Equality Laws of the World

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Equality Laws of the World PDF generated using the open source mwlib toolkit. See http://code.pediapress.com/ for more information. PDF generated at: Wed, 14 Dec 2011 04:29:09 UTC Contents Articles Introduction Discrimination Equal justice under law Rule of law 1 1 11 13 23 23 24 25 27 28 30 35 37 42 45 54 54 65 71 75 88 92 102 112 112 115 121 121 132 133 Canada Act Against Slavery Implied Bill of Rights Ontario Human Rights Code Canadian Human Rights Act Quebec Charter of Human Rights and Freedoms Section Fifteen of the Canadian Charter of Rights and Freedoms Section Twenty-seven of the Canadian Charter of Rights and Freedoms Civil Marriage Act Employment equity Canadian Human Rights Commission free speech controversy United States of America Equal Protection Clause Nineteenth Amendment to the United States Constitution Equal Pay Act of 1963 Civil Rights Act of 1964 Lilly Ledbetter Fair Pay Act of 2009 Employment discrimination law in the United States Equal Rights Amendment Americas American Convention on Human Rights Anti-discrimination laws in Brazil Europe European Convention on Human Rights Protocol 12 to the European Convention on Human Rights Human Rights Act 1998 Equal Pay Act 1970 Equality Act 2010 United Kingdom employment equality law Equality and Human Rights Commission 140 143 147 155 159 159 168 171 179 180 Asia Fundamental Rights in India National Human Rights Commission of India Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 Employment (Equal Opportunities) Law, 1988 Basic Law: Human Dignity and Liberty Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000 182 Oceania Sex Discrimination Act 1984 Racial and Religious Tolerance Act 2001 Australian Human Rights Commission New Zealand Bill of Rights Act 1990 New Zealand Human Rights Act 1993 Constitution of Fiji: Chapter 4 183 183 184 187 190 195 196 198 198 201 205 213 217 217 227 237 Africa African Charter on Human and Peoples' Rights Maputo Protocol Chapter 2 of the Constitution of South Africa Black Economic Empowerment International International Covenant on Civil and Political Rights Convention on the Elimination of All Forms of Racial Discrimination Convention on the Elimination of All Forms of Discrimination Against Women Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 242 United Nations Security Council Resolution 1325 Yogyakarta Principles Convention on the Rights of Persons with Disabilities 247 250 257 References Article Sources and Contributors Image Sources, Licenses and Contributors 264 268 Article Licenses License 272 1 Introduction Discrimination Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be used as an expression of derogatory racial prejudice in the 1830s from Thomas D. Rice's performances as "Jim Crow". Since the American Civil War the term 'discrimination' generally evolved in American English usage as an understanding of prejudicial treatment of an individual based solely on their race, later generalized as membership in a certain socially undesirable group or social category.[1] Discriminatory laws such as redlining exist in many countries. In some places, controversial attempts such as racial quotas have been used to redress negative effects of discrimination. Discrimination is not always against a disadvantaged group. When a majority group (whites, males, heterosexuals, rich etc.) is discriminated against because they are a member of this group this is usually called reverse discrimination. Definitions Within sociology, 'discrimination' is the prejudicial treatment of an individual based on their membership in a certain group or category. Discrimination is the actual behavior towards members of another group. It involves excluding or restricting members of one group from opportunities that are available to other groups.[2] Moral philosophers have defined it as disadvantageous treatment or consideration. This is a comparative definition. An individual need not be actually harmed in order to be discriminated against. He or she just needs to be treated worse than others for some arbitrary reason. If someone decides to donate to help orphan children, but decides to donate less, say, to black children out of a racist attitude, he or she will be acting in a discriminatory way even if he or she actually benefits the people he discriminates against by donating some money to them.[3] The United Nations stance on discrimination includes a statement that: "Discriminatory behaviors take many forms, but they all involve some form of exclusion or rejection."[4] Discrimination 2 Racial and ethnic discrimination Racial discrimination differentiates between individuals on the basis of real and perceived racial differences, and has been official government policy in several countries, such as South Africa in the apartheid era, the Occupied Palestinian Territories with the apartheid separation wall and the USA. In the United States, racial profiling of minorities by law enforcement officials has been called racial discrimination.[5] As early as 1865, the Civil Rights Act [6] provided a remedy for intentional race discrimination in employment by private employers and state and local public employers. The Civil Rights Act of 1871 [6] applies to public employment or employment involving state action prohibiting deprivation of rights secured by the federal constitution or federal laws through action under color of law. Title VII is the principal federal statute with An African-American child at a segregated drinking fountain on a regard to employment discrimination prohibiting courthouse lawn, North Carolina, 1938. unlawful employment discrimination by public and private employers, labor organizations, training programs and employment agencies based on race or color, religion, gender, and national origin. Title VII also prohibits retaliation against any person for opposing any practice forbidden by statute, or for making a charge, testifying, assisting, or participating in a proceeding under the statute. The Civil Rights Act of 1991 [7] expanded the damages available in Title VII cases and granted Title VII plaintiffs the right to a jury trial. Title VII also provides that race and color discrimination against every race and color is prohibited. Discrimination 3 Within the criminal justice system in some Western countries, minorities are convicted and imprisoned disproportionately when compared with whites.[8] [9] In 1998, nearly one out of three black men between the ages of 20-29 were in prison or jail, on probation or parole on any given day in the United States.[10] First Nations make up about 2% of Canada's population, but account for 18% of the federal prison population as of 2000.[11] According to the Australian government's June 2006 publication of prison statistics, indigenous peoples make up 24% of the overall prison population in Australia.[12] In 2004, Māori made up just 15% of the total population of New Zealand but 49.5% of prisoners. Māori were entering prison at 8 times the rate of non-Māori.[13] A quarter of the people in England's prisons are from an ethnic minority. The Equality and Human Rights Commission found that five times more black people than white people per head of population in England and Wales are imprisoned. Experts and politicians said over-representation of black men was a result of decades of racial prejudice in the criminal justice system.[14] Sex, Gender and Gender Identity discrimination A racist sign on a beach (1989) Though gender discrimination and sexism refers to beliefs and attitudes in relation to the gender of a person, such beliefs and attitudes are of a social nature and do not, normally, carry any legal consequences. Sex discrimination, on the other hand, may have legal consequences. Though what constitutes sex discrimination varies between countries, the essence is that it is an adverse action taken by one person against another person that would not have occurred had the person been of another sex. Discrimination of that nature in certain enumerated circumstances is illegal in many countries. Currently, discrimination based on sex is defined as adverse action against another person, which would not have occurred had the person been of another sex. This is considered a form of prejudice and is illegal in certain enumerated circumstances in most countries. Sexual discrimination can arise in different contexts. For instance an employee may be discriminated against by being asked discriminatory questions during a job interview, or because an employer did not hire, promote or wrongfully terminated an employee based on their gender, or employers pay unequally based on gender. In an educational setting there could be claims that a student was excluded from an educational institution, program, opportunity, loan, student group, or scholarship due to their gender. In the housing setting there could be claims that a person was refused negotiations on seeking a house, contracting/leasing a house or getting a loan based on their gender. Another setting where there have been claims of gender discrimination is banking; for example if one is refused credit or is offered unequal loan terms based on one’s gender.[15] Another setting where there is usually gender discrimination is when one is refused to extend their credit, refused approval of credit/loan process, and if there is a burden of unequal loan terms based on one’s gender. Socially, sexual differences have been used to justify different roles for men and women, in some cases giving rise to claims of primary and secondary roles.[16] Discrimination While there are alleged non-physical differences between men and women, major reviews of the academic literature on gender difference find only a tiny minority of characteristics where there are consistent psychological differences between men and women, and these relate directly to experiences grounded in biological difference.[17] However, there are also some psychological differences in regard to how problems are dealt with and emotional perceptions and reactions which may relate to hormones and the successful characteristics of each gender during longstanding roles in past primitive lifestyles. Unfair discrimination usually follows the gender stereotyping held by a society.[18] The United Nations had concluded that women often experience a "glass ceiling" and that there are no societies in which women enjoy the same opportunities as men.[19] The term "glass ceiling" is used to describe a perceived barrier to advancement in employment based on discrimination, especially sex discrimination.[20] In the United States in 1995, the Glass Ceiling Commission, a government-funded group, stated: "Over half of all Master’s degrees are now awarded to women, yet 95% of senior-level managers, of the top Fortune 1000 industrial and 500 service companies are men. Of them, 97% are white." In its report, it recommended affirmative action, which is the consideration of an employee's gender and race in hiring and promotion decisions, as a means to end this form of discrimination.[21] In 2008, women accounted for 51% of all workers in the high-paying management, professional, and related occupations. They outnumbered men in such occupations as public relations managers; financial managers; and human resource managers.[22] The China's leading headhunter, Chinahr.com, reported in 2007 that the average salary for white-collar men was 44,000 yuan ($6,441), compared with 28,700 yuan ($4,201) for women.[23] The PwC research found that among FTSE 350 companies in the United Kingdom in 2002 almost 40% of senior management posts were occupied by women. When that research was repeated in 2007, the number of senior management posts held by women had fallen to 22%.[24] Transgender individuals, both male to female and female to male, often experience problems which often lead to dismissals, underachievement, difficulty in finding a job, social isolation, and, occasionally, violent attacks against them. Nevertheless, the problem of gender discrimination does not stop at transgender individuals or with women. Men are often the victim in certain areas of employment as men begin to seek work in office and childcare settings traditionally perceived as "women's jobs". One such situation seems to be evident in a recent case concerning alleged YMCA discrimination and a Federal Court Case in Texas. The case actually involves alleged discrimination against both men and blacks in childcare, even when they pass the same strict background tests and other standards of employment. It is currently being contended in federal court, as of fall 2009, and sheds light on how a workplace dominated by a majority (women in this case) sometimes will seemingly "justify" whatever they wish to do, regardless of the law. This may be done as an effort at self-protection, to uphold traditional societal roles, or some other faulty, unethical or illegal prejudicial reasoning. 4 Legislation Australia • Sex Discrimination Act 1984 [25] Canada • Ontario Human Rights Code 1962 • Canadian Human Rights Act 1977 Hong Kong • Sex Discrimination Ordinance (1996) United Kingdom • Equal Pay Act 1970 – provides for equal pay for comparable work Discrimination • Sex Discrimination Act 1975 – makes discrimination against women or men, including discrimination on the grounds of marital status, illegal in the workplace. • Human Rights Act 1998 – provides more scope for redressing all forms of discriminatory imbalances United States • Equal Pay Act of 1963[26] – (part of the Fair Labor Standards Act) – prohibits wage discrimination by employers and labor organizations based on sex • Title VII of the Civil Rights Act of 1964[27] – broadly prohibits discrimination in the workplace including hiring, firing, workforce reduction, benefits, and sexually harassing conduct • Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act of 1964 – covers discrimination based upon pregnancy in the workplace[28] • Violence Against Women Act 5 Caste discrimination According to UNICEF and Human Rights Watch, caste discrimination affects an estimated 250 million people worldwide.[29] [30] [31] Discrimination based on caste, as perceived by UNICEF, is prevalent mainly in parts of Asia (India, Sri Lanka, Bangladesh, Nepal, Japan) and Africa.[29] Currently, there are an estimated 160 million Dalits or Scheduled Castes (formerly known as "untouchables") in India.[32] [33] Employment discrimination Employment discrimination refers to disabling certain people to apply and receive jobs based on their race, age, gender, religion, height, weight, nationality, disability, sexual orientation or gender identity. In relationship to sociology, employment discrimination usually relates to what events are happening in society at the time. For example, it would have seemed ludicrous to hire an African American male and absolutely unheard of to hire an African American woman over 50 years ago. However, in our society today, it is the absolute norm to hire any qualified person. Many laws prohibit employment discrimination. If a person uses discriminatory hiring practices, they can be sued for hate crimes. However, some minority groups (notably LGBT people) remain unprotected by U.S. federal law from employment discrimination. The American federal laws that protect against: • Race, color and national origin discrimination include the Civil Rights Act of 1964 [7], Executive Order Number 11478 [34] among other numerous laws that protect people from race, color and national origin discrimination [35]. • Sex and gender discrimination [36] include the Civil Rights Act of 1964 and Equal Pay Act of 1963 [37]. • age Discrimination [38] include the Age Discrimination in Employment Act of 1967 [39]. • Physical and mental disability discrimination [40] include the Americans with Disabilities Act of 1990 [41]. • Religious discrimination [42] include the Civil Rights Act of 1964 [7]. • Military status discrimination [43] include the Vietnam Era Veterans Readjustment Assistance Act of 1974 [44] Most other western nations have similar laws protecting these groups. Discrimination 6 Sexual orientation discrimination See: heterosexism, heteronormativity, and homophobia In 2009, ILGA published a report based on research carried out by Daniel Ottosson at Södertörn University College, Stockholm, Sweden. This research found that of the 80 countries around the world that continue to consider homosexuality illegal, five carry the death penalty for homosexual activity, and two do in some regions of the country.[45] In the report, this is described as "State sponsored homophobia".[46] This happens in Islamic states, or in two cases regions under Islamic authority.[47] [48] Protests in New York City against Uganda's Anti-Homosexuality Bill. On February 5, 2005 the IRIN issued a reported titled "Iraq: Male homosexuality still a taboo." The article stated, among other things that honor killings by Iraqis against a gay family member are common and given some legal protection.[49] In August 2009 Human Rights Watch published an extensive report detailing torture of men accused of being gay in Iraq, including the blocking of men's anuses with glue and then giving the men laxatives.[50] In South Africa, same-sex unions are often condemned as "un-African."[51] Research shows 86% of black lesbians from the Western Cape live in fear of sexual assault.[52] Language discrimination Diversity of language is protected and respected by most nations who value cultural diversity. However, people are sometimes subjected to different treatment because their preferred language is associated with a particular group, class or category. Commonly, the preferred language is just another attribute of separate ethnic groups. Discrimination exists if there is prejudicial treatment against a person or a group of people who speak a particular language or dialect. Language discrimination is suggested to be labeled linguicism or logocism. Anti-discriminatory and inclusive efforts to accommodate persons who speak different languages or cannot have fluency in the country's predominant or "official" language, is bilingualism such as official documents in two languages, and multiculturalism in more than two languages. Reverse discrimination Some attempts at antidiscrimination have been criticized as reverse discrimination. In particular, minority quotas (for example, affirmative action) discriminate against members of a dominant or majority group. In its opposition to race preferences, the American Civil Rights Institute's Ward Connerly stated, "There is nothing positive, affirmative, or equal about 'affirmative action' programs that give preference to some groups based on race."[53] There are cases, however, such as the Noack v. YMCA case in U.S. Fifth Circuit Court, which include outright anti-male gender bias in a traditionally female work environment like childcare. That former employee claims to have suffered even physical assaults, and was allegedly also told to not hire too many blacks or men. Students protesting against racial quotas in Brazil. The sign reads: "Want a vacancy? Pass the Vestibular!" Discrimination 7 Disability discrimination Discrimination against people with disabilities in favor of people who are not is called ableism or disablism. Disability discrimination, which treats non-disabled individuals as the standard of ‘normal living’, results in public and private places and services, education, and social work that are built to serve 'standard' people, thereby excluding those with various disabilities. In the United States, the Americans with Disabilities Act mandates the provision of equality of access to both buildings and services and is paralleled by similar acts in other countries, such as the Equality Act 2010 in the UK. Religious discrimination Religious discrimination is valuing or treating a person or group differently because of what they do or do not believe. For instance, the indigenous Christian population of Balkans (known as "rayah" or "protected flock") lived under the Ottoman Kanun–i–Rayah. The word is sometimes translated as 'cattle' rather than 'flock' or 'subjects' to emphasize the inferior status of the rayah.[54] In the Ottoman Empire, in accordance with the Muslim dhimmi system, Christians were guaranteed limited freedoms (such as the right to worship), but were treated as second-class citizens. Christians and Jews were not considered equals to Muslims: testimony against Muslims by Christians and Jews was inadmissible in courts of law. They were forbidden to carry weapons or ride atop horses, their houses could not overlook those of Muslims, and their religious practices would have to defer to those of Muslims, in addition to various other legal limitations.[55] Restrictions upon Jewish occupations were imposed by Christian authorities. Local rulers and church officials closed many professions to Jews, pushing them into marginal roles considered socially inferior, such as tax and rent collecting and moneylending, occupations only tolerated as a "necessary evil".[56] The number of Jews permitted to reside in different places was limited; they were concentrated in ghettos and were not allowed to own land. The Fourth Lateran Council in 1215 decreed that Jews must wear distinguishing clothing.[57] In a 1979 consultation on the issue, the United States commission on civil rights defined religious discrimination in relation to the civil rights guaranteed by the Fourteenth Amendment to the United States Constitution. Whereas religious civil liberties, such as the right to hold or not to hold a religious belief, are essential for Freedom of Religion (in the United States secured by the First Amendment), religious discrimination occurs when someone is denied " the equal protection of the laws, equality of status under the law, equal treatment in the administration of justice, and equality of opportunity and access to employment, education, housing, public services and facilities, and public accommodation because of their exercise of their right to religious freedom."[58] The tax-exempt status of religious organizations discriminates against atheists or people who do not believe in organized religions, in much the same way that mobility allowance for people who can't walk discriminates against those who simply have bad knees but can still walk. Theories Discrimination Social theories such as Egalitarianism claim that social equality should prevail. In some societies, including most developed countries, each individual's civil rights include the right to be free from government sponsored social discrimination.[59] Due to a belief in the capacity to perceive pain and/or suffering shared by all animals, 'abolitionist' or 'vegan' egalitarianism maintains that the interests of every individual (regardless its species), warrant equal consideration with the interests of humans, and that not doing so is "speciesist".[60] Discrimination 8 Conservative and anarcho-capitalist In contrast, conservative writer and law professor Matthias Storme has claimed that the freedom of discrimination in human societies is a fundamental human right, or more precisely, the basis of all fundamental freedoms and therefore the most fundamental freedom. Author Hans-Hermann Hoppe, in an essay[61] about his book Democracy: The God That Failed, asserts that a natural social order is characterized by increased discrimination. Labeling theory Discrimination, in labeling theory, takes form as mental categorization of minorities and the use of stereotype. This theory describes difference as deviance from the norm, which results in internal devaluation and social stigma[62] that may be seen as discrimination. It is started by describing a 'natural' social order. It is distinguished between the fundamental principle of fascism and social democracy. The Nazis in 1930's-era Germany, the pre-1990 Apartheid government of South Africa used racial discriminatory agendas for their political ends. This practice continues with some present day governments. State discrimination vs. free market discrimination State discrimination In politics, the dominating part of the population rules. Therefore, the worst discrimination in the history has been committed by states. For example, the anti-semitic practices of the Nazi-Germany would not have happened on free markets, because they would have caused losses.[63] However, government officials and politicians need not care about losses as much as companies, which decreases their incentive not to discriminate. For example, around 1900 the afro-Americans started to compete of jobs that had previously been all-white jobs. Because whites had more voting power, they enacted a law that made photographs of the applicants obligatory in civil service job applications. The number of blacks in federal employment plummeted for decades.[64] In early 20th century South Africa mine owners preferred hiring black workers because they were cheaper. Then the whites successfully persuaded the government to enact laws that highly restricted the black's rights to work (see Apartheid).[64] Similarly, to make more profits, producers hires secretly screenwriters who were on Senator Joseph McCarthy's blacklist, which mitigated the effects of the list.[64] When the "Jim Crow" racial segregation laws were enacted in the U.S., many companies disobeyed them for years, because the market automatically punishes companies that discriminate: they lose customers and get additional expenses. It took 15 years for the government to break down the resistance of the companies.[65] Markets punish the discriminator The Nobel prize winning economist Gary Becker showed in his book The Economics of Discrimination (University of Chicago Press, 1957) how the markets automatically punish the companies that discriminate.[63] The profitability of the company that discriminates is decreased, and the loss is "directly proportional to how much the employer's decision was based on prejudice, rather than on merit." Indeed, choosing a worker with lower performance (in comparison to salary) causes losses proportional to the difference in performance. Similarly, the customers who discriminate against certain kinds of workers in favor of less effective ones have to pay more for their services, on average.[63] If a company discriminates, it typically loses profitability and market share to the companies that do not discriminate, unless the state limits free competition protecting the discriminators.[64] Discrimination 9 Scapegoats Many people blame scapegoats for problems that are not their fault. This is common when two deprived ethnic groups compete with one another for economic rewards. This is normally directed against groups that are relatively powerless, because they make an easy target. It frequently involves projection, which is the unconscious attribution to the others of ones own desires or characteristics.[66] References [1] Introduction to sociology. 7th ed. New York: W. W. Norton & Company Inc, 2009. page 324. Print. [2] Introduction to sociology. 7th ed. New York: W. W. Norton & Company Inc, 2009. page 334. Print. 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[52] " Raped and killed for being a lesbian: South Africa ignores 'corrective' attacks (http:/ / www. guardian. co. uk/ world/ 2009/ mar/ 12/ eudy-simelane-corrective-rape-south-africa)". The Guardian. March 12, 2009. [53] American Civil Rights Institute | Press Release (http:/ / www. acri. org/ pr_7_25_07. html) [54] Maan Z. Madina, Arabic-English Dictionary of the Modern Literary Language, 1973. [55] Akcam, Taner. A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility. New York: Metropolitan Books, 2006 p. 24 ISBN 0-8050-7932-7 [56] " Did Discrimination Enhance Intelligence of Jews? (http:/ / news. nationalgeographic. com/ news/ 2005/ 07/ 0718_050718_ashkenazim. html)". National Geographic News. July 18, 2005 [57] Medieval Jewish History: An Encyclopedia. Edited by Norman Roth, Routledge (http:/ / www. myjewishlearning. com/ history_community/ Medieval/ MedievalSocialTO/ Clothing/ JewishHat. htm) [58] U.S. Commission on Civil Rights, 1979: Religious discrimination. A neglected issue. A consultation sponsored by the United States Commission on Civil Rights, Washington D.C., April 9–10, 1979 [59] "Civil rights" (http:/ / www. weblocator. com/ attorney/ mn/ law/ concivrig. html#30). . Retrieved 2006. [60] Singer, Peter (1999) [1993]. "Equality for Animals?". Practical Ethics (Second ed.). Cambridge: Cambridge University Press. pp. 57–58. ISBN 0-521-43971-X. "If a being suffers, there can be no moral justification for refusing to take that suffering into consideration. … This is why the limit of sentience…is the only defensible boundary of concern for the interests of others. … Similarly those I would call 'speciesists' give greater weight to their own species when there is a clash between their interests and the interests of those of other species." [61] Lewrockwell.com (http:/ / www. lewrockwell. com/ hoppe/ hoppe4. html), Hoppe, Hans-Hermann (2001). . . Retrieved 2006. [62] Slattery, M. (2002). Key Ideas in Sociology. Nelson Thornes. ISBN 978-0748765652. [63] The Economics of Discrimination (http:/ / www. econlib. org/ library/ Columns/ y2010/ Murphydiscrimination. html), Robert P. Murphy, Library of Economics, AUGUST 2, 2010 [64] Discrimination (http:/ / www. econlib. org/ library/ Enc/ Discrimination. html), The Concise Encyclopedia of Economics, Library of Economics [65] Jennifer Roback, “The Political Economy of Segregation: The Case of Segregated Streetcars.” Journal of Economic History 56, no. 4 (December 1986): 893–917. [66] Introduction to sociology. 7th ed. New York: W.W. Norton & Company Inc, 2009. Page 324. Print. 10 • Topics.law.cornell.edu (http://topics.law.cornell.edu/wex/employment_discrimination) • Archive.eeoc.gov (http://archive.eeoc.gov/stats/litigation.html) • Introduction to Sociology. New York: W. W. Norton & Company, 2009. Print. Discrimination 11 External links • Legal definitions • Australia (http://www.hreoc.gov.au/legal/index.html) • Canada (http://www.chrc-ccdp.ca/legislation_policies/human_rights_act-en.asp) • Russia (http://www.departments.bucknell.edu/russian/const/ch2.html) • US (http://www.eeoc.gov/facts/qanda.html) Employment Discrimination Laws in the United States (http://www.finduslaw.com/taxonomy_menu/12/23) Discrimination Laws in Europe (http://eur-lex.europa.eu/en/dossier/dossier_23.htm) Behavioral Biology and Racism (http://ssrn.com/abstract=1594425) Anti-Racism and Hate (http://www.antiracismandhate.com) http://www.agediscrimination.info – Resource on international and UK age discrimination law, news, cases and statistics • • • • • Equal justice under law "Equal justice under law" is a phrase engraved on the front of the United States Supreme Court building in Washington D.C. This phrase was apparently first written in 1915 by the architectural firm that designed the building. The phrase appears above the entrance to the courtroom of Waterbury City Hall, for which Cass Gilbert was the architect; Gilbert later designed the Supreme Court building, completed in 1932. The phrase is attributed in Waterbury City Hall to "C. Gilbert". Chief Justice Charles Evans Hughes subsequently approved this inscription for the Supreme Court, as did the United States Supreme Court Building Commission which Hughes chaired.[1] The front of the Supreme Court Building, including the West Pediment. The words "Equal Justice Under Law" apparently paraphrase an earlier expression coined by Chief Justice Melville Fuller.[2] In the case of Caldwell v. Texas in 1891, Fuller wrote about the Fourteenth Amendment as follows: By the Fourteenth Amendment the powers of the States in dealing with crime within their borders are not limited, but no State can deprive particular persons or classes of persons of equal and impartial justice under the law.[3] Neither this entire sentence, nor even the last seven words, would have fit on a pediment or architrave of the U.S. Supreme Court building, which explains why the architects would have wanted to shorten them. In the years since Fuller wrote these words, the Supreme Court has decided that the Fourteenth Amendment, and especially its Due Process Clause, do limit the powers of the states in dealing with crime. Equal justice under law 12 The Funeral Oration of Pericles The term "equal justice" dates back at least to the dawn of western civilization. In his funeral oration of 431 BC, the Athenian leader Pericles discussed this concept. Thus, Chief Justice Fuller was by no means writing on a clean slate when he referred to "equal and impartial justice under the law" in Caldwell v. Texas. There are several different English translations of the relevant passage in Pericles' funeral oration, three of which are quoted below. • Here is Pericles discussing "equal justice" according to the English translation by Richard Crawley in 1874: Our constitution does not copy the laws of neighbouring states; we are rather a pattern to others than imitators ourselves. Its administration favours the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if no social standing, advancement in public life falls to reputation for capacity, class Bust of Pericles, Roman copy after a Greek original from ca. 431 BC considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition.[4] • Here is Pericles discussing "equal justice" according to the English translation by Benjamin Jowett in 1881: Our form of government does not enter into rivalry with the institutions of others. We do not copy our neighbours, but are an example to them. It is true that we are called a democracy, for the administration is in the hands of the many and not of the few. But while the law secures equal justice to all alike in their private disputes, the claim of excellence is also recognised; and when a citizen is in any way distinguished, he is preferred to the public service, not as a matter of privilege, but as the reward of merit. Neither is poverty a bar, but a man may benefit his country whatever be the obscurity of his condition.[5] • And here is Pericles discussing "equal justice" according to the English translation by Rex Warner in 1954: Our form of government does not enter into rivalry with the institutions of others. Our government does not copy our neighbors', but is an example to them. It is true that we are called a democracy, for the administration is in the hands of the many and not of the few. But while there exists equal justice to all and alike in their private disputes, the claim of excellence is also recognized; and when a citizen is in any way distinguished, he is preferred to the public service, not as a matter of privilege, but as the reward of merit. Neither is poverty an obstacle, but a man may benefit his country whatever the obscurity of his condition.[6] The funeral oration by Pericles was published in Thucydides’ History of the Peloponnesian War, of which there are several other English translations. Equal justice under law 13 References [1] West Pediment Information Sheet (http:/ / www. supremecourt. gov/ about/ westpediment. pdf) via U.S. Supreme Court web site. [2] Peccarelli, Anthony. "The Meaning of Justice" (http:/ / www. dcba. org/ brief/ marissue/ 2000/ art10300. htm), DuPage County Bar Association Brief (March 2000). [3] Caldwell v. Texas, 137 U.S. 692 (http:/ / supreme. justia. com/ us/ 137/ 692/ case. html) (1891). [4] Thucydides, The History of the Peloponnesian War (http:/ / www. gutenberg. org/ dirs/ etext04/ plpwr10. txt), Written 431 B.C.E, Translated by Richard Crawley (1874), retrieved via Project Gutenberg. [5] Jowett, Benjamin. Thucydides, translated into English, to which is prefixed an essay on inscriptions and a note on the geography of Thucydides, (http:/ / classicpersuasion. org/ pw/ thucydides/ jthucbk2rv2. htm) Second edition, Oxford, Clarendon Press (1900), via classicpersuasion.org. [6] Pericles's Funeral Oration, translated by Rex Warner (1954), via wikisource. Rule of law Rule of law is a legal maxim that suggests that governmental decisions be made by applying known principles.[2] The phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".[3] Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right. Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion"[4] giving rise to a "rampant divergence of understandings ... everyone is for it but have contrasting convictions about what it is."[5] At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.[6] Mosaic representing both the judicial and legislative aspects of law. The woman on the throne holds a sword to chastise the guilty and a palm branch to reward the meritorious. Glory surrounds her head, and the aegis of Minerva signifies the armor of righteousness and [1] wisdom. History Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey,[7] [8] development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, and Rome.[9] Rule of law 14 Antiquity In Western philosophy, the Ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.[10] Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state."[11] More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.[10] In other words, Aristotle advocated the rule of law: It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.[3] According to the Roman statesman Cicero, "We are all servants of the laws in order that we may be free."[12] During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.[7] In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law.[13] In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.[14] Middle Ages In Islamic jurisprudence rule of law was formulated before the twelfth century, so that no official could claim to be above the law, not even the caliph.[15] However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law. In 1215, a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.[16] Modern times An early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons: Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government....[17] Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title is Latin for "the law is king" and reverses the traditional rex lex ("the king is the law"). John Locke also discussed this issue in his Second Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit of the Laws (1748).[18] The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).[19] In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other."[20] In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government Rule of law of laws and not of men."[21] 15 Categorization of interpretations Different people have different interpretations about exactly what "rule of law" means. According to political theorist Judith N. Shklar, "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings.[22] Among modern legal theorists, most views on this subject fall into three general categories: the formal (or "thin") approach, the substantive (or "thick") approach, and the functional approach.[23] [24] The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law.[23] This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights. The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man."[24] According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law".[24] The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable.[24] The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."[25] Status in various jurisdictions The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country.[26] Research, like the Worldwide Governance Indicators, defines the rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence."[26] Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below.[27] Rule of law 16 United States All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.[28] At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion,[29] and the executive branch also has various discretionary powers including prosecutorial discretion. 2005 map of Worldwide Governance Indicators, which attempts to measure the extent to which agents have confidence in and abide by the rules of society. Colors range from dark green (90th-100th percentile) to light green (75th-90th percentile), yellow (50th-75th percentile), orange (25th-50th percentile), pink (10th-25th percentile) and red (0th-10th percentile). Percentile rank indicates the percentage of countries worldwide that rate below the selected country. Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, Law Professor John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria.[30] Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all.[31] James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course."[32] Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law."[33] Asia East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state.[34] According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent: Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party….That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones Rule of law are: Will the police fabricate the evidence? Will the prosecutor bother to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade?[35] In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights.[36] The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China. In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review.[37] According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges."[38] Japan had centuries of tradition prior to World War II, during which there were laws, but they were not a central organizing principle for society, and they did not constrain the powers of government. As the 21st century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.[39] 17 Organizations and scholarly works Many organizations and scholars have advocated for the rule of law and have taken positions regarding the interpretation of that concept they prefer. International Commission of Jurists In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.[40] United Nations The Secretary-General of the United Nations defines the rule of law as:[41] a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions.[42] The Security Council has held a number of thematic debates on the rule of law,[43] and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security,[44] children in armed conflict,[45] and the protection of civilians in armed conflict.[46] The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda.[47] The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights Rule of law education.[48] 18 International Bar Association The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:[49] An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities. World Justice Project As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:[50] 1. The government and its officials and agents are accountable under the law; 2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property; 3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; 4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law —such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.[51] Albert Dicey British jurist A. V. Dicey popularized the phrase "rule of law" in 1885.[7] [52] Dicey emphasized three aspects of the rule of law :[53] 1. No one can be punished or made to suffer except for a breach of law proved in an ordinary court. 2. No one is above the law and everyone is equal before the law regardless of social, economic, or political status. 3. The rule of law includes the results of judicial decisions determining the rights of private persons. Joseph Raz In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies.[54] Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows: Rule of law • That laws should be prospective rather than retroactive. • Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it. • There should be clear rules and procedures for making laws. • The independence of the judiciary has to be guaranteed. • The principles of natural justice should be observed, particularly those concerning the right to a fair hearing. • The courts should have the power of judicial review over the way in which the other principles are implemented. • The courts should be accessible; no man may be denied justice. • The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law. According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man".[54] 19 In relation to economics One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter for economic development or not?[55] Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors. The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.[56] The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.[57] In conflict with natural law Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. Heidi M. Hurd raises the example of a battered woman who rightly believes that there is a strong probability that her husband will eventually attempt to kill her and her children unless she preemptively kills him. If the law does not permit the acquittal of those who claim self-defense in the absence of an imminent threat of harm, then the woman must be punished, or "what will become of the rule of law? For law seemingly ceases to be law if judges are entitled to rethink its wisdom in every case to which it applies and to disregard it whenever it is inferior to the rule that they would fashion."[58] Rule of law 20 Notes [1] Cole, John et al. The Library of Congress (http:/ / books. google. com/ books?id=1P_bTHtdTwkC& pg=PA113& lpg=PA113& dq=mosaic+ dielman+ law& source=bl& ots=M_lvtTNSJ4& sig=SfpekK4bWkQfpGcqp_yVDDBCia8& hl=en& ei=GZf7SYyyFoqgMqKxlcQE& sa=X& oi=book_result& ct=result& resnum=3), page 113 (W. W. Norton & Company 1997). [2] Black's Law Dictionary, Fifth Edition, page 1196 (West Publishing Company 1979). [3] Aristotle,Politics 3.16 [4] Tamanaha, Brian Z. (2004). On the Rule of Law. Cambridge University Press. p. 9. [5] Tamanaha 2004, p. 9. [6] Craig, Paul P. (1997). "Formal and substantive conceptions of the rule of law: an analytical framework". Public Law: 467. [7] Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949). [8] Bingham, Thomas. The Rule of Law, page 3 (Penguin 2010). [9] Black, Anthony.  A World History of Ancient Political Thought (Oxford University Press 2009). ISBN 0199281696 [10] David Clarke, " The many meanings of the rule of law (http:/ / www. lfip. org/ lawe506/ documents/ lawe506davidclarke. pdf)" in Kanishka Jayasuriya, ed., Law, Capitalism and Power in Asia (New York: Routledge, 1998). [11] Cooper, John et al. Complete Works By Plato (http:/ / books. google. com/ books?id=eSKTvJDrr5kC& pg=PA1402& lpg=PA1402& dq="if+ law+ is+ the+ master+ of+ the+ government+ and+ the+ government+ is+ its+ slave"& source=bl& ots=XNhu-PDe7H& sig=4in2cTSQVL-2gcq9i881VqWYUxo& hl=en& ei=UmTZSZDIKqntlQe4vLzgDA& sa=X& oi=book_result& ct=result& resnum=6#PPA1402,M1), page 1402 (Hackett Publishing, 1997). [12] In Latin, Omnes legum servi sumus ut liberi esse possumus. [13] Xiangming, Zhang. On Two Ancient Chinese Administrative Ideas: Rule of Virtue and Rule by Law (http:/ / www. international-relations. com/ wbcm5-1/ wbrule. htm), The Culture Mandala: Bulletin of the Centre for East-West Cultural and Economic Studies (2002): “Although Han Fei recommended that the government should rule by law, which seems impartial, he advocated that the law be enacted by the lords solely. The lords place themselves above the law. The law is thereby a monarchical means to control the people, not the people's means to restrain the lords. The lords are by no means on an equal footing with the people. Hence we cannot mention the rule by law proposed by Han Fei in the same breath as democracy and the rule of law advocated today.” Bevir, Mark. The Encyclopedia of Political Theory (http:/ / books. google. com/ books?id=wVIoCtB3m74C& pg=PA162& dq=han+ fei+ zi+ "rule+ of+ law"& hl=en& ei=1yB3TbGbDNLAgQfy2f2bDw& sa=X& oi=book_result& ct=result& resnum=3& ved=0CDIQ6AEwAg#v=onepage& q& f=false), page 162. Munro, Donald. The Concept of Man in Early China (http:/ / books. google. com/ books?id=nBerAAAAIAAJ& pg=PA4& dq="the+ law+ does+ not+ fawn+ on+ the+ noble"& hl=en& ei=GC53TdWPAdKRgQe46s3BBQ& sa=X& oi=book_result& ct=result& resnum=5& ved=0CEAQ6AEwBA#v=onepage& q="the law does not fawn on the noble"& f=false). Page 4. Guo, Xuezhi. The Ideal Chinese Political Leader: A Historical and Cultural Perspective (http:/ / books. google. com/ books?id=6vG-MROnr7IC& pg=PA152& dq="the+ law+ does+ not+ fawn+ on+ the+ noble"& hl=en& ei=GC53TdWPAdKRgQe46s3BBQ& sa=X& oi=book_result& ct=result& resnum=1& ved=0CCwQ6AEwAA#v=onepage& q="the law does not fawn on the noble"& f=false). Page 152. [14] Peerenboom, Randall (1993). Law and morality in ancient China: the silk manuscripts of Huang-Lao (http:/ / books. google. com/ books?id=qxgLcrLL-IIC& dq=). SUNY Press. pp. 171. . [15] Weeramantry, C. Justice without Frontiers (http:/ / books. google. com/ books?id=3-1sH1wc58UC& pg=PP1& dq="Justice+ Without+ Frontiers:+ Furthering+ Human+ Rights"& ei=f1f-SbCnH5nCyASU38TvBw#PPA132,M1), page 132 (Martinus Nijhoff Publishers 1997). [16] U.S. National Archives (http:/ / www. archives. gov/ exhibits/ featured_documents/ magna_carta/ ). [17] Hallam, Henry. The Constitutional History of England, Volume 1, page 441 (1827). [18] Tamanaha, Brian. On the Rule of Law (http:/ / books. google. com. vn/ books?id=p4CReF67hzQC& pg=PA47& dq=#v=onepage& q& f=false), page 47 (Cambridge University Press, 2004). [19] Peacock, Anthony Arthur, Freedom and the rule of law (http:/ / books. google. com. vn/ books?id=eENm8IKECDYC& dq=), p. 24. 2010. [20] Lieberman, Jethro. A Practical Companion to the Constitution (http:/ / books. google. com/ books?id=OmA8a1Q9UekC& pg=PA436& dq="so+ in+ free+ countries+ the+ law+ ought+ to+ be+ king"+ and+ "rule+ of+ law"& ei=9lH-Sa-cEIXGzAS0hLm2Cw), page 436 (University of California Press 2005). [21] Massachusetts Constitution, Part The First, art. XXX (1780). [22] Shklar, Judith and Hoffman, Stanley. Political Thought and Political Thinkers (http:/ / books. google. com/ books?id=x7zS55i9QzoC& pg=PA21& lpg=PA21& dq="has+ become+ meaningless+ thanks+ to+ ideological+ abuse+ and+ general+ "& source=bl& ots=ArAuz53It-& sig=rUhnUdLIEOl9ZmZykNoSXIEb6cg& hl=en& ei=wU_-SbDuEcSGtgeOgqHFCg& sa=X& oi=book_result& ct=result& resnum=7), page 21 (University of Chicago Press, 1998). [23] Tamanaha, Brian. “The Rule of Law for Everyone?” (http:/ / papers. ssrn. com/ sol3/ papers. cfm?abstract_id=312622#), Current Legal Problems, volume 55, via SSRN (2002): Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, Rule of law equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Still, there are other views as well. Some believe that democracy is part of the rule of law. [24] Stephenson, Matthew. "Rule of Law as a Goal of Development Policy" (http:/ / web. worldbank. org/ WBSITE/ EXTERNAL/ TOPICS/ EXTLAWJUSTINST/ 0,,contentMDK:20763583~menuPK:1989584~pagePK:210058~piPK:210062~theSitePK:1974062,00. html), World Bank Research (2008). [25] Tamanaha, Brian. On the Rule of Law (http:/ / books. google. com/ books?id=p4CReF67hzQC& pg=PA3& dq=Tamanaha+ and+ "rule+ of+ law"+ and+ "rule+ by+ law"& ei=Vlf6SYjNMJviygSxqOnRBg), page 3 (Cambridge University Press, 2004). [26] Kaufman, Daniel et al. "Governance Matters VI: Governance Indicators for 1996-2006, World Bank Policy Research Working Paper No. 4280" (http:/ / papers. ssrn. com/ sol3/ papers. cfm?abstract_id=999979) (July 2007). [27] "Governance Matters 2008" (http:/ / info. worldbank. org/ governance/ wgi/ sc_country. asp), World Bank. [28] Vile, John. A Companion to the United States Constitution and its Amendments (http:/ / books. google. com/ books?hl=en& lr=& id=-QXyUM5BhKUC& oi=fnd& pg=PR13& dq="rule+ of+ law"+ and+ "shall+ be+ a+ law"+ and+ constitution& ots=7hOE4WdL4m& sig=PRZ1TgZMRfRKQ-p0k-8skOzRF7I#PPA80,M1), page 80 (Greenwood Publishing Group, 2006). [29] Osborn v. Bank of the United States (http:/ / supreme. justia. com/ us/ 22/ 738/ case. html), 22 U. S. 738 (1824): "When [courts] are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it." [30] Harrison, John. "Substantive Due Process and the Constitutional Text," Virginia Law Review, Volume 83, page 493 (1997). [31] Gedicks, Frederick. