In a drunken incident, after being provoked, the defendant hit another person repeatedly with an iron bar, killing him. The jury found him guilty. The Supreme Court of Tonga had to consider whether to sentence the defendant to death or life imprisonment. It chose life imprisonment. In so doing, it made reference to Article 6(1) of the ICCPR, to which Tonga was not a party. Nevertheless, the Court allowed the ICCPR to influence its decision in this first verdict in a murder case in Tongatapu in over twenty years. This was a major departure from prior decisions by Tongan courts, which held the ICCPR to be non-enforcable. Thus, the ICCPR and international human rights standards were gaining influence in Tonga.

[ link ] 

The defendant was convicted on a charge of conspiracy to manufacture methamphetamine. He appealed to the Supreme Court of New Zealand, claiming there was undue delay in the interim between his arrest and trial (almost five years). The Court called the delay “plainly excessive” and cited the European Convention for the Protection of Fundamental Rights and Freedoms. It also cited multiple U.S. Supreme Court cases and held that the delay here could not be justified, and upheld the reduction of his sentence by eighteen months, or twenty-five percent. It hesitated to do, however, out of a concern for letting loose dangerous criminals. It called the reduction “generous” and hinted that only in situations in which the delay in trial reaches “peculiarly outrageous proportions” would the Court reduce prisoners’ sentences.

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(though international documents like the Rio Declaration are not binding, the Court observed, ''the fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating transboundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence.'')

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 261)

(the Court in this case referred to the 1992 Rio Declaration on Environment and Development and other nonbinding agreements as having been transformed into ''Custoary International Law though [their] salient feature[s] have yet to be finalised by the International law Jurists.''

The Supreme Court of India declined to get involved in a petition against damming the Narmada River. In so doing, the Court noted that a lengthy decision-making process had been behind the damming, and that the Court should not try to second-guess something which had been given such great consideration already. Thus, the Court essentially gave the go-ahead for the displacement of indigenous and tribal populations which were in the path of the damming. In its decision, the Court took into consideration the Indigenous and Tribal Peoples Convention of 1957, the ILO Convention No. 107, and principles of international environmental law.

The defendant had made moves to install industry near a lake. The Indian Supreme Court ruled against the defendant. It referred to various courts around the world, and to a decision of the Inter-American Commission on Human Rights, when it said that ''the concept of a healthy environment as a part of the fundamental right to life, developed by our Supreme Court, is finding acceptance in various countries side by side with the right to development.''

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 260)

The Indian Supreme Court allowed the laying of pipes as it found that the plan to do so was thought out and would not unduly damage the enrivonment. The Court referred to the Declaration of the 1972 Stockholm Conference on the Human Environment as the ''Magna-Carta of our environment''. The laying of such pipes would be in line with the Declaration, and thus the Court allowed it. In other cases, the Court imported into domestic law the principles or concepts of sustainable development, the ''polluter pays'' principle, and the precautionary principle.

A mother wrote a letter to the Supreme Court of India, requesting monetary compensation for the death of her 22-year-old son, who died in police custody. She claimed that her son was beaten to death. The Supreme Court took up her case.

“Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 lays down that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.. This Covenant has been ratified by India,56 which means that the State has undertaken to abide by its terms . . . The State has a .duty of care. to ensure that the guarantee of Article 21 is not denied to anyone. This .duty of care. is strict and admits no exceptions the Court said. The State must take responsibility by paying compensation to the near and dear ones of a person, who has been deprived of her/ his life by the wrongful acts of its agents. However, the Court affirmed that the State has a right to recover the compensation amount from the wrongdoers.”

A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article 21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus, Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article 21's fundamental right to life, the victim was entitled to compensation.

The UDHR was cited in an attempt to convince the Supreme Court of Nauru that a right to marry a non-Nauruan woman should be incorporated into the Nauru Constitutional Bill of Rights. The Supreme Court rejected this attempt, however.

[link]

The appellant went to a police officer’s home on a weekday morning while the police officer was sleeping after coming off of a night shift. The appellant knocked on the police officer’s door and the police officer answered. The appellant then stood in the street playing a guitar and protesting the police officer’s role in an earlier search warrant incident. After he refused to cease, he was arrested after the arrival of other officers. The appellant challenged this, and thus the issue was whether the appellant’s fundamental right to freedom of expression afforded him greater legal weight in court than the police officer’s right to privacy.

In determining whether privacy is a “right” or a “value”, the Supreme Court of New Zealand noted that New Zealand was committed to the ICCPR. The ICCPR allows for restrictions on the freedom of expression if they are reasonable, and if the Court were to follow the ICCPR here, the appellant’s appeal could have been denied. However, the Court ruled in favor of the appellant by favoring the NZ Bill of Rights, which does not allow for such restrictions on the right to freedom of expression. Thus, the Court went above and beyond the ICCPR in providing for freedom of expression, though by doing so the right to privacy was somewhat infringed. The Court also cited the UDHR, the ECHR, the CRC, the Charter of Fundamental Rights of the European Union, the American Convention on Human Rights, the Cairo Declaration on Human Rights in Islam. The Court also affirmed that there is a right to privacy in New Zealand.

[link]

The Supreme Court of Vanuatu cited CEDAW and used it as a guide in formulating a principle for distribution of matrimonial assets. The Court held that there is a presumption of joint or equal ownership of all matrimonial assets.

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A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

The Supreme Court of New Zealand allowed for an appeal of a case regarding whether the Convention Relating to the Status of Refugees (a UN document) was properly applied.

