which persons are entitled at a given moment to which social right.

Justice O’Regan eloquently stated the purpose of that approach in the Mazibuko judgment:

[T]o determine precisely what the achievement of any particular social and economic right entails […] is a matter, in the first place, for the legislature and executive […] for it is their programme and

368 promises that are subjected to democratic popular choice. [(§ 61)

In her view, it is mainly a matter of accountability:

[T]he social and economic rights enable citizens to hold government to account for the manner in which it seeks to pursue the achievement of social and economic rights (§ 59); [T]he social and economic rights entrenched in our Constitution […] enable citizens to hold government accountable not only through the ballot box but also, in a different way, through litigation (§ 71).

24 Cf. Wesson, Murray, “Grootboom and beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court”, S. Afr. J. on Hum Rts, 2004, pp. 284-308, at p. 298. 25 As stressed by Justice Sachs in Soobramoney, such choices may be “agonising” (§ 59). 26 Cf. in Soobramoney (§ 29), President Arthur Chaskalson: “A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters” (§ 29), and Justice Sachs: “Courts are not the proper place to resolve the agonising personal and medical problems that underlie [the tragic medical choices to be made]” (§ 58); and in Treatment Action Campaign, the Court: “Courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community” (§ 38). 27 Cf. Wesson, op. cit., p. 295: “[The Court] therefore does not dictate exactly what the state should do to assist people in the position of the respondents but instead gives it broad guidelines”. 28 Cf. Justice Yacoob in Grootboom: “These policies and programmes [implemented by the executive] must be reasonable both in their conception and their implementation” (§ 42), and Justice O’Regan in Lindiwe Mazibuko: “The purpose of the constitutional entrenchment of social and economic rights [is] to ensure that the state continue to take reasonable legislative and other measures progressively to achieve the realisation of the rights to the basic necessities of life” (§ 59) and “[T]he government agency must explain why the policy is reasonable” (§ 161). Italics added. In adopting an approach of accountability, the Court is not encroaching upon the greater democratic legitimacy of the legislature and the executive but, on the contrary, it enhances the democratic quality of the separation of powers. Moreover, as stated by Murray Wesson in an article published in 2004,

In this way, the Court is able to fulfil functions for which it is well Social Rights: suited (protecting the interests of vulnerable groups and holding

the state to standards of justification) while the state is accorded a specific category of human rights? primary responsibility for organising and implementing socio- economic programs.29

Stock-taking of the judgments rendered

In no case dealt with up to now, the Court determined the minimum core of a social right everyone should be entitled to. In Soobramoney (1997) and in Mazibuko (2009), the Court rejected the contentions of the applicants. In 369 Grootboom (2000), the Court required only the progressive implementation of “a comprehensive and coordinated programme [providing also] relief for people in intolerable conditions or crisis situation”.

In a few cases, the Court imposed procedural requirements. It did so a) in its judgment Occupiers of Olivia Road30 of 19 February 2008, by prohibiting the eviction of any person from his home in the absence of an appropriate court order, b) in its judgment Leon Joseph31 of 9 October 2009, by prohibiting the termination of electricity supply in the absence of a pre-termination notice and c) in its judgment Abahlali Besamjondolo Movement SA32 of 14 October 2009, by requiring evictions in KwaZulu-Natal to comply with the national Housing Act and the National Housing Code.

In other cases, the Court decided that a particular social right as defined by the legislator should be extended to additional categories of persons: in its judgment Treatment Action Campaign33 of 5 July 2002, the Court ordered

29 Wesson, op. cit., p. 305. 30 Occupiers of Olivia Road, Berea Township, and 197 Main Street, Johannesburg. v. City of Johannesburg and Others, CCT 24/07, [2008] ZACC 1; 2008 (3à SA 208 (CC); 2008 (5) BCLR 475 (CC). 31 Leon Joseph and Others v. City of Johannesburg and Others, CCT 43/09, [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC). 32 Abahlali Basemjondolo Movement SA and Sibusiso Zikode v. Premier of the Province of KwaZulu-Natal, CCT 12/09, [2009] ZACC 31; 2010 (2) BCLR 475 (CC). 33 Minister of Health and Others v. Treatment Action Campaign and Others (N° 1), CCT 9/02, [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075. the removal of the exclusion, at public hospitals and clinics that are not research and training sites, of the use of a particular medicine for pregnant mothers infected by HIV; in its judgment Khosa of 4 March 2004, the Court ordered the extension of social assistance to permanent residents regardless of their nationality.

Marc Bossuyt The issue of nationality Constitutional Court of Belgium In its judgment Gaygusuz v. Austria of 16 September 1996, the European Court of Human Rights had also rejected the argument of the Austrian Government based on “the idea that the State has special responsibility for its own nationals”. The South African Constitutional Court rejected in Khosa the argument that “the state has an obligation toward its own citizens first” (§ 57). The modern tendency is to favour the responsibility of a State for persons present on its territory rather than based on their nationality.34

The argument that “this would impose an impermissibly high financial 370 burden on the state” (§ 60) was rejected in Khosa35 by Justice Yvonne Mokgoro, writing for the majority, because

the state can protect itself against persons becoming financial burdens by thorough, careful consideration in the admission of immigrants (§ 64) [...]; if a mistake is made in this regard, […] that may be a cost we have to pay for the constitutional commitment to developing a caring society (§ 65).

On the other hand, Justice Sandile Ngcobo, with Justice Tholie Madala concurring, believes that “[n]o careful immigration policy can foresee that an immigrant once admitted will fall upon hard times and thus become unable to provide for him or herself’” (§ 132). Knowing that immigration, in South Africa as well as in Europe, is rarely the result of “careful consideration in the admission of immigrants” but rather of the State being confronted with situations on a large scale, the opinion of the minority seems to come closer to reality than that of the majority.

Contrary to Louis Khosa and Others, who contended that the exclusion of all non-citizens was inconsistent with the state’s obligations to provide

34 On the ground “nationality”, see Bossuyt, H.R.L.J., op. cit., pp. 324-325. 35 Khosa and Others v. Minister of Social Development and Others; Mahlaule and Another v. Minister of Development and Others, CCT 13/03, CCT 12/03, [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (3) BCLR 569 (CC). access to social security to “everyone” (§ 38), the majority of the Court admitted that

Social benefits should not be made available to all who are in South Africa irrespective of their immigration status [(§ 58) …] It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents, Social Rights: who have only a tenuous link with this country (§ 59).36 a specific category of human rights? Even if nationality is considered irrelevant in matters of social benefits, the immigration status of the applicant and the quality and extent of the links he has with the country concerned, certainly are relevant. The South African Constitutional Court did not decide that everybody, but only foreigners who are “permanent residents”, should also qualify for social assistance.

International supervisory organs v. national courts

371 In conclusion, it may be useful to stress some of the differences between an international supervisory committee making recommendations to governments on social rights and national courts rendering binding judgments on the same matter. An international committee addresses itself to all powers of a State without being concerned with the respective roles of the legislative, the executive and the judiciary in the implementation of the measures required. Even if the distinction between categories of rights is minimised,37 it cannot be denied that the judiciary undoubtedly has a greater role to play in ensuring the respect for civil and political rights than in the implementation of social, economic and cultural rights. With respect to the latter, the national court is fully aware that, as a matter of principle, it is not its role to substitute itself to the legislator and the government, particularly since social rights can only be sanctioned as subjective rights by a court of law when there are national regulations defining the content, the modalities and the beneficiaries of the rights concerned.38 It is only on the basis of sufficiently precise national legislation and regulation that a court can enforce individual social rights. Finally, familiar as it is with the

36 In a comment on the judgment ECHR, Koua Poirrez v. France of 30 September 2003, the present author did express a similar view by stating that nothing indicated that the European Court “might have come to the same conclusion if the case had concerned a foreigner who had refused to comply with an order to leave the country or who had been staying in the country as a tourist. […] it seems justified to link entitlements to social allowances to the nature and the length of his entitlement to stay in the country” (Bossuyt, H.R.L.J., op. cit., p. 327). 37 Ibid., pp. 328-329. 38 Ibid., p. 328. legal, political and economic framework of its own national State, the national court is undoubtedly better qualified than any international body to render binding decisions on the implementation of social rights.

Bibliography

Marc Bossuyt On civil an political rights, see BOSSUYT, Marc, L’interdiction de la discrimination dans le droit international des droits de l’homme, Brussels, Constitutional Court of Belgium Bruylant, 1976, 262 p.; “La distinction juridique entre les droits civils et politiques et les droits économiques, sociaux et culturels”, Revue des droits de l’homme, 1975, pp. 783-820; “International Human Rights Systems: Strengths and Weaknessess”, in MAHONEY, Kathleen, en MAHONEY, Paul, Human Rights in the Twenty-first Century, Dordrecht, Kluwer Acad. Publ., 1993, pp. 52-55 ; VIERDAG, Egbert W., “The Legal Nature of the Rights granted by International Covenant on Economic, Social and Cultural Rights”, Netherlands Yearbook of International Law, 1978, pp. 69-105. See also VAN HOOF, G. J. H., “The Legal Nature of Economic, Social and

372 Cultural Rights: a Rebuttal of Some Traditional Views”, in ALSTON, Philip, en TOMASEVSKI, Katharina, The Right to Food, Den Haag, M. Nijhoff, 1990, pp. 97-110; MEYER-BISH, Patrice, Le corps des droits de l’homme. L’indivisibilité comme principe d’interprétation et de mise en œuvre des droits de l’homme, Freiburg, 1992, 401 p. (esp. pp. 135-155); ARAMBULO, Kitty, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights. Theoretical and Procedural Aspects, Antwerp, Intersentia, 1999, 449 p. (esp. pp. 71-81); MAES, Gunter, De afdwingbaarheid van sociale rechten, Antwerp, Intersentia, 2003, 523 p. (esp. pp. 28-30 and 488-491); BOSSUYT, Marc, “De uitbreiding van de rechtsmacht van het Europees Hof van de Rechten van de Mens tot social ezekerheidsregelgeving:een rechterlijke revolutie?”, Rechtskundig Weekblad, 2007-2008, pp. 842-856; “Should the Strasbourg Court exercise more self-restraint? On the extension of the jurisdiction of the European Court of Human Rights to social security regulations”, Human Rights Law Journal, 2007, pp. 321-332; “L’extension de la compétence de la Cour de Strasbourg aux prestations sociales : sur l’interprétation de l’article 14 de la Convention combiné avec l’article 1er du Protocole n° 1 dans les affaires Gaygusuz, Koua Poirrez, Stec et autres, Burden et Andrejeva”, Revue de Droit Monégasque, 2009-2010, pp. 91-130 ; “The South African Constitutional Court and socio-economic rights”, in Liège, Strasbourg, Bruxelles : parcours des droits de l’homme : Liber amicorum Michel Melchior, Limal, Anthemis, 2010, pp. 281-309 ; “Les travaux préparatoires”, in DECAUX, Emmanuel, (Dir.), Le Pacte international relatif aux droits civils et politiques, Commentaire article par article, Paris, Economica, 2011, pp. 1-9. Judgments of the South African Constitutional Court on social rights

▪ Certification of the Republic of South Africa, 6 September 1996.

▪ Soobramoney v. Minister of Health KwaZulu-Natal, 27 November

1997. Social Rights:

▪ Government of the Republic of South-Africa and Others v. Grootboom a specific category of human rights? and Others, 4 October 2000.

▪ Minister of Health and Others v. Treatment Action Campaign and Others (N° 1), 5 July 2002.

▪ Khosa and Others v. Minister of Social Development and Others; Mahlaule and Another v. Minister of Development and Others, 4 March 2004.

373 ▪ Occupiers of Olivia Road, Berea Township, and 197 Main Street, Johannesburg. v. City of Johannesburg and Others, 19 February 2008.

▪ Lindiwe Mazibuko and Others v. City of Johannesburg and Others, 8 October 2009.

▪ Leon Joseph and Others v. City of Johannesburg and Others, 9 October 2009.

▪ Abahlali Basemjondolo Movement SA and Sibusiso Zikode v. Premier of the Province of KwaZulu-Natal, 14 October 2009.

The constitutional judges as a mean of access to justice of social groups in condition of social vulnerability or risk

Ana Virginia Calzada Miranda

President of the Constitutional Chamber of the Supreme Court of Costa Rica

“We are all equal in dignity and rights”.

This short sentence says a lot. Based on the ‘equality’ value it is intended to deepen the ‘justice’ value, having huge implications in foundations and procedures, whose proper appreciation can build and strengthen the content of rights, or by improper consideration may affect the recognition of rights and become a simple axiological statement; a flash on paper.

I do not think I’m wrong considering that everybody here agrees that we have come a long way in overcoming the ineffectiveness of the State regarding the improvement of the status of people with disabilities, women, children, refugees and native people, all considered within what, first the doctrine, and then the international statements, have called “socially vulnerable groups”, or “population groups at risk”.

Even though starting from the premise that human rights are universal, whether civil, political, social, economic or cultural, and belong to all human beings without exception, it is clear that there are groups in vulnerable situations requiring the enforcement of these rights. The legal system —considered as a whole, nationally and internationally— especially guaranteed their enforcement, providing the necessary means so, despite the limitations, those who belong to these groups can find development and respect for their granted dignity as human beings.

When referring to vulnerable groups, it usually means people with disabilities, women, children, the elderly, refugees and native groups that 375 have been considered minorities or non-dominant groups of individuals,

who share certain national, ethnic, religious or linguistic characteristics, that are different from most of the population, and have historically suffered discriminatory treatment by society.

This is an unacceptable treatment in a democratic State governed by the rule of law which is meant to respect human rights, the identity of these

Supreme Court of Costa Rica groups, and to promote, ensure and respect their existence, their national, Constitutional Chamber of the

Ana Virginia Calzada Miranda ethnic, cultural, religious and linguistic identity within their territories, fostering the conditions for the promotion of that identity, as well as ensuring the recognition of dignity and equality.

In this sense and with the purpose of vindicating their rights, it should seek and achieve their maximum integration and development within society, which is an essential condition for protecting their rights at a level of equality, justice and equity.

376 The gradual recognition of human rights has been marked by the imprint of the International Law of Human Rights, hand in hand today with serious and committed constitutional jurisdictions that know these rights and feel responsible for their protection.

Thus, on the basis of this international recognition and its application in the domestic sphere, a new concept of equality is invoked to guarantee them both legally and in a factual situation that has deserved a differential treatment when special situations require it, without affecting the ‘equality’ value. In other words, it seeks equality on the basis of existing inequalities.

It is clear that both, the value and the condition of equality, are based on the recognition of a person’s dignity, which works as an axiological principle against discrimination of any kind. It shows how the value gives rise to the legal principle, imposing the compensation of inequality of opportunities, and a sanctioning parameter for the violation of equality by behaviors of omission.

This is how it has been applied by the Constitutional Chamber of the Supreme Court of Justice of Costa Rica, for example, by establishing that the physical and cultural environment, housing and transportation, health and social services, education and work opportunities, social and cultural life, including sports and recreational facilities, should be accessible to all, in order to increase the levels of autonomy, independence and integration into society. The jurisprudence of the Constitutional Chamber, is direct and widely contributive in this process, because both public authorities —including the Judiciary Branch itself which is part of the Chamber— as subjects of private law, have gradually adjusted to fulfilling the provisions in the legitimacy block, also known as constitutionality block or, as in the case of Costa Rica, the law of the Constitution.

On the basis that articles 1 and 2 of the American Convention on Human Rights impose some general obligations to guarantee and respect human rights of access to justice social groups in condition of social vulnerability or risk through legislative action and “of other nature” —as it is in the jurisprudence The constitutional judges as a mean and judicial activity— in our countries, and taking into consideration that Costa Rica, as part of the Inter-American Convention for the Elimination of All Forms of Discrimination Against Persons with Disabilities, undertook the commitment to take the necessary legislative, social, educational, labor or any other steps, needed to eliminate discrimination against disabled people and promote their full integration into society, in our country the so called ‘Law of Equal Opportunities for People with

Disabilities’ was enacted in 1996. However, it has required a serious and 377 determined contribution by the Constitutional Chamber to achieve the proposed objectives, serving as judicial protection so disabled people reach their integral development, their full social participation, and the proper exercise of the rights and duties set out in our legal system.

Similarly, as it usually is in our environment, the country has signed several international treaties that acknowledge rights in favor of women, children and the elderly, in order to eradicate their exploitation and abuse, and foster the conditions for the development of their personality. Indeed, extensive internal legislation has been developed in that regard, such as the Children and Adolescents Act, the Act Against Domestic Violence, the Act Against the Sexual Exploitation of Minors, the Act of Criminalization of Violence Against Women, the General Act on Protection of the Teenage Mother, the Integral Law for the Elderly, and the Juvenile Criminal Justice Act, among others.

Likewise, internal legislation consistent with international standards has been issued to protect the rights of native groups and refugees, namely the Indian Act, the Act on Migration and Aliens, and the Regulation of Refugees.

However, beyond the issuance of national legislation which allows consolidation of the recognition in the international sphere, it is indisputable that an active and preponderant role is required from law enforcers to ensure its effectiveness since, as described above, the State is obliged in toto to guarantee and respect human rights through legislative and other necessary measures, including the judiciary, and within it, even more the

activity of the constitutional judge as primary and essential reference in the protection of human rights at the domestic level.

The role and responsibility of the constitutional judge in the current context of the democratic and constitutional state governed by the rule of law, is not only focused on achieving the mission of providing protection to the

Supreme Court of Costa Rica fundamental rule, but particularly, on playing a dynamic role in the protection Constitutional Chamber of the

Ana Virginia Calzada Miranda of human rights, because the full force and development of democracy can be defined on this basis, and, with it, precisely, the democratic state governed by the rule of Law.

In other words, the constitutional judge, beyond the already distant Kelsenian conception —not so much distant in time as in the nature of the current constitutional courts—, is today a human rights judge, with attention and in relation to what is being discussed in this regard at the international level, linked to the commitments made by the State, and committed to society, 378 for its development, providing protection and seeking justice and equity. The constitutional judge is a judge of democracy, and as such, must be convinced of the vital role he plays in its protection, consolidation and strengthening.

In this capacity, the Costa Rican Constitutional Chamber has sought to maintain a solid jurisprudence which dignifies and encourages the equitable development of these population groups at social risk.

For ease of the audience —or readers—, a synthesis of the protection that the Constitutional Chamber has sought to provide in this context, is presented as an example of the path taken, and allows us to identify certain areas where the commitment must be increased, and where we should be even more careful, enthusiastic and attentive, in order to comply with the feature, almost a precept, of the progressiveness of human rights.

The protection of the fundamental rights of people with disabilities in the constitutional jurisdiction

The implementation of specific measures to enforce the fundamental rights of persons with disabilities has been regularly late, despite the clarity of the obligations taken by the Costa Rican State. For this reason the constitutional justice has been called to restore the full enjoyment of rights in terms of justice, equality and equity, in different situations that the Constitutional Chamber has worked at, among which the following subjects or areas of attention can be pointed out.

On access to education

Prior to the enactment of the aforementioned “Act of Equal Opportunities for People with Disabilities”, the Chamber had already had the opportunity to make a statement on the need to provide special protection for this population. So, through ruling number 1994-3820 —dictated in a remedy of access to justice social groups in condition of social vulnerability or risk of protection—, it was determined that people with disabilities have the The constitutional judges as a mean right to education, not only in the early stages, but the government is legally obliged to take all the necessary steps for a better integration to society and to achieve autonomy, independence, and usefulness that allow their individual potentialities. In other words, it means achieving their self- accomplishment as human beings.

Subsequently, now an action of unconstitutionality filed by the Office of the

Ombudsman, the Chamber declared unconstitutional a regulatory standard 379 of the Higher Council of Education regulating the access to education for students with special educational needs. This rule was declared unconstitutional for violating the constitutional principles of equality and reasonableness, as well as the right to privacy, given that until that moment the diploma awarded at completion of the levels of study included a note that established the special curricular adjustments received by the student, concluding that such a reference in the diploma did not have any practical or administrative purpose, but was against the protection of the educational rights of these people. It was determined that the provision was not only unreasonable, but contrary to human dignity as well, since such an indication was a mere signage of persons without any purpose.

Likewise, the Chamber has consistently argued that educational institutions must have the appropriate infrastructure for disabled students to move around both inside and outside the facilities, and thus, can integrate into the educational activities —see, among others, rulings 2004-6760, 2005-1170, 2006-1987, 2006-2901, 2006-10952, 2011-11388, 2012-4964, 2012-4630— even guaranteeing admission of trained dogs to schools to serve as guides for people with visual limitations —ruling number 2011-12230.

In the same train of thought, regarding the obligation of educational institutions to provide people with visual impairment appropriate materials according to the right to education, through ruling number 2006-9087, the Chamber defined that the special protection required by this group does not imply that there is an unrestricted right that all materials should be supplied in braille, since it cannot be interpreted that there is an obligation

for all intellectual authors and editors to print their works in braille. However, a note was made on the obligation of the educational center to provide facilities or the necessary means to make the texts and materials accessible to people with visual limitations, either through a special teacher, recordings, scans or software.

Supreme Court of Costa Rica On the other hand, in an motion for protection brought by the mother of a Constitutional Chamber of the

Ana Virginia Calzada Miranda child with Down syndrome, raised by the refusal of a private education institution to enroll students due to their special condition, through ruling 2004-14904, the Chamber ordered not only to the subject of private law to enroll him, but also to adjust the curriculum to the personal conditions of the protected minor.

Similarly, it ordered the Minister of Education to regulate, within a 4-month term, the conditions of enrollment and permanence of people with disabilities in educational institutions, either public or private. 380

On access to communication and information

A subject that has been relevant is the protection of the right to information that socially vulnerable groups have, recognizing in first instance, the right they have to access public information in equal conditions —see ruling number 2006-8995.

For this reason, the State, —conformed by the Legislative, Executive, Judicial, Electoral Branches, as well as by decentralized administrations, all public institutions and those private companies involved in public services— has the duty to offer the disabled all the public information that it has.

This includes official legislative, executive, judicial or electoral texts, as well as the duty to ensure and facilitate access thereto, i.e., to make the content of information available in its full sense. This implies promoting the use of information and communication technologies, safeguarding the right to information of the public in general, ensuring both the display of files, and the ability to download, copy and print them.

It also relates to providing those who require it, the means to convert these documents into speech, avoid obstacles in the electronic page, computer programs or “software” created for this purpose and that the person concerned chooses to enter the website of the institution. In this regard, the Chamber concluded that it is the duty of the National Imprint, as a body of the State, and INTECO —private organization that among other functions, it facilitates access to and dissemination of national and international regulations—, to allow access to regulatory texts in the digital environment, since this information is of unquestionable public interest.

People with auditory impairment are another group that has received of access to justice social groups in tutelage under the amparo proceeding for infringement of the right of condition of social vulnerability or risk The constitutional judges as a mean access to information and communication.

In a ruling of the year 2002, the Chamber, in order to contribute to the process of sensitization and information of society in general regarding this group, referred to the importance of language as an instrument for the development of the capacities of people and to establish social relationships with those around them.

381 In this pronouncement, the Chamber acknowledged that lack of hearing has cultural consequences, since in a society in where hearing has a central weight —a listener— there is another one organized around a visual experience —the non-listener— and it becomes a phenomenon of social difference, biologically based, which leads people to build different processes of socialization.

On the issue of the right of people with impaired hearing to information and communication, considered in articles 50 and 51 of the Act of Equality for People with Disabilities, the Chamber upheld multiple protection resources, which argued the violation of the principle of equality of persons with hearing disabilities, due to failure of the companies with television frequencies concessions to implement support services in the news programs that would guarantee the exercise of their right to learn —rulings number 2001-579201 and 1998-6738.

The Chamber considered, that the obligation contained in article 51 of the Act of Equality of Opportunities for People with Disabilities, includes not only news programs, because obviously the expression “news programs” is broader, and includes not only the television spots that broadcast facts and news occurred in the country or in any part of the world, but that additionally covers the areas devoted to spreading specialists’ opinions in various areas of knowledge, through interviews and television talks, or either, to form public opinion on issues of national and international interest. Similarly, the Chamber determined that effective access to information for

people with auditory limitations is essential for their successful insertion in the labor market, and, in general, for achieving a harmonious social integration —ruling 2002-5974.

In the same sense, in 2009, through ruling number 2009-16104, the Constitutional Court ordered authorities to take the required measures to make passports, social security cards and residence cards of people with Supreme Court of Costa Rica Constitutional Chamber of the

Ana Virginia Calzada Miranda visual limitations accessible to this group regarding their specific needs within a maximum period of one year.

More recently, in ruling number 2012-494, the Chamber upheld an amparo proceeding because in our country the 911 emergency response system lacked the mechanisms to serve the population with special auditory abilities, so it ordered the authority to provide and make available to this group sufficient and truthful information on the equipment, devices and tools available to access the technology that allows them to use the 911 emergency telephone

382 service, as well as the description of the calling, recognition and answering procedures of the emergency calls.

On access to public transportation and roads under conditions of equality

The provisions related to access to public transportation, referred to in chapter V of the Act of Equality of Opportunities for People with Disabilities, require the implementation of technical measures for adapting public transportation to the needs of persons with disabilities, so they become fully accessible and appropriate, developing in this way, the progressiveness of this right.

In this regard, the Chamber in ruling number 2004-340, considered that the provisions referred to in articles 45, 46, 47, 48 and 66 of this Act, as well as various standards of its procedural rules, are not unreasonable or disproportionate, but are necessary, appropriate and proportionate to achieve a constitutionally legitimate purpose, which is to contribute to help people with disabilities to enjoy real and not merely formal equality, being able to access, under the same conditions as other persons, education, health and transportation public services and achieve social inclusion, enabling them to develop their potential and have a dignified existence.

The Chamber recognized that the fulfillment of this obligation involved an investment of financial resources, both for central administration and for licensees of public transportation and the users, but the truth is that the deadlines for expected modifications stated in this law expired, and only a small percentage of public transport units had been upgraded to be fully accessible.

In this regard, it was indicated that while the government had withdrawn some obstacles that made access to this public service impossible, such as ‘turnstiles’ or buses physical entry meters, much more needs to be done so they can have effective access to these services on equal terms. This situation led to a large number of amparos declared against public of access to justice social groups in condition of social vulnerability or risk transportation concession holders for not having suitable units on time to The constitutional judges as a mean meet the conditions laid down in the Act and its regulations, condemning even the Ministry of Public Works and Transport for not properly overseeing the implementation of the legislative mandate —see rulings 2005-5895, 2005-13124, 2006-15632, 2000-14816, 2006-14814.

Similarly, in the taxi and bus public transportation mode, for example, the amparo was also granted having found discrimination to the detriment of a blind person, to whom the service was denied for being accompanied by 383 his guide dog, or because the entry of the dog was conditioned to its owner paying double fare —rulings 2006-7592, 2005-12748. Other amparo proceedings filed were admitted due to the poor condition of sidewalks and bus stops, which made the access and mobility of these persons difficult —ruling 2011-7889.

To safeguard security and access to public roads for people with disabilities, through ruling number 2010-14543, the Chamber initiated procedures related to installing the sound devices that were required at traffic lights, as well as the relevant studies to carry out the necessary road demarcation and verifying suitable areas for the installation of pedestrian traffic lights. Also, the amparo proceeding that culminated with ruling 2010-7911, ordered that the Juan Santamaria International Airport —the main airport in the country— should have an appropriate mechanism for boarding and disembarking passengers with disabilities, both in the main building and at remote terminals.

On the right of access to justice

The issue of access to justice has been addressed by the Constitutional Chamber from the subject of the infrastructure itself, and the accessibility to the law enforcement system.

The Chamber has resolved with merits, amparo proceedings where it was argued that the Judiciary buildings were inaccessible for people with disabilities, ordering the adoption of the necessary measures to eliminate

and overcome these physical obstacles —rulings 2000-2305, 2005-1182—. It was indicated that accessible infrastructure in buildings, especially those that provide public services, is an essential right of these people, since the agile access to the administration of justice is very important for this population. It is critical for them to be able to demand that their rights are respected and report if they have been subject to any form of discrimination. Therefore, it is the duty of the State and society in general, to progressively Supreme Court of Costa Rica Constitutional Chamber of the

Ana Virginia Calzada Miranda eliminate architectural barriers that will hinder or prevent access to these services, which in this specific case, was not even effective in the building of the Supreme Court of Justice.

On another note, the Chamber has analyzed the access to justice for people with auditory impairments. According to the parameters established in the aforementioned Act, by ruling 2002-9658, it was determined that the Judiciary Branch lacked trained personnel who could serve as LESCO sign language interpreters, which prevented a fair and equal access to justice. For this

384 reason the Constitutional Chamber ordered that relevant measures should be taken within six months to solve the problem of access to justice for these people. Pursuant to the order, the Judiciary Branch initially trained twenty officials, and more judicial servers have been trained in order to increase and improve their skills in order to improve the public service.

On the right of access to recreation and culture

The constitutional jurisprudence has also ventured into the assessment and regulation of services provided by subjects of private law, as in the case of restaurants and recreational centers —ruling 2006-4805.

In ruling number 2004-12802, the Chamber upheld an appeal brought up by a blind person, who was denied entry to a restaurant with his guide dog, determining that it was an arbitrary, unlawful action and a violation of the right to equal treatment.

The Chamber stressed that a guide dog is not “any” animal, but that it is a “blind man’s guide” dog, trained under adequate hygienic conditions and that the defendant restaurant should have appropriate conditions to let the dog in according to the second paragraph of article 41 of the aforementioned law, clearly evidencing the obligation of owners of private buildings where people gather and provide services to the public, to meet the statutory technical specifications of public and private entities, to ensure that people with special needs, can access its services on equal terms. In response to the above, it is considered an act of discrimination if, due to a disability, a person is denied participation in recreational activities promoted or carried out by public or private institutions. In the particular situation of the appellant involved it is the obligation of the defendant to have specific spaces so that people like the petitioner can access the food establishments accompanied by their guide dogs. Likewise, it was stated that there is a correlative duty of the public authorities to ensure that these conditions are met. of access to justice social groups in condition of social vulnerability or risk In a similar sense, in ruling number 2011-8188, the appealed authorities The constitutional judges as a mean were ordered to make the corresponding improvements to ensure that people with disabilities could attend the National Theatre.

The protection of native people in the constitutional jurisdiction

The rights of native people have also been the focus of constitutional jurisprudence. On this group in particular, from its early years the 385 Constitutional Chamber recognized that the ILO’s Convention No. 169 is a legally enforceable international instrument, which considers a series of rights, freedom and economic, social and cultural conditions that tend not only to strengthen the dignity and essential attributes of native people as human beings, but also, primarily, to provide specific means to fully develop their status as human beings in view of the depressed, sometimes even exploited and abused situation, in which Aboriginal people of many Nations live; a situation that is not alien to the Americas, where minorities, and sometimes indigenous majorities, are virtually marginalized from the dominant civilization, while, on the other hand, they suffer from depression and abandonment of their own traditions and cultures.

Likewise, in repeated jurisprudence the Chamber has recognized, in summary: a) That it is necessary to recognize the natives, in addition to their full rights and freedom, as human beings, another condition legally guaranteed, by means of which the inequality and discrimination to which they are subject may be offset, with the purpose of guaranteeing their real and effective equality in all aspects of social life. b) That it is also necessary to respect and preserve the historical and cultural values of native people, recognizing their peculiarity, without any other limitation than the need to preserve, at the same time, dignity and the fundamental values of all human beings recognized by the civilized world today —which means that respect for traditions, religion, language and

general culture of these peoples, only admits the necessary exceptions to eradicate practices universally considered as inhumane.

c) Without any prejudice to the foregoing, we must also recognize the native people’s rights and all the necessary means to access in a free and dignified manner the spiritual and material benefits of the dominant Supreme Court of Costa Rica

Constitutional Chamber of the civilization —among which the access to education and to the official Ana Virginia Calzada Miranda language stand out.

The main problem they have faced is the constant loss of their lands, especially because, in spite of the current legislation, they are not yet the owners thereof. Hence, the nature of community use that has been given to their lands is one of the most controversial issues, which also makes it impossible for them to exercise the right of individual ownership, as well as being subject to certain prohibitions, such as the sale of liquor within these

386 reservations. The latter was considered reasonable by this Chamber, demonstrating that the rule for such ban, far from creating a discriminatory situation to the detriment of native people residing in a reservation, is a measure of protection for them, established within the international regulatory framework of protection for indigenous peoples, insofar as the objective of the legislator was to abstract these peoples from the noxious influence of contaminating or foreign factors to their culture, customs and institutions. It established that there is no ban for native people to establish businesses where they may sell liquor —both domestic and foreign—, but with the only condition that such businesses are established outside the reservations, and have a liquor license.

In addition to the above, in ruling number 1993-1786, the delivery of identification cards to natives was ordered, indicating that our Constitution must be interpreted and applied in a way that allows and facilitates independent life and development of ethnic minorities that live in Costa Rica, without imposing any other limits other than the same human rights on the conduct of all persons. Therefore, the provisions of international instruments and of common legislation should be developed domestically in the same way for indigenous peoples.

Similarly, recognizing the right to political participation and respect for their traditions and customs, in several rulings, the Chamber has guaranteed that in matters of the natives interest, they must be previously consulted —see rulings numbers 2011-6114 and 2011-3084, among others. The protection of women in the constitutional jurisdiction

Regarding the rights of women, the Chamber has acknowledged in its ruling 2005-10482, that women have historically been subject to discrimination in various areas of society —labor, economic, political, cultural, legal— and that they have been relegated in the determination, adoption and execution of those general measures aimed at the development of the human group

they comprise, thereby reaffirming the rights and commitments made by of access to justice social groups in condition of social vulnerability or risk our country to sign various international instruments under the principle The constitutional judges as a mean of non-discrimination, to proclaim that all human beings are born free and equal in dignity and rights, recognizing all economic, social, cultural, civil and political rights without distinction of race, color, sex, religion, political opinion or any other type.

Also it had to restore genuine equality for women in political participation. It has pointed out that it is an undeniable reality that women have not been given the same opportunities as men to access public office, a type of 387 discrimination which would be second only to giving protection and participation in an imperative form to women in political decision-making positions, while in the collegiate administrative organs a representative number of women is appointed.

It was emphasized that women are often required to demonstrate their suitability for certain positions, whereas if a man is appointed, his suitability is taken for granted and not questioned, representing a differential and discriminatory treatment.

