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Madeli Fakudze v. Commissioner of Police and Ors (8/2002)

On 04/09/2014 in

Year: 2002 (Date of Decision: 1 June, 2002)

Forum, Country: Supreme Court; Swaziland

Standards, Rights: Rule of law; Right to adequate housing

Summary Background: Madeli Fakudze (the respondent in this appeal) was one of four individuals served with a removal order in August 2000 by the Minister of Home Affairs. The respondent claimed that security forces had wrongfully evicted him after he was granted an injunction from the High Court to stop his eviction. Upon returning to his home, the respondent was confronted by police officers and told they were acting upon a verbal order from the Commissioner of Police to eject the respondent immediately, in contravention of the court order. The High Court then proceeded to overturn the injunction it had granted, purporting to restore the status quo ante. The police officers claimed they were fully aware of the court orders issued at the time, but that issues of “national security” had prevented them from enforcing these orders and that threats to national security overrode all other interests, whether they rise out of a court order or not.

Holding: The Court rejected the defence of national security, deeming it a “last gasp attempt” to raise a barrier to the enforcement of the court order [p. 8]. The Court highlighted that an officer from the Attorney-General had made no objection or raised any security concerns at the initial decision of the Court of Appeal to permit the evictees to return to their homes. The Court denounced the police officer’s failure to disclose any information to the Court on which a reasonable apprehension could be based that a threat to national security might exist, and thus had acted in contempt of the court order with no reasonable excuse for deviation [p. 8].

The Court reaffirmed the injunction of Matsebula J, stating “anyone wilfully refusing or failing to comply with an order of this Court exposes himself to the imposition of a penalty…to compel performance in compliance with the court order” [p. 9].

The Court acknowledged that contempt of court is a criminal offence, yet as per S v. Beyers 1968, it held that in cases of civil contempt as in this case, it is left to the aggrieved party in the proceeding to seek the relief. It sentenced one police officer to a term of imprisonment [p. 10].

Link to Full Case: http://www.swazilii.org/sz/judgment/supreme-court/2002/9

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John Doe et al. v. Regional School Unit 26, No. 7455/2001, Decision 2014 ME 11

On 30/01/2014 in

Year: 2014 (Date of Decision: 30 January, 2014)

Forum, Country: Supreme Court; United States of America

Standards, Rights: Non-discrimination and equal protection of the law; Right to education; Rights to water and sanitation; LGBTI

Summary Background: Susan Doe is a transgender girl. Her identity as a girl is accepted by all parties and the diagnosis of her gender dysphoria is not disputed. The issue of her use of communal girl’s bathroom was not raised until September 2007, her fifth-grade year, when pressure started to come from other students and their families. As a response to this pressure, the school terminated Susan’s use of the girls’ bathroom and required her to use the single-stall, unisex staff bathroom. In her sixth-grade year at Orono Middle School, she was also denied use of the girl’s bathroom and instead required to use a separate, single-stall bathroom.

Holding: This case is an appeal by John and Jane Doe, the parents of Susan Doe, of a summary judgement from the Superior Court that was in favour of the Regional School Unit 26 against the Doe family. The family argued that the school’s decision to discontinue Susan’s use of a communal bathroom consistent with her gender identity was a violation of the prohibition of discrimination on the ground of sexual orientation and gender identity under the Maine Human Rights Act (MHRA) as amended in 2005. The Regional School Unit 26, for its part, argued that the nondiscrimination provision of the MHRA conflicts with the provisions regulating sanitary facilities in schools entailed in the Maine Revised Statute (20-A M.R.S. section 6501).

The Maine Supreme Judicial Court thus considered two issues: whether there was a conflict between the provisions of the two statutes; and whether the exclusion of Susan Doe from communal girl’s bathroom violated the Maine Human Rights Act.

In particular, the Court looked into the Public Accommodation section in the Maine Human Rights Act (section

The opportunity for every individual to have equal access to places of public accommodation without discrimination because of race, color, sex, sexual orientation, physical or mental disability, religion, ancestry or national origin is recognized as and declared to be a civil right.
and the Sanitary Facilities provision in Maine Revised Statute (20-A M.R.S. §6501). The former prohibited discrimination based on sexual orientation in public accommodations. The Court held that an elementary school is a place of public accommodation. The latter required a “school administrative unit shall provide clean toilets in all school buildings, which shall be…separated according to sex and accessible only by separate entrances and exits.” [paras. 14, 16 and 17 ].