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment" (http:/ / papers. ssrn. com/ sol3/ papers. cfm?abstract_id=1072284), Emory Law Journal, Vol. 58, pages 585-673 (2009). See also Edlin, Douglas " Judicial Review without a Constitution (http:/ / papers. ssrn. com/ sol3/ papers. cfm?abstract_id=1124590)", Polity, Volume 38, pages 345-368 (2006). [32] Snowiss, Sylvia. Judicial Review and the Law of the Constitution (http:/ / books. google. com/ books?id=JUj81cN6nyAC& pg=PA41& dq="could+ declare+ an+ unconstitutional+ "+ "Laws+ may+ be+ unjust,+ may+ be+ unwise,+ may+ be+ dangerous"& as_brr=3& ei=P0P-Sa6jGI_CzASqtpzhDQ), pages 41-42 (Yale University Press 1990). [33] Ogden v. Saunders, 25 U.S. 213, 347 (http:/ / supreme. justia. com/ us/ 25/ 213/ case. html#347) (1827). This was Marshall's only dissent in a constitutional case. The individualist anarchist Lysander Spooner later denounced Marshall for this part of his Ogden dissent. See Spooner, Lysander (2008). Let's Abolish Government. Ludwig Von Mises Institute. p. 87. These same issues were also discussed in an earlier U.S. Supreme Court case, Calder v. Bull, 3 U.S. 386 (http:/ / supreme. justia. com/ us/ 3/ 386/ case. html) (1798), with Justices James Iredell and Samuel Chase taking opposite positions. See Presser, Stephen. "Symposium: Samuel Chase: In Defense of the Rule of Law and Against the Jeffersonians", Vanderbilt Law Review, Volume 62, page 349 (March 2009). [34] Chu, Yun-Han et al. How East Asians View Democracy (http:/ / books. google. com/ books?id=oNk6KpfXyYQC& pg=PA32& dq="Rule+ of+ Law"+ and+ Korea+ and+ Japan& lr=& ei=0NMASsrtG5XQzATy8KC8BA#PPA31,M1), pages 31-32. [35] Thi, Awzar. “Asia needs a new rule-of-law debate” (http:/ / www. upiasia. com/ Human_Rights/ 2008/ 08/ 14/ asia_needs_a_new_rule-of-law_debate/ 2340/ ), United Press International, UPIAsia.com (2008-08-14). [36] Peerenboom, Randall in Asian Discourses of Rule of Law (http:/ / books. google. com/ books?id=YlKYLRjcoi0C& pg=PA39& dq="Rule+ of+ law+ in+ Asia"& ei=hcIASqy4KKGeygSpzf2vDQ), page 39 (Routledge 2004). [37] Baxi, Upendra in Asian Discourses of Rule of Law (http:/ / books. google. com/ books?id=YlKYLRjcoi0C& pg=PA39& dq="Rule+ of+ law+ in+ Asia"& ei=hcIASqy4KKGeygSpzf2vDQ#PPA336,M1), pages 336-337 (Routledge 2004). [38] Robinson, Simon. “For Activist Judges, Try India” (http:/ / www. time. com/ time/ world/ article/ 0,8599,1556853,00. html), Time Magazine (2006-11-08). [39] Green, Carl. "Japan: 'The Rule of Law Without Lawyers' Reconsidered" (http:/ / www. asiasociety. org/ speeches/ green. html), Speech to the Asia Society (2001-03-14). [40] Goldsworthy, Jeffrey. “Legislative Sovereignty and the Rule of Law" (http:/ / books. google. com/ books?id=84tBKuObyNEC& pg=PA69& dq="Declaration+ of+ Delhi"+ and+ "rule+ of+ law"& as_brr=3& ei=5PLOSdWiJ4WoNsPhoMcH) in Tom Campbell, Keith D. Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001), p 69. [41] What is the Rule of Law? (http:/ / www. unrol. org/ article. aspx?article_id=3), United Nations Rule of Law. [42] See United Nations General Assembly Resolutions A/RES/61/39, A/RES/62/70, A/RES/63/128. [43] See United Nations Security Council debates S/PRST/2003/15, S/PRST/2004/2, S/PRST/2004/32, S/PRST/2005/30, S/PRST/2006/28. [44] See United Nations Security Council Resolutions 1325 and 1820. [45] E.g. see United Nations Security Council Resolution 1612. [46] E.g. see United Nations Security Council Resolution 1674. [47] United Nations and the Rule of Law (http:/ / www. un. org/ en/ ruleoflaw/ index. shtml). [48] Vienna Declaration and Programme of Action Part II, paragraph 79 [49] Resolution of the Council of the International Bar Association of October 8, 2009, on the Commentary on Rule of Law Resolution (2005) (http:/ / www. ibanet. org/ Document/ Default. aspx?DocumentUid=9925C6FD-5804-407F-9D39-ECB9D6A8B9D4). 21 Rule of law 22 [50] About the WJP (http:/ / www. worldjusticeproject. org). [51] Agrast, M., Botero, J., Ponce, A., WJP Rule of Law Index 2011. (http:/ / worldjusticeproject. org/ sites/ default/ files/ wjproli2011_0. pdf) Washington, D.C.: The World Justice Project. (2011). [52] Dicey, Albert. An Introduction to the Study of the Law of the Constitution (1885). [53] Palekar, S. Comparative Politics and Government (http:/ / books. google. com/ books?id=0J7Q60bJkkIC& pg=PA64& dq=Dicey+ "may+ be+ punished+ for+ breach+ of+ law"& as_brr=3& ei=o2g7Su-YGpP8zQSqyNy6BQ) 64-65 (PHI Learning 2009). [54] Raz, Joseph. "The Rule of Law and Its Virtue", The Law Quarterly Review, volume 93, page 195 (1977); reprinted by Culver, Keith. Readings in the Philosophy of Law (http:/ / books. google. com/ books?id=Pd0bA2pcR30C& pg=PA15& lpg=PA15& dq="does+ not+ deny+ that+ every+ legal+ system+ should+ consist"& source=bl& ots=99HjksLqak& sig=AsNdY2SSzLgpZdeu_9sq_pDVUxA& hl=en& ei=5FjZSb6uE4qyMYHE4eUO& sa=X& oi=book_result& ct=result& resnum=3#PPA13,M1), page 13 (Broadview Press, 1999). [55] Luis Flores Ballesteros. "Corruption and development. Does the “rule of law” factor weigh more than we think?" 54 Pesos May. 2008:54 Pesos 15 Nov 2008. [56] Peter Barenboim, Defining the rules, The European Lawyer, Issue 90, October 2009 [57] Peter Barenboim, Natalya Merkulova. " The 25th Anniversary of Constitutional Economics: The Russian Model and Legal Reform in Russia, in The World Rule of Law Movement and Russian Legal Reform (http:/ / philosophicalclub. ru/ content/ docs/ worldruleoflaw. pdf)", edited by Francis Neate and Holly Nielsen, Justitsinform, Moscow (2007). [58] Heidi M. Hurd (Aug., 1992). "Justifiably Punishing the Justified". Michigan Law Review (The Michigan Law Review Association) 90 (8): 2203–2324. JSTOR 1289573. External links • Hague Journal on the Rule of Law (http://www.journals.cambridge.org/rol), includes academic articles, practitioner reports, commentary, and book reviews. • International Network to Promote the Rule of Law (http://www.inprol.org), United States Institute of Peace. • Rule of Law Resource Center (http://law.lexisnexis.com/webcenters/RuleofLawResourceCenter), LexisNexis • Bingham, Thomas. "The Rule of Law" (http://cpl.law.cam.ac.uk/past_activities/ the_rt_hon_lord_bingham_the_rule_of_law.php), Centre for Public Law, Faculty of Law, University of Cambridge (2006-11-16). • "The Rule of Law Inventory Report" (http://www.hiil.org/uploads/File/ 1-947-Rule_of_Law_Inventory_Report_2007.pdf), Hague Institute for the Internationalisation of Law (HiiL), Hague Academic Coalition (2007-04-20). • The World Justice Project (http://www.worldjusticeproject.org) A multinational, multidisciplinary initiative to strengthen the rule of law worldwide. • World Justice Map (http://www.worldjusticemap.org) Map-based information exchange platform facilitating networking among Rule of Law promoters globally. • "Understandings of the Rule of Law in various Legal Orders of the World" (http://wikis.fu-berlin.de/display/ SBprojectrol/Home), Wiki-Project of Freie Universitaet Berlin. • Eau Claire County Bar Association rule of law talk (http://www.eauclairecountybar.com/pdf/ rule_of_law_speech_ecbar.pdf) • Frithjof Ehm "The Rule of Law: Concept, Guiding Principle and Framework" (http://www.venice.coe.int/ docs/2010/CDL-UDT(2010)022-e.pdf) 23 Canada Act Against Slavery The Act Against Slavery was an anti-slavery law passed on July 9, 1793, in the first legislative session of Upper Canada, the colonial division of British North America that would eventually become Ontario.[1] John Graves Simcoe, Lieutenant Governor of the colony, had been a supporter of abolition before coming to Upper Canada; as a British Member of Parliament, he had described slavery as an offence against Christianity.[2] [3] At the time, Upper Canada had about three hundred slaves.[4] The text of "An Act Against Slavery". At the inaugural meeting of the Executive Council of Upper Canada in March 1793, Simcoe heard from a witness the story of Chloe Cooley, a female slave who had been violently removed from Canada for sale in the United States. Simcoe's desire to abolish slavery in Upper Canada was resisted by members of the Legislative Assembly who owned slaves, and therefore the resulting act was a compromise.[2] Of the sixteen members of the assembly, at least six owned slaves.[4] The law, titled An Act to Prevent the further Introduction of Slaves and to limit the Term of Contracts for Servitude within this Province, stated that while all slaves in the province would remain enslaved until death, no new slaves could be brought into Upper Canada, and children born to female slaves after passage of the act would be freed at age 25.[5] This law made Upper Canada "the first British colony to abolish slavery."[4] [6] The Act remained in force until 1833 when the British Parliament's Slavery Abolition Act abolished slavery in most parts of the British Empire. Aftermath In 1798, Christopher Robinson introduced a bill in the Legislative Assembly to allow the importation of additional slaves. The bill was passed by the Assembly, but was stalled by the Legislative Council and died at the end of the session.[3] Thousands of Black Canadians volunteered to serve in the War of 1812. In 1819, Attorney General John Robinson declared that by residing in Canada, black residents were set free, and that Canadian courts would protect their freedom.[7] [8] Act Against Slavery 24 References [1] Black History Canada. "Abolition of Slavery" (http:/ / blackhistorycanada. ca/ topic. php?id=112& themeid=1). The Historica Dominion Institute. . Retrieved 2010-11-20. [2] Archives of Ontario. "Enslaved Africans in Upper Canada" (http:/ / www. archives. gov. on. ca/ english/ on-line-exhibits/ slavery/ index. aspx). . Retrieved 2010-11-20. [3] Bode, Patrick (June 1993). "Simcoe and the slaves". The Beaver 73 (3): 17. [4] Taylor, Alan (12 October 2010) (Kindle). The Civil War of 1812: American Citizens, British Subjects, Irish Rebels, & Indian Allies. New York): Alfred A. Knopf. Chapter 2, Location 964. ISBN 1400042658. OCLC 503042145. [5] CBC News Interactive. "Slavery in Canada" (http:/ / www. cbc. ca/ news/ interactives/ tl-slaveryincanada/ ). . Retrieved 2010-11-20. [6] Michaëlle Jean (2007-03-21). "Her Excellency the Right Honourable Michaëlle Jean Speech on the Occasion of the Student Forum: “From the Abolition of the Slave Trade to the Elimination of Racial Discrimination”" (http:/ / www. gg. ca/ document. aspx?id=12400). . Retrieved 2010-11-20. [7] Archives of Ontario. "Slavery to Emancipation" (http:/ / www. archives. gov. on. ca/ english/ on-line-exhibits/ alvin-mccurdy/ settlement. aspx). . Retrieved 2010-11-20. [8] Black History Canada. "Timeline 1800-1900" (http:/ / blackhistorycanada. ca/ timeline. php?id=1800). The Historica Dominion Institute. . Retrieved 2010-11-20. Implied Bill of Rights The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play. History The concept of an implied bill of rights develops out of Canadian federalism. When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the Constitution Act, 1867. Provinces cannot intrude in this area; if they do, such legislation is void and has no effect. Since provincial prohibitions touching on the fundamental freedoms of speech, religion, assembly and association were declared unconstitutional by the courts, and in light of the expansive obiters in the leading cases, the writers were able to claim that there was a bill of rights implicit in the Constitution. Some constitutional scholars focus on the preamble of the Constitution Act, 1867 as providing the underlying reasons for an implied bill of rights. The relevant part of the preamble reads: Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom [...] Some authors have taken the view that the words "similar in principle" means that in Canada there must be a parliamentary system of government, acting under the influence of public opinion, of a free press, with free speech.[1] Thus legislation which destroyed the citizen's ability to debate, to assemble or to associate freely would be contrary to Canada's democratic parliamentary system of government. This provides an additional underpinning for the claim of an implied bill of rights in Canada's Constitution. The Supreme Court revisited the implied bill of rights theory in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 S.C.R. 3 (Provincial Judges Reference). The Court referred to both the Charter and the implied bill of rights theory to rule that governments may not compromise judicial independence. As outlined by the majority the proper function of the implied bill of rights after the adoption of the Implied Bill of Rights Charter is to 'fill in the gaps' in the express terms of the constitutional texts. However while the Court stated that the theory was able to fill in the details of judicial independence, the Court actually relied on the Charter to do so. The ideas outlined in the Provincial Judges Reference were developed further in the Reference re Secession of Quebec, [1998] 2 S.C.R. 217. Together these two cases have been interpreted to expand the reach of unwritten constitutional principles. The 1867 preamble and the Canadian Constitution (including its newer addition, the Charter) are read as a unified whole. The express provisions of the Constitution elaborate underlying, organizing principles. These unwritten principles can shape "a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text" and that in "certain circumstances give rise to substantive legal obligations" that "are binding upon both courts and governments;" (Secession Reference, supra., paras. 50-4). In the Provincial Judges Reference, the Court fell short of using the preamble to state new constitutional obligations or limitations. Chief Justice Lamer's extensive obiter did return Canadian constitutional theory to the classical model of rights implicit in the Constitution which was first developed in the Alberta Press, Saumur and Switzman cases. By this model, "important legal effects" including constitutional obligations and limits, may be created by the Bill of Rights implied into the Constitution, quite apart from an application of the written constitution. 25 References [1] Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 686. Ontario Human Rights Code The Human Rights Code of Ontario is a provincial law in the province of Ontario, Canada that gives all people equal rights and opportunities without discrimination in specific areas such as jobs, housing and services. The code's goal is to prevent discrimination and harassment because of race, colour, sex, sexual orientation, disability, creed, age and other grounds. History The code was one of the first laws of its kind in Canada. Before 1962, various laws dealt with different kinds of discrimination. The code brought them together into one law and added some new protections. Administration The Human Rights Tribunal of Ontario is the administrative, quasi-judicial tribunal tasked with hearing complaints that the Code has been violated. It has the power to grant damages and specific performance to remedy discriminatory acts. The HRTO is subject to judicial review by the Divisional Court of the Ontario Superior Court of Justice. Content The Code is divided into an introductory section, or "preamble", followed by five parts. Part I sets out basic rights and responsibilities. Part II explains how the code is interpreted and applied. Part III explains the role and structure of the commission and Part IV explains how the code is enforced. Finally, Part V deals with general matters such as the power to make regulations. Ontario Human Rights Code 26 Application The Code does not apply to federally regulated activities, such as aeronautics and telecommunications, which are subject to the Canadian Human Rights Act. External links • Ontario Human Rights Code [1] (full text) • Ontario Human Rights Code [2] at the Ontario Human Rights Commission • Human Rights (Ontario) Legal Guide [3] References [1] http:/ / www. e-laws. gov. on. ca/ html/ statutes/ english/ elaws_statutes_90h19_e. htm [2] http:/ / www. ohrc. on. ca/ en/ resources/ code [3] http:/ / www. isthatlegal. ca/ index. php?name=start. human_rights_law_ontario Canadian Human Rights Act 27 Canadian Human Rights Act Canadian Human Rights Act An Act to extend the laws in Canada that proscribe discrimination Citation Enacted by Date assented to Canadian Human Rights Act Parliament of Canada 1985 [1] The Canadian Human Rights Act is a statute originally passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set prohibited grounds such as gender, disability, or religion. It applies throughout Canada, but only to federally regulated activities; each province and territory has its own anti-discrimination law that applies to activities that are not federally regulated. The Canadian Human Rights Act outlines the creation of a Canadian Human Rights Commission that investigates claims of discrimination as well as the creation of a Canadian Human Rights Tribunal to judge the cases. Before a case can be brought to the Tribunal it must go through several stages of investigation and remediation. After this process has been completed, if the parties are not satisfied, the case will go to the tribunal. If a complainant can show a valid case of discrimination the defendant can rebuke it by showing that their practice was for a justified reason. The process is generally known as the "Meiorin test" which is similar to the Oakes test justification in a Charter challenge. External links • • • • Canadian Human Rights Act [2] (full text) Canadian Human Rights Commission [3] Canadian Human Rights Tribunal [4] Maple Leaf Web: The Canadian Human Rights Act: Introduction to Canada’s Federal Human Rights Legislation [5] References [1] [2] [3] [4] [5] http:/ / laws. justice. gc. ca/ en/ H-6/ FullText. html http:/ / laws. justice. gc. ca/ en/ h-6 http:/ / www. chrc-ccdp. ca/ http:/ / www. chrt-tcdp. gc. ca/ about/ faq_e. asp http:/ / www. mapleleafweb. com/ features/ canadian-human-rights-act-introduction-canada-s-federal-human-rights-legislation Quebec Charter of Human Rights and Freedoms 28 Quebec Charter of Human Rights and Freedoms The Charter of Human Rights and Freedoms (French: Charte des droits et libertés de la personne) is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975. It received Royal Assent from Lieutenant Governor Hugues Lapointe, coming into effect on June 28, 1976. Introduced by the Liberal government of Robert Bourassa, the charter followed extensive preparatory work that began under the Union Nationale government of Daniel Johnson. The charter ranks among other quasi-constitutional Quebec laws, such as the Charter of the French Language and the Act respecting Access to documents held by public bodies and the Protection of personal information. Having precedence over all provincial legislation (including the latter), the Charter of Human Rights and Freedoms stands at the pinnacle of Quebec's legal system. Only the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, enjoys priority over the Quebec charter. Provisions The Charter of Human Rights and Freedoms consists of six parts: • Part I defines fundamental human rights. Its six chapters enunciate fundamental freedoms and rights, equality rights, political rights, judicial rights, economic and social rights, and interpretative provisions. • Part II establishes the Commission des droits de la personne et des droits de la jeunesse (Human Rights and Youth Rights Commission). The commission is responsible for promoting and upholding the principles of the charter by any appropriate measures, including investigating possible cases of discrimination and the instigation of litigation. Members of the commission are appointed by the National Assembly. The commission's staff members do not belong to the Civil Service, in order to safeguard their independence. • Part III provides for affirmative action programs. • Part IV guarantees rights to privacy. • Part V gives the government regulatory powers. • Part VI establishes the Human Rights Tribunal, whose members are chosen from among the judiciary. Comparison with other human rights instruments The Charter of Human Rights and Freedoms is unique among Canadian (and North American) human rights documents in that it covers not only the fundamental (civil and political) human rights, but also a number of important social and economic rights. The protections contained in the charter are inspired by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Furthermore, the list of prohibited grounds of discrimination included in the Quebec charter is extensive; a total of fourteen prohibited grounds are enumerated, including race, colour, ethnic or national origin, sex, pregnancy and age. "Social condition" has been a prohibited ground of discrimination since the charter came into force. Discrimination based on sexual orientation has been prohibited since 1977; with that change, Quebec became the first jurisdiction larger than a city or county to prohibit anti-gay discrimination. Quebec Charter of Human Rights and Freedoms 29 Enforceability An illicit violation of the charter, whether by a private party or by the provincial Crown, may give rise to a cease-and-desist order and to compensation for damages. Punitive damages may be awarded in case of an intentional and unlawful violation. The Charter of Human Rights and Freedoms is called quasi-constitutional because, according to section 52, no provision of any other act passed by the Quebec National Assembly may derogate from sections 1 to 38, unless such act expressly states that it applies despite the charter.[1] A total impossibility to adopt derogating laws could be considered incompatible with parliamentary sovereignty, a fundamental principle in political systems following the British tradition; however, Canada, of which Quebec is a province, has a tradition of constitutional supremacy. Its Constitution, which includes the Canadian Charter of Rights and Freedoms, is supreme, binding the federal parliament and the legislative assemblies of Canada's provinces and territories. The Quebec charter's supremacy under its section 52 applies to the following categories of rights: fundamental rights and freedoms (the right to life, free speech, freedom of religion, the right to privacy, etc.); the right to equality; political rights; and judicial rights. Economic and social rights do not enjoy supremacy but, according to the Supreme Court of Canada in the 2002 case of Gosselin v. Quebec (Attorney General), failure to respect such a right may give rise to a judicial declaration of violation. The charter provides for a specific machinery in cases of discrimination (or exploitation of an elderly or handicapped person). Instead of introducing litigation in court, victims of such a violation may file a complaint with the Human Rights and Youth Rights Commission. The commission will investigate the matter and attempt to foster a settlement between the parties. It may recommend corrective measures. If those are not followed, the commission may introduce litigation before a court (usually, but not necessarily, the Human Rights Tribunal). Victims will be represented free of charge by the commission. The Quebec charter does not apply to federally regulated activities in Quebec. Those are subject to the Canadian Charter of Rights and Freedoms and/or the Canadian Human Rights Act. Notable case law Notable cases decided under the Charter include: • • • • • • • • • Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 : Freedom of expression and signs Devine v. Quebec (Attorney General) [1988] 2 S.C.R. 790 : Freedom of expression Tremblay v. Daigle [1989] 2 S.C.R. 530 : Abortion Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 : Residency requirements Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591 : Privacy rights Gosselin v. Quebec (Attorney General) [2002] 4 S.C.R. 429, 2002 SCC 84 : Social rights Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 : Freedom of religion Gosselin (Tutor of) v. Quebec (Attorney General) [2005] 1 S.C.R. 238 : Minority language education Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791 : Health care Quebec Charter of Human Rights and Freedoms 30 References [1] http:/ / www2. publicationsduquebec. gouv. qc. ca/ dynamicSearch/ telecharge. php?type=2& file=/ C_12/ C12_A. HTM External links • Full Charter of Human Rights and Freedoms (http://www.canlii.org/qc/laws/sta/c-12/20050513/whole. html) (R.S.Q., chapter C-12) • Commission des droits de la personne et des droits de la jeunesse du Québec (Quebec Human Rights and Youth Rights Commission) (http://www.cdpdj.qc.ca/en/home.asp) • Quebec Statutes and Regulations (http://www.canlii.org/qc/sta/) Section Fifteen of the Canadian Charter of Rights and Freedoms Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs (affirmative action) and rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools (religious education). Rights under section 15 include racial equality and sexual equality. In its jurisprudence, it has also been a source of gay rights in Canada. These rights are guaranteed to "Every individual," that is, every natural person. This wording excludes "legal persons" such as corporations, contrasting other sections that use the word "everyone," where "legal persons" were meant to be included. Section 15 has been in force since 1985. Text Under the heading of "Equality Rights" this section states: “ 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. ” Background The Canadian Bill of Rights of 1960 had guaranteed the "right of the individual to equality before the law and the protection of the law." Equal protection of the law is a right that has been guaranteed by the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution since 1868.[1] Section 15 itself dates back to the earliest draft of the Charter, published in October 1980, but it was worded differently. It read, “ (1) Everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. (2) This section does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons [2] or groups. ” During the drafting, the guarantee to "everyone" was dropped in favour of "every individual," with the intent that corporations could not invoke equality rights.[3] In addition, while the original version spoke of equality before the Section Fifteen of the Canadian Charter of Rights and Freedoms law and equal protection of the law, the section ultimately enacted included guarantees of equality under the law and equal benefit of the law. The reason for these additions was to encourage a generous reading of section 15. In the Bill of Rights cases Attorney General of Canada v. Lavell (1974) and Bliss v. Canada (1979), Supreme Court Justice Roland Ritchie had said only the application, and not the outcome, of the law must be equal, thereby necessitating an explicit guarantee of equality under the law; and that legal benefits need not be equal, thereby necessitating an explicit guarantee of equal benefit of the law.[4] Though the Charter itself came into effect on April 17, 1982, section 15 was not brought into force until April 17, 1985, in accordance with section 32(2) of the Charter. The reason for this was so that provincial and federal governments would have enough time to review their legislation and make the appropriate changes to any discriminatory laws. 31 Meaning and purpose of equality According to the Supreme Court of Canada's Section 15 jurisprudence, the equality guarantees of section 15 are aimed at preventing the "violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudices, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration." (Iacobucci J. in Law v. Canada, [1999]) To that end, the Charter recognizes four dimensions of equality, including substantive equality. • Equality before the law is equality in the administration of justice, where all individuals are subject to the same criminal laws in the same manner by law enforcement and the courts. • Equality under the law is equality in the substance of the law, where the content of the law is equal and fair to everyone so that everyone experiences the same result. • Equal benefit of the law ensures that benefits imposed by law will be proportionate. • Equal protection of the law ensure that the protections imposed by law will be proportionate so that the human dignity of every person is equally safeguarded by the law. Unlike formal equality, which overlooks personal differences, substantive equality is concerned with the impact of the law on different groups of individuals. Substantive equality requires that there be an equal impact on the person affected by the law. Application of section fifteen In any challenge of section 15(1) the burden of proof is always on the claimant. The Supreme Court of Canada has endorsed a purposive interpretation of Section 15. Current interpretation After Law v. Canada (1999) the question of whether dignity was affected was key to a section 15 analysis. In R. v. Kapp (2008), the problems with the dignity analysis were recognized and the dignity analysis was jettisoned. The Court mandated that the test is, as it was before, the one found in Andrews v. Law Society of British Columbia (1989): (1) Is there differential treatment on an analogous or enumerated ground? (2) Does this ground cause prejudice or stereotyping? Section Fifteen of the Canadian Charter of Rights and Freedoms Enumerated or analogous grounds The concept of enumerated or analogous grounds originated in the essential 1989 Andrews case to refer to personal characteristics that, when being the basis of discrimination, show the discrimination is unconstitutional under section 15. There are nine enumerated grounds explicitly mentioned in section 15, although they are not actually numbered. In practice, the enumerated grounds have been given liberal and broad interpretations. For example, discrimination on the basis of pregnancy has been ruled to be sex discrimination (Brooks v. Canada Safeway Ltd.). As section 15's words "in particular" hint that the explicitly named grounds do not exhaust the scope of section 15, additional grounds can be considered if it can be shown that the group or individual's equality rights were denied in comparison with another group that shares all of the same characteristics except for the personal characteristic at issue. A personal characteristic is considered analogous to the ones enumerated in section 15 if it is "immutable" or cannot be changed or can only be changed at excessive cost (constructively immutable). Thus far, several analogous grounds have been identified: 32 Discrimination based upon sexual orientation is an analogous ground for discrimination, leading all but two provincial courts to legalize same-sex marriage in Canada. • sexual orientation (Egan v. Canada [1995], Vriend v. Alberta [1998], M. v. H. [1999] Little Sisters Book and Art Emporium v. Canada [2000]) This finding has led provincial courts (the Supreme Court declined in Reference re Same-Sex Marriage to rule on the issue as the government had voiced its intent to legalize them anyway) to find that laws against same-sex marriage in Canada would be unconstitutional. In Halpern v. Canada (Attorney General) (2003), the Court of Appeal for Ontario used section 15 to legalize same-sex marriage in Ontario. • marital status (Miron v. Trudel, [1995], Nova Scotia v. Walsh [2002]), • off-reserve aboriginal status/"Aboriginality-residence" (Corbiere v. Canada). • citizenship (Lavoie v. Canada [2000]) As well, the courts have rejected several analogous grounds including: • • • • • • • having a "taste for marijuana". (R. v. Malmo-Levine) employment status (Reference Re Workers' Compensation Act [1989], Delisle v. Canada [1999]) litigants against the Crown (Rudolph Wolff v. Canada [1990]) province of prosecution/residence (R. v. Turpin [1989], R. v. S. (S.) [1990]) membership in military (R. v. Genereux) new resident of province (Haig v. Canada) persons committing crimes outside Canada (R. v. Finta) Past interpretations- the Law test As first outlined in Law v. Canada, discrimination can be identified through a three-step test. 1. Did the law, program, or activity impose differential treatment between the claimant and a comparator group? That is, was a distinction created between the groups in purpose or effect? 2. If so, was the differential treatment based on enumerated or analogous grounds? 3. If so, did the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee? Section Fifteen of the Canadian Charter of Rights and Freedoms Differential treatment This step asks whether there is a formal distinction between the claimant and a comparator group based on one or more personal characteristics or else does it fail to take into account the claimant's current disadvantaged position? The selection of the comparator group is integral. They must possess all the qualities of the claimant except for the personal characteristic at issue. (Corbiere v. Canada [1999] 2 S.C.R. 203) In Hodge v. Canada (Minister of Human Resources Development) (2004), it was noted that a court may reject a claimant's choice for a comparator group, and that choosing the wrong comparator group may cause the rights claim to fail. In Withler v. Canada (Attorney General) (2011), the Supreme Court has jettisoned the comparator group requirement, mandating that instead a contextual analysis is the way to go. They recognized that comparator group analysis was leading to much injustice, something also noted in R. v. Kapp. Discrimination For discrimination to be found it must be determined if the burden or denial of benefit harms an individual's human dignity (Law v. Canada). That is, the discrimination will marginalize, ignore, or devalue an individual's sense of self-respect and self-worth. Law suggests four "contextual factors" which can help guide a contextual analysis of whether the imputed distinction violates the human dignity of the claimant. None of these are determinative of discrimination, and the Court must not consider all of them in every case. This list is also not exhaustive, although the standard Law analysis has yet to develop any additional factors: 1. 2. 3. 4. pre-existing disadvantage correlation between the grounds of the claim and the actual needs, capacities, and circumstances ameliorative purpose or effect of the law on more disadvantaged groups nature and scope of interest 33 Jurisprudence has shown that each of these factors are weighed differently depending on the context. Pre-existing disadvantage asks whether there was a pre-existing disadvantage or vulnerability experienced by the claimant. In Corbiere v. Canada McLachlin described this factor to be the most compelling and suggestive of discrimination if proven. However, the absence of a pre-existing disadvantage does not necessarily preclude a claimant from succeeding as seen in Trociuk v. British Columbia. With correlation between grounds and reality, the claimant must show that there is a link between the grounds raise and the claimant's actual needs, circumstances, and capacities. Discrimination will be more difficult to establish if the law takes the qualities of the claimant into account. In Gosselin v. Quebec (Attorney General) [2002] the court was sharply divided on this point. The majority said that the law that provided less social assistance to youth was connected to the ability of youth to find employment easily. However, the dissenters insisted that the evidence did not show this to be actual qualities, but were rather stereotypes. The ameliorative purpose factor asks whether there is a distinction made for the purpose of aiding an even less advantaged group. If this can be shown then it is unlikely that the claimant would be able to show a violation of their dignity. However, Lovelace v. Ontario warned that the analysis should not be reduced to a balancing of relative disadvantages. The final factor of nature and scope considers the nature and scope of the interest affected by the law. The more severe and localized the results of the law for those affected the more likely to show that the distinctions in treatment responsible are discriminatory. Section Fifteen of the Canadian Charter of Rights and Freedoms 34 Enforcement Section 15, like the rest of the Charter, is mainly enforced by the courts through litigation under sections 24 and 52 of the Constitution Act, 1982. Such litigation can be very costly. To overcome this barrier, the federal government expanded the Court Challenges Program of Canada[5] in 1985 to fund test cases challenging federal legislation in relation to the equality rights guaranteed by the Charter. Some funding has been provided to challenge provincial laws under a variety of programs in the past, but its availability has varied considerably from province to province.[6] In September 2006, the Federal government announced that it would be "trimming the fat and refocusing spending on the priorities of Canadians." This included cutting all funding to the Court Challenges Program.[7] Notes [1] [2] [3] [4] [5] Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), 1067. Hogg, pages 1062-3. Hogg, page 744. Hogg, pages 1066-1067. Court Challenges Program of Canada (http:/ / www. ccppcj. ca/ e/ about/ about. shtml) [6] Arne Peltz & Betsy Gibbons, "Deep Discount Justice: The Challenge of Going to Court with a Charter Claim and No Money" (http:/ / www. ccppcj. ca/ documents/ justice-e. html), 1999. URL accessed on March 10, 2006. [7] Canada Department of Finance "Press Release" (http:/ / www. fin. gc. ca/ news06/ 06-047e. html), URL accessed on December 9, 2006. External links • CanLII Section 15(1) - Equality before and under law and equal protection and benefit of law (http://www. canlii.org/en/ca/charter_digest/s-15-1.html) • CanLII Section 15(2) - Affirmative action programs (http://www.canlii.org/en/ca/charter_digest/s-15-2. html) • Charter Equality Rights - Interpretation of Section 15 in Supreme Court of Canada Decisions (http://www2.parl. gc.ca/Content/LOP/ResearchPublications/bp402-e.htm), 2007 • 20th Anniversary of Section 15 (Dept. of Justice) (http://www.justice.gc.ca/en/s15/home.html) • Fundamental Freedoms: The Charter of Rights and Freedoms (http://www.charterofrights.ca/language.php) Charter of Rights website with video, audio and the Charter in over 20 languages Section Twenty-seven of the Canadian Charter of Rights and Freedoms 35 Section Twenty-seven of the Canadian Charter of Rights and Freedoms Section Twenty-seven of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts. It is believed that section 27 "officially recognized" a Canadian value, namely multiculturalism.[1] The section reads, “ 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. ” Purpose When the Charter was enacted in 1982, constitutional scholar Peter Hogg observed that this section did not actually contain a right; namely, it did not say that Canadians have a right to multiculturalism. The section was instead meant to guide the interpretation of the Charter to respect Canada's multiculturalism. Hogg also remarked that it was difficult to see how this could have a large impact on the reading of the Charter, and thus section 27 could be "more of a rhetorical flourish than an operative provision."[2] Section 27 can be seen as a declaration of a national value of multiculturalism. In 2002, polls found 86% of Canadians approved of this section.[3] In Canada, multicultural policy had been adopted in 1971 following the Royal Commission on Bilingualism and Biculturalism, a government body set up in response to the grievances of Canada's French-speaking minority (concentrated in the province of Quebec). The report of the Commission advocated that the Canadian government should recognize Canada as a bilingual and bicultural society and adopt policies to preserve this character. Impact Freedom of religion Section 27 has been referred to by the courts. The Court of Appeal for Ontario in Videoflicks Ltd. et al. v. R. (1984) argued that section 27 should receive "significance" from the courts, and that the section could reinforce freedom of religion (section 2). As this court put it, if a law limits the free exercise of religion, then the law is also of no use in promoting multiculturalism, since it effects a "part of one's culture which is religiously based." Hence, section 27 demands that governments must respect and tolerate various religions, even if this means that some cultural groups may be exempted from certain things the government compels the people to do, even if this proves to place "inconveniences" on the government. This line of thinking was reaffirmed by the Supreme Court of Canada in R. v. Edwards Books and Art Ltd. (1986). The Supreme Court also referred to section 27 in the landmark Charter case R. v. Big M Drug Mart Ltd. (1985), in which the guarantee of freedom of religion in section 2 of the Charter was used to invalidate laws that required businesses to be closed on Sundays, the Christian Sabbath. As the Court noted, the Parliament of Canada requiring Canadians to observe "the day of rest preferred by one religion" contradicted multiculturalism and section 27. Section Twenty-seven of the Canadian Charter of Rights and Freedoms 36 Freedom of expression Section 27 was applied by Chief Justice Brian Dickson in a different way in the Supreme Court case Canada (Human Rights Commission) v. Taylor (1990). In this case, Dickson found section 27 could reinforce limits on freedom of expression (in section 2), specifically hate speech. Section 27, along with section 15 of the Charter (the equality rights), would suggest fighting racial and religious discrimination would be a sufficient objective under section 1 of the Charter for limiting free expression under section 2. Despite this, section 27 does not indicate that there are built-in limits in freedom of expression based on multiculturalism. Limits are measured in section 1. In R. v. Keegstra, also decided in 1990, the Court wrote that using sections 15 and 27 to limit the scope of freedom of expression contradicted "the large and liberal interpretation given the freedom of expression in Irwin Toy" and at any rate "s. 1 of the Charter is especially well suited to the task of balancing." Equality rights Legal scholar Walter Tarnopolsky speculated in 1982 that section 27 could probably be most relevant to the interpretation of the section 15 equality rights. As he wrote, section 15 already protects ethnic origin and religion, but section 15's guarantee of "equal benefit of the law," combined with section 27, could lead to governments financially supporting minority culture. This would be particularly true if there was any inequality between how cultural groups are funded.[4] Aboriginal rights In various cases, courts have refused to use section 27 (or section 25) to give First Nations a right to have a certain number of seats on a jury in a trial. The courts have instead said that section 27 supports the current practice that anyone can be asked to serve on a jury, since moving Canada toward a scenario in which one race could monopolize a jury could be a threat to multiculturalism.[5] Legislation Section 27 is referenced by the Canadian Multiculturalism Act, legislation enacted in 1988. References External links • Overview of section 27 case law in the Canadian Legal Information Institute [6]. • Fundamental Freedoms: The Charter of Rights and Freedoms [7] - Charter of Rights website with video, audio and the Charter in over 20 languages Notes [1] Guide to the Canadian Charter of Rights and Freedoms. (http:/ / www. pch. gc. ca/ progs/ pdp-hrp/ canada/ guide/ general_e. cfm#27) Human Rights Program. Canadian Heritage. URL accessed on 20 November 2005. [2] Hogg, Peter W. Canada Act 1982 Annotated. Toronto, Canada: The Carswell Company Limited, 1982. [3] Tracey Tyler, "Support for Charter runs strong: Survey; Approval highest in Quebec on 20-year-old rights law," Toronto Star, Apr 12, 2002, p. A07. [4] Tarnopolsky, Walter S. "The Equality Rights." In The Canadian Charter of Rights and Freedoms: Commentary, eds. Walter S. Tarnopolsky and Gerard-A. Beaudoin (Toronto: The Carswell Company Limited, 1982), 442. [5] http:/ / canlii. ca/ ca/ com/ chart/ s-27. html [6] http:/ / canlii. ca/ ca/ com/ chart/ s-27. html [7] http:/ / www. charterofrights. ca/ language. php Civil Marriage Act 37 Civil Marriage Act The Civil Marriage Act (full title: "An Act respecting certain aspects of legal capacity for marriage for civil purposes") was legislation legalizing same-sex marriage across Canada. At the time the bill became law, same-sex marriage had already been legalized by court decisions in all Canadian provinces except Alberta and Prince Edward Island, as well as in the Yukon Territory. It was introduced as Bill C-38 in the first session of the 38th Canadian Parliament on February 1, 2005. It passed the House of Commons on June 28, 2005, and the Senate on July 19, 2005. The Act became law when it received Royal Assent on July 20, 2005. As with all federal legislation in Canada, the Act is written in both French and English, with equal force. The French title is Loi sur le mariage civil, or in full, Loi concernant certaines conditions de fond du mariage civil. The Act This is the Act's official legislative summary: This enactment extends the legal capacity for marriage for civil purposes to same-sex couples in order to reflect values of tolerance, respect and equality, consistent with the Canadian Charter of Rights and Freedoms. It also makes consequential amendments to other Acts to ensure equal access for same-sex couples to the civil effects of marriage and divorce.[1] The short title of the act (Civil Marriage Act) is defined in Section 1. Sections 2 through 4 form the substance of the Act, and were the key points of contention during its debate in the House of Commons and the Senate. Section 3.1 was added with an amendment during the committee stage, and was subsequently adopted by the House of Commons. Marriage - certain aspects of capacity 2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. Religious officials 3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs. Freedom of conscience and religion and expression of beliefs 3.1 For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom. Marriage not void or voidable 4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex. The remaining sections are "consequential amendments" that simply adjust the wording of existing acts to conform to this one. Civil Marriage Act 38 Politics As a government bill, C-38 represented the official position of Paul Martin's Liberal government, and the cabinet were thus bound to vote in its favour. Liberal backbenchers and members of the Conservative Party and Bloc Québécois had a free vote. In accordance with its party policy on LGBT rights, the New Democratic Party (NDP) whipped its members in favour. Bev Desjarlais defied the whip and was removed from her critic position. (She was not nominated for the next election by her riding association, and subsequently chose to sit as an independent for the remainder of the session.) Conservatives tended to vote against the Act, while Bloquistes tended to vote in favour. At least two cabinet ministers stepped down to vote against the bill. Joe Comuzzi resigned just hours before the final vote on the Act, and Martin lamented his leaving. As expected, Comuzzi voted against the Act. The composition of Parliament was such that the prevailing opinion among political commentators indicated the bill would likely pass the House (see a detailed analysis at members of the 38th Canadian Parliament and same-sex marriage). Although there was some challenge to it, this opinion was verified with a 158-133 vote at third reading in the House of Commons on June 28. The bill passed in the Senate on July 19, with a 47-21 vote, with 3 abstentions. The legislative process The bill was given its first reading on February 1, 2005 after its introduction by Justice minister Irwin Cotler. C-38 was written on the basis of a draft bill produced by then-Justice minister Martin Cauchon in 2003, which had been submitted to the Supreme Court of Canada in December 2004 as the reference question Re: Same-Sex Marriage. Due to the government's tenuous minority position, there was a strong possibility that the government could have fallen on a motion of confidence through the budget bills, causing the bill to die on the order paper. It would then have been up to a new post-election government to re-introduce the bill affirming same-sex marriage (or to introduce a bill, of uncertain constitutionality, defining marriage as one man and one woman). However, the government survived the last of the budget votes on June 23, 2005, and successfully passed a motion to extend the current sitting of Parliament. In order to pass the motion extending the session, the Liberals provided a written promise to the Bloc Québécois that they would bring C-38 to a vote before the end of the current session. Finally, on June 28, the Act was passed on third reading by the House of Commons; 158 voting in favour, 133 voting against. On July 19, it passed the Senate by a 47-21 vote with 3 abstentions, and received Royal Assent (thereby becoming law) on July 20. A summary of the legislation's progress is given below.[2] Stage House of Commons June 29 July 4 to 6 July 6 Senate Introduction and First Reading 1 February 2005 Second Reading Debate Second Reading Committee Name Committee Stage Committee Report Debates at Report Stage Report Stage Vote Third Reading Debate Third Reading and Passage Royal Assent February 16 to May 4 May 4 Special Committee on Bill C-38 Legal and Constitutional Affairs May 5 to June 15 June 16 June 27 June 28 June 28 June 28 July 11 to 14 July 18 July 19 July 19 July 20 Civil Marriage Act 39 Chronology House of Commons • February 1, 2005 - Cotler introduces the bill and the House grants first reading. Accordingly, it is designated Bill C-38 and published. • February 2, 2005 - Conservative support for the bill doubles to four MPs as former Progressive Conservatives Jim Prentice and Gerald Keddy announce they will vote in favour. Belinda Stronach (who later became a Liberal cabinet minister) and James Moore were already on record as being in favour. • February 8, 2005 - The Calgary-based Canada Family Action Coalition[3] seeks to boycott Famous Players Theatres because of a ten-second ad that urged moviegoers to contact their MPs to say they support same-sex marriage. They refused to buy an ad when they learn it was paid for by Salah Bachir on behalf of Canadians for Equal Marriage. • February 16, 2005 - Second reading begins on the bill with speeches by Prime Minister Paul Martin; Opposition Leader Stephen Harper; Bloc Québécois leader Gilles Duceppe; and NDP human rights critic Bill Siksay.