To counteract the discrimination affecting women, the legal system gives special protection and requires the administration to appoint a reasonable number of women in public positions, because, otherwise, notwithstanding the skills and vocational training of women, their access to such charges is much more difficult.

Thus, in order to prevent discrimination against women, it considered that a special and qualified treatment should be given to them, since socially they are not on equal terms as men, a situation that, in compliance with the principle of equality, which provides equal treatment for the equal, and unequal for the unequal, justifies a protection particularly accentuated for women.

The Chamber also defined that it should be taken into account that societies and those exercising positions of power, when it comes to making decisions, do so based on the different relationships that are presented for making

them, and by denying women —in a forbidden manner or otherwise— their participation in decision-making positions, they forget they are leaving out the viewpoint that women may have about the reality of our societies. Recognizing this difference in the appreciation of reality is considered truly essential, since it strengthens democracy and allows families to share responsibilities in their homes —ruling number 1998-00716. Supreme Court of Costa Rica Constitutional Chamber of the

Ana Virginia Calzada Miranda Similarly, the access of women to training should have been considered. For example, at the National Institute of Learning —an autonomous institution that provides general training in trades of significance for the national doing— a certain amount of quotas was reserved, which was not considered unreasonable or in violation of fundamental law by the Constitutional Chamber —see ruling 1998-3666.

Furthermore, and regarding their physical, emotional and psychological protection, the Chamber has indicated that the use of regulations to abolish

388 discrimination against women is a legitimate form of reaction of the State, since through them it tries to abolish a situation of discrimination and, in turn, it is intended to punish behaviors through special laws —for example the Act on Punishment of Violence Against Women— (see rulings numbers 2001-3419 and 2004-3441), since this population group has been particularly subject to violence.

Along the same lines, and in respect to their own dignity, this Chamber, in ruling number 1992-2196, declared unconstitutional to require the consent of the husband for a woman to be sterilized.

Protection of refugees

The population of refugees is another sector that has deserved the ruling of the Constitutional Chamber. Ruling number 2005-4293, indicated the importance of the Convention on the Status of Refugees, adopted by Costa Rica through the Act 6079 of August 29, 1977, and emphasized that since its adoption, the signatory States are obliged to grant refugees the same treatment as other foreigners in general. It recognized the importance of making the instrument effective in our legal system, given that only in this way we contribute to the universal application of the principles and precepts enshrined therein, and confirms the commitment to address the issue of the refugees as a shared international responsibility.

In other cases, for example in ruling number 1989-156, the right of refugees to work was recognized; in ruling 1997-2570 the restriction of accepting only Costa Ricans in scientific schools was eliminated. Through ruling 1998-6026, foreigners were allowed to be commercial commentators; ruling 1998-8857 recognized the school bonus for foreigners; and in ruling 20008694, children of illegal aliens were accepted in schools.

Protection of minors

Children are a population sector especially protected in our Constitution, to of access to justice social groups in the point where within the Costa Rican institutions; there is the so-called condition of social vulnerability or risk The constitutional judges as a mean National Children’s Trust, an autonomous institution responsible for the special protection of minors. This institution is responsible for strengthening and protecting children, attending one of the principles on this matter, which is the protection of the best interests of the minor that has been reinforced by the jurisprudence of the Constitutional Tribunal.

The Chamber has guaranteed the rights of children, with emphasis on some key issues such as the right to education, to developing their personality, to 389 remain with their families, to enjoy a healthy environment, to health and to any action primarily serving to their interest —see, inter alia, ruling 2002-1283.

In ruling 1997-2052, the Chamber noted that from the principle to prioritize the welfare of children, arises the right of every child to be integrated into a family as a natural form of human coexistence, recognizing adoption as a possibility to protect a child from being abandoned, or which is given voluntarily before a judge for good cause. The above, of course, anticipating substitutes or surrogate protection means through law to provide the children what they lack, i.e., a family environment suitable for their wellbeing and development.

On the other hand, in ruling 2003-12535, the duty of the States to implement policies that seek greater control, clearly involving immigration control, was strengthened, in order to prevent offences committed against minors, urging the development of what is set forth in the Law “Approval of the Optional Protocol of the Convention on Rights of Children Relative to the Sale of Children, Child Prostitution and the Use of Children in Pornography”.

In addition, it has been recognized that while there is an interest to preserve the family unit, for the sake of the special protection that minors deserve, their wellbeing must prevail over the concept of family, when there is conflict between both interests —ruling number 2002-607. Similarly, it has been noted that free trade is also restricted against the

interests of children, establishing regulations such as the minimum distances demanded in article 9 of the regulations to the Liquor Act, from certain premises such as nightclubs, since it is not suitable to locate them close to schools and hospitals, because minors have the right to remain in a healthy environment and to receive an education that develops their potential, while instilling respect for human rights, cultural values and care of the natural environment, in a framework of peace and solidarity, as set out in article 56 Supreme Court of Costa Rica Constitutional Chamber of the

Ana Virginia Calzada Miranda of the Act of Childhood and Adolescence —ruling 2002-2825.

Protection of the elderly

The Constitutional Chamber has pointed out that the welfare State enshrined in the Political Constitution develops in its provisions a significant and mandatory state intervention in social matters in favor of those special sectors of the population which, because of their condition, require it; as in the case of the elderly.

390 It acknowledged that until recently there were no rules aimed at ensuring the adequate special protection and State guardianship that older adults require; however, on October 19, 1999 the Comprehensive Act for the Elderly, number 7935, was promulgated. However, the Chamber reaffirmed that it should not and must not be considered that such rules exhausts the guardianship and special protection by the State of the fundamental rights of adults, because it is precisely derived from the legal framework that this jurisprudential development on the obligatory nature and the respect that should be given by the judiciary. The legislation is only an introductory framework which provides that “the elderly are all those persons who are sixty-five years old or older”. In addition, it aims, among other things, for comprehensive care of this group, defined in the law as meeting the physical, material, biological, emotional, social, labor, production and spiritual needs of older adults —see rulings 2006-2268 and 2007-13584.

In other rulings, the Chamber has sentenced even private transportation companies which deny the free service to older adults or mistreat them 2009-19050, 2009-8313 and 2011-12230.

Also it has especially protected their right to health, guaranteeing special vaccines and transfer by ambulance to attend medical appointments when so required —see ruling 20098339.

Similarly, it guarantees that an older adult who has been left in a hospital is not released to the streets, but is relocated to a shelter —ruling number 2006-15910— and that public places, even if they are private companies, give them a preferential treatment —rulings numbers 2010-4494 and 2004-11170.

In conclusion, Costa Rica has signed a series of international commitments that involve protecting these groups, as well as developing an appropriate and modern legal framework to solve problems, such as violence, exploitation, discrimination, lack of access to public services and abandonment, among others. Such task has been deployed and accompanied by the Constitutional of access to justice social groups in condition of social vulnerability or risk Chamber, which has been a major breakthrough in the vindication of the The constitutional judges as a mean rights of these groups. However, it is a task that must continue in order to assure effective protection and guarantee the conditions to exercise their fundamental rights and fully develop their capacities, in order to achieve an equitable insertion in society in conditions of equality.

391

Economic, social & cultural rights and access to justice for vulnerable groups

Sisi Khampepe

Justice of the Constitutional Court of South Africa

Introduction

The South African constitutional era can only be understood in the light of our history of oppression. While our country continues to bare the wounds of hundreds of years of racism, our Constitution, and the jurisprudence of the Constitutional Court, seek not only to restore what apartheid stripped from our people, but also to build the foundations of a new society in which all of our people are guaranteed a dignified life.

I structure this paper around two themes that are particularly significant in South Africa’s constitutional era. Both may be seen as different instances of “access to justice”. The first is access to justice in a Rawlsian sense of addressing social and economic inequalities. The second is access to justice in the sense of access to courts. In this part of the paper I discuss ways in which our Court has increased access to justice for vulnerable groups, focusing on women as an example, and will briefly touch on a few innovative remedies our Court has used to ensure meaningful legal redress. Before addressing these themes, however, it is apposite to outline some of South Africa’s history.

Factual background of South Africa and apartheid

Law has a checkered history in our country. During apartheid, the racial segregation and repression of black people was regulated by a myriad of 393 laws passed by the government in order to subjugate and degrade the majority of South Africans and deny them basic human rights. I note that in South Africa “black people” is a term which includes African, Coloured and Indian people.1 The apartheid state attempted to legitimise its implementation of racism by enacting it in statute books. For the majority of South Africans, law was not perceived as an instrument of justice —it was

Sisi Khampepe a tool of oppression in the hands of a white minority government. This abhorrent system forced South Africans to interact with one another in

Constitutional Court of South Africa racial categories, destroying ordinary relationships between black and white people.

But apartheid did much more than saturate my country with racism. Its primary goal was to entrench the unequal distribution of resources —a formidable challenge that remains in present-day South Africa. While absolute poverty has marginally decreased since the end of apartheid, almost half of the population lives below the poverty line, on only R500 (rands) a month (that’s about US $56 or 43 euros). Ironically, the end of

394 apartheid has seen a rapid increase in inequality. A World Bank Report, released in July 2012, found that South Africa is one of the most unequal countries in the world, with the top 10% of the population accounting for 58% of the country’s income and the bottom 10% accounting for only 0.5% of the income. Research has demonstrated that the only brake on rising post-apartheid inequality has been South Africa’s system of social grants.2

Inequality is the biggest challenge facing South Africa today and manifests itself in many subsets including: the disparity in access to adequate housing and resources; education;3 unemployment; and gender inequality. Our unemployment rate stands at 25.2% and is among the world’s highest.4 The unemployment rate clearly has roots in apartheid. I remember how difficult it was, as a recently qualified lawyer, to find work in the 1980’s. Notwithstanding that I was equipped with an LLM from Harvard Law School, I had to endure the insidious discriminatory employment practices of those times. Big law firms only wanted to hire white lawyers. Despite these obstacles, it was during this initial phase of my career that I came to respect the law as a means to achieve, rather than inhibit, justice. I came

1 See the Employment Equity Act 55 of 1998. 2 For the poorest 20% of South Africans, social grants made up 70% of their income. The World Bank found that if these grants were excluded, 40% of South Africans would have actually seen their income decline in the first decade after apartheid. http://mg.co.za/ article/2012-07-24-entrenched-inequality-of-opportunity-threatens-sas-future 3 National Planning Commission “Diagnostic Overview” June 2011 (National Planning Commission). 4 World Bank Report. See also http://mg.co.za/article/2012-07-24-entrenched-inequality- of-opportunity-threatens-sas-future into contact with people like our former Chief Justice, Arthur Chaskalson, at the Legal Resources Centre (LRC), who helped to reshape my political acumen that not all white people believed in apartheid —some were fighting to end it.

Education is a necessary and significant tool in the battle against inequality, groups and while there have been major improvements in access to education, the quality of education remains extremely poor in certain areas.5 The result is massive inequality in the South African education system, which produces and access to justice for vulnerable vast inequalities in learner results and reproduces the vast inequalities seen Economic, social & cultural rights during apartheid.6

The white minority government knew that providing inferior quality education to black students would help prolong apartheid. Thus, in 1982, the state spent R1211 on each white child per annum and only R146 on each black child.7

The new constitutional order 395

During apartheid, parliament was sovereign, answerable only to itself. Suffrage was open only to the white population, yet the laws parliament made governed the lives of all South Africans. Even our courts, as the enforcers of parliament’s will, were a part of apartheid’s legal infrastructure and were considered by the majority to be complicit in its crimes. Thus, many people did not repose any confidence in our courts. Therefore, it was incumbent on the designers of our constitutional era to create legal machinery that would lay the basis for a different kind of society that would promote, protect and fulfill human rights and redress the systemic inequalities left by the legacy of the apartheid system.

5 National Planning Commission above no. 2. See also http://mg.co.za/article/2011-09- 16-poverty-and-inequality-in-south-africa 6 In 2009 the Western Cape Education Department (WCED) tested every Grade 6 learner at numeracy. The study found that 60% of those in former white schools could count and do maths at Grade 6 level, while only 2% of learners in former black schools could do the same. South African learners fare particularly badly in comparison to pupils in other African countries. In the Progress in International Reading Literacy Study (PIRLS) which focused on primary school learners’ ability to read, South Africa came last out of 40 participating countries. (IVS Mullis et al, PIRLS 2006 International Report: IEA’s Progress in International Reading Literacy Study in Primary School in 40 Countries (2007) 328.) Another international study, the Southern and Eastern Africa Consortium for Monitoring Educational Quality (SACMEQ) II, looked at sub-Saharan countries and found 31% of South African grade 6 learners could not read independently. South Africa was ranked 9th out of 14 countries, behind Mozambique and Swaziland.(‘Indicators by Country’, in Southern and Eastern Africa Consortium for Monitoring Educational Quality (2004) available at http://www.sacmeq.org/indicators.htm, accessed on 15 September 2011. M Moloi & J Strauss ‘The SACMEQ II Project in South Africa: A Study of the Conditions of Schooling and the Quality of Education’ (2005) 179 available at http://www.sacmeq.org/downloads/ sacmeqII/rsa.zip, accessed on 13 September 2011.) 7 Equal Education fact sheet “Unequal Schools, Unequal Outcomes” 2011. It is out of this factual and historical matrix that our constitutional dispensation was born. Our Constitution8 and the Constitutional Court were designed to tackle our history of oppression and inequality in a legally protected manner. Indeed, the Preamble to our Constitution provides that it was adopted in order to:

Sisi Khampepe Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Constitutional Court of South Africa Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

Improve the quality of life of all citizens and free the potential of each person; and

Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. 396

Socio economic rights

During the negotiations of our Constitution a matter that attracted a large amount of debate was whether, and the manner in which, socio-economic rights ought to be included in the Bill of Rights. Three separate positions emerged. The first was that socio-economic rights ought merely tobe aspirational and not embodied in the Constitution at all. Proponents of this view argued that the provision of basic housing, food, healthcare and water were political, rather than legal, matters and that the government must be allowed to determine how best to allocate state resources.9

The second position was that socio-economic rights should be included in the text of the Constitution, but only as guiding principles, following the example set by the Irish and Indian Constitutions.10

Advocates for a third position argued that providing only for civil and political rights would be futile since the majority of South Africans were, and mostly remain, incapacitated by the legacy of apartheid. In their view

8 Constitutional of the Republic of South Africa, 1996 (Constitution). 9 D. Davis “The case against the inclusion of socio-economic demands in a Bill of Rights except as directive principles” (1992) 8 SAJHR 475. 10 However, the Indian Supreme Court has famously interpreted justiciable civil and political rights, particularly the right to life in terms of Article 21, in order to provide socio- economic rights with direct legal enforceability. what was required, in addition, were justiciable rights to enable these citizens to realize their basic needs. The main objections to judicially enforceable socio-economic rights turned on issues of institutional competence and institutional legitimacy.

Notwithstanding these obstacles socio-economic rights were, ultimately, groups included in the Constitution as justiciable constitutional rights. Of course, what a “justiciable right” means in this context is something quite distinct from a private law right. Indeed, those who attempt to analyze socio-economic and access to justice for vulnerable Economic, social & cultural rights rights using the paradigm of private law rights are naturally critical of our Court’s jurisprudence. It must be emphasized that in the South African context, a citizen’s right to adequate housing, for example, does not amount to a right to demand the government to provide her with a house. This is undoubtedly a goal we all hope to see realized, but the socio-economic rights in our Constitution provide citizens with a guarantee that is somewhat more modest: the citizen has the right to demand that the government take reasonable steps within its available resources to progressively realize these rights. This more modest obligation is manifest in our Court’s “reasonableness” 397 standard of review. Below I highlight a few of the cases in which socio- economic rights have been adjudicated upon in order to demonstrate the manner in which the Constitutional Court has applied the reasonableness standard in relation to the rights to health, housing, and water.

The first socio-economic rights case that came before the Constitutional Court was a painful instantiation of the limits of socio-economic rights litigation. In Soobramoney v. Minister of Health (KwaZulu-Natal),11 the applicant challenged the KwaZulu-Natal health department’s decision to deny him access to dialysis treatment. The Department of Health had decided to make dialysis treatment available only to those patients who were candidates for a kidney transplant. The applicant was not eligible for a kidney transplant and accordingly was precluded from receiving dialysis.

Our Court held that the applicant’s claim needed to be viewed in the context of the wide-ranging needs that the health services had to meet, since providing treatment to the applicant would mean providing treatment to all those persons similarly placed.12 The Court held that if all persons in South Africa who suffered from chronic renal failure were to be provided with dialysis treatment, the cost of doing so would have a significant impact on the health budget. Further, the Court held that if this principle were to

11 1998 (1) SA 765 (CC). 12 Ibid at para. 28. be applied to all patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased to the prejudice of other needs that the State has to meet. While the decision was tragic and unsettling, as a matter of principle commentators have generally found that it is correct.13

Sisi Khampepe The second socio-economic case that came before the Constitutional Court concerned the right of access to adequate housing. Mrs. Irene Grootboom 14 Constitutional Court of South Africa and the other respondents were rendered homeless as a result of their eviction from their informal homes situated on private land earmarked for formal low-cost housing. They applied to court for an order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation. The Constitutional Court held that the low-cost housing policy in the Western Cape had failed to satisfy a reasonable standard for fulfilling the right to housing and ordered the government to take positive steps to devise and implement a comprehensive and coordinated program within its resources for the right’s progressive 398 realization. The Court did not order that each applicant be provided with a house, but rather required government to revise its housing program to include reasonable measures to provide relief for people who had no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations.

Critics of the Court’s socio-economic rights rulings often cite this fact in order to imply that the litigation and so-called “justiciable right” failed to secure her a meaningful remedy. While the failure to provide Mrs. Grootboom with a house, even eight years after the judgment, is another sharp reminder on the limits of adjudication, the judgment did have a significant effect. It obliged the state to take positive measures to create access to housing for the most vulnerable. A year after the judgment was handed down a new national housing program was enacted in order to cater for persons in emergency situations with exceptional housing needs. This example demonstrates clearly how rights-based litigation and the Court’s judgments can lead to the development of government policy.15

Some critics have argued that the judgment erred in its failure to interpret the right of access to adequate housing as including a minimum core

13 See, for example, Frank Michelman, “The Constitution, Social Rights and Reason – A Tribute to Etienne Mureinik” (1998) 14 SAJHR 499 at 502. 14 Government of the Republic of South Africa and Others v. Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC). 15 E. Cameron, “What can you do with rights?” (2012) The Fourth Leslie Scarman Lecture. obligation to provide for basic needs.16 That is to say, the judgment failed to assert that every socio-economic right requires a set of minimum standards that must be provided by the State.17

Questions of minimum core obligations and quantifying the content of rights arose again in the Mazibuko case.18 The applicants, residents of one of the groups poorer areas of the city of Johannesburg, challenged the constitutionality of the City’s decision to supply 6 kilolitres of free water per month to every and access to justice for vulnerable account-holder in the city. They argued that the policy was in conflict with Economic, social & cultural rights section 27(1) (b) of the Constitution, which provides that everyone has the right to access to sufficient water.

The applicants argued that 50 litres of water per person per day is what is necessary for a dignified human life. Their argument was that the court should adopt a quantified standard determining the content of the right in section 27(1) (b), and not merely its minimum content.

399 The Constitutional Court held that a significant problem with fixing a quantified content is that what a right requires will vary over timeand context, and might, in a rigid and counter-productive manner, prevent an analysis of context.19 On the contrary, the “concept of reasonableness places context at the centre of the enquiry and permits an assessment of context to determine whether a government program is indeed reasonable.”20

The Court held that the constitutional right of access to sufficient water did not require the State upon demand to provide every person with sufficient water without more. Rather, it required the State to take reasonable legislative and other measures progressively to realize the achievement of the right of access to sufficient water, within available resources.21

16 D. Bilchitz ‘Giving Socio-Economic Rights Teeth: the Minimum Core and its Importance’ at 2. 17 At the International level, the concept of ‘minimum core’ originates in General Comment 3 (1990) of the United Nations Committee on Economic, Social and Cultural Rights in which the Committee stated that— “[it] is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is prima facie, failing to discharge its obligations under the Covenant.” 18 Mazibuko and Others v. City of Johannesburg and Others 2010 (4) SA 1 (CC). 19 Mazibuko at para. 60. 20 Ibid. 21 Ibid at para. 50. One of the most lauded South African cases in relation to socio-economic rights is Treatment Action Campaign (No 2) v. Minister of Health22 in which the Court held that the government’s policy in respect of the prevention of mother-to-child transmission of HIV was unreasonable. The government decided to make, Nevirapine, an antiretroviral drug, available only at certain research sites within the public health sector. The Court held that the policy Sisi Khampepe failed to address the needs of mothers and their newborn children who did not have access to these sites. It failed to distinguish between the evaluation Constitutional Court of South Africa of programs for reducing mother-to-child transmission and the need to provide access to health care services required by those who did not have access to the sites. There are three significant points to make in relation to the judgment.

First, while the Court in TAC (No 2) did order the government to make Nevirapine available at more clinics subject to certain conditions, which would have resource implications, it did so because the government itself 400 had decided to make Nevirapine available, though on a restricted basis, and the court found that there was no reasonable ground for that restricted basis. Further, the Court took into account that Nevirapine was for a period being made freely available to government by its manufacturer. Thus, effectively all that the court did was to render the existing government policy available to all.23

Second, the Court made it expressly clear that government might revise and amend its policies if it needed to do so. Thus the Court expressly noted that its order did not preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV.

Third, the TAC (No 2) decision is an example of successful socio-economic rights litigation acting as a catalyst to change government policy-making. The Court order in TAC was confined to supplying drugs preventing mother-to-child transmission of HIV, however, in August 2003, 13 months after the TAC judgment, the government announced a plan for comprehensive

22 For a good account of the background of the TAC case see Mark Heywood, “Preventing Mother to Child HIV Transmission in South Africa: Background, Strategies and Outcomes of the TAC case against the Minister of Health” (2003) 19 South African Journal on Human Rights. 23 Mazibuko at para. 64. treatment and care for HIV and AIDS in South Africa. Today, South Africa boasts the largest publicly provided AIDS treatment program in the world.24

It may be argued that the South African example of socio-economic rights litigation has not achieved everything that people had hoped it would. But

even the Court’s fiercest critics cannot argue that the litigation has not had groups a real effect in some instances. And in each matter that comes before the Court, we have attempted to craft a remedy that will speak to the urgent

needs of people whose rights, enshrined in the Bill of Rights, are threatened. and access to justice for vulnerable Economic, social & cultural rights

Further, we must be mindful, when evaluating the jurisprudence of the Court, that legal challenge is not the only nor indeed the primary means of demanding socio-economic entitlements. The primary means for doing so is through the political sphere.25

Accordingly, in relation to minimum standards, national government, and not the courts, should clearly set the targets it wishes to achieve in respect of social and economic rights. This enables citizens to scrutinize government’s 401 performance and to hold it accountable politically if the standard is not achieved. In addition, citizens may hold government accountable through legal challenge if the standard set is unreasonable. In Mazibuko, the Court held that a reasonableness challenge requires government to explain the choices it has made. To this extent it must furnish the information it has considered and the process it has followed to determine its policy. Our judgments, therefore, make it plain that while the reasonableness approach affords necessary respect to the principle of separation of powers, the courts may serve as catalysts for new policy to be made by government. Courts as guardians of the Constitution ensure that the government keeps to the promises it has made and that are stipulated in our Constitution.

Access to justice for vulnerable groups

The Court has paid careful attention to the importance of access to the courts, particularly for vulnerable groups in the light of our oppressive and segregated past. Indeed, even the physical building of the Constitutional

24 Cameron note 15 above at 14. See also the Fourie and Masiya decisions which, although not socio-economic rights cases, led to legislative amendments. 25 In Mazibuko, the Court held that the Constitution envisages that legislative and other measures will be the primary instrument for the achievement of social and economic rights. Thus it places a positive obligation upon the State to respond to the basic social and economic needs of the people by adopting reasonable legislative and other measures. By adopting such measures, the rights set out in the Constitution acquire content, and that content is subject to the constitutional standard of reasonableness (Mazibuko at para. 66). Court pays homage to the idea of access to the courts.26 In this part of the paper I examine the practical measures and remedies the Court has used in order to facilitate access to justice. I then focus on women in the context of customary law in South Africa as one instantiation of how the Court has attempted to provide access to justice to a particularly vulnerable group.

Sisi Khampepe Everyone has access to our Court, either by way of direct access or by leave to appeal, and the Court takes several practical measures to ensure that Constitutional Court of South Africa vulnerable groups living in South Africa can approach the Court. First, the Court takes care to read all new applications mindful of the fact that applicants may not have had access to proper legal representation. It is not uncommon to have lay litigants approaching the Constitutional Court directly, and even an application that is incoherent in parts will be read carefully and the matter set-down if it seems that there is an arguable constitutional question for the Court to address. Where an application may have legal merit but is poorly framed, the Court goes to great lengths to 402 ensure that the applicant receives proper representation from various legal aid organizations, public interest entities throughout the country or legal firms providing pro bono services.

Second, the Court welcomes the participation of amici curiae in cases where vulnerable applicants may not be in a position to best argue their interests.27 Similarly, our Constitution expressly provides for the bringing of public interest matters. What this means is that an individual has standing to bring a case before the Court, even if he or she is not personally affected, as long as he or she can demonstrate that there is a clear public interest concern at stake.28

26 While most countries build their highest courts with austere Greek columns and grandiose statues made of marble, the South African Constitutional Court is intentionally built with brick and wood so as not to appear inaccessible or removed from the public. There are no columns, only a few steps and floor to ceiling windows all along the main passageway so that passersby can peek in. The Court also remains open 24 hours so that anyone can approach at any time. The courtroom itself is lined with a window called the “ribbon of light” through which the Justices can look out to the people walking by and people can easily look in and observe the proceedings of the Court. This window is strategically placed so that only a person’s legs can be seen to make it impossible to determine the gender or race of the individuals walking past. This constant stream of unidentifiable “human beings” walking by the Court is a constant reminder of the new era of equality our Constitution seeks to achieve. 27 In Children’s Institute v. Presiding Officer of the Children’s Court and OthersZACC 25 [2012], at para 35, the Constitutional Court emphasised the important role amici play where the matter involves vulnerable litigants with limited resources. The Court held that these litigants are invariably unable to produce the kind of compelling evidence that an expert may be able to provide. In these instances, the amicus speaks to aid voiceless and penniless people and assists the court in making an informed decision. 28 See section 38(d) of the Constitution. Third, the Court also attempts to ensure that parties receive a meaningful remedy. In this regard, the Court has, in particular, made use of structural interdicts and engagement orders.

A structural interdict is a court order that directs the violator to take steps

to rectify the violation of rights, and the violator is required to report back to groups the court setting out the steps it has taken to remedy the violation. Another remedy that has proved very useful is the engagement order, according to and access to justice for vulnerable

which parties are ordered to meaningfully engage with a view to reaching Economic, social & cultural rights agreement on the particular issues in dispute. The Constitutional Court has held that competing rights can best be resolved by engagement between the parties.29 In PE Municipality30 the Court expressed this realisation in this way:

In seeking to resolve the above contradictions, the procedural and substantive aspects of justice and equity cannot always be separated. The managerial role of the courts may need to find expression in innovative ways. Thus, one potentially dignified and effective mode of achieving sustainable reconciliations of the different interests 403 involved is to encourage and require the parties to engage with each other in a proactive and honest endeavour to find mutually acceptable solutions.31

A touching recent example of both of these remedies being utilized, under the leadership of the present Chief Justice, Mogoeng, is our decision in Schubart Park Residents’ Association and Others v. City of Tshwane Metropolitan Municipality and Others. We held that the City’s evacuation of approximately 3000 residents from the homes they occupied in Schubart Park, on the grounds of a temporary emergency, could not have been the basis for a lawful permanent eviction. Therefore, their removal without adequately providing the residents with alternative accommodation was held to have been in breach of the provisions of the Constitution which protect everyone from unlawful eviction. Our remedy ordered the City and the residents of Schubart Park to engage meaningfully on various issues including the date when the residents’ occupation of Schubart Park will be restored. And the City was ordered to report to the High Court on what plans have been agreed upon to provide alternative accommodation to the identified residents until their occupation of Schubart Park is restored.

29 Schubart Park Residents’ Association and Others v. City of Tshwane Metropolitan Municipality and Others [2012] ZACC 26 at para. 44. 30 Port Elizabeth Municipality v. Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC). 31 Ibid at para. 39. The Constitutional Court has attempted to provide access to justice to various vulnerable groups. For example, the Court held in Lawyers for Human Rights that non-citizens can benefit from Constitutional rights and protections32 and, in Hoffman’s case, that persons with HIV cannot be subject to irrational job discrimination.33 The Court has attempted to make it easier for women to receive compensation where they have been victims 34

Sisi Khampepe of violent attacks, as well as ensuring equality and protection from discrimination for homosexuals.35 Indeed, the Court has repeatedly made it

Constitutional Court of South Africa quite clear that the Constitution is an effective tool in ensuring protection to our country’s most vulnerable.

One vulnerable group the Constitutional Court has repeatedly opened its doors to, is to its women. Women occupy an extremely vulnerable position in South African society, a phenomenon not uncommon to other democracies. Statistically, unemployment rates for South African women are approximately 6% higher than for men despite the fact that the population of working-aged women is greater than that of men.36 Consequently, 61.2% of 404 unemployed individuals receiving government grants are female as compared to only 38.8% male.37 Furthermore, a higher percentage of women are not economically active. This is because the role women traditionally, and often still, play is that of care-givers which makes it harder for them to maintain employment and also makes them more reliant on social grants.38 Women are far more likely to live in informal settlements, in poorer rural areas and they are less likely to have access to basic services.39 Women are also far less likely to hold positions of power and are much less likely to be appointed as CEOs or Judges. For instance, currently, 67 High Court Judges are women while 170 are men. 40 Even our Constitutional Court has only two women out of a panel of eleven Judges. Chief Justice Mogoeng has taken several

32 Lawyers for Human Rights v. Minster of Home Affairs [2004] ZACC 12; 2004 (4) SA 125 (CC). 33 Hoffmann v. South African Airways [2000] ZACC 17; 2001 (1) SA (CC). 34 K v. Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC); F v. Minister of Safety and Security [2011] ZACC 37. 35 National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC); Minister of Home Affairs v. Fourie [2005] ZACC 19; 2006 (1) SA 524 (CC). 36 See Table E and Table 1 in Statistics South Africa “Quarterly Labour Force Survey, Quarter 2, 2012” (2012) Stats Online, available at http://www.statssa.gov.za/PublicationsHTML/ P02112ndQuarter2012/html/P02112ndQuarter2012.html. 37 Statistics South Africa “General Household Survey, 2009” (2009) Stats Online, available at http://www.statssa.gov.za/publications/P03181/P031812007.pdf. 38 Statistics South Africa “Women and Men in South Africa, 2002” (2002) Stats Online, available at http://www.statssa.gov.za/publications/womenandmen5yearson/womenandmen 5yearson2000.pdf 39 Albertyn “Gendered Transformation in SA Jurisprudence” 3 STELL LR 591 (2011) at 593. 40 See K Moult & Y Hoffman-Wanderer “More women on the bench offer a better gender perspective” 31 May 2012 Mail and Guardian, available at http://mg.co.za/article/2012- 05-31-more-women-on-the-bench-offer-a-better-gender-perspective. encouraging measures to address this yawning gap in the Judiciary, including the acceleration of judicial training for aspirant women Judges. Women living in rural areas are also far more likely to be subjected to traditional forms of power dynamics under customary law, which adds to their position of vulnerability.41 It is this tension between customary law and gender

equality that I wish to discuss. groups

Our Constitution strives to promote and encourage multiculturalism and

has incorporated a dual system of law. This system recognizes the thousands and access to justice for vulnerable Economic, social & cultural rights of South Africans for whom customary law is a vital part of identity, tradition and culture. The apartheid regime relegated traditional customs and norms to a subsidiary position in South African society. Indeed, the apartheid government created homelands that separated black traditional communities from the rest of South African society. What evolved were isolated and self- governing traditional communities. The upshot of this has been a situation in which many marginalized persons within these traditional communities choose not to approach formal courts such as ours, but their own traditional courts, even where fundamental rights, enshrined in our Bill of Rights are 405 being infringed.

Women are perhaps the group most callously discriminated against in these traditional communities because of the system of male primogeniture that often prevents women from property ownership and inheritance rights. Women are also often excluded from important leadership positions within these communities, further exacerbating their position of inequality. Former Chief Justice Langa described the customary law system of male primogeniture as:

a form of discrimination that entrenches past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with equality under this constitutional order.42

With regard to developing legal precedent, the Court has attempted to balance the rights of individuals to practice freely their own cultures and the right to equality, in particular gender equality, which are both enshrined in the Constitution. The Court has done so by approaching customary law as “living law.” Unlike the apartheid regime, which viewed customary law as static and unchanging, our Court has properly viewed customary law as an

41 Ibid. 42 Bhe and Others v. Khayelitsha Magistrate and Others 2004 ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) at para. 91 (Bhe). evolving legal system, just as any other legal system is constantly in a process of change and maturation.

In two seminal cases, the Court took this approach to cases involving customary law and, in doing so, advanced the principle of gender equality within customary law. In Bhe,43 the Court was confronted with a case involving inheritance rights of women under customary law. Two young Sisi Khampepe girls had been denied inheritance from their deceased father and a third

Constitutional Court of South Africa woman was denied inheritance from her deceased brother. Under customary law, only the closest living male could be considered an intestate heir. This is particularly significant under customary law where an heir inherits not only property but also title, power and responsibilities held by the deceased. Women, consequently, were prevented from gaining positions of power within society through inheritance.

The Court held that section 39(2) of our Constitution demands that all laws be interpreted to conform with the “spirit, object and purport of the Bill of

406 Rights,” and hence the customary law rule of male primogeniture must be found to be invalid because it is inconsistent with the Constitutional rights to equality and dignity.

Subsequently, in Shilubana and Others v. Nwamitwa44, the Court was confronted with a slightly different situation that demonstrates its approach to customary law as “living law”. In that case, the applicant was the eldest child and daughter of the chief of the community. After her father passed away, the applicant assumed the chieftainship and was supported by the entire community in doing so, despite customary norms prohibiting women from such roles. The applicant’s uncle contested her position of leadership because he claimed that customary law only allowed men to assume chieftainship. The Constitutional Court held that because customary law is not stagnant and can develop over time, and because the development in the case aligned with the rights enshrined in the Constitution, the applicant had every right to the chieftainship. The Court found that the facts demonstrated that customary law had developed to allow for female chiefs and upheld that development as Constitutional.