[link]

An election was held. After the election, it was contended that there had been irregularities in the voting process at various polling places, including ballot stuffing, early closure of polling stations, and intimidation. The Supreme Court of Sri Lanka held that the irregularities would have affected the result of the election and that there therefore should have been a re-poll at those polling stations. It said, “The right to a free, equal and secret ballot is an integral part of the citizen's freedom of expression, when he exercises that freedom through his right to vote . . . That right is an essential part of the freedom of expression recognized by Article 14(1)(a) of the Constitution, especially in view of Sri Lanka's obligations under Article 25 of the International Covenant on Civil and Political Rights and Article 27(15) of the Constitution . . . The citizen's right to vote includes the right to freely choose his representatives, through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has a right to a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs." The Court then held that because the respondent had not ensured a fair election process, and subsequently had not annulled the polling at stations with irregularities, the right of the petitioners under the Sri Lankan constitution had been infringed. However, as nearly two years had passed in the interim, the Court held that it would not be feasible to declare the results of the respective polling stations invalid nor to order a re-poll. It did, however, award the petitioners their costs, even though they had not asked for compensation.

[link]

The person elected by resident voters to the Provincial Council subsequently resigned, creating a vacant seat on the Council. The government then selected a person who was not on the ballot at election time to fill the seat. This was challenged in the Sri Lankan Supreme Court, which ruled that such action was invalid. It also held that only people who had been on the ballot at election time could be selected to fill a vacant seat on the Provincial Council. The Court said, “What is involved is the right of the electorate to be represented by persons who have faced the voters and obtained their support . . . That is wholly consistent with Article 25 of the International Covenant on Economic, Social and Cultural Rights, which recognizes that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representative.” (emphasis in original).

[link]

(Papua New Guinea ratified the ICCPR on July 21, 2008. (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en) Since then, it has been cited at least once by the Supreme Court, in July 2010. Though the Papua New Guinea Supreme Court citation of international human rights norms as a whole is limited compared to countries in the region such as New Zealand and Fiji, it will be interesting to see if the recent ratification of the ICCPR leads to more ICCPR and human rights norms citations, as the July 2010 case would suggest.)

The Supreme Court of Papua New Guinea decided on an issue concerning the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC), a law which put restrictions on elected officials switching parties, ostensibly to avoid a “musical chairs” of political party membership. Under OLIPPAC, a candidate could not be endorsed by more than one political party, and after the election, the elected official had to remain a member of his or her chosen political party for a given amount of time. He or she would then be subject to investigation if he or she did switch. Thus, there was concern that this would force elected officials to go along with the party and become yes men or women, lacking freedom to vote their conscience rather than with their party, and also the freedom to switch parties when they felt that their own views had become convergent with those of the party.

The Supreme Court of Papua New Guinea called this a “draconian” law. “A person’s right to hold political beliefs and to enjoy that right individually or in association with likeminded persons, ought not be restricted or prohibited in any democracy. This right, amongst other human rights, is recognised as an inherent and unalienable right under the International Bill of Human Rights (1978) and the United Nations International Covenant on Civil and Political Rights (1966), both of which PNG has ratified.” The Court then struck down the relevant provisions of OLIPPAC. The Court seemed to do so mostly on grounds that OLIPPAC was unconstitutional, but nevertheless, the ICCPR was cited for support.

[link]

The Supreme Court of New Zealand noted that neither the ICCPR nor the ECHR provide for a right to trial by jury, but that New Zealand law does.

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The Indian Supreme Court cited an Amnesty International report when it noted the arbitrary nature of death penalty application. The Court said that “extremely uneven application of [the ‘rarest of the rare’ formulation] . . . has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle.” The Court also noted the UN General Assembly moratorium resolution, as well as the general worldwide trend of avoidance of the death penalty, particularly in Nepal, Bhutan, the Philippines, and South Korea.

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A police officer was charged with a disciplinary offense regarding “financial imprudence” resulting in the impairment of an officer’s operational efficiency. He was given the penalty of compulsory retirement. The disciplinary proceedings did not allow him an attorney at the hearing. The officer then challenged the fairness of such proceedings.

The Court of Final Appeal needed to determine whether Article 10 of the Bill of Rights (Article 14 of the ICCPR) was applicable. Article 10 required a fair hearing by an independent and impartial tribunal in the determination of any “criminal charge” or a person’s “rights and obligations in a suit at law”. In making its decisions, the CFA looked to the case law of the European Court of Human Rights regarding article 6(1) of the European Convention on Human Rights (similar to Article 10 of the Hong Kong Bill of Rights) and General Comment No. 32 of the Human Rights Committee, which concerned article 14(1) of the ICCPR.

The CFA noted that recent European case law (for example, the then-latest decision of the Strasbourg Court in Eskelinen v. Finland, (2007) 45 Eur. H.R. Rep. 43) followed the trend of extending protection of Article 6(1) of the European Convention to civil servants. However, another international source, the Human Rights Committee, in its General Comment No. 32, had expressed essentially a contrary view. Thus the CFA had to negotiate two conflicting sources of international law. The CFA chose to favor the interpretation of the Strasbourg Court, and thus adopted the Eskelinen approach and ruled in favor of the defendant. The defendant was thus entitled to Article 10’s constitutional protection regarding a fair hearing.

This case further demonstrates the great influence on Hong Kong jurisprudence of the European Convention on Human Rights.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 32-34, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )

A person had been imprisoned for over ten years. He argued that this violated domestic and international law regarding provisional detention.