[4] • April 12, 2005 - The Conservative Party's motion against the bill is defeated 164-132 against. • May 4, 2005 - Bill C-38 passes second reading in the House of Commons with a final vote of 164-137 for. • May 5, 2005 - Bill C-38 has its 1st special legislative committee meeting to study the bill, to listen from witnesses both against and for the bill, as well as propose amendments. • May 19, 2005 - Paul Martin's minority government survives a close (153-152) motion of confidence; with the Liberals still in power and Stephen Harper's Conservatives hinting that they'll back off future votes of non-confidence. Bill C-38 showed a strong promise of being made law (after a 3rd reading and vote) sometime before Parliament adjourns for the summer as the Prime Minister indicated MPs may sit in the summer, and the Senate would deal with the bill in July. • June 15, 2005 - Paul Martin's minority government survives no fewer than 16 confidence votes in the House of Commons. A defeat on any of them would have forced an election. But in the end, there was no repeat of the single-vote squeaker win of May 19. The closest vote passed 153 to 149; Gurmant Grewal is on stress leave over the tape scandal, two other conservative MPs are sick with cancer, and Thibault from the BQ is away due to the passing away of her father. As well, a series of public opinion polls released just days earlier all showed the Liberals in the lead, one of them released just a week ago showing the Liberals have a 14% lead over the Tories. The Tories seem themselves to not be wanting an election now, either. • June 15, 2005 - It is appearing less likely the bill will be out of 3rd reading stage by the time MPs recess from the summer on June 23 (unless sittings area extended) due to Conservatives stalling the budget bill (C-48), and the Government wants to deal with C-48 before C-38. The Government can invoke closure and force a vote on C-38 immediately, but it seems unlikely to happen since even the Liberal Government has disgruntled MPs against C-38 that want more debate now that the committee has reported. Weeks ago, Pat O'Brien left the Liberal caucus over the same-sex marriage legislation, that he felt was being rushed through the Commons. Cotler says the Government is where they expected to be which is now at Report Stage and that although he wants to see the legislation passed by the summer, he's only the Minister of Justice. • June 16, 2005 - The special legislative committee studying C-38 reported back to the House of Commons, with an amendment designed to help further protect religious officials who are against performing a same-sex marriage, and that those opposed to same-sex marriage should be able to speak their mind. Another amendment will be finalized soon that protects religious officials from losing their charitable tax status. • June 23, 2005 - Traditionally, it is around this date that the House of Commons closes. But with Bill C-38 in the process, MPs of the Liberal, Bloc and NDP parties vote to extend the sitting time through the following week to pass Bill C-38 in third and final reading. The same night, the budget bill (Bill C-48) passes after a late night snap vote is called, ending the threat by Bill C-38 opponents to derail the bill by defeating the budget thereby bringing down the government and forcing a general election. Civil Marriage Act • June 27, 2005 - A late night motion for time allocation is passed 163 to 106 limiting further debate on Bill C-38 to nine hours: one before concurrence on the report and eight thereafter. The sitting, which extended until the early morning hours of the next day, ends with a series of votes on proposed amendments in which nine amendments proposed by same-sex marriage opponents are defeated. The report is then concurred in. This closes the amendment stage and frees the House to begin final debate on third reading. • June 28, 2005 - Bill C-38 passes its final reading a few minutes after 21:00 EST, 158-133, through the House of Commons.[5] Liberal cabinet ministers were ordered by Prime Minister Paul Martin to vote for the legislation, while it remained a free vote for Liberal backbench MPs. Joe Comuzzi, a traditional opponent of same-sex marriage, resigned from Cabinet and voted against the bill. Almost all New Democrat and Bloc Québécois MPs voted in favour of the bill, while the Conservative MPs were virtually unanimous in voting against it. Stephen Harper made a controversial claim that "the law lacks legitimacy because it passed [only] with the support of the separatist Bloc party", and a majority of the federalist side was against. NDP MP Bev Desjarlais is stripped of her position in the NDP's shadow cabinet as Transport and the Canadian Wheat Board. She later lost her riding association's nomination for the riding of Churchill. The Bloc and the Conservatives declared C-38 a free vote. 40 Senate • June 29, 2005 - First reading of Bill C-38 occurred in the Senate.[6] Debate on second reading was then scheduled for July 4 and the forthcoming days. • July 4, 2005 - The debate on second reading begins with Senator Serge Joyal as mover of the bill. Senator Gerry St. Germain argues against the bill and Senator Jack Austin concludes the first day of debate arguing for the bill's adoption.[7] The government introduces a notice of motion for time allocation that would restrict debate on the bill to six hours.[8] Debate on second reading is to continue the next day. • July 5, 2005 - Debate on second reading continued, although the actual debate occurred only for a few minues. This was then followed by a long and heated debate on whether to invoke closure (rather than on the main bill).[9] Closure was invoked by a margin of 40 to 17 with 2 abstentions.[10] • July 6, 2005 - The Senate passed Bill C-38 on second reading by a margin of 43 to 12. The Bill went to the Committee on Legal and Constitutional Affairs.[11] • July 14, 2005 - The Committee on Legal and Constitutional Affairs finished seeing witnesses, and performed a clause-by-clause consideration.[12] • July 18, 2005 - The Committee reported back to the Senate without amendment, and the final debate was then scheduled to start the next day. Unanimous consent required to proceed directly to a vote on third reading was denied.[13] • July 19, 2005 - Debate on third reading of Bill C-38 began in the Senate. An attempt to delay third reading of the bill by six months was defeated 19 to 52, and an amendment to the bill that would have declared "traditional marriage" as being between a man and a woman and "civil marriage" as between two persons failed, 24 to 46, with 4 abstentions. Shortly after 11 p.m., the Senate passed Bill C-38 on third and final reading by a margin of 47 to 21, with 3 abstentions.[14] Civil Marriage Act 41 Royal Assent • July 20, 2005 - At 4:56 p.m., Bill C-38 receives Royal Assent from Chief Justice Beverley McLachlin (in her capacity as a Deputy of the Governor General of Canada) acting on behalf of convalescing Governor General Adrienne Clarkson and is proclaimed into law.[15] [16] References [1] http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ house/ bills/ government/ C-38/ C-38_1/ C-38-2E. html [2] "LEGISINFO - The Library of Parliament's research tool for finding information on legislation" (http:/ / www. parl. gc. ca/ legisinfo/ index. asp?Lang=E& Chamber=N& StartList=A& EndList=Z& Session=13& Type=0& Scope=I& query=4381& List=stat). Parl.gc.ca. . Retrieved 2010-05-20. [3] "Canada Family Action Coalition - CFAC" (http:/ / www. familyaction. org/ ). Familyaction.org. . Retrieved 2010-05-20. [4] Martin, Harper kick off same-sex debate (http:/ / www. cbc. ca/ canada/ story/ 2005/ 02/ 16/ same-sex-debate050216. html) [5] "How'd They Vote? :: Bill C-38, Third Reading" (http:/ / www. howdtheyvote. ca/ vote. php?id=208). Howdtheyvote.ca. 2005-06-28. . Retrieved 2010-05-20. [6] "Debates - Issue 78 - June 29, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 078db_2005-06-29-e. htm#17). Parl.gc.ca. . Retrieved 2010-05-20. [7] "Debates - Issue 80 - July 4, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 080db_2005-07-04-e. htm#12). Parl.gc.ca. . Retrieved 2010-05-20. [8] "Debates - Issue 80 - July 4, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 080db_2005-07-04-e. htm#14). Parl.gc.ca. . Retrieved 2010-05-20. [9] "Debates - Issue 81 - July 5, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 081db_2005-07-05-e. htm#38). Parl.gc.ca. . Retrieved 2010-05-20. [10] "Debates - Issue 81 - July 5, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 081db_2005-07-05-e. htm#40). Parl.gc.ca. . Retrieved 2010-05-20. [11] "Debates - Issue 82 - July 6, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 082db_2005-07-06-e. htm#27). Parl.gc.ca. . Retrieved 2010-05-20. [12] "Agenda for the meeting - Senate" (http:/ / www. parl. gc. ca/ common/ Committee_SenNotice. asp?Language=E& meeting_id=6768& Parl=38& Ses=1& past_meet=1). Parl.gc.ca. 1997-12-29. . Retrieved 2010-05-20. [13] "Debates - Issue 83 - July 18, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 083db_2005-07-18-e. htm?Language=E& Parl=38& Ses=1). Parl.gc.ca. . Retrieved 2010-05-20. [14] "Debates - Issue 84 - July 19, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ deb-E/ 084db_2005-07-19-e. htm?Language=E& Parl=38& Ses=1). Parl.gc.ca. . Retrieved 2010-05-20. [15] "Canadian news, entertainment, television, newspapers, free email and more" (http:/ / www. canada. com/ national/ story. html?id=4f1d4af8-3e69-443e-a067-93354b0ce8bc). canada.com. . Retrieved 2010-05-20. [16] "Debates - Issue 85 - July 20, 2005" (http:/ / www. parl. gc. ca/ 38/ 1/ parlbus/ chambus/ senate/ DEB-E/ 085db_2005-07-20-e. htm?Language=E& Parl=38& Ses=1#58). Parl.gc.ca. . Retrieved 2010-05-20. External links • Full text of Bill C-38 in English and French (parl.gc.ca) (http://www.parl.gc.ca/LEGISINFO/index. asp?Lang=E&Chamber=C&StartList=2&EndList=200&Session=13&Type=0&Scope=I&query=4381& List=toc) • Legislative Summary (http://www.parl.gc.ca/common/bills_ls.asp?Parl=38&Ses=1&ls=c38) • Paul Martin's February 2002 speech to the House in support of Bill C-38. • Discussion paper prepared by Library of Parliament (parl.gc.ca) (http://www.parl.gc.ca/common/Bills_ls. asp?lang=E&Parl=38&Ses=1&ls=C38&source=Bills_House_Government) Employment equity 42 Employment equity Employment equity, as defined in Canadian law by the Employment Equity Act, requires employers to engage in proactive employment practices to increase the representation of four designated groups: women, people with disabilities, Aboriginal peoples, and visible minorities.[1] The Act states that "employment equity means more than treating persons the same way but also requires special measures and the accommodation of differences."[2] The Act requires that employers remove barriers to employment that disadvantage members of the four designated groups. Examples of employment barriers are wheelchair inaccessible buildings, that create a physical barrier to people with disabilities, or practices that make some people feel uncomfortable, such as holding management meetings in strip clubs. The term reasonable accommodation is often used for the removal of such barriers to employment. Employers are also required to institute positive policies and practices for the hiring, training, retention and promotion of members of the designated groups. Positive policies include good hiring practices, for example, asking all job candidates the same interview questions, or advertising a job widely and in places where it is likely to reach female or minority applicants. History The roots of employment equity are in the 1984 Abella Commission, chaired by Judge Rosalie Abella. She considered the US term, affirmative action, but decided not to use that term because of the emotions and ill will surrounding affirmative action.[3] In its place she created the term “employment equity” for the Canadian context. Judge Abella’s report later became the foundation of the Employment Equity Act of 1986, later amended as the Employment Equity Act of 1995. The purpose of the Act, as stated in the legislation itself, is: The purpose of this Act is to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfillment of that goal, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences.[2] Designated groups The Employment Equity Act designates four groups as the beneficiaries of employment equity:[1] 1) Women 2) People with disabilities 3) Aboriginal people, a category consisting of Status Indians, Non-status Indians, Métis (people of mixed French-Aboriginal ancestry in western Canada), and Inuit (the Aboriginal people of the Arctic). 4) Visible minorities Coverage The Employment Equity Act is federal legislation, and as such, applies only to certain industries that are federally regulated under the Canadian constitution, namely banks, broadcasters, telecommunication companies, railroads, airlines, maritime transportation companies, other transportation companies if inter-provincial in nature, uranium-related organizations, federal crown corporations (companies where the federal government owns the majority of shares), and corporations controlled by two or more provincial governments.[4] A 2001 review estimated that 10% of the Canadian workforce was covered by federal employment equity legislation.[5] Thus the scope of the Employment Equity Act is quite limited, and the vast majority of employers, including nearly all retailers and Employment equity manufacturing companies, fall outside its jurisdiction. The Canadian federal government also administers the Federal Contractors’ Program (FCP). This is not part of the Employment Equity Act, but rather is a non-legislated program that extends employment equity to organizations beyond the scope of the Act.[6] The FCP states that suppliers of goods and services to the federal government (with some specified exceptions) must have an employment equity program in place. Some provinces use the term employment equity in conjunction with their enforcement of provincial-level human rights legislation (for example, British Columbia[7] ), but no province has a law that is an analogue to the federal Employment Equity Act. The government of Quebec requires that employers show preference to people with disabilities, which could be considered a form of employment equity legislation.[8] 43 Regulatory oversight Oversight of employment equity is shared among three federal government agencies. For private sector employers that are federally regulated, Human Resources and Social Development Canada collects data from employers and conducts research related to the Employment Equity Act.[1] The Treasury Board Secretariat oversees the administration of employment equity in the federal government itself. The Canadian Human Rights Commission deals with both private and public sector employers that are federally regulated, and is responsible for conducting audits of employers' compliance. In addition to the above, Human Resources and Social Development Canada is responsible for oversight of the Federal Contractors' Program.[1] Controversy Employment equity is surrounded with controversy, as has occurred with similar programs in the US and other countries. Opponents of employment equity argue that it violates common-sense notions of fairness and equality.[9] University of Saskatchewan economists Cristina Echavarria and Mobinul Huq argue that employment equity should be redesigned so that employers are required to remove barriers to men applying for female-dominated jobs, as well as barriers to women applying for male-dominated jobs.[10] On the other hand, proponents argue that employment equity is necessary to amend historic wrongs and to ameliorate the economic differences among groups.[11] [12] A particular point of contention has been the category visible minorities, which lumps together numerous ethnic groups, some of which are affluent and some of which are severely disadvantaged.[13] [14] [15] In July 2010, controversy arose when a Caucasian woman, Sara Landriault, was barred from applying for employment in a federal agency because she was not in a racial minority.[16] This incident led Stockwell Day, president of the Treasury Board of Canada, which oversees federal government employment policies, to announce a review of 'affirmative action' (employment equity) and how it is applied in federal hiring procedures.[16] As of October 2010, there has been no sign of Affirmative Action reviewed and Sara Landriault was never allowed to re-apply for the position in Immigration Canada. Distinct from other human rights concepts The Canadian Human Rights Act has long prohibited discrimination on the basis of gender, race, ethnicity, and certain other grounds.[17] The Canadian Human Rights Act continues to be in force alongside the Employment Equity Act. The key distinction between the two laws is that the Canadian Human Rights Act merely prohibits discrimination, whereas the Employment Equity Act requires employers to engage in proactive measures to improve the employment opportunities of the four specific groups listed above.[1] Note that the Canadian Human Rights Act protects a wider range of minorities (such as sexual minorities and religious minorities), while the Employment Equity Act limits its coverage to the aforementioned four protected groups. In Canada, employment equity is a specific legal concept, and should not be used as a synonym for non-discrimination or workplace diversity. Employment equity Employment equity should not be confused with pay equity, which is an entirely distinct concept.[18] [19] Pay equity, as a Canadian legal term, refers to the legal requirement that predominantly female occupations be paid the same as predominantly male occupations of equal importance within a given organization. One way of understanding the distinction between employment equity and pay equity (comparable worth) is to note that they take different approaches to dealing with the problem of predominantly female occupations being underpaid. Employment equity aims to increase the number of women in well-paid occupations. In contrast, pay equity implicitly recognizes how difficult it is to break down gender barriers in the workforce, and instead aims to increase the pay of predominantly female occupations. Employment equity also addresses the situation of Aboriginal people, visible minorities, and people with disabilities, whereas pay equity addresses solely the dilemma that predominantly female occupations tend to be underpaid. 44 References [1] "Frequently Asked Questions on Employment Equity" (http:/ / www. chrc-ccdp. ca/ publications/ ee_faq_ee-en. asp). Canadian Human Rights Commission. 2009-08-27. . Retrieved 2010-04-11. [2] Employment Equity Act (1995, c. 44) Act current to April 16th, 2010 (http:/ / laws. justice. gc. ca/ en/ E-5. 401/ FullText. html) [3] Abella, R. S. (1984). Report of the Commission on Equality in Employment (http:/ / epe. lac-bac. gc. ca/ 100/ 200/ 301/ pco-bcp/ commissions-ef/ abella1984-eng/ abella1984-eng. htm). Ottawa: Government of Canada. ISBN 0660117363. [4] "Federally Regulated Businesses and Industries" (http:/ / www. hrsdc. gc. ca/ eng/ labour/ employment_standards/ regulated. shtml). Human Resources and Skills Development Canada. 2008-03-19. . Retrieved 2010-04-14. [5] Human Resources and Social Development Canada. "Employment Equity Act Review" (http:/ / www. rhdcc-hrsdc. gc. ca/ eng/ lp/ lo/ lswe/ we/ review/ report/ main. shtml#4_1). . Retrieved 6 March 2011. [6] Federal Contractors' Program (http:/ / www. hrsdc. gc. ca/ eng/ lp/ lo/ lswe/ we/ programs/ fcp/ index-we. shtml). Human Resources and Skills Development Canada. 2003-05-07. ISBN 0662554272. . Retrieved 2009-08-07 [7] British Columbia Human Rights Tribunal, http:/ / www. bchrt. bc. ca (within that website, look under the topic "Special Programs") [8] Neal, Christopher (1982-09-02). "Major Firms Told to Draft Hiring Plans for Disabled". The Gazette (Montreal) (Southam Inc.): pp. D12. [9] Burke, R. J., & Black, S. (1997). "Save the males: Backlash in organizations". Journal of Business Ethics 16 (9): 933–942. doi:10.1023/A:1017991421416. ISSN 0167-4544 [10] Echevarria, Cristina; Mobinul Huq (2001). "Redesigning Employment Equity in Canada: The Need to Include Men" (http:/ / economics. ca/ cgi/ jab?journal=cpp& article=v27n1p0053). Canadian Public Policy 27 (1): 53–64. doi:10.2307/3552373. . [11] Agocs, Carol (2002). "Canada's employment equity legislation and policy, 1987-2000: The gap between policy and practice". International Journal of Manpower 23 (3): 256–276. doi:10.1108/01437720210432220. ISSN 0143-7720 [12] Jain, H. C., & Lawler, J. J. (2004). "Visible minorities under the Canadian Employment Equity Act, 1987-1999" (http:/ / www. erudit. org/ revue/ RI/ 2004/ v59/ n3/ 010926ar. html). Relations Industrielles/Industrial Relations 59 (3): 585–611. ISSN 0034-379X. [13] Hum, D., & Simpson, W. (September 1, 1999). "Wage opportunities for visible minorities in Canada" (http:/ / www. umanitoba. ca/ faculties/ arts/ economics/ simpson/ WageOpp. pdf) (PDF). Canadian Public Policy/Analyse de Politiques 25 (3): 379–394. doi:10.2307/3551526. ISSN 0317-0861. JSTOR 3551526. [14] Mentzer, M. S., & Fizel, J. L. (1992). "Affirmative action and ethnic inequality in Canada: The impact of the Employment Equity Act of 1986". Ethnic Groups 9 (4): 203–217. ISSN 0308-6860 [15] Swidinsky, R., & Swidinsky, M. (2002). "The relative earnings of visible minorities in Canada: New evidence from the 1996 census". Relations Industrielles/Industrial Relations 57: 630–659. ISSN 0034-379X [16] Friesen, Joe (2010-07-22). "Tories take aim at employment equity" (http:/ / www. theglobeandmail. com/ news/ politics/ tories-take-aim-at-employment-equity/ article1649115/ ). The Globe and Mail (Toronto) (CTVglobemedia Publishing Inc.). . Retrieved 2010-08-04. [17] "Frequently Asked Questions About the Canadian Human Rights Act" (http:/ / www. chrc-ccdp. ca/ faq/ page3-en. asp). Canadian Human Rights Commission. 2008-07-25. . Retrieved 2010-04-14. [18] "Overview: Resolving Disputes: Pay Equity" (http:/ / www. chrc-ccdp. ca/ DisputeResolution_ReglementDifferends/ payequity_paritesalariale-en. asp). Canadian Human Rights Commission. 2008-04-08. . Retrieved 2010-04-11. [19] "About Pay Equity" (http:/ / www. payequity. gov. on. ca/ peo/ english/ rights/ rights_pe. html). Ontario Pay Equity Commission / Queen's Printer for Ontario. 2005-01-06. . Retrieved 2010-04-11. Employment equity 45 External links • FAQ about Employment Equity (Canadian Human Rights Commission) (http://www.chrc-ccdp.ca/ publications/ee_faq_ee-en.asp) • Human Resources and Skills Development Canada (http://www.hrsdc.gc.ca) • Status of Women Canada (an agency of the Canadian government) (http://www.swc-cfc.gc.ca) • Treasury Board Secretariat (http://www.tbs-sct.gc.ca) Canadian Human Rights Commission free speech controversy The Canadian Human Rights Commission free speech controversy refers to debates that have arisen over Section 13.1 of the Canadian Human Rights Act and the interpretation and application of it by the Canadian Human Rights Commission. Section 13.1 of the Canadian Human Rights Act The controversy regarding the CHRC's practices comes from its enforcement of Section 13.1 of the Canadian Human Rights Act, which states that it is discriminatory to communicate by phone or Internet any material "that is likely to expose a person or persons to hatred or contempt." Critics claim that CHRC adjudicators have limited legal training and poor investigative resources and allege that, as a result, the power of section 13.1 is being used for nuisance cases that would be tossed out if they were adjudicated within the judicial system.[1] Although there is no Section 13.1 of the CHRA, critics are likely referring to Section 13(1) and 13(2) of the Act. Liberal MP Keith Martin has proposed a private member's bill in Parliament to rescind section 13.1 of the Canadian Human Rights Act, upon which federal HRC hate speech cases are based.[2] Martin described the legal test of "likely to expose" as "a hole you could drive a Mack truck through," and said it is being applied by "rogue commissions where a small number of people [are] determining what Canadians can and can't say." Martin also asserted that some of history's most important ideas "were originally deemed to be sacrilegious and certainly in opposition to conventional wisdom. Who's to say that a commission cannot rule those ideas out of order and penalize people for saying or thinking them?"[1] However, the bill did not become law. Irwin Cotler, a Canadian human rights scholar and former minister of justice, (who has expressed support for prohibitions on the incitement of hate and genocide), floated (but did not endorse) the idea that section 13.1 cases should require the authorization of the Attorney-General, which is the requirement for criminal prosecutions for inciting violence or promoting hatred.[1] Criticism Alan Borovoy, general counsel for the Canadian Civil Liberties Association, has also criticized Section 13.1. He cited an example of the book Hitler's Willing Executioners, which alleges the complicity of German civilians in the Holocaust, and said that the thesis is arguably "likely to expose" German people to contempt, and therefore be a violation of Section 13.1.[1] Borovoy also noted that under Section 13.1, "Intent is not a requirement, and truth and reasonable belief in the truth is no defence."[1] He has said that when he and other human rights activists advocated the creation of human rights commissions they "never imagined that they might ultimately be used against freedom of speech" [3] and that censorship was not the role he had envisioned for the commissions.[4] Borovoy further added that: Canadian Human Rights Commission free speech controversy "Although it's true that they have nailed some genuine hatemongers with it, it has nevertheless been used or threatened to be used against a wide variety of constituencies who don't bear the slightest resemblance to the kind of hatemongers that were originally envisioned: anti-American protesters, French-Canadian nationalists, a film sympathetic to South Africa's Nelson Mandela, a pro-Zionist book, a Jewish community leader, Salman Rushdie's Satanic Verses, and even a couple years ago, a pro-Israeli speaker was briefed about the anti-hate law by a police detective before he went in to make a speech."[1] Borovoy commented that none of these cases resulted in a lasting conviction or property seizure "But only lawyers could be consoled by that."[1] Linguist and analytic philosopher[5] Noam Chomsky has said about the section, "I think it's outrageous, like the comparable European laws. It's also pure hypocrisy. If it were applied the media and journals would be shut down. They don't expose current enemies of the state to hatred or contempt?"[6] White supremacists James Scott Richardson and Alex Kulbashian, who ran a racist website called "Canadian Ethnic Cleansing Team," are currently challenging the constitutionality of section 13.1 of the Canadian Human Rights Act.[7] Other white supremacists such as Marc Lemire and Paul Fromm have also criticised the constitutionality of the CHRC. Lemire (with the qualified support of PEN Canada and the Canadian Civil Liberties Association, among others) has won the right to cross-examine HRC investigators concerning their conduct during investigations, namely their posting of provocative racist comments on websites.[1] Jonathan Kay, of the National Post, opined that the HRC had "managed a seemingly impossible task: They've found a way to rehabilitate the image of neo-Nazis, transforming them from odious dirtbags into principled free-speech martyrs."[8] Mary Agnes Welch, president of the Canadian Association of Journalists stated that Human rights commissions "were never meant to act as language nannies. The current system allows complainants to chill the speech of those they disagree with by entangling targets in a human rights bureaucracy that doesn't have to operate under the same strict rules of defence as a court."[9] Syed Soharwardy, the founder of the Islamic Supreme Council of Canada who filed a complaint with the Alberta Human Rights Commission against Ezra Levant for republication of Danish cartoons depicting Muhammad, later dropped the complaint and changed his mind about the value of using Canada's human rights commissions to prosecute 'hate speech'.[10] Fred Henry, Catholic Bishop of Alberta, has argued that the HRCs are used to stifle debate on important issues.[11] In a press conference on October 2, 2008, Tarek Fatah, a founder of the Muslim Canadian Congress, stated that the Ontario Human Rights Commission (OHRC) has been "infiltrated by Islamists" and that some of its commissioners are closely linked to the Canadian Islamic Congress and the Canadian Arab Federation, both of which, according to Fatah, have "contempt for Canadian values."[12] In December 2009, CHRC Chief Commissioner Jennifer Lynch was subject to criticism after the Canadian Taxpayer's Federation (CTF) revealed that she had been sent abroad to consult dignitaries from countries with questionable human rights records, including Bangladesh, Cameroon, Cuba, Kyrgyzstan, Russia and Saudi Arabia. Derek Fildebrandt of the CTF sharply criticized Lynch, stating that: Lynch had a busy year of meeting with other human rights defenders in 2008 however; also traveling to Kuala Lampur, Malaysia with a business class airfare of $8,893, plus all other expenses. This confab was hosted by the Human Rights Commission of Malaysia, which is a part of a government that – according to the US State Department – restricts freedoms of the press, speech and religion, including "barring Muslims born into Islam from converting to another religion," allowing religious courts to enforce apostasy cases under Shariah law. This country’s human rights example was on display just this summer when a woman was convicted by an Islamic Shariah court in Malaysia for drinking a beer, sentencing her to "six beatings by cane".[13] [14] The CTF also noted that the CHRC was reticent about providing access to information on expenses, and accused it of obfuscating the actual costs of Ms. Lynch’s travels outside Canada. The Information Commissioner of Canada (ICC) later found that the CHRC has "placed itself in a position of deemed refusal" in response to complaints filed 46 Canadian Human Rights Commission free speech controversy by the Canadian Taxpayers Federation (CTF). The CTF had filed three separate Access to Information Requests in August 2009 to obtain details on Lynch's expenses. The CHRC refused to provide information within the legally allotted time frame as it would "unreasonably interfere with the operations of the [Commission]." 47 Criticism from The National Post In June 2008, the National Post published an editorial which harshly criticized Canada's Human Rights Commissions (HRCs). The Post writes that "It is increasingly obvious these commissions were set up deliberately to lower the standard of proof and get around rules of natural justice, thereby ensuring people who would never be convicted in court are punished to the satisfaction of the activists and special interest groups that hover around the tribunals."[15] The Post stated that Chief commissioner Jennifer Lynch has "no clear understanding of free speech or the value of protecting it." Lynch had previously stated that "I'm a free speecher. I'm also a human rightser." However, the Post argued that: "No human right is more basic than freedom of expression, not even the "right" to live one's life free from offence by remarks about one's ethnicity, gender, culture or orientation. Ms. Lynch seems mistakenly to believe there is a delicate balance between free expression and other, newer human "rights."[15] Lynch also stated that "We [the HRCs] have a responsibility to lead the debate on how we can keep our policy up to date to effectively regulate hate on the Internet." The Post also criticized Lynch for this statement, arguing that "Her interest appears to be not whether to regulate speech, but merely how to do it "effectively." There seems to be little doubt in her mind that a government agency must have the ultimate say."[15] Finally, the Post criticized the procedures and structure of HRC hearings, citing a number of specific problems: • Third parties not involved in the alleged offences may nonetheless file complaints. • Plaintiffs have sometimes been given access to the commissions' investigation files and given the power to direct investigators. • Truth is not a defence. • Defendants are not always permitted to face their accusers. • Normal standards for assuring the validity of evidence do not apply. • Hearsay is admitted. • The government funds the plaintiff but the defendant is on his/her own.[15] Support for the Human Rights Commissions Several leading lawyers and academics support restrictions on hate speech through human rights legislation. In 2008, law professor Jane Bailey published an Op Ed "Democracy suffers when equality is threatened" (Ottawa Citizen, December 11, 2008). She noted that " Section 13 places Canada at the forefront of democratic nations in addressing hate propaganda by treating it as a practice of inequality, a mechanism for perpetuating myths, stereotypes and calls for violence that are fundamentally inconsistent with the goal of ensuring that all of us are able to reach our potential and live the life of our own choosing regardless of personal characteristics such as race, religion and sexual identity." Prominent supporters of hate speech laws include the Canadian Jewish Congress and several Muslim community groups. Haroon Siddiqi of the Toronto Star, former Justice Minister and MP for Mont-Royal Irwin Cotler ("The Principles of Free Expression"), lawyer David Matas (author of "Bloody Words"), and Toronto lawyer Mark Freiman all support prohibitions against extreme forms of speech. At the Niagara-on-the-Lake conference of the Canadian Association of Statutory Human Rights Agencies in June 2008, Pearl Eliadis, a prominent human rights lawyer, defended the HRC's current mandate. Responding to Alan Borovoy's concern that he never expected they would be used against the free expression of opinion, Eliadis stated that what Borovoy thought 40 years ago should not determine the current state of human rights law. She also argued Canadian Human Rights Commission free speech controversy that arguments against human rights commissions dealing with complaints against media are premised on the notion that "new rights are bad rights." She added that the commissions are "strategically and uncomfortably poised" in "dynamic tension" among NGOs, government, voters, industry and other influences."[16] In August 2008, Eliadis wrote an article in Maisonneuve where she argued that expressive behaviour has been the subject of human rights laws in since the 1940s. She also argued that critics of the commissions were causing Canadians to be "misled and lied to about the most basic aspects of Canadian law and human rights" and further stressed "the clear and present danger posed by discriminatory speech and the growth of e-hate."[17] Eliadis stated in a subsequent interview, that: "There's a narrow band of intolerant bigots out there who are jumping on to this bandwagon and are using this debate to propagate particularly hateful views. What the free speech absolutists are saying is that, once you take that core element of speech and transport it into mass media, suddenly it becomes immune. I don't understand why speech should be immune from discrimination law. The media should not enjoy more rights or immunity than anyone else."[16] Wahida Valiante, national vice-president of the Canadian Islamic Congress, stated that the commissions are the only recourse available to minorities treated unfairly in the media since membership in press councils is optional and criminal hate speech charges require the consent of the federal Attorney-General.[16] In January 2010 the Canadian Bar Association released a statement which supported "retaining section 13 as a useful tool." However, it also called for the adoption of several recommendations for improving the Act "to ensure that the efficacy of this protection is not only enhanced but also accords with other fundamental human rights values," including the repealing of certain penalty provisions and "empowering the CHRC to dismiss at an early stage complaints that lack merit or have no reasonable chance for success."[18] 48 Recent cases Marc Lemire In an exchange during the Marc Lemire case, lead CHRC investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Steacy responded: "Freedom of speech is an American concept, so I don't give it any value. It's not my job to give value to an American concept." (The Canadian Charter of Rights and Freedoms refers to "freedom of expression" whereas the U.S. Constitution refers to "freedom of speech.") Jonathan Kay of the National Post criticized Steacy's remarks, stating that: "for an organization that is supposed to promote "human rights," the HRC's agents seem curiously oblivious to basic aspects of constitutional law." He added that, in Mr. Steacy's mind, "Section 2 has been excised from his copy of the Canadian Charter of Rights.[8] [19] [20] Kay also stated that "someone lacking such basic general knowledge apparently occupies a senior position in the "Human Rights Commission" is cause for serious concern, and certainly an audit of the whole CHRC apparatus."[21] Senator Doug Finley later criticized Steacy, stating that "He [Steacy] actually said that. The Canadian Human Rights Commission actually admits they do not give free speech any value. That is totally unacceptable. Freedom of speech is the great non-partisan principle that every Member of Parliament can agree on — that every Canadian can agree on." He also called on the Canadian Senate to "reaffirm that freedom of speech is a great Canadian principle that goes back hundreds of years."[22] When investigating Marc Lemire's website, HRC investigators were alleged to have tapped into the secured[23] wi-fi router of a 26-year-old Ottawa woman who lived near the commission's headquarters in order to avoid revealing the commission's IP address.[8] Marc Lemire has filed criminal complaints concerning this issue with the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP).[24] The office of the Privacy Commissioner of Canada conducted an investigation of the allegations,[25] but ultimately the complaint was dismissed. Canadian Human Rights Commission free speech controversy 49 Shiv Chopra In September 2008, Human Rights Tribunal (HRT) adjudicator Pierre Deschamps ruled that Shiv Chopra, a Punjabi Hindu who’d emigrated to Canada in the 1960s, was entitled to $4,000 in damages for "hurt feelings," lost wages, and interest, finding that Chopra was subjected to discriminatory comments, was suspended in retaliation for filing an earlier human rights complaint, and was discriminated against when passed over for a temporary promotion to acting chief of his division. The comments in question occurred on Feb. 9. 1998; Chopra was in the audience when his incoming boss at Health Canada, André Lachance, stated that "he liked visible minorities." Chopra claimed this was "a racist remark" and Deschamps accepted this argument that this comment was "discriminatory against Mr. Chopra as well as individuals … who were non-white" and that Lachance's remark "shows a lack of sensitivity on the part of Dr. Lachance for people whose skin is not white." Deschamps stated that Lachance's remark was "by any standard, racist." Deschampes criticized the "inherent racist nature" of Lachance's comment and stated that Lachance's intent was irrelevant: "The test is, over and above the racial nature of the comment itself, whether or not the person alleging discrimination was offended by the comment."[26] [27] Jonathan Kay of the National Post criticized the decision, alleging that Deschamps accepted Chopra's claim without any substantive explanation. Kay described Chopra as "a race-obsessed paranoiac" and that the ruling is an "advertisement for why we should be closing down Canada’s human-rights commissions" and "nicely illustrates the absurd lengths to which our society’s elites will now go to demonize Whitey."[28] Imam Al-Hayiti In December 2008, the Commission refused to look at the case of Imam Abou Hammad Sulaiman al-Hayiti. Al-Hayiti is a Montreal Salafist Muslim who was accused of inciting hatred against homosexuals, Western women, and Jews, in a book he published on the Internet. Al-Hayiti had written that Allah has taught that "If the Jews, Christians, and [Zoroastrians] refuse to answer the call of Islam, and will not pay the jizyah [tax], then it is obligatory for Muslims to fight them if they are able." Christianity, in particular, was denounced as a "religion of lies," which is responsible for the West's "perversity, corruption and adultery." Al-Hayiti's book refers to "the incredible number of gays and lesbians (may Allah curse and destroy them in this life and the next) who sow disorder upon the Earth and who desire to increase their numbers."[29] In declining to hear the case, the Commission stated that Al-Hayiti was free to make comments against "infidels" because they are not an identifiable group. Regarding Al-Hayiti's statements against groups established as "identifiable," such as homosexuals and Jews, the commission simply stated that these "do not seem" to meet the criteria for promoting hatred.[29] The Commission's decision not to move forward with the case was criticized in two Canadian newspapers. The National Post argued that Al-Hayiti's statements more than meet the criteria under Section 13 of the Human Rights Act and accused the Commission of selectively applying the Act to Christians and Conservatives who have been prosecuted under the Act for comments that are far less severe. The Post noted that a Christian pastor named Stephen Boissoin, who posted negative remarks about homosexuals, was subsequently ordered by the Alberta Human Rights Commission that he "shall cease publishing in newspapers, by e-mail, on the radio, in public speeches or on the Internet, in future, disparaging remarks about gays and homosexuals." The Post wrote that: Human rights commissions claim to be agencies that fight "hate" generically. But in fact, they are interested in a very narrow sub-category of alleged hatemonger -- the right-winger accused of homophobia, anti-Muslim bias or some other thoughtcrime. The more unvarnished and explicitly murderous forms of hatred made manifest in the publications of, say, Jew-hating Muslims and Hindu-hating Sikhs are of no interest to the thought police.[29] The Post concluded by noting that it believes that Al-Hayiti should be allowed to promote any particular interpretation of Islam, or any other religion and that the problem is that the Human Rights Commissions practice a politically correct double standard.[29] Canadian Human Rights Commission free speech controversy This affair also caused indignation in local Quebec media, with La Presse publishing an editorial criticizing the Commission for its decision. .[30] 50 Response from the Canadian Human Rights Commission In April 2008, three senior officials of the Canadian Human Rights Commission (CHRC) granted a telephone interview with the media to respond to criticism. The officials were Ian Fine, senior general counsel and director-general of dispute resolution, Monette Maillet, director of legal advisory services and Harvey Goldberg, senior policy advisor on hate speech, disability and First Nations issues.[31] The officials read out loud some of the material the CHRC deals with to prove the seriousness of their mission. Fine defended tha CHRC stating that: "If you think that we're concerned, upset, from time to time discouraged with some of what we've been hearing and reading in the press, you're right, we are. Because to be quite clear about it, we do believe in what we do. We believe that in our society there should be limits on freedom of expression and freedom of speech, that there is a line, not one that we draw, but one that must be drawn nevertheless. We are comfortable with what we do."[31] Harvey Goldberg stated that "Freedom of expression is the lifeblood of any free and open society and the commission embraces freedom of expression. I think if you remove all the rhetoric, at the base of the debate that's been going on ... is a centuries-old debate about the appropriate role of the state in limiting freedom of expression in certain precise areas." Regarding the debate about whether Section 13.1 of the human rights code, which makes it an offence to communicate by phone or Internet any message that is "likely to expose a person or persons to hatred or contempt," Goldberg stated that this is "actually the predominant view among most of the states of the world. The view in the United States [that the right to free speech is near-absolute] is really a minority view." Fine also noted that "Just as Parliament has bestowed on the commission the mandate, in fact the obligation, to deal with Section 13 cases, Parliament can take that power away at any time."[31] Responding to the complaint that respondents are on the hook for their own defence bills, while complainants have their cases argued by the commission, Fine stated that ""We don't set the rules. It's for Parliament to decide whether or not respondents should have the ability to recover costs." As for the fact that the CHRC has a 100% conviction rate for hate speech cases that have reached the tribunal, Maillet argued that this is a testimony to the commission's efficiency, stating that "To me, it is a sign that we have done a good job in screening complaints, and referring those cases to tribunal that have merit."[31] Responding to the complaint that Richard Warman, a former CHRC employee turned activist who was the complainant in all but two of the 13 hate speech cases decided by the Canadian Human Rights Tribunal, Fine stated that "Anyone can file a complaint, so from our perspective, that's the end of the matter. The tribunal decisions speak for themselves."[31] When asked about the current investigation of CHRC investigators who apparently hijacked a private citizen's Internet account to access a Web site they were investigating, Fine responded that "We believe that the processes we've employed in these cases are appropriate, and that's about all I think I can say on that issue."[31] November 2008 Report by Professor Richard Moon In 2008, University of Windsor law professor Richard Moon was commissioned by the CHRC to prepare a report on the CHRC's mandate under Section 13 of Canadian Human Rights Act which deals with hate-speech. In November 2008, Moon released his report in which he recommended that Section 13 should be repealed so that online hate speech is a purely criminal matter. Moon wrote that "The use of censorship by the government should be confined to a narrow category of extreme expression -- that which threatens, advocates or justifies violence against the members of an identifiable group." Moon argued that "it's not practical to deal with what one might generously describe as Canadian Human Rights Commission free speech controversy group defamation or stereotyping through censorship. It's just not a viable option. There's too much of it, and it's so pervasive within our public discourse that any kind of censorship is just overwhelming."[32] Regarding the current legal test for violations of Section 13, which is whether messages were "likely to expose" identifiable groups to "hatred or contempt," neither truth nor intent is a defence, unlike libel law. Moon recommended that intent to advocate or justify violence be made a requirement for Section 13, replacing the test of "likely to expose." However, he did not recommend that truth be allowed as a defence since it could result in tribunals becoming forums to debate, for example, the veracity of the Holocaust, the genetic inferiority of blacks, or the dangers of homosexuality."[32] Prof. Moon noted that the current complainant-driven system is unequal, in that only well-resourced and determined complainants can see their case through to a conclusion. In this, he was referring to Richard Warman, an Ottawa lawyer and former CHRC employee who has brought more than a dozen cases, far more than any other complainant.[32] 51 Reactions Jennifer Lynch, chief commissioner of the CHRC, stated that Moon's report is "one step in a comprehensive review" and that "we can envision Section 13 being retained with some amendments." Lynch also stated that that "our commission exists to protect Canadians from discrimination and I'm fervently going to uphold this core principle." She added that "we're going to strive to find more effective means to protect Canadians from exposure to hate on the Internet."[32] Keith Martin, the Liberal MP who first proposed scrapping Section 13 earlier this year, called the recommendation "very courageous" and that "Now it's in Parliament's hands to do something to defend one of our true rights, freedom of speech."[32] Pearl Eliadis, a human rights lawyer and prominent supporter of the CHRC, stated that Moon's statement that Section 13 targets only extreme speech "makes explicit what the courts have already said implicitly." However, she opposed shifting the CHRC's role to focus solely on violence as opposed to hatred. Eliadis arged that "when we deal with genocide and ethnic cleansing cases in other countries, what does the international community say over and over again? We need a warning system. And one of the warnings is incitement to hatred." However, she opposed criminal investigations into hate speech on the basis that people should not be put "in jail for their words."[32] CHRC appeals for Support In August 2009, Jennifer Lynch, the chief commissioner of the CHRC, told the Canadian Bar Association's annual meeting that opponents of rights bodies have successfully created a "chill" that makes it difficult for anyone to defend those bodies without also becoming a target and asked for those in attendance to write "letters to correct misinformation." Lynch told the CBA that rights commissions represent an important component of the justice system, giving society's "most vulnerable" minority groups access to a mechanism to deal with alleged rights violations. She added that some of the criticisms against the CHRC have been "troubling" and "at times scary," and read outloud a graphic anonymous letter she received stating that she should be shot dead.[33] Although Lynch did not identify her critics, the National Post noted that she has previously complained about attacks against her by Mark Steyn, political commentator Ezra Levant, and Conservative Member of Parliament Russ Hiebert.