Conclusion

To conclude, in this brief excursion of my country’s legal system, I have really attempted to highlight, in broad strokes, three issues. First, our

43 Ibid. 44 2009 (2) SA 66 (CC). jurisprudence has taught us that there are limits to what the judiciary can and should do in relation to the adjudication of socio-economic rights cases, and that the executive and the legislature must take the primary role in quantifying the content of these rights and ensuring their progressive realization. The role of the judiciary remains only a secondary one.

Ineluctably, the Court’s “reasonableness” standard gives these branches of groups government the requisite space, and mutual respect to fulfil their duties under the Constitution, but also permits the courts to act as a sentry if the

government fails to do so in a reasonable manner. Moreover, the judgments and access to justice for vulnerable Economic, social & cultural rights of the Constitutional Court have had positive effects on government policy, sometimes obliquely as in Grootboom, and sometimes directly like in TAC 2. The interplay between the three arms of government namely the executive, the legislature and the judiciary demonstrate a commitment to steer the course of attaining the aspirations of the Constitution, which is the establishment of a society based on democratic values, social justice, and fundamental human rights. The second point I have attempted to make is that in order to guarantee that vulnerable groups have access to justice it may be necessary to challenge traditional, and possibly deeply-held, views. 407 Third, it is necessary for us, as Judges, to strive to fashion meaningful remedies that ensure that justice is not only declared in a judgment, but is able to be achieved in practice; for judgments, after all, are merely documents that will soon be forgotten if they have no propitious and practical effect.

Ethical avoidance and moral moments: bioethics and the decisions of the European Court of Human Rights in a comparative perspective

András Sajó* and T. Pertz

*Judge of the European Court of Human Rights

Abstract

This article reviews judicial approaches to cases involving bioethical issues, with a particular focus on the jurisprudence of the European Court of Human Rights (ECHR), along with comparisons to cases in other jurisdictions. In our analysis, there is considerable reluctance in the judicial approach to these cases, although there are situations where judges apply constitutional and human rights standards directly. This reluctance is often expressed in forms of traditional judicial deferentialism. Following the dictates of legal dogmatics and traditions, bioethics-related issues are often decided as problems of legal competence, delegation of powers, or other traditional legal concepts, particularly when bioethics cases are situated within the framework of self-regulation. Still, even by applying formal and procedural considerations, the judiciary is influencing in a fundamental way the development of bioethics practices.

Introduction

In cases involving bioethics, especially those involving questions about the boundaries of life, both the biological and ethical aspects of the case are very often hidden beneath legal conclusions. Courts pass on resolving the moral quandaries of human cloning or stem cell research and focus instead on the law of patents, copyrights, research contracts, fairness in government 409 subsidies to research, and due process in matters of various authorizations and licenses. In a typical1 contemporary legal dispute regarding cases involving bioethics in the above sense (matters involving care for human health, reviewed in light of human rights or fundamental rights), the fundamental topical knowledge is held by medical practitioners or biological researchers, and the courts simply cannot become experts in the field, controversial as any one expert opinion may be. András Sajó and T. Pertz European Court of Human Rights It is contested to what extent law and courts in particular should engage in bioethical reasoning.2 Legal certainty originating in the needs of the medical and other professional communities, and also coming from proprietary interests (e.g. insurance companies or drug companies involved in research) and the interests of consumers (patients, their relatives and others) militates in favor of legal regulation, while there are professional interests which find juridification troubling and distortive of professional work. Some have argued, for example, that legal considerations regarding euthanasia only complicate matters and destroy professional solutions.3 The United 410 Kingdom has traditionally resisted juridification of health-related issues; abortion, for instance, was a matter of common law and professional choice. Recently, the U.K. chose to consider reforming the law on three-parent in vitro fertilization (now a technical possibility) first through an administrative

1 Given the rapid development in science and medical technologies, as well as slower change in legal concepts and in public perception, the focus of bioethical conflict is in flux. Legal approaches to bioethics shift with trends concerning the understanding of constitutional and judicial review. For a review of the shift in the approach of the Supreme Court from a rights-based approach, culminating in Glucksberg and shifting from a metaphysical, or liberty and autonomy-based approach to traditionalism (“historicism”) see Barbara Evans, Judicial Scrutiny of Legislative Action that Presents Bioethical Dilemmas, 16 Va. J. Soc. Pol’y & L. 179 (2008). This paper relies considerably on her analysis of the changes in the handling of bioethical issues in American constitutional doctrine. 2 Is ethical discussion relevant in legal decisions concerning bioethics? See R. Delgado, Symposium: The Critique of Normativity: Article: Norms and Normal Science: Toward a Critique of Normativity in Legal Thought, 139 U. Pa. L. Rev. 933, 950 (1991) (although normative law talk “feels good”, it is ultimately dangerous); P. Schlag, Normative and Nowhere to Go, 431 Stan. L. Rev. 167, 188 (1990) (normative legal thought, rather than assisting in the understanding of present political and moral situations, stands in the way). For the view that philosophers’ ethical contributions were not useful in the policy context of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, see A.J. Weisbard, The Role of Philosophers in the Public Policy Process: A View from the President’s Commission, 97 Ethics 776, 782 (1987) (“I would propose no rule precluding persons trained in philosophy from engaging in such policy analysis, but I would be inclined to inquire how their philosophical training provided any special competence or insight for that function, except insofar as any good liberal arts training in clear thinking and careful expression might have done”.). 3 See Roxani Fragkou, De l’euthanasie aux soins palliatifs : la nécessité d’une réponse au-delà du strict droit positif, Médecine & Droit 2012 (2012) 76–92. The article argues the following. “Death” as a “right” seems cynical and morbid. Issues such as euthanasia that would have once been part of religious or moral debate are now addressed in courtrooms or parliaments by judges or legislators using mainly judicial concepts and mechanisms. Such issues should not be thought of in terms of “rights”, since, as a rational construction, positive law has a relative value and cannot —nor should it— define any situation related to human existence. agency, the Human Fertilisation and Embryology Authority, which has supported legalizing the practice after a public consultation.4 The process, less democratic than a referendum, has thus far taken place without judicial involvement.

Bioethics issues raise fundamental moral issues very often related to novel problems emerging from new biotechnologies or discoveries in life sciences, or from the search for such discoveries. Nevertheless, the bioethics-related disputes that come before courts are most often understood in a completely Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of different context, namely procedural (formal) review of rulemaking, and in particular, supervision of self-regulation. In other words, specific bioethical decisions are left to administrative agencies, and more importantly, to self-regulation.

The fundamental thesis of the paper is that even at the level of apex courts, the judiciary tends to construe bioethics issues as matters of competence, jurisdiction and procedural fairness, bordering on deferentialism, i.e. accepting whatever solution has been developed in other branches of power, 411 although judges do in certain circumstances apply constitutional and human rights standards directly (the moralistic approach). Still, even by applying formal and procedural considerations, the judiciary may be influencing the development of bioethics practices (take for example judicial efforts at defining an affected person). The present paper asks, Can rights claims and public interest considerations be properly avoided in apex courts which are designed for rights adjudication? We do not intend to make claims in favor or against the acceptability of rights claims in bioethically relevant judicial review or other litigation; the intentions of the paper are descriptive and explanatory.

The strongest argument for judicial intervention is a court’s traditional role as a protector of rights. It can be argued that moral/ethical considerations might push towards rights-based analysis, and such considerations might shape and recalibrate rights. A rights-based legal solution is expected to find social acceptance because it finds moral resonance in the public.5 Rights claims are invoked by an expansive number of groups—not only patients but physicians and medical and biological researchers, not only individuals of

4 Human Fertilisation and Embryology Authority, Mitochondria replacement consultation: Advice to Government, Mar. 2013, http://www.hfea.gov.uk/docs/Mitochondria_replacement_ consultation_-_advice_for_Government.pdf 5 There are, however, other non-rights-oriented moral intuitions, e.g. justice that can help the acceptance of a rights-based, or even rights-disregarding judgment. The solution might be seen as just because it offers a good balance among the various interests, or because it treats people fairly and humanely. all ages but organizations claiming authority to litigate on their behalf. Judicial involvement, including rights-based involvement, is even more likely given that there is a growing trend to “juridify” (make subject to judicial evaluation) and “constitutionalize” (apply constitutional values and rights in private relations).6 These considerations push for an intensive legislative intervention and heightened judicial supervision. As the present paper is interested in the treatment of bioethical issues by the judiciary, especially international human rights courts, we will set aside the question András Sajó and T. Pertz

European Court of Human Rights of legislative intervention (or its limited role, which often mandates and legitimizes professional self-regulation). Rights are inherently conflicting; and, with the rights revolution or inflation, increasingly so. Thus, bioethics claims, to the extent they are couched in terms of existing rights (e.g. right to life, right to self-determination, right to privacy), will result in legally conflicting claims. Of course, rights protection is not the only task courts are called to fulfill; as public institutions they are expected to advance the public interest, defend the rule of law, and promote legal certainty.

412 Constitutional courts and their equivalents (e.g. supreme courts, hereinafter referred to as apex courts) are sometimes expected to take sides in divisive matters which are either not fully legally or otherwise regulated (i.e. by social practices), or are regulated in a way that is allegedly not in conformity with constitutional principles or rights, or not in conformity with what someone claims to be correct.

Given that constitutional and other apex Courts are protectors of constitutional rights, it would be logical that they rely on rights-based approaches to cases involving bioethics, most prominently in the most contentious cases, such as those involving abortion and euthanasia. Consider, for instance, Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). Cruzon presented a question of which evidence standard was appropriate for a state to require in determining whether a patient wished to be taken off life support. The U.S. Supreme Court decided by balancing the liberty interest of the patient and a state’s interest in the preservation of human life. But this approach is relatively rare —and the rarity requires explanation.

One might think that the task of a court evaluating rights, themselves imbued with moral character, would involve reasoning as to the interplay between morality and the law. Perhaps in matters of bioethics, a court should attempt to strike the deliberative ethical balance that is sought after

6 Ran Hirschl, Towards Juristocracy (2004). in bioethics committees or other ethically influenced professional regulators, instead of legal concepts which serve as proxies for morality applied in regards to health and bodily integrity. After all, as Roger Scruton puts it, “we should not suppose that legal and moral judgement are entirely independent....[W]hen the law fails to enforce shared moral values it loses credibility”.7 Yet overwhelmingly, courts prefer to rule formalistically and let positive (statutory and regulatory) law be the unconditional foundation for their choices, perhaps cognisant not only of the impropriety of reasoning about either biology or ethics, but also of their inability to do so.8 If neither Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of permissive statutory construction nor administrative deference suffices to resolve the case at issue, courts will look to other doctrines of law.

Even a court such as the European Court of Human Rights, dedicated by its very nature to the defense of rights, is reluctant to rely on rights-based arguments to resolve cases that implicate questions of bioethics, favoring formalistic routes for resolution instead. Of course, this is not technically objectionable, as the applicable Convention allows that most rights at stake be restricted, if the state finds it necessary to advance various forms of 413 public interest. Still, this generalization obscures the more complicated textures of seemingly evasive decisions; in many bioethics cases, sprouts of ethical consideration peek out from a formalistic legal landscape. These sprouts, which we call moral moments, differ from rights-based analysis, in that they tend to express raw sentiment, rather than arguments based on interpretation of a textual right granted in a constitution or convention. Suffering is certainly a motivator for bioethical reasoning, and judges seem to allow a free display of emotional sympathy generated by such suffering.9 Though it is difficult to create a unified hypothesis as to why they are so frequent, their existence serves to highlight the relatively small presence of the very moral reasoning they display.

What is morally right or wrong does not compel a legal outcome. Human moral obligations do not automatically translate into state enforcement

7 Roger Scruton. A Political Philosophy. Continuum. 65-66 (2006). 8 Chevron v. NRDC ties the concept of scientific (really, general policy) complexity to judicial deference: “Judges are not experts in the field....The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: Our Constitution vests such responsibilities in the political branches”. Chevron v. NRDC, 467 U.S. 837, 865-66 (1984) (internal citations omitted). As will be described in further detail below, the ECHR states this deference in terms of the margin of appreciation doctrine, often granting it in light of a case’s containing “sensitive moral and ethical issues against a background of fast-moving medical and scientific developments”.See Evans v. the United Kingdom [GC], no. 6339/05, § 81, ECHR 2007I; S.H. and Others v. Austria [GC], no. 57813/00, § 97, ECHR 2011. 9 On the role of moral sentiments and intuitions see András Sajó, Constitutional Sentiments, (2011). obligations. We do not seek here to support Ronald Dworkin’s conception of the judge as moral philosopher, nor Richard Posner’s skepticism of the favorability of that approach (Posner is of the view that judges should not decide moral issues, and does not dispute that they at times do).10 Instead, in a complementary fashion, this article is meant to highlight judges’ attempts to be bioethicists, or to avoid being bioethicists, with particular focus on the jurisprudence of the ECHR.11 András Sajó and T. Pertz European Court of Human Rights In issues of bioethics, what is the relation between ethics and morality on the one hand, and the application of rights on the other? Should judges consider advances in biotechnology within an ethical framework when interpreting rights?

Here, we intend only to describe what apex courts do. But in order to make the description meaningful, some conceptual clarity is needed, even at the price of extreme simplification. We use the term “ethics” or “ethical” as 414 reference to collectively established, heteronomous concepts of what is good or bad. It is a reference to some kind of virtue, with different theories of what makes something virtuous in the background and why such findings are to have normative value. It dictates what people should do to others. A moral perspective is a personal perspective of what is right or wrong for the action of the person. What we refer to as the “ethical approach” is exemplified by the Catholic ethical doctrine. The “moral perspective” is exemplified by Kant’s categorical imperative. The two approaches may cross-fertilize each other or create permanent tension. Autonomy is a moral principle but it is accommodated into bioethics together with ethical concepts of dignity, which in turn may be understood in a moral way, claiming simply

10 See, e.g., Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 2-12 (1996); Richard Posner, The Problematics of Moral and Legal Theory, 111 Harv. L. Rev., 1637, 1693-94 (1998). 11 For discussion of whether ethical discussion is relevant in legal decisions concerning bioethics in other contexts and jurisdictions see, R. Delgado, “Symposium: The Critique of Normativity: Article: Norms and Normal Science: Toward a Critique of Normativity in Legal Thought”, U. Pa. L. Rev., 139 (1991): 933-62, at 950 (although normative law talk “feels good”, it is ultimately dangerous); P. Schlag, “Normative and Nowhere to Go”, Stanford Law Review, 431 (1990): 167-91, at 188 (normative legal thought, rather than assisting in the understanding of present political and moral situations, stands in the way). For the view that philosophers’ ethical contributions were not useful in the policy context of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, see A.J. Weisbard, “The Role of Philosophers in the Public Policy Process: A View from the President’s Commission”, Ethics, 97 (1987): 776-85, at 782 (“I would propose no rule precluding persons trained in philosophy from engaging in such policy analysis, but I would be inclined to inquire how their philosophical training provided any special competence or insight for that function, except insofar as any good liberal arts training in clear thinking and careful expression might have done”.). that no one shall be treated as an object, or as dictated by ethics, as inherent to humanity, whatever the consequences of this statement are.12

In the context of bioregulation, ethics prescribes what is good for a patient or others, while the perspective of morality will consider the choice of the patient which will be right or wrong depending on what happens if the norm of that act becomes universal. Morality dictates what the patient, the person in charge of her body, shall do with her body in order to live well, or morally correctly. In this regard, the judge is acting as a proxy, as he is enforcing Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of these choices to the extent they are right, in view of rights. On the other hand, the judge has to determine what is good for the patient as well as for society (other patients) etc.; here the perspective is an ethical one: What do others owe to the patient, and what does the patient owe to others?

Bioethics is a set of norms that emerges in the interaction between life science practitioners and experts in ethics in the context of specific new developments in bioscience and biotechnology. The evolving solutions of bioethics intend to solve problems within the profession and in the relation 415 of caregivers and (potential) patients. The idea is that the problems can be solved at this level —the level of the laboratory or hospital, or of policy decisions about the funding of scientific inquiry. The ethical knowledge that is developed is not primarily intended to serve the solution of legal problems, which often emerge where bioethical self-regulation fails.

To what extent can the knowledge of ethics, morals, and bioethics be relevant to apex court judges? (This question is different from the question of the extent to which judges do or must rely on these different types of knowledge). We will argue that legal judgments, in order to be credible, must fit into existing legal conceptual frames.13 In order to be acceptable, the ethical and moral concerns have to be translated into legalese. But translation means selection of those elements which are already in the code of law. Nevertheless, some ethical codes are of special importance because they are often powerful social facts, and have the advantage of having identifiable,

12 Of course, there is total confusion in the use of these terms. Ronald Dworkin admits that his use of the terms “ethical” and “moral” might seem special. “Moral standards prescribe how we ought to treat others; ethical standards, how we ought to live ourselves”. Ronald Dworkin, Justice for Hedgehogs 192 (2011). Very often, the terms are used interchangeably, or ethics is understood as the philosophy or code of morality. In most cases these terms are indistinct. The expressions do not figure in any relevant sense in the jurisprudence of the United States Supreme Court in the last 10 years. 13 Future Chief Justice Burger, in the early days of biotechnology revolution, in the midst of the liberation of the body, stated that the law should continue to develop techniques to meet new biological problems by adapting established precedents. Warren E. Burger, Reflections on Law and Experimental Medicine, 15 UCLA L. Rev. 436 (1967-1968). often institutionalized large-scale followings. Once again, the doctrines of the Catholic Church are important, at least in countries where the Church plays a culturally dominant or important role.

Is bioethics in a privileged position to animate the judicial cognition of rights? It seems that judges were not rushing to accept bioethics guidance, even where they had little understanding of biomedical problems and their practical handling. Perhaps bioethics is too casuistic or pragmatic to animate András Sajó and T. Pertz

European Court of Human Rights the interpretation of rights. It is not clear that bioethics has serious ambitions to offer guidance; if there is ambition to influence law, and willingness to listen to bioethicists, that is to be found in legislation where bioethics, in the form of committee recommendations, is used to bypass public discourse.14 The position of Professor Childress, a leading bioethics authority, is quite telling. In an amicus brief, he argues that bone marrow transplants can involve monetary compensation: “This court need not enter the ethical debate over compensation for organ transplants to determine that there is no rational basis for treating bone marrow differently from other inexhaustible 416 cells. Appellants have called upon the Court to ensure that the statute merely comports with constitutional principles”.15

There seems to be little direct consideration of bioethics in cases where the courts change the status quo, while in the overwhelming number of cases where there is deference to the existing biomedical regulation (which is very often inspired by bioethics committees), the deference is not directly due to the moral correctness of the official bioethics position. But the solution of legal problems might be very different, depending on the choice between ethics and morals, where moral considerations generally support individual autonomy reflecting rights claims. To give a brief introductory example, applicants to the ECHR presented the following right-to-death claim (as summarized by the Court in its decision):

14 There are instances where bioethics or related scholarship could provide important warnings to judges. Following common sense, judges are sometimes attributing normative power to what they believe to be rerum naturae, the biologically natural order of things. The certainty of biological naturalness is, however, dubious, at least in the world of biotechnological revolutions. But naturalism seems to animate the extension of the right to know one’s biological parents’ identity. (The ECHR did not recognize a right to know the identity of one’s birth mother if the mother had requested anonymity. Odièvre v. France [GC], no. 42326/98, 13 February 2003. But the Court did affirm that an applicant’s request to determine whether a deceased man was a biological parent was protected within the scope of Article 8. Jäggi v. Switzerland, no. 58757/00, 3 July 2003. It was considered a vital interest of children born out of wedlock to determine the identity of their parents. Krušković v. Croatia, no. 46185/08, §41, 21 June 2011.) Naturalness has been cited as dispositive of child custody, Johnson v. Calvert, 851 P. 2d 776 (1993), over a dissent arguing for the use of the best interest of the child as the standard (Id., Kennard, J., dissenting). 15 Flynn v. Holder, 684 F.3d 852, 665 F.3d 1048. (Appellate Brief) Brief of Sally Satel, M.D. and Professor James F. Childress as Amici Curiae in Support of Plaintiffs-Appellants and in Support of Reversal of the Decision Below (Sep. 8, 2010) 2010 WL 5854340. The [Swiss] Supreme Court’s judgment had been self-contradictory, in that it had relied on the fact that the applicant did not fulfill the requirements of the medical ethics guidelines on the care of patients at the end of life. By relying on these guidelines, the Supreme Court had presupposed that the applicant’s suicide had to be justified from a medical point of view. This point of view was incompatible with the assumption that any person who was able to form his or her judgment had the right to decide on the time and

manner of their own death. Accordingly, there was no need for any Ethical avoidance and moral the European Court of Human Rights ... medical justification.16 Gross v. Switzerland, no. 67810/10, § 45, moments: bioethics and the decisions of 14 May 2013.

The ECHR avoided the issue that would have forced it to take a moral, or at least a substantive rights-based position, and was concerned of legal safeguards (legal certainty) only. (See below for further discussion.)

Part I of this article describes the foundations and background of bioethics and law. In Part II, we begin to focus on the decisions of the ECHR, a focus 417 carried through in Part III in respect to how the Court and other jurisdictions have considered questions involving reproductive technologies and the status of the embryo. Part IV describes one of the most notable structural hallmarks in judicial opinions involving bioethics, namely an expression of sympathy for the losing party —what we call a moral moment, a passage stylistically and argumentatively detached from the formalistic reasons why a party’s submission fails as a matter of law. This and other ethical impulses are contrasted in Part V, with attention to assisted suicide cases. Finally, in Part VI, we hypothesize certain reasons for why judges avoid bioethical considerations, and describe the characteristics of judicial deferentialism.

Bioethics issues in law in a developmental perspective

The present article focuses on the handling of bioethical conflicts at the level of apex courts, a focus that runs the risk of isolating too narrow an element of bioethics regulation. This is methodologically dangerous: apex courts are only a small part of the bioethics regulatory system. Moreover, what apex courts do or fail to do cannot be described and even less explained in disregard of what these courts do with other cases or within the

16 For possible alternative outcomes if bioethics arguments would have been accepted in the Evans case, see below, Judit Sandor, Bioethics and Basic Rights, in Rosenfeld-Sajo, The Oxford Handbook of Comparative Constitutional Law 1152 (2012). administration of justice. We will show that there is a certain reluctance to confront bioethical dilemmas head-on in a judicial decision. This is very often simply the consequence of structure of the judicial process. Certain cases cannot get to the apex courts for procedural reasons, or apex courts have limited power of review because of limited constitutional competence. Judicial review (including constitutional and human rights review) is based on the assumption that it is the task of legislation to determine what the law

András Sajó and T. Pertz is; judicial review is about the conformity of secondary lawmaking (regulation) European Court of Human Rights with legislation, and exceptionally about the conformity of statutes, regulations and case law with constitutional provisions, including those about rights. Of course, in fundamental bioethical conflicts the issue might be to what extent the constitutional and human rights incorporate or reflect bioethical considerations. We will refer to these legal structural determinants of judicial decision-making in the explanation of the judicial handling of bioethical conflicts.

418 In this part of the paper we will deal with the other contextual variable of the judicial handling of fundamental bioethical conflicts: judicial activities have to be placed within the actual bioethical regulatory context. This context is dynamic: the specific bioethical issues change over time, some of them becoming routine, not posing any specific conflict, at least not one that would raise a bioethical challenge. Fifty years ago, contraception was the cutting-edge problem for what was becoming bioethics; today, the focus is moving away from embryos to issues of genetic manipulation and neuroscience. The scientific nature of the issues and the related uncertainty and risk is influencing ethical and legal reactions, hence there might be a shift in the applicable hierarchy of values. Note that from the legal-regulatory perspective, issues in bioethics have a social, public interest aspect too (including economic and business considerations), which may be of considerable importance for regulation, beyond rights and bioethics.

The dynamic nature of bioethics regulation means that most parts of medical malpractice law were simple issues of professional responsibility, professional regulation and torts law, though they may early on have been ethically contentious. A second important dynamic component is to be found in the social understanding of law, including the role of courts in law. It is a relatively recent phenomenon that most conflicts are expected to the subjected to legal dispute settlement through courts. It is even more recent that courts are expected to review administrative regulations and even the constitutionality of regulations. These phenomena of judicializaton are accepted in different societies to a different and changing extent, and this will be an additional source of difference in the judicialization of bioethics conflicts. It follows that it will be a matter of historical development to what extent judicial involvement is accepted, and in the history of bioethics regulation the involvement may depend on where the given legal-political culture finds itself in terms of judicialization. Decisions concerning bioethics issues, for example those related to research, can be a matter of popular and professional culture where there is limited judicial control. It follows that the recognition of the moral aspects or other forms of handling a bioethical Ethical avoidance and moral the European Court of Human Rights ... issue depends on the facts where an apex court is in its own development moments: bioethics and the decisions of and where at the moment of the encounter bioethics regulation stands.

As to the development of the legal and other regulatory handling of bioethics issues, most new medical (and social) development challenged the existing legal frame and forced a rethinking, even if within the already established frames and legal concepts.

The handling of bioethical problems meant an intellectually and 419 organizationally separate field of reflection and practice that emerged from the sixties. While the organizational presence of bioethics contributed to the refocusing on specific body-related issues, for lawyers it was of little importance that bioethics as a discipline and perspective became distinct from medical professional deontology, for example because, contrary to traditional medical deontology, bioethics norms emerge from an interaction of various professions, and with limited participation of legal experts.

The regulation of modern bioethics issues is related to scientific developments which radically increased the power of the individual and of the medical profession to control one’s body, the government had to change its technique of control over its subjects body in modern biopolitics.

Legal doctrines available for judicial use in life science related cases emerged before the biomedical revolution and have their origin in areas outside bioethics or even constitutional law. Fundamental ethical considerations that became formative for bioethics and bioethics law emerged in common law centuries ago, before the dawn of modern medicine. Individual autonomy as a fundamental consideration in regard to intervention into the body (in what later became bioethics or health law) was certainly recognized in Jacobson v. Massachusetts, 197 U.S. 11, (1905). In this case an individual who refused a state-mandated vaccination, decisive consideration was given to the “sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government ... to interfere with the exercise of that will”.17 An early statement of the informed consent principle comes in Judge Cardozo’s decision in Schloendorff v. The Society of the New York Hospital, 211 N.Y. 125; 105 N.E. 92 (N.Y. Court of Appeals, 1914): “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient‘s consent, commits an assault, for which he is liable in damages”. Cardozo’s position is stated as a truism, indicating that the idea was András Sajó and T. Pertz

European Court of Human Rights reflected in earlier common law judgments, even if the medical community was not necessarily on the same page.

Though seeds were planted earlier—Justice Jackson was on the cusp of the paradigm shift when he concurred in Skinner v. Oklahoma, 316 U.S. 535, 546 (1942), that “[t]here are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority”18 —the confluence between human rights and bioethics had its clearest emergence

420 after the Holocaust and the Nazi doctors’ trial at Nuremberg. The resulting Nuremberg Code of 1947 starts by advocating informed consent, a concept which came to replace the more prevalent notion of “benevolent lying” to patients and research subjects.19 The cataclysmic events of the early 20th century, along with later gross violations such as the Tuskegee syphilis experiment (1932-1972), still color legislatures’ choices, and at times judicial decisions. If the term “eugenics” was suspect before World War II, it was a pariah afterward, with any attempt to improve the health of one’s offspring through genetic modification becoming implicated in a plot to “improve” all of humanity through aesthetic changes.

Because of the specter of a sinister eugenic motive, those who oppose a particular activity in the life-sciences will invoke the term “human dignity” to halt the activity even in circumstances that seem to prevent human suffering. While in the U.S. the concept of dignity is not a crucial

17 At 29. Nevertheless, that great claim to autonomy as liberty failed vis a vis police powers of the state; public interest was held prevailing on grounds of constitutional allocations of power. The Anti-Vaccination League of America that was created three years later in reaction to that position stated that “health is nature’s greatest safeguard against disease and that therefore no State has the right to demand of anyone the impairment of his or her health”. The League perceived the problem as one of intrusion of government into private life and feared “medical tyranny”. , part of the broader process identified with the Progressive Movement. The League asked: “We have repudiated religious tyranny; we have rejected political tyranny; shall we now submit to medical tyranny?” 18 For a legal doctrine of science of the day (eugenics) see Justice Holmes notorious judgment. 19 Hana Osman, History and Development of the Doctrine of Informed Consent, The International Electronic Journal of Health Education, 2001; 4:41-47 (2001), http://www. aahperd.org/aahe/publications/iejhe/upload/01_H_Osman.pdf constitutional consideration and does not figure among fundamental rights, certain European systems, partly in relation to bioethics regulation, have elevated it to a level of constitutional importance.20 Using human dignity as an argumentative touchstone, however, does not resolve bioethics issues, as such arguments are liberally deployable. When in vitro fertilization inventor Robert Edwards won the Nobel Prize in 2010, the International Federation of Catholic Medical Associations denounced the “enormous cost” of IVF, namely “the undermining of the dignity of the human person”.21 The Constitutional Chamber of the Costa Rican Supreme Court determined Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of that IVF was unconstitutional because it “clearly jeopardizes the life and dignity of the human being”. Judgment No. 2000-02306, Const. Cham. of the Sup. Ct. of Costa Rica, File No. 95-001734-007-CO (Mar. 15, 2000).

While some of the fundamental principles of bioethics were already incorporated into medical deontology and some corresponding principles were part of the law (either in common law and, on the Continent, in private law, or in constitutional rights), the first round of the socio-cultural and 421 constitutional liberation of the body (enabled by new medical findings and practices) occurred prior to bioethics. The depenalization of suicide, abortion, homosexuality and specific forms of sexuality, including contraception, occurred to a great extent without a comprehensive bioethical perspective, though some of the guiding principles were later on incorporated into the canon of bioethics, which increasingly understood its field as one that goes beyond therapy.

The above mentioned legal principles (dignity, informed consent and the broader concept of autonomy) seemed to provide the guiding principles for health legislation which existed, at least in a rudimentary form, at the time of the emergence of the bioethical and medical revolution, enabling increased control over the body. The underlying issue became, who is entitled to exercise that control: the interested person, the medical profession, or the community through its politicians and administrators (who in many countries were running a public health care and research system)? Depending on the specific perspective of those involved, some people argue for patients, others on behalf of humanity.

20 It was the French Constitutional Council that granted recognition as constitutional principle to dignity, in the context of the review of the 1994 Bioethics Act. Décision du Conseil constitutionnel (lois no. 94-653 et 94-654) no.94-343/344 du 27 juillet 1994. Constitutions deal with bioethics only exceptionally, providing bans on cloning (Switzerland) or research on embryos (Ecuador). See Judit Sandor, Bioethics and Basic Rights, in Rosenfeld-Sajó, The Oxford Handbook of Comparative Constitutional Law 1152 (2012). 21 FIAMC, “Nobel Prize for Medicine”, Oct. 4, 2010. http://www.fiamc.org/news/nobel- prize-for-medicine/ It is in this context that bioethics as a policy-influencing interdisciplinary area of expertise emerged, developing its own principles. While there is some disagreement in the bioethics community as to basic principles (and much more as to their meaning and scope), one can state with some confidence that respect for dignity, informed consent, (some form of) autonomy, beneficence/non-maleficence (primum non nocere), non-commodification22 and the specific prohibition on human cloning are on the list. These concepts find echoes in constitutional principles, and in principle can be “translated” András Sajó and T. Pertz

European Court of Human Rights into law. However, the developmental perspective of bioengineering has to be applied in the context of the above values or principles. Their meanings and appropriateness have changed over time. Dignity has both ethical and moral meanings, and even the meaning of dignity in ethics depends on the tenets of one or another persuasion. The principle of informed consent, and in a broader sense, anti-eugenics principles, developed in light of very specific historical experiences. Toward the end of preventing atrocities similar to those of the past, some advocate for absolute prohibitions applicable to all societies and all experimentation, risking suffering in individual cases in 422 order to avoid violating the broader rule. Likewise, anti-commodification is a perpetuation of a fear that unethical incentives will be created (e.g. that vulnerable women will be forced to become surrogate mothers, that there will be a market in organs with improper incentives and forced organ harvesting, etc.). A precautionary principle might be appropriate in one context, but not in another. The fear of unethical incentives is more appropriate in the “voluntary death” cases than in surrogate motherhood.23 Holding fast to absolute stances against markets and profits, though motivated by ethical principles, may hamper new biotechnologies that prevent suffering.

Under ordinary circumstances, the control over the body would be a matter of legislation. At this point, however, something legally unexpected happened. Legislatures failed to enter into substantive regulation of bioethical issues (with some exceptions). Instead, legislatures have delegated decision-

22 While there is significant public support for prohibiting many profit-driven activities regarding health (apart from physicians and drugs), perhaps reflecting an ethical obligation of altruism, the reason seems simply paternalistic, or risk-driven. Consider the passage of the National Organ Transplant Act in 1983. The organ-for-money prohibition was motivated by a moral and ethical concern that a for-profit market in solid organs would lead to “black- market trafficking in human flesh”. 129 Cong. Rec. S14, 796-97. From a legal perspective, this sits uncomfortably with the idea of gainful activity as liberty. Its effectiveness has been limited, as organ transplants (like paid surrogate motherhood, also banned) continue to flourish. 23 “In the tragic Massachusetts case, Matter of Spring, the court authorized an annoying, sick old man, who had never expressed any views about whether there were conditions in which he would prefer not to live, to be killed by his family members because he had a ‘right’ not to have medical care forced upon him”. [405 N.E.2d at 122.] Gerald Dworkin, Moral Paternalism, 24 Law and Philosophy 62 (May, 2005). making to administrative bodies, sometimes providing specific procedures, and also enabling professionals to enter into self-regulation. This delegation has had a decisive impact on the regulation and judicial treatment of bioethically relevant problems. Margaret Sommerville, for example, claims that beginning the 1990s, it has been (bio)ethics that has guided law and not vice versa.24 The bioethics pressure seems to increase, though this may not be true when it comes to apex courts.

