Category Archives: Comparative Constitutional Law

Notes from a Foreign Field: The EU Withdrawal Act 2018, Henry VIII Powers & The threat to Representative Democracy in England (Guest Post)

(This is a guest post by Preetika Mathur.)

Whilst the judgment of the Supreme Court in NCT Delhi v Union of India is undoubtedly a step forwards for representative parliamentary democracy and the separation of powers in India, England is facing grave threats to both. It seems that the internationally celebrated judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union will not be enough to protect the UK Parliament’s status as the primary law making body vis a vis the executive Government. The EU Withdrawal Act 2018 (the primary piece of legislation designed to implement Brexit) effects a significant transfer of legislative powers from the British Parliament to the executive in a manner that disturbs the established constitutional relationship between the legislature and executive. This is through the use of Henry VIII powers. The Act relies heavily on Henry VIII powers to preserve legal continuity and legal certainty after Brexit.

The Issue:

Article 50 of the Lisbon Treaty governs withdrawal from the European Union. Article 50 provides that the EU Treaties which are the source of all EU laws and institutions shall cease to apply to the exiting State two years after it notifies the European Council of its intention to leave the EU. On the expiry of the two year period, EU laws simply cease to apply to the UK and the UK is no longer subject to the jurisdiction of the European Court of Justice. Article 50 was triggered on 29th March 2019, after Parliamentary approval. This means that the UK has until 29th March 2019 to agree the terms of its departure from the EU. On 29th March 2019, all existing EU laws will simply cease to apply to the UK and it will also no longer be subject to the jurisdiction of the European Court of Justice.

EU law radiates into almost every UK legislative and governmental sphere. To further complicate matters, the extent of its influence also varies from sphere to sphere. For example, in certain areas such as agriculture, fisheries, external trade and environmental regulation it is the dominant or determinative body of law. In other areas such as crime, social security and health it has a marginal impact. In addition, there are a variety of legal mechanisms which are deployed to make EU law have national effect – from Regulations which are immediately enforceable in domestic law to Directives which require national legislation to implement as well as soft law measures.

As a result of these factors, the relationship between EU law and national law is so complicated, interwoven and entangled that in almost every instance it is impossible to determine end of the national and the start of the European. It follows that the consequences of EU law simply ceasing to apply to the UK are likely to lead to a level of chaos and uncertaintanty that poses a serious threat to the Rule of Law. To deal with this problem, the Government has proposed that EU law that is in force before “exit day” should simply continue to remain in force after “exit day”. Indeed, it is difficult to think of any more obvious solution to the lacuna created when the two year period expires. However, the solution of retaining EU law as it existed before “exit day” is far from simple. This is because much of the retained legislation will be unworkable or simply nonsensical after the UK leaves the EU. For example if the law makes reference to EU procedures, EU guidelines, EU decision makers or EU institutions by which the UK is no longer bound and to which the UK no longer has access after “exit day”.

The Government’s Solution:

To deal with the problem of making retained EU law workable, the Government has proposed the widespread use of Henry VIII powers.

Henry VIII powers are powers of delegated legislation. These are conferred on the executive government through primary legislation. Henry VIII powers empower the executive government to amend or repeal existing primary legislation. Delegated legislation is not scrutinised by Parliament in the same way as primary legislation. The Government’s justification for reliance on Henry VIII powers is practical necessity. They take the position that given the tight timetables for departure from the EU and thousands of instances of potential unworkability that are likely to arise in retained EU law, it will simply be infeasible for Parliament to deal with every one itself.

Nevertheless, in spite of the logic of these practical arguments it is clear that the Act elevates powers intended to be exceptional into the norm. It is not the case that the Act merely allows formalities and technical matters to be resolved through the use of Henry VIII powers. Instead, the scope of the powers conferred is such as to enable sweeping substantive changes to policy and to the constitution without proper democratic scrutiny. This is clear from Clauses 8, 9 and 23 in the Act and the lack of corresponding safeguards.


Once triggered clause 8 provides Ministers with the same legislative power as Parliament. Clause 8 (5) empowers Ministers to ‘make any provision that could be made by an Act of Parliament’. Since the reach of the powers is so broad, the circumstances in which such powers may be triggered ought to be strictly curtailed but this is not the case. Clause 8 provides for an exceptionally wide set of circumstances in which executive power to amend or repeal primary legislation may be triggered.

Clause 8 sets the following threshold for the triggering of Henry VIII powers:

“A Minister may by regulations make such provisions as the Minister considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law”.

Clause 8 makes the decision of when to exercise Henry VIII powers the subjective decision of the Minister. The level of subjective satisfaction required before the Minister can decide to use these powers is low. This is because a Minister is only required to consider it “appropriate” to use Henry VIII powers as opposed to “necessary”. The House of Lords Constitution Committee had previously recommended setting the threshold at “necessary” as opposed to “appropriate” in order to establish stricter internal constraints on the decision making of the executive. By setting the trigger at “appropriate” as opposed to “necessary”, resort to Henry VIII powers is not made a matter of last resort and there is nothing indicating that these powers should be used with extreme reserve or indeed even cautiously. This also enables the executive to decide to use these powers based on subjective policy preferences alone.

The drafting of Clause 8 to favour “appropriate” as opposed to “necessary” also has important consequences when it comes to judicial review of the exercise of a Henry VIII power by a Minister. The exercise of Henry VIII powers is judicially reviewable on the basis that the exercise of the power is ultra vires the parent act and outside of the scope of the power that was conferred by the parent act. Therefore, setting the threshold at “necessary” as opposed to “appropriate” would also have given the judiciary greater opportunity for stricter scrutiny of these powers through judicial review.

The executive discretion with respect to when Henry VIII powers may be used is also widened by the definition of ‘deficiency in EU law’ for the purposes of interpreting clause 8. Clause 8 (2) provides that the existence of a deficiency in EU law is also a matter for the subjective determination of the relevant Minister as opposed to being an objective standard.

Further Clause 8 (2) contains a list of situations that amount to a deficiency in EU law that are drafted so broadly that virtually any situation could be said to fall within this list. The first of the specified situations, Clause 8 (2) (a) illustrates this breadth. Clause 8 (2) (a) provides that:

Deficiencies in retained EU law are where the Minister considers that retained EU law – contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant…”.

It follows from this that if a minister considers it appropriate to amend or repeal primary legislation on the basis that in their opinion the legislation is no longer of practical application they can do so. There is no further definition of “practical application” and this easily lets in the subjective policy preferences of the individual minister. For example, this would enable a minister who considers that work place safety or anti discrimination regulations no longer have practical application on the basis of their political ideology to amend or repeal such laws on the basis that they consider it appropriate to do so.