[33] Canadian Human Rights Commission free speech controversy 52 The End of Section 13(1) In the case of Warman v. Lemire, decided on September 2, 2009, the Human Rights Tribunal ruled in paragraph 102 that its hate speech provision was unconstitutional and could not be saved by s. 1, the Charter rights-limiting clause. Since the Tribunal did not have the authority to declare sections of the Act which created it invalid, the Tribunal simply declined to apply s. 13(1) in that case. However, the precedent established will effectively negate the hate speech provision for future cases. The prohibition of genocide advocacy (s. 318) and the anti-hate speech provision of the Criminal Code (s. 319) are unaffected by this ruling and remain in force. Footnotes [1] Joseph Brean (March 22, 2008). "Scrutinizing the human rights machine" (http:/ / web. archive. org/ web/ 20080403085558/ http:/ / www. nationalpost. com/ story-printer. html?id=391873). National Post. Archived from the original (http:/ / www. nationalpost. com/ story-printer. html?id=391873) on 2008-04-03. . Retrieved 2008-03-22. [2] Hansard (Canada),39th Parliament, 2nd Session, Notice Paper, No. 41 Thursday, January 31, 2008, 10:00 a.m. (http:/ / www2. parl. gc. ca/ HousePublications/ Publication. aspx?Language=E& Mode=1& Parl=39& Ses=2& DocId=3227597& File=11) [3] "Can Human Rights Go Too Far?" (http:/ / www. cbc. ca/ sunday/ 2008/ 03/ 033008_5. html). CBC News. March 2008. . [4] Borovoy, A. Alan (March 16, 2006). "Hearing complaint alters rights body's mandate" (http:/ / www. safs. ca/ issuescases/ aborovoy. html). The Calgary Herald. . Retrieved 2008-03-22. [5] Simon Blackburn "Oxford Dictionary of Philosophy" pp 63 characterizes Chomsky as an "American linguist, philosopher and political activist" [6] Jaworski, P.M. (December 8, 2008). "Question Period: Noam Chomsky on being censored, CHRC censorship, Ayn Rand, Robert Nozick and libertarianism" (http:/ / westernstandard. blogs. com/ shotgun/ 2008/ 12/ question-period. html). The Shotgun Blog. Western Standard. . Retrieved 2009-06-02. [7] " Kulbashian & Richardson v. CHRC et al. (http:/ / cas-ncr-nter03. cas-satj. gc. ca/ IndexingQueries/ infp_moreInfo_e. php?T-572-06)", Federal Court of Canada Docket, March 29, 2006 [8] Jonathan Kay (March 28, 2008). "A disaster for Canada's Human Rights Commission" (http:/ / www. nationalpost. com/ opinion/ story. html?id=405744). National Post. . [9] "CAJ welcomes end to Levant human rights complaint" (http:/ / micro. newswire. ca/ release. cgi?rkey=1608082772& view=42015-0& Start=0). August 8, 2008. . [10] "A Muslim Canadian responds to Canada's human rights tribunals" (http:/ / sootoday. com/ content/ editorials/ details. asp?c=23988). Pete Vere, SooToday. July 11, 2008. . [11] "Human Rights Act foils reasoned debate" (http:/ / www. wcr. ab. ca/ bishops/ henry/ 2008/ henry062308. shtml). Western Catholic Reporter. June 19, 2008. . [12] Barbara Kay, The Islamist elephant in the room no politicians will acknowledge (http:/ / network. nationalpost. com/ np/ blogs/ fullcomment/ archive/ 2008/ 10/ 02/ barbara-kay-the-islamist-elephant-in-the-room-no-politicians-will-acknowledge. aspx) by Barbara Kay, National Post, October 2, 2008. [13] Adrian MacNair: Jennifer Lynch gets human rights advice from Cuba, Kyrgyzstan (http:/ / network. nationalpost. com/ np/ blogs/ fullcomment/ archive/ 2009/ 12/ 18/ adrian-macnair-jennifer-lynch-gets-human-rights-advice-from-cuba-kyrgyzstan. aspx) by Adrian McNair, National Post, December 18, 2009. [14] Jennifer Lynch & “Human Rights” Commission Busted by Taxpayer.com (http:/ / www. taxpayer. com/ blog/ 16-12-2009/ jennifer-lynch-âhuman-rightsâ-commission-busted-taxpayercom) by Derek Fildebrandt, Taxpayer.com, December 16, 2009. [15] "A bit late for introspection" (http:/ / web. archive. org/ web/ 20080630220903/ http:/ / www. nationalpost. com/ opinion/ story. html?id=597251). National Post. June 19, 2008. Archived from the original (http:/ / www. nationalpost. com/ opinion/ story. html?id=597251) on 2008-06-30. . Retrieved 2008-06-19. [16] Joseph Brean (June 21, 2008). "Human rights issues open to vigorous debate" (http:/ / www. nationalpost. com/ news/ canada/ story. html?id=602841). National Post. . Retrieved 2008-06-22. [17] The Controversy Entrepreneurs (http:/ / maisonneuve. org/ pressroom/ article/ 2009/ aug/ 20/ controversy-entrepreneurs/ ) by Pearl Eliadis, Maisonneuve, August 20, 2009. [18] Hate Speech under the Canadian Human Rights Act (http:/ / www. cba. org/ CBA/ submissions/ pdf/ 10-03-eng. pdf), Canadian Bar Association (CBA), January 2010. pages 10-12. [19] Lorne Gunter (March 30, 2008). "Freedoms lost in name of free speech" (http:/ / www. canada. com/ edmontonjournal/ columnists/ story. html?id=6ba546ff-f56a-4780-852d-cc743bbd0994& p=2). Edmonton Journal. . [20] Laws can't assure we'll never be offended (http:/ / www. nationalpost. com/ todays-paper/ story. html?id=2758429) by John Ivison, National Post, April 10, 2010. [21] Jonathan Kay: A good rebuttal to Norman Spector's flip remark about free speech and human rights (http:/ / network. nationalpost. com/ np/ blogs/ fullcomment/ archive/ 2008/ 03/ 31/ jonathan-kay-a-good-rebuttal-to-norman-spector-s-flip-remark-about-free-speech-and-human-rights. aspx) by Jonathan Kay, National Post, Canadian Human Rights Commission free speech controversy March 31, 2008. [22] Debates of the Senate (Hansard) 3rd Session, 40th Parliament, Volume 147, Issue 13, Tuesday, March 30, 2010. (http:/ / parl. gc. ca/ 40/ 3/ parlbus/ chambus/ senate/ deb-E/ 013db_2010-03-30-e. htm?Language=E& Parl=40& Ses=3#52) [23] "Alleged hijacking of 'Net link by rights officials 'disturbing,' Ottawa woman says" (http:/ / canadianpress. google. com/ article/ ALeqM5g5KHS-GY8SwE2zotqPSY_cO6tW-Q). Canadian Press. April 27, 2008. . Retrieved 2008-04-28. [24] Joseph Brean (April 3, 2008). "Far-right activist files complaint against human rights body" (http:/ / www. nationalpost. com/ news/ canada/ story. html?id=418639). National Post. . Retrieved 2008-04-06. [25] Colin Perkel (April 4, 2008). "Privacy czar probes alleged Net hack by officials" (http:/ / www. thestar. com/ News/ Canada/ article/ 410352). The Toronto Star. . Retrieved 2008-04-06. [26] Decision: Shiv Chopra, Canadian Human Rights Commission and Health Canada (http:/ / www. chrt-tcdp. gc. ca/ search/ files/ t901_2104edchrt39. pdf), ruling by Pierre Dechamps, September 19, 2008, page 63-64. [27] Health Canada ordered to pay $4,000 for MD's 'hurt feelings' (http:/ / www. canada. com/ ottawacitizen/ news/ story. html?id=ae21a9cd-d29b-449c-8808-2da349f8a7db) by Don Butler, The Ottawa Citizen, September 20, 2008. [28] Jonathan Kay: 'Do you like visible minorities? You do? Well, then: You're a racist' (http:/ / www. nationalpost. com/ opinion/ columnists/ story. html?id=f8d2ba18-b717-4880-ace4-19bf5ec7019d) by Jonathan Kay, National Post, September 22, 2008. [29] Two-tiered thought police (http:/ / www. nationalpost. com/ opinion/ story. html?id=1095061& p=1), National Post, December 19, 2008. [30] Les mécréants (http:/ / www. cyberpresse. ca/ opinions/ editorialistes/ mario-roy/ 200812/ 18/ 01-811464-les-mecreants. php) by Mario Roy, La Presse, December 18, 2008. [31] Joseph Brean (April 5, 2008). "Rights group defends itself" (http:/ / www. nationalpost. com/ news/ canada/ story. html?id=423135). National Post. . Retrieved 2008-06-19. [32] Ottawa urged to scrap hate speech law (http:/ / www. nationalpost. com/ news/ canada/ story. html?id=988228) by Joseph Brean, National Post, November 24, 2008. [33] Lawyers must come to aid of rights commissions, CBA told (http:/ / www. nationalpost. com/ story. html?id=1897555) by Peter O’Neil, National Post, August 15, 2009. 53 External links • Canadian Human Rights Commission (http://www.chrc-ccdp.ca/) • CBC News: Sunday "Can Human Rights Go Too Far?" March 2008 (http://www.cbc.ca/sunday/2008/03/ 033008_5.html) 54 United States of America Equal Protection Clause The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws".[1] The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal"[2] by empowering the judiciary to enforce that principle against the states.[3] The Fourteenth Amendment Equal Protection Clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process. More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgment by state leaders and governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means has been the subject of much debate, and the story of the Equal Protection Clause is the gradual explication of its meaning. Text of Section 1 of the Fourteenth Amendment to the United States Constitution “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ” Background The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War. After the Thirteenth Amendment, which was proposed by Congress and ratified by the states in 1865, had abolished slavery, many ex-Confederate states adopted Black Codes following the war. These laws severely restricted the rights of blacks to hold property, including chattels and real property and many forms of personal property; to form legally enforceable contracts or enter into agreements involving securities, or other negotiable or commercial paper. These codes also created harsher criminal penalties for blacks than for whites.[4] The words inscribed above the entrance to the U.S. Supreme Court are: "Equal justice under law." Equal Protection Clause 55 Because of the inequality these Black Codes imposed, Congress enacted the Civil Rights Act of 1866. This Act provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."[5] Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause. The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having rebelled against the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.[6] By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: "Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive."[7] Originally, women were excluded from equal protection under the Bill of Rights. In 1971, in a U.S. Supreme court decision of Reed v. Reed, the Equal Protection Clause of the Fourteenth Amendment was extended to women.[8] Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause. Reconstruction-era interpretation and the Plessy decision The first truly landmark equal protection decision by the Supreme Court was Strauder v. West Virginia (1880), soon after the end of Reconstruction. A black man convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. The Court asserted that the purpose of the Clause was to assure to the colored race the enjoyment of all the civil rights that under the law are The Court that decided Plessy enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. Equal Protection Clause Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race." The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theatres, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "state action doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism." Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state. A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886).[9] He said: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws. In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana Jim Crow law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races.[10] The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people." Justice Harlan again dissented. "Every one knows," he wrote, that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons .... [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."[11] Since Brown v. Board of Education (1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate against people based on their membership in certain classes, including those based on race and sex (see below). It was also in the post-Civil-War era that the a ruling by the Supreme Court included summarizing headnotes written by a former president of Newburgh and New York Railway Company, John C. Bancroft. Bancroft, acting as court reporter indicated in the notes that corporations were "persons" while the actual court decision itself purposefully avoided specific statements regarding the equal protection clause as applied to corporations.[12] However, the legal concept of corporate personhood predates the Fourteenth Amendment.[13] In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare.[14] 56 Equal Protection Clause 57 Between Plessy and Brown While the Plessy majority's interpretation of the clause stood until Brown, the holding of Brown was prefigured, to some extent, by several earlier cases. The first of these was Missouri ex rel. Gaines v. Canada (1938). Lloyd Gaines was a black student at Lincoln University of Missouri, one of the historically black colleges in Missouri. He applied for admission to the law school at the all-white University of Missouri, since Lincoln did not have a law school, but was denied admission due solely to his race. The Supreme Court, applying the separate-but-equal principle of Plessy, held that a State offering a legal education to whites but not to blacks violated the Equal Protection Clause. Smith v. Allwright (1944) and Shelley v. Kraemer (1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith declared that the Democratic primary in Texas, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state. More important, however, were the companion cases Sweatt v. Painter and McLaurin v. Oklahoma State Regents, both decided in 1950. In McLaurin, the University of Oklahoma had admitted McLaurin, an African-American, but had restricted his activities there: he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin of the equal protection of the laws: There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar. The present situation, Vinson said, was the former. In Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students. All of these cases, including Brown, were litigated by the National Association for the Advancement of Colored People. It was Charles Hamilton Houston, a Harvard Law School graduate and a law professor at Howard University, who in the 1930s first began to challenge racial discrimination in the federal courts. Thurgood Marshall, a former student of Houston's and the future Solicitor General and Associate Justice of the Supreme Court, joined him. Both men were extraordinarily skilled appellate advocates, but part of their shrewdness lay in their careful choice of which cases to litigate—of which situations would be the best legal proving grounds for their cause.[15] Brown and its consequences When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional.[16] In that opinion, Warren wrote: To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. We conclude that in the field of public education the doctrine of Equal Protection Clause "separate but equal" has no place. Separate educational facilities are inherently unequal. The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the next year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local school boards and to the trial courts that had originally heard the cases. (Brown was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed". Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, integration did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools. In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; but because residential segregation was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley (1974), it set aside a lower court order that had required the busing of students between districts, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the 1950s and 1960s.[17] American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.[18] There are, very broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives, argues that Brown's relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. The other way to explain what has happened since Brown often has political liberals as its proponents; it argues that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy and Johnson) by encouraging the Department of Justice to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968.[19] Liberals also point out that Richard Nixon's "southern strategy" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments.[20] Moreover, some, such as Erwin Chemerinsky, argue that courts may have had sufficient ability to ensure widespread integration but simply were not allowed enough time to perform this role, since Milliken v. Bradley, in 1974—barely a decade since desegregation began in earnest in the South—severely curtained the thoroughgoing methods (e.g. busing) which might have achieved the goal of desegregation, particularly in the South, and even more particularly in the state of Georgia. 58 Equal Protection Clause 59 Carolene Products and the various levels of Equal Protection scrutiny Despite the undoubted importance of Brown, much of modern equal protection jurisprudence stems from footnote four of United States v. Carolene Products Co. (1938), a Commerce Clause and substantive due process case. In 1937, the Court (in what was called the "switch in time that saved nine") had loosened its rules for deciding whether Congress could regulate certain commercial activities. In discussing the new presumption of constitutionality that the Court would apply to economic legislation, Justice Harlan Stone wrote: [P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.[21] Thus were born the "more searching" levels of scrutiny—"strict" and Harlan Stone, author of the Carolene Products "intermediate"—with which the Court would examine legislation opinion directed at racial minorities and women respectively. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia. Intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren. The Supreme Court has defined these levels of scrutiny in the following way: • Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest. • Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest.[22] • Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest. Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc. held that the treatment of developmentally disabled persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions, many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and instead to balance the community's needs against the needs of the disabled.[23] There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia Justice Ruth Bader Ginsburg, writing for the Court, eschewed the traditional language of intermediate scrutiny for sex-based discrimination and instead borrowed from Justice Sandra Day O'Connor's opinion for the Court in Mississippi University for Women v. Hogan in demanding that litigants articulate an "exceedingly persuasive" argument to justify this kind of discrimination. Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear. Equal Protection Clause 60 Discriminatory intent and disparate impact? After Brown, questions still remained about the scope of the equal protection clause. Does the Clause outlaw public policies that cause racial disparities—for example, a public school examination that has not been established for racist reasons, but that more white students than black students pass? Or, on the other hand, does it prohibit only intentional bigotry? The Supreme Court has answered that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies. Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment. Title VII's standards for public and private employers are the same.) The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII. In the years since Griggs, courts have defined "business necessity" as requiring the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, or another hiring practice—has a demonstrable factual relationship to making the company more profitable.[24] In situations involving only the equal protection clause, however, the focus of the court is on discriminatory intent. Such intent was manifested in the seminal case of Arlington Heights v. Metropolitan Housing Corp. (1977). In that case, the plaintiff, a housing developer, sued a city in the suburb of Chicago that had refused to re-zone a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary value; absent a "stark" pattern, "impact is not determinative." (See also Washington v. Davis (1976).) Defenders of the rule in Arlington Heights and Washington v. Davis argue that the equal protection clause was not designed to guarantee equal outcomes, but rather equal opportunities and that therefore one should not be concerned with trying to fix every racially disparate effect. One should worry only about intentional discrimination. Others point out that the courts are merely enforcing the equal protection clause, and that if the legislature wants to correct racially disparate effects, it may do so through further legislation.[25] Critics contend, on the other hand, that the rule would excuse many instances of racial discrimination, since it is possible for a discriminating party to hide its true intention. To uncover the motives of the parties, the court should also consider whether the measure at issue would have disparate impact, critics argue.[26] This debate, though, is currently entirely academic, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights. For a prime example of how this rule limits the Court's powers under the Equal Protection Clause see McClesky v. Kemp. In that case a black man was convicted of murdering a white police officer and sentenced to death in the state of Georgia. A law professor, David Baldus, performed a study and found that killers of whites were more likely to be sentenced to death than were killers of blacks. The Court found that the defense had failed to prove that such data demonstrated the requisite discriminatory intent by the Georgia legislature and executive branch. McCleskey's argument could not have been helped by the fact that the Baldus study indicated that white defendants in Georgia were actually more likely than black defendants to receive the death penalty, because of the tendency of white killers to choose white victims. Equal Protection Clause 61 Suspect classes The Supreme Court has seemed unwilling to extend full "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than racial minorities and religious groups. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. Many commentators have noted, however—and Justice Marshall so notes in his partial concurrence—that the Court does appear to examine the City of Cleburne's denial of a permit to a group home for mentally retarded people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.[27] In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne. Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation. Much as in City of Cleburne, though, the Court's decision in Romer v. Evans (1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.[28] While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.[29] The court has also refused to view government discrimination based on a citizen's political belief or affiliation to be a suspect class. Affirmative action Affirmative action is the policy of consciously setting racial, ethnic, religious, or other kinds of diversity as a goal within an organization. In order to meet this goal, an organization may purposely select people from certain groups that are underrepresented, or have historically been oppressed or denied equal opportunities. In that application of affirmative action, individuals of one or more of these minority backgrounds are preferred—ceteris paribus—over those who do not have such characteristics; such a preferential scheme is sometimes effected through quotas, though this need not necessarily be so. Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment)[30] the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two executive orders. These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible.[31] Several important affirmative action cases to reach the Supreme Court have concerned government contractors—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co. (1989). But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger. In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan Law School. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law Equal Protection Clause school's policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic. In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one.[32] On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.[33] 62 The Equal Protection Clause and voting Although the Supreme Court had ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims (1964), in which a "one man, one vote" standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation. It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said: If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislatures ... can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original.] However, Reynolds and Baker do not lack a rationale, if seen from another perspective. The Supreme Court has repeatedly stated that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia), privacy (Griswold v. Connecticut (1965)), or interstate travel (Shapiro v. Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny.[34] Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights. A recent use of equal protection doctrine came in Bush v. Gore (2000). At issue was the controversial recount in Florida in the aftermath of the 2000 presidential election. There, the Supreme Court decided that the different standards of counting ballots across Florida violated the equal protection clause. It was not this decision that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter and Breyer joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. What was controversial was, first, the remedy upon which the majority agreed—that even though there was an equal protection violation, there was not enough time for a recount—and second, the suggestion that the equal protection violation was true only on the facts of Bush v. Gore; commentators suggested that this meant that the Court did not wish its decision to have any precedential effect, and that this was evidence of its unprincipled decision-making.[35] Equal Protection Clause 63 Proportional representation Some dissents have been considered an endorsement of the proportional representation voting system through the clause, such as in Mobile v. Bolden.[36] Gaffney v. Cummings, 412 U.S. 735 (1973) ruled political fairness principles were not a violation of the clause, stating "rough proportional representation...was found to be a legitimate state goal".[37] [38] United Jewish Organizations v. Carey, 430 U. S. 144 (1977) in its opinion determined the system is not a right denied by the constitution.[36] References [1] U.S. Constitution, Amendment 14 (http:/ / www. usconstitution. net/ const. html#Am14) [2] U.S. Declaration of Independence (http:/ / www. ushistory. org/ Declaration/ document/ index. htm) [3] The Supreme Court also expressly extended the legal protections of the Clause to Puerto Rico. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (http:/ / supreme. justia. com/ us/ 416/ 663/ case. html). U.S. Supreme Court Statement on Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) - We have held that Puerto Rico is subject to the First Amendment Speech Clause, Balzac v. Porto Rico, 258 U. S. 298, 314 (1922), the Due Process Clause of either the Fifth or the Fourteenth ent, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 668-669, n. 5 (1974), and the equal protection guarantee of either the Fifth or the Fourteenth Amendment, Examining Board v. Flores de Otero, 426 U. S. 572, 599-601 (1976). See generally Torres v. Puerto Rico, 442 U. S. 465, 468-471 (1979). [4] For details on the rationale for, and ratification of, the Fourteenth Amendment, see generally Foner, Eric (1988). Reconstruction: America's Unfinished Revolution, 1863—1877. New York: Harper & Row. ISBN 006091453X., as well as Brest, Paul; et al. (2000). Processes of Constitutional Decisionmaking. Gaithersburg: Aspen Law & Business. pp. 241–242. ISBN 0735512507. [5] See Brest et al. (2000), pp. 242–46. [6] See Foner (1988), passim. See also Ackerman, Bruce A. (2000). We the People, Volume 2: Transformations. Cambridge: Belknap Press. pp. 99–252. ISBN 0674003977. [7] http:/ / caselaw. lp. findlaw. com/ scripts/ getcase. pl?court=US& vol=347& invol=497 [8] Reed v. Reed - Significance, Notable Trials and Court Cases - 1963 to 1972 (http:/ / law. jrank. org/ pages/ 24338/ Reed-v-Reed-Significance. html) [9] Yick Wo v. Hopkins, 118 U.S. 356 (http:/ / supreme. justia. com/ us/ 118/ 356/ case. html) (1886). [10] For a summary of the social, political and historical background to Plessy, see Woodward, C. Vann (2001). The Strange Career of Jim Crow. New York: Oxford University Press. pp. 6 and pp. 69–70. ISBN 0195146905. [11] For a skeptical evaluation of Harlan, see Chin, Gabriel J. (1996). "The Plessy Myth: Justice Harlan and the Chinese Cases" (http:/ / papers. ssrn. com/ sol3/ papers. cfm?abstract_id=1121505). Iowa Law Review 82: 151. ISSN 00210552. . [12] See Santa Clara County v. Southern Pacific Railroad (http:/ / supreme. justia. com/ us/ 118/ 394/ case. html), 118 U.S. (1886). In the summary of the case Bancroft writes that the Court declared that it did not need to hear argument on whether the Equal Protection Clause protected corporations, because "we are all of the opinion that it does." Id. at 396. [13] See Providence Bank v. Billings, 29 U.S. 514 (http:/ / supreme. justia. com/ us/ 29/ 514/ case. html) (1830), in which Chief Justice Marshall wrote: "The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men." Nevertheless, the concept of corporate personhood remains controversial. See Mayer, Carl J. (1990). "Personalizing the Impersonal: Corporations and the Bill of Rights" (http:/ / reclaimdemocracy. org/ personhood/ mayer_personalizing. html). Hastings Law Journal 41: 577. ISSN 00178322. . [14] See Currie, David P. (1987). "The Constitution in the Supreme Court: The New Deal, 1931–1940". University of Chicago Law Review (The University of Chicago Law Review, Vol. 54, No. 2) 54 (2): 504, 547. doi:10.2307/1599798. JSTOR 1599798. [15] See generally Morris, Aldon D. (1986). Origin of the Civil Rights Movements: Black Communities Organizing for Change. New York: Free Press. ISBN 0029221307. [16] For an exhaustive history of the Brown case from start to finish, see Kluger, Richard (1977). Simple Justice. New York: Vintage. ISBN 0394722558. [17] For a comprehensive history of school desegregation from Brown through Milliken (one on which this article relies for its assertions), see Brest et al. (2000), pp. 768–794. [18] For data and analysis, see Orfield (July 2001). "Schools More Separate" (http:/ / www. civilrightsproject. harvard. edu/ research/ deseg/ Schools_More_Separate. pdf) (PDF). Harvard University Civil Rights Project. . Retrieved 2008-07-16. [19] It is important to note that the Civil Rights Acts of 1964 and 1968 were enacted under both the Commerce Clause and section five of the Fourteenth Amendment. Insofar as those Acts regulate "private" conduct under the rubric laid down by the Civil Rights Cases, and which usually fell within the purview of the several states to regulate, the Acts were passed by Congress under its Commerce Clause powers. The Supreme Court unanimously deemed the Civil Rights Act of 1964 constitutional under the Commerce Clause. [20] For the history of the American political branches' engagement with the Supreme Court's commitment to desegregation (and vice versa), see Powe, Lucas A., Jr. (2001). The Warren Court and American Politics. Cambridge, MA: Belknap Press. ISBN 0674006836., and Kotz, Nick (2004). Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America. Boston: Houghton Mifflin. ISBN 0618088253. For more on the debate summarized in the text, see, e.g., Rosenberg, Gerald N. (1993). The Hollow Hope: Can Courts Equal Protection Clause Bring About Social Change?. Chicago: University of Chicago Press. ISBN 0226727033., and Klarman, Michael J. (1994). "Brown, Racial Change, and the Civil Rights Movement". Virginia Law Review (Virginia Law Review, Vol. 80, No. 1) 80 (1): 7. doi:10.2307/1073592. JSTOR 1073592. [21] 304 U.S. 144, 152 n.4 (1938). For a theory of judicial review based on Stone's footnote, see Ely, John Hart (1981). Democracy and Distrust. Cambridge, MA: Harvard University Press. ISBN 0674196376. [22] Craig v. Boren (No. 75-628) (http:/ / www. law. cornell. edu/ supct/ html/ historics/ USSC_CR_0429_0190_ZS. html) [23] "Disability Rights - ACLU Position/Briefing Paper" (http:/ / www. aclu. org/ disability/ gen/ 10648pub19990101. html). American Civil Liberties Union. 1999-01-01. . [24] Title VII of the Civil Rights Act of 1964 is applied to private employers such as Griggs Power through Congress's Commerce Clause power, not through the Fourteenth Amendment. (This is, of course, consistent with the state action doctrine articulated in the Civil Rights Cases.) However, Title VII also applies to public employers, and the Supreme Court has consistently applied the same disparate impact doctrine to both private and public employers. Compare Griggs with Dothard v. Rawlinson, 433 U.S. 321 (http:/ / supreme. justia. com/ us/ 433/ 321/ case. html) (1977), a Title VII suit against the Alabama prison system. [25] For this point, see Herzog, Don (March 22, 2005). "Constitutional Rights: Two" (http:/ / left2right. typepad. com/ main/ 2005/ 03/ constitutional__1. html). Left2Right. . Note, however, that the Court as of late has put significant limits on the congressional power of enforcement. See City of Boerne v. Flores, Board of Trustees of the University of Alabama v. Garrett, and United States v. Morrison. [26] Contrast the Court's opinions in Arlington Heights and Washington v. Davis with, for example, Krieger, Linda Hamilton (1995). "The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Protection Opportunity". Stanford Law Review (Stanford Law Review, Vol. 47, No. 6) 47 (6): 1161. doi:10.2307/1229191. JSTOR 1229191., and Lawrence, Charles R., III (1987). "Reckoning with Unconscious Racism". Stanford Law Review (Stanford Law Review, Vol. 39, No. 2) 39 (2): 317. doi:10.2307/1228797. JSTOR 1228797. [27] See Pettinga, Gayle Lynn (1987). "Rational Basis with Bite: Intermediate Scrutiny by Any Other Name". Indiana Law Journal 62: 779. ISSN 00196665.; Wadhwani, Neelum J. (2006). "Rational Reviews, Irrational Results". Texas Law Review 84: 801, 809–811. ISSN 00404411. [28] Joslin, Courtney (1997). "Equal Protection and Anti-Gay Legislation". Harvard Civil Rights-Civil Liberties Law Review 32: 225, 240. ISSN 0017-8039. "The Romer Court applied a more 'active,' Cleburne-like rational basis standard… ."; Farrell, Robert C. (1999). "Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans". Indiana Law Review 32: 357. ISSN 00196665. [29] See Koppelman, Andrew (1994). "Why Discrimination against Lesbians and Gay Men is Sex Discrimination". New York University Law Review 69: 197. ISSN 00287881.; see also Fricke v. Lynch, 491 F.Supp. 381, 388, fn. 6 (1980), vacated 627 F.2d 1088 [case decided on First Amendment free-speech grounds, but "This case can also be profitably analyzed under the Equal Protection Clause of the fourteenth amendment. In preventing Aaron Fricke from attending the senior reception, the school has afforded disparate treatment to a certain class of students those wishing to attend the reception with companions of the same sex."] [30] See Schnapper, Eric (1985). "Affirmative Action and the Legislative History of the Fourteenth Amendment". Virginia Law Review (Virginia Law Review, Vol. 71, No. 5) 71 (5): 753. doi:10.2307/1073012. JSTOR 1073012. [31] See this subsection in the Wikipedia article on affirmative action. [32] See Schuck, Peter H. (September 5, 2003). "Reflections on Grutter" (http:/ / jurist. law. pitt. edu/ forum/ symposium-aa/ schuck. php). Jurist. . [33] See Siegel, Reva B. (2004). "Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown". Harvard Law Review (Harvard Law Review, Vol. 117, No. 5) 117 (5): 1470. doi:10.2307/4093259. JSTOR 4093259.; Carter, Stephen L. (1988). "When Victims Happen to Be Black". Yale Law Journal (The Yale Law Journal, Vol. 97, No. 3) 97 (3): 420–447. doi:10.2307/796412. JSTOR 796412. [34] The rights to privacy and to interstate travel are part of the Supreme Court's substantive due process jurisprudence, and therefore are not derived from the equal protection clause; rather, the Court imported the standard of strict scrutiny from equal protection jurisprudence into substantive due process jurisprudence. This "importation" is further complicated by the fact that some cases, such as Loving v. Virginia, actually combine Equal Protection issues with substantive due process issues. The right to vote, however, seems to be an exception to the foregoing, in that the substantive right to vote appears to derive not from the Due Process Clause but from the Equal Protection Clause. (See the dicta and concurring opinions in the landmark case of San Antonio Independent School District v. Rodriguez.) [35] For the criticisms seen here, as well as several defenses of the Court's decision, see Bush v. Gore: The Question of Legitimacy, edited by Ackerman, Bruce A. (2002). Bush v. Gore : the question of legitimacy. New Haven: Yale University Press. ISBN 0300093799. Another much-cited collection of essays is Sunstein, Cass; Epstein, Richard (2001). The Vote: Bush, Gore, and the Supreme Court. Chicago: Chicago University Press. ISBN 0226213072. [36] "CITY OF MOBILE V. BOLDEN, 446 U. S. 55 (1980)" (http:/ / supreme. justia. com/ us/ 446/ 55/ case. html#103), Justia. [37] "Gaffney v. Cummings, 412 U.S. 735 (1973)" (http:/ / supreme. justia. com/ us/ 412/ 735/ ), Justia. [38] "A right to representation: proportional election systems for the twenty-first century" (http:/ / books. google. com/ books?id=bDCwpD1RiocC), Kathleen Barber. Ohio State University Press, 2000. ISBN 0814208541, 9780814208540. p. 127 64 Equal Protection Clause 65 External links • Original Meaning of Equal Protection of the Laws (http://federalistblog.us/2009/02/ equal_protection_of_the_laws.html) Nineteenth Amendment to the United States Constitution The Nineteenth Amendment (Amendment XIX) to the United States Constitution prohibits any United States citizen to be denied the right to vote based on sex. It was ratified on August 18, 1920. The Constitution allows states to determine the qualifications for voting, and until the 1910s most states disenfranchised women. The amendment was the culmination of the women's suffrage movement, which fought at both state and national levels to achieve the vote. Susan B. Anthony and Elizabeth Cady Stanton drafted the amendment and first introduced it in 1878; it was forty-one years later, in 1919, when the Congress submitted the amendment to the states for ratification. A year later, it was ratified by the requisite number of states, with Tennessee's ratification being the final vote needed to add the amendment to the Constitution. The Nineteenth Amendment was unsuccessfully challenged in Leser v. Garnett (1922). In that case, the Supreme Court rejected claims that the amendment was unconstitutionally adopted. Text “ The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. ” Background The United States Constitution, adopted in 1789, left the boundaries of suffrage undefined. This authority was implicitly delegated to the individual states, all of which denied the right to women (with the exception of New Jersey, which initially carried women's suffrage but revoked it in 1807). While scattered movements and organizations dedicated to women's rights existed previously, the 1848 Seneca Falls Convention in New York is traditionally held as the start of the American women's rights movement. Suffrage was not a focus of the convention, however, and its advancement was minimal in the decades preceding the Civil War. While suffrage bills were introduced into most state legislatures during this period, they were generally disregarded and few came to a vote.[1] The women's suffrage movement took hold after the war, during the Reconstruction era (1865–1877). During this period, women's rights leaders advocated for inclusion of universal suffrage as a civil right in the Reconstruction amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments). Despite their efforts, these amendments did nothing to promote women's suffrage.[2] [3] Nineteenth Amendment to the United States Constitution 66 Continued settlement of the western frontier, along with the establishment of territorial constitutions, allowed the issue to be raised continually at the state level. Through the activism of suffrage organizations and independent political parties, women's suffrage was established in the newly formed constitutions of Wyoming Territory (1869), Utah (1870), and Washington Territory (1883).[3] Existing state legislatures began to consider suffrage bills, and several even held voter referenda, but they were unsuccessful.[6] Efforts at the national level persisted through a strategy of congressional testimony, petitioning, and lobbying.[7] Two rival organizations, the National Woman Suffrage Association (NWSA) and the American Woman Suffrage Association (AWSA), were formed in 1869.[2] The NWSA, led by suffrage leaders Elizabeth Cady Stanton and Susan B. Anthony, attempted several unsuccessful court challenges in the mid-1870s.[6] Their legal case, known as the New Departure strategy, was that the Fourteenth Amendment (granting universal citizenship) and Fifteenth Amendment (granting the vote irrespective of race) together served to guarantee voting rights to women. Three Supreme Court decisions from 1873 to 1875 rejected this argument, so these groups shifted to advocating for a new constitutional amendment.[8] Women's suffrage laws before adoption of the Nineteenth AmendmentShuler, Marjorie (September 4, 1920). "Out of Subjection Into Freedom". The Woman Citizen: 360. .Keyssar, Alexander. The Right to Vote. ISBN 0465029698.  Full suffrage  Presidential suffrage  Primary suffrage  Municipal suffrage  School, bond, or tax suffrage  Municipal suffrage in some cities  Primary suffrage in some cities  No suffrage Proposal and ratification The Nineteenth Amendment's text was drafted by Susan B. Anthony with the assistance of Elizabeth Cady Stanton.[9] The proposed amendment was first introduced in the U.S. Senate colloquially as the "Anthony Amendment", by Senator Aaron A. Sargent of California. Sargent, who had met and befriended Anthony on a train ride in 1872, was a dedicated women's suffrage advocate. He had frequently attempted to insert women's suffrage provisions into unrelated bills, but did not formally introduce a constitutional amendment until January 1878.[10] Stanton and other women testified before the Senate in support of the amendment.[11] The proposal sat in a committee until it was considered by the full Senate and rejected in a 16 to 34 vote in 1887.[9] A three-decade period known as "the doldrums" followed, during which the amendment was not considered by Congress and the women's suffrage Susan B. Anthony circa 1900 movement achieved few victories.[12] [13] During this period, the suffragists pressed for the right to vote in the laws of individual states and territories while retaining the goal of federal recognition.[9] A flurry of activity began in 1910 and 1911 with surprise successes in Washington and California.[12] Over the next few years, most western states passed legislation or voter referenda enacting full or partial suffrage for women.[14] These successes were linked to the 1912 election, which saw the rise of the Progressive and Socialist parties, as well as the election of Democratic President Woodrow Wilson.[12] [13] Not until 1914 was the constitutional amendment again considered by the Senate, where it was again rejected.[9] On January 12, 1915, a proposal to amend the Constitution to provide for women's suffrage was brought before the House of Representatives, but was defeated by a vote of 204 to 174. Another proposal was brought before the House on January 10, 1918. During the previous evening, President Wilson made a strong and widely published appeal to Nineteenth Amendment to the United States Constitution the House to pass the amendment. It was passed by the required two-thirds of the House, with only one vote to spare. The vote was then carried into the Senate. Wilson again made an appeal, but on September 30, 1918, the proposal fell two votes short of passage. On February 10, 1919, it was again voted upon and failed by only one vote. There was considerable desire among politicians of both parties to have the proposal made part of the Constitution before the 1920 general elections, so the President called a special session of the Congress so the proposal would be brought before the House again. On May 21, 1919, it passed the House, 42 votes more than necessary being obtained. On June 4, 1919, it was brought before the Senate and, after a long discussion, it was passed with 56 ayes and 25 nays. Within a few days, Illinois, Wisconsin, and Michigan ratified the amendment, their legislatures being in session. Other states followed suit at a regular pace, until the amendment had been ratified by 35 of the necessary 36 state legislatures. On August 18, 1920, Tennessee narrowly approved the Nineteenth Amendment, with 50 of 99 members of the Tennessee House of Representatives voting yes.[15] This provided the final ratification necessary to enact the amendment.[16] 67 Ratification timeline The Congress proposed the Nineteenth Amendment on June 4, 1919, and the following states ratified the amendment.[17] [18] 1. Wisconsin (June 10, 1919) 2. Illinois (June 10, 1919, reaffirmed on June 17, 1919) 3. Michigan (June 10, 1919) 4. Kansas (June 16, 1919) 5. New York (June 16, 1919) 6. Ohio (June 16, 1919) 7. Pennsylvania (June 24, 1919) 8. Massachusetts (June 25, 1919) 9. Texas (June 28, 1919) 10. Iowa (July 2, 1919)[19] 11. Missouri (July 3, 1919) 12. Arkansas (July 28, 1919) 13. Montana (August 2, 1919)[19] 14. Nebraska (August 2, 1919) 15. Minnesota (September 8, 1919) 16. New Hampshire (September 10, 1919)[19] 17. Utah (October 2, 1919) 18. California (November 1, 1919) 19. 20. 21. 22. 23. 24. 25. 26. 27. Maine (November 5, 1919) North Dakota (December 1, 1919) South Dakota (December 4, 1919) Colorado (December 15, 1919)[19] Kentucky (January 6, 1920) Rhode Island (January 6, 1920) Oregon (January 13, 1920) Indiana (January 16, 1920) Wyoming (January 27, 1920) Nineteenth Amendment in the National Archives 28. Nevada (February 7, 1920) 29. New Jersey (February 9, 1920) 30. Idaho (February 11, 1920) Nineteenth Amendment to the United States Constitution 31. 32. 33. 34. 35. 36. Arizona (February 12, 1920) New Mexico (February 21, 1920) Oklahoma (February 28, 1920) West Virginia (March 10, 1920, confirmed on September 21, 1920) Washington (March 22, 1920) Tennessee (August 18, 1920) 68 Ratification was completed on August 18, 1920, and the following states subsequently ratified the amendment: 1. Connecticut (September 14, 1920, reaffirmed on September 21, 1920) 2. Vermont (February 8, 1921) 3. Delaware (March 6, 1923, after being rejected on June 2, 1920) 4. Maryland (March 29, 1941 after being rejected on February 24, 1920; not certified until February 25, 1958) 5. Virginia (February 21, 1952, after being rejected on February 12, 1920) 6. Alabama (September 8, 1953, after being rejected on September 22, 1919) 7. Florida (May 13, 1969)[20] 8. South Carolina (July 1, 1969, after being rejected on January 28, 1920; not certified until August 22, 1973) 9. Georgia (February 20, 1970, after being rejected on July 24, 1919) 10. Louisiana (June 11, 1970, after being rejected on July 1, 1920) 11. North Carolina (May 6, 1971) 12. Mississippi (March 22, 1984, after being rejected on March 29, 1920) Alaska and Hawaii were not states when the Nineteenth Amendment was ratified. Leser v. Garnett The amendment's validity was unanimously upheld in Leser v. Garnett, 258 U.S. 130 [22] (1922).[23] Oscar Leser sued to stop two women registered to vote in Baltimore, Maryland, because he believed that the Maryland Constitution limited the suffrage to men and the Maryland legislature had refused to vote to ratify the Nineteenth Amendment. Two months before, the federal government had proclaimed the amendment incorporated into the Constitution on August 26, 1920.[23] First, Leser said the amendment "destroyed State autonomy" because it increased Maryland's electorate without the state's consent. The Court answered that the Nineteenth Amendment was worded like the Fifteenth Amendment, which had expanded state electorates without regard to race for over 50 years by that time despite being rejected by six states, including Maryland.[21] [23] Second, Leser claimed that the state constitutions in some ratifying states did not allow their legislatures to ratify. The Court replied that state ratification was a federal function which came from Article V of the Constitution and so is not subject to limitations by a state constitution.[23] Justice Louis Brandeis, author of the Supreme Court's opinion in Leser v. [21] Garnett Third, those bringing suit asserted the Nineteenth Amendment was not adopted, because Tennessee and West Virginia violated their own rules of procedure. The Court ruled that the point was moot, because since then Connecticut and Vermont had ratified the amendment and so there was a sufficient number of ratifications for the Nineteenth Amendment to be considered adopted even without Tennessee and West Virginia. Also, the Court ruled that Tennessee and West Virginia's certifying of their ratifications was binding on the federal courts.[23] Thus, the two women were permitted to be registered to vote in Baltimore.[23] Nineteenth Amendment to the United States Constitution 69 Effects Following the Nineteenth Amendment's adoption, many legislators feared that a powerful women's bloc would emerge in American politics. This led to the passage of such laws as the Sheppard–Towner Act of 1921, which expanded maternity care during the 1920s.[24] However, a women's bloc did not emerge in American politics until the 1950s.