The Court noted that the Extraordinary Chambers in the Courts of Cambodia (ECCC) was meant to follow procedure in line with Cambodian law. However, the Court said, the ECCC was allowed to adopt its own Internal Rules that complied with international standards. “The ECCC law not only authorizes the ECCC to apply domestic criminal procedure, but also obligates it to interpret these rules and determine their conformity with international standards prescribed by human rights conventions and followed by international criminal courts. Moreover the ECCC must consider Article 31 of the Constitution of the Kingdom of Cambodia which states that ‘the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights.’ Even if a violation of the Accused’s right cannot be attributed to the ECCC, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention.”

The Court then held that the imprisoned person’s detention before the Military Court constituted a violation of Cambodian law. It also violated his internationally-recognized right to a fair and speedy trial.

However, the Court held that the ECCC did not violate domestic or international law by ordering the prisoner to provisional detention. However, the Court also held that if he were to be convicted, he would be entitled to not only credit for time already served, but also to a reduction in sentence, owing to “previous violations to his rights”. If he were to be acquitted, the Court held, international case law indicated that he could seek compensation for violations of his rights, here, those committed by the Cambodian Military Court.

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In deciding the standards governing whether a judge should be removed from a case because of a fear of bias, the Supreme Court of New Zealand looked to decisions of the European Court of Human Rights and also to the European Convention. The Court held that a judge may be removed based on a reasonable apprehension of bias, even though this would sometimes lead to an unbiased judge being removed. In this case, the Court held that there was no bias by the relevant judge, and dismissed the appeal.

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The defendants were convicted of insider trading by the Insider Dealing Tribunal. The defendants argued that Tribunal rules were violative of the defendants’ right to be free from self-incrimination. They also argued that the Tribunal applied against them the incorrect standard of proof – the correct standard of proof should have been that of a criminal proceeding, not of a civil proceeding, as mandated in Articles 10 and 11 of the Bill of Rights (Article 14 of the ICCPR).

In reaching its decision, the Court of Final Appeal relied on the European Court of Human Rights (“the Strasbourg Court”) and the General Comments of the UN Human Rights Committee under the ICCPR. Justice Mason, the former Chief Justice of Australia, was a visiting judge. He said that decisions of the Strasbourg Court, though not binding on Hong Kong courts, were “of high persuasive authority”. He also noted the similarity of Article 10 of Hong Kong’s Bill of Rights to Article 6(1) of the European Convention. Justice Mason then applied the Strasbourg Court criteria for determining whether there is a “criminal charge” as per Article 6 of the Convention. He also referred to General Comment No. 32 of the Human Rights Committee , which related to Article 14 of the ICCPR.

The CFA thus held that the standard of proof of a criminal proceeding was the proper standard of proof in this case, and thus the defendants should have had the benefit of such a standard. The CFA also held that the defendants’ right to freedom from self-incrimination had been violated. Regarding the standard of proof, the CFA noted that neither the ICCPR nor the European Convention were clear on the matter. Furthermore, the relevant law of the Strasbourg Court was not conclusive either. Accordingly, the Court relied heavily on the Human Rights Committee’s General Comment No. 13 and General Comment No. 32, which both suggested that proof beyond a reasonable doubt was the proper standard as per Article 14 of the ICCPR. Justice Mason said, “The General Comments [of the Human Rights Committee] are a valuable jurisprudential resource which is availed of by the Committee in its adjudicative role. While the General Comments are not binding on this Court, they provide influential guidance as to how the ICCPR is applied and will be applied by the Committee when sitting as a judicial body in making determinations.”

(found in "International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong" by Albert H.Y. Chen, pp. 27-30, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )

The government of Papua New Guinea had declared a state of emergency in the resource-rich province of Southern Highlands. The Supreme Court had to consider whether the declaration of the state of emergency was valid. The Court looked for guidance to the ECHR, the Inter-American Convention on Human Rights, and especially to the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, which gave guidelines for when states could derogate from their ICCPR obligations so as to protect the state or populace. The Court noted that though Papua New Guinea had not ratified the ICCPR, it could provide assistance.

The Court ultimately ruled that the incidents in this case did not allow for the declaration of a state of emergency. Rather, they were “ordinary problems” which could be dealt with by ordinary criminal laws. The Court then declared the declaration of the state of emergency invalid.

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The applicant (F) claimed damages of $29,000 for being wrongfully assaulted by the police. F, aged 13 years (12 at the time of the incident), was savagely beaten by police officers after being falsely accused of theft. F was detained by the police for 20 hours before being released. F also claimed that he had suffered injuries as a result of the attack. Upon his release, F further claimed that he had been threatened. The police pleaded guilty and accepted that F had been wrongly accused.

Decision

F was awarded damages of $10,000, comprising $5,000 for wrongful confinement and $5,000 for exemplary damages. The court referred to the case of Akau'ola v Fungalei [1991] Tonga LR 22, and issued the following admonition to police officers:

A number of police officers still appear to believe that they have the right to exercise discipline over the public … such abuse of authority will not be tolerated, and where it is proved to have occurred it will be stamped on, with increasing severity, until the bully boy in uniform no longer roams our streets.

Police officers had to understand that their role in criminal investigation was exactly that – to investigate cases through interviewing witnesses and, through appropriate use of forensic methods, to gather hard factual evidence that would stand up in a court of law.