Further, the situations specified in Clause 8 (2) are not exhaustive because of Clause 8 (3). Clause 8 (3) further widens the net by providing that anything of a similar kind to that contained in clause 8 (2) but not actually listed in clause 8 (2) would also count as “a deficiency in retained EU law”. “Of a similar kind” is also not further defined and given the wide range of disparate situations included in Clause 8 (2) – the combined effects of Clause 8 (2) and Clause 8 (3) is to ensure that the amending or repealing of primary legislation is justifiable in almost every situation on the basis of ‘a deficiency in retained EU law’.

Clause 8 includes some restrictions on the delegated powers, such as the stipulations in Clause 8 (7) that the Henry VIII powers cannot be used to impose or increase taxation or fees; make retrospective provisions; create certain types of criminal offence; establish a public authority; amend, repeal or revoke the Human Rights Act 1998 or subordinate legislation made under it; or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998.

Nevertheless, these restrictions do not protect the wide range of rights contained in domestic law which originate from EU law as opposed to from The European Convention of Human Rights through The Human Rights Act. For example, the majority of labour, anti discrimination, environmental, health and safety, social security and data privacy protections arise from EU law. This creates the potential for the removal of hard-won EU fundamental rights protections by the executive through the backdoor.

In the Third Report of the Delegated Powers and Regulatory Reform Committee of the House of Lords from its 2017 – 2019 session, the Committee has given numerous examples of instances where Henry VIII powers could be used to undermine EU fundamental rights protections through the backdoor. The Committee gives the example of the EU Data Protection Regulation which will become retained EU law. Referring to Clause 7 of the Bill, now Clause 8 of the final Act, it states:

Clause 7 allows Ministers to amend it if they think it “appropriate” to remedy any failure of the law to operate effectively arising from the UK’s withdrawal from the EU. Under the Regulation, individuals have rights of access to personal data subject to exceptions such as national security, defence and public security. Ministers might take the view that, once we no longer have to recognise the supremacy of EU law when we have left the EU, the exceptions to data access rights do not operate effectively as regards EU citizens resident in this country and should be widened under clause 7 to prevent them, say, from having a right of access to immigration information held about them by the Home Office”.

Clause 9 of the Act is also similarly broad both with respect to the circumstances in which the powers to amend, modify or repeal primary legislation may be triggered and the scope of the powers once triggered. Clause 9 allows the executive to amend, repeal or modify primary legislation if the Minister considers it to be appropriate to implement the withdrawal agreement. Further, the Act also confers a range of other Henry VIII powers on ministers i.e. through Clause 23 which empowers Ministers to use Henry VIII powers to make “such provisions as the minister considers appropriate in consequence of the Act”. Clause 9 also contains similar restrictions to Clause 8 on the circumstances when the Henry VIII powers may not be exercised – and are subject to the same fundamental rights concerns.

Lack of Safeguards:

Given the sweeping nature of the transfer of legislative powers to the executive it is necessary that the Act should contain important safeguards to mitigate for the breadth of the powers that are conferred. Sadly, this is not the case either.

The Act includes sunset clauses that provide a time limit on the use of the Henry VIII powers. Clause 8 (8) sets a two year time limit after “exit day” on the Henry VIII powers to deal with deficiencies in retained EU law. Clause 9 (4) also provides that Henry VIII powers cannot be used to implement the withdrawal agreement after exit day. Nevertheless, the time period in which the powers may be exercised is still sufficient for widespread use of the powers that are conferred. The government has indicated that it envisages reliance on these powers thousands of times in the run up to and immediately following “exit day”.

Leading NGOs in the UK such as LIBERTY had previously proposed that the Act should contain a “non-retrogression clause” that would state that Henry VIII powers could not be used to worsen human rights protections. This was not included in the final Act. Similarly, Tarunabh Khaitan had previously proposed that the Act should contain a clause expressly stating that amendments to the constitutional scheme could not be carried out through the use of Henry VIII powers. This was also not included in the final Act.

The need for a “non retrogression” or a “no constitutional amendment” clause is all the more pressing in the context of English Constitutional law because of the paucity of implied limitations on the use of such powers. On the contrary, given the supremacy of Parliament in English constitutional law which entails that Parliament can make or unmake any law – the conferral on Ministers of the same power as Parliament can be said to expressly indicate the lack of limitations on these powers. Clause 8 (5) says that regulations made through use of Henry VIII powers may make any provision that may be made by an Act of Parliament.

Tarunabh Khaitan has previously suggested that the exercise of these powers may be subject to the implied limitation of the principle of legality. As Lord Pannick argued in his submissions before the UK Supreme Court in Miller, the common law principle of legality requires Parliament to expressly provide for any abrogation of rights considered fundamental at common law. However, for our purposes there are at least four problems with this argument. Firstly, it can be argued that EU law derived rights are no longer fundamental at common law after Parliament has expressly approved Brexit and after the repeal of The European Communities Act 1972. It was The European Communities Act 1972 that made EU fundamental rights part of domestic law. Secondly, it can in any case be argued that since Parliament has expressly conferred such broad Henry VIII powers on ministers through primary legislation that it envisages these powers could be used to amend or repeal rights protections. Thirdly, the use of the common law principle of legality as a sword remains contentious. There is insufficient precedent to suggest that the Courts would take such an approach when reviewing the exercise of Henry VIII powers. On the contrary, in the case of R (Public Law Project) v Sectrary of State for Justice, the Supreme Court explained that when it comes to review of Henry VIII powers it would consider the narrower question of whether the exercise of a Henry VII power exceeds the statutory purpose for that power that was set out in the parent act that confers the power. Fourthly, when it comes to guiding the actions of ministers who are using such powers – an explicit non retrogression clause or an explicit no constitutional amendment clause contained within the statute itself would have had greater action guiding force than the common law principle of legality. For all these reasons the principle of legality is of itself not sufficient to do the work of an explicit “non retrogression clause” or a “no constitutional amendments” clause.

The Government has also failed to propose any bespoke and adequate system of scrutiny over the powers conferred. It proposes mainly to rely on pre-existing processes, which include ‘Affirmative Resolution’ and ‘Negative Resolution’ processes. The former requires Parliamentary approval of Government draft changes; in the latter the onus is on Parliament to veto Government drafts. Nevertheless, even in the former, the proposals are not subject to the same kinds of debate and discussion as primary legislation. There is a risk of these procedures being merely rubber stamps.

Constitutional Impact:

It is clear that delegated legislation powers sit uncomfortably with principles of settled common law.

From as early as 1610, the English judiciary has sought to curtail the use of Henry VIII powers. In The Case of Proclamations, Sir Edward Coke CJ held that:

No man not even a king, should have such power to make, amend or repeal primary legislation without Parliament”.

In the 1920s Lord Chief Justice Hewart published a book titled ‘The New Despotism’, in which Henry VIII powers were described as arbitrary bureaucratic powers.

