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Principles and standards Archives: Reasonableness

Reyes Aguilera, Daniela v. Argentina

On 05/02/2013 in

Year: 2013 (Date of Decision: 5 February, 2013)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Reasonableness; Proportionality; Nondiscrimination and equal protection of the law; Right to health; Right to social security; Right to an adequate standard of living; Children; Persons with Disabilities; Migrants

Summary Background:

The petitioners in the case asked for a court order compelling the Comisión Nacional de Pensiones Asistenciales (national agency in charge of welfare pensions) to grant a disability pension to Daniela Reyes Aguilera, a 12-year-old Bolivian girl with a severely disabling condition. On the basis of national constitutional law and international human rights law, the petition challenged a discriminatory regulation requiring immigrants to prove 20 years of residence in Argentina to become eligible for a disability pension.

Holding: The Court decided the case in favour of the petitioners and declared that Daniela was entitled to obtain benefits.

The Court affirmed that there is a cognizable human right to social security. The eligibility requirement of 20 years residency for immigrants to receive disability pension was found to be unconstitutional as it was not justified [pp. 8, 27, 34 and 41], was unreasonable (“irrazonable”) [p. 39] and was a disproportionate limitation to the right to social security. The decision also cited other grounds for unconstitutionality of the rule including breach of the right to non-discrimination on the basis of national origin [p. 2 and p. 36], as well as violation of the rights to life [pp. 15], equality before the law [p. 5, 19] and right to health and social security [p. 7].

Additional Comments: The strict scrutiny test was applied. It is also important to note that since the judgement applied only to the case brought before the Court, Daniela did receive a disability award as per the Court’s decision but the residency requirement rule for immigrants was not altered.

Link to Full Case: http://www.cels.org.ar/common/documentos/reyes_aguilera.pdf, summary in English at http://www.escr-net.org/docs/i/1091579

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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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City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another, CCT 37/11 [2011] ZACC 33

On 01/12/2011 in

Year: 2011 (Date of Decision: 1 December, 2011)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Right to adequate housing

Summary Background: The case raised the issue of occupiers of 7 Saratoga Avenue – a community of 86 poor people living in a disused industrial property in Berea, Johannesburg. In 2006, they were sued for eviction by the owner of the property. The question submitted for the decision of the court was whether the occupiers must be evicted to allow the owner to exercise their rights regarding the property and, if so, whether their eviction gave rise to the obligation of the City to provide them with accommodation, even if they were evicted from a private estate and not from public land. In the case, the question of the resources of the City was also raised.

Holding: The Court accordingly upheld the order of the Supreme Court of Appeal [SCA] by ordering the eviction of the occupiers 14 days after the City was ordered to provide those occupiers who were in need with temporary accommodation. This was to ensure that they would not be rendered homeless because of the eviction. The Court found that the City had a “duty to plan and budget proactively for situations like that of the Occupiers” [para. 67] and that its lack of resources was the product of its incorrect understanding of the relevant legislation. Furthermore, the Court upheld the finding of the SCA that the City was not able to show that it was incapable of meeting the needs of the Occupiers. The Court further stated that “[t]he City provided information relating specifically to its housing budget, but did not provide information relating to its budget situation in general. We do not know exactly what the City’s overall financial position is. This Court’s determination of the reasonableness of measures within available resources cannot be restricted by budgetary and other decisions that may well have resulted from a mistaken understanding of constitutional or statutory obligations. In other words, it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its obligations” [para. 74].

Additional Comments: The Occupiers submitted that ‘it would not be just and equitable to grant an eviction order, if the order would result in homelessness’ [para. 32]. As for the City, it contended that the eviction was sought at the instance of the owner of the property, and noted that it cannot be “held responsible for providing accommodation to all people who are evicted by private landowners” [para. 32].

Link to Full Case: http://www.saflii.org/za/cases/ZACC/2011/33.html

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Public Service Alliance of Canada v. Canada Post Corporation and Canadian Human Rights Commission

On 17/11/2011 in

Year: 2011 (Date of Decision: 17 November, 2011)

Forum, Country: Supreme Court; Canada

Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Right to decent work; Women

Summary Background: The Canadian Supreme Court reviewed a decision of the Canadian Human Rights Tribunal (CHRT) regarding a claim by the Public Service Alliance of Canada (PSA) that employees in the male-dominated Postal Operations Group were paid more than employees in the female-dominated Clerical and Regulatory Group for work of equal value, contrary to section 11

(1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex. (2) In the case of a complaint by an individual, where at least two other employees of the establishment perform work of equal value, the weighted average wage paid to those employees shall be used to calculate the adjustment to the complainant’s wages.
of the Canadian Human Rights Act (“equal wages” provision.) Using job evaluations to determine the comparability of the work of the two groups of employees, the CHRT had determined that there was sufficient evidence of wage discrimination between 1982 and 2002. Canada Post commenced judicial review proceedings in the Federal Court, where the CHRT’s decision was overturned.

On appeal to the Federal Court of Appeal, the majority agreed with Canada Post that the CHRT decision was unreasonable, as the use of job evaluations did not meet the requisite standard of proof to support a finding that wage discrimination had taken place. The PSA appealed to the Supreme Court of Canada.