In December 1995, Tonga acceded to the CRC. The judge further said that though it still had to be properly ratified, the accession indicated a willingness by the nation to be bound by its terms. Article 37 of the convention sets out the obligations of a state concerning the apprehension and detention of a child (defined as a person under the age of 18 years). The opening words of each paragraph of the article are relevant to the present case. They read:

• No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …
• No child shall be deprived of his or her liberty, unlawfully or arbitrarily …
• Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age …
• Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance …

In the present case, all of these obligations were flagrantly abused. However, in the assessment of damages, the fact that some Tongans have no regular source of cash income was taken into account with a view to keeping awards of damages in proportion to the value of money and general conditions in the Kingdom.


http://www.paclii.org/other/PHRLD/pacific-human-rights-law-digest-2.html#FAAOSO_v_PAONGO__ORS

A man was allegedly tortured by the police while in their custody. The man died in custody. The man’s widow petitioned the Supreme Court of Sri Lanka on behalf of her deceased husband. The Supreme Court cited the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment and held that the widow not only had the right to file suit on behalf of her deceased husband, but also that there existed in Sri Lanka a constitutionally protected right not to deprive of life, as well as a right to life. The Court said, “The interpretation that the right to compensation accrues to or devolves on the deceased's lawful heirs and/or dependants brings our law into conformity with international obligations and standards, and must be preferred.” The Court then ordered a total compensation of 800,000 rupees to the wife and child of the deceased.

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Fourteen defendants were awaiting trial and all but one had been released on bail. The respective court had ordered them all to be remanded back into custody on the sole ground that the trial was being held on four days of the week. The defendants appealed this remand, arguing that it was an arbitrary refusal of bail in violation of the Sri Lankan constitution. However, the court rejected their appeal, saying that the remand was an “interim order” against which there was no right of appeal. The Supreme Court of Sri Lanka held that the defendants had been denied bail arbitrarily. In so holding, the Court cited Article 9 of the UDHR and also Article 9 of the ICCPR when it said that “[t]he right to liberty and security of person is a basic tenet of our public law and is universally recognized as a human right guaranteed to every person”. The Court held that granting bail was the rule, not the exception, and that a court could only refuse bail for certain reasons laid out in Sri Lankan law. The Court then quashed the previous order refusing the defendants bail.

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A male was convicted of murder. The incident occurred when the male was sixteen years old. Following his conviction, he did not appeal, and had served over four years of his sentence when he petitioned the High Court of Tuvalu for a review of his case, given that he was a minor when the crime occurred. In deciding on the case, the Court cited the CRC and said that Tuvalu, as a signatory, was "required to review [its] laws in relation to children." The Court then suggested that legislation be passed mandating greater review by the government of life imprisonment or sentences of many years, especially for children. However, the Court refused to alter the applicant's sentence of life imprisonment, as he had not appealed and was essentially asking the Court to review one of its earlier decisions.

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The petitioner is a cook employed by Colombo Dockyard Ltd. He complains that the 1st to 8th Respondents have infringed his fundamental rights under Article 13 (1) by reason of his unlawful arrest on 3.6.2002, under Article 11 by torture thereafter whilst in Police custody, and under Article 13 (2) by unlawful detention till 4.6.2002. The 1st to 7th Respondents are Police Officers of the Wattala Police. The 1st Respondent is the Officer in Charge, the 2nd Respondent is the Officer-in-Charge Crimes, the 3rd to 5th Respondents are Sub Inspectors, and the 6th and 7th Respondents ate Constables.  The 8th Respondent is the Inspector-General of Police.

The Petitioner's wife and brother also stated that the Petitioner had told them what had happened after arrest; that he had been blindfolded, his hands had been tied, and he had  been hung from a beam; that he had been assaulted by the 1st to 7th Respondents and another officer with iron rods and wooden poles for about an hour, despite crying out in pain; that while being beaten he was questioned regarding a murder, of which he knew nothing; that he had then been laid on the floor and his hands burnt with lighted matches, that no statement had been recorded from him; and that later that day he was taken to the 1st Respondent who had told him that they had made a mistake and he would be released the next morning.

 The Petitioner was admittedly released from Police custody at about 11.30 am, on 4.6.2002 .

Court ruling:

Order

I grant the Petitioner a declaration that his fundamental rights under Article 11, 13 (1) and 13 (2) have been infringed by the 1st , 3rd , 6th and 7th Respondents, and award him a sum of Rs. 800,000 as compensation and costs (excluding medical expenses) , payable on or before 30.06.2003. Of that sum, the 1st Respondent will personally pay Rs. 70,000, the 3rd Respondent Rs. 40,000, the 6th Respondent Rs. 20,000 and the 7th Respondent Rs. 20,000, and the State will pay Rs. 650,000.

The Petitioner also claimed reimbursement of medical expenses incurred at Nawaloka Hospital. Learned Counsel for the 1st , 3rd ,6th and 7th Respondents contended that the Nawaloka charges were exorbitant and that the Petitioner could have sought treatment at a  State hospital. The evidence is that the Petitioner's wife and brother did not rush to Nawaloka in the first instance, but were content to go to the Wickramarachchi Ayurvedic Hospital, and that it was in consequence of medical advice then received that they brought him to Nawaloka. However good the standard of treatment in State hospitals may be, there is no doubt that many Sri Lankans do opt for treatment in private hospitals-sometimes in the belief that treatment and care is better, and something because of fears in regard to delays, over crowding, strikes, shortages of equipment and drugs, etc.. Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner's wife's choice of the latter was not unreasonable-and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural Rights recognizes the rights of everyone "to the enjoyment of the highest attainable standard of physical and mental health."

http://www.janasansadaya.org/page.php?id=130&lang=en

The defendants had committed a robbery. In the process, they tied up and stabbed a person, who died from ligature strangulation. It was possible that the defendants did not intend to kill the victim. Nevertheless, they received mandatory life imprisonment sentences for murder. The defendants appealed the life imprisonment sentence, as they claimed they lacked the necessary culpability for murder. On appeal at the Court of Final Appeal, the Court rejected these claims and upheld the life imprisonment sentences. In so doing, the Court compared Hong Kong’s Bill of Rights with the European Convention on Human Rights (ECHR). Nevertheless, the life imprisonment sentences remained.