[25] Notes [1] [2] [3] [4] [5] [6] [7] [8] [9] Banaszak 1996, pp. 5–6. Banaszak 1996, pp. 6–7. Mead 2004, p. 2. Shuler, Marjorie (September 4, 1920). "Out of Subjection Into Freedom" (http:/ / idserver. utk. edu/ ?id=200700000001602). The Woman Citizen: 360. . Keyssar, Alexander. The Right to Vote. ISBN 0465029698. Banaszak 1996, p. 8. Banaszak 1996, pp. 133–134. Mead 2004, pp. 35–38. Kobach, Kris (May 1994). "Woman suffrage and the Nineteenth Amendment" (http:/ / www. law. umkc. edu/ faculty/ projects/ ftrials/ conlaw/ nineteenthkobach. html). University of Missouri–Kansas City School of Law. . Excerpt from Kobach, Kris (May 1994). "Rethinking Article V: term limits and the Seventeenth and Nineteenth Amendments". Yale Law Journal (Yale Law School) 103 (7): 1971–2007. [10] Mead 2004, p. 38. [11] Amar 2005, pp. 421. [12] Mead 2004, pp. 94–95. [13] Baker 2002, pp. 98–101. [14] Baker 2002, p. 90. [15] Van West 1998. [16] Hakim 1995, pp. 29–33. [17] Mount, Steve (January 2007). "Ratification of Constitutional Amendments" (http:/ / www. usconstitution. net/ constamrat. html). . Retrieved February 24, 2007. [18] "Claim Wisconsin First to O.K. Suffrage" (http:/ / www. wisconsinhistory. org/ turningpoints/ search. asp?id=1484). Milwaukee Journal. November 2, 1919. . Retrieved November 16, 2010. [19] date on which approved by governor [20] "Ratification of the Nineteenth Amendment by the Florida Legislature, 1969" (http:/ / www. floridamemory. com/ FloridaHighlights/ 19th_Amendment/ 19th_Amendment. cfm). Institute of Museum and Library Services. . Retrieved February 2, 2011. [21] "258 U.S. 130 - Leser v. Garnett" (http:/ / openjurist. org/ 258/ us/ 130/ leser-v-garnett). OpenJurist. . Retrieved February 7, 2011. [22] http:/ / supreme. justia. com/ us/ 258/ 130/ case. html [23] Anzalone 2002, pp. 17. [24] Dumenil 1995, pp. 23–30. [25] Moses 1995, pp. xx-xxi. Nineteenth Amendment to the United States Constitution 70 References Footnotes Bibliography • Amar, Akhil Reed (2005). America's Constitution: A Biography (http://books.google.com/ books?id=aw9rB6TjpFgC). Random House trade pbk. ed. ISBN 0812972724. • Anzalone, Christopher A (2002). Supreme Court Cases on Gender and Sexual Equality, 1787–2001 (http:// books.google.com/books?id=Mf2mstr5F58C). United States Supreme Court (Sharpe). ISBN 0765606836. • Baker, Jean H. (ed.) (2002). Votes for Women: The Struggle for Suffrage Revisited (http://books.google.com/ books?id=mETblx5oqxMC). Oxford University Press. ISBN 9780198029830. • Banaszak, Lee A. (1996). Why Movements Succeed or Fail: Opportunity, Culture, and the Struggle for Woman Suffrage (http://books.google.com/books?id=jA52Fdb_V5sC). Princeton University Press. ISBN 9781400822072. • DuBois, Ellen C., Ellen C. (1998). Woman Suffrage & Women's Rights (http://books.google.com/ books?id=Urn8GOy9EsQC). NYU Press. ISBN 9780814719008. • Dumenil, Lynn (1995). The Modern Temper: American Culture and Society in the 1920s (http://books.google. com/books?id=ZiyjQgAACAAJ). Hill and Wang. ISBN 0809069784. • Hakim, Joy (1995). "Book 9: War, Peace, and All That Jazz" (http://books.google.com/ books?id=5VzIRwAACAAJ). A History of US. New York, New York: Oxford University Press. ISBN 0195095146. • Mead, Rebecca J. (2004). How the Vote Was Won: Woman Suffrage in the Western United States, 1868–1914 (http://books.google.com/books?id=-7MIsVUBiE8C). NYU Press. ISBN 9780814756768. • Moses, Claire Goldberg; Hartmann, Heidi I. (1995). U.S. Women in Struggle: A Feminist Studies Anthology (http://books.google.com/books?id=UjcRujK-NmcC). University of Illinois Press. ISBN 0252021665. • Van West, Carroll (ed.) (1998). "Woman Suffrage Movement" (http://tennesseeencyclopedia.net/imagegallery. php?EntryID=W081). Tennessee Encyclopedia of History and Culture. Thomas Nelson. ISBN 1558535993. • Wheeler, Marjorie S. (1993). New Women of the New South: The Leaders of the Woman Suffrage Movement in the Southern States (http://books.google.com/books?id=kE6lZpmLmK0C). Oxford University Press. ISBN 9780195359572. External links • National Archives: Nineteenth Amendment (http://www.archives.gov/exhibits/charters/ constitution_amendments_11-27.html#19) • Amendments to the Constitution, with ratification information (http://www.gpoaccess.gov/constitution/ pdf2002/007.pdf) • CRS Annotated Constitution: Nineteenth Amendment (http://www.law.cornell.edu/anncon/html/ amdt19toc_user.html) Equal Pay Act of 1963 71 Equal Pay Act of 1963 Equal Pay Act of 1963 Acronym Enacted by the EPA 88th United States Congress Citations Public Law Stat. Pub. L. No. 88-38 77 Stat. 56 Codification Act(s) amended Title(s) amended U.S.C. sections substantially amended Fair Labor Standards Act 29 206 Legislative history • Signed into law by President John F. Kennedy on June 10, 1963 Major amendments Relevant Supreme Court cases The Equal Pay Act of 1963 is a United States federal law amending the Fair Labor Standards Act, aimed at abolishing wage disparity based on sex (see Gender pay gap). It was signed into law on June 10, 1963 by John F. Kennedy as part of his New Frontier Program.[1] In passing the bill, Congress denounces sex discrimination for the following reasons: • It depresses wages and living standards for employees necessary for their health and efficiency; • it prevents the maximum utilization of the available labor resources • it tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce; • it burdens commerce and the free flow of goods in commerce; and • it constitutes an unfair method of competition. The law provides (in part) that: No employer having employees subject to any provisions of this section [section 206 of title 29 of the United States Code] shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs[,] the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex [ . . . . ] [2] Equal Pay Act of 1963 72 Background In 1963, Congress passed the Equal Pay Act [3] ("EPA" or the "Act")[4] as an amendment to the Fair Labor Standards Act,[5] to "prohibit discrimination on account of sex in the payment of wages by employers." Congress included within the text of the EPA a clear and concise policy statement and briefly described the problems it was intended to remedy. The clear statement of congressional intent and policy guiding the EPA’s enactment indicate the Congressional desire to fashion a broad remedial framework to protect employees from wage discrimination on the basis of sex. The Supreme Court has expressly recognized the view that the EPA must be broadly construed to achieve Congress’ goal of remedying sexual discrimination. Congress passed the EPA out of "concern for the weaker bargaining position of women" to provide a remedy to discriminatory wage structures that reflect "an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman."[6] The EPA protects both men and women. It also protects administrative, professional and executive employees who are exempt under the Fair Labor Standards Act. The EPA, Section 206(d)(1) [3], prohibits "employer[s] ... [from] discriminat[ing] … on the basis of sex by paying wages to employees [...] at a rate less than the rate [paid] to employees of the opposite sex [...] for equal work on jobs [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions[.]" To establish a prima facie case under the EPA, an employee must show that: 1. different wages are paid to employees of the opposite sex; 2. the employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and 3. the jobs are performed under similar working conditions.[7] The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender employees within the same establishment for equal work at jobs that require equal skill, effort and responsibility, and that are performed under similar working conditions. It is important to note that the EPA does not contain any intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements of the prima facie case, regardless of the intention of the employer. As such, the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender. Once a plaintiff meets their heavy burden and establishes a prima facie case of gender discrimination under the EPA, then the defendant may only avoid liability by proving the existence of one of four statutory affirmative defenses.[8] The EPA’s four affirmative defenses allows unequal pay for equal work when the wages are set "pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) ... any other factor other than sex[.]" Congressional Intent Upon its initial enactment, the EPA was "the first step towards an adjustment of balance in pay for women.”[9] As a part of the FLSA, the EPA was subject to the scope and exceptions of covered employees and employers contained within that act.[10] On the floor of the House of Representatives, many Representatives voiced their concern that the EPA should act as the starting point for establishing pay parity for women. Subsequent to the enactment of the EPA, congress undertook two actions which broadened the scope of federal protection against wage discrimination on the basis of sex. First, the same 88th Congress enacted Title VII of the Civil Rights Act of 1964.[11] By including sex as an element protected from discrimination, Title VII expanded the protection of women from employment discrimination, to include almost all employees working for employers with fifteen or more employees.[12] Foreseeing the potential conflict between the administration of two statutes with overlapping restrictions, Congress included the Bennett Amendment in Title VII, which incorporates the EPA’s four affirmative defenses into Title VII.[13] Equal Pay Act of 1963 Second, Congress expanded the EPA’s coverage to professionals and other white collar employees.[14] For the first nine years of the EPA, the requirement of equal pay for equal work did not extend to persons employed in an executive, administrative or professional capacity, or as an outside salesman. Therefore, the EPA exempted white collar women from the protection of equal pay for equal work. In 1972, Congress enacted the Educational Amendment of 1972, which amended the FLSA to expand the coverage of the EPA to these employees, by excluding the EPA from the professional workers exemption of the FLSA. 73 Congress' Consideration of Economic Consequences The Congress did not ignore the EPA’s economic consequences on the salaries and employment opportunities for both men and women.[15] First, as an amendment of the FLSA, the EPA is part of the same legislative structure that houses the federal minimum wage laws.[16] The EPA acts as a wage equalizer between men and women for equal jobs, and has the potential of acting as a price floor on the salaries of men or women for particular jobs.[17] As such, the EPA has the potential of causing some of the same problems observed by minimum wage laws: unemployment, and additional discrimination.[18] Second, Several Representatives voiced their concerns that the negative impact of setting price floors on the wages paid to women would reduce the availability of jobs for women.[19] With the possible side effects of the Act noted on the Congressional record, the Act passed with little opposition, and no indication that any of the four affirmative defenses were intended to remedy or limit its negative consequences. Impact According to the Bureau of Labor Statistics, women’s salaries vis-à-vis men’s have risen dramatically since the EPA’s enactment, from 62% of men’s earnings in 1970 to 80% in 2004.[20] Nonetheless, the EPA’s equal pay for equal work goals have not been completely achieved, as demonstrated by the BLS data and Congressional findings within the text of the proposed Paycheck Fairness Act.[21] Senator Hillary Rodham Clinton first introduced the “Paycheck Fairness Act” on April 20, 2005, which, among other provisions, proposes to amend the EPA’s fourth affirmative defense to permit only bona fide factors other than sex that are job-related or serve a legitimate business interest.[22] Representative Rosa DeLauro first introduced an identical bill in the House of Representatives on the same day.[23] On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act, which overturned the holding of a Supreme Court case, Ledbetter v. Goodyear, regarding the applicable statute of limitations. This bill, providing that each gender-unequal paycheck is a new violation of the law, was the first signing of the Obama Presidency and came almost forty-five years after the Equal Pay Act. However, a 2007 Department of Labor study[24] cautioned against overzealous application of the EPA without closer examination of possible reasons for pay discrepancies. This study notes, for example, that men as a group earn higher wages in part because men dominate blue collar jobs, which are more likely to require cash payments for overtime work; in contrast, women comprise over half of the salaried white collar management workforce that is often exempted from overtime laws. In summary, the study stated: Although additional research in this area is clearly needed, this study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers. Equal Pay Act of 1963 74 Notes [1] [2] [3] [4] [5] [6] http:/ / archive. eeoc. gov/ epa/ anniversary/ epa-40. html The Equal Pay Act of 1963 (http:/ / www. eeoc. gov/ policy/ epa. html) http:/ / finduslaw. com/ equal_pay_act_of_1963_epa_29_u_s_code_chapter_8_206_d Pub. L. No. 88-38, 77 Stat. 56 (codified as amended at29 U.S.C.  § 206(d) (http:/ / www. law. cornell. edu/ uscode/ 29/ 206(d). html)). 29 U.S.C.  et seq.html § 201, et seq (http:/ / www. law. cornell. edu/ uscode/ 29/ 201,) Corning Glass Works v. Brennan, 417 U.S. 188, 208 (1974)("The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve."). [7] See Corning Glass Works v. Brennan, 417 U.S. 188, 203 fn. 24 (stating that jobs need to be substantially equal fall within the EPA); Fallon v. State of Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989)(enumerating the elements of a prima facie case under the EPA). [8] See Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); Miranda v. B & B Cash Grocery Store, 975 F.2d 1518, 1526 (11th Cir. 1992) [9] 109 Cong.Rec. 9193 (1963) (Rep. Frances P. Bolton). [10] See 29 U.S.C. § 201 et seq. (2006); 109 Cong.Rec. 9193 (1963) (Rep. St. George) (“All of the [FLSA] exemptions apply; and this is very noteworthy, agriculture, hotels, motels, restaurants, and laundry are excluded . Also all professional, managerial, and administrative personnel[.]”) [11] Pub. L. No. 88-352, §§701-718, 78 Stat. 241, 253-66 (codified as amended at 42 U.S.C. §§2000e to 2000e-17 (2006)). Title VII prohibits employers from “discriminate[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals…sex….” 42 U.S.C. §2000e-2(a). [12] See 42 U.S.C. §§2000e(b) (2006). [13] See 42 U.S.C. § 2000e-2(h) (2006) (“It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of [the EPA].”). Senator Bennett proposed his amendment to ensure that in the event of conflicts between Title VII and the EPA, “the provisions of the [EPA] shall not be nullified.” 110 Cong. Rec. 13647 (1964) (statement of Sen. Bennett). The Supreme Court interpreted the Bennett Amendment as incorporating only the EPA’s four affirmative defenses into Title VII sex discrimination claims. County of Washington v. Gunther, 452 U.S. 161, 171 (1981). It is important to note that the prima facie case of sex discrimination under Title VII is different from the EPA. For example, Title VII requires intent to discriminate on the basis of sex, and does not require that a plaintiff prove job equality or identify a male comparator. See Gunther, 452 U.S. at 164, 178. For a discussion of the differences between Title VII and EPA claims, see Peter Avery, Comment, The Diluted Equal Pay Act, 56 RUTGERS L. REV. 849, 852 (Spring 2004). For a comprehensive list of specific differences between Title VII and the EPA, see Ana M. Perez-Arrieta, Comment, Defenses to Sex-Based Wage Discrimination Claims at Educational Institutions: Exploring “Equal Work” and “Any Other Factor Other Than Sex” in the Faculty Context, 31 J.C. & U.L. 393, 397 n. 36 (2005). [14] See Education Amendments of 1972, Pub. L. No. 92-318, § 906(b) (1), 86 Stat. 235, 375 (codified as amended at 29 U.S.C. § 213(a) (1) (2006)) (removing operation of FLSA exemption of professional employees from EPA). [15] "I am not so sure that the [EPA] in the long run is going to benefit the women employees[.] It is highly probable that the employers may find it advantageous to employ men in positions now filled by women. Certainly, they would feel inclined to do so in marginal instances where the labor market is plentiful. In other words, it is highly probable that the passage of [the EPA] would result in less employment for women." 109 Cong.Rec. 9203 (1963) (Rep. Colmer); Id. at 9205 (Rep. Findley) (“I think we need to consider some of the possible side effects of [the EPA] and go into the whole proposal for equal pay for women with our eyes open, realizing it may possibly bar women from some job opportunities.”); Id. at 9208 (Rep. Goodell) (“I think many women advocating this legislation recognize that in some instances the women are going to lose their jobs because an employer has to pay women the same price he [SIC] pays men. In many other cases, women will just not be hired.”). [16] See 29 U.S.C. § 201, et seq.; 29 C.F.R. 1620.1 (2006). [17] The act’s consequence as a price floor is only a potential under the EPA, because an employee must establish that a member of the opposite sex receives a higher salary for equal work. Therefore, if an employer chooses to hire only men, or only women for a particular job, there is no potential for a pay disparity between genders for the performance of equal jobs. In the case an employer chooses to hire only men to perform a specific job, a woman may have a cause of action for intentional gender discrimination under Title VII. [18] See, e.g., Thomas Sowell, BASIC ECONOMICS 163-69 (2004) (explaining the effects of federal minimum wage laws including increased unemployment and the decreased cost of discrimination). [19] See, e.g.,109 Cong.Rec. 9193 (1963) (Rep. Colmer). [20] BUREAU OF LABOR STATISTICS, U.S. DEPT. OF LABOR, REPORT 985, WOMEN IN THE LABOR FORCE: A DATABOOK 1 (2005) [21] Id.; Paycheck Fairness Act, S.841 109th Cong. § 2(2) (2005) (“Even today, women earn significantly lower pay than men for work on jobs that require equal skill, effort, and responsibility and that are performed under similar working conditions.”). [22] Paycheck Fairness Act, S.841 109th Cong. (2005) (Sponsored by Senator Hillary Clinton). [23] Paycheck Fairness Act, H.R. 1687 109th Cong. (2005) (Sponsored by Representative Rosa DeLauro). [24] http:/ / www. consad. com/ content/ reports/ Gender%20Wage%20Gap%20Final%20Report. pdf Civil Rights Act of 1964 75 Civil Rights Act of 1964 Civil Rights Act of 1964 Full title An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States of America to provide relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes. 88th United States Congress Enacted by the Effective July 2, 1964 Citations Public Law Stat. 88-352 [1] 78 Stat. 241 Codification Title(s) amended 42 Legislative history • • • • • • Introduced in the House as H.R. 7152 by Emanuel Celler (D–NY) on June 20, 1963 Committee consideration by: Judiciary Passed the House on February 10, 1964 (290–130) Passed the Senate on June 19, 1964 (71–29) with amendment House agreed to Senate amendment on June 30, 1964 (289–126) Signed into law by President Lyndon B. Johnson on July 2, 1964 Major amendments Civil Rights Act of 1991 Relevant Supreme Court cases Heart of Atlanta Motel v. United States Katzenbach v. McClung Griggs v. Duke Power Co. Ricci v. DeStefano The Civil Rights Act of 1964 (Pub.L. 88-352, 78 Stat. 241, enacted July 2, 1964) was a landmark piece of legislation in the United States[2] that outlawed major forms of discrimination against African Americans and women, including racial segregation. It ended unequal application of voter registration requirements and racial segregation in schools, at the workplace and by facilities that served the general public ("public accommodations"). Powers given to enforce the act were initially weak, but were supplemented during later years. Congress asserted its authority to legislate under several different parts of the United States Constitution, principally its power to regulate Civil Rights Act of 1964 interstate commerce under Article One (section 8), its duty to guarantee all citizens equal protection of the laws under the Fourteenth Amendment and its duty to protect voting rights under the Fifteenth Amendment. The Act was signed into law by President Lyndon B. Johnson, who would later sign the landmark Voting Rights Act into law. 76 Origins The bill was called for by President John F. Kennedy in his civil rights speech of June 11, 1963,[3] in which he asked for legislation "giving all Americans the right to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments," as well as "greater protection for the right to vote." Kennedy delivered this speech following a series of protests from the African-American community, the most concurrent being the Birmingham campaign which concluded in May 1963. Emulating the Civil Rights Act of 1875, Kennedy's civil rights bill included provisions to ban discrimination in public accommodations, and to enable the U.S. Attorney General to join in lawsuits against state governments which operated segregated school systems, among other provisions. However, it did not include a number of provisions deemed essential by civil rights leaders including protection against police brutality, ending discrimination in private employment, or granting the Justice Department power to initiate desegregation or job discrimination lawsuits.[4] First page of the Civil Rights Act of 1964 John F. Kennedy addresses the nation about Civil Rights on June 11, 1963 Civil Rights Act of 1964 77 Committee & Passage in the House of Representatives The bill was sent to the House of Representatives, and referred to the House Judiciary Committee, chaired by Emmanuel Celler, a Democrat from New York. After a series of hearings on the bill, Celler's committee strengthened the act, adding provisions to ban racial discrimination in employment, providing greater protection to black voters, eliminating segregation in all publicly owned facilities (not just schools), and strengthening the anti-segregation clauses regarding Lyndon B. Johnson signs the Civil Rights Act of public facilities such as lunch counters. They also added authorization 1964. Among the guests behind him is Martin Luther King, Jr. for the Attorney General to file lawsuits to protect individuals against the deprivation of any rights secured by the Constitution or U.S. law. In essence, this was the controversial "Title III" that had been removed from the 1957 and 1960 Acts. Civil rights organizations pressed hard for this provision because it could be used to protect peaceful protesters and black voters from police brutality and suppression of free speech rights. Kennedy called the congressional leaders to the White House in late October, 1963 to line up the necessary votes in the House for passage.[5] The bill was reported out of the Judiciary Committee in November 1963, and referred to the Rules Committee, whose chairman, Howard W. Smith, a Democrat and avid segregationist from Virginia, indicated his intention to keep the bill bottled up indefinitely. Johnson and passage In late November 1963 the assassination of John F. Kennedy changed the political situation. The new president, Lyndon Johnson, utilized his experience in legislative politics and the bully pulpit he wielded as president in support of the bill. In his first address to Congress on November 27, 1963, Johnson told the legislators, "No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long."[6] Chairman Celler filed a petition to discharge the bill from the Committee; it required a majority to move the bill to the floor. Initially Celler had a difficult time acquiring the signatures necessary, as even many congressmen who supported the civil rights bill itself were cautious about violating House procedure with the discharge petition. By the time of the 1963 winter recess, 50 signatures were still needed. Civil Rights Act of 1964 78 On the return of Congress from the winter recess, however, it became apparent that public opinion in the North favored the bill and the petition would acquire the necessary signatures. To prevent the humiliation of the success of the petition, Chairman Smith allowed the bill to pass through the Rules Committee. The bill was brought to a vote in the House on February 10, 1964, and passed by a vote of 290 to 130, and sent to the Senate. The record of the roll call vote kept by the House Clerk on final passage of the bill. Passage in the Senate Johnson, who wanted the bill passed as soon as possible, ensured that the bill would be quickly considered by the Senate. Normally, the bill would have been referred to the Senate Judiciary Committee, chaired by Senator James O. Eastland, Democrat from Mississippi. Given Eastland's firm opposition, it seemed impossible that the bill would reach the Senate floor. Senate Majority Leader Mike Mansfield took a novel approach to prevent the bill from being relegated to Judiciary Committee limbo. Having initially waived a second reading of the bill, which would have led to it being immediately referred to Judiciary, Mansfield gave the bill a second reading on February 26, 1964, and then proposed, in the absence of precedent for instances when a second reading did not immediately follow the first, that the bill bypass the Judiciary Committee and immediately be sent to the Senate floor for debate. Although this parliamentary move led to a filibuster, the senators eventually let it pass, preferring to concentrate their resistance on passage of the bill itself. Martin Luther King, Jr. and Malcolm X at the United States Capitol on March 26, 1964. Both men had come to hear the Senate debate on the bill. This was the only time the two men ever met; their meeting lasted only [7] one minute. The bill came before the full Senate for debate on March 30, 1964 and the "Southern Bloc" of 18 southern Democratic Senators and one Republican Senator led by Richard Russell (D-GA) launched a filibuster to prevent its passage.[8] Said Russell: "We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our (Southern) states."[9] Civil Rights Act of 1964 The most fervent opposition to the bill came from Senator Strom Thurmond (D-SC): "This so-called Civil Rights Proposals, which the President has sent to Capitol Hill for enactment into law, are unconstitutional, unnecessary, unwise and extend beyond the realm of reason. This is the worst civil-rights package ever presented to the Congress and is reminiscent of the Reconstruction proposals and actions of the radical Republican Congress."[10] After 54 days of filibuster, Senators Everett Dirksen (R-IL), Thomas Kuchel (R-CA), Hubert Humphrey (D-MN), and Mike Mansfield (D-MT) introduced a substitute bill that they hoped would attract enough Republican swing votes to end the filibuster. The compromise bill was weaker than the House version in regard to government power to regulate the conduct of private business, but it was not so weak as to cause the House to reconsider the legislation.[11] On the morning of June 10, 1964, Senator Robert Byrd (D-W.Va.) completed a filibustering address that he had begun 14 hours and 13 minutes earlier opposing the legislation. Until then, the measure had occupied the Senate for 57 working days, including six Saturdays. A day earlier, Democratic Whip Hubert Humphrey of Minnesota, the bill's manager, concluded he had the 67 votes required at that time to end the debate and end the filibuster. With six wavering senators providing a four-vote victory margin, the final tally stood at 71 to 29. Never in history had the Senate been able to muster enough votes to cut off a filibuster on a civil rights bill. And only once in the 37 years since 1927 had it agreed to cloture for any measure.[12] On June 19, the substitute (compromise) bill passed the Senate by a vote of 71–29, and quickly passed through the House-Senate conference committee, which adopted the Senate version of the bill. The conference bill was passed by both houses of Congress, and was signed into law by President Johnson on July 2, 1964.[13] 79 Vote totals Totals are in "Yea-Nay" format: • • • • The original House version: 290-130   (69%–31%). Cloture in the Senate: 71-29   (71%–29%). The Senate version: 73-27   (73%–27%). The Senate version, as voted on by the House: 289-126   (70%–30%). By party The original House version:[14] • Democratic Party: 152-96   (61%-39%) • Republican Party: 138-34   (80%-20%) Cloture in the Senate:[15] • Democratic Party: 44-23   (66%–34%) • Republican Party: 27-6   (82%–18%) The Senate version:[14] • Democratic Party: 46-21   (69%–31%) • Republican Party: 27-6   (82%–18%) The Senate version, voted on by the House:[14] • Democratic Party: 153-91   (63%–37%) • Republican Party: 136-35   (80%–20%) Civil Rights Act of 1964 By party and region Note: "Southern", as used in this section, refers to members of Congress from the eleven states that made up the Confederate States of America in the American Civil War. "Northern" refers to members from the other 39 states, regardless of the geographic location of those states. The original House version: • Southern Democrats: 7–87   (7%–93%) • Southern Republicans: 0–10   (0%–100%) • Northern Democrats: 145-9   (94%–6%) • Northern Republicans: 138-24   (85%–15%) The Senate version: • • • • Southern Democrats: 1–20   (5%–95%) Southern Republicans: 0–1   (0%–100%) Northern Democrats: 45-1   (98%–2%) Northern Republicans: 27-5   (84%–16%) 80 Women's rights Just one year prior, the same Congress had passed the Equal Pay Act of 1963, which prohibited wage differentials based on sex. The prohibition on sex discrimination was added by Howard W. Smith, a powerful Virginian Democrat who chaired the House Rules Committee and who had strongly opposed the Civil Rights Act. Smith's amendment was passed by a teller vote of 168 to 133. Historians debate Smith's motivation—was it a cynical attempt to defeat the bill by someone opposed to both civil rights for blacks and women, or did he support women's rights and was attempting House Rules Committee clerk's record of markup to improve the bill by broadening it to include women?[16] [17] [18] session adding "sex" to bill. [19] Smith expected that Republicans, who had included equal rights for women in their party's platform since 1944, would probably vote for the amendment. Historians speculate that Smith was trying to embarrass northern Democrats who opposed civil rights for women because the clause was opposed by labor unions. Representative Carl Elliott of Alabama later claimed, "Smith didn't give a damn about women's rights...he was trying to knock off votes either then or down the line because there was always a hard core of men who didn't favor women's rights,"[20] and the Congressional Record records that Smith was greeted by laughter when he introduced the amendment.[21] Smith asserted that he was not joking; he sincerely supported the amendment and, indeed, along with Rep. Martha Griffiths,[22] he was the chief spokesperson for the amendment.[21] For twenty years Smith had sponsored the Equal Rights Amendment (with no linkage to racial issues) in the House because he believed in it. He for decades had been close to the National Woman's Party and its leader Alice Paul, one of the leaders in winning the vote for women back in 1920 and the chief supporter of equal rights proposals since then. She and other feminists had worked with Smith since 1945 trying to find a way to include sex as a protected civil rights category. Now was the moment.[23] Griffiths argued that the new law would protect black women but not white women, and that was unfair to white women. Furthermore, she argued that the laws "protecting" women from unpleasant jobs were actually designed to enable men to monopolize those jobs, and that was unfair to women who were not allowed to try out for those jobs.[24] The amendment passed with the votes of Republicans and Southern Democrats. The final law passed with the votes of Republicans and Northern Democrats. Thus, as Justice William Rehnquist explained in Meritor Savings Bank v. Vinson, “The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of Civil Rights Act of 1964 the House of Representatives...the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’”[25] 81 Desegregation One of the most "damaging" arguments by the bill's opponents was that once passed, the bill would require forced busing to achieve certain racial quotas in schools.[26] Proponents of the bill, such as Emanuel Celler and Jacob Javits, said that the bill would not authorize such measures. Leading sponsor Hubert Humphrey wrote two amendments specifically designed to outlaw busing.[26] Humphrey said "if the bill were to compel it, it would be a violation [of the Constitution], because it would be handling the matter on the basis of race and we would be transporting children because of race."[26] While Javits said any government official who sought to use the bill for busing purposes "would be making a fool of himself," two years later the Department of Health, Education and Welfare said that Southern school districts would be required to meet mathematical ratios of students by busing.[26] Political repercussions The bill divided and engendered a long-term change in the demographics of both parties. President Johnson realized that supporting this bill would risk losing the South's overwhelming support of the Democratic Party. Both Attorney General Robert Kennedy and Vice President Johnson had pushed for the introduction of the civil rights legislation. Johnson told Kennedy aide Ted Sorensen that "I know the risks are great and we might lose the South, but those sorts of states may be lost anyway."[27] Senator Richard Russell, Jr. warned President Johnson that his strong support for the civil rights bill "will not only cost you the South, it will cost you the election."[28] Johnson, however, went on to win the 1964 election by one of the biggest landslides in American history. The South, which had started to vote President Johnson speaks to a television camera at the increasingly Republican beginning in the 1930s, continued that signing of the Civil Rights Act. trend, becoming the stronghold of the Republican party by the 1990s.[29] Political scientists Richard Johnston and Byron Schafer have argued that this development was based more on economics than on race.[30] Although majorities in both parties voted for the bill, there were notable exceptions. Republican senator Barry Goldwater of Arizona voted against the bill, remarking, "You can't legislate morality." Goldwater had supported previous attempts to pass Civil Rights legislation in 1957 and 1960 as well as the 24th Amendment outlawing the poll tax. The reason for his opposition to the 1964 bill was Title II, which he viewed as a violation of individual liberty. Most Democrats from the Southern states opposed the bill and led an unsuccessful 83-day filibuster, including Senators Albert Gore, Sr. (D-TN), J. William Fulbright (D-AR), and Robert Byrd (D-WV), who personally filibustered for 14 hours straight. Civil Rights Act of 1964 82 Major features of the Civil Rights Act of 1964 (The full text of the Act is available online [31].) Title I Barred unequal application of voter registration requirements. "It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited."' Title I did not eliminate literacy tests, which were one of the main methods used to exclude Black voters, other racial minorities, and poor Whites in the South, nor did it address economic retaliation, police repression, or physical violence against nonwhite voters. While the Act did require that voting rules and procedures be applied equally to all races, it did not abolish the concept of voter "qualification", that is to say, it accepted the idea that citizens do not have an automatic right to vote but rather might have to meet some standard beyond citizenship.[32] [33] Title II Outlawed discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; exempted private clubs without defining the term "private." Title III Prohibited state and municipal governments from denying access to public facilities on grounds of race, color, religion or national origin. Title IV Encouraged the desegregation of public schools and authorized the U.S. Attorney General to file suits to enforce said act. Title V Expanded the Civil Rights Commission established by the earlier Civil Rights Act of 1957 with additional powers, rules and procedures. Title VI Prevents discrimination by government agencies that receive federal funds. If an agency is found in violation of Title VI, that agency may lose its federal funding. General This title declares it to be the policy of the United States that discrimination on the ground of race, color, or national origin shall not occur in connection with programs and activities receiving Federal financial assistance and authorizes and directs the appropriate Federal departments and agencies to take action to carry out this policy. This title is not intended to apply to foreign assistance programs. Section 601 – This section states the general principle that no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. Section 602 directs each Federal agency administering a program of Federal financial assistance by way of grant, contract, or loan to take action pursuant to rule, regulation, or order of general applicability to effectuate the principle of section 601 in a manner consistent with the achievement of the objectives of the statute authorizing the assistance. In seeking the effect compliance with its requirements imposed under this section, an agency is authorized to Civil Rights Act of 1964 terminate or to refuse to grant or to continue assistance under a program to any recipient as to whom there has been an express finding pursuant to a hearing of a failure to comply with the requirements under that program, and it may also employ any other means authorized by law. However, each agency is directed first to seek compliance with its requirements by voluntary means. Section 603 provides that any agency action taken pursuant to section 602 shall be subject to such judicial review as would be available for similar actions by that agency on other grounds. Where the agency action consists of terminating or refusing to grant or to continue financial assistance because of a finding of a failure of the recipient to comply with the agency's requirements imposed under section 602, and the agency action would not otherwise be subject to judicial review under existing law, judicial review shall nevertheless be available to any person aggrieved as provided in section 10 of the Administrative Procedure Act (5 U.S.C. § 1009 [34]). The section also states explicitly that in the latter situation such agency action shall not be deemed committed to unreviewable agency discretion within the meaning of section 10. The purpose of this provision is to obviate the possible argument that although section 603 provides for review in accordance with section 10, section 10 itself has an exception for action "committed to agency discretion," which might otherwise be carried over into section 603. It is not the purpose of this provision of section 603, however, otherwise to alter the scope of judicial review as presently provided in section 10(e) of the Administrative Procedure Act. 83 Title VII Title VII of the Act, codified as Subchapter VI of Chapter 21 of title 42 of the United States Code, 42 U.S.C. § 2000e [35] [2] et seq., prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin (see 42 U.S.C. § 2000e-2 [36][37] ). Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin. An employer cannot discriminate against a person because of his interracial association with another, such as by an interracial marriage.[38] In very narrow defined situations an employer is permitted to discriminate on the basis of a protected trait where the trait is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise. To prove the bona fide occupational qualifications defense, an employer must prove three elements: a direct relationship between sex and the ability to perform the duties of the job, the BFOQ relates to the "essence" or "central mission of the employer's business," and there is no less-restrictive or reasonable alternative (United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 [39] (1991) 111 S.Ct. 1196). The Bona Fide Occupational Qualification exception is an extremely narrow exception to the general prohibition of discrimination based on sex (Dothard v. Rawlinson, 433 U.S. 321 [40] (1977) 97 S.Ct. 2720). An employer or customer's preference for an individual of a particular religion is not sufficient to establish a Bona Fide Occupational Qualification (Equal Employment Opportunity Commission v. Kamehameha School — Bishop Estate, 990 F.2d 458 (9th Cir. 1993)). Title VII allows for any employer, labor organization, joint labor-management committee, or employment agency to bypass the "unlawful employment practice" for any person involved with the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950.[41] There are partial and whole exceptions to Title VII for four types of employers: • Federal government; (Comment: The proscriptions against employment discrimination under Title VII are now applicable to the federal government under 42 U.S.C. Section 2000e-16 [42]) • Federally recognized Native American tribes • Religious groups performing work connected to the group's activities, including associated education institutions; • Bona fide nonprofit private membership organizations. The Equal Employment Opportunity Commission (EEOC) as well as certain state fair employment practices agencies (FEPAs) enforce Title VII (see 42 U.S.C. § 2000e-4 [43][37] ). The EEOC and state FEPAs investigate, Civil Rights Act of 1964 mediate, and may file lawsuits on behalf of employees. Every state, except Arkansas and Mississippi, maintains a state FEPA (see EEOC and state FEPA directory [44]). Title VII also provides that an individual can bring a private lawsuit. An individual must file a complaint of discrimination with the EEOC within 180 days of learning of the discrimination or the individual may lose the right to file a lawsuit. Title VII only applies to employers who employ 15 or more employees for 20 or more weeks in the current or preceding calendar year (42 U.S.C. § 2000e(b) [45]). In the late 1970s courts began holding that sexual harassment is also prohibited under the Act. Chrapliwy v. Uniroyal is a notable Title VII case relating to sexual harassment that was decided in favor of the plaintiffs. In 1986 the Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 [46] (1986), that sexual harassment is sex discrimination and is prohibited by Title VII. Same-sex sexual harassment has also been held in a unanimous decision written by Justice Scalia to be prohibited by Title VII (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 [47] (1998), 118 S.Ct. 998). Title VII has been supplemented with legislation prohibiting pregnancy, age, and disability discrimination (See Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act,[48] Americans with Disabilities Act of 1990). 84 Title VIII Required compilation of voter-registration and voting data in geographic areas specified by the Commission on Civil Rights. Title IX Title IX made it easier to move civil rights cases from state courts with segregationist judges and all-white juries to federal court. This was of crucial importance to civil rights activists who could not get a fair trial in state courts. Title IX of the Civil Rights Act of 1964 should not be confused with Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in federally-funded education programs and activities. Title X Established the Community Relations Service, tasked with assisting in community disputes involving claims of discrimination. Title XI Title XI gives the Jury rights to put any proceeding for criminal contempt arising under title II, III, IV, V, VI, or VII of the Civil Rights Act, on trial, and if convicted, can be fined no more than $1,000 or imprisoned for more than six months. Subsequent history The Constitutionality of the Civil Rights Act of 1964 was, at the time, in some dispute as it applied to the private sector. In the landmark Civil Rights Cases the United States Supreme Court had ruled that Congress did not have the power to prohibit discrimination in the private sector, thus stripping the Civil Rights Act of 1875 of much of its ability to protect civil rights [49]. Even today, the Supreme Court has struck down parts of civil rights laws on the grounds that the Fourteenth Amendment does not give Congress the power to prohibit private sector discrimination. In the late nineteenth and early twentieth century, the legal justification for voiding the Civil Rights Act of 1875, was part of a larger trend by members of the United States Supreme Court to invalidate most government regulations of the private sector, except when dealing with laws designed to protect traditional public morality. In the 1930s, during the New Deal, the majority of the Supreme Court justices gradually shifted their legal theory to allow for greater government regulation of the private sector under the commerce clause, thus paving the way for the Federal government to enact civil rights laws prohibiting both public and private sector discrimination on the basis of Civil Rights Act of 1964 the commerce clause. After the Civil Rights Act of 1964 was passed, the Supreme Court upheld the law's application to the private sector, on the grounds that Congress has the power to regulate commerce between the States. The landmark case, Heart of Atlanta Motel Inc. v. U.S., established the Constitutionality of the law, but it did not settle all of the legal questions surrounding the law. In a 1971 Supreme Court case regarding the gender provisions of the Act, the Court ruled that a company could not discriminate against a potential female employee because she had a preschool-age child unless they did the same with potential male employees.[19] A federal court overruled an Ohio state law that barred women from obtaining jobs which required the ability to lift 25 pounds and required women to take lunch breaks when men were not required to.[19] In Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, the United States Supreme Court decided that printing separate job listings for men and women was illegal, which ended that practice among the country's newspapers. The United States Civil Service Commission ended the practice among federal jobs which designated them "women only" or "men only."[19] In 1974, the Supreme Court also ruled that the San Francisco school district was violating non-English speaking students' rights under the 1964 act by placing them in regular classes rather than providing some sort of accommodation for them.[50] In 1975, a federal civil rights agency warned a Phoenix, Arizona school that its end-of-year father-son and mother-daughter baseball games were illegal according to the 1964 Civil Rights Act.[19] President Gerald Ford intervened, and the games were allowed to continue.[19] In 1977, the Supreme Court struck down state minimum height requirements for police officers as violating the Act; women usually could not meet these requirements.[19] 85 References [1] http:/ / clerk. house. gov/ library/ reference-files/ PPL_CivilRightsAct_1964. pdf [2] Wright, Susan (2005), The Civil Rights Act of 1964: Landmark Antidiscrimination Legislation, The Rosen Publishing Group, ISBN 1404204555 [3] "Transcript from the JFK library" (http:/ / www. jfklibrary. org/ Historical+ Resources/ Archives/ Reference+ Desk/ Speeches/ JFK/ 003POF03CivilRights06111963. htm). the JFK library.. 1963-06-11. . Retrieved 2010-06-06. [4] Civil Rights Act Passes in the House (http:/ / www. crmvet. org/ tim/ timhis64. htm#1964cra64h) ~ Civil Rights Movement Veterans [5] Reeves, Richard (1993), President Kennedy: Profile of Power, pp. 628-631 [6] 1963 Year In Review - Part 1: Transition to Johnson (http:/ / www. upi. com/ Audio/ Year_in_Review/ Events-of-1963/ Transition-to-Johnson/ 12295509434394-3/ ) [7] Cone, James H. (1991). Martin & Malcolm & America: A Dream or a Nightmare. p. 2. ISBN 0-88344-721-5. [8] "Major Features of the Civil Rights Act of 1964" (http:/ / www. congresslink. org/ print_basics_histmats_civilrights64text. htm). Congresslink.org. . Retrieved 2010-06-06. [9] "Civil Rights Act of 1964" (http:/ / www. spartacus. schoolnet. co. uk/ USAcivil64. htm). Spartacus.schoolnet.co.uk. . Retrieved 2010-06-06. [10] 1963 Year In Review – Part 1 – Civil Rights Bill (http:/ / www. upi. com/ Audio/ Year_in_Review/ Events-of-1963/ Civil-Rights-Bill/ 12295509434394-8/ ) United Press International, 1963 [11] Civil Rights Act — Battle in the Senate (http:/ / www. crmvet. org/ tim/ timhis64. htm#1964cra64s) ~ Civil Rights Movement Veterans [12] Civil Rights Filibuster Ended (http:/ / www. senate. gov/ artandhistory/ history/ minute/ Civil_Rights_Filibuster_Ended. htm) – United States Senate [13] Dallek, Robert (2004), Lyndon B. Johnson: Portrait of a President, p. 169 [14] King, Desmond (1995). Separate and Unequal: Black Americans and the US Federal Government. p. 311. [15] Jeong, Gyung-Ho; Gary J. Miller, Itai Sened (2009-03-14). "Closing The Deal: Negotiating Civil Rights Legislation" (http:/ / polisci. wustl. edu/ media/ faculty/ MidwestJMS. pdf). 67th Annual Conference of the Midwest Political Science Association (http:/ / www. mpsanet. org/ ). p. 29. . Retrieved 2009-11-04. [16] Freeman, Jo. "How 'Sex' Got Into Title VII: Persistent Opportunism as a Maker of Public Policy," Law and Inequality: A Journal of Theory and Practice, Vol. 9, No. 2, March 1991, pp 163–184. online version (http:/ / www. jofreeman. com/ lawandpolicy/ titlevii. htm) [17] Rosenberg, Rosalind (2008), Divided Lives: American Women in the Twentieth Century, pp. 187-88 [18] Gittinger, Ted and Fisher, Allen, LBJ Champions the Civil Rights Act of 1964, Part 2 (http:/ / www. archives. gov/ publications/ prologue/ 2004/ summer/ civil-rights-act-2. html), Prologue Magazine, The National Archives, Summer 2004, Vol. 36, No. 2 ("Certainly Smith hoped that such a divisive issue would torpedo the civil rights bill, if not in the House, then in the Senate.") Civil Rights Act of 1964 [19] Frum, David (2000). How We Got Here: The '70s. pp. 245–246, 249. ISBN 0465041957. [20] Dierenfield, Bruce J. "Conservative Outrage: the Defeat in 1966 of Representative Howard W. Smith of Virginia." Virginia Magazine of History and Biography 1981 89 (2): p. 194 [21] Gold, Michael Evan. A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth. Faculty Publications — Collective Bargaining, Labor Law, and Labor History. Cornell, 1981 (http:/ / digitalcommons. ilr. cornell. edu/ cgi/ viewcontent. cgi?article=1010& context=cbpubs) [22] Olson, Lynne (2001), Freedom's Daughters: The Unsung Heroines of the Civil Rights Movement, p. 360 [23] Rosenberg, Rosalind (2008), Divided Lives: American Women in the Twentieth Century, p. 187 notes that Smith had been working for years with two Virginia feminists on the issue. [24] Harrison, Cynthia (1989), On Account of Sex: The Politics of Women's Issues, 1945–1968, p. 179 [25] (477 U.S. 57, 63–64) [26] Frum, David (2000). How We Got Here: The '70s. pp. 251–252. [27] Kotz, Nick (2005), Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws that Changed America, p. 61. [28] Branch, Taylor (1998), Pillar of Fire, p. 187. [29] Brownstein, Ronald (May 23, 2009). "For GOP, A Southern Exposure" (http:/ / www. nationaljournal. com/ njmagazine/ cs_20090523_2195. php). National Journal. . Retrieved July 7, 2010. [30] Johnston, Richard and Shafer, Byron, The End of Southern Exceptionalism, (Harvard, 2006). [31] http:/ / www. ourdocuments. gov/ doc. php?flash=true& doc=97& page=transcript [32] Voting Rights (http:/ / www. crmvet. org/ tim/ timhis64. htm#1964vreffect) ~ Civil Rights Movement Veterans [33] "Major Features of the Civil Rights Act of 1964" (http:/ / www. congresslink. org/ print_basics_histmats_civilrights64text. htm). CongressLink. The Dirksen Congressional Center. . Retrieved March 14, 2010. [34] http:/ / www. law. cornell. edu/ uscode/ 5/ 1009. html [35] http:/ / www. law. cornell. edu/ uscode/ 42/ 2000e. html [36] http:/ / www. law. cornell. edu/ uscode/ 42/ 2000e-2. html [37] "Civil Rights Act of 1964 – CRA – Title VII – Equal Employment Opportunities – 42 US Code Chapter 21" (http:/ / finduslaw. com/ civil_rights_act_of_1964_cra_title_vii_equal_employment_opportunities_42_us_code_chapter_21). finduslaw. . Retrieved 2010-06-06. [38] Parr v. Woodmen of the World Life Insurance Company, 791 F.2d 888 (11th Cir. 1986). [39] http:/ / supreme. justia. com/ us/ 499/ 187/ case. html [40] http:/ / supreme. justia. com/ us/ 433/ 321/ case. html [41] http:/ / www. archives. gov/ education/ lessons/ civil-rights-act/ images/ act-06. jpg [42] http:/ / finduslaw. com/ civil_rights_act_of_1964_cra_title_vii_equal_employment_opportunities_42_us_code_chapter_21#17 [43] http:/ / www. law. cornell. edu/ uscode/ 42/ 2000e-4. html [44] http:/ / www. eeocoffice. com [45] http:/ / www. law. cornell. edu/ uscode/ 42/ 2000e(b). html [46] http:/ / supreme. justia. com/ us/ 477/ 57/ case. html [47] http:/ / supreme. justia. com/ us/ 523/ 75/ case. html [48] "Age Discrimination in Employment Act of 1967" (http:/ / finduslaw. com/ age_discrimination_in_employment_act_of_1967_adea_29_u_s_code_chapter_14). Finduslaw.com. . Retrieved 2010-06-06. [49] http:/ / chnm. gmu. edu/ courses/ 122/ recon/ civilrightsact. html [50] Frum, David (2000). How We Got Here: The '70s. p. 270. 