Holding: The Supreme Court endorsed the reasons of the dissenting Evans J.A from the Federal Court in support of the initial decision by the CHRT. This was based on the arguments that the CHRT was reasonable in using the Postal Operators group as the male-dominated comparator, even though this group included a large number of highly paid women [para. 5]. Justice Evans reaffirmed that this did not preclude the existence of systemic gender discrimination elsewhere in the corporation [para. 69]. Secondly, Evans J.A. supported the CHRT’s reliance on the job evaluations and its application of the “balance of probabilities” standard of proof in finding that a wage gap existed between the two groups [para. 68]. He reiterated the Tribunal’s discretion in choosing a methodology to determine the existence and extent of a wage gap, and that it did not act “unreasonably” in adopting one proposed by the CHRC. Finally, Evans J.A and the Supreme Court emphasized the high degree of discretion awarded to specialized tribunals in their determination of appropriate remedies. The Tribunal at first instance did thus not err in awarding compensation to “make the victims whole,” while reducing the cost of the damages where the magnitude of the damage was uncertain.

The decision of the CHRT was subsequently restored, requiring Canada Post to compensate 50 per cent of the wage gap between the two groups over the twenty-year period.

Link to Full Case: Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 57, [2011] 3 S.C.R. 572, available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7975/index.do

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Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa, Government of the Province of Western Cape, Case no: 18678/2007

On 11/11/2010 in

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: High Court; South Africa

Standards, Rights: Reasonableness; Non-discrimination and equal protection of the law; Human dignity; Negligence; Right to education; Persons with disabilities

SummaryBackground: This case concerned the rights of severely and profoundly intellectually disabled children in the Western Cape and allegations that their educational needs were not being adequately met by the South African national and Western Cape Governments. Children with such disabilities were unable to receive care except at limited places in centres run by NGOs, which were insufficient in number. Children who could not obtain access to these centres received no education at all. It was contended that State educational provisions made for these children were very much reduced as compared to other children and any provisions made were inadequate to cater to the educational needs of the affected children.

Holding: The Court held that the respondents (the South African and West Cape Governments) had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the rights of children to a basic education, protection from neglect or degradation, equality, human dignity [para. 52 (1)].

On the right to education, the Court found that the State had violated this right, both in respect of the positive dimension of the right, by failing to provide the affected children with a basic education and also in respect of the negative dimension of the right, by not admitting the children concerned to special or other schools [para. 45]. The Court found no justification for this violation. The State failed to establish that their policies were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom [para. 42].

The Court additionally held that the children’s rights to dignity had been violated as the discrimination they have faced had in effect caused them to be marginalized and ignored [para. 46]. The failure to provide the children with education placed them at the risk of neglect, as it meant that they often had to be educated by parents who did not have the skills to do so and are already under strain. The inability of the children to develop to their own potential, however limited that may be, is a form of degradation. This unjustifiably violated their right of protection from neglect and degradation [paras. 46 and 47].

In light of these findings, the judgement required the State to take reasonable measures (including interim steps) to ensure access to education for every child in the Western Cape who was severely and profoundly intellectually disabled, provide necessary funds for special care centres and transportation of the children to these centres and to develop a plan of action to remedy the aforementioned violations [para. 52].

Additional Comments: The national Government chose not to appeal this decision.

Link to Full Case: http://www.saflii.org/za/cases/ZAWCHC/2010/544.html

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Lindiwe Mazibuko & Others v. City of Johannesburg & Others, Case CCT 39/09, [2009] ZACC 28

On 08/10/2009 in

Year: 2009 (Date of Decision: 8 October, 2009)

Forum,Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Rights to water and sanitation

Summary Background: This case considers the lawfulness of a project the City of Johannesburg piloted in Phiri in early 2004 that involved re-laying water pipes to improve water supply and reduce water losses, and installing pre-paid meters to charge consumers for use of water in excess of the six kiloliters per household monthly free basic water allowance.

Holding: The Court held that the right of access to adequate water protected under the Constitution did not require the State to provide upon demand every person with sufficient water, but rather required the State to take reasonable legislative and other measures to realize achievement of the right within available resources [para. 50].

In the Court’s estimation, the free basic water policy established by the City of Johannesburg, which charged consumers for use of water in excess of the free basic water allowance of six kiloliters, fell within the bounds of reasonableness [para. 9]. In elaborating on the reasonableness test and delineating the court’s role as regards the State’s positive obligations, the decision states, “the positive obligations imposed upon government by the social and economic rights in our Constitution will be enforced by courts in at least the following ways. If government takes no steps to realize the rights, the courts will require government to take steps. If government’s adopted measures are unreasonable, the courts will similarly require that they be reviewed so as to meet the constitutional standard of reasonableness…. Finally, the obligation of progressive realization imposes a duty upon government continually to review its policies to ensure that the achievement of the right is progressively realized” [para. 67]. The Court affirmed the democratic value of litigation on social and economic rights. It noted that the applicants’ case required the City to account comprehensively for the policies it has adopted and establish that they are reasonable [paras. 160-163].

On the issue of minimum core protection of the right to water, the Constitutional Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it is not appropriate for a court to give a quantified content to what constitutes “sufficient water”, as this is a matter best addressed in the first place by the government [paras. 56 and 61-68].

Additional Comments: This case reflects a deferential approach by the Court and in particular, a reluctance to interfere in matters it deems as falling within the executive and legislative spheres.

Link to Full Case: http://www.saflii.org/za/cases/ZACC/2009/28.html

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