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(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

(found in ''Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission'' by Amanda Whiting, Stanford Journal of International Law, Winter 2003, Volume 39, Number 1, pp. 84-88)

(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

(found in ''Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission'' by Amanda Whiting, Stanford Journal of International Law, Winter 2003, Volume 39, Number 1, pp. 84-88)

Two non-indigenous villagers challenged the validity of the village representative election arrangements in the villages they lived in. This case involved a number of constitutional and administrative law issues, but the digest below will only focus on issues relating to the anti-discrimination ordinances.

Court’s decision

First, in the villages concerned, while non-indigenous females married to indigenous villagers had the right to vote, but non-indigenous males married to indigenous villagers were not entitled to such right, the Court held that this amounted to sex discrimination against men under s. 5 (1) , s. 6(1) and s. 35 (3) of the SDO.

Second, due to the above arrangement, married non-indigenous females enjoyed the right to vote, whereas single non-indigenous females did not. This amounted to marital status discrimination under s. 7 (1)(a) and s. 35 (3) of the SDO.

Third, in order to have the right to vote, married female indigenous villagers must have resided in the village for seven years while there was no such requirement for married male indigenous villagers. Fourth, female indigenous villagers were excluded from standing as candidates in elections, while there was no such prohibition against male indigenous villagers. These amounted to sex discrimination against women under s. 5 (1) and s. 35 (3) of the SDO.

The Court of Final Appeal restated the following general legal principles which are relevant to all set discrimination cases:

In considering whether a particular arrangement is discriminatory or not, the Court will adopt the “but for” test, to look at whether there is a less favourable treatment on the ground of a person’s sex. For example, if a female would have received the same treatment as a male but for her sex, then there is discrimination.

The intention or motive of the defendant to discriminate is not a necessary condition to liability, though it may be a relevant consideration. A prima facie case of discrimination will arise when a particular arrangement has the effect of favouring some persons because of his or her sex or marital status.

https://www.eoc.org.hk/eoc/graphicsfolder/showcontent.aspx?content=significant%20court%20cases#sd_c1

Sardar Sarovar Dam was constructed on Narmada river that run in four States (Gujarat, Madhya Pradesh, Maharashtra and Rajasthan) in India starting in 1987. In April 1994, Narmada Bachao Andolan filed a writ petition inter alia praying that the Union of India and other respondents should be restrained from proceeding with the construction of the dam and they should be ordered to open the aforesaid sluices. Narmada Bachao Andolan cited displacement and rehabilitation problem that the project would cause. It called for further study as well as postponement of construction pending completion of such study. It has also argued for reduction in the height of the dam so as to reduce the extent of submergence and the consequent displacement.

The court discussed the petitioner's argument:
the forcible displacement of tribals and other marginal farmers from their land and other sources of livelihood for a project which was not in the national or public interest was a violation of their fundamental rights under Article 21 of the Constitution of India read with ILO Convention 107 to which India is a signatory. Elaborating this contention, it was submitted that this Court had held in a large number of cases that international treaties and covenants could be read into the domestic law of the country and could be used by the courts to elucidate the interpretation of fundamental rights guaranteed by the Constitution. Reliance in support of this contention was placed on Gramaphone Co. of India Ltd. Vs. B.B. Pandey, 1984(2) SCC 534, PUCL Vs. Union of India, 1997(3) SCC 433 and CERC Vs. Union of India, 1995(3) SCC 42. In this connection, our attention was drawn to the ILO Convention 107 which stipulated that tribal populations shall not be removed from their lands without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security or in the interest of national economic development. It was further stated that the said Convention provided that in such cases where removal of this population is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of lands previously occupied by them, suitable to provide for their present needs and future development.

The court however decided to allow the project to be completed. Among other discussions it ruled the following:

While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is in our Constitutional frame-work a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Courts jurisdiction.

At the same time, in exercise of its enormous power the Court should not be called upon or undertake governmental duties or functions. The Courts cannot run the Government nor the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the constitution casts on it a great obligation as the sentinel to defend the values of the constitution and rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the Court will not interfere. When there is a valid law requiring the Government to act in a particular manner the Court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words the Court itself is not above the law.


https://main.sci.gov.in/jonew/judis/17165.pdf

After discussions that ended on 04. 08. 1997, the representatives of the Government and Freeport Mac Moran of USA and its affiliate IMCO Agrico initialled the final drafts of the Mineral Investment Agreement and subsidiary documents in respect of a deposit of phosphate rock at Eppawela in the Anuradhapura district. The proposed agreement granted the Company the sole and exclusive right (a) to search and explore for phosphate and other minerals in the Exploration Area (b) to conduct test or pilot operations at any location within the Contract Area (c) to develop and mine under Mining Licences any phosphate deposits (including associated minerals) found in the Exploration Area.

The petitioners being residents of Eppawela engaged in cultivation and owning lands there, one of whom was the Viharadhipati of a temple, complained of infringement of their rights under Articles 12(1), 14(1)(g) and 14(1)(h) of the Constitution by reason of the proposed agreement. They relied on the analysis of several professional experts and reports of the National Academy of Science and the National Science Foundation who were of the opinion that the proposed agreement will not only be an environmental disaster but an economic disaster.

Court ruling:

In the introduction to the proposed Mineral Investment Agreement, it is stated, "The Government seeks to advance the economic development of the people of Sri Lanka and to that end desires to encourage and promote the rational exploration and development of the phosphate mineral resources of Sri Lanka." (The emphasis is mine.)