86 Further reading • Branch, Taylor (1998), Pillar of Fire: America in the King Years 1963–65, New York: Simon & Schuster. • Brauer, Carl M., "Women Activists, Southern Conservatives, and the Prohibition of Sexual Discrimination in Title VII of the 1964 Civil Rights Act", 49 Journal of Southern History, February 1983. • Burstein, Paul (1985), Discrimination, Jobs and Politics: The Struggle for Equal Employment Opportunity in the United States since the New Deal, Chicago: University of Chicago Press. • Finley, Keith M. (2008), Delaying the Dream: Southern Senators and the Fight Against Civil Rights, 1938–1965, Baton Rouge: LSU Press. • Freeman, Jo. "How 'Sex' Got Into Title VII: Persistent Opportunism as a Maker of Public Policy" Law and Inequality: A Journal of Theory and Practice, Vol. 9, No. 2, March 1991, pp. 163–184. online version (http:// www.jofreeman.com/lawandpolicy/titlevii.htm) • Graham, Hugh (1990), The Civil Rights Era: Origins and Development of National Policy, 1960–1972, New York: Oxford U P. Civil Rights Act of 1964 • Harrison, Cynthia (1988), On Account of Sex: The Politics of Women's Issues 1945–1968, Berkeley, CA: U. California Press. • Jeong, Gyung-Ho, Gary J. Miller, and Itai Sened, “Closing the Deal: Negotiating Civil Rights Legislation,” American Political Science Review, 103 (Nov. 2009) • Loevy, Robert D. (1990), To End All Segregation: The Politics of the Passage of The Civil Rights Act of 1964, Lanham, MD: University Press of America. • Loevy, Robert D. ed. (1997), The Civil Rights Act of 1964: The Passage of the Law That Ended Racial Segregation, Albany, NY: State University of New York Press. • Loevy, Robert D. "A Brief History of the Civil Rights Act OF 1964," in David C. Kozak and Kenneth N. Ciboski, ed., The American Presidency (Chicago: Nelson Hall, 1985), pp. 411–419. online version (http://faculty1. coloradocollege.edu/~bloevy/CivilRightsActOf1964/) • Pedriana, Nicholas, and Stryker, Robin. "The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965-1971," American Journal of Sociology, Nov 2004, Vol. 110 Issue 3, pp 709–760 • Rodriguez, Daniel B. and Weingast, Barry R. "The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation", University of Pennsylvania Law Review, Vol. 151. (2003) • Warren, Dan R. (2008), If It Takes All Summer: Martin Luther King, the KKK, and States' Rights in St. Augustine, 1964, Tuscaloosa, AL: University of Alabama Press. • Whalen, Charles and Whalen, Barbara (1985), The Longest Debate: A Legislative History of the 1964 Civil Rights Act, Cabin John, MD: Seven Locks Press. • Woods, Randall B. (2006), LBJ: Architect of American Ambition, New York: Free Press, ch 22. 87 External links • Civil Rights bill. (http://www.congresslink.org/print_basics_histmats_civilrights64_doc7.htm) • Text of Civil Rights Act of 1964 – Title VII – 42 US Code Chapter 21 (Employment Discrimination) (http:// finduslaw.com/ civil_rights_act_of_1964_cra_title_vii_equal_employment_opportunities_42_us_code_chapter_21) • Martin Luther King's famous "I Have a Dream" speech, plus background including Civil Rights bill. (http:// usinfo.state.gov/usa/infousa/facts/democrac/38.htm) • 1963 March on Washington, civil rights including JFK death date. (http://www.abbeville.com/civilrights/ washington.asp) • Presidency book excerpt, the legislative history of this bill as it became an Act. (http://faculty1.coloradocollege. edu/~bloevy/CivilRightsActOf1964) • Background facts including enactment date. (http://usinfo.state.gov/usa/infousa/facts/democrac/39.htm) • Directory of EEOC offices, addresses, and hours of operation. (http://www.eeocoffice.com) • President Lyndon B. Johnson's Radio and Television Remarks Upon Signing the Civil Rights Bill (http://www. lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/640702.asp) • Civil Rights Movement Veterans (http://www.crmvet.org) • Law and higher education: Civil Rights Act of 1964 (http://lawhighereducation.com/ 29-civil-rights-act-of-1964.html) Lilly Ledbetter Fair Pay Act of 2009 88 Lilly Ledbetter Fair Pay Act of 2009 Lilly Ledbetter Fair Pay Act of 2009 Enacted by the Effective 111th United States Congress January 29, 2009 Citations Public Law Stat. 111-2 [1] 123 Stat. 5 (2009) Codification Act(s) amended Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967 Title(s) amended 29, 42 Legislative history [2] • • • • Introduced in the Senate as S. 181 by Barbara Mikulski on January 8, 2009 [3] Passed the Senate on January 22, 2009 ( 61-36 ) [4] Passed the House of Representatives on January 27, 2009 ( 250-177 ) Signed into law by President Barack Obama on January 29, 2009 Major amendments Relevant Supreme Court cases None The Lilly Ledbetter Fair Pay Act of 2009 is an Act of Congress enacted by the 111th United States Congress and signed into law by President Barack Obama on January 29, 2009. The bill amends the Civil Rights Act of 1964 stating that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new discriminatory paycheck. The law was a direct answer to the Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 [5] (2007), a U.S. Supreme Court decision holding that the statute of limitations for presenting an equal-pay lawsuit begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck, as a lower court had ruled. A first bill to amend the statutory limitations period and supersede the Ledbetter decision was introduced in the 110th United States Congress but was never enacted, as after having been passed by the House it failed to survive a cloture vote in the Senate due to the opposition of most of the Republican Senators. During the campaign for the 2008 elections, the Democrats criticized Republicans for defeating the 2007 version of the bill, citing Republican presidential candidate John McCain's opposition. Then-candidate Barack Obama supported the bill.[6] A new version of the bill was eventually re-introduced in the first session of the 111th United States Congress, obtaining this time the necessary support to pass cloture. The bill was then brought to the attention of the President Lilly Ledbetter Fair Pay Act of 2009 and became the first act of congress signed by the new President Obama since his assumption of office on January 20. 89 Court rulings The antecedents of the case were posed when Lilly Ledbetter, a production supervisor at a Goodyear tire plant in Alabama, filed an equal-pay lawsuit regarding pay discrimination under Title VII of the Civil Rights Act of 1964, six months before her early retirement in 1998. The courts gave opposite verdicts, first supporting the complainant and later opposing; in conclusion the complainant brought the case to the attention of the Supreme Court. The latter ruled in 2007 by a 5-4 majority vote that Ledbetter's complaint was time-barred because the discriminatory decisions relating to pay had been made more than 180 days prior to the date she filed her charge, as explained by Justice Samuel Alito. The minority position explained by Justice Ruth Bader Ginsburg proposed an interpretation according to which the law runs from the date of any paycheck that contains an amount affected by a prior discriminatory pay decision.[7] The Ledbetter decision was cited by federal judges in 300 cases before the LLFPA was passed. These cases involved not only Title VII of the Civil Rights Act, but also the Age Discrimination in Employment Act, Fair Housing Act, Patsy T. Mink Equal Opportunity in Education Act and Eighth Amendment to the Constitution.[8] The case had never received much attention before going to the Supreme Court, but the Court's ruling ignited legal groups on the left and Democrats that took action to transform the Ledbetter case into a rallying issue for the left, having activists seen in the figure of the complainant an ideal standard-bearer in their attempt to persuade the public that the Supreme Court was moving too far to the right.[9] Among the first to criticize the Court's decision was Marcia Greenberger, president of the National Women's Law Center, that saw in the ruling a "setback for women and a setback for civil rights" and called Ginsburg's opinion a "clarion call to the American people that this slim majority of the court is headed in the wrong direction." Debra Ness, president of the National Partnership for Women & Families, also condemned the decision, saying, “If employers can keep the discrimination hidden for a period of time, they can continue to discriminate without being held accountable.” On the other side, the majority's findings were applauded by the US Chamber of Commerce, that called it a "fair decision" that "eliminates a potential wind-fall against employers by employees trying to dredge up stale pay claims."[10] The Bill The House Democrats were fast to react, coming out on June 12 against the Supreme Court. Claiming lead from Justice Ruth Ginsburg's minority opinion, which invited the Congress to take action by amending the law, the Democrats announced their intention to intervene: House Majority Leader Steny Hoyer and Education and Labor Committee Chairman George Miller said that a bill was to be passed to avoid future court rulings in line with Ledbetter, clearly putting that "a key provision of the legislation will make it clear that discrimination occurs not just when the decision to discriminate is made, but also when someone becomes subject to that discriminatory decision, and when they are affected by that discriminatory decision, including each time they are issued a discriminatory paycheck", as said by Rep. Miller.[11] Ledbetter speaks during the second day of the 2008 Democratic National Convention in Denver, Colorado. Republicans immediately opposed the bill as drafted, with Education and Labor Committee ranking member Howard McKeon raising the issue that business executives would be held liable for actions taken by managers who weren't Lilly Ledbetter Fair Pay Act of 2009 leading the company anymore: "At the end of the day, such a loophole conceivably could allow a retiring employee to seek damages against a company now led by executives who had nothing to do with the initial act of discrimination".[11] The issue proved contentious also among lawyers: while the American Bar Association passed a resolution supporting the new bill, others such as Neal Mollen, argued that extending the term limit would put a strain on the chances of an adequate defense for the employers, as to defend themselves one "has to rely on documents and the memory of individuals, and neither of those is permanent. If a disappointed employee can wait for many years before raising a claim of discrimination ... he or she can wait out the employer, that is ensure that the employer effectively unable to offer any meaningful defense to the claim".[9] [11] Organizations that supported the bill include the: American Civil Liberties Union, AFL-CIO, American Federation of Teachers, National Education Association, American Rights at Work, American Library Association, People For the American Way, Leadership Conference on Civil Rights, National Employment Lawyers Association, Hadassah, National Women's Law Center, National Network to End Domestic Violence, Center for Inquiry - Washington DC American Association of University Women, Alliance for Justice, Legal Momentum, Bazelon Center for Mental Health Law, National Partnership for Women and Families, Coalition of Labor Union Women, Moms Rising, National Organization for Women, American Association of Retired Persons, Women's Voices, Women Vote Action Fund, 21st Century Democrats, 9to5, National Association of Working Women, the Religious Action Center of Reform Judaism,[12] and Women Employed.[13] Organizations that opposed the bill include the: U.S. Chamber of Commerce, Eagle Forum, Society for Human Resource Management, National Association of Manufacturers, American Bakers Association, College and University Professional Association for Human Resources, Associated Builders and Contractors, and American Housing & Lodging Association.[12] 90 Legislative history The bill (H.R. 2831 [14] and S. 1843 [15]) was defeated in April 2008 by Republicans in the Senate who cited the possibility of frivolous lawsuits in their opposition of the bill[16] and criticized Democrats for refusing to allow compromises.[17] The bill was re-introduced in the 111th Congress (as H.R. 11 [18] and S. 181 [19]) in January 2009. It passed in the House of Representatives with 247 votes in support and 171 against.[20] The vote was nearly President Obama signing the Act into law; to his right is the new law’s namesake, perfectly split along party lines, with only Lilly Ledbetter three Republicans voting in favor (Ed Whitfield of Kentucky, Don Young of Alaska and Chris Smith of New Jersey) and three Democrats voting nay (Travis Childers of Mississippi, Allen Boyd of Florida, and Parker Griffith of Alabama). The Senate voted 72 to 23 to invoke cloture on S. 181 on January 15, 2009.[21] (The vote to invoke cloture ends debate on a bill, and usually leads to a final vote within a few days.) The Lilly Ledbetter Fair Pay Act passed the Senate, 61-36, on January 22, 2009. The votes in favor included every Democratic senator (except Edward Kennedy of Massachusetts, who was absent from the vote because of health issues) and five Republican senators.[22] As president, Obama actively supported the bill. The official White House blog said: Lilly Ledbetter Fair Pay Act of 2009 President Obama has long championed this bill and Lilly Ledbetter's cause, and by signing it into law, he will ensure that women like Ms. Ledbetter and other victims of pay discrimination can effectively challenge unequal pay.[23] House Majority Leader Steny Hoyer announced that the House would vote on S.181 (the bill passed by the Senate) during the week of January 26, getting the bill to President Obama's desk sooner rather than later. On January 27, the House passed S.181 by a 250-177 margin. On January 29, Obama signed the bill into law. It was the first act he signed as president, and it fulfilled his campaign pledge to nullify Ledbetter v. Goodyear.[24] However, the fact that he signed it only two days after it was passed by the House brought him under criticism from papers such as the St. Petersburg Times which mentioned his campaign promise to give the public five days of notice to comment on legislation before he signed it. The White House through a spokesman answered that they would be "implementing this policy in full soon", and that currently they were "working through implementation procedures and some initial issues with the congressional calendar".[25] 91 References [1] http:/ / frwebgate. access. gpo. gov/ cgi-bin/ getdoc. cgi?dbname=111_cong_public_laws& docid=f:publ002. 111 [2] http:/ / thomas. loc. gov/ cgi-bin/ bdquery/ z?d111:SN00181:@@@S [3] http:/ / www. senate. gov/ legislative/ LIS/ roll_call_lists/ roll_call_vote_cfm. cfm?congress=111& session=1& vote=00014 [4] http:/ / clerk. house. gov/ evs/ 2009/ roll037. xml [5] http:/ / supreme. justia. com/ us/ 550/ 618/ case. html [6] Corey Dade (August 31, 2008). "Obama’s First Shot at Palin Focuses on Equal Pay" (http:/ / blogs. wsj. com/ washwire/ 2008/ 08/ 31/ obamas-first-shot-at-palin-focuses-on-equal-pay/ ). The Wall Street Journal. . [7] Grossman, Joanna (February 13, 2009). "The Lilly Ledbetter Fair Pay Act of 2009: President Obama's First Signed Bill Restores Essential Protection Against Pay Discrimination" (http:/ / writ. news. findlaw. com/ grossman/ 20090213. html). Writ. . Retrieved March 15, 2009. [8] Pear, Robert (January 5, 2009). "Justices' Ruling in Discrimination Case May Draw Quick Action by Obama" (http:/ / www. nytimes. com/ 2009/ 01/ 05/ us/ politics/ 05rights. html). New York Times. . Retrieved March 21, 2009. [9] Barnes, Robert (September 5, 2007). "Exhibit A in Painting Court as Too Far Right" (http:/ / www. washingtonpost. com/ wp-dyn/ content/ article/ 2007/ 09/ 04/ AR2007090401900. html). Washington Post. . Retrieved March 15, 2009. [10] Barnes, Robert (September 5, 2007). "Over Ginsburg's Dissent, Court Limits Bias Suits" (http:/ / www. washingtonpost. com/ wp-dyn/ content/ article/ 2007/ 05/ 29/ AR2007052900740. html). Washington Post. . Retrieved March 15, 2009. [11] Holland, Jesse J. (June 12, 2007). "House Dems Target Court's Pay Ruling" (http:/ / www. time. com/ time/ politics/ article/ 0,8599,1632164,00. html). Associated Press (Time). . Retrieved March 22, 2009. [12] "S. 181: Lilly Ledbetter Fair Pay Act of 2009" (http:/ / www. govtrack. us/ congress/ bill. xpd?bill=s111-181) [13] http:/ / edlabor. house. gov/ lilly-ledbetter-fair-pay-act/ index. shtml [14] http:/ / hdl. loc. gov/ loc. uscongress/ legislation. 110hr2831 [15] http:/ / hdl. loc. gov/ loc. uscongress/ legislation. 110s1843 [16] Hulse, Carl (April 24, 2008). "Republican Senators Block Pay Discrimination Measure" (http:/ / www. nytimes. com/ 2008/ 04/ 24/ washington/ 24cong. html?_r=2& sq=& oref=slogin). New York Times. . Retrieved May 7, 2010. [17] Montgomery, Lori (April 24, 2008). "Senate Republicans Block Pay Disparity Measure" (http:/ / www. washingtonpost. com/ wp-dyn/ content/ article/ 2008/ 04/ 23/ AR2008042301553. html). Washington Post. . Retrieved May 7, 2010. [18] http:/ / hdl. loc. gov/ loc. uscongress/ legislation. 111hr11 [19] http:/ / hdl. loc. gov/ loc. uscongress/ legislation. 111s181 [20] Pear, Robert (January 10, 2009). "House Passes 2 Measures on Job Bias" (http:/ / www. nytimes. com/ 2009/ 01/ 10/ us/ 10rights. html?hp). New York Times. . Retrieved May 7, 2010. [21] Senate roll call vote 4, 111th Congress, 1st Session (http:/ / www. senate. gov/ legislative/ LIS/ roll_call_lists/ roll_call_vote_cfm. cfm?congress=111& session=1& vote=00004) [22] U.S. Senate Roll Call Votes 111th Congress - 1st Session (http:/ / www. senate. gov/ legislative/ LIS/ roll_call_lists/ roll_call_vote_cfm. cfm?congress=111& session=1& vote=00014) [23] "Now Comes Lilly Ledbetter" (http:/ / www. whitehouse. gov/ now-comes-lilly-ledbetter/ ). Whitehouse.gov blog. January 25, 2009. . [24] http:/ / www. msnbc. msn. com/ id/ 28910789/ [25] "Barack Obama Campaign Promise No. 234: Allow 5 Days of Public Comment Before Signing Bills" (http:/ / www. politifact. com/ truth-o-meter/ promises/ promise/ 234/ allow-five-days-of-public-comment-before-signing-b/ ). St. Petersburg Times. February 4, 2009. . Employment discrimination law in the United States 92 Employment discrimination law in the United States In the United States, employment discrimination is prohibited by a collection of state and federal laws, as well as by ordinances of counties and municipalities. Only discrimination based on certain characteristics (protected categories) is illegal. The United States Constitution prohibits discrimination by federal and state governments. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law. Federal law prohibits discrimination in a number of departments, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers. Under Federal law, employers generally cannot discriminate against employees on the basis of: • Race[1] • Sex[1] [2] • Pregnancy[3] • • • • • • • • • Religion[1] National origin[1] Disability (physical or mental, including HIV status)[4] [5] Age (for workers over 40)[6] Military service or affiliation[7] Anticipated deployment with the Reserves or National Guard Bankruptcy or bad debts[8] Genetic information[9] Citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees)[10] Constitutional basis The United States Constitution does not directly address employment discrimination, but its prohibitions on discrimination by the federal government have been held to protect federal government employees. The Fifth Amendment to the United States Constitution and Fourteenth Amendment to the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth amendment has an explicit requirement that the federal government not deprive individuals of "life, liberty, or property", without due process of the law. It also contains an implicit guarantee that the Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. In the employment context, these Constitutional provisions would limit the right of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that government employees have a fair procedural process before they are terminated if the termination is related to a "liberty" (such as the right to free speech) or property interest. As both Due Process and Equal Protection Clauses are passive, the clause that empowers Congress to pass anti-discrimination bills (so they are not unconstitutional under Tenth Amendment) is Section 5 of Fourteenth Amendment. Employment discrimination or harassment in the private sector is not unconstitutional, because Federal and most State Constitutions do not expressly give their respective government the power to enact civil rights laws that apply to the private sector. The Federal government's authority to regulate a private business, including civil rights laws, stems from their power to regulate all commerce between the States. Some State Constitutions do expressly afford Employment discrimination law in the United States some protection from public and private employment discrimination, such as Article I of the California Constitution. However, most State Constitutions only address discriminatory treatment by the government, including a public employer. Absent of a provision in a State Constitution, State civil rights laws that regulate the private sector are generally Constitutional under the "police powers" doctrine or the power of a State to enact laws designed to protect public health, safety and morals. All States must adhere to the Federal Civil Rights laws, but States may enact civil rights laws that offer additional employment protection. For example, some State civil rights laws offer protection from employment discrimination on the basis of sexual orientation, gender identity or political affiliation, even through such forms of discrimination are not yet covered in federal civil rights laws. 93 Federal laws Federal law governing employment discrimination has developed over time. The Equal Pay Act amended the Fair Labor Standards Act in 1963. The Equal Pay Act prohibits employers and unions from paying different wages based on sex. It does not prohibit other discriminatory practices in hiring. It provides that where workers perform equal work in jobs requiring "equal skill, effort, and responsibility and performed under similar working conditions," they should be provided equal pay.[2] The Fair Labor Standards Act applies to employers engaged in some aspect of interstate commerce, or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce. Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII prohibits discrimination based on race, color, religion, sex or national origin. It makes it illegal for employers to discriminate based upon protected characteristics regarding terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants, and labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.[1] The Pregnancy Discrimination Act amended Title VII in 1978, specifying that unlawful sex discrimination includes discrimination based on pregnancy, childbirth, and related medical conditions.[3] A related statute, the Family and Medical Leave Act, sets requirements governing leave for pregnancy and pregnancy-related conditions.[11] The Age Discrimination in Employment Act (ADEA), enacted in 1968 and amended in 1978 and 1986, prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title VII, except that the ADEA protects workers in firms with 20 or more workers rather than 15 or more. An employee is protected from discrimination based on age if he or she is over 40. Since 1978, the ADEA has phased out and prohibited mandatory retirement, except for high-powered decision-making positions (that also provide large pensions). The ADEA contains explicit guidelines for benefit, pension and retirement plans.[6] The Rehabilitation Act of 1973 prohibits employment discrimination on the basis of disability by the federal government, federal contractors with contracts of more than $10,000, and programs receiving federal financial assistance.[12] It requires affirmative action as well as non-discrimination.[12] Section 504 requires reasonable accommodation, and Section 508 requires that electronic and information technology be accessible to disabled employees.[12] The Black Lung Benefits Act of 1973 prohibits discrimination by mine operators against miners who suffer from "black lung disease" (pneumoconiosis).[13] The Bankruptcy Reform Act of 1978 prohibits employment discrimination on the basis of bankruptcy or bad debts.[8] The Immigration Reform and Control Act of 1986 prohibits employers with more than three employees from discriminating against anyone (except an unauthorized immigrant) on the basis of national origin or citizenship Employment discrimination law in the United States status.[14] The Americans with Disabilities Act of 1990 (ADA) was enacted to eliminate discriminatory barriers against qualified individuals with disabilities, individuals with a record of a disability, or individuals who are regarded as having a disability. It prohibits discrimination based on a physical or mental handicap and requires employers to make reasonable accommodations for disabled workers. The type of discrimination prohibited is broader than that explicitly outlined by Title VII. The ADA also places an affirmative requirement on employers to reasonably accommodate a disabled employee in the performance of his or her job unless the employer can show that "undue hardship" will result. A qualified individual with a disability is a person who is "substantially limited" in one or more major life activities.[4] The Nineteenth Century Civil Rights Acts, amended in 1993, ensure all persons equal rights under the law and outline the damages available to complainants in actions brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the 1973 Rehabilitation Act.[15] [16] The Genetic Information Nondiscrimination Act of 2008 bars employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions.[9] The proposed Employment Non-Discrimination Act would ban discrimination on the basis of sexual orientation or gender identity.[17] 94 State law State statutes also provide extensive protection from employment discrimination. Some laws extend similar protection as provided by the federal acts to employers who are not covered by those statutes. Other statutes provide protection to groups not covered by the federal acts. Some state laws provide greater protection to employees of the state or of state contractors. The following table lists protected categories not included in federal law. Age is included as well, since federal law only covers workers over 40. State or territory Sexual orientation Gender identity Marital status Medical condition Political affiliation Military discharge status Age Familial status Public assistance status Alabama Alaska Use of lawful product [18] [20] [18] [20] [21] (40+) [19] (parenthood) (unknown age range) [21] [21] Arizona Arkansas California [22] [23] [24] [22] [23] (included under sex) [24] [24] [25] (40+) [24] Colorado [26] (included under sexual orientation) (unknown age range) (any lawful activity) [27] [25] [29] [27] Connecticut [28] (included under sex by ruling) (unknown age range) [28] [29] [31] Delaware [30] [30] (40+) [31] Employment discrimination law in the United States 95 [33] [33] "family responsibilities", parenthood under "marital status" District of Columbia [32] (gender identity or expression) (including domestic partnership) [34] (18+) [25] [33] [33] Florida [35] ? (in some cases under disability) [36] (unknown age range) [35] [36] Georgia [37] [37] [38] Hawaii (40-70) [39] [40] [39] (unknown age range) [39] Idaho Illinois [41] [43] [41] (included under sexual orientation) (40+) [42] [44] [44] ("unfavorable discharge from military service") (40+) [43] Indiana [44] (40-75) use of tobacco [45] [45] [47] [46] Iowa [48] [48] (18+ or legal adult) [49] Kansas Kentucky [50] [52] [50] [52] (18+) (40+) [51] [53] (smoker/nonsmoker) [53] [56] Louisiana [54] [54] "sickle cell trait" [55] [57] (40+) Maine [58] (included under sexual orientation) (unknown age range) [59] [58] Maryland [60] [60] [61] (unknown age range) [61] Massachusetts [62] (under sex or disability) [64] (>40) [63] [62] Michigan Minnesota [65] [67] [65] (included under sexual orientation) [66] [68] [66] (over age of majority) [68] [68] [25] Mississippi [69] [69] Employment discrimination law in the United States 96 Missouri [70] [70] [71] Montana Nebraska Nevada New Hampshire New Jersey (and civil "atypical union status, hereditary and domestic cellular or blood trait" partnership status) New Mexico (40-70) [67] [73] [75] [77] [67] [73] [75] [77] [72] [74] [72] (40+) (40+) [74] [76] [76] [78] (which ages?) [78] [79] (affectional or sexual orientation) (gender identify or expression) [79] (18-70) [79] [25] [79] [79] [80] [25] ("spousal "serious affiliation") medical (unknown age range) [81] condition" [81] [81] New York [82] ? (in some cases under sex) [82] "political activities" (18+) [82] [84] [83] [84] (sickle cell or hemoglobin C trait) North Carolina [85] [85] [87] [86] [89] [89] North Dakota [88] [88] [89] (40+) ("lawful activity") [89] Ohio Oklahoma Oregon Pennsylvania [90] [92] [94] [96] [98] [90] [92] [25] [96] (gender identity or expression) (40+) (40+) [91] [93] [95] [97] [99] use of tobacco [95] (18+) (40+) (40+) [95] Rhode Island [25] South Carolina South Dakota Tennessee [100] [100] (40+) [101] [102] [103] [102] [103] (40+) [104] Texas [105] [105] [106] (40+) Employment discrimination law in the United States 97 Utah [107] (protected in Salt Lake City only) [107] (protected in Salt Lake City only) [109] (40+) [108] [108] Vermont [110] [25] [111] Virginia (18+) [112] [112] [113] Washington (40+) [114] (included under sexual orientation) [115] Hepatitis C [116] [117] [115] [118] (40+) [25] West Virginia [119] [119] [120] Wisconsin (40+) [121] [121] [122] [123] [124] Wyoming (40+) [125] [126] [126] [127] Guam (40+) [128] [129] Puerto Rico (political affiliation or ideology) (legal working age+) (40+) [130] US Virgin Islands [130] [131] (unknown age range) [132] State or territory Sexual orientation Gender identity Marital status Medical condition Political affiliation Military discharge status Age Familial status Public assistance status Use of lawful product In addition, • • • • District of Columbia - matriculation, personal appearance [33] Michigan - height, weight [66] Texas - Participation in emergency evacuation order [133] Vermont - Place of birth [111] Government employees Employees of federal and state governments have additional protections against employment discrimination. The Civil Service Reform Act of 1978 prohibits discrimination in federal employment on the basis of conduct that does not affect job performance. The Office of Personnel Management has interpreted this as prohibiting discrimination on the basis of sexual orientation.[134] In June 2009, it was announced that the interpretation would be expanded to include gender identity.[135] Employment discrimination law in the United States 98 Exceptions Bona fide occupational qualifications Employers are generally allowed to consider characteristics that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQ). For example, a manufacturer of men's clothing may lawfully advertise for male models. Religious organizations Some anti-discrimination laws make exceptions for religious organizations. Religious organizations may be exempted entirely for certain categories, or may be allowed exceptions for certain types of positions. Military The United States Army excludes women from specialties, positions, and units (battalion size or smaller) that routinely engage in direct combat.[136] Unintentional discrimination Employment practices that do not directly discriminate against a protected category may still be illegal if they produce a disparate impact on members of a protected group. Title VII of the Civil Rights Act of 1964 prohibits employment practices that have a discriminatory impact, unless they are related to job performance. The Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer's lack of discriminatory intent.[137] Height and weight requirements have been identified by the EEOC as having a disparate impact on national origin minorities.[138] However, when defending against a disparate impact claim that alleges age discrimination, an employer does not need to demonstrate necessity; rather, it must simply show that its practice is reasonable. Enforcing entities The Equal Employment Opportunity Commission (EEOC) interprets and enforces the Equal Pay Act, Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Title I and V of the Americans With Disabilities Act, Sections 501 and 505 of the Rehabilitation Act, and the Civil Rights Act of 1991.[139] The Commission was established by the Civil Rights Act of 1964.[140] Its enforcement provisions are contained in section 2000e-5 of Title 42,[141] and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.[142] Persons wishing to file suit under Title VII and/or the ADA must exhaust their administrative remedies by filing an administrative complaint with the EEOC prior to filing their lawsuit in court.[143] The Office of Federal Contract Compliance Programs enforces Section 503 of the Rehabilitation Act, which prohibits discrimination against qualified individuals with disabilities by federal contractors and subcontractors.[144] Under Section 504 of the Rehabilitation Act, each agency has and enforces its own regulations that apply to its own programs and to any entities that receive financial assistance.[12] The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits discrimination based on citizenship status or national origin.[145] Employment discrimination law in the United States State Fair Employment Practices (FEP) offices take the role of the EEOC in administering state statutes.[143] 99 References [1] Title VII of the Civil Rights Act of 1964 (http:/ / www. eeoc. gov/ policy/ vii. html) [2] The Equal Pay Act of 1963 (http:/ / www. eeoc. gov/ policy/ epa. html) [3] Pregnancy Discrimination Act (http:/ / www. eeoc. gov/ abouteeoc/ 35th/ thelaw/ pregnancy_discrimination-1978. html) [4] AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED (http:/ / www. ada. gov/ pubs/ adastatute08. htm) [5] Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS (http:/ / www. ada. gov/ pubs/ hivqanda. txt) [6] The Age Discrimination in Employment Act of 1967 (http:/ / www. eeoc. gov/ policy/ adea. html) [7] Uniformed Services Employment and Reemployment Rights Act of 1994 (http:/ / www. usdoj. gov/ crt/ military/ statute. htm) [8] 11 U.S.C.  § 525 (http:/ / www. law. cornell. edu/ uscode/ 11/ 525. html) [9] Pub.L. 110-233 (http:/ / www. gpo. gov/ fdsys/ pkg/ PLAW-110publ233/ content-detail. html), 122 Stat. 881, enacted May 21, 2008 [10] 8 U.S.C.  § 1324b (http:/ / www. law. cornell. edu/ uscode/ 8/ 1324b. html) [11] Family and Medical Leave Act (http:/ / www. dol. gov/ esa/ whd/ fmla/ ) [12] A Guide to Disability Rights Laws (http:/ / www. ada. gov/ cguide. htm#anchor65610) [13] 30 USC Sec. 938 (http:/ / uscode. house. gov/ uscode-cgi/ fastweb. exe?getdoc+ uscview+ t29t32+ 1359+ 39+ + (black l) [14] Summary of Immigration Reform and Control Act of 1986 (http:/ / thomas. loc. gov/ cgi-bin/ bdquery/ z?d099:SN01200:@@@L& summ2=m& |TOM:/ bss/ d099query. html) [15] § 1981. Equal rights under the law (http:/ / www. law. cornell. edu/ uscode/ html/ uscode42/ usc_sec_42_00001981----000-. html) [16] § 1981a. Damages in cases of intentional discrimination in employment (http:/ / www. law. cornell. edu/ uscode/ html/ uscode42/ usc_sec_42_00001981---a000-. html) [17] Employment Non-Discrimination Act (ENDA) (http:/ / www. thetaskforce. org/ issues/ nondiscrimination/ ENDA_main_page) [18] Alabama Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 711. htm) [19] Code of Alabama 25-1-21 (http:/ / alisondb. legislature. state. al. us/ acas/ CodeOfAlabama/ 1975/ 25-1-21. htm) [20] Alaska Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 995. htm) [21] AS 18.80.220. Unlawful Employment Practices; Exception. (http:/ / touchngo. com/ lglcntr/ akstats/ Statutes/ Title18/ Chapter80/ Section220. htm) [22] Arizona Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1224. htm) [23] Arkansas Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 965. htm) [24] Fair Employment and Housing Act Description (http:/ / www. dfeh. ca. gov/ DFEH/ Publications/ fehaDescr. aspx) [25] Scope of Explicitly Transgender-Inclusive Discrimination Laws (http:/ / www. thetaskforce. org/ downloads/ reports/ fact_sheets/ TI_antidisc_laws_7_08. pdf), [26] Colorado Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 812. htm) [27] Colorado Civil Rights Division 2008 Statutes (http:/ / www. dora. state. co. us/ civil-rights/ Statute_Regulations_Rules/ 2008Statutes. pdf) [28] Connecticut Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 826. htm) [29] Chapter 814c Sec. 46a-60 (http:/ / www. cga. ct. gov/ 2007/ pub/ Chap814c. htm#Sec46a-60. htm) [30] Delaware Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 848. htm) [31] Delaware Code Title 19 Chapter 7 Subchapter 2 (http:/ / delcode. delaware. gov/ title19/ c007/ sc02/ index. shtml) [32] D.C. Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 837. htm) [33] District of Columbia Human Rights Act of 1977; Prohibited Acts of Discrimination (http:/ / ohr. dc. gov/ ohr/ frames. asp?doc=/ ohr/ lib/ ohr/ pro_acts_of_discrimination. pdf) [34] District of Columbia Human Rights Act of 1977; Table of Contents, General Provisions (http:/ / ohr. dc. gov/ ohr/ lib/ ohr/ toc_general_provisions. pdf) [35] Florida Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 863. htm) [36] Florida Statutes Chapter 760.10 (http:/ / www. leg. state. fl. us/ Statutes/ index. cfm?App_mode=Display_Statute& Search_String=& URL=Ch0760/ SEC10. 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(http:/ / www. moga. mo. gov/ statutes/ C200-299/ 2130000010. HTM) [72] Montana Code Annotated 49-2-303 (http:/ / data. opi. state. mt. us/ bills/ mca/ 49/ 2/ 49-2-303. htm) [73] Nebraska Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1230. htm) [74] Nebraska Fair Employment Practices Act (http:/ / www. neoc. ne. gov/ laws/ fepatext. htm) [75] Nevada Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1286. htm) [76] NRS 613:310-350 (http:/ / leg. state. nv. us/ NRS/ NRS-613. html#NRS613Sec310) [77] New Hampshire Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1331. htm) [78] New Hampshire RSA 354-A:7 (http:/ / gencourt. state. nh. us/ rsa/ html/ XXXI/ 354-A/ 354-A-7. htm) [79] New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) (http:/ / lis. njleg. state. nj. us/ cgi-bin/ om_isapi. dll?clientID=44462171& Depth=2& depth=2& expandheadings=on& headingswithhits=on& hitsperheading=on& infobase=statutes. nfo& record={36FC}& softpage=Document42) [80] New Mexico Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1525. htm) [81] New Mexico Code Section 28-1-7 (http:/ / law. justia. com/ newmexico/ codes/ nmrc/ jd_28-1-7-bcb3. html) [82] New York State Executive Law, Article 15, Section 296 (http:/ / www. dhr. state. ny. us/ law_and_regulations_unlawful_discriminatory. html) [83] New York Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1497. htm) [84] New York Labor Law Section 201-d - Discrimination Against The Engagement In Certain Activities (http:/ / law. onecle. com/ new-york/ labor/ LAB0201-D_201-D. html) [85] North Carolina Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1142. htm) [86] N.C. Gen. Stat. § 95‑28.1 (http:/ / www. ncleg. net/ EnactedLegislation/ Statutes/ HTML/ BySection/ Chapter_95/ GS_95-28. 1. html) [87] N.C. Gen. 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HTM) [100] South Carolina Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1813. htm) [101] South Carolina Human Affairs Law (http:/ / www. state. sc. us/ schac/ lawi. htm) [102] South Dakota Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1801. htm) [103] Tennessee Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1801. htm) [104] Tennessee Human Rights Act (http:/ / www. state. tn. us/ humanrights/ THRC_related_statutes. pdf) [105] Texas Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1772. htm) [106] Texas Labor Code Chapter 21 (http:/ / www. statutes. legis. state. tx. us/ Docs/ LA/ htm/ LA. 21. htm) [107] Utah Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1800. htm) [108] Salt Lake City adopts pro-gay statutes -- with LDS Church support (http:/ / www. sltrib. com/ news/ ci_13758070) [109] Utah Code 34A-5-106 (http:/ / www. le. utah. gov/ UtahCode/ getCodeSection?code=34A-5-106) [110] Vermont Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1184. htm) [111] Vermont Fair Employment Practices Act (http:/ / hrc. vermont. gov/ sites/ hrc/ files/ pdfs/ laws/ fepa. pdf) [112] Virginia Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1200. htm) [113] Virginia Human Rights Act (http:/ / leg1. state. va. us/ cgi-bin/ legp504. exe?000+ cod+ 2. 2-2639) [114] Washington Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1165. htm) [115] RCW 49.60.180 Unfair practices of employers. (http:/ / apps. leg. wa. gov/ RCW/ default. aspx?cite=49. 60. 180) [116] RCW 49.60.172 Unfair practices with respect to HIV or hepatitis C infection. (http:/ / apps. leg. wa. gov/ RCW/ default. aspx?cite=49. 60. 172) [117] RCW 49.60.174 Evaluation of claim of discrimination — Actual or perceived HIV or hepatitis C infection. (http:/ / apps. leg. wa. gov/ RCW/ default. aspx?cite=49. 60. 174) [118] RCW 49.44.090 Unfair practices in employment because of age of employee or applicant — Exceptions. (http:/ / apps. leg. wa. gov/ RCW/ default. aspx?cite=49. 44. 090) [119] West Virginia Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1135. htm) [120] West Virginia Human Rights Act (http:/ / www. wvf. state. wv. us/ wvhrc/ HRC ACT. pdf) [121] Wisconsin Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1149. htm) [122] Wis. Stats. Chapter 111.36 (http:/ / www. legis. state. wi. us/ statutes/ Stat0111. pdf) [123] Wis. Stats. 111.355 (http:/ / www. legis. state. wi. us/ statutes/ Stat0111. pdf) [124] Wis. Stats. 111.33 (http:/ / www. legis. state. wi. us/ statutes/ Stat0111. pdf) [125] Wis. Stats. 111.35 (http:/ / www. legis. state. wi. us/ statutes/ Stat0111. pdf) [126] Wyoming Non-Discrimination Law (http:/ / www. hrc. org/ issues/ workplace/ 1112. htm) [127] Wyoming Code 27-9-105 (http:/ / 159. 238. 91. 226/ labor/ statutes/ 27-9-105. doc) [128] 22 Guam Code Ann. Chapter 3 (http:/ / www. justice. gov. gu/ CompilerofLaws/ GCA/ 22gca/ 22gc003. PDF) [129] 22 Guam Code Ann. Chapter 5 (http:/ / www. justice. gov. gu/ CompilerofLaws/ GCA/ 22gca/ 22gc005. PDF) [130] Puerto Rico Laws 29-I-7-146 (http:/ / www. michie. com/ puertorico/ lpext. dll/ prcode/ 1a7b8/ 1a7ba/ 1a93d/ 1a979) [131] Puerto Rico Laws PR 29-I-7-151 (http:/ / www. michie. com/ puertorico/ lpext. dll/ prcode/ 1a7b8/ 1a7ba/ 1a93d/ 1a9a6?fn=document-frame. htm& f=templates& 2. 0#) [132] Virgin Islands Code on Employment Discrimination § 451 (http:/ / michie. com/ virginislands/ lpext. dll/ vicode/ a309/ a8f4/ a903?fn=document-frame. htm& f=templates& 2. 0#) [133] EMPLOYMENT DISCRIMINATION FOR PARTICIPATING IN EMERGENCY EVACUATION (http:/ / www. statutes. legis. state. tx. us/ Docs/ LA/ htm/ LA. 22. htm) [134] Addressing Sexual Orientation Discrimination In Federal Civilian Employment: A Guide to Employee's Rights (http:/ / www. opm. gov/ er/ address2/ Guide04. asp) [135] New Protections for Transgender Federal Workers (http:/ / www. nytimes. com/ 2009/ 06/ 24/ us/ 24transgender. html) [136] Assessing the Assignment Policy for Army Women (http:/ / www. rand. org/ pubs/ monographs/ 2007/ RAND_MG590-1. pdf) [137] GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971) (http:/ / caselaw. lp. findlaw. com/ scripts/ getcase. pl?court=US& vol=401& invol=424) [138] Shaping Employment Discrimination Law (http:/ / www. eeoc. gov/ abouteeoc/ 35th/ 1965-71/ shaping. html) [139] Federal Equal Employment Opportunity (EEO) Laws (http:/ / www. eeoc. gov/ abouteeo/ overview_laws. html) [140] Pre 1965: Events Leading to the Creation of EEOC (http:/ / www. eeoc. gov/ abouteeoc/ 35th/ pre1965/ index. html) [141] § 2000e–5. Enforcement provisions (http:/ / www. law. cornell. edu/ uscode/ 42/ usc_sec_42_00002000---e005-. html) [142] PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY (http:/ / www. access. gpo. gov/ nara/ cfr/ waisidx_03/ 29cfr1614_03. html) [143] Filing a Charge of Employment Discrimination (http:/ / www. eeoc. gov/ charge/ overview_charge_filing. html) [144] The Rehabilitation Act of 1973, Section 503 (http:/ / www. dol. gov/ compliance/ laws/ comp-rehab. htm) [145] An Overview of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (http:/ / www. usdoj. gov/ crt/ osc/ htm/ WebOverview2005. htm) 101 Employment discrimination law in the United States 102 External links • Directory of federal and state anti-discrimination agencies (http://www.eeocoffice.com) • Job Discrimination Questions and Answers (CT) (http://www.ctnla.org/job-employment-discrimination) Equal Rights Amendment The Equal Rights Amendment (ERA) was a proposed amendment to the United States Constitution. The ERA was originally written by Alice Paul and, in 1923, it was introduced in the Congress for the first time. In 1972, it passed both houses of Congress, but failed to gain ratification before its June 30, 1982 deadline. Text Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification.[1] [2] History Before 1972 Although the Nineteenth Amendment had prohibited the denial of the right to vote because of a person's sex, Alice Paul, a suffragist leader, argued that this right alone would not end remaining vestiges of legal discrimination based upon sex. Paul drafted the Equal Rights Amendment and, in 1923, presented it as the "Lucretia Mott Amendment" at the celebration of the 75th anniversary of the 1848 Seneca Falls Convention and the Declaration of Sentiments.[3] Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation. The National Woman's Party took the ERA to Congress in the 1920s, where Senator Charles Curtis, a future Vice President, and Representative Daniel R. Anthony, Jr.—Susan B. Anthony's nephew, both Kansas Republicans, introduced it for the first time as Senate Joint Resolution No. 21 on December 10, 1923, and as House Joint Resolution No. 75 on December 13, 1923, respectively. Though the ERA was introduced in every Congressional session between 1923 and 1970, it almost never reached the floor of either the Senate or the House for a vote — instead, it was usually "bottled up" in committee. Exceptions occurred in 1946, when it was defeated in the Senate by a vote of 38 to 35 and, in 1950 and 1953, when it was passed by the Senate with the Hayden Rider, making it unacceptable to ERA supporters.[4] [5] The Hayden Rider said: The provisions of this article shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex. In 1958, President Dwight Eisenhower asked a joint session of Congress to pass the Equal Rights Amendment, the first President to show such a level of support for the amendment. However, whenever the ERA was proposed the Hayden Rider was added; this would make the amendment unacceptable to the National Woman's Party, who would then ask that the ERA be withdrawn. The Republican Party included support of the ERA in its platform beginning in 1940, renewing the plank every four years until 1980.[6] The ERA was strongly opposed by the American Federation of Labor and other labor unions, who feared the amendment would invalidate protective labor legislation for women. ERA was also opposed by Eleanor Roosevelt and most New Dealers, who either contended that women needed government protection, that Equal Rights Amendment men did not or otherwise did not want the only labor protections abolished before they could be extended to men as well, as it would likely be a blow to unions and the movement for labor laws. The amendment was opposed by most northern Democrats, who aligned themselves with the anti-ERA labor unions and supported by southern Democrats and most Republicans.[6] In 1944, the Democrats made the divisive issue to include the ERA in their platform, but the Democratic Party did not become united in favor of the amendment until Congressional passage in 1972.[6] The main support base for the ERA until the late 1960s was among wealthy, conservative women. The League of Women Voters, formerly the National American Woman Suffrage Association, opposed the Equal Rights Amendment until 1972 fearing the loss of protective labor legislation. Despite this, the amendment kept in line with the views of women's rights advocated by early feminists like Lucretia Mott, Elizabeth Cady Stanton, and Susan B. Anthony. In 1961, feminists encouraged the newly elected President John F. Kennedy to support the ERA. Though Kennedy was elected on a pro-ERA platform and took a position favoring the amendment in a letter to Mrs. Emma Guffey Miller, the chairman of the National Woman's Party, he did not speak out in favor of the amendment due to his ties to labor.[7] Esther Peterson, a feminist and the highest-ranking woman in the Kennedy administration, publicly opposed the Equal Rights Amendment and referred to the National Woman's Party members, most of them aging suffragettes, as the "Old Frontier". As a concession to pro-ERA feminists, Kennedy appointed a blue-ribbon commission on women, the President's Commission on the Status of Women, to investigate the problem of sex discrimination in the United States. The Commission was chaired by Eleanor Roosevelt who dropped her opposition to the ERA in the 1950s to support the United Nations Charter and the United Nations Declaration of Human Rights which had similar language. In the early 1960s, Roosevelt announced that, due to unionization, she believed the ERA was no longer a threat to women as it once may have been and told supporters that they could have the amendment if they wanted it. The Commission helped win passage of the Equal Pay Act of 1963 which banned sex discrimination in pay in a number of professions (it would later be amended in the early 1970s, at the demand of feminists, to include the professions it initially excluded) and secured an Executive Order from Kennedy eliminating sex discrimination in the civil service. The commission, made largely of anti-ERA feminists with ties to labor, proposed remedies to the widespread sex discrimination it unearthed and in its 1963 final report held that on the issue of equality "a constitutional amendment need not now be sought".