The Court held that these statutes served different purposes and they were reconcilable by adopting a consistent reading. The public-accommodations and educational-opportunities provisions of the MHRA aimed to prohibit discrimination based on sexual orientation and to ensure equal enjoyment of and access to educational opportunities and public accommodations and facilities. The sanitary facilities provision on the other hand aimed to establish cleanliness and maintenance requirements for school bathrooms. It did not purport to establish guidelines for the use of school bathrooms and offered no guidance concerning how gender identity relates to the use of sex-separated facilities. It was the responsibility of each school to make its own policies concerning how to use these public accommodations and to ensure such policies comply with the MHRA [para. 19].

The Court held that the ban on Susan’s use of the girls’ bathroom constituted discrimination based on her sexual orientation. The Court refuted the defence of the School that it had to comply with the provision for sex segregation in sanitary facilities under the M.R.S. The Court asserted that the decision of the school to discontinue the use by Susan of the girl’s bathroom was not based on a change of her status, but solely on complaints by others. The decision was adversely affecting Susan’s psychological wellbeing and educational success. The Court established that this discrimination based on Susan’s sexual orientation violated the MHRA [para. 22].

Link to Full Case: http://www.maine.gov/mhrc/doe.pdf

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Amparo No. 631/2012 (Independencia Aqueduct)

On 08/05/2013 in

Year: 2013 (Date of Decision: 8 May, 2013)

Forum, Country: Supreme Court; Mexico

Standards, Rights: Right to adequate housing; Rights to water and sanitation; Right to free, prior and informed consent; Right to an adequate standard of living; Indigenous people

Summary Background: The Mexican Government approved a large-scale water supply and construction project involving the transmission of around 60 million cubic metres of water from the “El Novillo” dam to the Sonora river basin to supply the city of Hermosillo. The Yaqui tribe (the initial appellants) claimed the project was in violation of their rights to territory, consultation and to a safe environment and sought a writ for the protection of their constitutional rights (an “amparo”). The group argued the river is a source of both economic and cultural sustenance and that they were, by law, holders of 50 per cent of the water, as provided for in a presidential decree.

The Fourth District Court found in favour of the Yaqui tribe. SEMARNAT (the federal environmental agency) appealed to the Supreme Court of Justice.

Holding: The Supreme Court upheld the Fourth District Court’s decision in favour of the Yaqui tribe and maintained that the State of Mexico had erred in failing to inform or consult the tribe at first instance [p. 88]. Upon request for further clarification from the appellants, the Supreme Court issued a decision expressly outlining the conditions to be met by the State; namely, the project was to be halted until proper consultation was effected between the State and the Yaqui tribe [p. 86].

The Supreme Court ordered that such consultation be prompted in accordance with the appropriate tribe customs, that it outline any irreversible damage caused by the project, and that a finding of any violations may result in the project being stopped [p. 83].

Additional Comments: Since this decision was issued, it has been noted that enforcement of the judgement has been poor and consultations with the Yaqui tribe are yet to take place. This was the first time the Inter-American standards on the right to consultation with indigenous communities was acknowledged in Mexico.

Link to Full Case: http://www.escr-net.org/es/node/365316, English translation accessible at http://www.escr-net.org/node/365312

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ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n.186)

On 26/04/2012 in

Year: 2012 (Date of Decision: 26 April, 2012)

Forum, Country: Supreme Court; Brazil

Standards, Rights: Reasonableness; Proportionality; Non-discrimination and equal protection of the law; Right to education

Summary Background: The issue at stake in this case is the constitutionality of racial quotas in the admission process at the University of Brasilia.

Holding: In this case, the Brazilian Federal Supreme Court declared the racial quotas in University admission processes to be constitutionally lawful. The case referenced national constitutional law as well as the International Convention on the Elimination of All Forms of Racial Discrimination [p. 8]. The Court stated that these affirmative policies set a plural and diversified academic environment, and aimed at overcoming historically entrenched social distortions as well as to promote the principle of de facto equality as applied to racial discrimination in education [p. 47].

The Court addressed the issues of proportionality and reasonability as standards to evaluate the constitutionality of policies aimed at achieving racial equality. The decision concluded that the means employed by the University were distinguished by proportionality and reasonability to the ends pursued, particularly given the transient nature of their scope of application (with the inclusion of a periodic review of as to results) [p. 45].