Undoubtedly, the State has the right to exploit its own resources, pursuant, however to its own environmental and development policies. (Cf. Principle 21 of the U.N. Stockholm Declaration (1972) and Principle 2 of the U.N. Rio De Janeiro Declaration (1992). Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment. (Principle 14, Stockholm Declaration). Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. (Principle 1, Rio De Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Principle 4, Rio De Janeiro Declaration). In my view, the proposed agreement must be considered in the light of the foregoing principles. Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not legally binding in the way in which an Act of our Parliament would be. It may be. It may be regarded merely as `soft law'. Nevertheless, as a Member of the United Nations, they could hardly be ignored by Sri Lanka. Moreover, they would, in my view, be binding if they have been either expressly enacted or become a part of the domestic law by adoption by the superior Courts of record and by the Supreme Court in particular, in their decisions.

                                                    xxx                                        xxx                                     xxx

It is unnecessary for the purposes of the task in hand to enter into the matter of the alleged beneficial nature of the proposed agreement: The petitioners' case is that there is an imminent infringement of their fundamental rights guaranteed by Articles 12(1), 14(1)(g) and 14(1)(h). I have stated my reasons for upholding their complaints. The "balancing" exercise referred to by learned counsel has been already done for us and the Constitution sets out the circumstances when any derogations and restrictions are permissible. Article 15(7) of the fundamental rights declared and recognized by Articles 12 and 14 are "subject to such restrictions as may be prescribed by law", among other things, for "meeting the just requirements of the general welfare of a democratic society." In the light of the available evidence, I am not convinced that the proposed project is necessary to meet such requirements. In any event, the circumstances leading to the imminent infringements have not been, "prescribed by law" but arise out of a mere proposed contract, and therefore do not deserve to be even considered as permissible.

For the reasons set out in my judgment, I declare that an imminent infringment of the fundamental rights of the petitioners guaranteed by Articles 12(1), 14(1)(g) and 14(1)(h) has been established.

http://www.asianlii.org/lk/cases/LKSC/2000/18.html

Bichhri is a small village in Udaipur district of Rajasthan. To its north is a major industrial establishment, Hindustan Zinc Limited, a public sector concern. That did not affect Bichri. Its woes began somewhere in 1987 when the fourth respondent herein, Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum [said to be the concentrated form of Sulphuric acid] and Single Super Phosphate. The real calamity occurred when a sister concern, Silver Chemicals [Respondent No.5], commenced production of `H' acid in a plant located within the same complex. `H' acid was meant for export exclusively. Its manufacture gives rise to enormous quantities of highly toxic effluents - in particular, iron-based and gypsum-based sludge - which if not properly treated, pose grave threat to mother Earth. It poisons the earth, the water and everything that comes in contact with it. Jyoti Chemicals [Respondent No.8] is another unit established to produce `H' acid, besides some other chemicals. Respondents Nos.6 and 7 were established to produce fertilizers and a few other products.

All the units/factories of Respondents Nos.4 to 8 are situated in the same complex and are controlled by the same group of individuals. All the units are what may be called "chemical industries". The complex is located within the limits of Bichhri village.

                       xxx                  xxx                 xxx

Since the toxic untreated waste waters were allowed to flow out freely and because the untreated toxic sludge was thrown in the open in and around the complex, the toxic substances have percolated deep into the bowels of the earth polluting the aquifers and the subterranean supply of water. The water in the wells and the streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating the land. The soil has become polluted rendering it unfit for cultivation, the main stay of the villagers. The resulting misery to the villagers needs no emphasis. It spread disease, death and disaster in the village and the surrounding areas. This sudden degradation of earth and water had an echo in Parliament too. 

                       xxx                  xxx                 xxx

It is averred by the respondents that both the units, Silver Chemicals and Jyoti Chemicals have stopped manufacturing `H' acid since January, 1989 and are closed. We may assume it to be so. Yet the consequences of their action remain - the sludge, the long-lasting damage to earth, to underground water, to human beings, to cattle and the village economy. It is with these consequences that we are to contend with in this writ petition.

Court ruling:

This is a social action litigation on behalf of the villagers of Bichhri whose right to life, as elucidated by this Court in several decisions, is invaded and seriously infringed by the respondents as is established by the various Reports of the experts called for, and filed before, this Court. If an industry is established without obtaining the requisite permission and clearances and if the industry is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity, can it be suggested with any modicum of reasonableness that this Court has no power to intervene and protect the fundamental right to life and liberty of the citizens of this country. The answer, in our opinion, is self-evident. We are also not convinced of the plea of Sri Bhat that R.P.C.B. has been adopting a hostile attitude towards his clients throughout and, therefore, its contentions or the Reports prepared by its officers should not be relied upon. If the respondents establish and operate their plants contrary to law, flouting all safety norms provided by law, the R.P.C.B. was pound to act. On that account, it cannot be said to be acting out of animus or adopting a hostile attitude. Repeated and persistent violations call for repeated orders. That is no proof of hostility. 

                       xxx                  xxx                 xxx

In Oleum Gas Leak Case, a Constitution Bench discussed this question at length and held thus:

"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non- delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.