[8] The commission established state and local commissions on the status of women and arranged for follow-up conferences in the years to come. The following year, the Civil Rights Act of 1964 banned workplace discrimination not only on the basis of race, religion, and national origin, but also on the basis of sex, thanks to the lobbying of Alice Paul and Coretta Scott King and the skillful politicking of Representative Martha W. Griffiths of Michigan. A new women's movement gained ground in the later 1960s as a result of a variety of factors: Betty Friedan's bestseller The Feminine Mystique; the network of women's rights commissions formed by Kennedy's national commission; the frustration over women's social and economic status; and anger over the lack of government and Equal Employment Opportunity Commission enforcement of the Equal Pay Act and Title VII the Civil Rights Act. In June 1966, at the Third National Conference on the Status of Women in Washington, D.C., Betty Friedan and a group of activists frustrated with the lack of government action in enforcing Title VII of the Civil Rights Act formed the National Organization for Women to act as an "NAACP for women", demanding full equality for American women. In 1967, at the urging of Alice Paul, NOW endorsed the Equal Rights Amendment. The decision caused some union Democrats and social conservatives to leave the organization and form the Women's Equity Action League (within a few years WEAL also endorsed the ERA), but the move to support the amendment benefited NOW, bolstering its membership. By the late 1960s NOW had made significant political and legislative victories and was gaining enough power to become a major lobbying force. In 1969, newly elected Representative Shirley Chisholm of New York gave her famous speech "Equal Rights for Women" on the floor of Congress. 103 Equal Rights Amendment 104 1972 approval by Congress In February 1970, NOW picketed the United States Senate, a subcommittee of which was holding hearings on a Constitutional amendment to lower the voting age to eighteen. Feminists disrupted the hearings demanding a hearing on the Equal Rights Amendment and won a meeting with Senators to discuss the ERA. That August millions of American women held a nationwide Women's Strike for Equality to demand full social, economic, and political equality. Said Friedan of the strike, "All kinds of women's groups all over the country will be using this week on August 26 particularly, to point out those areas in women's life which are still not addressed. For example, a question of equality before the law; we are interested in the Equal Rights Amendment." In Washington, D.C., protesters presented a sympathetic Senate leadership with a petition for the Equal Rights Amendment at the U.S. Capitol. In 1970, Congressional hearings began on the ERA. Representative Martha Griffiths of Michigan achieved success on Capitol Hill with her House Joint Resolution No. 208, which was adopted by the House on October 12, 1971, with a vote of 354 yeas, 24 nays and 51 not voting.[9] Griffiths's joint resolution was then adopted by the Senate on March 22, 1972, with a vote of 84 yeas, 8 nays and 7 not voting.[10] The Senate version passed after an amendment proposed by Senator Sam Ervin of North Carolina that would exempt women from the draft failed.[6] Representative Martha Griffiths stands outside the United States Capitol after ERA passes the House for the first time in 1970. It would be rejected from the Senate in 1971 and passed in the House again later that same year, that time to be approved by the Senate in 1972, sending it to the states for ratification. The ERA was then presented by the 92nd Congress to the state legislatures for ratification with a seven-year deadline for ratification. President Richard Nixon immediately endorsed the ERA's approval.[6] In the state legislatures and the courts The initial pace of state legislative ratifications was rapid with 30 ratifications by the end of 1973. Then it slowed with three ratifications during 1974, one in 1975, none in 1976 and one in 1977. The 92nd Congress, in proposing the ERA, had set a seven-year time limit for its ratification and by the time of the March 22, 1979 deadline 35 of the required 38 states had ratified. In 1978, the Congress passed a controversial bill by a simple majority (not a two-thirds supermajority) that extended the ratification deadline by 39 months.[11] During this disputed extension, no new states ratified or rescinded. Equal Rights Amendment 105 Five states rescinded their ratifications before the deadline.[12] Here are details rescissions:[13] of the five 1. Idaho, which ratified the ERA on March 24, 1972, by approving Senate Joint Resolution No. 133, adopted House Concurrent Resolution No. 10 on February 8, 1977, to rescind that ratification. 2. Kentucky, which ratified the ERA on June 26, 1972, by approving Ratified  Ratified, then rescinded  Not ratified, but approved by one house of state House (Joint) Resolution No. 2, legislature  Not ratified adopted House (Joint) Resolution No. 20 on March 17, 1978, to rescind that ratification; the Lieutenant Governor of Kentucky, Thelma Stovall, who was acting as Governor in the Governor's absence, issued a veto of the rescinding resolution, but the U.S. Constitution provides no role for a governor (nor for the President of the United States) in the constitutional amendment process. 3. Nebraska's unicameral legislature ratified the ERA on March 29, 1972 by approving the erroneously worded Legislative Resolution No. 83 and then approving the correctly worded Legislative Resolution No. 86, adopted Legislative Resolution No. 9 on March 15, 1973, to rescind only the aforementioned Legislative Resolution No. 83. This could mean that Nebraska remains officially in the "ratified" column, but appears to have been understood at the time as a full rescission of ratification.[14] 4. Tennessee, which ratified the ERA on April 4, 1972, by approving House Joint Resolution No. 371, adopted Senate Joint Resolution No. 29 on April 23, 1974, to rescind that ratification. 5. South Dakota, where lawmakers ratified the ERA on February 5, 1973, by approving Senate Joint Resolution No. 1, adopted Senate Joint Resolution No. 2 on March 1, 1979, stipulating that the ERA's opportunity for ratification—by any state of the Union—would expire on March 22, 1979; furthermore, Senate Joint Resolution No. 2 made clear that South Dakota's own ratification of the ERA would only be valid up until March 22, 1979, and that any activities transpiring after that date would be considered by South Dakota to be null and void. At various times, in eight of the 15 non-ratifying states, at least one chamber of the legislature approved the ERA, those eight states being: 1. Florida, where its House of Representatives voted 91-4 to ratify on March 24, 1972, a second time 62-58 on April 10, 1975, a third time 66-53 on May 17, 1979, and a fourth time 60-58 on June 21, 1982. . 2. Illinois, where the Senate voted 30-21 to ratify in May 1972, and the House of Representatives voted 113-62 to ratify on May 1, 1975, and a second time 76-41 on May 21, 2003. At various times, votes were conducted in both chambers of the Illinois General Assembly on the question of ratifying the ERA, and while most members voted in favor of ratification, the results were often less than the three-fifths supermajority vote required by the Illinois Constitution. 3. Louisiana, where the Senate voted 25-13 to ratify on June 7, 1972. 4. Missouri, where its House of Representatives voted 82-75 to ratify on February 7, 1975. 5. Nevada, where the Assembly voted 27-13 to ratify on February 17, 1975, and Senate voted 11-10 to ratify on February 8, 1977. 6. North Carolina, where its House of Representatives voted 61-55 to ratify on February 9, 1977. 7. Oklahoma, where its Senate voted to ratify the ERA on March 23, 1972, by a voice vote. 8. South Carolina, where its House of Representatives voted 83-0 to ratify the ERA on March 22, 1972. Equal Rights Amendment 9. Virginia, where its Senate voted 24-16 to ratify the ERA on February 7, 2011. [15] In Idaho v. Freeman, the United States District Court for the District of Idaho ruled that the rescissions — all of which occurred before the original 1979 ratification deadline — were valid. According to research by Professor Jules B. Gerard, professor of law at Washington University in St. Louis, of the 35 legislatures that passed ratification resolutions, 24 explicitly referred to the 1979 deadline.[16] The court also ruled that the extension of the ratification deadline was unconstitutional. The National Organization for Women appealed both rulings. In NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court declared the entire matter moot on the grounds that the 1972 ERA was dead with or without either the rescissions or the purported deadline extension.[17] Since 1995, ratification resolutions were introduced, but failed to win approval in Arizona, Arkansas, Florida, Illinois, Mississippi, Missouri, Oklahoma, and Virginia.[18] [19] 106 Extension of ratification deadline In 1978—as the 1979 deadline approached—the 95th Congress adopted House Joint Resolution No. 638 (H. J. Res. 638), by Representative Elizabeth Holtzman of New York, which purported to extend the ERA's ratification deadline to June 30, 1982.[20] H. J. Res. 638 received less than two-thirds of the vote in both the House of Representatives and the Senate; for that reason, it was deemed necessary by ERA supporters that H. J. Res. 638 be transmitted to then President Jimmy Carter for signature as a safety precaution. Carter signed the joint resolution, though he questioned on procedural grounds the propriety of his doing so. No additional states ratified the ERA during that extra period of slightly more than three years. On June 18, 1980, a resolution in the Illinois House of Representatives resulted in a vote of 102-71 in favor, but Illinois required a three-fifths majority on constitutional amendments and so the measure failed by five votes. The closest the ERA came to gaining an additional ratification between the original deadline of March 22, 1979 and the revised June 30, 1982, expiration date was when it was approved by the Florida House of Representatives on June 21, 1982. In President Carter signing the extension 1982, seven female ERA supporters went on a hunger strike and seventeen chained themselves to the door of the Illinois senate chamber; none of this resulted in any state ratifications.[21] In the final week before the deadline, that ratifying resolution was defeated in the Florida Senate by a vote of 16 yeas and 22 nays. Even if Florida had ratified the ERA, the proposed amendment would still have been two states short of the required 38 (seven states short if the rescissions are valid). On December 23, 1981, a United States District Court ruled that the ERA's deadline extension was unconstitutional and that a state legislature may rescind its prior ratification of a proposed amendment to the Constitution.[22] The case was appealed to the Supreme Court of the United States. The Administrator of General Services claimed that the required number of states (38) had not ratified the amendment even if the deadline extension was valid and the rescissions were invalid: "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here."[23] The Supreme Court agreed and ordered the case dismissed as moot on October 4, 1982,[24] thereby recognizing that the ERA had failed to win ratification, but did not issue a ruling on the merits of either the deadline extension issue or the rescission issue in this case. Equal Rights Amendment 107 Shift in political attitudes The political momentum changed during the late 1970s and throughout the 1980s. At the 1980 Republican National Convention, the Republican Party platform was amended to qualify its support for the ERA. The most prominent opponent of the ERA was Phyllis Schlafly, a conservative Republican.[6] Critchlow and Stachecki argue that public opinion in key states shifted against the ERA as opponents, operating on the local and state levels, won over the public to their side. The state legislators in battleground states followed public opinion in defeating the ERA. Many ERA supporters blamed their defeat on sinister undemocratic special forces, especially the insurance industry and right-wing organizations, suggesting they funded an opposition that subverted the democratic process and the will of the pro-ERA majority.[25] They argued that while the public face of the anti-ERA movement was Phyllis Schlafly and her STOP ERA organization, there were other important groups in the opposition as well, such as the powerful National Council of Catholic Women and (until 1973) the AFL–CIO labor unions. Critchlow and Stachecki say the anti-ERA movement was based on strong support among Southern whites, evangelical Christians, Mormons, Orthodox Jews, and Roman Catholics, including both men and women.[26] State constitutions Twenty-one states have a version of the ERA in their state constitutions. Sixteen of those states ratified the federal ERA, while five did not.[27] Ratified the federal ERA • • • • • • • • Alaska California Colorado Connecticut Hawaii Iowa Maryland • • • • • • • Montana New Hampshire New Jersey New Mexico Pennsylvania Texas Washington Wyoming Massachusetts • Did not ratify the federal ERA • • • • • Florida Illinois Louisiana Utah Virginia Three-state strategy The three-state strategy is an argument made by some ERA supporters that the earlier 35 state ratifications are still valid and therefore only three more are needed in order to add the ERA to the Constitution, without Congress resubmitting it to state lawmakers. Since 1994, proponents of the three-state strategy have promoted ratification resolutions in the legislatures of most of the 15 states that never ratified the ERA approved by Congress in 1972. These attempts have met stiff resistance—some opponents characterize the measures as "resurrection resolutions"—and no legislature has approved one. The three-state strategy was publicly unveiled at a press conference held in Washington, D.C., in December 1993. According to an Associated Press report, "a coalition of women's groups," operating under the name "ERA Summit," planned "to ask Congress to nullify 1982 deadline for ratification."[28] Early the following year, Representative Robert E. Andrews, Democrat from New Jersey, introduced a resolution in the House of Representatives to require Equal Rights Amendment that "when the legislatures of an additional three states ratify the Equal Rights Amendment, the House of Representatives shall take any legislative action necessary to verify the ratification of the Equal Rights Amendment as a part of the Constitution."[29] No action was taken on the resolution. A 1997 William and Mary Journal of Women and the Law article by three law students explained the legal rationale for the "three-state strategy":[30] 1. The 35 ratifications from state legislatures during the 1970s remain valid; 2. Rescissions of prior ratifications are not constitutional; 3. The 1978 extension of the ERA's deadline demonstrates that Congress can amend previously established deadlines; and 4. The Twenty-seventh Amendment's more than 202 year ratification period set a standard of "sufficiently contemporaneous"—a term used during the U.S. Supreme Court's 1921 ruling in Dillon v. Gloss—giving Congress the power to set time limits on constitutional amendments. Dillon v. Gloss was later modified by Coleman v. Miller, a decision also cited as a basis for the three state strategy. The article further reasoned that because Article V of the Constitution gives the Congress the power to propose amendments to the Constitution—including changing aspects of the ratification process itself—that if three additional states ratify the ERA, the Congress has the power to deem the ERA properly ratified and duly added to the Constitution. In 1996, the Library of Congress's Congressional Research Service issued a report that said, "There is no precedent for Congress promulgating an amendment based on state ratifications adopted after a ratification deadline has expired. However, proponents of this course cite as possible precedent the ratification activity of the states regarding the 27th Amendment... proponents of the ERA might wish to adopt a strategy of urging its ratification by state legislatures because their actions might prompt this or a future Congress to proclaim the amendment had been ratified." CRS stressed that it "takes no position on any of the issues."[31] On June 21, 2009, the National Organization for Women resolved to support both the three-state strategy and any strategy to submit a new ERA to the states for ratification.[32] On July 7, 2009, at a press conference outside the U.S. Capitol to announce the reintroduction of the ERA in Congress, activists supporting the three-state strategy distributed a flyer opposing reintroduction, saying "this is not the time to start over and ignore the work ERA advocates have already done."[33] Opponents of the three-state strategy point out that the 1789 resolution proposing what is now the Twenty-seventh Amendment did not contain a deadline for ratification. This amendment was ratified in 1992, more than 202 years after its passage by Congress.[34] On February 6, 2011, the Senate of Virginia approved a measure to ratify the Equal Rights Amendment. It is less likely that the Virginia House of Delegates, where similar resolutions have never progressed to a vote, will also approve it.[35] 108 Subsequent congressional action The amendment has been reintroduced in every session of Congress since 1982. Senator Ted Kennedy (D-MA) championed it in the Senate during the 99th Congress through the 110th Congress. Senator Robert Menendez (D-NJ) introduced the amendment symbolically at the end of the 111th Congress and has supported it in the 112th Congress. In the House of Representatives, Carolyn B. Maloney (D-NY) has sponsored it since the 105th Congress,[36] most recently in May 2011.[37] In 1983, the ERA passed through House committees with the same text as in 1972; however, it failed by six votes to achieve the necessary two-thirds vote on the House floor. That was the last time that the ERA received a floor vote in the Congress.[38] Equal Rights Amendment At the start of the 112th Congress on January 6, 2011, Senator Menendez, along with Representatives Maloney, Jerrold Nadler and Gwen Moore, held a press conference advocating for the Equal Rights Amendment's adoption.[39] On March 8, 2011, the 100th Anniversary of International Women's Day, Representative Tammy Baldwin (D-WI) introduced legislation (H.J.Res 47) to remove the Congressionally imposed deadline for ratification of the Equal Rights Amendment.[40] Bill co-sponsors include Representatives Robert Andrews (D-NJ), Jackie Speier (D-CA), Luis Gutierrez (D-IL), Chellie Pingree (D-ME) and Debbie Wasserman Schultz (D-FL).[41] 109 References [1] Volume 86, United States Statutes At Large (pages 1523–1524) [2] "Constitutional Amendments Not Ratified" (http:/ / www. house. gov/ house/ Amendnotrat. shtml). United States House of Representatives. . Retrieved 2007-09-30. [3] Alice Paul bio 3 (http:/ / www. alicepaul. org/ alicep3. htm) [4] Conversations with Alice Paul: Woman Suffrage and the Equal Rights Amendment (http:/ / content. cdlib. org/ view?docId=kt6f59n89c& brand=calisphere& doc. view=entire_text) [5] What's in a Name? Does it matter how the Equal Rights Amendment is worded? (http:/ / www. jofreeman. com/ lawandpolicy/ eraname. htm) [6] Frum, David (2000). How We Got Here: The '70s. New York, New York: Basic Books. pp. 245–248. ISBN 0465041957. [7] John F. Kennedy: Letter to Mrs. Emma Guffey Miller, Chairman of the National Woman's Party (http:/ / www. presidency. ucsb. edu/ ws/ index. php?pid=74146) [8] Public Women, Public Words: A ... - Google Books (http:/ / books. google. com/ books?id=EDd2aNCoGlYC& pg=PA251& lpg=PA251& dq="constitutional+ amendment+ need+ not+ now+ be+ sought"& source=bl& ots=txsOWNjj6W& sig=b55amnN8ymqI08VTvRVibgjmXE0& hl=en& ei=ZFu5S_iAK4L98AaWqYzfBw& sa=X& oi=book_result& ct=result& resnum=3& ved=0CAsQ6AEwAg#v=onepage& q="constitutional amendment need not now be sought"& f=false) [9] 117 Congressional Record 35815 [10] 118 Congressional Record 9598 [11] Equal Rights Amendment - Extension of ratification deadline (http:/ / www. experiencefestival. com/ a/ Equal_Rights_Amendment_-_Extension_of_ratification_deadline/ id/ 1367020) [12] Technically, in South Dakota, one of the five, the legislature passed a measure that said its assent would last only until March 22, 1979. [13] Information derived from "The Equal Rights Amendment: myths and realities" authored by Orrin G. Hatch, published 1983. [14] "Retraction Issue Crucial to Equal Rights Bill" (http:/ / news. google. com/ newspapers?id=AsAMAAAAIBAJ& sjid=MWADAAAAIBAJ& pg=7123,2017809& dq=equal+ rights+ amendment+ nebraska). St. Petersburg Times. March 23, 1973. . [15] Helderman, Rosalind (February 7, 2011). "Va. Senate approves resolution to ratify Equal Rights Amendment" (http:/ / voices. washingtonpost. com/ virginiapolitics/ 2011/ 02/ virginia_senate_approves_resol. html). The Washington Post. . [16] Letter to House Judiciary Committee, June 14, 1978 [17] Text of NOW v. Idaho (http:/ / www. eagleforum. org/ era/ now-v-idaho. html) [18] Will, George F. (February 13, 1994). "Night of the Living Dead Amendment" (http:/ / www. nrlc. org/ Federal/ era/ GeorgeWillERALivingDead. pdf) (PDF). Washington Post via National Right to Life Committee. . Retrieved 2009-08-14. [19] Francis, Roberta W.. "Frequently Asked Questions" (http:/ / www. equalrightsamendment. org/ faq. htm). Alice Paul Institute. . Retrieved 2009-08-14. [20] Volume 92, United States Statutes At Large, page 3799 [21] From suffrage to the Senate: an ... - Google Books (http:/ / books. google. com/ books?id=Si6ZVqdOqIgC& pg=PA244& lpg=PA244& dq=equal+ rights+ amendment+ hunger+ strike+ seven& source=bl& ots=ztoJERc-nK& sig=P43_zNyquQ1Z6Acy8qK82vvkeqU& hl=en& ei=ddG2TfqJHIT00gG_s8HyDw& sa=X& oi=book_result& ct=result& resnum=9& ved=0CEwQ6AEwCA#v=onepage& q=equal rights amendment hunger strike seven& f=false) [22] Idaho v. Freeman (http:/ / www. nrlc. org/ Federal/ era/ IdahovFreeman. pdf), U.S. District Court for the District of Idaho, Civ. No. 79-1097, 529 F. Supp. 1107, December 23, 1981 [23] Memorandum of Gearld P. Carmen, Administrator of General Services (http:/ / www. nrlc. org/ Federal/ era/ ERASupremeCourtDeclaresDead1982sg. pdf), July 1982. [24] Order from Office of the Clerk, Supreme Court of the United States (http:/ / www. nrlc. org/ Federal/ era/ ERASupremeCourtDeclaresDead1982sg. pdf), October 3, 1982. [25] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered," (2008), pp. 157-8 [26] Critchlow and Stachecki, "The Equal Rights Amendment Reconsidered," (2008), pp. 160 [27] "Ratification Status in the States and State ERAs" League of Women Voters, Fairfax Area, via Internet Archive, March 2004 (http:/ / web. archive. org/ web/ */ http:/ / www. lwv-fairfax. org/ pdf_folder/ era_ratifications. pdf); the 21: AK, CA, CO, CT, HI, IA, MD, MA, MT, NH, NJ, NM, PA, TX, WA and WY; the 5: FL, IL, LA, UT and VA. [28] "New strategy adopted to revive ERA (http:/ / www. nrlc. org/ Federal/ era/ ERAnewthreestatestrategyAP1993. pdf)," by Kim I. Mills, Associated Press, as it appeared in the Sacramento (Ca.) Bee, December 12, 1993 Equal Rights Amendment [29] Text of H. Res. 432 (http:/ / www. nrlc. org/ Federal/ era/ ERAthreestateAndrewsResolution1994. pdf), 103rd Congress, 2nd Session, May 23, 1994. [30] Allison Held, Sheryl L. Herndon, and Danielle M. Stager; The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, William & Mary Journal of Women and the Law (Vol. 3, Issue 1, Spring 1997), 113-136. Article and Summary (http:/ / www. equalrightsamendment. org/ viability. htm) [31] "Memorandum: Equal Rights Amendment: Ratification Issues", by David C. Huckabee. Specialist in American National Government, Government Division, The Library of Congress, Congressional Research Service. March 18, 1996 [32] "2009 National NOW Conference Resolutions: Equal Rights Amendment" (http:/ / www. now. org/ organization/ conference/ resolutions/ 2009. html). National Organization for Women. June 21, 2009. . Retrieved 2009-08-14. [33] "3 State Flyer Against Maloney" (http:/ / www. nrlc. org/ Federal/ ERA/ 3StateFlyerAgainstMaloneyERA0709. pdf) (PDF). National Right to Life Committee. July 2009. . Retrieved 2009-08-17. [34] "Frequently Asked Questions" (http:/ / www. eraflorida. org/ era/ faq. cfm). ERA Florida (Mediawise). . Retrieved 2009-08-14. [35] "Va. Senate approves resolution to ratify Equal Rights Amendment" (http:/ / voices. washingtonpost. com/ virginiapolitics/ 2011/ 02/ virginia_senate_approves_resol. html). The Washington Post. . [36] "Facts About the ERA" (http:/ / maloney. house. gov/ documents/ women/ era/ AUGUST 12 Facts About the ERA in the 111th Congress. pdf) (PDF). United States House of Representatives. . Retrieved 2009-08-20. [37] "Rep. Carolyn Maloney Continues Push For Equal Rights Amendment" (http:/ / newyork. cbslocal. com/ 2011/ 05/ 23/ rep-carolyn-maloney-continues-push-for-equal-rights-amendment/ ). CBS News. May 23, 2011. . Retrieved 11 June 2011. [38] Women and politics: an international perspective By Vicky Randall (http:/ / books. google. com/ books?id=RD3wqORd9jMC& pg=PA308& lpg=PA308& dq=1983+ "equal+ rights+ amendment"+ "six+ votes"& source=bl& ots=Lz_WK1Sgkj& sig=NPMx_gOnHO4VAM84GnBZ3dKtrb8& hl=en& ei=wahJTcuCKIWclge_7Lj6Dw& sa=X& oi=book_result& ct=result& resnum=5& ved=0CDYQ6AEwBA#v=onepage& q=1983 "equal rights amendment" "six votes"& f=false) [39] Maloney, Carolyn (January 6, 2011). "As Constitution is read aloud, Maloney, Menendez, Nadler, Moore cite need for Equal Rights Amendment" (http:/ / maloney. house. gov/ index. php?option=com_content& task=view& id=2250& Itemid=61). http:/ / maloney. house. gov. . Retrieved 2 February 2011. [40] "U.S. Rep. Baldwin: Seeks to speed ratification of Equal Rights Amendment" (http:/ / www. wispolitics. com/ index. iml?Article=229427). http:/ / www. wispolitics. com. . Retrieved 2011-03-08. [41] "NEW BILL RE-OPENS DRIVE FOR EQUAL RIGHTS AMENDMENT" (http:/ / www. united4equality. com/ ). United 4 Equality. . Retrieved 2011-03-08. 110 Further reading • Baldez, Lisa; Epstein, Lee; Martin, Andrew D. (2006). "Does the U.S. Constitution Need an Equal Rights Amendment?". Journal of Legal Studies 35 (1): 243–283. doi:10.1086/498836. • Bradley, Martha S. (2005). Pedestals and Podiums: Utah Women, Religious Authority, and Equal Rights. Salt Lake City, UT: Signature Books. ISBN 1560851899. • Critchlow, Donald T. (2005). Phyllis Schlafly and Grassroots Conservatism: A Woman's Crusade. Princeton, NJ: Princeton University Press. ISBN 0691070024. • Critchlow, Donald T., and Cynthia L. Stachecki. "The Equal Rights Amendment Reconsidered: Politics, Policy, and Social Mobilization in a Democracy," Journal of Policy History Volume 20, Number 1, 2008 online (http:// muse.jhu.edu/journals/journal_of_policy_history/v020/20.1.critchlow.html) • Lee, Rex E. (1980). A Lawyer Looks at the Equal Rights Amendment. Provo, UT: Brigham Young University Press. ISBN 0842518835. • Mansbridge, Jane J. (1986). Why We Lost the ERA. Chicago: University of Chicago Press. ISBN 0226503585. • McBride, Genevieve G. (2005). "'Forward' Women: Winning the Wisconsin Campaign for the Country's First ERA, 1921)". In Peter Watson Boone (ed.). The Quest for Social Justice III. Milwaukee, WI: UW-Milwaukee. ISBN 1879281260. • Nicholson, Zoe Ann (2004). The Hungry Heart - A Woman's Fast for Justice. Newport Beach, CA: Lune Soleil Press. ISBN 0972392831. Equal Rights Amendment 111 External links • Alice Paul Institute (http://www.equalrightsamendment.org/) • United4Equality (http://www.united4equality.com/) • Eagle Forum (http://www.eagleforum.org/era/) 112 Americas American Convention on Human Rights American Convention on Human Rights Signed Location Effective Condition Parties 22 November 1969 San José, Costa Rica 18 July 1978 11 ratifications 24 The American Convention on Human Rights (also known as the Pact of San José) is an international human rights instrument. It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969. It came into force after the eleventh instrument of ratification (that of Grenada) was deposited on 18 July 1978. The bodies responsible for overseeing compliance with the Convention are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, both of which are organs of the Organization of American States (OAS). Content and purpose According to its preamble, the purpose of the Convention is "to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man." Chapter I establishes the general obligation of the states parties to uphold the rights set forth in the Convention to all persons under their jurisdiction, and to adapt their domestic laws to bring them into line with the Convention. The 23 articles of Chapter II give a list of individual civil and political rights due to all persons, including the right to life "in general, from the moment of conception",[1] to humane treatment, to a fair trial, to privacy, to freedom of conscience, freedom of assembly, freedom of movement, etc. The single article in Chapter III deals with economic, social, and cultural rights. The somewhat cursory treatment given to this issue here was expanded some ten years later with the Protocol of San Salvador (see below). Chapter IV describes those circumstances in which certain rights can be temporarily suspended, such as during states of emergency, and the formalities to be followed for such suspension to be valid. Chapter V, with a nod to the balance between rights and duties enshrined in the earlier American Declaration of the Rights and Duties of Man, points out that individuals have responsibilities as well as rights. Chapters VI, VII, VIII, and IX contain provisions for the creation and operation of the two bodies responsible for overseeing compliance with the Convention: the Inter-American Commission, based in Washington, D.C., United American Convention on Human Rights States, and the Inter-American Court, headquartered in San José, Costa Rica. Chapter X deals with mechanisms for ratifying the Convention, amending it or placing reservations in it, or denouncing it. Various transitory provisions are set forth in Chapter XI.'' 113 Additional Protocols In the ensuing years, the states parties to the American Convention have supplemented its provisions with two additional protocols. The first, the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (more commonly known as the "Protocol of San Salvador"), was opened for signature in the city of San Salvador, El Salvador, on 17 November 1988. It represented an attempt to take the inter-American human rights system to a higher level by enshrining its protection of so-called second-generation rights in the economic, social, and cultural spheres. The protocol's provisions cover such areas as the right to work, the right to health, the right to food, and the right to education. It came into effect on 16 November 1999 and has been ratified by 14 nations (see below).[2] The second, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, was adopted at Asunción, Paraguay, on 8 June 1990. While Article 4 of the American Convention had already placed severe restrictions on the states' ability to impose the death penalty – only applicable for the most serious crimes; no reinstatement once abolished; not to be used for political offenses or common crimes; not to be used against those aged under 18 or over 70, or against pregnant women – signing this protocol formalizes a state's solemn commitment to refrain from using capital punishment in any peacetime circumstance. To date it has been ratified by 11 nations (see below).[3] Ratifications As of 2010, 24 of the 35 OAS's member states have ratified the Convention[4] : American Convention on Human Rights 114 Country Argentina Barbados Bolivia Brazil Chile Colombia Costa Rica Dominica Ratification date 14 August 1984 5 December 1981 20 June 1979 9 July 1992 8 August 1990 28 May 1973 2 March 1970 3 June 1993 1st additional protocol 30 June 2003 2nd additional procotol 18 June 2008 12 July 2006 8 August 1996 31 July 1996 4 August 2008 10 October 1997 9 September 1999 30 March 1998 Dominican Republic 21 January 1978 Ecuador El Salvador Grenada Guatemala Haiti Honduras Jamaica Mexico Nicaragua Panama Paraguay Peru Suriname Uruguay Venezuela 8 December 1997 20 June 1978 14 July 1978 27 April 1978 14 September 1977 5 September 1977 19 July 1978 2 March 1981 25 September 1979 8 May 1978 18 August 1989 12 July 1978 28 October 1992 28 May 1997 17 May 1995 8 March 1996 28 June 2007 24 March 1999 27 June 1991 31 October 2000 30 May 2000 2 February 1993 4 May 1995 5 February 1998 12 December 1987 28 February 1990 26 March 1985 23 June 1977 21 December 1995 8 February 1994 24 August 1992 Trinidad and Tobago suspended its ratification on 26 May 1998 (effective 26 May 1999) over the death penalty issue. The treaty is open to all OAS member states, although to date it has not been ratified by Canada or several of the English-speaking Caribbean nations; the United States signed it in 1977 but has not proceeded with ratification. Canada did at one point seriously consider ratification, but has decided against it, despite being in principle in favour of such a treaty. The ACHR, having been largely drafted by the predominantly Roman Catholic nations of Latin America, contains pro-life provisions, specifically, Article 4.1: “ Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No [5] one shall be arbitrarily deprived of his life. ” This conflicts with the current legality of abortions in Canada. Although Canada could ratify the convention with a reservation with respect to abortion (as did Mexico[6] ), that would contradict Canada's stated opposition to the making of reservations to human rights treaties. Another solution would be for the other states to remove the anti-abortion provisions, but that is unlikely to occur due to strong opposition to abortion in those countries. American Convention on Human Rights 115 Notes [1] Article 4(1). To understand the breadth of this statement see Controversial Conceptions: The Unborn in the American Convention on Human Rights (http:/ / papers. ssrn. com/ sol3/ papers. cfm?abstract_id=1776922) [2] Additional Protocol to the American Convention On Human Rights in the Area of Economic, Social, and Cultural Rights ("Protocol of San Salvador") (http:/ / www. oas. org/ juridico/ english/ sigs/ a-52. html) [3] Protocol to the American Convention on Human Rights to Abolish the Death Penalty (http:/ / www. oas. org/ juridico/ english/ Sigs/ a-53. html) [4] American Convention on Human Rights ("Pact of San José") (http:/ / www. oas. org/ juridico/ english/ sigs/ b-32. html) [5] To understand the breadth of this statement see Controversial Conceptions: The Unborn in the American Convention on Human Rights (http:/ / papers. ssrn. com/ sol3/ papers. cfm?abstract_id=1776922) [6] Basic Documents: Ratifications of the Convention (http:/ / www. cidh. org/ Basicos/ English/ Basic4. Amer. Conv. Ratif. htm) External links • American Convention on Human Rights (text) (http://www.cidh.org/Basicos/English/Basic3.American Convention.htm) • Inter-American Commission on Human Rights (http://www.cidh.org) • Inter-American Court of Human Rights (http://www.corteidh.or.cr/) Anti-discrimination laws in Brazil Anti-discrimination laws in Brazil are present in the Constitution of Brazil,[1] in the Labour law,[2] in the Child and Adolescent law,[3] in the Ageing law,[4] in the Penal Code.[5] The Brazilian Constitution prohibits all forms of discrimination (Age, Race, Color, National origin,, Disability, Religion, Sex, Marital status, Political affiliation, Pregnancy, Citizenship) by federal and state governments and the country's population.[6] Anti-discrimination laws based on Sexual orientation around the world.   Anti-discrimination laws  Homosexuality illegal  Unknown/Ambiguous Constitution Constitutional preamble Preamble: "We, the representatives of the Brazilian people, assembled in the National Constituent Assembly to institute a Democratic State for the purpose of ensuring the exercise of social and individual rights, liberty, security, well being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, based on social harmony and committed, in the internal and international spheres, to the peaceful solution of disputes, promulgate, under the protection of God, this Constitution of the Federative Republic of Brazil." Anti-discrimination laws in Brazil Constitutional state principles Article 1: The Federative Republic of Brazil, formed by the indissoluble union of States and Municipalities, as well as the Federal District, is a legal Democratic State and is founded on: I. sovereignty; II. citizenship; III. the dignity of the individual; IV. the social values of work and of free enterprise; V. political pluralism. Constitutional state objectives Article 3: The fundamental objectives of the Federation Republic of Brazil are: I. to build a free, just and solidarity society; II. to guarantee national development; III. to eradicate poverty and marginal living conditions and to reduce social and regional inequalities; IV. to promote the well being of all, without prejudice as to origin, race, sex, color, age, and any other forms of discrimination. Constitutional rights and guarantees Article 5: All persons are equal before the law, without any distinction whatsoever, and Brazilians and foreigners resident in Brazil are assured of inviolability of the right of life, liberty, equality, security, and property. 116 Labour law Discriminatory pratices Article 1: It is prohibited the adoption of discriminatory practices and for the purpose of limiting access to the employment relationship, or its maintenance by reason of sex, origin, race, color, marital status, family status or age, except in this case the chances of child protection provided for in paragraph XXXIII art. 7 of the Federal Constitution. Penality Article 2: Constitute a crime the following discriminatory practices: I - the requirement for testing, examination, investigation, report, certificate, statement or any other procedure relating to sterilization or pregnancy status; II - the adoption of any measure, an initiative of the employer who configure; a) induce or incite genetic sterilization; b) promotion of birth control, thus not considered offering advice or services and family planning, conducted by public or private institutions, subject to the rules of the Unified Health System (SUS). Penalty: imprisonment from one to two years and fine. Single Paragraph. Are active subjects of the crimes referred to in this article: I - the individual employer; II - the legal representative of the employer, as defined in labor laws; III - the official, directly or by delegation of public and government authorities direct, indirect and foundational to any of the powers of the Union, States, Federal District and Municipalities. Anti-discrimination laws in Brazil 117 Fine Article 3: Notwithstanding the provisions of article previous violations of this law are liable comminations the following: I - administrative fine of ten times the value of the highest salary paid by the employer, in fifty percent higher in case of recidivism; II - prohibition on loans or obtain funding from government financial institutions. Readmission Article 4: The severance of the employment relationship by discriminatory act, under the terms of this law, gives the employee a choice between: I - readmission to provide full compensation for any period of absence, upon payment of remunerations, corrected monetarily, plus legal interest; II - the perception, double, the remuneration of the cooling off period, adjusted for inflation and plus statutory interest. Child and Adolescent law Preliminary provisions Article 5: No child or adolescent will be subject to any form of neglect, discrimination, exploitation, violence, cruelty and oppression, be punished as any violation of law, by act or omission, their fundamental rights. The rights Article 15: Children and adolescents have the right to freedom, respect and dignity as human persons in the development process and as subjects of civil, human and social rights guaranteed in the Constitution and laws. Article 17: The right to respect consists in the inviolability of physical, mental and moral development of children and adolescents, including the preservation of image, identity, autonomy, values, ideas and beliefs, and personal spaces. Section 18: It is the duty of ensuring the dignity of all children and adolescents, putting them safe from any inhuman, violent, terrifying, harassing or embarrassing. Prevention Article 70: It is the duty of all to prevent the occurrence or threat of violation of rights of children and adolescents. Article 71: Children and adolescents have the right to information, culture, leisure, sports, entertainment, shows and products and services that meet the specific condition of a developing person. Article 72: The obligations under this Law shall not exclude other special prevention under the principles adopted by it. Article 73: Failure to meet standards for preventing import of responsibility of the person or entity under this Act. Anti-discrimination laws in Brazil 118 Ageing law Preliminary provisions Article 4: The No subject shall be subjected to any kind of negligence, discrimination, violence, cruelty or oppression, and any violation of their rights by action or omission, shall be punished as provided by law. § 1: The is the duty of all to prevent the threat or violation of the rights of the elderly. § 2: The obligations under this Law shall not exclude others deriving from the prevention of principles adopted by it. Article 5: The failure to meet standards for preventing matter in liability to the person or entity under the law. Article 6: The every citizen has the duty to notify the competent authority any form of violation of this Law who has witnessed or has knowledge. The rights Article 10: The State and society, to ensure elderly freedom, respect and dignity as human beings and subject to civil, political, individual and social rights, guaranteed in the Constitution and laws. § 2: The right to respect consists in the inviolability of physical, mental and moral, including the preservation of image, identity, autonomy, values, ideas and beliefs, of space and personal objects. § 3: It is the duty of all protect the dignity of the elderly, putting him safe from any inhuman, violent, terrifying, harassing or embarrassing. Professionalization and the labour Article 26: The elderly are entitled to the exercise of professional activity, respect for their physical, intellectual and psychological. Article 27: On admission to the elderly in any work or employment, is prohibited from discrimination and the setting of upper age limit, including public examination, except in cases where the nature of the position requires. Single Paragraph. The first tie-breaker in a public examination is age, with preference being given to the higher age. Article 28: The Government will create and foster programs: I - professional expertise to the elderly, taking advantage of their potentials and abilities to regular activities and are paid; II - preparing employees for retirement, with a minimum of 1 year, by stimulating new social projects, according to their interests, and clarification on social rights and citizenship; III - to encourage private companies to admission of the elderly to work. Crimes in general Article 96: Discriminate against the elderly by preventing or hindering their access to banking facilities, means of transport, the right to hire or by any other means or instrument necessary for the exercise of citizenship by reason of age. Penalty: imprisonment from 6 months to 1 year and a fine. § 1: The same penalty who despise, humiliate, belittle or discriminate against the elderly, for any reason. § 2: The penalty will be increased from 1/3 if the victim is under the care or responsibility of the agent. Article 97: Failure to assist the elderly, when possible to do so without personal risk, in situations of imminent danger, or refuse, delay or hamper their health care, without cause, or not to ask these cases, the help of public authority. Penalty: detention of 6 months to 1 year and a fine. Anti-discrimination laws in Brazil Single Paragraph. The penalty is increased by half if the omission resulting serious bodily injury, and tripled if death results. Article 98: Leave the elderly in hospitals, nursing homes, long stay entities, or the like, or do not meet their basic needs, when required by law or court. Penalty: detention of 6 months to 3 years and fine. Article 99: Expose to danger the health and wellbeing, physical or mental, the elderly, subjecting him to inhuman or degrading conditions or depriving them of food and care needed when required to do so, or subjecting him to overwork or inadequate. Penalty: imprisonment from 2 months to 1 year and a fine. § 1: If the fact results serious bodily injury. Penalty: imprisonment of 1 to 4 years. § 2: If death results. Penalty: imprisonment from 4 to 12 years. Article 100: Constitutes a crime punishable by imprisonment of 6 months to one 1 year and a fine: I - obstruct someone's access to any public office by reason of age; II - to deny someone because of age, employment or work; III - deny, delay or hamper treatment or fail to provide health care, without cause, the elder; IV - fail to comply, delay or frustrate without due cause, the execution of a court order issued in a civil action to which this Law refers; V - deny, delay or omit the technical data essential to the commencement of civil action object of this Act, when requested by the prosecutor. Article 101: Failure to comply with, delay or frustrate without due cause, the execution of a court order issued in actions in which it is party or intervener the elderly. Penalty: imprisonment from 6 months to 1 year and fine. Article 102: Appropriating or diverting assets, earnings, pension or other income of the elderly, giving them differently from application of its purpose. Penalty: imprisonment of 1 to 4 years and fine. Article 103: Denying the host or the elderly to stay as warm, by refusing to grant this authority to the proxy service. Penalty: detention of 6 months to 1 year and a fine. Article 104: Hold the magnetic card bank account on benefits, or pension income of the elderly as well as other documents for the purpose of ensuring receipt or recovery of debt. Penalty: detention of 6 to 2 years and fine. Article 105: View or vehicle by any means of communication, information or pictures derogatory or insulting the person of aging. Penalty: detention of 1 to 3 years and fine. Article 106: Induce elderly without understanding of their acts to grant powers of attorney for asset management or dispose of them. Penalty: 2 to 4 years. Article 107: Coerce, in any event, the senior to donate, recruit, test, or grant powers of attorney. Penalty: imprisonment from 2 to 5 years. Article 108: Plow notarial act involving elder undiscerning of their acts without proper legal representation. Penalty: imprisonment from 2 to 4 years. 119 Anti-discrimination laws in Brazil 120 Penal Code Injury Article 140: Scorn someone, offending the dignity or decorum: Penalty: detention of one1 to 6 months or a fine. § 1: The judge can not apply the penalty: I - When the victim, so reprehensible, directly caused the injury; II - For immediate retaliation, which consists of another injury. § 2: If the injury is violence or blows, which by its nature or the means employed, are considered demeaning: Penalty: detention from 3 months to 1 year and a fine in addition to the penalty corresponding to violence. § 3: If the injury is the use of evidence relating to race, color, ethnicity, religion, origin or condition of elderly or disabled. Penalty: imprisonment from one to three years and fine. Proposed expansion The federal legislation PLC (Bill) 122/06 proposes to add sexual orientation to the categories to which anti-discrimination laws in Brazil apply. The bill was sponsored in 2006, and was approved by the Brazilian Chamber of Deputies in 2008. As of December 2010 it is pending in the Brazilian Senate. It is expected to come into force in 2011.[7] The bill has the support of the president-elect Dilma Rousseff.[8] References [1] Anti-discrimination laws in the Brazilian Constitution (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / www. planalto. gov. br/ ccivil_03/ Constituicao/ Constituiçao. htm)]] [2] Anti-discrimination laws in the Brazilian Labour law (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / www. planalto. gov. br/ ccivil_03/ Leis/ L9029. htm)]] [3] Anti-discrimination laws in the Brazilian Child and Adolescent law (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / www. planalto. gov. br/ ccivil_03/ Leis/ L8069. htm)]] [4] Anti-discrimination laws in the Brazilian Ageing law (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / www. planalto. gov. br/ ccivil/ leis/ 2003/ L10. 741. htm)]] [5] Anti-discrimination laws in the Brazilian Penal Code (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / www. planalto. gov. br/ ccivil/ decreto-lei/ Del2848compilado. htm)]] [6] Equality and Discrimination - The Constitution prohibits all forms of discrimination in Brazil (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / www. direitonet. com. br/ artigos/ exibir/ 2652/ Igualdade-e-discriminacao)]] [7] The situation of PLC 122/06 (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / www. mundomais. com. br/ exibemateria2. php?idmateria=1770)]] [8] The PLC 122/06 in 2011 (Portuguese)[[Category:Articles with Portuguese language external links (http:/ / mundomais. com. br/ exibemateria2. php?idmateria=1778)]] 121 Europe European Convention on Human Rights European Convention on Human Rights The Convention for the Protection of Human Rights and Fundamental Freedoms Signed Location Effective Signatories Depositary Languages 4 November 1950 Rome 3 September 1953 Council of Europe member states Secretary General of the Council of Europe English and French European Convention for the Protection of Human Rights and Fundamental Freedoms at Wikisource The Convention for the Protection of Human Rights and Fundamental Freedoms[1] (commonly known as the European Convention on Human Rights (ECHR))[2] is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,[3] the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.[4] The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used. The Convention has several protocols. For example, Protocol 13 prohibits the death penalty. The protocols accepted vary from State Party to State Party, though it is understood that state parties should be party to as many protocols as possible. European Convention on Human Rights 122 History The development of a regional system of Human Rights protection operating across Europe can be seen as a direct response to twin concerns. First, in the aftermath of the Second World War, the convention, drawing on the inspiration of the Universal Declaration of Human Rights can be seen as part of a wider response of the Allied Powers in delivering a human rights agenda through which it was believed that the most serious human rights violations which had occurred during the Second World War (most notably, the Holocaust) could be avoided in the future. Second, the Convention was a response to the growth of Communism in Eastern Europe and designed to protect the member states of the Council of Europe from communist subversion. This, in part, explains the constant references to values and principles that are "necessary in a democratic society" throughout the Convention, despite the fact that such principles are not in any way defined within the convention itself.