The Donoughmore Committee had expressed serious concerns about the increasing resort to Henry VIII powers in its 1932 report, The Report of the Committee on Ministers’ Powers. The Committee stated that in spite of the quantatively insignificant number of times these were relied upon over the period studied by the Committee these powers were a cause for concern. The frequency of reliance on Henry VIII powers envisaged by The EU Withdrawal Act is clearly far greater than anything that could be considered legitimate by The Donoughmore Committee report.

In McKiernon v Secretary of State for Social Security, Lord Donaldson emphasised that Henry VIII powers should be a highly restricted exceptional measure and not the norm. He stated:

“Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

The House of Lords Constitution Committee in its 6th report of Session 2010 – 11 on ‘Public Bodies Bill [HL]’, has expressed strong criticism on widespread use of Henry VIII powers. At paragraph 4 it has stated that Henry VIII powers “remain a constitutional oddity” and that “they are pushing at the boundaries of constitutional principle that only Parliament may amend or repeal primary legislation”. At paragraph 6, the Committee goes on to say that: “The use of Henry VIII powers whilst accepted in certain limited circumstances remains a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided’. ‘a constitutional oddity’ and ‘pushing at the boundaries of the Constitutional principle that only Parliament may amend or repeal primary legislation’.

The practical benefits of the delegated legislation powers conferred come at immense cost to the constitutional settlement. Representative parliamentary democracy became entrenched in the English Constitution through The 1688 Bill of Rights and has been sacrosanct ever since. By making exceptional powers the norm the soon to be EU (Withdrawal) Act undermines representative parliamentary democracy itself. The erosion of Parliamentary power is all the more problematic given that it is driven by a Government which failed to win a majority in the Commons in support of its legislative agenda for Brexit. Even more so because of the undemocratic nature of the referendum which led to Brexit in the first place. The referendum failed to take into account that the British constitutional settlement is founded on representative Parliamentary democracy. The EU Withdawal Act 2018 has same fundamental misassumptions at its core.


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Notes from a Foreign Field: The Constitutional Court of Lesotho Strikes Down Criminal Defamation

In a terse, 37-page judgment delivered last week, the Constitutional Court of Lesotho struck down criminal defamation as unconstitutional. The judgment repays some scrutiny, because many of the arguments raised – and addressed – by the Court are similar to the arguments that were made in the unsuccessful constitutional challenge to criminal defamation in India two years ago. Further, the Lesotho Constitutional Court’s application of the global proportionality standard to invalidate criminal defamation shows a potential path forward here, where proportionality has come to the fore after the judgment in Puttaswamy.

The constitutional challenge in Lesotho arose out of criminal proceedings against a satirical article that mocked the Commander of the Lesotho Defence Forces. The author of the article was accordingly prosecuted. Section 104 of the Lesotho Penal Code defined criminal defamation in terms somewhat similar to the IPC. The relevant defences – also akin to the IPC – included proving that the material was true and for public benefit, or establishing legal privilege.

Section 14 of the Constitution of Lesotho guaranteed the right to freedom of speech and expression. The section also authorised restrictions upon the freedom of speech, including, inter alia, “for the purpose of protecting the reputations, rights and freedoms of other persons (interestingly, the Section also provided for a right of reply).

The Court began its analysis by noting the intrinsic and instrumental benefits of the freedom of expression in a democracy (paragraph 8). These are well-worn by now, and do not need repetition. In particular, the Court focused on the importance of satire in a democracy, and the need for any guarantee of the freedom of speech to protect satire (paragraph 9) – especially where “public figures” such as the (former) Commander of the Lesotho Defence Force were concerned, who ought to “display a higher degree of tolerance” (compare this with the Indian Supreme Court’s invented doctrine of “historically respectable personalities). Within this framework, the Court then applied the three-step proportionality standard to decide whether criminal defamation was constitutional. This standard – in the form that the Court endorsed – requires, first, that a restriction upon rights be imposed only through a law, which has a rational connection with the goal; secondly, that the law impair rights only to the minimal extent necessary to achieve the State interest; and thirdly, that there be an overall balancing between the extent to which the right is infringed, and the importance of the goal (paragraph 16).

Criminal defamation cleared the first hurdle, which was a rational connection with the legitimate State interest of protecting reputation. However, it fell at the second hurdle, that of minimal impairment. The Court found, first, that the law was over-broad and vague, inter alia, because the defence of “public benefit” had not been defined, and that “anything could be characterised as not being for “public benefit” due to the elasticity of this concept” (paragraph 18). In particular, by using this concept as a filter, the Court noted that “the Legislature has granted an unfettered discretion to the Prosecutorial authorities”, which would inevitably cast a chilling effect upon freedom of speech and expression (paragraph 18). The Court also found that through its requirement of “truth”, the Section effectively criminalised satire which, by its nature, “exaggerates and distorts reality” (paragraph 18).

Next, the Court held that criminal defamation also failed on the third prong of proportionality – that of a balance between the goal of protecting reputation, and its curtailment of speech. This included the very real possibility of self-censorship, and the existence of civil remedies (paragraph 19), which helped to achieve the same goal without the stigma, direct targeting, and greater punishments that defined the criminal legal regime. The Court closed with noting that the international trend – from a recent judgment of the African Court on Human and Peoples’ Rights (paragraph 21) to international legal instruments (paragraphs 22 – 23) – was towards holding that criminal defamation was no longer consistent with the requirements of democratic societies. The Court therefore concluded:

“The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in Section 14 of the Constitution. Furthermore, having concluded that criminal defamation laws have a chilling effect on the freedom of expression, and that, civil remedies for reputational encroachment are more suited towards redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment on the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.”” (paragraph 24)

Criminal defamation was, accordingly, struck down.

In light of the Lesotho Constitutional Court’s judgment, and before it, in recent times, the judgment of the High Court of Kenya and the African Human Rights Court (both holding criminal defamation to be unconstitutional, in different ways), the Indian Supreme Court’s rambling, near-incoherent, 268-page judgment in Subramanian Swamy v Union of India (2016), which invented new doctrines such as “constitutional fraternity” in order to uphold criminal defamation as constitutional, seems more and more anachronistic. That apart, however, the Lesotho judgment suggests a way forward: in Swamythe two-judge bench of the Supreme Court did not examine the constitutionality of criminal defamation on the three-step proportionality standard. Many of the arguments made before the Lesotho constitutional court – including overbreadth and vagueness, the chilling effect of terms such as “public good”, and the disproportionality of criminal remedies, were dismissed by the Court without a serious examination under the proportionality standard. In Puttaswamy, however, a nine-judge bench of the Supreme Court definitively incorporated the global proportionality standard into Indian constitutional law. In addition to Swamy’s failure to consider may relevant constitutional arguments (see here), this now makes the case for revisiting that judgment even stronger.

In Puttaswamy, the Court acknowledged – within the short span of five years – that its judgment in Koushal v Naz Foundation had been a mistake. This is to the Court’s credit. It would be equally to its credit to acknowledge that its judgment from two years ago, in Subramanian Swamy, was as grave a mistake – and to join the growing ranks of post-colonial countries that have consigned this anachronistic provision to the dustin of history.