Regulation of emerging biotechnologies was first considered by quasi- Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of volunteer professionals. Law quite often only sanctioned ex post the activities of self-regulatory bodies. This was the case in France with the emergence of Comité consultatif national d’éthique pour les sciences de la vie et de la santé (CCNE), created by decree in 1983, (cf. Deutscher Ethikrat or the Nuffield Council on Bioethics).25 Most emerging issues are left for decision or at least elaboration of formal regulatory projects to these committees of eminent people. The committees represent not only the directly affected professions (health care and research professionals) but also other disciplines, including bioethicist philosophers. Instead of divisive political debates, many 423 legislators have preferred to rely on these low profile “scientific” solutions, and where it is inevitable to legislate, the legislator will rely on the finding of these committees, where the final finding will be predetermined by the composition of the committee. (There are important exceptions)26

Given that the most important bioethics issues might be decided by the above committees, the role of the judiciary suddenly changes. Instead of supervising the application of laws and reviewing their constitutionality in terms of rights, and other legal considerations, the issue will be of controlling committee decision-making. This is the frame that determines the possibilities and structures of judicial interference into bioethics. However, such oversight runs into sudden and unexpected limits. Some of the limits are inherent to the bioethics problems: judges, like legislators, cannot handle scientific complexity and uncertainty, and the ethical pluralism is its

24 Margaret Somerville, Law, Marching With Medicine But In the Rear and Limping a Little. Ethik und Recht. S. Vöneky et al., eds., 67-102. (2012). 25 “The Council was established by the Nuffield Foundation in 1991, in response to concerns that there was no government-sponsored national body responsible for overseeing developments in biomedicine and biotechnology. ... In 2000, following a review of the regulatory framework for biotechnology, the Government decided not to create an official national bioethics advisory body, ...In 2012 the Department of Health established a new expert advisory group, the Emerging Science and Bioethics Advisory Committee (ESBAC)”. http://www.nuffieldbioethics.org/content/how-council-works 26 In 1984 the Warnock Committee Report suggested Parliament to enable a “storage authority” to determine the use of stored embryo in case of parental disagreement or after 10 years. This was disregarded in favor of parental self-determination rights. Evans v. the United Kingdom [GC], no. 6339/05, § 87, ECHR 2007I. own challenge. Other limits are external. This is illustrated by the French Perruche case (2000), where a mother, whose child was born with birth defects due to medical negligence, sued doctors on behalf of her child, claiming that the child had a right to have been aborted. The French Court of Cassation agreed, relying on civil law principles of causation.27 The French National Ethics Committee (CCNE) argued that the decision smacked of eugenics, as the implication was that birth with a disability could constitute a harm.28 The legislature then acted to reverse the court’s decision, passing a András Sajó and T. Pertz

European Court of Human Rights statute declaring that “[n]o one can avail themselves of a harm from the fact of their birth alone”.29 This case shows the limits of judicial review when it comes to the power of bioethics committees, as long as those committees reflect existing social coalitions of stakeholders.

We have identified above a few legal concepts and related principles which animate the judicial approach to these issues. The meaning and weight of those concepts was never beyond doubt, and there has been a constant change in this regard, reflecting conceptual changes that occurred elsewhere 424 in law, and changes in political and social realities, in popular culture and even in the culture and organization of health providers. Importantly, under the pressure of dignity, informed consent and even self-determination of the body started to lose ground. Moreover, new rights and considerations came into play. The best interest of the child became a major consideration in the last twenty years. In matters of informed consent, one of the most hotly litigated issues is whose consent is to be accepted. Here, traditional legal concepts of guardianship are challenged. Identity politics and its acceptance in constitutional deliberation may restructure the best interest of the child or parental rights approaches: in the legal determination of acceptable custodian choices, identity will add a new dimension to the judicial (and even to legislative) decision-making. Termination of medical treatment shall correspond, at least in this logic, to the dictates of identity of the person (e.g. was he religious or an atheist), while parents will argue that in matters of health, a new understanding of identity shall apply to the child. Refusal of cochlear implantation on grounds of identity is a good example; the desire of parents to keep the child biologically similar to them in order to maintain their common cultural identity based on sign language

27 http://legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000007041543 28 CCNE, avis du 15 juin 2001. 29 Brigitte Feuillet, The Perruche Case and French Medical Liability, Drexel Law Review, 4:134 (2011). Professor Feuillet attributes the judgment to the desire to compensate for suffering, but she thinks that this was against French civil law. Cf. with the impact of moral emotions, below. Howard v. Lecher 366 N.E.2d 64 (N.Y. 1977) is the opposite of Perruche. Here, applying the restrictive interpretation of the New York concept of emotional distress the obstetrician was not held to pay damages to the mother of a child born with Tay Sachs disease. prevailed against traditional medical ethics that health imperfections are to cured where possible.30 We will discuss below the Canadian Carter case, an additional example of new ethical-legal considerations reshaping a traditional legal bioethics principle. Here a right or sensitivity that emerged primarily in anti-discrimination law is transplanted into the context of assisted suicide. Assisted suicide, which was rejected as a right to dignified death twenty years ago, was recently argued in terms of specific rights (and non-discrimination) of disabled persons. Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of The ECHR

The ECHR is an international (regional) court, not expressly created to sit atop national constitutional courts, nor to operate under the value assumptions or shared constitutional traditions of a nominally homogeneous nation, but to apply a treaty. Its business is applying minimal human rights standards to all member states and it expects, in the name of the doctrine of positive obligations of the state, that member states take action to make these rights effective, including their active and effective protection in 425 public and to some extent private life.

Given its international nature and the lack of a common European value- system (though such lack or the relevance of such empirical commonality is contested), the Court applies the doctrine of “margin of appreciation”, which indicates that in the absence of pan-European consensus, the states have a wide margin to determine public interest limits on most rights. As to bioethics, it receives applications on matters which are often divisive, lacking emerging common practice, and lacking social consensus both domestically and throughout Europe. The Court is called on to apply the 1950 European Convention on Human Rights, which, given the date of its creation, has no provision on bioethics. Of frequent relevance in cases concerning bioethics, article 2 of the Convention provides for the protection of life and article 8 grants the rights to private and family life, though the right is subject to limitations. For instance, in the context of in vitro fertilization, where the issue was whether an embryo could be implanted without the consent of one of the gamete donors, the Court found it important that the law, which did not allow the implantation of the embryo, served a number of wider public interests, upholding the principle of the

30 The guardian of two deaf children petitioned family court for an order to give them cochlear implants. The mother, who was also deaf, objected, both on the basis of her desire to preserve the children’s deafness and her belief in the health risks of the procedure. Alicia Ouellette, Hearing The Deaf: Cochlear Implants, The Deaf Community, and Bioethical Analysis, 45 Val. U. L. Rev. 1245 (2011). A question of identity was framed and decided as a question of compelled medical treatment contrary to the wishes of the parent. primacy of consent and promoting legal clarity and certainty. (See Evans v. the United Kingdom [GC], no. 6339/05, § 74, ECHR 2007I, discussed in greater detail below)

The international body related to the Convention system, namely the Council of Europe, was rather active in matters of a common development of bioethics and the Court is particularly keen to take into consideration developments of soft international law originating in the Council of Europe András Sajó and T. Pertz

European Court of Human Rights system as evidence of a European consensus. But the recommendations of the Council of Europe are not binding, and some of the relevant conventions are not ratified by all countries.

In terms of substantive bioethics law, the Court has accepted the importance of the informed consent principle, a position partly derived from international law and partly a logical consequence of its conception of the right to private life as a right to self-determination.31 Moreover, the Court has referred to the importance of the “sanctity of life”, partly in reference to the state’s 426 obligation to protect life, though the emergence of the sanctity concept was never a matter of conscious choice; it is however, part of the language used in the jurisprudence.32 The Convention does not use the word “dignity”, but the jurisprudence of the Court relies on it as a supreme value, with non- specific consequences.33

Article 2 of the Convention states: “Everyone’s right life shall be protected by law”. In the Court’s jurisprudence, this amounts to a fundamental obligation of the state. However, the Convention does not define the rights holder, as it leaves open to interpretation the meaning of “everyone”, a matter of key interest in bioethics-related cases. For instance, although the

31 See X and Others v. Austria [GC], no. 19010/07, § 49, 19 February 2013, as to informed consent before adopting a child; Gillberg v. Sweden [GC], no. 41723/06, § 52, 3 April 2012, citing the Helsinki Declaration as to the importance of informed consent in medical research; V.C. v. Slovakia, no. 18968/07, passim, ECHR 2011 (extracts), finding a violation where there were not sufficient safeguards of reproductive health, and a woman did not give informed consent before sterilization; Csoma v. Romania, no. 8759/05, 15 January 2013, finding a violation where a doctor did not obtain informed consent before a procedure, contrary to law. The Court has referred to various elements of the Oviedo Convention to state principles of informed consent, see Glass v. the United Kingdom, no. 61827/00, § 58, ECHR 2004II, and M.A.K. and R.K. v. the United Kingdom, nos. 45901/05 and 40146/06, § 31, 23 March 2010. 32 See, e.g., Gross v. Switzerland, no. 67810/10, §58, 14 May 2013. 33 Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 65, ECHR 2002 contains an occasionally cited dictum that “the very essence of the Convention is respect for human dignity and human freedom” (see III). The Evans Court concludes that “respect for human dignity and free will...underlay the legislature’s decision”. §89. El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 207, ECHR 2012 determines that “any recourse to physical force which has not been made strictly necessary by the applicant’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Ribitsch, cited above, § 38)”. Oviedo Convention34 is cited in Vo v. France [GC], no. 53924/00, §§ 35, 84, ECHR 2004VIII, inter alia, the Court cites it in large part to disclaim knowledge as to when life begins, because of the lack of consensus, §82. Oviedo was intended as touchstone bioethical reasoning; ironically, in the Court’s case law, its purpose is less about making bioethical decisions than solidifying the legal principle of granting a wide margin of appreciation. The citation in Vo is used to prove not agreement but disagreement, to justify the Court’s relieving itself of the burden of making decisions that legislatures could not. Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of

The status of the embryo:35 bioethics and its avoidance

Some of the Court’s most prominent bioethics cases have involved medically assisted procreation, a subject that in Europe has endured comparatively substantial legal scrutiny and suspicion. Though of varied legal interest globally, the subject is relevant to untold millions of individuals. By some estimates, approximately 10% of women of reproductive age are unable to 427 conceive a child after 12 months of regular unprotected sexual intercourse, a commonly accepted definition of infertility. 36 In vitro fertilization (IVF) is a treatment for reproductive disability in which eggs are removed from a woman’s ovaries and fertilized with spermatozoids in the laboratory, then a fertilized embryo is implanted in the woman’s uterus. IVF is used when a woman’s fallopian tubes are blocked or absent, as well as in case of male infertility, or when the cause of infertility is unknown. The first “test tube baby”, Louise Brown, was born in 1978, and since then five million people have owed their lives to IVF.

Several embryos are created in the procedure, raising issues to which some object on moral grounds. Two issues are prominent. First, not all embryos will be implanted, so the remaining embryos must be frozen for potential future use or discarded, disturbing those who believe a pre-implantation fertilized egg is morally equivalent or comparable to a human being at later stages of development. See Artavia Murillo, para. 306. Second, fertilizing

34 A foundational document for the bioethics policy of many of the member states of the Council of Europe is the Convention on Human Rights and Biomedicine, or Oviedo Convention, which entered into force in 1999. 35 There is some uncertainty in the terminology. “Foetus” and “embryo” are often used interchangeably in legal texts, perhaps but not necessarily reflecting the conviction that there is one form of unborn human life. In the present article, embryo refers to a nonviable entity, one that is not implanted into a uterus. The terminological distinction may become blurred once an embryo in vitro can be gestated into a baby outside the uterus. 36 Artavia Murillo et al. v. Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (Nov. 28. 2012), para. 62. the embryos outside the womb also makes possible pre-implantation genetic diagnosis (PGD), the screening of the embryo for genetic defects, allowing the parents or doctors to select an embryo with one set of characteristics over an embryo with another set.

Advances in technology contrast with delays in the judicial process, adding to the difficulty of a jurisprudential approach to bioethics issues, especially

András Sajó and T. Pertz in respect to women wishing to conceive children before they advance beyond European Court of Human Rights reproductive age.

The ECHR first encountered IVF inEvans v. the United Kingdom [GC], no. 6339/05, ECHR 2007I, a case that typifies the Court’s dutiful avoidance of bioethical reasoning when a legal avenue for resolution exists. Evans presented the question of whether a sperm donor can withdraw his consent for the implantation of embryos. The Court found that he could, holding that the British Parliament was within its margin of appreciation to require that both donor parties consent to implantation. §91-92. Though the Court 428 notes that its consideration is set “against a background of fast-moving medical and scientific developments”, § 81, its reasoning for affording a wide margin of appreciation to the government rested most directly on the lack of common ground on the issue among member states. Science is tangential but nonetheless important to the decision. The Court borrows the phrase, “a background of fast-moving medical and scientific developments” (§§ 34, 59, 81), from the chamber judgment, Evans v. the United Kingdom, no. 6339/05, § 23, 7 March 2006, which in turn imports it from Lord Bingham’s opinion in R. v. Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) [2003] UKHL 13. 37 Crucially, the Evans judgment uses the language in its deciding paragraph:

In conclusion, therefore, since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast- moving medical and scientific developments, and since the questions raised by the case touch on areas where there is no clear common ground amongst the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one (see X, Y and Z v. the United Kingdom, cited above, § 44). § 81.

37 It is telling, in terms of judicial dependence on administrative and professional knowledge, that Lord Bingham’s view originates in a White Paper (published in November 1987; Cm 259) where the Department of Health and Social Security recognized “the particular difficulties of framing legislation on these sensitive issues against a background of fast-moving medical and scientific development”. (Lord Bingham’s speech para. 11.) Here, scientific developments are not merely held out as background; the phrase is preceded by the word “since”, making an argument about causation. But the substance of the paragraph is legal rather than scientific; far from heavily engaging bioethics, the Court is calling upon the longstanding doctrine that the respondent state must be afforded a wide margin of appreciation in cases where there is little common ground amongst the member states. The perceived difficulty in staying current as to rapidly developing science is given as reason to avoid judging the science; the actual bioethical issue is seemingly acknowledged but in fact avoided. The Court Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of construed the prospective mother’s wish to give birth as a matter of will (the right to respect for a specific decision) that is confronted with the equally important will of another (the biological father’s lack of consent). In view of a lack of European consensus and legal certainty, the Court did not believe “that the applicant’s right to respect for the decision to become a parent in the genetic sense should be accorded greater weight than J.’s right to respect for his decision not to have a genetically related child with her”. Evans at § 90. The biologically rooted and culturally confirmed desire of the mother does not carry the day: “the Grand Chamber, in common with 429 every other court which has examined this case, has great sympathy for the applicant, who clearly desires a genetically related child above all else”.

For the Court, what matters is whether Parliament, in a non-controversial procedure, acted beyond its margin of appreciation —a margin which, for reasons such as moral sensitivity, is a large one. When the case was at the House of Lords, Lord Bingham expressly recognized that an ethical dispute was central:

There is no doubting the sensitivity of the issues. There were those who considered the creation of embryos, and thus of life, in vitro to be either sacrilegious or ethically repugnant and wished to ban such activities altogether. There were others who considered that these new techniques, by offering means of enabling the infertile to have children and increasing knowledge of congenital disease, had the potential to improve the human condition, and this view also did not lack religious and moral arguments to support it.

It was at this point that Lord Bingham turned away from the sensitive issue, referring to scientific uncertainty (see above) to show how difficult the problem could have been for Parliament. The rest is a matter of statutory construction, and no issue of right comes up.

Early in its assessment, the Court does frame the issue as a conflict of rights: the right to respect for both the decisions to become and not to become a parent, which it finds irreconcilable. § 71-73. But after establishing the existence of these rights, the Court does not adopt them as grounds for decision. §91. The Court defers to the legislature, not only because of the lack of consensus but also because the regulation was based on thorough “reflection, consultation and debate”. §86. The judicial reluctance here is not just to engage questions of biology, but to engage in questions of ethics as well. Proper procedure in decision-making, a form of procedural justice,

András Sajó and T. Pertz is what the majority found itself competent to evaluate. There was no fault in European Court of Human Rights that regard. However, this does not mean that judges working in the very specific circumstances of an international court are immune to the rights- based moral approach. The Court’s four dissenters consider the moral issue head on: “We see the case as one of interference with the applicant’s right to respect for the decision to become a genetically related parent.…We consider that the applicant’s right to decide to become a genetically related parent weighs heavier than that of J.’s decision not to become a parent in the present case”. Going further, they state, “Where the effect of the legislation is such that, on the one hand, it provides a woman with the right 430 to take a decision to have a genetically related child but, on the other hand, effectively deprives a woman from ever again being in this position, it inflicts in our view such a disproportionate moral and physical burden on a woman that it can hardly be compatible with article 8 and the very purposes of the Convention protecting human dignity and autonomy”. Of course, once the bioethical values are stated, the argumentation is than conducted in jurisprudential terms of proportionality.

Did Evans make use of bioethics in a substantive sense? According to Judit Sandor,

the ethical theory [the court] used is not clear, thereby showing that the logics of bioethics is not directly transferable into law which relies on traditional forms of rights and interests. If, in this instance, bioethics was of any influence then it was manifested only in reference to the main sources of bioethics. A competing view, that would follow from bioethics, would take into account and assess the difference in the burden of physical involvement in the procedure.38

Hormonal treatment is more of a burden than sperm donation. A biological fact and related sacrifice could have been decisive in a moral analysis. Likewise, there was enormous difference in terms of personal loss: this was

38 J. Sandor, Bioethics, op. cit. the last chance for Mrs. Evans to give birth, while her ex-husband had many opportunities to have offspring. One reaches the same conclusion favoring Mrs. Evans relying on an ethical approach, which would claim that embryos have the right to be born.

The IVF case that came to Strasbourg a few years later, S.H. and Others v. Austria [GC], no. 57813/00, ECHR 2011, appeared to set the Court on an unavoidable collision course with the debate over the propriety of IVF.

In 1992 the Austrian legislature prohibited sperm and ovum donation for the Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of purpose of IVF and heterologous embryo transfer (i.e. implanting into the uterus an embryo conceived with donated sperm and donated ovum), and the infertile applicants and their husbands claimed that the ban violated the right to respect for private and family life as guaranteed by article 8 of the Convention. The Court found that the ban did not constitute a violation, judging the legislature to be within its margin of appreciation. The Court references perceived scientific uncertainty to justify its caution: “The Court considers that the field of artificial procreation is developing particularly fast both from a scientific point of view and in terms of the 431 development of a legal framework for its medical application”. § 103. This scientific reality puts the Court in a difficult position with respect to its duty to consider whether the prohibitions were justified at the time they were considered by the Austrian Constitutional Court in 1999, rather than at the time of the Court’s decision in 2011 (S.H. at §84, following J. M. v. the United Kingdom, no. 37060/06, § 57, 28 September 2010). The Court works to leave room for future developments by admonishing that it “considers that this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States”. §118.

In highlighting the lack of consensus among member states (three nations had chosen to impose significant restrictions on IVF, while the other member states had not),39 the Court avoids engaging in a morality-based debate. The decision acknowledges its own limitations, stressing that the Court cannot “substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation”. §92. To convince the Court to restrain itself and allow a wide margin of appreciation, the government insisted that this was an issue of moral judgment, reasonably anticipating that judges fear this category

39 The use of a lack of consensus is a transcontinental phenomenon. It is indicative of how quickly the strategy comes to mind that Justice Scalia invoked it in regards to same-sex parenting during oral argument in Hollingsworth v. Perry: “I take no position on whether it’s harmful or not, but it’s certainly true there is no consensus to that scientific question at this point”. of decision-making and would prefer it be left to the democratic process. The government’s arguments stressed that the domestic process had considered human dignity, and that the legislature perceived unethical consequences of allowing donation, in particular that IVF would lead to untoward “selection” of children, the “exploitation and humiliation” of economically disadvantaged women, and pressure for such women to donate more ova than necessary for their own treatment. §101. That the government would stress this selection argument demonstrates the lasting influence of the András Sajó and T. Pertz

European Court of Human Rights specter of Nazi eugenics, the lingering suspicion that any attempt at so-called “improvement” of a human being at the genetic level was inevitably an enforcement of subjective aesthetic norms, making any alleviation of suffering a mere residual effect and not enough to pull the procedure into the realm of the morally justified. The fear was prospective.

The Court has shown itself ready to accept legislative assurances about the difficulty of regulation as grounds for accepting blanket bans on certain activities.40 Applicants argued that there would have been less restrictive 432 means available to address concerns of economic exploitation, such as prohibiting remunerated donation. §58. There seems to be an inclination in certain apex courts to accept that where there is uncertainty, and where an individualized approach would result in administrative difficulties and risks of social harm, the legislation is free to rely on absolute bans. (See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997), discussed in more detail later). 41

The Court’s decision in turn recognizes the moral stakes, while downplaying the importance of judicial moral reasoning:

The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive

40 See most recently Animal Defenders International v. the United Kingdom [GC], no. 48876/08, 22 April 2013, holding, inter alia, that a ban on all political advertising on television was justified by the nature of the ban as a general measure. 41 Barbara Evans describes this inclination with respect to Washington v. Glucksberg, 521 U.S. 702 (1997): “Asserting that effective regulation is impossible, a state might claim it has a compelling interest in quashing a private behavior altogether. By this reasoning, the state’s own inability to implement a lesser infringement--regulation--justifies greater infringement in the form of an outright ban. Following this line of argument, Glucksberg treated law’s incompetence as a basis of state power to infringe personal liberties. Ironically, the Court let law intrude on individual liberty because law does not work”. 16 Va. J. Soc. Pol’y & L. at 193. The Chamber in S.H. seems to have had an exceptional approach in this regard. As regards the Government’s argument that non-in vitro artificial insemination had been in use for some time, that it was easy to undertake and its prohibition would therefore have been hard to monitor, the Chamber found that a question of mere efficiency carried less weight than the particularly important interests of the private individuals involved, and concluded that the difference in treatment at issue was not justified. This reasoning was overturned on appeal. domain like artificial procreation. However, they are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ovum donation. Notwithstanding the wide margin of appreciation afforded to the Contracting States, the legal framework devised for this purpose must be shaped in a coherent manner which allows the different legitimate interests involved to be adequately taken into account. § 100. Ethical avoidance and moral the European Court of Human Rights ... The moral considerations are understood in terms of the ethical standards moments: bioethics and the decisions of of the society, rather than in terms of moral self-determination: “the prohibition of the donation of gametes involving the intervention of third persons in a highly technical medical process was a controversial issue in Austrian society, raising complex questions of a social and ethical nature on which there was not yet a consensus in the society and which had to take into account human dignity, the well-being of children thus conceived and the prevention of negative repercussions or potential misuse” (id., § 113). The ethical approach of the third party intervener governments42 voices an 433 even stronger ethical perception, described as a matter of “basic social consensus”; e.g. the German Embryo Protection Act (Embryonenschutzgesetz) makes placing inside a woman an egg not produced by her a criminal offense. This prohibition was intended to protect the child’s welfare by ensuring the unambiguous identity of the mother. The claim was that splitting motherhood into one genetic and one biological identity would result in two women having a part in the creation of a child and would run counter to the established principle of unambiguity of motherhood, which represented a fundamental and basic social consensus. Split motherhood was contrary to the child’s welfare because the resulting ambiguity of the mother’s identity might jeopardise the development of the child’s personality and lead to considerable problems in his or her discovery of identity. (§ 69-70).

Obviously, the replacement of moral personal choice with communal ethical tenets paves the way for enhanced state paternalism, which, at least in some sense, imposes a limitation on the choices on the actor, either for her own interest, or under the assumption that the state knows her preferences better. Of course, paternalism might have profound ethical and even moral justifications, and it is certainly not for a court to decide on the abstract

42 In the view of the Italian Government, Article 8 did not protect a person’s or a couple’s right to conceive a child and to make use of medically assisted procreation for that purpose. In other words, the right to conceive a child does not entail the choice of its form, even if a given solution whose harms are speculative at best is the only available one. value of paternalism.43 It is clear, however, that this form of the ethical approach does not enhance individual rights. Ironically, the finding that a matter is of ethical nature does not command imperative application of the ethical code; it only commands a hands-off judicial reaction.

In contrast, the judgment of the ECHR Chamber (the first level of appeal) presents the opposite of the ethical approach. S.H. and Others v. Austria,

András Sajó and T. Pertz no. 57813/00, 1 April 2010. The Chamber affirmed as its point of departure European Court of Human Rights the right of a couple to conceive a child and to make use of medically assisted procreation as a clear expression of private and family life. While the Chamber also considers the case as involving a wide margin of appreciation, given the nature of the sensitive moral and ethical issues involved —a position that would in principle make irrelevant the position on the right at stake— the need for ovum donation in order to fulfil their wish for a child makes the concerns based on moral considerations or on social acceptability insufficient reasons for a complete ban.

434 In essence, the Grand Chamber decision concludes that the legislature is entitled to ban IVF because complex moral issues are entitled to a wider margin of appreciation. The legislature’s authority is bound by rule of law considerations only., as there must be a coherent legal framework within the realm of Convention rights. It is an assertion of legality’s supremacy, affected through a proceduralistic legal solution. Still, science buttresses the possibility for a greater margin of appreciation: “The Court considers that the field of artificial procreation is developing particularly fast both from a scientific point of view and in terms of the development of a legal framework for its medical application”, and thus, “it is particularly difficult to establish a sound basis for assessing the necessity and appropriateness of legislative measures, the consequences of which might become apparent only after a considerable length of time”. §103. This line of reasoning hints at a progression toward a deference analogous to that of the United States Supreme Court’s ruling in Chevron v. NRDC, 467 U.S. 837 (1984), based on subject matter complexity and expertise, and limited by the requirement of a certain degree of diligence on the part of the state.44

43 Joel Feinberg, Harm to Self (1986); Gerald Dworkin, Moral Paternalism. 24 Law and Philosophy 305, 305-19 (May, 2005) 44 Reasoning adopted in United States v. Shimer, 367 U.S. 374, 382, 383 (1961) and affirmed inChevron , is a bedrock in the United States for allowing fast-moving developments in science a lower degree of scrutiny: “a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations” Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). “Judges are not experts in the field”. Id. at 865. The judgment of a chamber of the Court in Costa and Pavan v. Italy, no. 54270/10, 28 August 2012, applies the coherence consideration on the same strategy of bioethical avoidance. Unlike in S.H., the chamber found a violation in Italy’s restriction of IVF following PGD. Resisting ruling based on the moral acceptability of IVF, the Court instead found that there was a violation in the inconsistency of a legal regime that allowed abortion but forbid PGD, resulting in a disproportionate interference with the article 8 right to privacy. §71. It was this finding of a lack of proportionality in light of the availability of therapeutic abortion that the chamber highlighted to Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of distinguish the case from S.H. §69.

It is evident from the decision that the chamber is engaging in legal rather than moral analysis. It did not need to address the question of when the full rights of personhood attach, since, as Italy allowed abortion, it would be disingenuous for the government to argue that an embryo was deserving of more protections than a foetus. Biological identity allowed for a formalistic legal conclusion, an evaluation of difference rather than absolute value.

Indeed the Court has consistently avoided defining when life begins (see, 435 e.g., Vo v. France [GC], no. 53924/00, §82, ECHR 2004VIII; A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010), relying on a lack of consensus among member states to free it of a difficult (or impossible) scientific and moral judgment. Because the Court sought to bypass ethics and rely instead on consistency, the moral problem was left unresolved at the international level, leaving the issue to domestic ethical considerations of the domestic majority.

Is there a possibility of incorporating more ethical or moral reasoning into judgments? Various attempts have been mentioned above, with very different conclusions. Here we provide additional examples. The decision of the European Court of Justice in Brüstle v. Greenpeace, Case C-34/10 Brüstle [2011] ECR I-0000, holding that one could not patent a human embryo, provides an example of a moral outcropping in the midst of a largely formalist treatment of a bioethics issue. The questions forwarded to the ECJ by the German court were ones of textual interpretation, rather than explicitly of rights protection; the Court was asked to interpret article 6 (2)(c) of Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological inventions, labeling “uses of human embryos for industrial or commercial purposes” as unpatentable.

The questions presented the Court with a challenge of biological interpretation, namely whether to define the term “human embryo” as including the zygote from the instant of fertilization, or only beginning at a later developmental stage. The Court found that any fertilized egg was in fact an embryo, with a brief explanation based on the rationale that “that fertilisation is such as to commence the process of development of a human being”. § 35.45 Still, in its moral moment, the Court went on to buttress its conclusion on the concept of “respect for human dignity”, arguing that the inclusion of the concept in the Directive demanded understanding the term “human embryo” in a “wide sense”. § 34.

In this case, statutory texts opened the door for moral interpretation. András Sajó and T. Pertz

European Court of Human Rights Article 53 of the Convention on the Grant of European Patents, to which all EU states are parties, prohibits granting patents for “inventions the commercial exploitation of which would be contrary to ‘ordre public’ or morality”. More directly relevant here, the preamble to the EU Directive (98/44/EC) on the Legal Protection of Biotechnological Inventions states that “patent law must be applied so as to respect the fundamental principles safeguarding the dignity and integrity of the person”, § 16, “processes, the use of which offend against human dignity, such as processes to produce chimeras from germ cells or totipotent cells of humans and animals, are 436 obviously also excluded from patentability”, § 38, and “ethical or moral principles supplement the standard legal examinations under patent law regardless of the technical field of the invention”, §39. But the court did not need to walk through the door of ethical interpretation; doing so was a choice, as its scientific justification of the proper definition of “human embryo” would logically have been enough to interpret the statute’s language.

What motivated the ECJ to move towards considering the matter in a substantively bioethical way, relying on a non-specific (and in that regard very lawyerly) concept of dignity? Here, dignity is extended to an entity which seems not to have the attributes generally required for human dignity, i.e. the human element is not articulated, at least according to critics. It is clear that other dignity concerns (the dignity of patients) were not taken into consideration and the ECJ, partly because of its self-understanding and in contrast with the ECHR, was not concerned about presence or absence of a European moral consensus. An alternative reading of the case is that in the absence of the monopoly provided by a patent, results of stem cell research will be made available to more people and at less cost. Again, this

45 The difficulties in this case as to the “embryo” versus “foetus” question mirror those in Vo v. France [GC], no. 53924/00, § 39, ECHR 2004VIII. In § 39, the Court cited a 2003 report from the Working Party on the Protection of the Human Embryo and Foetus set up by the Steering Committee on Bioethics of the Council of Europe. Hitting the wall of ethical disagreement among countries by recognizing the possibility that “agreement cannot be reached on the status of the embryo”, the report urges that “common approaches be identified to ensure proper conditions for the application of procedures involving the creation and use of embryos in vitro”—disagreement means no substantive answer, so the report falls back on procedure. was not an explicit consideration in the judgment, which is strictly about a specific bioethical reading of the applicable directives.

That said, the decision also reflects a practiced avoidance. The court deferred answering the more challenging question of whether “human embryo” included pluripotent stem cells removed from the blastocyst, arguing that what concerned it was not this type of bioethical question but rather the legal meaning of the Directive, and the referring court must evaluate that question “in light of scientific developments”. § 30, 37. Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of

It is instructive to look to separate opinions in which the writing judge seems to be freer to express ethical positions that a majority might fear. For instance, Justice Scalia found auditory monitoring of an employee giving a urine sample to be “offensive to personal dignity” in his dissent in National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384, 1398 (1989) (Scalia, J., dissenting). Justice Souter interpreted ethical aspects of the regulatory framework in Glucksberg: “There can be no stronger claim to a physician’s assistance than at the time when death is imminent, a moral 437 judgment implied by the State’s own recognition of the legitimacy of medical procedures necessarily hastening the moment of impending death”. Washington v. Glucksberg, 521 U.S. 702, 781 (1997) (Souter, J., concurring). Justice Stevens’s passionate stance as to a terminally ill patient’s liberty interest comes through in his opinion in Cruzan: “Our ethical tradition has long regarded an appreciation of mortality as essential to understanding life’s significance. It may, in fact, be impossible to live for anything without being prepared to die for something”. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 344 (1990) (Stevens, J., dissenting).

Turning to the jurisprudence of the ECHR, in S.H., both additional signed opinions are much more heavily laden with moral discussion. The separate concurring opinion of Judge De Gaetano argues that “neither article 8 nor article 12 can be construed as granting a right to conceive a child at any cost. The ‘desire’ for a child cannot, to my mind, become an absolute goal which overrides the dignity of every human life”. § 2. This is a clear statement in favor of life on the basis of dignity, against the reproductive claim that is understood as a biologically determined emotion. In his separate opinion in S. H., Judge De Gaetano is referring to dignity in the context of in vitro fertilization, where dignity —and the underlying notion of the inherent value of human life— is at the very basis of the Convention as a whole: “While there is no doubt that a couple’s decision to conceive a child is a decision which pertains to the private and family life of that, neither article 8 nor article 12 can be construed as granting a right to conceive a child at any cost. The ‘desire’ for a child cannot, to my mind, become an absolute goal which overrides the dignity of every human life”. This is the ultimate clash of values, where implicitly the embryo has a dignity as prior value that prevails against a privacy right.

On the other hand, the dissent in S. H. highlighted what the majority opinion did not, namely that infertility is “a source of social and psychological suffering for both men and women”.46 Here, suffering, the primary moral mover, appears undisguised. Is the suffering and resulting compassion the András Sajó and T. Pertz

European Court of Human Rights foundation of a compelling right, or is the concern animating the right a different one? It seems that the moral sentiment generated by suffering is only intended to add weight to the right that is “there” already: one has the right to offspring as part of intimate private life (which is triggered perhaps by a naturalistic-biological, instinct-based natural phenomena and related, personally observable and culturally recognized desire to become parents).47 The reference to suffering is intended to justify the acceptance of a contested mode of procreation.

438 The possibility of more explicit engagement with moral arguments holds true across jurisdictions. Most notably, when the Inter-American Court of Human Rights (ICHR) ruled on its IVF case, Artavia Murillo v. Costa Rica, it relied heavily on biological, scientific evidence to diffuse moral objections, engaging both where other courts had shied away. The lead applicants in the case were a couple who were unable to conceive naturally, in part because of the man’s paraplegia, and for whom the impossibility of having biological children ultimately spurred their divorce. §§ 86-88. Even in light of the Catholic Church’s substantial influence in Latin America, Costa Rica had been the only country in the region to ban the practice.