The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all responsable care and that the harm occurred without any negligence on its part.

                       xxx                  xxx                 xxx

The question of liability of the respondents to defray the costs of remedial measures can also be looked into from another angle, which has now come to be accepted universally as a sound principle, viz., the "Polluter Pays" Principle. (note: the Court states that this principle was adopted in "absolute terms in Oleum Gas Leak Case.")

https://indiankanoon.org/doc/1818014/?__cf_chl_jschl_tk__=d211c32250a5ce6815207e738f23b327640f0984-1609727281-0-AeUqcSuBfUSetUdL-FuUzd75lxluf3KPxVBTWDnUMQddPgf_-l2OM9fo7eEOKN4N3fFQc4wMa5xXP9ptZkDuit9dWCi3gRjrGUGOwtjIue4JG7azxyBOvj3lCrURiz-wjXUb7IueT_HoOtqr3_7NuMfLYopqsuVa3Y0BnYC4xSV_4HDxn9Ih4HLi02pJeIfIXHnqOm2D8Zdk3DvCEGxEEbBei7mNQTHrgVdqWlzMuYc8Ew3BxjyAUjYdWsX7qISMO2v7DPL0d52ZxE3YzMI4HEMOSkQJBLsg0X_LTOArDnU1t2AysjliLhWJoSiO2c4UicQKocrcZZLiQ8h23KqviV7E38jP6pQVOACs-hY1sj1UVzdoxY3OVwiPt2W9A2DcUQ

This case dealt with the questions whether the Constitution guaranteed the right to a clean environment as a part of the right to life and whether there was locus standi of NGOs or individuals working for the protection of the environment. The petitioners claimed that the respondents’ industrial activities had caused environmental degradation to Godawari forest and its surroundings. The respondents’ factory emitted dust, minerals, smoke and sands, which had excessively polluted the nearby water bodies, land and atmosphere of the said area, thus causing danger to the property, life and health of the people around. Thus the petitioners filed this writ petition seeking mandamus in the name of the respondents, to enforce the right of the people to live in a healthy environment.

The court was of the view that a clean and healthy environment was part of the right to life under Article 11 (1) of the Constitution of the Kingdom of Nepal 1990. Life was threatened in polluted environment and it was the legitimate right of an individual to be free from a polluted environment. As the protection of environment was directly related with life of the human being, it should be accepted that this matter was included in Article 11(1) of the Constitution of the Kingdom of Nepal (1990).

Regarding the locus standi the court emphasized that the applicant had a profound interest in the present environmental issue. In fact an environmental problem was a matter of public interest and concern. The petitioner had a strong relationship with the environmental subject of the present dispute. The present Constitution had established public interest as a protectable fundamental right. Also, environmental conservation according to the constitution was one of the basic Directive Principles of the State. Environmental conservation was one of the objectives of the applicant, so the applicant had locus standi for the prevention of the environmental degradation.

The court also stressed that it was beyond doubt that industry was the foundation of development of the country. Both the country and society needed development, but it was essential to maintain environmental balance along with industry. However, the petitioner had not been able to clearly point out a specific section of the law that had not been obeyed or followed. For the purpose of mandamus, legal duty had to be definite and fixed. Therefore mandamus could not be issued. Taking into account the sensitive, humanitarian issue of national and international importance such as the protection of the environment of Godawari area, the court decided to issue directives in the name of the respondents to enforce the Minerals Act (1985), enact necessary legislation for protection of air, water, sound and environment and to take action for protection of the environment of Godawari area.

https://www.informea.org/en/court-decision/suray-prasad-sharma-dhungel-v-godavari-marble-industries-and-others

Several minors, represented by their parents, filed a complaint (in the form of a taxpayers' class suit) against the Secretary of the Department of Natural Resources to require him to ensure the "full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests" by "their generation as well as generations yet unborn." The lower court dismissed the complaint. The petitioners appealed to the Supreme Court to question the lower court decision.

The Supreme Court ruled in favor of the Petitioner minors:

This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.

https://lawphil.net/judjuris/juri1993/jul1993/gr_101083_1993.html#rnt17

Bangladeshi and Indian courts, as well as scholarly articles, have cited this case.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 251)

Cases

Mabo and others v. Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 F.C. 92/014 (3 June 1992)

Mabo v. Queensland (No. 1) (1988) 166 CLR 186  F.C. 88/062 Summary of proceedings: AUSTLII WebsiteLegislationNative Title Act 1993 (Cth)

Background

On 20 May 1982, Eddie Koiki Mabo, Sam Passi, David Passi, Celuia Mapo Salee and James Rice began their legal claim for ownership of their lands on the island of Mer in the Torres Strait between Australia and Papua New Guinea. The High Court required the Supreme Court of Queensland to determine the facts on which the case was based but while the case was with the Queensland Court, the State Parliament passed the Torres Strait Islands Coastal Islands Act which stated 'Any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879 is hereby extinguished without compensation'.The challenge to this legislation was taken to the High Court and the decision in this case, known as Mabo No. 1, was that the Act was in conflict with the Commonwealth Racial Discrimination Act of 1975 and was thus invalid. It was not until 3 June 1992 that Mabo No. 2 was decided. By then, 10 years after the case opened, both Celuia Mapo Salee and Eddie Mabo had died.Six of the judges agreed that the Meriam people did have traditional ownership of their land, with Justice Dawson dissenting from the majority judgment. The judges held that British possession had not eliminated their title and that 'the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'.

Following the High Court decision in Mabo No. 2, the Commonwealth Parliament passed the Native Title Act in 1993, enabling Indigenous people throughout Australia to claim traditional rights to unalienated land.(Source: Documenting a Democracy: Mabo v Queensland)

Legal issues

The first question was whether the Meriam people did have traditional rights and interests in the land of the Murray Islands and, if so, whether Australian law would protect those rights and interests. If native title is recognised, are Indigenous people entitled to compensation if their land is taken away?

The High Court held by a majority of 6-1 that the Meriam people were entitled, as against the whole world, to the possession, use, occupation and enjoyment of (most of) the land of the Murray Islands. The six judges in the majority rejected the traditional doctrine that Australia was terra nullius ('land belonging to no-one') at the time of European settlement.