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Notes from a Foreign Field: The South African Constitutional Court’s Decision on Gender Equality and Customary Marriages

(This guest post, on a recent judgment of the Constitutional Court of South Africa, is authored by Tim Fish Hodgson. Tim works on socio-economic rights, is based in Johannesburg and is a former law clerk of Justice Zakeria Yacoob. He is cricket nerd, a law jock and identifies as a heretic. He tweets from @TimFish42. He writes in his personal capacity.)

On 30 November 2017, the Constitutional Court of South Africa handed down an important judgment in Ramuhovhi, which consolidates and expands its body jurisprudence on gender equality in customary marriages and in terms of the recognition of customary marriages.

Ms Munyadziwa Netshituka, a black woman from South Africa’s poor, largely rural, Limpopo province was married to Mr Musenwa Joseph Netshituka. Ms Netshituka was not, however, the only Ms Netshituka to whom Musenwa was married. During his lifetime he concluded both civil and customary marriages with Munyadizwa and customary marriages with three other women: Tshinakaho, Masindi and Diana. Polygamous marriages are permitted in terms of Venda custom.

Musenwa died in 2008 and a dispute arose about how his property should be divided. In Venda customary law, ownership and control of marital property is reserved solely for husbands. However, Mr Netshituka’s will clearly indicated that he believed that he and Munyadizwa were married in community of property and had a “joint estate”. Indeed Munyadizwa was the registered as half-owner of valuable immovable property upon which the Why Not Shopping Centre is located.

When litigation was initiated, Munyadizwa was Mr Netshituka’s only remaining spouse at customary law (Tshinakaho, Masindi and Diana were all deceased). Upon Mr Netshituka’s death two of his sons (those of Tshinakaho and Masindi respectively) sought to challenge Munyadizwa’s right to ownership of this property in particular, and (as indicated above) they based their claim on Vedna customary law. And, if they had succeeded in proving the application of Venda customary law, this argument would have prevailed, potentially leaving Munyadizwa in a treacherous financial position.

Customary law in South Africa’s constitutional democracy

However, in South Africa’s constitutional dispensation customary law cannot be read in isolation. Venda customary marriages, like all other customary marriages, are also protected in terms of the Recognition of Customary Marriages Act (The Act). This includes both monogamous and polygamous relationships.

The Act was passed by Parliament in 1998 to give effect to the South African Constitution, which specifically contemplates protection of “marriages concluded under any tradition, or a system of religious, personal or family law”. This Act is therefore of considerable importance. According to the Constitutional Court, it:

“represents a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country.”

Moreover, as with all other laws, traditions and practices in South Africa, the provisions of the Act must comply with the Bill of Right’s powerful protection of equality. The “achievement of equality” is a founding value of the Constitution, which also entrenches the right to “equal protection and benefit” of the law. It explicitly outlaws discrimination based on both “gender” and “sex”. Furthermore, when customary law is inconsistent with the Constitution, courts are required to “develop” it to ensure that it “promote[s] the spirit, purport and objects of the Bill of Rights”.

Women in Munyadziwa’s position have frequently needed to call on these constitutional provisions to ensure their own protection in terms of customary law. Without them, the Act itself is insufficient. It treats different marriages differently with serious consequences for women. Section 7(1) of the Act regulates such consequences of marriages concluded before the Act’s commencement (“old marriages”) while section 7(2) of Act governs those concluded after the Act’s commencement (“new marriages”).

 The basic and disastrous difference is that while “new marriages” are treated as marriages in community of property (where all property is shared equally between the spouses), the proprietary consequences of “old marriages” remain regulated by customary law. To return to the facts of this case, Mr Netshituka’s sons were therefore relying on the fact that the present case featured an “old marriage”, and therefore, Venda customary law (and not the “community of property” regime under Section 7(1)) would apply.

 The Constitutional Court and customary marriages

 The Constitution Court can (and should) be criticised from a feminist perspective. It has failed to identify, disregarded or ignored gender-specific arguments presented to it by women more often than it should have. It has also handed down some startlingly regressive judgments. Its infamous judgment(s) in Jordan, for example, unanimously refused to strike down legislation criminalising sex work saying: “dignity of prostitutes is diminished not by [the law] but by their engaging in commercial sex work”.

Nevertheless, overall, it has through its jurisprudence committed itself to the protection of formal and substantive equality for women. It has also, at times, been alert to systemic sexism in the form of patriarchy. It has described gendered patterns of behavior and gender-stereotypes as “a relic and a feature of the patriarchy which the Constitution so vehemently condemns”. Its broad position on gender equality has been no different in cases on African customary law.

In 2008, in Gumede, the Constitutional Court had already declared section 7(1) to be unconstitutional to the extent that it applied to monogamous “old marriages”. In coming to this conclusion, it reasoned that this provision is “self-evidently discriminatory” on the ground of gender. It was emphatic that the continued application of the provision in the context of Ms Gumede, an isiZulu women living in the KwaZulu-Natal province, negatively “affected wives in customary marriages” because they “are considered incapable or unfit to hold or manage property”. Women, the Court continued, are “expressly excluded from meaningful economic activity in the face of an active redefinition of gender roles in relation to income and property”.

The task in front of the court in Ramuhovhi, then, was simply to decide whether its reasoning in Ms Gumede’s case on monogamous “old marriage” could be extended to Munyadziwa’s case on polygamous old marriages. Quoting heavily from Gumede the Court confirmed that section 7(1) of the Act “perpetuate[s] inequality between husbands and wives” in old marriages. More specifically, it found that the provision clearly had the effect of violating Munyadziwa’s right to dignity and her right not to be discriminated against based on her gender and marital status. As a result, the challenge to Munyadizwa’s right to own, inherit and control marital property thus failed.

In its judgment, the Court also considered whether s 7(1) could be saved by s 7(4) of the Act. Section 7(4) permits couples to “jointly” approach a court to change the matrimonial property system applicable to “their marriage or marriages”. The Court’s response speaks to a strong understanding of unequal power relations between men and women in South African society. Describing s 7(4) as “cold comfort, if not pie-in-sky” for most women the court reasoned:

“The fact of not owning or having control over marital property renders wives in pre-Act polygamous marriages particularly vulnerable and at the mercy of husbands. They cannot be in an equal-bargaining footing for purposes of reaching agreement to make an approach to court in terms of section 7(4). In fact, some may even be cowed not to raise the issue at all.”

To cap off this reasoning the court added that it “it does not require rocket science” to know that most women “may not even be aware of the existence of the provisions of section 7(4)”. This observation is undoubtedly correct. A mere 46% of South Africans have ever heard of the existence of either the Constitution or the Bill of Rights, while a depressing 10% of people had ever read the Constitution or had it read to them. If people do not know their fundamental constitutional rights it takes legal fiction of science-fiction like proportions to imagine these same people will know complicated, hidden provisions of laws on the statute books.