In its literature review, the ICHR cites both S.H. and Costa and Pavan, pointing out that neither had engaged the question of the embryo in the framework of personhood. §242. The ICHR then turns its analysis to the biology at issue. It engages the question of the definition of personhood (§ 176, § 185) and conception (§ 180, and §§ 186-87), attempting to find the right mix of certainty and uncertainty, grounded in biological facts, with

46 The reference is to E. Vayena et al. (eds.), Current Practices and Controversies in Assisted Reproduction, Geneva, World Health Organisation, 2002, p. XIII, in Joint Dissenting Opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria, S.H. and Others v. Austria [GC], § 9, no. 57813/00, ECHR 2011. 47 We are not arguing that this is genetically determined, though a selfish gene theory would probably point in that direction. From a legal-regulatory perspective what matters is that the desire to have offspring is culturally recognized. There might be cultures which would encourage the opposite. But in most contemporary societies, the right to have offspring is undisputed, backed by the evidence of naturalness, enshrined as part of natural law based on obvious “law of nature”. subsequent legal review (e.g. see the review of the definition of personhood in law, section C. 2). The decision emphasizes its consideration of the dispute on the alleged embryonic loss (§ 276), a skillful melding of science and law. Reviewing the frequency of embryonic loss in both IVF and unassisted reproduction, the ICHR held that “the Court finds it disproportionate to aspire to an absolute protection of the embryo in relation to a risk that is common and even inherent in processes where the IVF technique has not been used”. §311. In a passage reminiscent of the consistency argument in Costa and Pavan, the court still recognizes its limitations, declaring that it Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of was not incumbent upon it nor did it have the expertise to determine which scientific theory was correct as to embryonic loss; “[f]or the Court, itis sufficient to verify that the evidence in the case file is consistent in indicating that there is embryonic loss in both a natural pregnancy and in the context of IVF”. § 309.

In sum, the ICHR was eager to highlight the intersection of biology and ethics, namely that a ban on IVF constituted discrimination based on gender and physical disability, while having a minimal impact on the protection of 439 prenatal life because the risk of embryonic loss is present both in IVF and in natural pregnancy. §314-15. It is worth reprinting these paragraphs, as they demonstrate a court’s managing an exceptional head-on clash of science and rights-based reasoning:

314. A weighing up of the severity of the limitation of the right to private life and to found a family compared to the importance of the treaty-based protection of prenatal life allows it to be affirmed that the effects on the right to private life, intimacy, reproductive autonomy, access to reproductive health services, and to found a family is severe because, in the practice, these rights are annulled for those persons whose only possible treatment for infertility is IVF. In addition, the interference had a differentiated impact on the victims owing to their situation of disability, gender stereotypes and, for some of the victims, their financial situation.

315. In contrast, the impact on the protection of prenatal life is very slight, because the risk of embryonic loss is present both in IVF and in natural pregnancy. The Court underlines that the embryo, prior to implantation, is not covered by the terms of article 4 of the Convention, and recalls the principle of the gradual and incremental protection of prenatal life (supra para. 264).

The court used scientific reasoning to demonstrate that an ethically driven assumption was unfounded. And stepping where many courts will not, it accepts one medical position as decisive, a contrast to the strategy of simply referring to scientific uncertainty or change in order to justify deference. Moreover, in approaching the matter thusly, the ICHR removed the necessity of addressing the question of when life begins, finding an approach heavy on moral engagement in comparison with many other courts. Its use of “natural pregnancy” as a foil speaks to a perceived argumentative power of ‘naturalness’; by affirming the consistency between in vitro and in utero embryonic loss, the decision admits that they are otherwise distinct from András Sajó and T. Pertz

European Court of Human Rights one another, subtly elevating in utero embryos to a standard worthy of comparison, without additional discussion.48

A stark bioethical declaration was also made by the South Korean Constitutional Court when adjudicating a claim over the constitutionality of embryonic research. South Korea’s Bioethics and Biosafety Act of 2004 (Act No. 7150) instituted a limited prohibition on the use of human embryos for purposes other than pregnancy (article 13), making exception for research for treatment for muscular dystrophy (article 17). Such additional 440 research requires the informed consent of the donors (id.). When activists (along with a donating couple and two embryos themselves as named petitioners) brought suit seeking to strike down the law and have the research declared unconstitutional,49 the Constitutional Court rejected their arguments by taking sides on the bioethical controversy: the court declared that embryos do not constitute life. The decision rests on scientific uncertainty to conclude that the embryos do not have constitutional rights or standing: “at the contemporary level of scientific knowledge, it is hard to affirm the continuity of the entity between embryos and an independent human being unless they are implanted into a mother’s womb or the embryological primitive streaks appear”. (90). Standing was likewise denied to the donors, since the regulations as written “do not directly hamper [complainants’] formation and maintenance of conscience and character, nor force them to donate their sperms and eggs or to open their personal

48 Naturalness appears rarely in legal arguments but decisions assign it great importance when they use it. The famous case In re Baby M, 537 A.2d 1227, 109 N.J. 396, 435 (N.J. Sup. Ct., 1988), falls back on naturalness to justify a policy decision: “[o]ur policy, however, has long been that to the extent possible, children should remain with and be brought up by both of their natural parents”. That sort of thinking animates the jus sanguinis approach to citizenship of many countries, including France, whose high court refused to allow children of surrogate parents born outside France to have French citizenship. Arrêt no. 369, 6 April 2011 (09-66.486). Even Habermas relies on naturalness as a value so important as to justify suspicion of a procedure utilized to prevent children from suffering from muscular dystrophy: “By depriving the fusion of two sets of chromosomes of its contingency, the intergenerational relations lose the naturalness which so far has been a part of the taken- for-granted background of our self-understanding as a species”.Habermas, 72. 49 In re: The Bioethics and Biosafety Act Regarding Embryo Research [22-1(B) KCCR 275, 2005Hun-Ma346, May 27, 2010] http://www.ccourt.go.kr/home/att_file/library/ 1335944397883.pdf information such as genetic information” (93). This court has gone perhaps farther than any other to take a position on the issue, to give the kind of clear, conclusive pushback to IVF opponents that many of its supporters likely desired. The decision makes clear the power that an apex court in fact wields, throwing into sharp contrast other courts’ decisions that refuse to take as bold a tack.

The role of moral sentiments Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of Where morality does not take hold

Bioethical avoidance is not unique to the ECHR, but nor is it universal, even if it seems even more common than in some other courts.50 As mentioned above, the rights-based, morally charged discussion of bioethics issues is a matter of legal and social development, and the moral dimension of bioethical cases emerges at certain points in that development. In other circumstances, stemming from courts’ desire to follow traditional judicial 441 roles and respect the separation of powers, courts steer clear of engaging in moral balancing and function formalistically. This is, by default, not surprising. More interestingly, many cases that studiously avoid tackling an issue on bioethical grounds still allow for various displays of moral sentiments and considerations. Even formalistic bioethics-related decisions often have what can be called moral moments, brief passages including normative commentary that is tangential to the law. Judges frequently take note of ethical considerations even though the case does not require it, perhaps to be responsive to concerns of sympathetic parties whom the law may leave behind. For instance, though ruling the other way, the Evans Grand Chamber expressed “great sympathy for the applicant”, Evans at § 90.

There are similar instances of this phenomenon across the Atlantic. Take, for instance, Astrue v. Capato, 132 S. Ct. 2021 (2012), where the U.S. Supreme Court denied Social Security survivor benefits to children conceived in vitro after the death of the father. Although the Supreme Court examined the formal elements of statutory construction rather than the propriety of various outcomes, still, the decision strikes a wistful tone in the decision’s conclusion, noting that “[t]ragic circumstances—[respondent’s husband’s] death before he and his wife could raise a family—gave rise to this case”. It offers with a certain regret the statement, beginning with “But”, that comes after that line, namely that it is the Court’s duty to defer to the administrative

50 For an explanation see Part VI. agency’s interpretation of the statute rather than attempt to sooth tragedy “by creating a uniform federal rule the statute’s text scarcely supports”. Id. at 2034. Chevron deference apparently does not include an ethical exception, but could animate a formalistic extension.

Canada’s most famous mercy killing case, R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1, is true to form, demonstrating bioethical avoidance and non-dispositive sympathy. A girl had severe cerebral palsy, leaving her András Sajó and T. Pertz

European Court of Human Rights quadriplegic, with the mental capacity of an infant, suffering five to six seizures daily, which caused her great pain. Her best possibility for stemming her weight loss was the insertion of a feeding tube into her stomach. When doctors wished to perform additional surgery, which her father considered mutilation, the tortured man ended his daughter’s life with carbon monoxide. After prosecution for second degree murder, a jury imposed a sentence far below the statutory minimum.

On appeal, Canada’s Supreme Court was confronted with decisions as

442 to whether the defendant could properly have made a defense of necessity, whether the judge misled the jury into thinking it would have more input into the sentence, and as to whether the sentence was cruel and unusual. The necessity defense was improper, as his own life was not threatened. The jury was properly instructed. And the sentence was found to be proper, considering the gravity of the offense of murder. In no instance did the court evaluate the moral propriety of this particular mercy killing; it was the ethics of the punishment, rather than of the crime, that demanded analysis. The sorry, but construction is again present here: “[T]he accused’s good character and standing in the community, his tortured anxiety about [his daughter’s] wellbeing, and his laudable perseverance as a caring and involved parent must be taken into account. Considered together the personal characteristics and particular circumstances of this case do not displace the serious gravity of this offence”. Id. at 85. The moral dimension that came into the fore because of sympathy towards the murderer is not directed to the fundamental bioethical issue of dying; it is about the motives of the sentenced person and not about the morality of ending suffering of the mentally incapacitated.

The court went on to consider that its “role is to determine the questions of law that arise in this appeal; the matter of executive clemency remains in the realm of the executive” —a hint at a pardon that never came. Id., 2. Furthermore, in its discussion of the necessity defense, the court mentions a “threshold at which a person must be expected to suffer the harm rather than break the law” and cites an article calling the determination a “matter of moral judgment” —but the fact that the defendant himself did not face any peril allows it to avoid an actual moral balancing exercise. G. P. Fletcher, Rethinking Criminal Law 804 (1978), in Latimer, 34; Latimer, 38. In an interview after his parole in 2011, the defendant stated that his trial had a moral purpose: “They have to have a judicial process to establish right from wrong. It’s designed to do that, it did not do that in our situation”.51 For the judicial mind, a process is designed to establish lawful from unlawful—it is open for debate whether the legislature let Latimer down by not creating guidelines for lawful euthanasia, or the executive let him down by not issuing a pardon, but the court performed its function as intended. Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of

These examples indicate that the observation of suffering and related possible compassion may remain irrelevant in terms of the outcome of the case. In these cases, suffering is a byproduct or accidental accessory to the case, not one that would add weight to a rights-based claim.

Moral moments function as a balm (or placebo) for the raw spots that formalistic justice can leave, spots that are more apparent in their absence. For instance, a trial court in New York State denied tort recovery for parents 443 of children conceived in vitro where PGD could have been performed and the children had a genetic disorder, on the grounds that a child “does not have a protected right to be born free of genetic defects”. Paretta v. Human Reproduction, 195 Misc. 2d 568, 576 (N.Y. Sup. Ct. 2003). The issue as to whether tort law creates a cause of action is certainly complex. But it would be hard to imagine how the law could lead to a worse result. To the extent the law has an ethical compass, it does not naturally point in the direction of suffering children, nor often encourage the law to tread over the young and vulnerable on the path toward some greater moral north.

These examples indicate the need for caution; nevertheless, our assumption is that under the pressure of circumstances (e.g. social conflicts, a trend toward social involvement of judges, etc.), the moral sentiments generated by the facts of the case may result in the acknowledgement of the bioethical issue and may turn the judgment into one that is argued, at least to a considerable extent, as a moral issue, as a problem of bioethics. In these circumstances, bare moral arguments and morally charged rights arguments will become relevant, if not necessarily decisive.

The fact that the legal debate is couched in terms of ethical and moral considerations (or at least in terms of rights where their relationship,

51 Latimer still defends killing daughter, CBC News, Feb. 17, 2011, http://www.cbc.ca/ news/canada/montreal/story/2011/02/17/robert-latimer-defends-decision-to-kill- disabled-daughter.html hierarchy, and decision-making power will depend on their ethical weight) is of little predictive power as to the outcome of the bioethical dilemma. As mentioned above, ethics as a social construct may play against individual morality. Moreover, respected ethical and moral categories (and their legal translations) mean very different matters in a pluralistic society, and even within a single legal culture, irrespective of the fact that the operations of law are based on the assumption of uniformity. András Sajó and T. Pertz

European Court of Human Rights By not reaching a conclusion on bioethical issues, courts have prevented themselves from having to find additional positive obligations on the part of the state. For instance, if a court were to find that issues of human dignity might require the assignment of certain rights to an embryo, embryos would then become a vulnerable population, perhaps entitled to additional governmental protection and consideration, lacking the capacity to make informed choices. Who is entitled to make those choices on their behalf? Would doctors have a duty to keep the embryos forever, even though they would never be viable on their own? A ruling to the contrary would 444 have its own implications. Avoiding the often avoided question—Do embryos have the right to be born healthy?—will be more difficult. But moral sentiments ultimately have limited scope.

In practical terms, individual debates couched in terms of ultimate truths or in more reflexive positions of bioethics may not be decisive. It is likely that the prime mover in settling the above question will be science. That explains the reluctance of courts, and the ECHR in particular, to take a firm position of its own. Once technological improvements become available (even if first through health tourism to countries which refused to take a most restrictive regulatory approach), the suffering that is avoidable (and not a natural fact of life) will generate stronger emotions, including, if necessary, among judges, and may push towards a moral reevaluation of the claims.52 But such a wait-and-see attitude 53leaves rights-holding applicants to face their tragedies.

52 For judicial sentiments regarding slavery, contrasting the pressures of an entrenched economic system with growing recognition of the institution’s injustice, see B. Williams. 53 In S.H. the judgment of the Court referred back to events that occurred 15 years earlier. Given the age of the applicants even a favourable judgment would not have been a genuine remedy. Bioethically charged situations are often irreversible with the passage of time. One could argue in view of the limited number of ECHR bioethics cases and their limited scope, and in particular the absence of cutting edge problems that this is a sign of strategic, conflict avoiding case selection. Organizational and technical factors offer a better explanation. This is not simply a matter of the wisdom of patience in bioethical matters. Given the overload of the Court and a past policy of treating applications in the order of submission the long delays were inevitable. The judgment in S.H. seems to be a judgment on yesteryear’s bioethics; a matter that was stressed by the Court itself. The majority opinion emphasizes that its holding applies to the scientific situation of 1998, a matter of much criticism in the dissent. What improves the chances of (bio)ethical considerations of having a legal impact?

Tragic suffering

It is perhaps telling that the great shift in the law of abortion was related to a morally represented case of extreme and tragic unjust suffering (injustice and remediability are preconditions of a moral shift): the acquittal of Aleck

Bourne in the U.K. in 1938, representing a change in the common law, and Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of clearly not on constitutional or moral grounds. Doctor Bourne, in defiance of the law, terminated the pregnancy of a 14-year-old girl who had been sexually assaulted by five soldiers. The acquittal was granted on the obviously incorrect assumption that the life of the woman was in danger, which was the only legally accepted ground for abortion. From that point on, abortion became medicalized, as it was dependent on a psychiatrist’s approval.

We have offered examples where personal tragedies were of such irresistible 445 strength that judges could not deny their presence but only turn away from the human dimension. Nevertheless, intense suffering may shift towards the recognition of a right in bioethical terms. So far, the ECHR has resisted such emotional pressure. Tysiac v. Poland is particularly telling in this regard. Mrs Tysiac became blind in consequence of giving birth. The delivery resulted from wrongful medical advice, which discouraged her to have abortion. While the applicant argued in terms of degrading treatment, because of the humiliation she suffered, the Court construed the case as one of a privacy right to health, stressing the importance of procedural safeguards regarding access to a therapeutic abortion as regulated by law. The Court mentioned that “the risk of their incurring criminal responsibility under article 156 § 1 of the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case”.

Sometimes the bioethically relevant suffering of the claimant cannot go unnoticed. This was the case in Evans. In the U.S., a great deal of sympathy is expressed toward the chronic pain sufferers in Gonzales v. Raich, 545 U.S. 1 (2005):

The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. 545 U.S. at 9.

An apologetic moral moment couches the formalistic analysis. Still, the András Sajó and T. Pertz

European Court of Human Rights strength of the sympathy is such that the Supreme Court even contradicts Congress in giving credence to citizens’ arguments as to marijuana’s medical value. The sorry, but construction is in fact expressing policy doubts, and perhaps even an ethical position; courts that use it are perhaps more engaged in bioethical reasoning than their ultimate reliance on law would have us believe. In the absence of additional conditions compassion with suffering is unable to generate enough moral indignation that would bring in the bioethical issue, certainly not in a decisive way.

446 Vulnerability

The concept of vulnerability is another possible entry point of bioethical reasoning into law, as the concept has made some inroads toward becoming an accepted consideration in both fields.54 A widely cited bioethical analysis of vulnerability identifies seven types of limitations on the ability to provide informed consent, namely lack of cognitive function, being under legal guardianship, customary obedience to a perceived authority figure, illness, poverty, limitations on the ability of a research setting to follow protocol, membership in a socially undervalued group.55 On the other hand, bioethicists have criticized reliance on categorical vulnerability for being overbroad and overly narrow, promoting stereotypes, and not accommodating realities of change in status.56 Still, the U.S. Code of Federal Regulations recognizes the concept of “particularly vulnerable populations” in respect to protection of human research subjects, listing children, prisoners, pregnant women, handicapped or mentally disabled persons, (45 CFR 46.107) and economically or educationally disadvantaged

54 See e.g. Gloria J. Banks, Legal & Ethical Safeguards: Protection of Society’s Most Vulnerable Participants in a Commercialized Organ Transplantation System, 21 Am. J.L. & Med. 45, 79-80 (1995). 55 Kenneth Kipnis, Vulnerability in Research Subjects: A Bioethical Taxonomy. Ethical and Policy Issues in Research Involving Human Research Participants, National Bioethics Advisory Commission (2001). 56 Carol Levine, et al., The Limitations of “Vulnerability” as a Protection for Human Research Participants, 4 Am. Jour. Bioeth. 44, 46-48 (2004), http://www.uow.edu.au/ research/rso/ethics/human/training/docs/limitations_of_vulnerability-lecture2-1.pdf. In addition, invocation of vulnerability analysis in a legal case brings up issues of paternalism. persons (45 CFR 46.111). It is remarkable that the vulnerability considerations, at least as presented, are not reflecting moral sentiments of compassion generated by past or present suffering, as is the case with traditional “suspect classes”. Even the mentally disabled are in need of protection on grounds of being easily influenced or not having proper capacities for informed consent.

The ECHR has not yet mounted a full-scale vulnerability analysis in a bioethical context, as it has done before in the case of detention of Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of immigrants (“the applicant, being an asylum seeker, was particularly vulnerable”, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 232, ECHR 2011) and the education and housing of minorities (“the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases”, Oršuš and Others v. Croatia [GC], no. 15766/03, § 147, ECHR 2010, citing Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001I); the prevalence of such legal analysis is increasing, and in cases involving bioethics issues 447 it would have significant consequences.

The example of assisted suicide: rule of law-based avoidance of bioethics versus the ethical moment

The ECHR’s cases on assisted suicide are a clear illustration of both bioethical avoidance, sometimes accompanied by the moral moment placebo.

The ECHR, though given a mission with great moral weight, is still a court of law, and consistently seeks to rest its decisions on law rather than on moral precepts. It was no deviation from standard practice when the Court was able to sidestep ruling on whether euthanasia was permissible under the Convention in Ada Rossi and Others v. Italy, no. 55185/08, 16 December 2008, by judging that the applicants—third-party associations not directly affected by the decision to remove a particular woman in a vegetative state from life support—did not have standing. 57 The question of who has competence to represent the interest of an alleged victim (a parent, a

57 In the Italian case of Eluana Englaro that was the origin of Ada Rossi, Eluana’s father argued in terms of dignity, but the Italian courts first rejected the claim on grounds of lack of scientific certainty, then on grounds of lack of standing, then by expressly refusing to distinguish between dignified and undignified life (Corte d’Apello, Milano (2006), http://www.unipv-lawtech.eu/ebook/4/index.html). The case was finally construed as one of proving the original intent of Eluana, while her father’s views as guardian were not accepted. Underlying the position of the Court of Cassation is, of course, an argument of self-determination. The Court of Cassation, referring to Pretty, denies the right to die surrogate, a non-profit organization, a government agency, etc.) isa question that involves bioethical issues, but the dispositive factor was law: because of article 34 of the Convention (restricting standing before the Court to victims of a violation by a contracting party), “it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment”. Klass and Others v. Germany, 6 September 1978,

András Sajó and T. Pertz Series A No. 28, § 33, in Ada Rossi, section C. No determination as to the

European Court of Human Rights rights of individuals in vegetative states was made. In a court, moral issues boiled down to issues of standing. The case where a U.S. federal court found lawful the public funding of stem cell research nearly never even got to that stage, on procedural grounds. Several original plaintiffs in the case were excluded by the district court for lack of standing, Sherley v. Sebelius, 686 F.Supp.2d 1, 3 (D.D.C.2009); the appeals court only reversed as to two plaintiffs because of their interest in competing for a fixed amount of funding.Sherley v. Sebelius, 610 F.3d 69, 74 (D.C.Cir.2010). Like in Ada Rossi, morality, and a morally justified personal concern, were not enough to achieve standing. 448 But at least in Sherley, financial interests were sufficient.

In Gross v. Switzerland, no. 67810/10, 14 May 2013, an elderly woman sought a prescription of fatal drugs from a doctor and her local board of health, but the request was denied, regardless of Swiss law’s allowance for assisted suicide as long as the assistance is not given for selfish motives. What convinced the Court to find a violation was the lack of clear guidelines as to the extent of the right to obtain suicidal assistance, §67-68. The legislature’s failure to provide sufficient law, rather than sufficient compassion, was the deciding factor.

Underscoring its avoidance of the moral fray was a different panel’s finding of no violation in a different assisted suicide case against Switzerland two years earlier. In Haas v. Switzerland, no. 31322/07, ECHR 2011, a chamber of the Court found that there was no affirmative obligation on the part of the state to allow a citizen to obtain suicide-inducing drugs without a medical prescription. Before ruling that the government was justified in prohibiting the distribution of deadly drugs in order to prevent their abuse, the decision engages in a typical moral moment: “the Court is sympathetic

(understood as suicide) but construes the case as one of no treatment without the patient’s consent. http://www.unipv-lawtech.eu/ebook/13/index.html The Court of Cassation refers also to Vaco v. Quill, a case that does not grant constitutional protection to the interest of the consenting, mentally competent, and terminally ill patient when it comes to medically assisted suicide. The outcome is dependent on the construction of the case, which increasingly avoids allowing competing rights to come into conflict, and therefore the courts can avoid balancing and make an independent moral judgment. to the applicant’s wish to commit suicide in a safe and dignified manner and without unnecessary pain and suffering, particularly given the high number of suicide attempts that are unsuccessful and which frequently have serious consequences for the individuals concerned and for their families. However....” §56 (emphasis added). The Court’s analysis in Gross contains no such expression of sympathy; its focus is on procedural framework, and procedure (lack of appropriate guidelines) is its basis for distinguishing Haas. Gross, §63. Gross and Haas support the hypothesis that decisions more commonly contain statements of an ethical nature when Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of the result is adverse to a sympathetic party. Moreover, together, the Haas and Gross decisions stand for the proposition that it is adequate procedure on the part of the appropriate state agency that ensures the right to respect for private and family life, where bioethics claims are relegated into that category. Categorization matters, at least indirectly. The adequacy of protection depends on the categorization (privacy vs. right to life or dignity) even if the matter remains one of procedural adequacy.

Some assisted suicide cases in North America take similar approaches. 449 Justice Kennedy employed a half-apologetic “but” early in Gonzales v. Oregon, 546 U.S. 243, 249 (2006): “The dispute before us is in part a product of this political and moral debate, but its resolution requires an inquiry familiar to the courts: interpreting a federal statute to determine whether Executive action is authorized by, or otherwise consistent with, the enactment”. Administrative law allows the court to get around the central constitutional (rights based) question, namely whether prescribing medication for a patient’s suicide is a legitimate medical purpose. The matter will be one of statutory interpretation (as it was for the House of Lords in the case of Evans). Alternatively, as in Gonzales, the more relevant issue in the court’s determination, is “Who decides whether a particular activity is in ‘the course of professional practice’ or done for a ‘legitimate medical purpose’?” (emphasis added). 546 U.S. at 257. The answer in this case winds up being the state, not the attorney general and certainly not the judiciary. Likewise, irrespective of the empirically strong presence of actual suffering in Gonzales v. Raich, the constitutional issue is simply one of interstate commerce powers.

The legal challenge that the Glucksberg majority considered itself confronting was whether assisted suicide deserved to be protected as a matter of substantive due process—a category that would presumably invite rights-based analysis, as in cases of abortion (Casey), marital privacy (Griswold) and the right to refuse medical treatment (Cruzan). Citing Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) as prescribing that the Due Process Clause protects fundamental liberties that are “rooted in the traditions and conscience of our people”, 291 U.S. at 721, the majority placed significant emphasis on the historical record, citing the lackof tolerance for assisted suicide as the underpinning of the ruling that euthanasia was not protected as a matter of substantive due process. It also seeks to cast its position as a matter of democratic legitimacy, closing out the opinion with the assertion that “[o]ur holding permits this debate to continue, as it should in a democratic society”. Id. at 736. András Sajó and T. Pertz

European Court of Human Rights The substantial presence of bioethical avoidance in these decisions notwithstanding, there are significant examples of courts, including on very special occasions the ECHR, employing a more rights-based approach to difficult decisions, especially on issues of euthanasia.58 The approach of Canada’s Supreme Court in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, sets out a course of moral reasoning and follows it. The majority describes two stages of analysis: “The first is as to the values at stake with respect to the individual. The second is concerned with possible limitations of those values when considered in conformity with

450 fundamental justice”. A proportionality test is at play. But the majority places a particularly strong emphasis on whether allowing euthanasia would respect the “sanctity of life”59 —concluding that active termination of a life does not.60 As a future court would interpret it, “[t]he majority held that liberty interests were engaged because of the existence of a criminal offence and the potential for incarceration but grounded its discussion of the substantive issue of assisted suicide in security of the person and in autonomy rights in the particular context of bodily integrity”.61

Rights-based reasoning animates the separate opinions as well. The dissent filed by Judge McLachlin is equally clear that one of the central issues in the case is whether a ban on euthanasia infringes upon the Charter right to security of the person, “a concept which encompasses the notions of dignity

58 Abortion is the other great example, although many formative judgments tried to avoid the moral part (see Italy, France in the seventies, and lack of constitutional litigation-type conflict on the matter in the UK. 59 This phrase does not appear in the Canadian Charter of Rights and Freedoms. The decision goes even further, reading “sanctity of life” into the Charter. Section 7 of the Charter reads, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The court then declares, “the sanctity of life…is one of the three Charter values protected by s. 7.” The phrase, “sanctity of life”, does not appear anywhere else in the Charter either. No dissent challenges the use of the word. 60 In addition to case law, sources cited include a passage on judicial involvement in euthanasia from an article by Lawrence Tribe, a working paper for the Law Reform Commission on ethics in medicine and law, Blackstone’s Commentaries, histories of criminal law, and the positions of various medical associations, all brought to bear on the question of the balance of fundamental rights. 61 As understood by Justice Lynn Smith in Carter v. Canada (Attorney General), m2012 BCSC 886 [Gloria Taylor case] para. 920. and the right to privacy”. Whether or not the ban is arbitrary and hence a Charter violation is cast as a question about “fundamental justice”. The dissent’s conclusion is not a formalistic one: “it does not accord with the principles of fundamental justice that Sue Rodriguez be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act of killing without true consent”.

The prohibition that was confirmed in Rodriguez was challenged several Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of times in Parliament, to no avail, notwithstanding strong public support for euthanasia.62 Twenty years later, Rodriguez was challenged on a somewhat new ground of a claim of equal protection of the disabled. Although at the moment this is a first instance provincial judgment only and under appeal, it indicates that in the presence of strong public interest in a specific bioethical issue, dealing with ethical issues becomes inevitable, at least where a judge wishes to change the established law. In Carter v. Canada, both parties mobilized ethical considerations. Given that this is the latest example of unabashedly ethical handling of bioethical issues, it is worth 451 quoting at length. Plaintiffs argued “that the ethical position can inform, but not determine, the legal analysis. They submit, however, that in this case the legal resolution should mirror the ethical one. They suggest that there is no societal consensus supporting a principle of the absolute sanctity of human life but that there is a societal consensus supporting the principle of a person’s autonomy over his or her own body”, the ruling states. It continues:

Canada says that whatever one might conclude about the ethical position is irrelevant to the legal questions before the court. It criticizes the plaintiffs’ argument for attempting to raise one ethical view to the status of a principle of fundamental justice. Nevertheless, Canada says that the preservation of human life is a fundamental value in Canadian society and that respect for life transcends individual, religious and diverse cultural values.

Justice Smith allows a place for bioethics:

Actions may be ethical but not legal, and, conversely, may be legal but not ethical. The question in this case, in any event, is not what is ethical or legal, but whether specific provisions of the Criminal

62 “In the online survey of representative national samples, 80 per cent of respondents in Canada and 77 per cent in Britain support allowing a doctor to—at the request of a competent, fully-informed, terminally ill patient—assist the patient in ending his or her life. The level of support for this notion is lower in the United States, at 56 per cent”. http://www.angus-reid.com/polls/45951/canadians-and-britons-would-allow-euthanasia- under-some-conditions/ Code are constitutional. However, because the three realms (ethical, legal and constitutional) tend to converge even though they do not wholly coincide, my view is that the ethics of physician-assisted death are relevant to, although certainly not determinative of, the assessment of the constitutional issues in this case... The legislation has very severe and specific deleterious effects on persons in Gloria Taylor’s situation. It categorically denies autonomy to persons who are suffering while they face death in any event. It also has

András Sajó and T. Pertz deleterious effects on some physician-patient relationships and on European Court of Human Rights the kind of care that some patients receive….In my opinion, the law creates a distinction that is discriminatory. It perpetuates and worsens a disadvantage experienced by persons with disabilities. The dignity of choice should be afforded to Canadians equally, but the law as it stands does not do so with respect to this ultimately personal and fundamental choice.

The case is pending in the British Columbia Court of Appeal. Irrespective of the outcome of the litigation, it offers some important considerations for 452 our analysis. First, it shows the inevitability of the ethical discourse in extreme legal situations involving the possibility of significant change. Second, it indicates that ethical considerations can be used for all positions, and the issue is which value will be held more important. Third, within the ethical conflict, the same fundamental concern may apply to both sides. This is particularly true in the case of dignity, which is attached to all possible positions in the case. As to the judge, she attributes dignity not to one or another actor but to choice, an abstract notion or part of individual autonomy. Fourth, the ethical dimension is triggered by a deliberate mobilization of emotions: plaintiff’s lawyers successfully mobilized the conscience of the judge with references to the vulnerability-related suffering of the “victim” plaintiff, which is tantamount to government inflicted torture. Of course, the success of the mobilization depends to a great extent of the social and legal recognition of the particular difficulties of the disabled as a vulnerable group, which is a constitutionally recognized category of vulnerability.

Turning to the ECHR, in Pretty v. the United Kingdom, no. 2346/02, ECHR 2002, involving a terminally ill patient’s request for assistance in bringing about her death, the Court makes one of its most ethically-oriented evaluations. Its assessment of the applicant’s article 8 claim weighs the principle of personal autonomy against the state’s interest in protecting health and safety. The Court’s statement that, “[i]n an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity”, constitutes a genuine inquiry into right and wrong, rather than a formalistic resolution. § 65. Still, even within Pretty, other claims are dealt with formalistically. The case partly turns on statutory construction: “Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life”. §39. The claim under article 3 (prohibiting torture) was resolved on the grounds of a lack Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of of state action, also essentially a textual interpretation argument: “In the present case, it is beyond dispute that the respondent State has not, itself, inflicted any ill-treatment on the applicant”. § 53. And then, at the end of the analysis as to article 2 and 3, a traditional moral moment, prefacing a finding of no violation with sympathy: “The Court cannot but be sympathetic to the applicant‘s apprehension that without the possibility of ending her life she faces the prospect of a distressing death....Nonetheless...”. §55.

Another area where the Court is, at least formally, confronted with a 453 bioethics dilemma in its undisguised form concerns abortion jurisprudence. The prevailing approach reflects a mix of ethical engagement and formalist resolution, with the ethical component somewhat stronger compared to other bioethics-related decisions. The landmark case is A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010. In that case and its progeny, the Court avows that “Article 8 cannot, accordingly, be interpreted as conferring a right to abortion”. See, e.g., A, B and C v. Ireland [GC], no. 25579/05, §214, ECHR 2010; P. and S. v. Poland, no. 57375/08, § 96, 30 October 2012. However, the Court in A, B and C and in several subsequent cases has in fact found violations of article 8 in restrictions on a woman’s right to terminate her pregnancy.The Court has not declared a right to abortion, but rather has focused on the procedural limitations of sexual health regulatory regimes, though it has recognized certain guarantees as to personal autonomy (e.g. “The Court has previously found, citing with approval the case-law of the former Commission, that the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy”. R.R. v. Poland, no. 27617/04, §181, ECHR 2011). In A, B and C, one of the central grounds for finding a violation was that the relevant domestic statute supposedly permitted abortion in some circumstances, but the hurdles a woman faced in actually enjoying that statutory guarantee were too high for it to be of actual substance. A, B and C, §§258-64.

Rights-based analysis comes into play in this line of cases. In R.R. v. Poland, no. 27617/04, ECHR 2011, the Court even goes so far as to express some moral outrage: “It is a matter of great regret that the applicant was so shabbily treated by the doctors dealing with her case. … the applicant had been humiliated”. She suffered distress because of the painful uncertainty concerning the health of the foetus, an uncertainty caused by officials acting illegally, resulting in a delay that forced the woman to give birth to a malformed child. That said, the case also rests heavily on interpretation of a 1993 statute, which the government did not properly follow. See, e.g., § 156, §194. On the whole, the abortion cases are not about the right to an

András Sajó and T. Pertz abortion, but rather about the right to a sound procedural framework, and European Court of Human Rights enforcement machinery protecting individuals’ rights already recognized in the democratic process at the national level, which the Court is diligent in enforcing. A.B.C. at §245, R. R. at 184. The case was never argued in terms of the right of a woman not to have disabled child, nor in terms of the duty of the woman to deliver a disabled baby on grounds of the foetus’s right to life and dignity. The humiliation is relevant for the finding of inhuman treatment in regard to the anamnesis, but does not call for extending the right of privacy into a right of self-determination concerning the malformed foetus

454 (a reproductive right).