The President of the Court asserted that the Constitution has given legitimation to every public policy promoting historically and culturally marginalized social sections: “[t]hose are affirmative policies entitling every human being the right to an equal and respectful treatment. This is the way we build up a nation”.[254] During the Court session, the Ministers (the title given to Supreme Court Judges in Brazil) stated that the quotas were compatible with the Constitutional mandate to establish a free, fair and united society and the eradication of social marginalization and inequality.

Additional Comments: The decision confirmed the constitutionality of racially-based affirmative action programs adopted by other universities in Brazil. Brazilian universities who have adopted affirmative action can now preserve these programs.

Link to Full Case: http://www.acoes.ufscar.br/admin/legislacao/arquivos/arquivo13.pdf

Footnotes    (↵ returns to text)

  1. 254. See the information provided by the Federal Tribunal, accessible at: http://www2.stf.jus.br/portalStfInternacional/cms/destaquesClipping.php?sigla=portalStfDestaque_en_us&idConteudo=207138↵
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A v. Municipality of Egedal and Ministry of Labour

On 15/02/2012 in

Year: 2012 (Date of Decision: 15 February, 2012)

Forum, Country: Supreme Court; Denmark

Standards, Rights: Core content; Non-discrimination and equal protection of the law; Margin of discretion; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: After having been granted refugee status in 2003, the applicant received ‘Start Help’ benefits (reduced unemployment benefits) until 2007, instead of regular unemployment benefits, which could only be granted to persons who had spent at least seven years in Denmark.

He claimed that this violates article 75.2 of the Constitution, which obliges the State to help those who cannot support themselves. Moreover, he alleged a violation of article

articleThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
ECHR (prohibition of discrimination) in conjunction with article
1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
(right to respect for private and family life) and article
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Protocol 1 ECHR (protection of property) because the requirement of having spent at least seven years in Denmark affects relatively more foreigners than Danish nationals and therefore constituted an indirect discrimination.

Holding: The Supreme Court found that article 75.2 of the Constitution entails an obligation for the State to ensure a minimum level of existence for persons covered by it. However, the court found that the size of the ‘Start Help’ and other benefits that the applicant received were sufficient to satisfy this provision. With regard to the ECHR, the Court noted that it leaves the States wide discretion to determine matters of social and economic policy. Therefore, the Court held that ‘Start Help’ did not constitute indirect discrimination in contravention to article 14 ECHR in conjunction with article 1 Protocol 1 ECHR.

Additional Comments: ‘Start Help’ was abolished in December 2011 and the regular unemployment benefits may now be obtained even if the person in question has not resided in Denmark for a specified period of time.

Link to Full Case: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/den/den-2012-3-001

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Dorothy Ann Finch and others v. Commonwealth Health Insurance Connector Authority, Case No. SJC-11025 (MA S. Jud. Ct., Jan. 5, 2012)

On 06/01/2012 in

Year: 2012 (Date of Decision: 6 January 2012)

Forum, Country: Supreme Court; United States of America

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Right to social security; Migrants

Summary Background: This case involves a legislative decision of the State of Massachusetts that denied State subsidies (provided under the Commonwealth Care Health Insurance Program) to lawful non-citizen immigrants living in the United States for less than five years. Plaintiffs sought a declaration from the Court that this exclusion from the program was unconstitutional.

Holding: The Massachusetts Supreme Judicial Court, applying strict scrutiny, decided that excluding the said category of lawful, non-citizen immigrants from the aforementioned health insurance program was in violation of the equal protection clause of the Massachusetts Constitution. It was held that the exclusively fiscal concerns, which had motivated the exclusion could never constitute a compelling government interest in a strict scrutiny review [pp. 237-242]. Further, the Court found that the State had made no attempt to meet the rigorous procedural requirements designed to ensure that the legislation was narrowly tailored to further a compelling interest [pp. 242-249]. “Narrow tailoring requires ‘serious, good faith consideration’ of ‘workable’ nondiscriminatory alternatives that will achieve the Legislature’s goals.” Those requirements were not met in this case [p. 242].

In its conclusion the Court states “[m]inorities rely on the independence of the courts to secure their constitutional rights against incursions of the majority….If the plaintiffs’ right to equal protection of the laws has been violated…then it is our duty to say so” [p. 249].

Additional Comments: Since the case was determined on State constitutional grounds, there could be no further appeal to the U.S. Supreme Court, so this judgement stands as the final judgement on this aspect of the case.

Link to Full Case: http://masscases.com/cases/sjc/461/461mass232.html

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