Customary law and colonialism

 It is worth noting that the Constitutional Court has been particularly careful to respect customary law and to acknowledge the genesis of its patriarchal problems in its judgments. These problems have their origins both in patriarchal African cultures and their “formalisation and fossilisation” but Dutch and British colonial powers and the apartheid government. Therefore, though the court does not deny that patriarchy “has always been a feature of indigenous society” in Bhe it observed that:

“At a time when the patriarchal features of Roman-Dutch law were progressively being removed by legislation, customary law was robbed of its inherent capacity to evolve in keeping with the changing life of the people it served, particularly of women. Thus customary law as administered failed to respond creatively to new kinds of economic activity by women, different forms of property and household arrangements for women and men, and changing values concerning gender roles in society. The outcome has been formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner.”

The result was the development “a particularly crude and gendered form of inequality, which left women and children singularly marginalised and vulnerable” in African customary law which was “recorded and enforced by those who neither practised it nor were bound by it”. These people were white settler colonialists.

The Constitutional Court’s approach to these cases has therefore been to prefer to acknowledge the organic development of “living customary law” – which is developing in a diverse and dynamic manner constantly – instead of repeating the colonial approach of strictly imposing rules from the judges’ lofty positions.

The Court’s understanding of patriarchal power imbalances, combined with its recognition that “those who were bound by customary law had no power to adapt it”, has made it very receptive to women who have approached the court in search protection. It is also critical in dispelling the myth that black African cultures and customs are any more or less patriarchal then the rest of South African society. Patriarchy, the Court rightly observes, “has worldwide prevalence”.

Constitutional promises and constitutional realities

However, as is often the case, paper-based legal protection provides paper-thin protection to women in reality. As retired Justice Zakeria Yacoob has said, contrary to the popular belief of human rights lawyers and bourgeois elites in particular, “our Constitution did NOT create the society it envisaged”. In truth, no Constitution can. Such is the pernicious and ubiquitous impact of patriarchy amongst all customs, cultures and races in South Africa.

And so, almost 20 years after the formal recognition of customary marriages in terms of the Act, women such as Munyadziwa Netshituka bravely continue to approach South African courts clutching onto “the right to equal protection and benefit of the law”. They do so simply to access the rightful benefits of their marriages and life’s work. Sadly, they often also seek protection from both their marriages, families, communities and the law itself.

But translating the constitutional promise of gender equality into a constitutional reality cannot be the business of courts alone. A monumental societal shift is needed. Women like Ms Gumede, Ms Netshituka, Ms Bhe and Ms Shilubana all around South Africa are pushing for this change on daily basis. Too many men refuse to budge, accepting instead the continued spoils of patriarchy. For as long as we men – whether white Jewish men, black Venda men, or Indian Muslim men – continue to endorse and support patriarchy, women will have to continue to fight back using any means they have at their disposal.

To paraphrase the Constitutional Court’s rhetorical question in its judgment in Ramuhovhi, on of the key questions remains: “how many [men] would readily give up their position of dominance?” If the number does not increase dramatically, exponentially and urgently, for all the constitutional protection provided to women (and all the beautiful prose in the Constitutional Court’s judgments), they will continue experience the society in envisioned in the Constitution as elusive: more fiction than fact.

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Notes from a Foreign Field: The High Court of Kenya Strikes Down Criminal Defamation

In an interesting judgment handed down yesterday, the High Court of Kenya held that criminal defamation unjustifiably restricted the right to freedom of speech and expression, and consequently, was unconstitutional and void. The judgment is part of a growing worldwide trend (with a few noticeable exceptions) to decriminalise defamation, whether judicially or legislatively.

The Constitutional Provisions

Article 33(1) of the Kenyan Constitution guarantees the right to freedom of speech and expression. Article 33(2) provides that this right shall not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. Article 33(3) provides that every person must “respect the rights and reputation of others.”

In addition, Article 24 of the Constitution contains a general limitation clause that states:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; (e) and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” 

It is important to note that Article 24 lays down a test of proportionality, which is broadly similar to the test laid down by the Indian Supreme Court in State of Madras vs V.G. Row, where the Supreme Court had held that under Article 19 of the Indian Constitution, the relevant test required consideration of:

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

As we can see, there is an overlap between four of the five prongs of the two tests.

The Court’s Analysis

The Petitioners argued that “criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose.” (pg. 3) To buttress this submission, they cited comparative law, including the judgment of the African Court on Human and Peoples’ Rights, the judgment of the High Court of Zimbabwe, and the 2008 Report of the U.N. Special Rapporteur on Freedom of Opinion.

The Court agreed. First, it held that criminal defamation was not saved by Article 24, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed). To substantiate this argument, the Court applied the doctrine of noscitur a sociis (a word is known by the company it keeps), on the authority – interestingly – of the Indian Supreme Court. Consequently:

“It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest and, therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which in my view aims at largely protecting public interest.”

And, with respect to Section 33:

“Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under article 33 of the Constitution, for Article 33 is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. I base this argument on two grounds:- (i) the common thread that runs through the various grounds engrafted under Article 33 (2) (a)-(d) are relatable to the protection of the interest of the State and the public in general and the word “defamation” has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, “defamation” remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same.”

(There is a parallel worth thinking about here, because the Indian Supreme Court has often held that the purpose of Article 19(2) is to protect “social interests“.)

However, given that Section 24 spoke about the “rights of others“, and Section 33 spoke about “reputation”, was that not a basis for the constitutionality of criminal defamation?  The Court responded that the question was whether criminalising defamation was a proportionate method of protecting the rights of others. It held that it was not. To start with, the Court observed:

“Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” (p. 8)

Within this framework, the Court held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.” (p. 11)

On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.” (p. 11)

While, admittedly, this problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to the Court:

“The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” (p. 11)


“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.” (p. 11)

Furthermore, if proportionality was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. The Court held:

“I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” (p. 14)

Finding that this view was also in accord with international practice as well as the decisions of the African Court, the Kenyan High Court struck down criminal defamation.

Comparisons with India

It is interesting to note that all the arguments that proved decisive with the High Court of Kenya, were argued before the Supreme Court last year in Subramanian Swamy vs Union of India – and almost completely ignored. It was argued that defamation was primarily aimed at protecting individual reputation, and therefore inconsistent with the very purpose of criminal law (to provide public remedies). It was argued that criminalising defamation was a disproportionate response under Article 19(2), because of the nature of the criminal process. And it was also argued that the Court was required to be particularly solicitous to the question of balance as far as the freedom of speech was concerned, because of the reality of the chilling effect. However, instead of engaging with these issues, the Court decided to elevate reputation to the status of the right to life, invented a doctrine of “constitutional fraternity” out of thin air, and upheld criminal defamation in a rambling, 270-page long judgment, which was notable for its failure to address the precise arguments that – as pointed out above – the High Court of Kenya found convincing.