Why bioethical considerations are avoided

Judicial deference

When judges are confronted with issues of legal interpretation, and in particular, when they have to pass judgment on the validity of a decree, and the constitutionality of a law, the standard attitude is one of deference to the legislator. In matters of interpretation, the judge will try to determine the meaning in conformity with the legislator’s intent. When it comes to the judicial review of legal enactments, the point of departure is to respect the legislative will. The judicial branch respects the other branches of power, as its primary role is the application of laws. Judicial law-making is contrary to the basic assumptions of separation of powers, where primary law-making is the privilege of the legislature. Deference includes respect for (acceptance of) legislative and administrative fact-finding, choices,63 and even the value judgments of the legislator.

63 Once again, this is not a matter of ECHR exceptionalism. For instance, one court endorsed the interpretation that the Dickey-Wicker Amendment makes PGD ineligible for federal funding, Sherley v. Sebelius, 776 F. Supp. 2d 1, 25 n. 3 (D.D.C. 2011), aff’d 689 F.3d 776, 785 (D.C. Cir. 2012), summarily adopting the administrative agency’s interpretation that the procedure posed a statutorily impermissible risk to the embryo. In the U.S., judicial involvement with PGD is limited, with decisions only marginally touching on the acceptability of the practice itself. In view of this judicial deferentialism, the reluctance of the judiciary to review bioethically relevant legal enactments is not surprising. We will discuss the judicial avoidance of the moral/ethical dimension of bioregulation as part of this general deferentialism. First we consider the special reasons for ECHR deferentialism, followed by a discussion of deferentialism in other apex courts. Here we will present the handling of self-regulation, and also the issue of the dubious legitimacy of intensive moral judicial review, which forces judges not to engage in ethically motivated review that might lead to the challenging of existing legislation or regulation. Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of

Deferentialism at the ECHR as an international court

As mentioned above, the legal equivalents of fundamental bioethics principles are recognized by the Court and have been applied consistently to disputes unrelated to bioethics. The Court is enabled conceptually to take substantive positions on matters of bioethics. But this does not occur, thanks to the Court’s application of a specific doctrine of deferentialism. 455 The ECHR, as an international court, seems to perceive its role to be subsidiary in the protection of human rights, with the primary protectors being the member states and their domestic authorities. The Court has consistently emphasized that national authorities are better placed to understand and remedy domestic violations of human rights. In consequence, states are granted a margin of appreciation in the protection of human rights in the absence of a European consensus, which seems to be the case in many bioethics issues. For this reason deferentialism is particularly strong, as the Court feels a very strong division within Europe (though this is to a great extent a matter of internal divisions within the states, among others due to the influence of religious positions, Catholic in particular).

Such deferentialism was demonstrated in the application of the above identified and legally recognized concepts of bioethics (dignity, self- determination [at least in the sense of informed consent], respect and protection of life and health). The most obvious explanation of such deferentialism is related to the self-understanding of the Court, which sees itself as a subsidiary instrument of human rights protection. The margin of appreciation doctrine and the prevailing practice around it indicates that the Court believes it does not have the authority —and therefore the legitimacy— to generate European consensus in matters where morally sensitive issues create divisions and particularism.

Deferentialism is reinforced by the Court’s unwillingness and particularly strong impairment in, bordering on inability to, engage in fact-finding. As an international court conducting appellate review, it handles scientific evidence with utmost care. In the absence of scientific certainty (even if the uncertainty is due to the rapid development of science and its applications), it will apply its lack of consensus doctrine and refrain from prescriptive interventionism, leaving the states to decide contested matters of bioethics.

Judicial deferentialism

András Sajó and T. Pertz is common in APEX Courts European Court of Human Rights

It would be unfair to consider the ECHR a court particularly inclined to disregard the ethical dimension of bioethical issues, i.e. as a court of ultimate moral deafness. We have seen that there are very similar attitudes present on exactly the same situations in the judiciaries of the member states (see, e.g., the House of Lords in Pretty). Even where European apex courts may be ethically engaged, such engagement is often reviewed and replaced by more proceduralistic and formalistic approaches (see the approach of the German Constitutional Court in matters of abortion.) 456

In the United States, Barbara Evans has identified a “perceptible turning away from the discussion of individual rights in cases that call on courts to review bioethically problematic legislation”; American courts have increasingly passed on questions of substantive due process and rights- based inquiry in favor of narrower approaches.64 The shift towards a conservative understanding of rights —that rights are embedded in past social practices, exemplified by law— that apparently limits the recognition of new rights or the applicability of certain rights in new biomedical conditions, is arguably related to a value shift within the judiciary, which at least to some is intended to reflect emerging cultural trends in society.

What the ECHR does is in many regards common with other apex courts, and has to be understood in that context. Part of the bioethics avoidance has nothing to do with the specific sensitivity and scientific complexity that characterizes the field. It follows from generally accepted doctrinal considerations which reflect deference that characterizes some of the biology-related cases. That said, a little bit of intellectual complacency seems to be present here. It is quite comfortable to refer to scientific complexity in all biology related cases, which would allow reliance on, and deference to, scientific expertise. But deference is well grounded in constitutional theory, including separation of powers.

64 Barbara Evans, Judicial Scrutiny of Legislative Action that Presents Bioethical Dilemmas, 16 Va. J. Soc. Pol’y & L. 179 (2008). In Sherley v. Sebelius (ruling on the legal permissibility of federal government funding of stem cell research), both trial and appellate courts saw the case as a question of administrative deference (with the considerable deference described in Udall v. Tallman, 380 U.S. 1, 16-17 (1965)). Of most direct ethical significance, the courts had to decide whether the administrative agency’s actions were consistent with the Executive Order to fund stem cell research that is “ethically responsible, scientifically worthy and conducted in accordance with applicable law”. Executive Order 13505, 74 Fed. Reg. at

18,578. Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of

The question essentially became, was the administrative agency (the NIH) appropriately ethical? The crux of the district court’s evaluation was as follows: “The Guidelines’ embryo-source and informed consent restrictions —alongside its peer-review process— are, of course, the NIH’s means of channeling federal funds to ‘responsible’ and ‘scientifically worthy’ embryonic stem cell research projects”. 776 F. Supp. 2d at 24. With a final nod to logical consistency, the district court rendered the decision: “The NIH reasonably interpreted the Executive Order to demand new guidelines that 457 would govern the funding of responsible and scientifically worthy embryonic stem cell research projects, and had it adopted the views of the commenters who categorically objected to such funding and banned it altogether, its rule would have violated the law”. 776 F. Supp. 2d at 22. The bioethics perspective, formulated by the profession, dictated a ban on substantive bioethics grounds. The funding of the presumptively unethical research goes through not on judicial revision of the bioethics position but thanks to the happenstance of formalism. An earlier court order was endorsed in an interim measure.

The substantive moral position on the embryo was left to the legislature (statutory text) and the executive (statutory construction) and never challenged on moral grounds. The avoidance of the underlying issue of the acceptability of embryonic stem cell research is thorough, though to enhance the credibility of its interpretation and show it within the bounds of acceptable moral judgment, the decision uses the Bush and Obama administrations as ethical bookends, noting that “even President Bush permitted federal funding of embryonic stem cell research. ...finding necessarily that some forms of embryonic stem cell research are ethically responsible and scientifically worthy”. Id., at 23. The decision is, as a matter of law, ethics by endorsement.

It is a well-established doctrine of judicial interpretation in many countries that where a case can be resolved on grounds other than constitutional ones, that other approach is to be taken. This general judicial attitude, elevated into legal maxim, offers a jurisprudential reason for the avoidance of moral issues in bioethical cases. It is replaced with a proceduralistic, formalistic review. Apex courts are reluctant to decide cases on grounds of substantive constitutional and human rights, especially when doing so would contravene legislative choices. But in order to provide protection to those with legitimate claims, rights courts insist on what law can contribute to problem, namely, the insistence that concerned individuals be treated

András Sajó and T. Pertz fairly and in accordance with due process. Hence the interest in procedure. European Court of Human Rights

Handling socially contested and scientifically complex activities in a procedural way seems to be a trend that spans nations, as legislatures or other regulators, including the profession that has regulatory power, is unable to handle issues substantively and definitively. Apex courts follow the same strategy. This is understandable, as courts have only the capacity to evaluate procedure: was it fair?, was it legal? But there is nothing new in the proceduralization of the law. In addition, such proceduralization is now 458 a hallmark of bioethics. For reasons of social divisions and lack of scientific certainty (foreseeability) legislatures refrain from making substantive decisions,65 and the judiciary feels that it cannot fill the vacuum, and even less formally challenge the status quo; hence the judiciary will engage in a non-substantive control.

Here we discuss two such approaches, namely the review of the competence of legislation (often a federalism issue) and the review of self-regulation or other delegated regulation. Both are crucial for bioethically relevant practices, as most of these activities are based on delegated legislation that authorizes professional decision-making.

Review of regulatory competence

The typical judicial concern is, first and often foremost, standing or legislative competence. This is what judges are primarily trained to grasp. Both reviews may be based on ethical considerations but without creating rights, at least not directly.

65 The moral panic that was generated by the cloning of Dolly resulted in substantive international regulation, which over the time seems to be excessively substantive as it hampers unforeseen and promising research and medical intervention. It is subject now to considerably varying interpretation (therapeutical vs. research use of embryo etc,) and it is respected only in the breach. The UN Declaration on Human Cloning (2005) was non- binding, never developed into a convention and had nearly as many countries voting against it or abstaining as voted in favor. In Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457, the Supreme Court of Canada considered the legality of restrictions on the altering, manipulation and treatment of human reproductive material.66 The court considered the role of morality in relation to a law on IVF, only to conclude unanimously in what was otherwise a three-way split (4-4-1) that the central question in the case was not about ethics but federalism. The role of morality in the federalism debate allows the court to make a sweeping moral judgment that other courts seldom have made: Ethical avoidance and moral “Assisted human reproduction was not then, nor is it now, an evil needing the European Court of Human Rights ... moments: bioethics and the decisions of to be suppressed”, §251. But the consequence of the ethical consideration is purely one of federalism (who has the power to regulate).67

Self regulation

The judicial handling of bioethics fits into the broader problem of judicial control over self-regulation. “Self-regulation” occurs when the state refrains from interfering in a profession’s or industry’s determination of its rules 459 of practice68; “co-regulation”, or “regulated self-regulation” is principally when the state delegates part of its regulatory functions to a self-regulatory authority 69; finally, “private regulation” is used in the literature to cover all types of regulatory efforts where private parties are involved.70 The judicial review of bioethics self-regulation through national and local (hospital level) bioethics committees fits into the paradigm of self-regulation. Of course, in bioethics, external expertise is remarkably present.

Proponents of self-regulation and its variants tout the cost savings, speed, efficiency, flexibility, and up-to-date expertise in the face of information disparities.71 One can cite the British approach to abortion, which was considered a matter for the medical profession and not a rights issue.

66 Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers. (per McLaughlin) The case turns on whether the dominant purpose of the statute is to “prohibit reprehensible conduct” —a power available to the federal legislature— or to “regulate health”, the purview of the provincial legislature, §23. 67 See further examples of competence review in the context of delegated regulation, below. 68 In the taxonomy we rely on Gabor Benke’s doctoral dissertation (CEU), manuscript with the authors. See e.g. Wolfgang Schulz and Thorsten Held, “Regulated Self-Regulation as a Form of Modern Government” (Hans-Bredow-Institut für Medienforschung an der Universitat Hamburg, n.d.). 69 See e.g., id. (Schulz and Held); see also Linda Senden, “SOFT LAW, SELF-REGULATION AND CO-REGULATION IN EUROPEAN LAW: Where Do They Meet?”, Electronic Journal of Comparative Law 9, no. January (2005): 1-27. 70 See e.g. Fabrizio Cafaggi, “Private Regulation in European Private Law” (2009). 71 See e.g. Peter Cane, “Self Regulation and Judicial Review”, Civil Justice Quarterly 6 (1987): 324-347. In consequence, the related social conflicts were diminished as compared to the United States, where the issue became a matter of divisive and even irreconcilable rights. (A similar attempt to keep the bioethics dilemma within the professional community was observable in the approach to certain forms of euthanasia, which, however, remains hard to sustain given the potential for criminal liability and resulting chilling uncertainty.) However, reliance on professional values might be insufficient. As to the standard medical oath, it does not reflect many modern technological András Sajó and T. Pertz

European Court of Human Rights possibilities, and does not give sufficient guidance to biological research which is not fully distinguishable from medical research and medical applications. Bernard Lo lists several shortcomings of the professional codes and oath: “First, they are unilateral declarations by groups of physicians, without any input from patients or the public. Codes of ethics ... do not acknowledge that society has granted the medical profession autonomy to set standards for training and certification and, therefore, in exchange, has the right to insist on certain expectations. Second, ... the Hippocratic tradition is highly paternalistic”.72 460 Self-regulation, be it by researchers, medical professionals, the healthcare industry or other caregivers, is as complex in itself as the activities of these parties. Self-regulation in these fields has several important differences from that in other self-regulating industries (e.g. in industries such as telecommunications, media or advertising). Not only are matters of life and health central, but uncertainty and risk are very high. Government is much more involved, partly because these activities directly concern public finances; moreover, state action is prevalent, as many of the professional activities are carried out within public institutions, or at least with public funding, and the professionals are very often civil servants of a sort. The high stakes would make consumer representation especially important. The professional issues are of major societal relevance, bringing into the process ideological and political groups as well as those with financial interests. The risks of capture are high, especially where the affected groups and individuals are hard to organize. They are very heterogeneous, with fluctuating memberships (e.g. potential in vitro fertilization patients as opposed to the rather small number of infertile women who wish to undergo the procedure).

The impact on third parties raises constitutional and human rights issues, and also concerns about democratic representation. Rules of the medical profession affect patients and pharmaceutical companies, rules of the

72 Bernard Lo, Resolving Ethical Dilemmas: A Guide For Clinicians 4 (2009). advertising industry affect advertisers and the general public, etc. Because of this spillover effect, there is increasing need to supervise such self- regulation or delegated self-regulation. Supervision means administrative oversight, but where there is administrative oversight, in modern rule-of- law societies there ought to be some level of judicial oversight as well. It is clear that all forms of self-regulation aim to avoid public interference into what is considered to be the industry’s private affairs. Many professions accept self-regulation in the hope of avoiding public interference, transparency and the application of constitutional considerations. This causes important Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of problems in bioethically sensitive areas.

One of the fundamental problems of the self-regulation is the one expressed in the context of free speech by Tambini:

[Self-regulation] increasingly regulate[s] not only the voluntarily delegated content of their funding members, but the speech (...) of the broader population of users. Speech could be suppressed without

the protections that the legal system grants, had the limitation 461 originated in the authorities. Were the activities of industry bodies to take over these public functions, it is argued, such self-regulation would in fact constitute a direct threat to speech rights as it instates a so-called ‘privatised censorship’.73

This triggers legislative and/or judicial interventionism on grounds of constitutional and human rights values. In the logic of “positive obligations”, if the state has a duty to protect life than it has to provide even criminal law protection in all areas (a logic pursued by the German Constitutional Court in its first abortion judgment, 39 BVerfGE 1 (1975)). Bioethical self-regulatory (and even legislative) decisions often affect fundamental rights of the participants of the process (e.g. researchers, or a doctor whose freedom of conscience is affected) and third parties (the right of self-determination of the patient, the right of parents to have healthy offspring or at least of children to be born free from undue impediments to their health).

But the high-stakes characteristics of bioethics (i.e. the fact that these decisions affect life and death or health or fundamental human traits, often of an unspecified circle of people) are not the focal point of judicial concern. From a judicial perspective, there is little specificity in most bioethically charged cases. Regulation and self-regulation in this area represent the same problems of judicial oversight of administrative processes that characterizes

73 Damian Tambini, Danilo Leonardi, and Chris Marsden, The Privatisation of Censorship: Self Regulation and Freedom of Expression Book Section 411 (2011). the approach to administrative review and judicial oversight of self- regulation. In many regards, irrespective of the very different nature of the risks assumed, there is limited difference between bioethically relevant self-regulation of researchers or medical professionals, and that of accountants or advertisers, even if profits might be more present in some professions than in others, or at least the professional self-interest might be of a different nature. The self-interested group is in the position to develop norms that serve members’ self-interest.74 This is the problem of the corporatist András Sajó and T. Pertz

European Court of Human Rights bias. Moreover, while professional knowledge grants a certain legitimacy to such rulemaking, it is not the same legitimacy as that conferred through democratic institutions (or at least the standard objections to delegated rulemaking apply).We emphasize the normality of the shortcomings of self- regulation in the context of bioregulation, shortcomings which beg for judicial review.

In many areas of bioethics law,75 bioethically relevant judicial positions emerge in litigation that concerns professional activities or rule-making

462 regarding professional activities, and in particular regarding self-regulation by the profession. An example of the first scenario would be a challenge to a medical decision on treatment. In this regard, the ECHR’s position is telling: “The Court stresses that it is not its function to question doctors’ clinical judgment (R.R. v. Poland, no. 27617/04, §202, ECHR 2011) (internal citation omitted). In matters of professional rulemaking, an example would be an administrative rule regarding the composition of the bioethics council by groups denied research grants, or regarding the allocation of research grants to researchers or even patients, while self-regulation may be challenged on grounds that a research permit is denied.

The judiciary will be confronted with how to handle bioethically relevant scientific information. It is no surprise that academic committees are granted broad deference, and the experts upon whom parties rely potentially include bioethicists (though they cannot easily be classified as experts in matters of fact).76 The typical legal debate will concern the admissibility of alternative expertise, especially in continental systems, while other systems

74 Ogus, “Rethinking Self-Regulation”, p. 98. 75 An alternative path is where liability issues emerge ex post, as in the case of criminal or torts liability for activities which were unregulated or arguably ethically acceptable ex ante (see Vo v. France [GC], no. 53924/00, ECHR 2004VIII), or where a bioethical consideration is used as a defense (as in a mercy killing). 76 The use of bioethicists as expert witnesses indicates the increased unwillingness of judges to make morally charged judgments where the law is not clear or where rights are used as ultimate claims. The article will not discuss the process that seems to have led judges to avoid morally charged rights dilemma, but notwithstanding the general disposition to avoid problems that do not fit comfortably in well established legal concepts, there seems to be a process of learning to avoid bioethical claims as moral/rights based claims. allow for cross-examination and Daubert-style hearings (where judges evaluate whether expert testimony is based on sound and relevant science) to test the validity of expert opinions. While trial judges face burdens of determining what “kind” of science is admissible, and how to determine what “good” (relevant) science is, decisions that require rigorous questioning of scientific method and results are less prevalent at the appellate level.

The disregard of constitutional considerations would be expected to call for Ethical avoidance and moral the European Court of Human Rights ... a judicial intervention. Such cases represent a small but important part of moments: bioethics and the decisions of bioethics-related judicial decisions. According to our thesis, the judiciary’s acceptance of that role is exceptional. Those of the Dworkinian view might see courts as abandoning their duty to apply constitutional standards in private relations, even though these private relations often have a public dimension. This public dimension would in principle trigger constitutional scrutiny. This is trivial in continental constitutional doctrines of third party effect, or in view of the doctrine of the “positive obligations of the State” that is very often relied upon by the ECHR. In this regard, self-regulation 463 was understood to be subject to ECHR rights-based review.77 Even under the doctrine of state action in the United States, the same expectation is advanced, see, e.g. Marsh v. Alabama, 326 U.S. 501 (1946).

The relation of the judiciary to self-regulation is ambiguous. Given the high level of scientific expertise, one would expect deference. This is not necessarily so, at least in the areas where lawyers feel comfortable, namely procedure. Courts apply legal concepts, and this results in tensions with the expert community. As Barbara Evans points out, the Supreme Court’s decision in Washington v. Glucksberg turned in large part on the Court’s distrust of self-regulation: “[I]t turns out that what is couched as a limited right to ‘physician-assisted suicide’ is likely, in effect, a much broader license, which could prove extremely difficult to police and contain”. Washington v. Glucksberg, 521 U.S. 702, 733 (1997). An awareness of the dangers of self- regulation animates the ECHR’s decision in Evans as well. Clinics would be required to explain the consent provision to donors. Id., §88. The Court cites the report and its aftermath as legislative history, to argue that apprehension over granting too much power to medical professionals helped justify the decision of the legislature as being within the margin of appreciation.

77 Barthold v. Germany, 25 March 1985, Series A no. 90 Application number: 8734/1979, and Casado Coca v. Spain, 24 February 1994, Series A no. 285A. Legitimacy in pluralistic societies

There is a fundamental difficulty for an apex court in confronting a choice between right and wrong on socially and culturally contested matters in the absence of genuine consensus. Courts are not expected, and only rarely capable of, imposing their concept of the good on a divided society. Such a move would hamper the democratic process (which allows citizens to make their choices in matters of bioethics), although a moral reading of the law András Sajó and T. Pertz

European Court of Human Rights would suggest that the courts should side with those whose suffering is at stake. The difficulty is aggravated by uncertainty in certain areas concerning risks associated with the decision (e.g. in matters of treatment, including genetic modification). Risk avoidance and responsibility avoidance are important considerations.

Judges are afraid of scientific reasoning which they are unable to follow, but this is not the primary reason to distance the judgments from scientific and science-related ethical consideration. Judgments simply have to speak 464 the language of law; this is the source of their legitimacy. Apex courts try to translate the emerging issues, which are presented first in the language of bioethics, into existing legal categories. Even at the risk of being irrelevant, courts will offer partial arrangements for the dilemmas that follow from the logic of existing legal (jurisprudential) structures. Following the constitutional doctrine of deference to the democratic process,78 courts as a rule do not feel encouraged or called to decide controversial matters where the society is not ready to do so through the democratic process, as is the case with many bioethical matters, where decisions are left to the scientific community. Apex courts will try to avoid fundamentally contested bioethical issues, a reasonable tactic. Professional self-regulation is legitimate given the nature of knowledge generation at stake and given the advantages of a limited circle of decision-makers (the professions) involved.

Closed professional decision-making has consequences on third parties without giving them a voice, in that, in the absence of external control, it can be carried away and distorted by vested and monopolistic interests (e.g. in terms of academic carrier considerations, or research and application

78 As Mark Tushnet writes regarding the “new understanding in constitutional law after the decay of classical theory”, “With respect to second-generation rights [social and economic issues as opposed to personal and civil rights], the critical analysis of the distinction between public and private action —the revaluation and expansion of ‘exceptions’ to the common-law rules— was accepted as the premise for judicial deference to legislative judgment. The judiciary essentially abandoned the field to legislatures because social and economic issues ultimately rested on policy judgments not amenable to resolution pursuant to anything resembling legal reasoning”. Mark Tushnet, Weak Courts, Strong Rights 185 (2009). agenda dictated by financial interests of producers). Culturally it is difficult to sustain professional self-regulation in the age of a rights revolution where a growing number of fundamental human rights, including equality79 claim applicability in all spheres of social life.

Moreover, like other self-regulating social subsystems, bioethics regulation remains open to some degree of constitutionalization. In other words, fundamental rights claims may have a supervisory or controlling impact.

The issue is this: what is the proper level of constitutional “penetration” Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of into bioregulation? Such constitutional/human rights interference or penetration is facilitated (as far as the courts are concerned) by the increasingly popular doctrine of the horizontal effect of the constitution (and equivalent doctrines like third party effect, the state action doctrine, etc.). On the other hand, it is part of the accepted repertoire of constitutional courts that they fill the gaps of the democratic decision-making process, where the process itself is flawed, or where required by rights protection, in particular where insular minorities do not get protection in the democratic process. 465

Is this the case in bioethics matters? In principle, and in a growing number of countries, fundamental issues seem to be determined at the level of legislation so the democratic legitimacy issue seems to be solved. In reality, many crucial decisions are delegated to unelected and professional bodies (see the problem of self-regulation), with all the legitimacy concerns of delegated legislation. Most interestingly, the actual decision-making by the self-selected professional bodies raises issues of representativeness, both within the represented professional community, and perhaps more importantly because other stakeholders and affected people are not participating in most of these processes, among others on grounds of lack of competence. The representation of stakeholders, like in other areas (e.g. in media regulation in countries following the German model) is replaced by institutional representation on the assumption that these institutional representatives will represent society or “relevant” social groups. It is also assumed that through the representation of the select institutions, special moral “knowledge” is built into the bioethical process. It is for this reason that in some countries, representatives of religious organizations participate in bioethics committees or on the board of national research councils.80

79 Equality as a legal, social and moral claim has obvious bioethical implications, as in claims of equal access to medical therapies, even at clinical trial stages. See Seema Shah and Patricia Zettler, From a Constitutional Right to a Policy of Exceptions: Abigail Alliance and the Future of Access to Experimental Therapy, 10 Yale J. Health Pol’y L. & Ethics 137 (2010). 80 E.g. the theologians on the Deutscher Ethikrat or Greece’s National Bioethics Commission. In this context, the role of a court might be to assure that the decision- making body is sufficiently “representative”.81

Conclusion

It is not a new observation that many courts have favored formalistic routes for resolution and have shied away from making rights-based arguments to resolve cases that implicate questions of bioethics, especially where the András Sajó and T. Pertz

European Court of Human Rights fundamental rights claims require fundamental moral choices and choices among moral theories. But this phenomenon is perhaps more surprising in a court like the ECHR, which is dedicated by its very nature to the defense of rights. We stress that avoidance of ethics is not unethical evasion —in no case mentioned in this article did the ECHR act in disregard of law or its obligations under the European Convention on Human Rights. Sometimes a solution based on ethical reasoning is either not possible or not optimal within the bounds of the law, but sometimes courts have more of a choice as to their approach than the majority opinion would suggest. 466

It remains contested to what extent the extremely complex, uncertainty- ridden bioethical issues can be fitted into democratic decision-making (see Kuran and Sunstein’s take on the distorted risk tolerance in regulation, driven by irrationality generated by accidents transformed by sensational journalism into fear and social panic).82 But courts often shy away from rationality analysis; irrationality remains the sovereign privilege of people and their elected representatives.

It is axiomatic that medicine changes faster than law. IVF is today’s news and yesterday’s law. Most cases, especially those decided (or, better said, left undecided) in the ECHR indicate that apex courts tend to deliberately avoid moral consideration, and favor ethical positions of the status quo (without revising them in light of bioethics). Such deliberate avoidance is dictated to some extent by the socio-cultural, and foremost scientific complexity of the issues at stake. Niklas Luhmann has famously argued that the role of law is to reduce the complexities of the world. The reduction in bioethics judgments consists in allowing the bioethics community to take the lead, and not to complicate issues with the radical introduction of fundamental rights into that equation. Public interest considerations,

81 The model is open to criticism of selection bias and corporativism, but the present paper is concerned more with describing courts’ approaches rather than evaluating their merits. 82 Timur Kuran and Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683 (1999). typically a language of fear masked as precaution, will prevail. Courts limit themselves, at least in most cases, to guaranteeing a minimum of procedural fairness in the handling of humans in the application of measures affecting the body.

However, such containment of the moral and rights-based perspective is not always successful. Courts, surprisingly, and against all odds, do enter into rights discourse, and may consider those rights as a matter of moral choice or as one where one or another ethical position will be applicable. Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of Roe v. Wade and Lawrence v. Texas remain the best examples of pushing bitter social conflicts to judicial consideration. The lack of a strong position by the political branches creates an opportunity, even an invitation, to find some kind of new solution by judicial invention. At this point, judges rely on the moral precepts of the constitutional system, first of all as defined in existing precedents and other legally relevant facts. In these exceptional circumstances, like in other, comparably pressuring moments, courts do what is legally possible: they transplant existing concepts, rules and principles to a new domain, perhaps only ending existing inconsistencies. The weight 467 given to one or another right or public interest consideration will change, and only in utmost despair will new rights be introduced by judges (see the multiple attempts to develop constitutional privacy rights from the penumbra of existing rights at the times of Griswold and progeny). For example, if there was a concept of privacy or ordered liberty emerging in certain areas of life recognized in law already, this could be extended to new areas. Where in a number of instances specific protection to the disabled was found appropriate, it became possible that the rights of the disabled, as a form of equal protection will be applicable in the context of assisted suicide. Ethical considerations as developed in society and in the bioethics community may become relevant. At very least, where well-articulated social tensions are manifest and recognized, and legislation is paralyzed for political reasons, moral moments may become irresistible.

A moralistic postscript

In some instances, even if they use traditional legal concepts and procedural devices, courts do actually decide bioethics controversies, without making explicit the relevance of the bioethical dimension. Judicial revisions of bioethical arrangements that were elaborated by the professional community and/or codified in law are criticized both for failing to embrace a moral or ethical position and for providing it. The imposition of existing concepts and doctrines (as in the case of the “positive obligation of the state to protect life” (see Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001III)) on a specific bioethics dilemma may be reminiscent of the person with a hammer for whom every problem looks like a nail. Most objections to the methods applied are standard complaints of the anti-judicial review camp (e.g. a lack of democratic legitimacy, imposition of personal preferences, lack of professional competence, lack of social consensus, etc.). The criticism is even harsher where the judges not only introduce their legalistic and rights-based perspectives but come to a solution that energizes critics because of the outcome. This disenchantment with rights-based judicial

András Sajó and T. Pertz activism is part of a broader sentiment in the legal community: in the U.S. European Court of Human Rights in particular, once the Supreme Court moved to endorse rights with non- liberal consequences, the methodologies which were hailed earlier became suspect.83 The unflattering description of this sentiment is, Rights-based judicial activism is right, or at least acceptable, as long as it endorses the rights I favor.

What gives legitimacy —even if limited— to courts to intervene in the democratic or professional process and make related choices? Courts do have a role to protect insular minorities, and justice traditionally consists in 468 the protection of the weak and vulnerable. Suffering patients and those destined for future illness resemble such vulnerable minorities. Their voices are regularly subdued in a democratic process where well-organized industry, professional interests and moral entrepreneurs win outsized influence.

We have seen that apex courts rely on morally or (bio)ethically charged rights to change the dictates of the status quo and of public interest. Their reluctance is well founded, not only for the standard reasons of judicial deference. Or, more precisely, the standard reasons for deference are particularly valid in the bioethics context, given the scientific complexity, high risk, and enormous moral division in society. To conclude, it seems that bioethics, and bioethics-inspired rights, are not for courts.

At this point, however, we have to raise the question that we deliberately avoided asking in this scholarly, descriptive paper. Irrespective of what they actually do most of the time, are apex courts, and human rights courts in particular, not called on to be more morally sensitive? Is it sufficient to be concerned about safeguard measures in the application of policies on life, death and the body that remain beyond substantive control? Is it sufficient to accept, even if without endorsement, the ethical considerations of bio-committees, even if developed in a dialogical process, that applies to patients, and people facing the fate of their offspring or their own life and

83 We do not claim that there are no differences in the rights methodology between the Warren Court and the Roberts Court. suffering, with limited involvement in that process? Must the high priests of rights and constitutionalism fear to tread on the complicated new trails blazed by the biotechnological revolution?

Understanding what apex courts do in face of bioethics dilemmas, or with biopolitics in general, is one thing, and certainly important. But what happens most of the time should not be elevated to the rank of a normative answer, an answer suggesting acquiescence in existing practices, when it comes to the understanding and definition of the moral duties of apex Ethical avoidance and moral the European Court of Human Rights ... moments: bioethics and the decisions of courts. After all, one could argue that, where society and politicians fail to alleviate extreme human suffering originating in remediable human deficiencies, someone has to step in. Or, at least a judge might facilitate or steer the democratic process, listening to the cries and silences of suffering, in order to change an immoral status quo. A judgment that bears the stamp of the authority of the judiciary, the assurance that the judgment comes from an unbiased umpire, can help swing the pendulum. After all, it is not a guarantee in every society with a powerful, independent apex court that the political representation of the status quo genuinely reflects either 469 popular sentiment or is appropriately respectful of rights guaranteed under law, and new facts of social life may remain unreflected, the victim of democratic institutions that do not update themselves as fast as scientific processes.84 We do not argue that it is a moral duty of an apex court to accept all rights claims made against outdated legislation, or in case of regulatory silence. Constitutional or human rights-based settlement of bioethics cases might be an inadequate proxy for legislative solutions, and courts cannot save society the labors of sensitive decision-making, which might be more acceptable in the long run than a solution coming from the judicial elite. But legislation can adopt hard and fast rules that lead to senseless results, especially when it bows to moral panic generated by sensationalism and fear. In such a case, an apex court may, using other principles of law, find a remedy that satisfies both judicial and moral imperatives.

In order to satisfy the moral duty of an apex judge, the judge must be morally informed. This means a personal, and also institutional, confrontation with the actual suffering that is at stake. It means confronting and understanding biological science, as the ruling has the potential to affect human bodies.85 Of course, the moral emotion and the moral intuition that a case generates

84 Who had ever thought that in 2013, sixty per cent of the French medical profession, a bastion of traditionalism, would come to accept active euthanasia on humanitarian grounds. L. Clavreul, Fin de vie, Le Monde, 15.02.2013. 85 Like other professions, especially the medical, lawyers are socialized to minimize the impact of suffering and the compassion that results. The warning is observed: too much raw emotion may undermine the quality and effectiveness of the judgment. cannot be decisive for the judgment. The judge has responsibilities to the law and to society at large. Public interests have to be properly weighed; moreover, there are important ethical and moral considerations behind genuine public interest claims, the health and integrity of others in particular. But without that moral confrontation, there can be no moral honesty in the judicial decision. András Sajó and T. Pertz European Court of Human Rights

470 The unconstitutional status quo

Gabriel Eduardo Mendoza Martelo

President of the Constitutional Court of Colombia

First of all, I want to extend an affectionate greeting to all the colleagues that have been convened by Mexico’s Supreme Court of Justice to this “Summit of Presidents of Constitutional, Regional and Supreme Courts” and who have conferred upon me the honor of taking part in such an important event, at which I intend to approach the subject of “The Unconstitutional Status Quo”. I especially want to greet all those present here.

My presentation can be divided in three parts; the first is limited to making a summary of the constitutional tenets that justify and explain the figure of the unconstitutional status quo; the second one has the intention of explaining certain important aspects of the legal institution being expounded, while the third will identify some of the consequences of the decision.