Rather the majority found that the common law of Australia recognises a form of native title to land. Pre-existing rights and interests in land survived colonisation and still survives today:ƒ

• where the people have maintained their connection with the land; and ƒ
• where their title has not been extinguished by legislation or any action of the executive arm of the government inconsistent with that title.

Neither the establishment of the colonies nor Queensland's 1879 annexation of the Murray Islands extinguished the Meriam people's native title. However, native title could still be readily extinguished by government actions inconsistent with respect for native title and, before 1975, there was no right to compensation. The relevance of the RDA is that it requires fair and just compensation to be paid for loss of native title after 1975. Failure to pay compensation would be racially discriminatory because other land holders are entitled to compensation.

(Source: Human Rights & Equal opportunities Commission Website: Racial Discrimination/ Landmark Cases under the Racial Discrimination Act 1975)

After the proceedings commenced the Queensland Government passed the Queensland Coast Islands Declaratory Act in 1985. This Act purported to extinguish whatever rights and interests the Meriam people might have had under their traditional law. It also purported to extinguish traditional rights retrospectively (with effect from 1879 when Queensland annexed the islands) and without compensation. The Murray Islanders argued, among other things, that the 1985 Queensland Act denied them equality before the law and the enjoyment of their right to own property and arbitrarily deprived them of their property. These are human rights protected by article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.

By a majority of 4-3, the High Court held that the Queensland Coast Islands Declaratory Act was invalid because it was inconsistent with the RDA. It discriminated against the Meriam people by purporting to extinguish any rights they might have in their land.

(Source: Human Rights & Equal opportunities Commission Website: Racial Discrimination/ Landmark Cases under the Racial Discrimination Act 1975)

"The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of a civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.” Brennan J in Mabo v Queensland (From: Does Australia Need a Bill of Rights? Justice David Malcolm AC)“

...the Court did not overturn anything of substance, but merely propounded white domination and superiority over Aborigines by recognising such a meagre Aboriginal form of rights over land. The judges did little more than ease their own conscience of the guilt they so correctly feel for maintaining white supremacy” Michael Mansell in Foley, Gary: The Road to Native Title: The Aboriginal Rights Movement and the Australian Labor Party 1973 -1996

The decision in Mabo

The evidence in Mabo showed that:ƒ

• the Murray Islands, which lie in the Torres Strait, had a total land area is of the order of 9 square kilometres. The biggest is Mer (known also as Murray Island), oval in shape about 2.79 kms long and about 1.65 kms across. A channel about 900 m wide separates Mer from the other two islands, Dauar and Waier, which lie closely adjacent to each other to the south of Mer;  ƒ
• the people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people;  ƒ
• although outsiders, relatively few in number, have lived on the Murray Islands from time to time and worked as missionaries, government officials, or fishermen, there has not been a permanent immigrant population;  ƒ
• anthropological evidence showed that the present inhabitants of the Islands were descended from the people in occupation at sovereignty;  ƒ
• the people lived in groups of huts strung along the foreshore or strand immediately behind the sandy beach. They still do although there has been a contraction of the villages and the huts are increasingly houses. The cultivated garden land was and is in the higher central portion of the island. There seems however in recent times a trend for cultivation to be in more close proximity with habitation. The groups of houses were and are organised in named villages. It is far from obvious to the uninitiated, but is patent to an islander, that one is moving from one village to another. The area occupied by an individual village is, even having regard to the confined area on a fairly small island which is in any event available for ‘village land’, quite small. Garden land is identified by reference to a named locality coupled with the name of relevant individuals if further differentiation is necessary. The Islands are not surveyed and boundaries are in terms of known land marks such as specific trees or mounds of rocks;  ƒ
• since annexation an Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Land disputes were dealt with by the Island Court in accordance with the custom of the Meriam people. Thus, even in cases where there may have been an absence of a law to determine a point in contest between rival claimants, such a contest was capable of being determined according to the Meriam people’s laws and customs.

The court held that the Crown's title to the Mer Islands was held subject to the rights and interests of the Mer Islanders possessed under the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants. The court also noted that, because the native title is held in accordance with the local native system:ƒ

• it is only capable of entitlement and enjoyment within that system, and hence it is not capable of alienation or assignment;  ƒ
• it does not constitute a legal or beneficial estate or interest in the land.

Having regard to the evidence led in Mabo, and to the principles expressed in Amodu Tijani, the decision essentially involved the application of the facts as found in accordance with well established legal principle.

However Brennan J, with whom Mason CJ and McHugh J agreed, made some observations by way of obiter as to the circumstances in which native title rights and interests could be lost subsequent to European settlement, saying that:'Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence'

(Source: Allens Arthur Robinson website: Native Title Roundup: Mabo and Beyond)

https://aiatsis.gov.au/sites/default/files/research_pub/overturning-the-doctrine-of-terra-nullius_0_3.pdf

In considering minimum penalties, the Supreme Court of Papua New Guinea discussed the U.S. cases of Weems v. United States, 217 US 349 (1910) 54 L. Ed. 793, Robinson v. California, 370 US 660 (1962) 8 L Ed 2d 758, and Furman v. Georgia, 408 US 238 (1972) 33 L Ed 2d 346, among others. The Court then rejected the approach taken by these U.S. courts, noting that U.S. decisions were not binding on the Papua New Guinea Supreme Court. Nevertheless, they were admitted to "have thrown much light" on its approach. The Court also cited the European Convention on Human Rights and Tanzanian and Australian law, among the law of other countries, and said that "torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person." Nevertheless, the Court upheld the legality of minimum fines and penalties.

[ link ]