It is not only for its verdict, but also for its lack of reasoning, that Subramanian Swamy needs an urgent rethink. The Kenyan High Court’s terse and lucid 14-page judgment provides us with a good template of what such a rethinking might look like.


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Filed under Comparative Constitutional Law, Constitutional Scholarship, Defamation, Free Speech, freedom of speech, Kenya, Uncategorized

Guest Post: The Curious Case of Salient Features: Exploring the Current Relevance of the Basic Structure Doctrine in Pakistan

(In this guest post, Aratrika Choudhuri, a student at the National University of Juridical Sciences, Kolkata, discusses the recent discussion of the Pakistani Supreme Court on the basic structure doctrine)

The Supreme Court of Pakistan (“SCP”), by an overwhelming majority of 13 out of 17 judges, recently held that it has intrinsic powers to review the constitutionality of a constitutional amendment passed by the Parliament. While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations (e.g. Bangladesh) to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in Pakistan in an identical manner to India. In fact, a different doctrine was developed and upheld- the Salient Features Doctrine (“SFD”). Due to the considerable befuddlement surrounding this area, this essay analyses the SCP’s interpretation of SFD in the understanding of Pakistan’s unique politico-constitutional history, and critiques its understanding of the differences between BSD and SFD.

Put very briefly, the Basic Structure Doctrine, as enunciated in the landmark Indian case Kesavananda Bharati v. State of Kerala, implies that the Constitution of India has certain immutable basic features, which cannot be damaged or destroyed by constitutional amendments enacted by the Parliament, and that the Judiciary has power to strike down such amendments. While the Supreme Court of India has deliberately and steadfastly refused to provide an exhaustive list of “basic features”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure.

In the SCP’s decision, the petitions challenging the 18th Amendment (laying down a new procedure of judicial appointments) and 21st Amendment (setting up a series of military courts to try cases involving terrorism) to the Constitution were heard together as they involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment. The SCP, by aforementioned majority, answered both questions in the affirmative, saying that Article 239(5) (“no amendment of the Constitution shall be called in question in any court on any ground whatsoever”) and Art. 239(6) (“for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament to amend any of the provisions of the Constitution”) still left room for judicial review of constitutional amendments.

The majority verdict asserted that, from State v. Zia Ur Rahman to Nadeem Ahmed v. Federation of Pakistan, the SCP has consistently held that the BSD has been recognized only to the extent of identifying salient or fundamental features of the Constitution. On the other hand, Chief Justice Nasir-ul-Mulk’s opined that the foundations of arguments for BSD in Pakistan are shaky (p. 38)- (1) a stray remark in Mahmood Khan Achakzai v. Federation of Pakistan merely identifying three basic features- federalism, parliamentary form of Government, blended with Islamic provisions (contemporaneously interpreted by two other judges sitting on the same bench as not validating the basic structure theory); (2) a rhetorical unanswered question in Wukala Mahaz v. Federation of Pakistan (“If the Parliament by a Constitutional Amendment makes Pakistan as a secular State, though Pakistan is founded as an Islamic Ideological State, can it be argued that this Court will have no power to examine the vires of such an amendment?”); and (3) a restriction imposed by the SC on military dictator Pervez Musharraf, in Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan from altering the afore-mentioned basic features. Nowhere, however, has such a basic structure as commonly understood in India to be left deliberately vague and undefined, been recognized by the SCP.

The Chief Justice, along with Justice Rahman, argued that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan (especially when there is ample dissent in Kesavananda itself), and that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by appropriate political forums (e.g. parliamentary democracy), not by the judiciary (p. 77). Justice Nisar, concurring, made a passing remark that the earlier trend of passing draconian amendments (e.g., the 5th amendment seeking to “tame” the judiciary, as evinced in Article 280 of the Constitution of Pakistan) has generally ceased and therefore, unlike their Indian counterparts, recent constitutional amendments in Pakistan generally have a unique beneficial intent and effect (p. 535-536). This argument appears to attribute the very “heroism” to elected representatives, which he denounced in case of the Judiciary, and seems optimistic in its assumption that the Parliament would not relapse into such tyranny (1).

Justice Khawaja argued that, on an organic reading of the Constitution, the Parliament’s power to amend the Constitution is constrained by limitations which are both political and subject to judicial review, that the expression “amendment” (ordinarily implying correction and improvement) does not extend to abrogation or destruction and, therefore, SCP has the power to strike down a Constitutional amendment which transgresses these limits (p. 90). He affirmed that the Preamble, on account of its clarity in issuing nine People’s directives, is unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan need not rely on individual proclivities to circumscribe powers of State organs, like Indian judges do (p. 132-133). The dispensation of representatives’ fiduciary obligations in Pakistan would thus be reviewable by the Judiciary, through the mechanisms provided by the Constitution itself– the un-amendable Salient Features embodied by the Objectives Resolution 1949, and not through resort to the polemical realm of abstract philosophical theories, or to extra-constitutional material. Thus, the intractable conundrum of identifying a constantly shifting “supra-constitution” (whose provisions themselves are unknown and identified on a case-by-case basis), despite their immutability in legal prescription, emblematic of judicial aggrandizement and autocracy, could be avoided in Pakistan (p. 522).

 However, even the SFD as recognized by Khawaja, differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed- while the former rooted them in the Preamble, the latter said that the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features(p. 371). While they did not provide an exhaustive list, the 8 judges expressly recognized that Democracy, Parliamentary Form of Government and Independence of Judiciary “are certainly included in the Prominent Characteristics, forming the Salient Features(p. 234). Thus the 13 judges who approved the SFD themselves did not articulate a unanimous theory of what the SFD precisely entails, and whether the prominent features of the Constitution or judicial discretion would reign supreme while interpreting Salient Features, which may lead to potentially very different implications.

Moreover, the Chief Justice opined that subsequent incorporation, of the amended Objective Resolutions 1949, (which was originally just a manifestation of the founding fathers’ desires while enacting the Constitution, and hence could not be interpreted as supra-constitutional grundnorm in the face of clear language of the Constitution itself) as substantive part of Constitution under Article 2A, through the 8th amendment, makes it difficult to accept it as an integral, basic feature of the Constitution initially promulgated (p. 73). Justice Khosa posits that acceptance of any one of the basic features as a touchstone or a test of repugnancy or contrariety qua the other provisions of the Constitution would render the entire Constitution vulnerable to challenge in courts of law (p. 585). This would inevitably call for value judgment by the courts instead of allowing the people deciding as to what is good for them, which “would bring serious damage and destruction, if not doom,” to the present constitutional system in Pakistan (p. 586). Further, Justice Nisar asserted that the opening words of the resolution “…the will of the people of Pakistan to establish an order -Wherein the State shall exercise its powers and authority through the chosen representatives of the people” succinctly delineates sovereignty and authority in the body of elected representatives, not judges (p. 474). Nonetheless, as Justice Isa mentions in passing, it may also be argued that substituting the inanimate State with ‘the people’ reveals the precedence of the body-politic over their representatives, and owing to the transient nature of Parliament for prescribed period, it cannot preserve, protect and defend the Constitution at all times- a function which the Judiciary is oath-bound to fulfill (p. 862). Thus widely different strands of interpretation of Pakistan’s constitutional history and epistemology are observed in the judgment.