Constitutional principles of the unconstitutional status quo

The starting point of any decision adopted by the Constitutional Court presupposes, at a minimum, the presence of constitutional tenets giving a basis to the resolution. In the Colombian case concerning the subject matter expounded, the unconstitutional status quo, several provisions have been identified as references.

The first one is article 1, regarding the consecration of what the doctrine has come to call the political formula. This is the Social Rule of Law, supplemented by pluralism, participation and respect for human dignity. Another important 471 content comes from article 2 which identifies, among the State’s essential purposes, that of serving the community, guaranteeing the effectiveness of principles, duties and rights consecrated in the Constitution, ensuring the application of a just order, conferring upon the authorities both the right to protect rights and liberties of the persons residing in Colombia, and the duty of ensuring compliance with the social duties of the State and of private citizens. Constitutional Court of Colombia

Gabriel Eduardo Mendoza Martelo Also a part of the corpus of constitutional standards is the constitutional principle of equality, as stipulated in article 13, especially in paragraphs 2 and 3, the transcription of which is indispensable:

The State will promote conditions to make sure that equality is real and effective and shall adopt measures in favor of discriminated or discriminated groups.

The State shall especially protect those individuals who, by virtue 472 of their financial, physical or mental conditions, find themselves in circumstances of manifest weakness and will punish any and all abuses committed against them.

Article 334 is also a part of the standards that mandate the State to intervene in the Economy for the purpose of improving the population’s standard of living and of ensuring an equitable distribution of opportunities and of the benefit of development, as well as to attain full employment of all human resources and progressively ensure that all people, especially those with the lowest incomes, to have an effective access to basic goods and services.1 Finally, article 336 must be mentioned, which gives priority to social expenditure in National plans and budgets and in the plans and budgets of territory subdivisions

The listing of constitutional mandates quoted allows to assert that the Colombian Constitutional Court can refer to standards allowing it to adopt decisions such as the ones to be expounded hereafter. Suffice it to recall certain aspects of content that the doctrine has identified in the Social Rule of Law clause. García Pelayo has indicated that the basic values of the liberal democratic State are to be stressed in the context of the Social Rule of Law, “giving them a basis and a material content and starting out from

1 This article of the Constitution has been has been recently reformed, by adding to it the tenet of fiscal sustainability which, at the time decisions were made on the unconstitutional status quo, was not a part of it. the given that an individual and society are not isolated and mutually contradictory categories, but are rather two terms that imply each other reciprocally, so as to make one impossible without the other”;2 in a similar sense, Elías Díaz has identified the State as one that intervenes and grants services which “… are increasingly in demand, with better quality and for broader social sectors …”.3

Another significant given of any decision issued by the Constitutional Court The unconstitutional status quo is the assumption that the Constitution is the supreme rule; without this stipulation, there is no basis for the solutions adopted by the High Constitutional Justice. In the case of Colombia, this prevalence of the Constitution in the standard hierarchy is contemplated by article 4, which states that “the Constitution is the standard of standards”. This mandate demands as guarantee a guardian in charge of ensuring its effectiveness, and the Constitutional Court is such a guarantor.

473 Comprehension and materialization of constitutional provisions, as Cossío Díaz accurately states, is not achieved if the constitutional jurisprudence is not taken into account. It is through the interpretation of the Constitutional Justice that the mandates of the Constitution attain the measure of concrete orders, the compliance with which is mandatory for all public powers, not because of the authority of the Constitutional Court, but by virtue of the authority of the Constitution itself.

Concerning the subject matter hereof, the various contents that have been succinctly listed were read by the Court so that the only way to achieve the materialization of the rights of vulnerable groups was an unavoidable appeal to an unconstitutional status quo, something we shall see in some detail as applied to a specific case of the reality of Colombia.

The unconstitutional status quo

We shall now expound and offer a characterization of the constitutional figure under analysis, so as to thereafter identify certain aspects ofits applicability in the concrete case of forced displacement in Colombia.

2 García Pelayo M., Las Transformaciones del Estado Contemporáneo. Ed. Alianza Editorial, Madrid, reimp. 1994, p. 26. 3 Díaz E., “Estado de Derecho Legitimidad Democrática” in Estado Justicia, Derechos; Díaz E. and Colomer J. (eds), Alianza Editorial, Madrid, 2002, p. 92. Concept and general characterization

The “unconstitutional status quo” is a legal institution created by jurisprudence, which has been sought by the Colombian Constitutional Court for the purpose of seeking to remedy situations of fundamental rights violations affecting a broad group of people, whenever the origin of these violations is of a structural nature and overcoming it necessarily entails the joint participation of various authorities. Constitutional Court of Colombia Gabriel Eduardo Mendoza Martelo The formal declaration of an unconstitutional status quo has been applied by the Court in the realm of concrete control of constitutionality within the tutelage process, allowing the Court to adopt decisions that protect not just those who seek tutelage in order to protect their rights, but also all people placed under the same situation, even if they have not requested an action of tutelage.

The concept of unconstitutional status quo has evolved jurisprudentially 474 since 1997, when the Constitutional Court declared it for the first tie. In the most recent decisions concerning this, the Court has maintained that an unconstitutional status quo is present when “(1) there is repeated violation of the fundamental rights of many persons —who may then request an action of tutelage for the purpose of obtaining a defense of their rights and thus fulfill legal requirements— and (2) whenever the cause of such violations is the responsibility not only of the authority being accused thereof, but lies in structural factors”.4

Among the factors the Court appraises for the purpose of defining if there is an unconstitutional status quo, the following are noteworthy: (i) massive and general violation of several constitutional rights, affecting a significant number of persons; (ii) a continued omission on the part of authorities in complying with their obligations to guarantee said rights; (iii) the adoption of unconstitutional practices, such as the incorporation of the tutelage action as part of the procedure to guarantee the affected right(s); (iv) failing to issue the legislative, administrative or budgetary measures needed to prevent the violation of said rights; (v) existence of a social problem the solution of which demands intervention from several entities, requires the adoption of a complex and coordinated set of actions and demands a level of resources entailing an important additional budgetary effort; (vi) if requesting an action of tutelage for the purpose of obtaining the protection

4 SU-090 de 2000, MP: Eduardo Cifuentes Muñoz (estado de cosas inconstitucional por la omisión en el pago de pensiones en el Departamento del Chocó) [unconstitutional status quo because of non-payment of pensions in the Department of Chocó]. of their rights by all every person affected would result in a greater legal congestion.

Taking the above elements into consideration, the Court has declared on several occasions the existence of an unconstitutional status quo. Sentence SU-559 from 1997 represents the first time it did so, when two municipalities failed to affiliate the teachers working for them before the National Fund for Teachers’ Social Benefits, even though said teachers were being withheld

monies for the purpose of funding pensions and social benefits as provided The unconstitutional status quo by law. Sentence T-153 of 1998 was issued in connection with the situation of continued violation of the rights of unions and indicted individuals held in various jails inside the country; in Sentences T-606 and 607 of 1998, due to the lack of a health social security system for unions and inmates; in rulings T-525 of 1999 and SU-090 of 2000, in the case of long-term habitual late payment of pensions, first in the department of Bolívar and then in the department of Chocó. Through sentence T-590 of 1998, this legal figure was referred to regarding omissions in the protection of the lives of those defending human rights; in Sentence SU-250 of 1998, in the omission to 475 summon to a merit contest for the appointment of notaries. More recently, this kind of declaration was insisted on due to the permanent violation of the rights of those who successfully demonstrated their merits for their appointment as notaries.

Once an unconstitutional status quo has been ascertained, the Court has extended the effects of tutelage to order remedies that have a material and temporary scope according to the magnitude of the violation and to protect, regarding the equality principle, the rights of those who are in a situation similar to the one given rise to the declaration of unconstitutional status, regardless of whether they actively sought a tutelage action. Thus, taking into consideration the duty of authorities to “protect all persons residing in Colombia regarding their lives, honor, goods, beliefs and all rights and liberties, and for the purpose of ensuring compliance with the social duties of the State and of private individuals” (Article 2, PC), as well as the duties of public power branches “to collaborate harmoniously with every other State entity for ensuring compliance of their obligations” (article 113 of the P.C.), the Court has declared the existence of a status quo that is contrary to the Constitution in order for the authorities to adopt, within the scope of their competences, all corrective actions leading to the overcoming of such status.

Among the orders adopted, noteworthy are those that mandate: (i) the design and implementation of policies, plans and programs that adequately guarantee the fundamental rights, the effective enjoyment of which depends upon the overcoming of the unconstitutional status quo; (ii) an appropriation of the resources needed to guarantee the effectiveness of such rights; (iii) the modification of practices, organization and procedure failings that result in violations of the Constitution; (iv) the reformation of the legal framework whose failures have contributed to an unconstitutional status quo; and (v) the execution of all administrative, budgetary and contractual filings that may be indispensable for overcoming the violation of rights.

Constitutional Court of Colombia In the past few years, the Constitutional Court has declared an unconstitutional Gabriel Eduardo Mendoza Martelo status quo for the purpose of facing the crisis of the General Social Health Security System and the situation of forced displacement in Colombia, as it will be explained hereinafter.

The scope of sentence T-025 of 2004 concerning the problem of the protection of rights of the population that has been the victim of internal forced displacement 476 in Colombia

Our country has faced a serious problem of internal forced displacement due, in great measure, to the phenomenon of violence that has been the scourge of the country for several decades and which can be qualified as structural, with multiple and complex causes and manifestations.

The displacement, whose current dynamics began in the eighties, affects great masses of population, most of them women who are heads of family, children and senior citizens, who have been forced to abruptly abandon their places of residence and their economic activities to migrate to other places within the country’s borders, in order to escape the violence and the systematic violation of human rights; thereafter, they remain exposed to a much greater vulnerability, something which implies a serious, massive and systematic violation of their fundamental rights and, therefore, deserves special attention from public authorities.

Among the constitutional rights that are threatened or violated by the situations of forced displacement, constitutional jurisprudence has identified the following as being the most significant:

▪ The right to life in dignified conditions, given the infra-human circumstances associated with their mobilization and their permanence in provisional sites after they arrive, and the frequent risks directly threatening their survival. ▪ The rights of children, of women who are heads of family, of the handicapped and of senior citizens, and other groups that deserve special protection, given the precarious conditions faced by people forced into displacement. ▪ The right to pick a place of residence; in order to escape the risk of losing their personal integrity and their lives, people are forced to leave their usual places of residence and work. ▪ Economic, social and cultural rights are severely affected, given the

circumstances entailed by forced displacement. The unconstitutional status quo ▪ The right to a family unit and to a full protection of the family as, in many cases, displacement leads to the dispersion of affected families. ▪ The right to health, related to the right to life, not only because access to essential health services by displaced people is substantially made more difficult because of their displacement, but also because the deplorable life conditions they are forced to accept have a very high potential of undermining their health. ▪ The rights to integrity and personal safety, threatened both by 477 health risks and by the high risk of suffering attacks to which their dispossessed status exposes them. ▪ Freedom of circulation throughout the national territory and the right to remain at the place chosen for living, given that the very definition of forced displacement presupposes the unwilling migration to another geographic point, for the purpose of establishing there a new place of residence. ▪ The right to work and the freedom to choose a profession or trade, especially in the case of agricultural laborers forced to migrate to cities and, therefore, to abandon their usual activities. ▪ The right to an adequate access to food, which goes unsatisfied in many cases, given the high levels of extreme poverty suffered by numerous displaced persons, which prevent them from satisfying their most essential biological needs. ▪ The right to education, especially the education of minors who, because of forced displacement, must interrupt their education process. ▪ The right to adequate housing, since displaced persons must abandon their own homes or usual places of residence and submit to inappropriate living conditions at the places to which they are displaced, if they are lucky to even get those and are not forced to live outdoors. ▪ The right to peace, the essential core of which encompasses the personal guarantee not to suffer, inasmuch as this is possible, from the effects of war, much less when conflict overflows the boundaries established by humane international law, specifically the prohibition to conduct attacks against the civilian population. ▪ The right to equality because, despite the fact that the only circumstance that differentiates the displaced population from every other inhabitant of the Colombian territory is, precisely, their displaced conditioned; because of it, they are exposed to the violations of all the fundamental rights that have been mentioned above, and also to discrimination. Constitutional Court of Colombia Gabriel Eduardo Mendoza Martelo Beyond the differences that may exist concerning official figures and the figures of several non-governmental organizations, the dimension acquired by the problem of forced displacement in Colombia has turned it into a humanitarian crisis of enormous proportions and one of the greatest challenges currently facing the Colombian State.

Even when the serious situation faced by the displaced population is caused by the internal conflict and especially by the actions of the irregular armed

478 groups the State, as guarantor of the rights of the people, has the duty to protect the population affected by this phenomenon and is thus obliged to adopt an effective response to the situation.

Because of the multiple constitutional rights affected by displacement and in response to the circumstances of special weakness, vulnerability and helplessness in which displaced people find themselves, constitutional jurisprudence has stated that this people have, in general terms, the right to urgently receive a preferential treatment by the State, in application of the mandate for equality consecrated in article 13 of the Constitution, which demands of the State not only the adoption of measures in favor of discriminated or discriminated groups so as to ensure equality is real and effective, but also the special protection of those who, by reason of their economic, physical or mental condition, find themselves in circumstances of manifest weakness.

In complying with its duties the State, through its political entities, has devised a public policy to face the existing displacement problem. A variety of laws, decrees, resolutions, memoranda, agreements and Presidential directives constitute the institutional response to the problems posited by the displaced population and concretely regulate both the attention, in its different components, that such displaced population receives and the actions demanded of the various entities and public servants.

Despite the fact that the public policy of responding to the needs of the displaced population has been developed in a standardized way since the year 1997, though the promulgation of the 387 act on that year, it has not been successful in compensating for the serious deterioration of the vulnerability conditions of the displaced, it has not ensured the effective exercise of their constitutional rights, nor has it favored the overcoming of the conditions at the root of the violation of said rights.

In this context and as a consequence of a great many demands from the displaced population to implement tutelage actions, in 2004 the

Constitutional Court issued Sentence T-025 (January 22, 2004), declaring The unconstitutional status quo the existence of an unconstitutional status quo on the matter. Said ruling and the follow-up process it has given rise to for the purpose of guaranteeing and ensuring its compliance are a watershed in the legal approach to the problem of forced displacement in Colombia and constitute a new paradigm in the field of legal protection of social, economic and cultural rights, not just because of the implicit characterization of such rights as true subjective rights, susceptible of legal protection, but for the definition of the role a judge may have to adopt in the realm ofpublic 479 policies, when the response of political configuration entities, who are the first that are obliged to face social requirements, proves to be inadequate or sustained beyond the tolerable time limits from the perspective of constitutional rights.

Despite some obstacles and delays in implementing the orders issued by Sentence T-025 of 2004, the Constitutional Court’s intervention has so far had a positive impact on the overcoming of this humanitarian crisis and on allowing all parties involved in the design, implementation and execution of policy to discuss both the future of said policy and the needed depth in the State’s commitment to the displaced population.

The unconstitutional status quo declaration in Sentence T-025 of 2004, as well as the orders issued by the Court in follow-up acts, in order to guarantee the effective exercise of rights by the displaced population, introduced a novel way of protecting social, economic and cultural rights. Several features of the sentence allow reaching this conclusion:

1) In the first place, the Court made an exhaustive consideration ofthe rights of the displaced population, understanding said rights as indivisible, making no distinction between first, second and third generation rights. This approached has allowed the Court to (i) protect the “rights of the displaced population”, conceiving of them as an inseparable whole; (ii) define minimum levels of protection which can be demanded immediately, without the need to define whether they are rights requiring more or less progressive development; and (iii) order the government to adopt measures for the protection of both the negative and positive dimensions of the rights.

2) Secondly, the Court’s actions led the government to incorporate the concept of an effective exercise of rights into the process of designing, implementing and following-up on public policies for a full addressing of the needs of the displaced population, which means a novel approach to examining the rationality, relevance and effectiveness of a public policy.

Constitutional Court of Colombia In this context, a procedure was designed for the purpose of ensuring Gabriel Eduardo Mendoza Martelo government accountability before judiciary authorities; this procedure has allowed a permanent dialogue between the authorities in charge of executing the policy, State control entities, NGOs linked to the process and the Constitutional Court so that, beginning with an identification of result and follow-up indicators, advances, stagnation or setbacks can be determined regarding the protection of rights of the displaced population and in overcoming the unconstitutional status quo.

480 3) Also, the Court found it necessary to ponder, on the one hand, the conditions of extreme vulnerability faced by the displaced population and the urgency with which it needed protection and, on the other, the institutional and financial restrictions faced by the Colombian State in order to respond to the needs of some three million Colombians. This led to accepting a gradual solution of the problems detected in the sentence and, at the same time, to demanding an accelerated and sustained speed in the adoption of corrective measures in order to advance in overcoming the unconstitutional status quo and for guaranteeing the effective exercise of the displaced population’s rights.

4) The above notwithstanding, the Court has been very cautious not to take its intervention beyond its own sphere of action as judge, which is the cause why it has not expressed in its commands the form in which the Government must adopt its corrective measures, nor has it questioned the solutions proposed by said Government in order to address some of the problems that have been detected. The control exerted by the Court has been directed to verifying the rationality of the policy devised by the government and its coherence in the light of the constitutional duties the State has of protecting displaced population, and does not focus on the design and content of said policy, nor on the mechanisms and programs developed for its implementation and execution.

5) Declaring an unconstitutional status quo in connection with forced displacement has allowed broadening the protection of the displaced population. The sentence not only protected the rights of those who had demanded a tutelage action, but of all the displaced population, including those who had not demanded the constitutional recourse to request its protection.

As examples of a positive impact deriving from the Constitutional Court’s decisions, the following are noteworthy:

a) Sentence T-025 of 2004 achieved identification of the problems

deriving from internal forced displacement as one of the State’s The unconstitutional status quo priorities; b) The Government has increased the budget it has assigned to executing the policy designed to wholly address the displaced population’s problems; c) Inter-institutional dialogue between the different branches of government has improved the levels of coordination and execution of the policy addressing the problems of the displaced population

and has allowed clarification of responsibilities; 481 d) The protection of the rights of the displaced population has allowed an effective participation of this population in designing and implementing the policy for the comprehensive addressing of the needs of the displaced population; e) Periodic reports by the government, as well as the participation of the displaced population at the different levels of the government decision-making processes have generated a greater transparency in executing the policy and in assigning resources for it.

The measures adopted by the Court for addressing the problem of forced displacement have allowed advancing in identifying those responsible for executing the policy in specific areas and have transferred the attention from considering the means necessary to address the problem to the analysis of the results obtained in implementing the policy.

In this context, a clear evolution in the orders given by the Court can be appreciated; from the general orders issued in Sentence T-025 of 2004, which left a broad margin of action to all entities concerned, to the more effective ones which have been issued along these six years, for the purpose of addressing the shortcomings detected in the actions implemented by the government and which identified specific pending actions and unattained results, as well as those corrective actions that must be put into practice; at the same time these orders have also been identifying those officials that are directly responsible in each case. Even though Sentence T-025 of 2004 addresses several shortcomings and discrepancies in implementing the public policy for addressing the needs of the displaced population, one of the most novel aspects of the follow-up done by the Constitutional Court in overcoming the unconstitutional status quo has been the one regarding said policy’s measurement and follow-up systems.

In the quoted ruling, the Court pointed out the absence of indicators and

Constitutional Court of Colombia mechanisms for follow-up and appraisal as one of the most notable

Gabriel Eduardo Mendoza Martelo problems in the policy addressing the problems of the displaced population that should be solved by the Government in priority to other things. For that purpose, the Government was ordered to design an efficient system of indicators that would allow determining the results attained by the policy for addressing the problems faced by the displaced population.

In the absence of a system for indicating results and the delay by the National Government in designing and applying the indicators requested by the Court in Sentence T-025 of 2004, in follow-up instrument 337 of 482 2006 the Corporation adopted a work and exchange methodology for technical documents concerning the design and application of those systems of indicators used or designed by different entities, for the purpose of obtaining in the short term result indicators allowing the measurement of any advances, lack of progress or regressions in overcoming the unconstitutional status quo and in guaranteeing the effective exercise of rights by the displaced population.

As part of the methodology expounded in Order 337 of 2006 and for the purpose of defining the indicators requested with the greatest of technical rigors, a public information session was summoned for clarifying any divergences of a conceptual and technical nature between the different systems of indicators presented, as well as for considering the adoption of a single results system of indicators for the purpose of measuring the effective exercise of the rights of the displaced population. From the completed process, the Court identified a set of criteria that have been considered for adopting the indicators of an effective exercise of rights, to wit:

a) Indicators must allow the degree of advance in overcoming the Unconstitutional Status Quo and identify existing problems in order to help in adopting corrective measures in an adequate and timely fashion. b) Indicators must measure compliance with the policy’s purpose, specifically measuring their contribution to the effective exercise of rights (GED, by its Spanish initials) of the displaced population concerning each addressed component and in accordance with the specific needs of the subjects of special constitutional protection. c) The series of indicators must be homogeneous within the System’s entities; that is, indicators must respond to homogeneous criteria in their design, application and validation across all entities. d) Indicators must be significant, reliable and applicable in order to measure the effective exercise of the rights of the displaced population, as well as the degree of advance, stagnation or lack of progress in overcoming the unconstitutional status quo.

Given the complexity of the problem of forced displacement in Colombia The unconstitutional status quo and the limitations of the tools available for addressing it through tutelage action, the adoption of a sole system of result indicators that take into account the exercise of the rights of the displaced population constitutes an alternate mechanism to appraise and following-up on the public policy addressing the needs of the displaced population, as well as a tool allowing the policy designer and executor and the population affected to detect the critical areas needing priority attention, and for adopting the corrective measures necessary concerning instruments, actions or programs that are not adequate for guaranteeing the effective exercise of the rights of the 483 displaced population.

As a conclusion, it can be said that forced displacement is a problem that, given its complexity and dimensions, has overwhelmed the capacity of Colombian authorities. By resorting to the declaration of unconstitutional status quo in the presence of an effective violation of the fundamental rights of the displaced population, the Court has promoted a new approach to the problem and, after completion of the initial instance of institutional adaptation for the purpose of addressing the problem, it has now become necessary to address the specific situations, in order to appraise if the institutional efforts are having a true impact on the effective exercise of rights or if, on the contrary, advances regarding this are still unsatisfactory. For this purpose, the Court is now concentrating its attention on specific situations, such as the ones —within the context of the displaced population at large— faced by subjects that require special protection, such as minors, senior citizens, ethnic minorities or mothers who are heads of their families, in order to promote those measures that constitute an effective response to their needs.

For this purpose, this court has issued some 250 orders,5 through which (i) it has verified the effectiveness of the measures adopted by the different State entities in order to overcome the unconstitutional status quo regarding

5 As of October 22nd. 2012 and contained in Attachment 1 hereof. displacement; (ii) it has convened public information and accountability meetings; (iii) it has ordered specific measures for the protection of those among the displaced population who face a greater vulnerability, such as women, indigenous groups and defenders of human rights, children and adolescents, persons of African descent, senior citizens, etc.; and (iv) it has communicated the results obtained in the course of this process to the National General Attorney’s Office, to the People’s Defense Office, to the Republic’s General Comptrollership, to the United Nations’ High

Constitutional Court of Colombia Commissioner for Refugees —ACNUR, by its Spanish initials—, to the Gabriel Eduardo Mendoza Martelo Public Policy Follow-up Commission on Forced Displacement and to the Norwegian Refugee Council, among others.

In this sense and only to mention a few of the aforementioned orders, I must talk about the contents of Order 092 of 2008, which focused in providing protection to women who are victims of the internal scourge Colombia is going through because of internal violence and displacement, in connection with which the Court focuses on the differential impact the armed conflict

484 has on women, detecting the risks and gender vulnerability faced by women. In this context, the Court has said that “Sexual violence against women is an habitual, extended, systematic and invisible practice”.

Additionally, the Order authorized the Government to implement 13 programs for protecting women displaced by the conflict, among them protection against sexual violence, health improvement, educational assistance, access to land, assistance to indigenous women and to those of African descent, prevention of violence against women leaders, the right to truth, justice, reparation and psycho-social assistance for conflict victims.

The Court further identified 183 cases of alleged sexual crimes against women, regarding which there were reiterated and coherent testimonies and, therefore, it proceeded to send those cases to the Nation’s General Attorney’s Office, with the order to adopt “…all applicable measures for the purpose of ensuring current investigations in connection with these cases to advance without delay”. Nevertheless, the follow-up procedure was able to determine that impunity persists regarding the investigation and punishment of sexual violence crimes, given the lack of compliance on the part of the State of its duty to prevent, investigate, punish and repair. This situation not only affects the cases issued by the Constitutional Court but, in general, all cases of violence that occur within the context of the armed conflict.

In this same order of things the Court, in its Sentence T-234 de 2012, in the course of studying the case of a defender of human rights, protected by Order 092 of 2008, in consideration of its status as victim of sexual violence in the context of the armed conflict, uncovered the fact that activist women are exposed to a greater degree of vulnerability and helplessness. In virtue of this, the Court estimated that the State has the duty to provide protective measures in a timely and effective fashion to human rights defenders, for the purpose of fully guaranteeing the rights of these women, measures that must include a gender approach which implies taking into account the differentiated impact the armed conflict has on those women who opt to defend human rights as a life project. As a consequence, the Court exhorted The unconstitutional status quo the Nation’s General Attorney’s Office to fully revise the Program for Protecting and Assisting Victims, Witnesses and Participants in the Criminal Process, for the purpose of adapting it to the basic tenets and elements of rationality constitutional jurisprudence has defined, as well as to the criteria and elements for revision and implementation of full protection programs contained in Law 1448 of 2011 (Art. 32).

In the same way, I must underline the provisions of Order 004 of 2009,6 485 the content of which approached the situation of Colombian indigenous communities in connection with the inner armed conflict our country is going through. At the time, this Constitutional Court appraised and analyzed the critical state facing the citizens it has the duty to protect because, aside from the lack of protection from the State which, among other things, translates into greater needs in the economic, communication, nutrition, education and health realms, it was clearly ascertained that their precarious conditions are made more serious by the recurrent armed incursions into their territories of outlawed groups, who submit them to very serious violations of their fundamental individual and collective rights and of their rights under Humane International Law, as they must undergo mistreatment, violence, threats, massacres, torture, sexual abuse, etc., which exacerbate the danger of their cultural and physical extermination and forces them to leave their lands for the purpose of preserving their lives.

Therefore, the Court considered within the measures assumed to counter such scourge, the need to declare that the Colombian State is doubly obligated to prevent the causes of forced displacement of indigenous peoples and address their problems with a differentiated focus, in complying with the tenet of ethno-cultural diversity and, therefore, it ordered the design and implementation of a Program for Guaranteeing the Rights of Indigenous Peoples Affected by Displacement, which must contain elements for

6 M. P. Manuel José Cepeda Espinosa. preventing and addressing the problems faced by every indigenous community.

To summarize, it is a long and complex process, but one that must be completed; to this end, the constitutional court has summoned the mobilization of all the State’s infrastructure, a summons which has benefited from the caring expression of private, national and international entities of all sorts. Constitutional Court of Colombia Gabriel Eduardo Mendoza Martelo Finally, some measures must be mentioned which were adopted both by the legislature and by the Administration at the national and sectional levels; these provisions evidence a possible incidence of the Court’s decision on public policies; as can be appreciated, these are provisions issued after the ruling referred to in this section.

Manifestations of incidence of the unconstitutional status quo

486 on the decisions made by the legislature and by the administration

Regarding this item, various kinds of provisions are present, which can be classified as follows:

a. Legislative measures. Law 1448 of 2011, in whose articles 60 to 68 measures were dictated to address, assist and provide full reparation to the victims of the internal armed conflict and, provision was made to address the problems of the victims of forced displacement, the procedure was defined for the purpose of making a statement concerning the acts they were the victims of and which caused them to abandon their property, and the different phases were defined for providing humanitarian emergency assistance, as well as for reparation and the restitution of lands. b. Administrative measures in this sense have been instituted by the national Colombian Government, which include a series of mandates the purpose of which focuses on broadening and deepening the protection afforded to the victims of displacement in our country, among which the following are especially noteworthy: ▪ Decree 250 of 2005, issued by the Ministry of the Interior and Justice, which created the National Plan for Fully Addressing the Problems of the Population Displaced by Violence and dictated measures for cooperation, social control, assistance, economic development, prevention, protection to communities at risk, support. ▪ Decree 1660 of 2007, which partially regulated article 19 of Law 387 of 1997, regarding the exchange of lands which were the property of displaced people. ▪ Article 11 of Decree 4911 of 20097, through which a family subsidy for housing is delivered for the purpose of acquiring and building prefabricated houses for those that have been displaced from their territories by the internal armed conflict, without this having a negative impact on their eligibility to receive economic

aid for the acquisition of housing, as granted by FONVIVIENDA. The unconstitutional status quo ▪ Decree 790 of 2012, which transfers the functions of the National System for Fully Addressing the Needs of the Population Displaced by Violence —SNAIPD, by its Spanish initials— to the National System for Fully Addressing and Making Reparations to Victims and the National Council for the Full Attention of the Needs of Displaced Population —CNAIPD, by its Spanish initials— to the Executive Committee for Fully Addressing and Making Reparations to Victims. 487

Similarly, some programs have been implemented, such as the Full Action Plan for Population Displaced by Violence at the National Level, promoted by the National Learning Service —SENA, by its Spanish initials—, whose purpose is to allow, through occupational orientation, the technical and entrepreneurial formation and to provide advisory for developing productive projects for displaced persons, with the aim of ensuring they can attend and develop their abilities and competences in a specialized field and also to formulate business plans at their places of origin or at the places where they were displaced, for the purpose of aiding in their socio-economic re-establishment.

Also noteworthy is the Program for the Protection of Indigenous Women in connection with the Armed Conflict and Forced Displacement, promoted by the Colombian Ministry of the Interior, which was born from the orders issued by the Constitutional Court in Order 092 of 2008, and implemented the 13 programs referred to in order to fill the gaps in public policies that address forced displacement.

Various projects have been promoted at the sectional level, such as the case of Bogotá, D.C., which have seen implementation of the plan “The Route for Fully Addressing the Needs of Forced Displacement Population in the

7 Which modifies articles 2, 5, 8, 10, 14, 24 and 25 of Decree 951 of 2001 and dictates other provisions regarding the family housing subsidy for displaced population. Capital District”, through which the Government District Secretary seeks to implement the necessary institutional capacity, to articulate the system and mobilize the budgetary resources for executing the programs that address Displaced Population. The District Administration has formulated and carried out policies addressing the re-establishment of the Human Rights of the population of reference. Also available is Santiago de Cali’s Program for Addressing the Needs of Displaced Population, the purpose of which is to contribute to the processes of institutional management and local

Constitutional Court of Colombia organization allowing the addressing of the problems of displacement. Gabriel Eduardo Mendoza Martelo

To conclude, it is essential to point out that, beyond the efforts already carried out, the technical problems and the deficiencies in the execution of policies, a real need remains for so many displaced Colombians, who every day must face the urgent addressing of the problems with their fundamental rights. It is they who encourage the work of the Court, the aspiration being to ensure the effective exercise of the rights of the displaced population in the shortest time possible.

488 The Supreme Court of Ghana’s role in the provision of judicial relief against Human Rights abuses

Samuel Kofi Date-Bah

Justice of the Supreme Court of Ghana

Introduction

This paper presents a brief sketch of the Ghanaian Supreme Court’s role in the enforcement of human rights. It begins with an overview of the system for the enforcement of human rights in Ghana, before focusing on the Supreme Court’s role. The purpose of the paper is to contribute to a comparative basis for discussion at the First Summit of Presidents of Constitutional, Regional and Supreme Courts.

Overview of the current system for the enforcement of human rights in Ghana

Apart from the enforcement of human rights through litigation in the courts, the 1992 Constitution of Ghana provides for a parallel channel for the protection of human rights through recourse to the Commission on Human Rights and Administrative Justice. This body, popularly known locally as CHRAJ, is an independent body directly established by the Constitution for the vindication of human rights.

Chapter 18 of the 1992 Constitution of Ghana deals with this Commission on Human Rights and Administrative Justice (“CHRAJ”). Its raison d’etre is stated as follows (the Committee of Experts, 1992: para. 358):

358. The constitutional experience of many countries, including ours, demonstrates that a catalogue of constitutional rights together 489 with provisions for judicial enforcement is inadequate to ensure meaningful enforcement of fundamental rights and freedoms on the ground. The Committee accordingly proposes the establishment of a Commission on Human Rights and Administrative Justice which would sensitize people to their constitutional rights, investigate violations of such rights, and assist individuals in prosecuting them. Supreme Court of Ghana Samuel Kofi Date-Bah The Committee’s Report formed the basis for deliberation at the Consultative Assembly which produced the 1992 Constitution.

The passage above from the Report of the Committee of Experts provides evidence that the objective of the framers of the Constitution was to provide for the establishment of an institution which would be effective in investigating violations of the fundamental human rights of individuals in Ghana.

The Ghana Supreme Court has construed the mandate of CHRAJ to be

490 investigative and educational and not adjudicative. The determination of human rights by adjudication remains the preserve of the courts. The leading case establishing that CHRAJ’s functions are investigative and educational, and not adjudicative, is CHRAJ v. Attorney-General No. 2 [1998-99] SCGLR 871. In this case, Justice Charles Hayfron-Benjamin said (at pp. 882-883):

Act 456 was, of course, made in pursuance of authority granted to Parliament under chapter 18 of the 1992 Constitution. The functions —and this is the expression used in article 218 of the Constitution— which the plaintiff commission may exercise, are taken almost verbatim from the Constitution and restated in section 7 of Act 456. Similarly, the manner in which such functions may be exercised, is copied verbatim from article 219 and are also contained in sections 8 and 9 of the Act. Taken together, it is clear that the objects or functions of the plaintiff commission are investigative and educational. For the purposes of effective exercise of its investigative functions, the plaintiff commission has certain powers akin to those of the regular courts and tribunals. But it must be said that, in exercising those powers, the commission does not thereby constitute a court or tribunal properly so-called; nor does it thereby assume any jurisdiction to do anything in its investigations. However, the plaintiff commission may institute legal action “before any Court in Ghana and may seek any remedy which may be available from that Court”.