Thus the SCP’s verdict does not explain how a scheme reflecting the Constitution’s Salient Features which define the Constitution is realistically different from a basic structure, especially when the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features”. It is open to question how far Justice Khawaja’s own cautionary words against mindless transnational borrowing- grafting of an alien concept onto our body politic otherwise, is as likely to be rejected as an alien organ transplanted in a human body” – have been actually heeded by him and the judges who delivered the majority verdict. This attempt to chart a neutral middle path between complete non-interference and the BSD fails to distinguish itself materially from the BSD, even after the presentation of afore-mentioned arduous and long-drawn arguments.

It is pertinent to mention that critics such as Babbar Sattar have opined that the judgment allows the court to irresponsibly appropriate power for itself, diverting attention from the narrative that roots public support for military courts, in the failures of Pakistan’s criminal justice system, such as failings in ‘due process’ and ‘fair trials’ before ordinary courts, now widely regarded as a sanctuary for terrorists. It is also noteworthy to mention that the concomitant vital question- whether such institution of military courts, without any technical or operational discussion of international and national counterterrorism practices which would actually aid in ending the internal war in Pakistan- has been studiously ignored.



  • See Dietrich Conrad’s famous argument, widely attributed to be the foundation of the BSD in India- “Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper? Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period – discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.”


Filed under Basic structure, Basic Structure in Pakistan, Comparative Constitutional Law, Pakistan

Notes from a Foreign Field: The New Zealand High Court Issues Its First “Declaration of Incompatibility”

(We are starting a new series called ‘Notes from a Foreign Field’, focusing on decisions of other constitutional courts, and constitutional controversies in other jurisdictions, written by specialists from those jurisdictions. In the opening post, Max Harris, a New Zealand lawyer and presently Prize Fellow at All Souls College, Oxford, writes about a recent, important decision of the New Zealand High Court, which broke new ground in the area of judicial review)

On 24 July 2015, Justice Heath of the New Zealand High Court issued a landmark human rights decision, Taylor v Attorney-General [2015] NZHC 1706. The case is worth reviewing for readers outside of New Zealand. it provides an overview of the human rights landscape of a jurisdiction that is often overlooked, presents a further perspective for global debates on prisoner voting, and is an example of robust judicial reasoning in a constitutional context.

The Taylor case arose out of New Zealand’s Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which imposed a blanket ban on prisoners voting in New Zealand elections. The position prior to 2010 had been that prisoners serving a prison term longer than three years were banned from voting. Arthur Taylor, a prisoner, challenged the 2010 Act. He argued that it posed an unreasonable limit on his right to vote, under s 12 of the New Zealand Bill of Rights Act 1990.

The New Zealand Bill of Rights Act 1990 is an early example of a statutory bill of rights. The original draft Bill of Rights empowered judges to strike down legislation, but after public opposition to this, the Act reached a compromise solution. It lists a standard set of rights and freedoms, indicates that rights are subject only to “reasonable limits” that can be “prescribed by law” and “demonstrably justified in a free and democratic society” (s 5), but makes clear that legislation cannot be struck down where limits on rights are found to be unreasonable (s 4). The Act allows the Attorney-General to flag up violations of rights at the legislative drafting stage (s 7), and also notes that “[w]herever” legislation “can be given a meaning” consistent with rights, “that meaning shall be preferred to any other meaning” (s 6).

The Act was a model for the UK’s Human Rights Act 1998. However, unlike the Human Rights Act, the New Zealand Bill of Rights Act 1990 does not spell out the remedies available for litigants in the event that a court finds that legislation unreasonably limits rights. In Simpson v Attorney-General [1994] 3 NZLR 667 (Baigent’s case), the New Zealand Court of Appeal found that damages should be available for violations of the New Zealand Bill of Rights Act. What remained in doubt was whether New Zealand courts could issue a declaration of inconsistency or incompatibility (of the kind explicitly allowed by s 4 of the Human Rights Act 1998 in the UK), where an Act imposes an unreasonable limit on rights. That was the key issue in the Taylor case, because Arthur Taylor asked the High Court to issue a declaration of inconsistency with respect to New Zealand’s prisoner disenfranchisement legislation.

Let us consider the judgment. Justice Heath points to the fact that interestingly, the Crown had conceded that there was inconsistency between the legislation and the right to vote, and agrees with the Attorney-General’s preliminary opinion that there was an inconsistency. He adds one further reason why the legislation is an unreasonable limit on the right to vote: it arbitrarily focuses on imprisonment, rather than conviction, thereby allowing a person who is sentenced to home detention to retain a right to vote, though that person may be as equally culpable as another person sentenced to imprisonment.

So far, so uncontroversial. The real question in the case, however, was that given the acknowledged inconsistency, whether the Court has jurisdiction to grant a declaration of inconsistency, in light of the New Zealand Bill of Rights Act 1990 and relevant policy concerns.

The first argument made by Crown lawyers was that a declaration could not be issued in a case where there is no dispute over interpretation of legislation. It was said that the main remedy provided by the New Zealand Bill of Rights Act is an interpretive one: courts can try to interpret away a possible inconsistency with rights, but cannot issue a declaration saying that legislation is inconsistent with rights. Justice Heath considers this argument and rejects it. He accepts that there are some restrictions on when a declaration can be granted. The New Zealand District Court is a creature of statute and cannot grant any declarations (let alone a declaration of inconsistency), and declaratory relief should not be available in a criminal trial, because a declaration represents civil relief that would be inappropriate in a criminal context. (He cites a Court of Appeal decision that notes the inappropriateness of using civil remedies in a criminal context.) But he suggests that these should be the only restrictions placed, in principle, on the issuing of declarations of inconsistency.

Justice Heath points out that earlier courts had said that judges can, and indeed sometimes must, indicate an inconsistency between legislation and the New Zealand Bill of Rights Act. He says further that to allow a declaration of inconsistency would not contradict s 4 of the New Zealand Bill of Rights Act 1990 – the provision preventing judges from striking down legislation on Bill of Rights grounds. Acknowledging the room for “judicial choice”, Heath J reviews earlier case law where remedies (including damages) for Bill of Rights breaches have been developed. He extracts a general principle that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”. He concludes that Parliament did not intend to exclude the ability of a court to make a declaration of inconsistency.

Justice Heath feels fortified in this conclusion by the fact that a legislative amendment in 2001 allowed declarations of inconsistency in discrimination cases (heard by the Human Rights Review Tribunal in New Zealand). Through this legislative act, Justice Heath says, “Parliament has signaled that it sees no particular objection to that particular remedy being granted”. It would be odd for Parliament to confer this power on a lower tribunal, notes Justice Heath, and to empower higher courts to review use of this power on appeal, but to remove the right of higher courts to issue declarations of inconsistency. Whether a declaration of inconsistency breaches art 9 of the 1688 Bill of Rights (which protects parliamentary privilege and remains part of New Zealand law) or principles of comity between the legislature and the courts are matters that only affect whether a declaration should be issued in a particular case, according to Heath J, not matters that go to the general jurisdiction of a court to issue a declaration.

Addressing whether a declaration of inconsistency is appropriate in the Taylor case, Heath J considers arguments based in the Bill of Rights 1688 and comity. Heath J states that if courts are able to give reasons why legislation imposes unreasonable limits on rights under s 5 of the New Zealand Bill of Rights Act, it is hard to see how a declaration would create any greater intrusion on parliamentary privilege or comity. This is a kind of boot-strapping argument: if s 5 of the New Zealand Bill of Rights Act is constitutionally legitimate (a proposition Heath J assumes), then a declaration of inconsistency must be similarly legitimate.

Courts should not hold back from issuing declarations out of fear that they might be ignored, says Heath J. The New Zealand judicial oath requires decision-making “without fear or favour”. And the Court is, after all, not seeking to persuade – it is merely stating the law (echoing Justice Marshall’s statement from the US Supreme Court decision in Marbury v Madison (1803) 5 US 137). Heath J disagrees with the comments of an earlier judge in an interlocutory decision in the Taylor case that a court might hesitate to issue a declaration where the Attorney-General has already flagged up a Bill of Rights inconsistency in a s 7 report to Parliament. There is no reason why a court “should not reinforce the Attorney’s report”, notes Heath J. He adds that a court should also be able to disagree with an Attorney-General’s report.

Should the absence of a live controversy between parties prevent a declaration? Heath J points out that there is no limit of this kind for ordinary declarations under the Declaratory Judgments Act 1908 (though he doubts whether a declaration of inconsistency could be granted under that Act). Points of “constitutional importance” should be ventilated, says Heath J: “[t]he importance of the right and the nature of the inconsistency are sufficiently fundamental to demand a remedy”.

In this case, Heath J confirms that a declaration of inconsistency will be granted. The case concerns a central aspect of democracy, the right to vote: “if a declaration were not made in this case, it is difficult to conceive of one in which it would”. Heath J notes that “a formal declaration” is more appropriate than “an observation buried in [a court’s] reasons for judgment”. There is no violation of Art 9 of the Bill of Rights 1688 or principles of comity; the comment is on “the consequences of a legislative act”, not the internal workings of Parliament itself. The functions of the Attorney-General’s pre-legislative report and the court are different; the Attorney-General is considering an apparent inconsistency, a court is considering an actual inconsistency. A court’s ruling will also be more accessible. Finally, Heath J says, Parliament’s earlier legislative recognition of declarations in discrimination cases shows a certain amount of approval for the notion of declarations of inconsistency. Heath J notes in passing that there are “powerful arguments” that the earlier limitation on prisoner voting (allowing the vote only for prisoners serving fewer than three years in prison) could be Bill of Rights-compliant. He concludes with the declaration itself, in the following terms:

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.

This is the first case in New Zealand in which a judge has issued a declaration of inconsistency. (In an earlier Court of Appeal case, R v Poumako [2000] 2 NZLR 695 (CA), one judge, Thomas J, issued a declaration of inconsistency, and reviewed the arguments for declarations in some detail. But he was the sole dissenting judge in this case.) The declaration has not resulted in any legislative reconsideration of the prisoner voting ban, however. It seems that no law change will be forthcoming. The Crown has not appealed the ruling.

What more general points, then, can be drawn from this detailed review of Heath J’s reasoning in Taylor v Attorney-General?

First, there are parts of the judgment at which criticism might be directed. Given Heath J’s emphasis on how distinct the Attorney-General’s s 7 report is from a court’s later review of legislation, it is surprising that he does not undertake a fresh proportionality assessment of the prisoner voting legislation in this case. Perhaps Heath J felt that in a controversial case like this one, and as the first judge ever to issue a declaration of inconsistency, it would be safer simply to affirm the Attorney-General’s earlier reasoning.   However, it would have been helpful for Heath J to offer further reasoning on this point, especially since prisoner voting bans have been contentious in other jurisdictions, including the United Kingdom, South Africa, and Canada. (An earlier interlocutory decision of Brown J did refer to some of these other cases.) As well, Heath J is a little peremptory in some conclusions. He is quick to accept that declarations of inconsistency should not be issued in criminal trials, when there is no legislative reference to this carve-out. And he is not entirely convincing in his claim that declarations of inconsistency do not undermine Art 9 of the Bill of Rights. Heath J might also have made some broader comments about the proper approach to the separation of powers and dialogue under the New Zealand Bill of Rights Act. Perhaps, however, these are points that might be expected in the judgment of an appellate court. Overall, Heath J’s judgment is admirably careful, considered, and courageous.

Secondly, the effect of the judgment – even if it is not momentous, and only slightly shifts the pre-existing position – is to recalibrate subtly the relationship between the courts and Parliament in New Zealand. New Zealand is a jurisdiction where judges have restricted powers. There is no single codified constitution in New Zealand, just as there is no single codified constitution in the United Kingdom. The generally accepted position is that judges cannot strike down legislation, and parliamentary sovereignty is often invoked. Judges (with some notable exceptions) tend to be deferential towards the executive and the legislature. Against that backdrop, this judgment gives judges slightly greater powers in human rights cases and should cause Parliament to hesitate a little more when passing legislation that might violate human rights. Whether, of course, Parliament actually shows more respect for human rights as a result of this judgment is an empirical question. The early signs are not especially promising: New Zealand Justice Minister Amy Adams, after the judgment was released, said that she was considering the judgment, but there seems to have been no further comment from the Minister since July of this year. Opposition Labour and Green Parties did use the judgment to call for the prisoner voting legislation to be repealed, and this highlights a further benefit of declarations of inconsistency: even if they do not lead to direct political change, they can provide tools for citizens, campaigning groups, and other politicians to criticise legislation.

In the earthquake-prone islands of New Zealand in the South Pacific, this judgment may not have shifted the tectonic plates of constitutional law – but at the very least, Taylor has jolted the constitutional landscape. The case is a significant milestone in the development of the jurisprudence of the New Zealand Bill of Rights Act 1990, and an important reminder of the valuable role that courts can play in clarifying matters of principle – and upholding human rights.

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