Thus, the system for the enforcement of human rights in Ghana consists of the judicial system, which provides a forum for enforcement through litigation, and CHRAJ, which assists aggrieved persons through investigating alleged breaches of human rights as well as through helping them to enforce their rights in accordance with the available legal channels. In addition, CHRAJ has a mandate to sensitize the general population on their human rights, thus promoting the growth of a human rights culture. CHRAJ’s mandate is, of course, not exclusive: the police and other law enforcement agencies also have an investigative mandate. against Human Rights abuses The Supreme Court of Ghana’s The Supreme Court of Ghana role in the provision of judicial relief and the human rights provisions in the Ghanaian Constitution

The 1992 Constitution of Ghana, which is currently in force, contains what is equivalent to a Bill of Rights. This is Chapter 5 of the Constitution which is entitled: “Fundamental Human Rights and Freedoms.” In addition to this primary source for the protection of human rights in the Ghanaian legal system, Chapter 6 of the same Constitution, entitled “The Directive Principles of State Policy”, also contains provisions protecting human rights. The 491 latter Chapter has been interpreted by the Supreme Court of Ghana to be presumptively justiciable, unlike in India where the directive principles of State policy have been interpreted to be non-justiciable. Accordingly, Chapter 6 of the Constitution has the potential to be a source for the enforcement of economic, social and cultural rights, although, so far there has been little litigation seeking to enforce its provisions. Apart from the provisions contained in Chapters 5 and 6 of the 1992 Ghana Constitution, there are others in that Constitution which protect human rights. Principal among them is the right of every citizen of Ghana of eighteen years or above and of sound mind to vote and to be registered as a voter for the purposes of public elections and referenda. This right is contained in the Chapter 7 of the 1992 Constitution on Representation of the People.

In my view, the right to vote is even more fundamental than the other rights provided for in Chapters 5 and 6 of the Ghana Constitution. It should therefore be regarded as an integral part of Ghana’s Bill of Rights, even though it is not contained in Chapter 5.

The decision of the framers of the 1992 Ghana Constitution to embody in it enforceable human rights was a response to the political consequences of the absence of a Bill of Rights from the 1960 Republican Constitution of Ghana, under which the First Republic was established. The Bill of Rights provisions in the 1992 Constitution are traceable to those recommended for incorporation in the 1969 Constitution of the Second Republic, which deliberately sought to address the human rights deficit stemming from the absence of a Bill of Rights in the 1960 Constitution. The Constitutional Commission that made proposals to the 1968 Constituent Assembly, which drew up the 1969 Constitution, declared that (Constitutional Commission, 1968: para. 179):

We do not believe that any authority should be above the law. We appreciate that a Government should have authority to govern. Supreme Court of Ghana

Samuel Kofi Date-Bah But if that Government is not to be arbitrary and tyrannical, we conceive that restrictions there must be upon how far it can go in regulating the lives of those who are under its authority. Our people are unanimous in this that the proposed Constitution for Ghana should set out in detail the rights of the individual and of the State in what may be considered a declaration of “liberty under the law”.

The court of first instance for the enforcement of human rights in Ghana is the High Court, which is a court below the Supreme Court. Nevertheless, the Supreme Court exercises supervisory and appellate jurisdictions over 492 this court and therefore some human rights cases end up before the Supreme Court. Through the adjudication of appeal cases before it, the Supreme Court is able to provide strategic guidance on human rights matters to the courts system. The Supreme Court also has an exclusive original jurisdiction to interpret the Constitution. Accordingly, where a human rights provision in the Constitution is unclear, it is the Supreme Court that interprets it.

Illustrative cases

Below are discussed a couple of illustrative human rights cases that have come before the Supreme Court for the vindication of human rights. Awuni v. West African Examination Council [2003-2004]1 SCGLR 471 was an appeal from a human rights case originally brought before the High Court, alleging the violation of the human rights of some students by an examination authority.

The facts of the case were that Awuni and 12 other students sat for the an examination in 2000. The Respondent was the body authorised to conduct the examination and award the relevant certificate to successful candidates. Awuni asserted that during the examination period neither he nor any of the other 12 students was questioned, reprimanded or cautioned by any person for engaging in or trying to engage in any examination malpractices. He further gave evidence that he never had any foreknowledge of any examination papers nor did he collude with the other 12 students to have foreknowledge of any examination papers. However, the Respondent wrote to the Headmaster of Awuni’s school that its Final Awards and Examiners’ Appointments Committee had cancelled the results of Awuni and the 12 other students because of their involvement in some examination irregularities and requested him to inform the candidates. The nature of the irregularity concerned was stated as follows: “It was alleged that the candidates had foreknowledge of the paper and it has been established that the listed candidates colluded among themselves”.

In addition to cancelling the results of the candidates, the Respondent barred against Human Rights abuses The Supreme Court of Ghana’s them for 3 years from taking any examination conducted by the Respondent. role in the provision of judicial relief

Awuni gave evidence that before this decision by the Committee neither he nor any of the 12 other students were privy to any enquiry, investigation or trial to establish the truth or otherwise of any allegation of examination malpractices that might have been levelled against them and that they were not given any opportunity by the Respondent to make any representations or give any testimony as to their innocence of any such allegations.

493 The Headmaster of Awuni’s school petitioned the Respondent to review its decision. One significant paragraph of the Headmaster’s petition read as follows ([2003 2004]1 SCGLR 471 at 547):

First of all, the case that the 13 students had foreknowledge of the Mathematics (Core)2 is only an allegation, and therefore the application of rule 5b without further investigation to ascertain the veracity or otherwise of the allegation is a bit harsh on the poor students. We are dealing here with young people who have worked hard for three years in a reputable school with the hope of developing a career for themselves, and if we are not careful we may ruin their future for good.

The Respondent rejected the Headmaster’s petition by a letter which contained the following very significant paragraph ([2003-2004]1 SCGLR 471 at 548):

During the conduct of the 2000 SSSCE there were allegations of foreknowledge of some of the question papers. The only means by which the Council could verify the allegations was the scrutiny of the scripts of the candidates. As a result all scripts for all subjects were scrutinized. From the scrutiny it was established that there was foreknowledge and collusion among the 13 candidates from your school in Mathematics (Core) paper 2. The Council therefore applied the prescribed sanctions. This letter thus confirmed that Awuni and the other students were not given an opportunity to be heard before the prescribed sanctions were applied. Furthermore, evidence was given on the Respondent’s behalf that the sole evidence of malpractice relied on by the Respondent was evidence in the examination scripts themselves.

On these facts, the Supreme Court held that the students’ human rights had Supreme Court of Ghana Samuel Kofi Date-Bah been infringed. Article 23 of the 1992 Constitution provides as follows:

Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.

This was the provision that was held to have been infringed. In my concurring judgment in the case, I emphasized the fundamental character of the rights

494 infringed as follows ([2003-2004]1 SCGLR 471 at 561):

First of all, it needs to be made abundantly clear, in view of the ambivalence expressed in the Court of Appeal as to whether any constitutionally guaranteed human rights of the Appellants had been breached, that Article 23 imposes binding obligations on administrative bodies and officials. In this connection, it should be noted that Article 12 provides that all the fundamental human rights and freedoms enshrined in Chapter 5 of the 1992 Constitution are to be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and all natural and legal persons in Ghana. The Article places a duty on the courts to enforce these rights and freedoms. They are thus justiciable. Since Article 23 comes within Chapter 5, it embodies a justiciable fundamental human right. What needs analysis is the extent of the rights and duties provided for in the Article.

I went on to hold that article 23 imposes a duty on administrative agencies and officials to act fairly and reasonably. I further explained that ([2003- 2004]1 SCGLR 471 at 563):

My interpretation of fairness within the context of Article 23 would be that, in general, unless the circumstances make it inappropriate, for instance for reasons of practicality or of public interest or for any other cogently valid reason, it includes a principle that individuals affected by administrative decisions should be afforded an opportunity to “participate” in the decision in the sense of being given a chance to make representations on their own behalf of some kind, oral or written, to the decision-maker.

Individuals affected or to be affected by administrative decisions obviously have an interest in influencing the outcome of the decision-making process. In general, it is fair that they should be afforded an opportunity to influence the decision. Given the variety, and the width of the continuum, of contexts in which

administrative decisions are taken, however, there is need for against Human Rights abuses The Supreme Court of Ghana’s role in the provision of judicial relief flexibility in the ways that are to be worked out to enable individuals to influence decisions about themselves.

Thus, in relation to a particular decision, the circumstances may indicate that there is no need for a formal hearing, in the sense of an adjudication. A consultation, for instance, may be adequate.

The Supreme Court held that the decision of the Respondent to cancel the results of the students should be quashed, because the denial to the students 495 of an opportunity to be heard was in breach of the Respondent’s obligations under article 23 to act fairly and reasonably in making its administrative decisions.

Another illustrative human rights case decided on appeal by the Supreme Court of Ghana is Dexter Johnson v. Republic [2011] 2 SCGLR 601. In this case, what was in issue was whether the death penalty for murder was unconstitutional and incompatible with the fundamental human rights of the appellant who had been convicted of a gruesome murder. Case law from other Commonwealth jurisdictions and international human rights jurisprudence provide some support for the case against the death penalty for murder as provided for in Ghanaian law. However, the Supreme Court declined to follow this line of authority in Dexter Johnson v. Republic.

The appellant sought to invoke article 6(1) of the International Covenant on Civil and Political Rights, asserting that Ghana has been a party to this Convention since 23 March 1976. This Article provides that:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Although the appellant accepted that the International Covenant had not been incorporated in Ghana’s domestic law, he nonetheless invited the court to treat article 6(1) of it and the emphatic jurisprudence of the United Nations Human Rights Committee as a powerful persuasive guide to the interpretation of article 13(1) of the Constitution of Ghana, which provides as follows:

(1) No person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has been convicted. Supreme Court of Ghana Samuel Kofi Date-Bah Although I was persuaded by this argument, I was in a minority. However, I did say ([2011] 2 SCGLR 601 at 636):

I would accept that in the context of the international human rights jurisprudence on this issue it would be reasonable to construe article 13(1) of the 1992 Constitution purposively as prohibiting arbitrary deprivation of life, although the express language in article 6(1) of the International Covenant is absent from article 13(1) of the 1992 Constitution. Accordingly, on this ground also, I find that the appellant’s appeal against the constitutionality 496 of his sentence must succeed.

I summarized the case for the appellant as follows ([2011] 2 SCGLR 601 at 624-5):

… the common law crime of murder, which is, with some refinement relating to the primacy of intention, the basis of the statutory crime of murder embodied in section 46 of Ghana’s Criminal Offences Act 1960, encapsulates a wide range and array of prohibited conduct with different degrees of culpability. As the Royal Commission on Capital Punishment 1949-1953 said in its Report (Cmd 8932, September 1953), p.6:

Yet there is perhaps no single class of offences that varies so widely both in character and in culpability as the class comprising those which may fall within the comprehensive common law definition of murder.

This feature of murder is also stressed by the Privy Council in Reyes v. The Queen [2002] UKPC 11, [2002] 2 AC 235, where their Lordships said (at paras. 9-11 of UKPC):

9. The penalty for murder

10. Under the common law of England there was one sentence only which could be judicially pronounced upon a defendant convicted of murder and that was sentence of death. This simple and undiscriminating rule was introduced into many states now independent but once colonies of the crown.

11. It has however been recognized for very many years that the crime of murder embraces a range of offences of widely varying degrees of criminal culpability. It covers at one extreme the sadistic murder of a child for purposes of sexual gratification, a terrorist atrocity causing multiple deaths or a contract killing, at the other against Human Rights abuses The Supreme Court of Ghana’s

the mercy-killing of a loved one suffering unbearable pain in a role in the provision of judicial relief terminal illness or a killing which results from an excessive response to a perceived threat. All killings which satisfy the definition of murder are by no means equally heinous.

The appellant argues that this blunderbuss nature of murder under the common law and under section 46 of the Ghanaian Criminal Offences Act, 1960 renders its mandatory penalty of death open to constitutional challenge. He contends that the penalty of death is disproportionate to some of the conduct coming within the general offence of murder and is 497 thus a breach of the prohibition in the 1992 Constitution against inhumane and degrading punishment or treatment. For this contention, he relies heavily on the Kenyan Court of Appeal case of Mutiso v. Republic, Crim. App. No.17 of 2008, Judgment of 30th July 2010, which is reported in [2010] eKLR. Mutiso is an emphatic persuasive authority that supports the appellant’s contention”.

There were other Commonwealth decisions in support of this position.

The majority view was, however, against this position and the death sentence for murder was upheld. In reaching its conclusion, the lead judgment for the majority delivered by Justice Dotse adopted a less internationalist approach as follows:

However, it is my humble view that in determining the issue as to whether the mandatory death sentence for murder violates the constitutional prohibition of inhuman and degrading treatment as well as the arbitrary deprivation of life etc., one will invariable embark upon an excursion as to whether mandatory death sentence for murder as we have it now in our Criminal and other Offences Act is in violation of various constitutional provisions in the Constitution 1992 vis-à-vis recent decisions of the Courts in South Africa, Zambia, Malawi, Uganda, and lately Kenya all of which have been referred to supra. I have stated times without number that where our constitutional provisions on the subject matter are clear and there is no ambiguity; there should be no hesitation in interpreting the constitutional provisions without reference to decided cases from other jurisdictions.

In my opinion in the judgment delivered by the Supreme Court on 3rd February 2010 Suit No. CM/ JI/1/2009 intitutled, William Brown vrs Supreme Court of Ghana Samuel Kofi Date-Bah Attorney-General and Two others, I stated as follows:

I have always held the view that in interpreting a Constitution, one must resort to the Constitution itself to determine the spirit the framers of the Constitution intended to give it in its interpretation. Where the Constitution contains guidelines or principles which can be used to interpret the Constitution these must be applied. Where in the case of our Constitution 1992 there are no such express guidelines, the Supreme Court itself must fashion out its interpretative principles on a case by case basis taking into account the contextual nature of the provisions concerned. It is however 498 my firm conviction that in fashioning out these guidelines and interpretative principles which underpin the Constitution 1992, one must first and foremost look at the Constitution itself, that failing then resort will be made to previous decisions of the Supreme Court in the 1st, 2nd and 3rd Republican Constitutions of 1960, 1969 and 1979 respectively.

I am also of the view that principles of constitutional interpretation and decided cases from foreign countries must be sparingly referred to and whenever these are used, the provisions of those Constitutions upon which the cases have been decided must be thoroughly digested and analysed to prevent the wholesale and corrupted adoption of foreign constitutional interpretation which have no nexus to our home grown situation.

In order to arrive at a considered, reasonable and fair minded interpretation of the constitutional provisions being relied upon by learned Counsel for the appellants to request a review and moderation in the application of the mandatory death sentence on those convicted of murder, I will adopt the same measure and yardstick stated in the unreported judgment of William Brown v. Attorney General, already referred to supra.

The position of the majority of the Court and my own position are not too far apart and represent a matter of emphasis. The difference in emphasis raises the next issue for consideration, namely: what is the preferable approach for national courts to adopt when interpreting international human rights provisions embodied in national constitutions? The next section of the paper addresses this issue.

Interpretation of human rights in national courts: national or international perspectives

My view of the approach that national courts should adopt generally in against Human Rights abuses The Supreme Court of Ghana’s relation to human rights provisions in national constitutions is manifested role in the provision of judicial relief in the following quotation from the judgment that I gave in the Supreme Court of Ghana in the case of Dexter Johnson v. The Republic, already referred to ([2011] 2 SCGLR 601 at 633):

This court is, of course, master of what interpretation is to be put on provisions in the 1992 Constitution. In exercising that jurisdiction, however, it should be mindful of not turning this court into a philistine one, out of touch with enlightened human 499 rights decisions made elsewhere, unless the imperatives of the Ghanaian context require it, which is not what the facts of this case indicate. It has to be remembered that human rights have a universal and international quality. These are rights which are supposed to inhere in all humans, unless there are compelling local reasons to displace them. Because of this universalist dimension of human rights, this court should be very slow to reject interpretations of human rights provisions in pari materia with provisions in our Constitution, when these interpretations have become widely- accepted orthodoxies in jurisdictions with a similar history to ours.

In Ghana, this approach is buttressed by the provision in art. 33(5) of the 1992 Constitution that: “The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man”. This provision implies the necessity for the Supreme Court to have regard to the evolution of human rights in international and comparative law in order to fill gaps in Ghanaian law, where necessary. So while accepting Justice Dotse’s emphasis that a Supreme Court should look primarily at the provisions of its national Constitution to arrive at its conclusions, there is the undoubted context of international human rights jurisprudence and the decisions of other national courts on similar issues. It would be imprudent to ignore the wisdom contained in the wealth of material available through these sources. The Enforcement of economic, social and cultural rights under the Ghanaian Constitution: the role of the Supreme Court

The Directive Principles of State Policy contained in Chapter 6 of the 1992 Constitution is the main source of Economic, Social and Cultural Rights Supreme Court of Ghana Samuel Kofi Date-Bah under the Ghanaian Constitution. However, Chapter 5 of the Constitution, which deals with the civil and political human rights, also contains provisions which are in the nature of social or cultural rights. For instance, articles 24 and 25, in Chapter 5, provide as follows:

24. (1) Every person has the right to work under satisfactory, safe and healthy conditions, and shall receive equal pay for equal work without distinction of any kind.

(2) Every worker shall be assured of rest, leisure and reasonable 500 limitation of working hours and periods of holidays with pay, as well as remuneration for public holidays.

(3) Every worker has a right to form or join a trade union of his choice for the promotion and protection of his economic and social interests.

(4) Restrictions shall not be placed on the exercise of the right conferred by clause (3) of this article except restrictions prescribed by law and reasonably necessary in the interest of national security or public order or for the protection of the rights and freedoms of others.

25. (1) All persons shall have the right to equal educational opportunities and facilities and with a view to achieving the full realisation of that right. (a) basic education shall be free, compulsory and available to all; (b) secondary education in its different forms, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education; (c) higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular, by progressive introduction of free education; (d) functional literacy shall be encouraged or intensified as far as possible; (e) the development of a system of schools with adequate facilities at all levels shall be actively pursued. (2) Every person shall have the right, at his own expense, to establish and maintain a private school or schools at all levels and of such categories and in accordance with such conditions as may be provided by law.

In addition to the right to work and to education, as prescribed above in the Ghanaian “Bill of Rights”, the Directive Principles provide for other economic, social, and cultural rights, in relation to which the Supreme Court applies a presumption of justiciability. In Ghana Lotto Operators against Human Rights abuses The Supreme Court of Ghana’s role in the provision of judicial relief Association & Ors. v. National Lottery Authority [2008] SCGLR 1088, the Supreme Court, speaking through me, said ([2008] SCGLR 1088 at 1104-5):

The rights set out in chapter 6, which are predominantly the so-called ESC rights, or economic, social and cultural rights, are becoming, by international practice and the domestic practice in many jurisdictions, just as fundamental as the rights in chapter 5. The enforceability of these ESC rights is a legitimate purpose for this court to seek to achieve through appropriate purposive interpretation. We therefore think that the interpretation that we 501 give to Article 34 should take into account this purpose of achieving an expansion of the range of enforceable human rights in Ghana. The doctrine of a living Constitution implies, as already pointed out above, that there is not a slavish adherence to the original subjective intent of the framers, but rather that the interpreter takes the constitutional text as is and interprets it in the light of the changing needs of the time. For instance, in the United States, the living Constitution approach to interpretation had a powerful influence during the period of President Roosevelt’s New Deal in the 1930s when there was overwhelming public sentiment that the Constitution should be interpreted in the light of the needs of the time. Similarly, in the light of our history, culture and legal system, we consider the elaboration and enforcement of ESC human rights in Ghana as a need of our time. To the extent that the semantic possibilities of the text of Article 34 enable this need to be met, we think that this Court should fulfil that need.

Accordingly, the Supreme Court concluded as follows ([2008] SCGLR 1088 at 1106):

A presumption of justiciability in respect of Chapter 6 of the 1992 Constitution (dealing with the Directive Principles of State Policy) would strengthen the legal status of Economic, Social and Cultural Rights (ESC Human Rights) in the Ghanaian jurisdiction. Of course, there may be particular provisions in Chapter 6 which do not lend themselves to enforcement by a court. The very nature of such a particular provision would rebut the presumption of justiciability in relation to it. In the absence of a demonstration that a particular provision does not lend itself to enforcement by courts, however, the enforcement by this Court of the obligations imposed in Chapter 6 should be insisted upon and would be a way of deepening our democracy and the liberty under law that it entails.

Conclusion Supreme Court of Ghana Samuel Kofi Date-Bah

This paper has shown that the Supreme Court of Ghana stands at the apex of a judicial system that enforces the human rights enshrined in the 1992 Constitution of Ghana. This system of justiciable human rights has underpinned the increasing strength of Ghanaian democracy. Dialogue, such as is envisaged at this First Summit, between high level judges from the international human rights community and a representative of the Ghanaian judiciary on comparative human rights insights should be beneficial to the Ghanaian democratic cause.

502 Bibliography

Bimpong-Buta, S.Y., The Role of the Supreme Court in the Development of Constitutional Law in Ghana, Accra, Advanced Legal Publications, 2000.

Committee of Experts, Proposals for a Draft Constitution of Ghana, Accra, 1992.

Constitutional Commission, The Proposals of the Constitutional Commission for a Constitution for Ghana, Accra, 1968.

Date-Bah, S.K., On Law and Liberty in Contemporary Ghana, Accra, Ghana Academy of Arts and Sciences, 2008. Enforcement of the Constitution and improvement of the legal system in order to materialize the development of dignified Indonesia as a form of the fulfillment of the Human Rights

Anwar Usman

Justice of the Constitutional Court of the Republic of Indonesia

National development and the State’s goals

Development is principally a multi-dimensional process towards changes in order to achieve a better objective by using several supporting aspects such as, legal, economic, social, political, and other aspects. It is in line with the opinion of an expert named Michael P. Todaro saying that: “Development is principally aimed at the overall development of the community which constitutes a multi-dimensional process involving changes in structures/ institutions, attitude/mentality of the administrators, acceleration of economic development, reduction of injustice and eradication of poverty”.

The Indonesian founding fathers, after the 1945 war of independence, have provided the framework concerning the goals and targets of the development as set out in the 4th paragraph of the Preamble to the 1945 Constitution which reads: “...to protect the entire Indonesian nation and the entire Indonesian native land, and to advance public welfare, to develop the intellectual life of the nation, and to partake in implementing world order based upon independence, eternal peace and social justice...”. The inclusion of the state’s development goals and targets in the 4th paragraph of the Preamble to the 1945 Constitution is a right decision, considering that the state of Indonesia adopts the concept of a democratic rule of law state based on the 1945 Constitution as the highest norm in living as a state. Life as a nation and state is indeed closely related to the existence of law, because law grows and develops along with the growth and development of its 503 community (ubi societas ibi ius). Therefore, laws as a social institution may be used as a tool to establish public order (law as a tool of social engineering)

in accordance with the purpose of the constitution serving as the highest norm in living as a state. Otto Kirchheimer, a constitutional expert from Germany, said that the success of a revolution or change of community cannot be separated from the constitution. In order to materialize a change

Anwar Usman or reform constituting a concept of state development, a strong, yet dynamic Republic of Indonesia

Constitutional Court of the constitutional foundation among the community is required, thus making it a living constitution for achieving the state’s goals.

The amendments to the 1945 Constitution made in Indonesia after the reform (1999-2002) are the appropriate momentum for making reform and major changes for the purpose of continuing development and achieving the goals of the national struggle as mandated by the 1945 Constitution. The substantive contents of the amendments to the 1945 Constitution containing a lot of values of the human rights (HR) constitute the efforts of the drafters of the amendments to the 1945 Constitution to align the efforts to develop

504 a national community with the universal standard guarantee of human dignity. In addition to that, the amendments to the 1945 Constitution made after the reform have resulted in the establishment of a new institution having the duty to safeguard the constitution, so that the constitutional values can be maintained and the constitution can become a constitution which lives among the community in line with the ever-improving developmental efforts.

Although the amendments to the 1945 Constitution have been made for materializing a prosperous, just, and affluent community as expected by Indonesian founding fathers in the past, law as a means for achieving such goal cannot be implemented immediately in line with the amendments to the constitution. Therefore, the next step is to realize the improvement of the legal system. Lawrence M. Friedman said that there are at least three things which must be noted for the improvement of a legal system, namely legal structure, legal substance and legal culture. Those three elements are known as the Three Elements of Legal System.

Legal structure is the framework, and serves as the part of law which will always remain unchanged, or the part which provides some kind of form and limits. Legal institution is a part of the legal structure, such as the Supreme Court, the Constitutional Court, the Attorney General’s Office, and the Police Force, along with their respective personnel. Legal substance or material means the rules, norms, and actual behavior patterns of the people within the system. Legal substance also means that the products produced by the people within the legal system include the decisions passed or new rules to be drafted. Legal substance or material also includes living law, instead of merely rules existing in written code (law in books). Meanwhile, legal culture is the human’s attitude towards the law and legal system, their trust, values, thoughts and expectations. Legal culture also includes the condition of social thoughts and social power which determines how law is enforced, avoided, or abused.

Improvement of the legal system Enforcement of the Constitution order to materialize the development... and improvement of the legal system in Each of the Three Elements of Legal System as stated in Friedman’s theory is illustrated as follows.

Legal substance

Legal substance is composed of rules and provisions on how the institutions must behave. However, there is often disharmony or conflicts of norms in those regulations and provisions, either among the norms of laws or between norms of a law and the norms of the 1945 Constitution. In fact, 505 such disharmony tends to distort the values and the goals of the constitution as the state’s basic norm. In such condition, the Constitutional Court (the Court) plays its role in order to ensure that legal substance does not contradict the norms of the 1945 Constitution as the state’s highest norm. Through the mechanism of judicial review, all legal norms which contradict the 1945 Constitution are aligned. For example, there has been a Judicial Review of Law Number 18 Year 2006 concerning State Revenues and Expenditures Budget (APBN) for Fiscal Year 2007, especially in relation to the total amount of budget for education which must be complied with by the government. Initially, the APBN Law only set the total amount of budget for education to be complied with by the government at 11.8% (eleven point eight percent) as the maximum limit. Meanwhile, article 31 paragraph (4) of the 1945 Constitution provides that the budget for education shall not be less than 20% of the APBN and Regional Revenues and Expenditures Budget (APBD). Through the mechanism of judicial review at the Court, the norms of the APBN Law setting the maximum limit of budget at 11.8% for education has been declared contradictory to the 1945 Constitution by the Court, thus it no longer has any binding legal force. Such decision of the Court also affirms that the government must allocate 20% of the APBN for the educational sector. Through such mechanism of judicial review, the Court performs the function as the guardian of legal substance and safeguards of the human rights. In the aforementioned case, in which the budget for education was set below the amount of budget mandated by the 1945 Constitution, if the legal norms were not reversed, it would cause implications for the administration of the educational sector. Such decreased budget might certainly imply that the access to the educational sector would be limited, especially for the poor. On the other hand, the right to education is

in fact a part of the human rights which must be fulfilled by the state.

Legal structure

Anwar Usman As stated by Friedman, structure constitutes one of the actual bases and Republic of Indonesia

Constitutional Court of the elements of a legal system, thus legal structure constitutes the basic element or implementing factor of the legal substance. Legal institutions, such as the Supreme Court and the Constitutional Court, as well as other legal institutions, are the examples of legal structure in Indonesian legal system. State officials as the holders of state power in exercising the governmental power must comply with the principle of the rule of law which is also a logical consequence of article 1 paragraph (3) of the 1945 Constitution stating that: “The State of Indonesia shall be a rule of law state”. Therefore, all parties without exception must comply with the provisions of laws and regulations as well as decisions of judicial bodies for upholding the principle

506 of the rule of law or the principle of the rule of law state. The improvement and increase in the capability and competence of apparatus in the judicature or legal institutions, as well as the accountability of ongoing legal process must also be continued. In supporting the elements of such legal system, the moral integrity of apparatus and state officials also constitutes the main factor of the upholding of the principle of the rule of law state.

Legal culture

Legal culture is the element of social attitude and value of each person in living as a community. Each person is an individual being as well as a social being that has needs. For the purpose of fulfilling his/her needs, each person is limited by others’ needs, thus in order to avoid a conflict of interest of each individual or group of individuals, it is set out in legal norms which bind all people. However, each person’s compliance with the legal norms depends on the community’s legal awareness and culture. Speaking of legal culture, it is related to the effort to develop the awareness and understanding of law for the community. Law is required as a social controller for its community’s code of conduct. Issues of legal culture which may destroy the community’s legal awareness are, among other things dissatisfaction with a court decision or law enforcement apparatus’ action which is considered unfair. Such an event may give birth to anarchy by the community in resolving an issue. Vigilantism in responding to street crime such as theft or other criminal acts constitutes one of the forms of community’s disappointment with the law enforcement apparatus. In such condition, legal norms cannot function as a social controller anymore, let along as the means to promote public welfare and human right fulfillment. Therefore, the settlement of any legal issue should take the community’s sense of justice into account by prioritizing the principle of legal certainty and principle of usefulness, thus it does not give birth to the implication of public distrust of law.

Since the legal system is composed of the three aforementioned elements, if one of the elements is not met, it will make the legal system not operating properly. If one of them changes, the other elements must also change. For Enforcement of the Constitution order to materialize the development... and improvement of the legal system in example, the improvement in legal substance such as legal products and laws as well as regulations will not succeed if it is not followed by the improvement in legal structure in legal institutions along with their personnel, including the development of the values of the community’s legal awareness attitude and culture. Therefore, the three aforementioned elements of a legal system should be sustainable and work simultaneously, while the substance such as legal products must be in line with the community’s sense of justice. Legal apparatus must have strong accountability, credibility, and capability, while legal culture must also be 507 developed within the community, because it plays an important role in supporting law enforcement. If one of the elements is not met, there will be inequality which leads to unrealized objective of the law enforcement itself for the purpose of materializing the development of a dignified state in order to fulfill citizens’ rights.

The Constitutional Court’s role in upholding the Constitution and materializing equitable development for the fulfillment of the human rights

The direction of Indonesia’s development is guided by the norms of the constitution as the state’s highest norms. The norms of the constitution are subsequently elaborated into the norms of a law as its implementing regulation. Although in a logical-normative manner, it may be understood that a law is the elaboration of norms of the constitution, thus the substantive content of the norms of a law may not contradict the constitution. However in practice, the elaboration of the norms of a law is often not in line with the norms of the constitution. It may be understood because in the process of law drafting, a lot of conflicts of interest often occur.

For the purpose of maintaining the constitutionality of the norms of a law against the 1945 Constitution and materializing development based on the constitution, the Court has the duty to safeguard the constitutionality of the norms of a law so that they are not out of track. In the context of materializing equitable development in order to fulfill human rights, the Court has performed such duty through its several decisions. The examples

are Decisions of Case No. 001-021-022/PUU-I/2003 concerning Judicial Review of Law Number 20 Year 2002 concerning Electricity and Case No. 002/PUU-I/2003 concerning Judicial Review of Law Number 22 Year 2001 concerning Oil and Gas. In both of the Court’s decision, the people are

Anwar Usman collectively considered by the 1945 Constitution as the giver of mandate Republic of Indonesia

Constitutional Court of the to the state to adopt policies (beleid) and perform administration (bestuursdaad), regulation (regelendaad), management (beheersdaad), and supervision (toezichthoudensdaad) for the betterment of the people’s welfare. The regulatory (regelendaad) function is performed by the state through the legislative authority exercised by the People’s Legislative Assembly (Dewan Perwakilan Rakyat (DPR)) along with the government, and regulation performed by the (executive) government. The management (beheersdaad) function is performed through the government’s involvement in the Management of State-Owned Enterprises or State- Owned Legal Entities as institutional instruments, through which the state,

508 c.q. the government, exercise its management of those resources for use for the betterment of the people’s welfare. Likewise, the supervisory function (toezichthoudensdaad) is performed by the state, c.q. the government, for the purpose of supervision and control so that the performance of management of resources and production branches which are important and/or affect the livelihood of the people at large by the state is truly conducted for the betterment of the entire people’s welfare.

In another Decision of the Court, namely Case No. 007/PUU-III/2005 concerning Judicial Review of Law Number 40 Year 2004 concerning National Social Security System (the SJN Law), the Court decides that the 1945 Constitution has expressly required the state to develop a social security system on one hand, but on the other hand it does not require the state to adhere or choose a certain system in developing the intended social security system. It means that any system chosen in the development of such social security must be considered constitutional insofar as it provides social security for all people with the purpose of building the capacity of weak and badly-off people in accordance with human dignity which has become a universal standard.

Closing

The substantive contents of the constitution which are applicable in all states principally contain the guarantee of human right protection for their citizens, in addition to matters related to constitutional regulations. Upholding the constitution is thereby upholding/realizing the fulfillment of the human rights as the rights of the citizens. However, the substantive contents of the constitution which are the basic norms of living as a state are abstract (abstract norms), thus they must be followed up by the drafting of other laws and regulations as their implementing regulations. The norms of the constitution and the provisions of other laws and regulations constitute a unitary legal system which must be upheld. For the purpose of upholding the legal system, there are at least three legal elements which must be taken into account so that law enforcement may be realized. The three elements are legal structure, legal substance, and legal culture. Enforcement of the Constitution order to materialize the development... and improvement of the legal system in

The Constitutional Court as the guardian of the basic norms of living as a state plays a role in maintaining the whole process of living as a state so as to be in line with the constitution, including the development made for the fulfillment of the human rights and realizing a prosperous state. The development made by a state must be certainly based on the provisions of law regulating it. For such purpose, the Constitutional Court plays a role in safeguarding the developmental process for the fulfillment of the human rights and realizing a prosperous nation in line with the norms of the 509 constitution which serves as the fundamental method of living as a state. However, when there is a process which is not in line with the norms of the constitution, the Court may align it by exercising its authority in accordance with the constitutional mandate.

Epilogue Final declaration

513

The printing and binding of this publication ended on october, 2014 in the studios of Aquarela Gráfica, S.A. de C.V., calle Andalucía núm. 151, Colonia Álamos, Delegación Benito Juárez, C.P. 03400, México, D.F. Georgia types 8, 10 and 11 points were used. This edition consist of 1,000 units printed on 60 g. Book cream paper, calibrate to 3.2.

For further information on the participants of the Summit of Constitutional, Regional and Supreme Courts; please refer to the website of the Human Rights Coordination of the Supreme Court of Justice, which can be consulted through this link: http://www.sitios.scjn.gob.mx/cumbre-en/