[5] The Convention was drafted by the Council of Europe after World War II 2000 stamp. 50 years of European in response to a call issued by Europeans from all walks of life who had Convention on Human Rights gathered at the Hague Congress (1948). When over 100 parliamentarians from the twelve member nations of the Council of Europe came together in Strasbourg in the summer of 1949 for the first ever meeting of the Council's Consultative Assembly, drafting a "charter of human rights" and creating a Court to enforce it was high on their agenda. British MP and lawyer Sir David Maxwell-Fyfe, the Chair of the Assembly's Committee on Legal and Administrative Questions, guided the drafting of the Convention. As a prosecutor at the Nuremberg Trials, he had seen first-hand how international justice could be effectively applied. With his help, French former minister and Resistance fighter Pierre-Henri Teitgen submitted a report[6] to the Assembly proposing a list of rights to be protected, selecting a number from the Universal Declaration of Human Rights just agreed to in New York, and defining how the enforcing judicial mechanism might operate. After extensive debates,[7] the Assembly sent its final proposal[8] to the Council's Committee of Ministers, which convened a group of experts to draft the Convention itself. The Convention was designed to incorporate a traditional civil liberties approach to securing "effective political democracy", from the strongest traditions in the United Kingdom, France and other member states of the fledgling Council of Europe. The Convention was opened for signature on 4 November 1950 in Rome. It was ratified and entered into force on 3 September 1953. It is overseen by the European Court of Human Rights in Strasbourg, and the Council of Europe. Until recently, the Convention was also overseen by a European Commission on Human Rights. European Convention on Human Rights 123 Drafting The Convention is drafted in broad terms, in a similar (albeit more modern) manner to the English Bill of Rights, the American Bill of Rights, the French Declaration of the Rights of Man or the first part of the German Basic law. Statements of principle are, from a legal point of view, not determinative and require extensive interpretation by courts to bring out meaning in particular factual situations. Convention articles As amended by Protocol 11, the Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions. Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions. Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death). Article 1 - respecting rights Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a Contracting State's own national territory; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in which the State exercises effective control. In Loizidou v Turkey,[9] the European Court of Human Rights ruled that jurisdiction of member states to the convention extended to areas under that state's effective control as a result of military action. Article 2 - life Article 2 protects the right of every person to their life. The first paragraph of the article contains an exception for the lawful executions, although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibited the imposition of the death penalty in peacetime, while Protocol 13 extended the prohibition to all circumstances. (For more on Protocols 6 and 13, see below.) The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary". Signatory states to the Convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war. The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann v. United Kingdom[10] it ruled that the exception contained in the second paragraph do not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.[11] The Court has ruled that states have three main duties under Article 2: 1. a duty to refrain from unlawful killing, 2. a duty to investigate suspicious deaths and, 3. in certain circumstances, a positive duty to prevent foreseeable loss of life.[12] European Convention on Human Rights 124 Article 3 - torture Article 3 prohibits torture, and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention. The Court have emphasised the fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms ... irrespective of a victim's conduct."[13] The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.[14] Initially the Court took a restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture.[15] In fact the Court only found a state guilty of torture in 1996 in the case of a detainee who was suspended by his arms whilst his hands were tied behind his back.[16] Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a "living instrument", treatment which it had previously characterised as inhuman or degrading treatment might in future be regarded as torture.[17] Article 4 - servitude Article 4 prohibits slavery, servitude and forced labour but exempts labour: • • • • done as a normal part of imprisonment, in the form of compulsory military service or work done as an alternative by conscientious objectors, required to be done during a state of emergency, and considered to be a part of a person's normal "civic obligations." Article 5 - liberty and security Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept - security of the person has not been subject to separate interpretation by the Court. Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on reasonable suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides the right to be informed in a language one understands of the reasons for the arrest and any charge against them, the right of prompt access to judicial proceedings to determine the legality of one's arrest or detention and to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article. • Steel v. United Kingdom (1998) 28 EHRR 603 Article 6 - fair trial Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. In compliance with this Article, Turkey has now adopted a law abolishing these courts. European Convention on Human Rights Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses. 125 Article 7 - retrospectivity Prohibits the retrospective criminalisation of acts and omissions. No person may be punished for an act that was not a criminal offence at the time of its commission. The article states that a criminal offence is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under their domestic law at the time, so long as it was prohibited by international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed. Article 7 incorporates the legal principle nullum crimen, nulla poena sine lege into the convention. Article 8 - privacy Article 8 provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child). Article 9 - conscience and religion Article 9 provides a right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society" Article 10 - expression Article 10 provides the right to freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas, but allows restrictions for: • • • • • • • interests of national security territorial integrity or public safety prevention of disorder or crime protection of health or morals protection of the reputation or the rights of others preventing the disclosure of information received in confidence maintaining the authority and impartiality of the judiciary Relevant cases are: • Lingens v Austria (1986) 8 EHRR 407 • The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, the "Spycatcher" case. • Bowman v United Kingdom (1998) 26 EHRR 1, distributing vast quantities of anti-abortion material in contravention to election spending laws European Convention on Human Rights • Communist Party v Turkey (1998) 26 EHRR 1211 • Appleby v United Kingdom (2003) 37 EHRR 38, protests in a private shopping mall 126 Article 11 - association Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". • Vogt v Germany (1995) • Yazar, Karatas, Aksoy and Hep v Turkey (2003) 36 EHRR 59 Article 12 - marriage Article 12 provides a right for women and men of marriageable age to marry and establish a family. Despite a number of invitations, the Court has so far refused to apply the protections of this article to same-sex marriage. The Court has defended this on the grounds that the article was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area. In Goodwin v United Kingdom the Court ruled that a law which still classified post-operative transsexual persons under their pre-operative sex, violated article 12 as it meant that transsexual persons were unable to marry individuals of their post-operative opposite sex. This reversed an earlier ruling in Rees v United Kingdom. This did not, however, alter the Court's understanding that Article 12 protects only different-sex couples. Article 13 - effective remedy Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention. Article 14 - discrimination Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others. It is broad in that it prohibits discrimination under a potentially unlimited number of grounds. While the article specifically prohibits discrimination based on "sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status", the last of these allows the court to extend to Article 14 protection to other grounds not specifically mentioned such as has been done regarding discrimination based on a person's sexual orientation. At the same time the article's protection is limited in that it only prohibits discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex - Article 14 - in the enjoyment of the right to freedom of expression - Article 10). Protocol 12 extends this prohibition to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law. European Convention on Human Rights 127 Article 15 - derogations Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in time of "war or other public emergency threatening the life of the nation". Permissible derogations under article 15 must meet three substantive conditions: 1. there must be a public emergency threatening the life of the nation; 2. any measures taken in response must be "strictly required by the exigencies of the situation", and 3. the measures taken in response to it, must be in compliance with a state's other obligations under international law In addition to these substantive requirements the derogation must be procedurally sound. There must be some formal announcement of the derogation and notice of the derogation, any measures adopted under it, and the ending of the derogation must be communicated to the Secretary-General of the Council of Europe[18] The Court is quite permissive in accepting a state's derogations from the Convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words of Article 15, "strictly required by the exigencies of the situation". Thus in A v United Kingdom, the Court dismissed a claim that a derogation lodged by the British government in response to the September 11 attacks was invalid, but went on to find that measures taken by the United Kingdom under that derogation were disproportionate.[19] In order for a derogation itself to be valid, the emergency giving rise to it must be: • actual or imminent, although states do not have to wait for disasters to strike before taking preventive measures,[20] • involve the whole nation, although a threat confined to a particular region may be treated as "threatening the life of the nation" in that particular region,[21] • threaten the continuance of the organised life of the community,[22] • exceptional such that measures and restriction permitted by the Convention would be "plainly inadequate" to deal with the emergency.[22] Article 16 - aliens Article 16 allows states to restrict the political activity of foreigners. The Court has ruled that European Union member states cannot consider the nationals of other member states to be aliens.[23] Article 17 - abuse of rights Article 17 provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights (for example where an individual issues a death threat). Article 18 - permitted restrictions Article 18 provides that any limitations on the rights provided for in the Convention may be used only for the purpose for which they are provided. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre-trial detention as a means of intimidation of a person under a false pretext is therefore a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18. European Convention on Human Rights 128 Convention protocols As of January 2010, fifteen protocols to the Convention have been opened for signature. These can be divided into two main groups: those changing the machinery of the convention, and those adding additional rights to those protected by the convention. The former require unanimous ratification before coming into force, while the latter are optional protocols which only come into force between ratifying member states (normally after a small threshold of states has been reached). Protocol 1 This Protocol contains three different rights in which the signatories could not agree to place in the Convention itself. Monaco and Switzerland have signed but never ratified Protocol 1.[24] Article 1 - property Article 1 provides for the right to the peaceful enjoyment of one's possessions. Article 2 - education Article 2 provides for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views. It does not however guarantee any particular level of education of any particular quality.[25] Although phrased in the Protocol as a negative right, in Şahin v. Turkey the Court ruled that: "it would be hard to imagine that institutions of higher education existing at a given time do not come within the scope of the first sentence of Article 2 of Protocol No 1. Although that Article does not impose a duty on the Contracting States to set up institutions of higher education, any State doing so will be under an obligation to afford an effective right of access to them. In a democratic society, the right to education, which is indispensable to the furtherance of human rights, plays such a fundamental role that a restrictive interpretation of the first sentence of Article 2 of Protocol No. 1 would not be consistent with the aim or purpose of that provision."[26] Article 3 - elections Article 3 provides for the right to regular, free and fair elections. • Matthews v. United Kingdom (1999) 28 EHRR 361 Protocol 4 - civil imprisonment, free movement, expulsion Article 1 prohibits the imprisonment of people for breach of a contract. Article 2 provides for a right to freely move within a country once lawfully there and for a right to leave any country. Article 3 prohibits the expulsion of nationals and provides for the right of an individual to enter a country of his or her nationality. Article 4 prohibits the collective expulsion of foreigners. Spain, Turkey and the United Kingdom have signed but never ratified Protocol 4. Andorra, Greece and Switzerland have neither signed nor ratified this protocol. European Convention on Human Rights 129 Protocol 6 - restriction of death penalty Requires parties to restrict the application of the death penalty to times of war or "imminent threat of war". Every Council of Europe member state has signed and ratified Protocol 6, except Russia who has signed but not ratified.[27] Protocol 7 - crime and family • • • • Article 1 provides for a right to fair procedures for lawfully resident foreigners facing expulsion. Article 2 provides for the right to appeal in criminal matters. Article 3 provides for compensation for the victims of miscarriages of justice. Article 4 prohibits the re-trial of anyone who has already been finally acquitted or convicted of a particular offence (Double jeopardy). • Article 5 provides for equality between spouses. Despite having signed the protocol more than twenty years ago, Belgium, Germany, the Netherlands, Spain and Turkey have never ratified it. The United Kingdom has neither signed nor ratified the protocol. Protocol 12 - discrimination Applies the current expansive and indefinite grounds of prohibited discrimination in Article 14 to the exercise of any legal right and to the actions (including the obligations) of public authorities. The Protocol entered into force on 1 April 2005 and has (As of July 2009) been ratified by 17 member states. Several member states — namely Bulgaria, Denmark, France, Lithuania, Malta, Monaco, Poland, Sweden, Switzerland and the United Kingdom — have not signed the protocol.[28] The United Kingdom Government has declined to sign Protocol 12 on the basis that they believe the wording of protocol is too wide and would result in a flood of new cases testing the extent of the new provision. They believe that the phrase "rights set forth by law" might include international conventions to which the UK is not a party, and would result in incorporation of these instruments by stealth. It has been suggested that the protocol is therefore in a kind of catch-22, since the UK will decline to either sign or ratify the protocol until the European Court of Human Rights has addressed the meaning of the provision, while the court is hindered in doing so by the lack of applications to the court concerning the protocol caused by the decisions of Europe's most populous states — including the UK — not to ratify the protocol. The UK Government, nevertheless, "agrees in principle that the ECHR should contain a provision against discrimination that is free-standing and not parasitic on the other Convention rights".[29] The first judgment finding a violation of Protocol No. 12 was delivered in 2009 — Sejdić and Finci v. Bosnia and Herzegovina. Protocol 13 - complete abolition of death penalty Provides for the total abolition of the death penalty.[30] As of May 2011 the majority of the Council of Europe has ratified Protocol 13. Poland and Armenia have signed but not ratified the protocol, whilst Russia and Azerbaijan have not signed it.[31] Procedural and institutional protocols The Convention's provisions affecting institutional and procedural matters has been altered several times by mean of protocols. These amendments have, with of the exception of Protocol 2, amended the text of the convention. Protocol 2 did not amend the text of the convention as such, but stipulated that it was to be treated as an integral part of the text. All of these protocols have required the unanimous ratification of all the member states of the Council of Europe to enter into force. Protocol 11 European Convention on Human Rights Protocols 2, 3, 5, 8, 9 and 10 have now been superseded by Protocol 11 which entered into force on 1 November 1998.[32] It established a fundamental change in the machinery of the convention. It abolished the Commission, allowing individuals to apply directly to the Court, which was given compulsory jurisdiction and altered the latter's structure. Previously states could ratify the Convention without accepting the jurisdiction of the Court of Human Rights. The protocol also abolished the judicial functions of the Committee of Ministers. Protocol 14 Protocol 14 follows on from Protocol 11 in proposing to further improving the efficiency of the Court. It seeks to "filter" out cases that have less chance of succeeding along with those that are broadly similar to cases brought previously against the same member state. Furthermore a case will not be considered admissible where an applicant has not suffered a "significant disadvantage". This latter ground can only be used when an examination of the application on the merits is not considered necessary and where the subject-matter of the application had already been considered by a national court. A new mechanism was introduced by Protocol 14 to assist enforcement of judgements by the Committee of Ministers. The Committee can ask the Court for an interpretation of a judgement and can even bring a member state before the Court for non-compliance of a previous judgement against that state. Protocol 14 also allows for European Union accession to the Convention. The protocol has been ratified by every Council of Europe member state, Russia being last in February 2010. It entered into force on 1 June 2010.[33] A provisional Protocol 14bis had been opened for signature in 2009.[34] Pending the ratification of Protocol 14 itself, 14bis was devised to allow the Court to implement revised procedures in respect of the states which have ratified it. It allowed single judges to reject manifestly inadmissible applications made against the states who have ratified the protocol. It also extended the competence of three-judge chambers to declare applications made against those states admissible and to decide on their merits where there already is a well-established case law of the Court. Now that all Council of Europe member states have ratified Protocol 14, Protocol 14bis has lost it raison d'être and according to its own terms ceased to have any effect when Protocol 14 entered into force on 1 June 2010. 130 Notes [1] The Human Rights Act 1998 says that this is the Convention's name. [2] See, for example, Loveland, Constitutional Law, Admistrative Law and Human Rights, Third Edition, Butterworths, 2003, chapter 19, passim [3] The Council of Europe should not be confused with the Council of the European Union or the European Council. The European Union is not a party to the Convention and has no role in the administration of the European Court of Human Rights. [4] Resolution 1031 (1994) on the honouring of commitments entered into by member states when joining the Council of Europe (http:/ / assembly. coe. int/ Documents/ AdoptedText/ TA94/ ERES1031. HTM) [5] Ovey, Clare; Robin C.A. White. The European Convention on Human Rights. Oxford University Press. pp. 1–3. ISBN 9789199288106. [6] Report by Pierre-Henri Teitgen of France, submitted to the Consultative Assembly of the Council of Europe (http:/ / assembly. coe. int/ Conferences/ 2009Anniversaire49/ DocRef/ Teitgen6. pdf) [7] Verbatim of the speech given by Pierre-Henri Teitgen when he presented his report to the Consultative Assembly of the Council of Europe (http:/ / assembly. coe. int/ Conferences/ 2009Anniversaire49/ DocRef/ Teitgen7E. pdf) [8] Recommendation 38 of the Consultative Assembly of the Council of Europe on 'Human rights and fundamental freedoms' (http:/ / assembly. coe. int/ Conferences/ 2009Anniversaire49/ DocRef/ Rec38_9. pdf) [9] (Preliminary Objections) (1995) 20 EHRR 99 [10] (1995) 21 EHRR 97 [11] (1995) 21 EHRR 97 at para. 148 [12] Jacobs & White, p. 56 [13] Chahal v. United Kingdom (1997) 23 EHRR 413. [14] Chahal v. United Kingdom (1997) 23 EHRR 413; Soering v. United Kingdom (1989) 11 EHRR 439. [15] Ireland v. United Kingdom (1979-80) 2 EHRR 25 at para 167. [16] Aksoy v. Turkey (1997) 23 EHRR 553. The process was referred to by the Court as "Palestinian hanging" but more commonly known as Strappado. [17] Selmouni v. France (2000) 29 EHRR 403 at para. 101. [18] Article 15(3). European Convention on Human Rights [19] [2009] ECHR 301 (http:/ / cmiskp. echr. coe. int/ tkp197/ view. asp?action=html& documentId=847470& portal=hbkm& source=externalbydocnumber& table=F69A27FD8FB86142BF01C1166DEA398649) paras. 181 and 190. [20] A v United Kingdom [2009] ECHR 301 (http:/ / cmiskp. echr. coe. int/ tkp197/ view. asp?action=html& documentId=847470& portal=hbkm& source=externalbydocnumber& table=F69A27FD8FB86142BF01C1166DEA398649) para. 177. [21] Aksoy v. Turkey (1997) 23 EHRR 553 (http:/ / cmiskp. echr. coe. int/ tkp197/ view. asp?action=html& documentId=695880& portal=hbkm& source=externalbydocnumber& table=F69A27FD8FB86142BF01C1166DEA398649) para 70. [22] Greek case (1969) 12 YB 1 at 71-72, paras. 152-154. [23] In Piermont v. France 27 April 1995, 314 ECHR (series A) (http:/ / cmiskp. echr. coe. int/ tkp197/ view. asp?action=html& documentId=695802& portal=hbkm& source=externalbydocnumber& table=F69A27FD8FB86142BF01C1166DEA398649). [24] protocol signatory and ratification info (http:/ / conventions. coe. int/ Treaty/ Commun/ ChercheSig. asp?NT=009& CM=8& DF=21/ 02/ 2011& CL=ENG1st), Council of Europe treaties office. [25] See the Belgian linguistic case. [26] Sahin v. Turkey (http:/ / cmiskp. echr. coe. int/ tkp197/ view. asp?action=html& documentId=789023& portal=hbkm& source=externalbydocnumber& table=F69A27FD8FB86142BF01C1166DEA398649) at para. 137. [27] Russia enshrines ban on death penalty (http:/ / news. bbc. co. uk/ 2/ hi/ europe/ 8367831. stm). [28] Information on the current state of the protocol (http:/ / conventions. coe. int/ Treaty/ Commun/ ChercheSig. asp?NT=177& CM=8& DF=7/ 6/ 2009& CL=ENG). [29] 2004 UK Government's position (http:/ / www. humanrights. gov. uk/ ngo/ reviews/ appendix6. pdf) [30] "Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances" (http:/ / conventions. coe. int/ Treaty/ en/ Treaties/ Html/ 187. htm). Council of Europe. . Retrieved 27 June 2008. [31] See the Treaty Office Website (http:/ / conventions. coe. int/ Treaty/ Commun/ ChercheSig. asp?NT=187& CM=8& DF=25/ 05/ 2011& CL=ENG). [32] "List of the treaties coming from the subject-matter: Human Rights (Convention and Protocols only)" (http:/ / conventions. coe. int/ Treaty/ Commun/ ListeTraites. asp?MA=3& CM=7& CL=ENG). . Retrieved 21 February 2009. [33] Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms (http:/ / conventions. coe. int/ Treaty/ Commun/ ChercheSig. asp?NT=194& CM=2& DF=19/ 02/ 2010& CL=ENG) [34] Protocol No. 14bis to the ECHR (http:/ / conventions. coe. int/ Treaty/ Commun/ QueVoulezVous. asp?NT=204& CM=2& DF=5/ 30/ 2009& CL=ENG) 131 References • Ovey, Clare; White, Robin C. A. (2006). Jacobs & White: The European Convention on Human Rights (4th ed.). Oxford University Press. ISBN 0-19-928810-0. External links • Full text of the European Convention on Human Rights (http://conventions.coe.int/treaty/en/Treaties/Html/ 005.htm) • Database of European Human Rights Court (Strasbourg) judgements (http://cmiskp.echr.coe.int/tkp197/ search.asp?skin=hudoc-en) • European Convention of Human Rights website (http://human-rights-convention.org/) • List of all European treaties and protocols (http://conventions.coe.int/Treaty/Commun/ListeTraites. asp?CM=8&CL=ENG) • Terror detention law 'must go' (http://news.bbc.co.uk/1/hi/uk_politics/3534274.stm); BBC; 4 August 2004 • Current Status of Protocol 12 (http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=177& CM=8&CL=ENG) • Current Status of Protocol 14 (http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=194& CM=8&CL=ENG) • UK Government's position on Protocol 12 (http://www.humanrights.gov.uk/ngo/reviews/appendix6.pdf) • Index on Censorship (http://indexoncensorship.org) Protocol 12 to the European Convention on Human Rights 132 Protocol 12 to the European Convention on Human Rights Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 177) is an anti-discrimination treaty of the Council of Europe. It was adopted on November 4, 2000, in Rome and entered into force on April 1, 2005, after tenth ratification. As of May, 2011, it has 17 member states and 20 signatories (from 47 CoE member states). Core provisions Article 1 – General prohibition of discrimination. 1 The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2 No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. Unlike Article 14 of the Convention itself, the prohibition of discrimination in Protocol 12 is not limited to enjoying others rights provided by the Convention. Application The first case, where the European Court of Human Rights has found a violation of Article 1 of Protocol No. 12, was Sejdić and Finci v. Bosnia and Herzegovina, adjudicated in 2009. External links • Text [1] • Explanatory report [2] • Chart of signatures and ratifications [3] References [1] http:/ / conventions. coe. int/ Treaty/ en/ Treaties/ Html/ 177. htm [2] http:/ / conventions. coe. int/ Treaty/ en/ Reports/ Html/ 177. htm [3] http:/ / conventions. coe. int/ Treaty/ Commun/ ChercheSig. asp?NT=177& CM=1& DF=10/ 02/ 2010& CL=ENG Human Rights Act 1998 133 Human Rights Act 1998 Human Rights Act 1998 United Kingdom Parliament Long title An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. [1998] c 42 [1] Statute book chapter Dates Royal Assent Commencement 9 November 1998 2 October 2000 Other legislation Amendments Sub-s (1): in para (c) words “Article 1 of the Thirteenth Protocol” in square brackets substituted by SI 2004/1574, art 2(1). Date in force: 22 June 2004: see SI 2004/1574, art 1. Sub-s (4): words “Secretary of State” in square brackets substituted by SI 2003/1887, art 9, Sch 2, para 10(1). Date in force: 19 August 2003: see SI 2003/1887, art 1(2). Human Rights Act 1998 (Amendment) Order 2004, SI 2004/1574 (made under sub-s (4)). Related legislation Status: Current legislation The Human Rights Act 1998 (c 42 [1]) is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.[2] Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg. In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty (see: Constitution of the United Kingdom). An individual can still take his case to the Strasbourg court as a last resort. Human Rights Act 1998 134 Historical context Convention was drafted by the Council of Europe after World War II. Sir David Maxwell-Fyfe was the Chair of the Committee on Legal and Administrative Questions of the Council's Consultative Assembly from 1949 to 1952, and oversaw the drafting of the European Convention on Human Rights. It was designed to incorporate a traditional civil liberties approach to securing "effective political democracy", from the strong traditions of freedom and liberty in the United Kingdom. As a founding member of the Council of Europe, the UK acceded to the European Convention on Human Rights in March 1951. However it was not until Harold Wilson's government in the 1960s that British citizens were able to bring claims in the European Court of Human Rights. Over the 1980s, it was widely perceived that the executive misused its power and that, with movements like Charter 88 (which invoked the 300th anniversary of the Glorious Revolution in 1688 and the Bill of Rights 1689) a British Bill of Rights was needed to secure a human rights culture at home. The Labour government incorporated the European Convention on Human Rights into law through the Human Rights Act 1998. The 1997 white paper "Rights Brought Home"[3] stated: It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost. Structure of the Act The Human Rights Act places a duty on all courts and tribunals in the United Kingdom to interpret legislation so far as possible in a way compatible with the rights laid down in the European Convention on Human Rights (section 3(1)). The limits to judicial creativity have been much debated but it is now clear that the courts cannot interpret Acts of Parliament in a way that would undermine their clear meaning. The declaration does not invalidate the legislation, but permits the amendment of the legislation by a special fast-track procedure under section 10 of the Act. As of August 2006, 20 declarations had been made, of which 6 were overturned on appeal. The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. However, it does not include Parliament when it is acting in its legislative capacities. Despite the fact that the Act states that it applies to public bodies, it has had increasing influence on private law litigation between individual citizens leading some academics to state that it has horizontal effect as well as vertical effect (as in disputes between the state and citizens). This is because section 6(1) of the Human Rights Act defines courts and tribunals as public bodies meaning their judgments must comply with human rights obligations except in cases of declarations of incompatibility. Therefore judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens. Even though the Act's interpretative instruction to interpret legislation as compatible with Convention rights as so far as is possible in section 3(1) applies only to statute and not common law. Rights protection under the Act The Act provides that it is unlawful for a public authority to act in such a way as to contravene Convention rights.[4] For these purposes public authority includes any other person "whose functions are functions of a public nature."[5] It also explicitly includes the Courts.[6] Convention rights includes only those rights specified in section 1 of the Act (these are recited in full in Schedule 1).[7] In the interpretation of those rights the Act provides that the domestic Courts "may" take into account the jurisprudence of the European Court of Human Rights.[8] Section 7 enables any person, with standing, to raise an action against a public authority which has acted or proposes to act in such a Convention-contravening manner. A person will have standing to do so provided they would satisfy Human Rights Act 1998 the "victim test" stipulated by Article 34 of the Convention.[9] This is a more rigorous standard than is ordinarily applied to standing in English, although not Scottish, judicial review. If it is held that the public authority has violated the claimant's Convention rights, then the Court is empowered to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."[10] This can include an award of damages, although the Act provides additional restrictions on the Court's capacity to make such an award.[11] However, the Act also provides a defence for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation.[12] The Act envisages that this will ordinarily be a difficult standard to meet though since it requires the Courts to read such legislation (and for that matter subordinate legislation) "So far as it is possible to do so...in a way which is compatible with the Convention rights."[13] Where it is impossible to read primary legislation in a Convention compliant manner, the only sanction available to the Courts is to make a Declaration of Incompatibility in respect of it.[14] The power to do so is restricted to the higher Courts.[15] Such a Declaration has no direct impact upon the continuing force of the legislation[16] but it is likely to produce public pressure upon the government to remove the incompatibility. It also strengthens the case of a claimant armed with such a decision from the domestic Courts in any subsequent appeal to Strasbourg. In order to provide swift compliance with the Convention the Act allows Ministers to take remedial action to amend even offending primary legislation via subordinate legislation.[17] 135 Abolition of the death penalty The Act (section 21(5)) completely abolished the death penalty in the United Kingdom, effective on royal assent. Previously to this, the death penalty had already been abolished for murder, but it remained in force for certain military offences (although these provisions had not been used for several decades). (The death penalty for treason had already been abolished by the Crime and Disorder Act 1998.) Note that this provision was not required by the European Convention (protocol 6 permits the death penalty in time of war; protocol 13, which prohibits the death penalty for all circumstances, did not then exist); rather, the government introduced it as a late amendment in response to parliamentary pressure. Notable human rights case law • Lee Clegg's murder conviction gave rise to the first case invoking the Act, brought by The Times in October 2000 which sought to overturn a libel ruling against the newspaper. • Campbell v. MGN Ltd. [2002] EWCA Civ 1373, Naomi Campbell and Sara Cox both sought to assert their right to privacy under the Act. Both cases were successful for the complainant (Campbell's on the second attempt; Cox's attempt was not judicially decided but an out of court settlement was reached before the issue could be tested in court) and an amendment to British law to incorporate a provision for privacy is expected to be introduced. • Venables and Thompson v. News Group Newspapers [2001] 1 All ER 908, the James Bulger murder case tested whether the Article 8 (privacy) rights of Venables and Thomson, the convicted murderers of Bulger, applied when four newspapers sought to publish their new identities and whereabouts, using their Article 10 rights of freedom of expression. Dame Butler-Sloss granted permanent global injunctions not to publish the material because of the disastrous consequences such disclosure might have for the former convicts, not least the possibility of physical harm or death (hence claims for Article 2 rights were entertained, and sympathised with). • A and Others v. Secretary of State for the Home Department [2004] UKHL 56 [18], on 16 December 2004, the House of Lords held in that Part 4 of the Anti-terrorism, Crime and Security Act 2001, under whose powers a number of non-UK nationals were detained in Belmarsh Prison, was incompatible with the Human Rights Act. Human Rights Act 1998 This precipitated the enactment of the Prevention of Terrorism Act 2005 to replace Part 4 of the 2001 Act. • Amesh Chauhan and Dean Hollingsworth were photographed by a speed camera in 2000. As is standard practice for those caught in this way, they were sent a form by the police asking them to identify who was driving the vehicle at the time. They protested under the Human Rights Act, arguing that they could not be required to give evidence against themselves. An initial judgment, by Judge Peter Crawford at Birmingham Crown Court, ruled in their favour[19] but this was later reversed. • Price v. Leeds City Council [2005] EWCA Civ 289 [20], on 16 March 2005 the Court of Appeal upheld a High Court ruling that Leeds City Council could not infringe the right to a home of a Roma family, the Maloneys, by evicting them from public land. The court however referred the case to the House of Lords as this decision conflicted with a ruling from the European Court of Human Rights. • In March 2006, the High Court in London ruled against a hospital's bid to turn off the ventilator that kept the child, known as Baby MB, alive. The 19-month-old baby has the genetic condition spinal muscular atrophy, which leads to almost total paralysis. The parents of the child fought for his right to life, despite claims from medics that the invasive ventilation would cause an 'intolerable life'. • Connors v. UK, a judgment given by the European Court of Human Rights, declared that travellers who had their licences to live on local authority-owned land suddenly revoked had been discriminated against, in comparison to the treatment of mobile-home owners who did not belong to the traveller population, and thus their Article 14 (protection from discrimination) and Article 8 (right to respect for the home) rights had been infringed. However, there has never been a case where the Act has been successfully invoked to allow travellers to remain on greenbelt land, and indeed the prospects of this ever happening seem highly unlikely after the House of Lords decision in Kay and others and another v. London Borough of Lambeth and others heard with Price v Leeds City Council which severely restricted the occasions on which Article 8 may be invoked to protect someone from eviction in the absence of some legal right over the land. • Afghan hijackers case 2006, in May 2006, a politically controversial decision regarding the treatment of 9 Afghan men who hijacked a plane to flee from the Taliban, caused widespread condemnation by many tabloid newspapers (most notably The Sun), the broadsheets and the leaders of both the Labour Party and the Conservative Party. It was ruled by an Immigration Tribunal, under the Human Rights Act, that the hijackers could remain in the United Kingdom; a subsequent court decision ruled that the government had abused its power in restricting the hijackers' right to work. • Mosley v News Group Newspapers Limited (2008), Max Mosley challenged an invasion of his private life after the News of the World exposed his involvement in a Sado-masochistic sex act. The case resulted in Mr Mosley being awarded £60,000 in damages. 136 Criticism From the Conservative right During the campaign for the 2005 parliamentary elections the Conservatives under Michael Howard declared their intention to "overhaul or scrap" the Human Rights Act. According to him "the time had come to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and culture of compensation running riot in Britain today and warning that the politically correct regime ushered in by Labour's enthusiastic adoption of human rights legislation has turned the age-old principle of fairness on its head".[21] He cited a number of examples of how, in his opinion, the Human Rights Act had failed: "the schoolboy arsonist allowed back into the classroom because enforcing discipline apparently denied his right to education; the convicted rapist given £4000 compensation because his second appeal was delayed; the burglar given taxpayers' money to sue the man whose house he broke into; travellers who thumb their nose at the law allowed to stay on green belt sites Human Rights Act 1998 they have occupied in defiance of planning laws".[22] [23] Some commentators have criticised Howard's claim that a prisoner serving a life sentence was allowed to obtain hard-core pornography in prison. In R (on the application of Morton) v Governor of Long Lartin Prison, a prisoner did indeed seek judicial review of a prison governor's decision to deny him access to hard-core pornography claiming that the governor's policy was a breach of his Article 10 right to freedom of expression; however, the claim was actually rejected. The schoolboy referred to by Mr Howard was suing for compensation, not to be allowed back into the classroom, since he was already a university student at the time of the court case.[24] In addition, the claim was rejected.[25] 137 Politicised judges? One of the major criticisms of the Human Rights Act prior to its introduction was that it would result in unelected judges making substantive judgments about government policies and "legislating" in their amendments to the common law resulting in a usurpation of Parliament's legislative supremacy. In the area of judicial review for example the case of R (on the application of Daly) v Secretary of State for the Home Department highlights how the introduction of a proportionality test borrowed from ECHR jurisprudence has allowed a greater scrutiny of the substantive merits of a government's policy, meaning that judicial review has become more of an appeal than a review. The interpretative obligation under s(3)(1) to read primary legislation as Convention compliant, so far as is possible, is not dependent upon the presence of ambiguity in legislation.[26] This means that s(3) of the Human Rights Act could require the court to depart from the unambiguous meaning that legislation would otherwise bear subject to the constraint that this modified interpretation must be one “possible” interpretation of the legislation.[27] Paul Craig argues that this results in the courts adopting linguistically strained interpretations instead of issuing declarations of incompatibility. However the criticism that judges are legislating can be countered by the fact that courts are unable to interpret legislation in a way which is "inconsistent with a fundamental feature of the legislation". Neither can judges interpret legislation in such a way that would bring about a far-reaching change that would be best dealt with by Parliament. Journalistic freedom In 2008 the editor of the Daily Mail criticised the Human Rights Act for allowing, in effect, a right to privacy at English law despite the fact that Parliament has not passed such legislation. Paul Dacre was in fact referring to the indirect horizontal effect of the Human Rights Act on the doctrine of breach of confidence which has moved English law closer towards a common law right to privacy.[28] In response the Lord Chancellor Lord Falconer stated that the Human Rights Act had been passed by Parliament, that people's private lives needed protection and that the judge in the case had interpreted relevant authorities correctly.[29] A Bill of Rights for Britain? Following controversial rulings from both the European Court of Human Rights and the Supreme Court of the United Kingdom[30] , David Cameron again suggested a British Bill of Rights[31] . The government commission set up to investigate the case for a Bill of Rights had a split of opinion.[32] Howard's successor as Leader of the Opposition, David Cameron, vowed to repeal the Human Rights Act if he was elected, instead replacing it with a 'Bill of Rights' for Britain.[33] Following the 2010 general election, the Conservative – Liberal Democrat Coalition Agreement says that the issue will be investigated.[34] In 2007, the human rights organisation JUSTICE released a discussion paper entitled A Bill of Rights for Britain?, examining the case for updating the Human Rights Act with an entrenched bill.[35] Human Rights Act 1998 138 Left-wing criticism In contrast, some have argued that the Human Rights Act does not give adequate protection to rights because of the ability for the government to derogate from Convention rights under article 15 especially in relation to terrorism legislation. Recent cases such as R (ProLife Alliance) v. BBC [2002] EWCA Civ 297 have been decided in reference to common law rights rather than statutory rights leading to the possibility of judicial activism.[36] Terrorism Senior Labour politicians have criticised the Human Rights Act and the willingness of the judiciary to invoke declarations on incompatibility against terrorism legislation. Former Home Secretary Dr John Reid argued that the Human Rights Act was hampering the fight against global terrorism in regard to controversial control orders: There is a very serious threat – and I am the first to admit that the means we have of fighting it are so inadequate that we are fighting with one arm tied behind our backs. So I hope when we bring forward proposals in the next few weeks that we will have a little less party politics and a little more support for national security.[37] Notes [1] [2] [3] [4] [5] [6] [7] http:/ / www. legislation. gov. uk/ ukpga/ 1998/ 42/ contents http:/ / www. justice. org. uk/ images/ pdfs/ HRAINT. PDF Home Office, “Rights Brought Home: The Human Rights Bill” (Cm 3782, 1997) para 1.14 Section 6(1) Section 6(3)(b) Section 6(3)(a) The full text of Schedule 1 (along with that of the rest of the Act) can be found at the Office of Public Sector Information Website: (http:/ / www. opsi. gov. uk/ acts/ acts1998/ 80042--d. htm#sch1) [8] Section 2 [9] Section 7(7) [10] Section 8(1) [11] Cf. sections 8(2)-(5) and Section 9(2)-(3) which provides additional protection to the Courts. [12] Section 6(2). [13] Section 3(1) [14] Section 4 [15] Section 4(5) provides that a Declaration of Incompatibility can be made by: the House of Lords, the Judicial Committee of the Privy Council. In England, Wales and Northern Ireland by the Court of Appeal or the High Court. And in Scotland by the High Court of Justiciary, when not sitting as a trial court, or the Court of Session. The power is also available to the Courts-Martial Appeal Court. [16] Section 4(6)(a) [17] Section 10(2) [18] http:/ / www. parliament. the-stationery-office. co. uk/ pa/ ld200405/ ldjudgmt/ jd041216/ a& oth-1. htm [19] "Speeding loophole is legal 'nightmare'" (http:/ / news. bbc. co. uk/ 1/ hi/ uk/ 834532. stm). BBC Online (BBC News). 15 July 2000. . Retrieved 29 June 2011. [20] http:/ / www. bailii. org/ cgi-bin/ markup. cgi?doc=/ ew/ cases/ EWCA/ Civ/ 2005/ 289. html [21] "MPs attacking political correctness" (http:/ / www. capc. co. uk/ damaging_political_correctness. htm). . Retrieved 2007-07-27. [22] Howard, Michael (10 August 2005). "Judges must bow to the will of Parliament" (http:/ / www. telegraph. co. uk/ opinion/ main. jhtml?xml=/ opinion/ 2005/ 08/ 10/ do1002. xml). The Daily Telegraph (London). . Retrieved 2007-07-27. [23] "Time to liberate the country from Human Rights laws" (http:/ / www. conservatives. com/ tile. do?def=news. story. page& obj_id=120747). . Retrieved 2007-07-27. [24] Dyer, Clare (6 February 2006). "Children test the law lords over right to an education" (http:/ / www. guardian. co. uk/ uk/ 2006/ feb/ 06/ schools. religion). The Guardian (London). . Retrieved 2008-10-16. [25] Rozenberg, Joshua (23 March 2006). "Law lords back school over ban on Islamic gown" (http:/ / www. telegraph. co. uk/ news/ uknews/ 1513730/ Law-lords-back-school-over-ban-on-Islamic-gown. html). The Daily Telegraph (London). . Retrieved 2008-10-16. [26] Craig, Administrative Law, 6th ed p560 [27] Ghaidan v Godin-Mendoza [2004] 2 AC 557 n.63 para.32 [28] Phillipson, Gavin, Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act,Modern Law Review, Volume 66, Number 5, September 2003 , pp. 726–758(33) [29] "Mail editor accuses Mosley judge" (http:/ / news. bbc. co. uk/ 1/ hi/ uk/ 7718961. stm). BBC News. 10 November 2008. . Human Rights Act 1998 [30] Phillips, Melanie (4 July 2011). "From human rights to the EU, the tide's turning against the liberal thought police" (http:/ / www. dailymail. co. uk/ debate/ article-2010972/ From-human-rights-EU-tides-turning-liberal-thought-police. html). Daily Mail (London). . [31] Gallop, Nick in The Constitution and Constitutional Reform p.60 (Philip Allan, 2011) ISBN 978-0-340-98720-9 [32] Travis, Alan; Wintour, Patrick (18 March 2011). "Deadlock likely on commission pondering a British bill of rights" (http:/ / www. guardian. co. uk/ law/ 2011/ mar/ 18/ deadlock-bill-of-rights-commission). The Guardian (London). . [33] "Cameron 'could scrap' rights act" (http:/ / news. bbc. co. uk/ 1/ hi/ uk_politics/ 5114102. stm). BBC News. 25 June 2006. . Retrieved 2007-04-02. [34] Landale, James (20 May 2010). "Coalition deal: Tories give more ground" (http:/ / news. bbc. co. uk/ 2/ hi/ uk_news/ politics/ 8695213. stm). BBC News Online. . [35] http:/ / www. justice. org. uk/ images/ pdfs/ A%20Bill%20of%20Rights%20for%20Britain. pdf [36] Public Law: Adam Tomkins p192 [37] Travis, Alan (25 May 2007). "Reid warning to judges over control orders" (http:/ / www. guardian. co. uk/ frontpage/ story/ 0,,2087867,00. html). The Guardian (London). . Retrieved 4 May 2010. 139 External links • Official text of the statute (http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1851003) as amended and in force today within the United Kingdom, from the UK Statute Law Database • Text of the Act from Her Majesty's Stationery Office (http://www.legislation.gov.uk/ukpga/1998/ 42?view=plain) • Rights Brought Home: Government white paper (http://www.archive.official-documents.co.uk/document/ hoffice/rights/rights.htm) • Human Rights Act 1998 Leaflet (http://www.clsdirect.org.uk/legalhelp/leaflet07.jsp?lang=en) with detailed information from Community Legal Service Direct. • The Human Rights Act – Exploding the Myths (http://www.liberty-human-rights.org.uk/human-rights/ human-rights/the-human-rights-act/human-rights-act-myths/index.php) by Liberty • A table of all of the declarations of incompatibility which the courts have made as of 1 August 2006 (http:// www.dca.gov.uk/peoples-rights/human-rights/pdf/decl-incompat-tabl.pdf) from the Department for Constitutional Affairs • The Impact of the Human Rights Act 1998 on Policing in England and Wales (http://bjc.oxfordjournals.org/ content/early/2011/10/29/bjc.azr088.short?rss=1) Equal Pay Act 1970 140 Equal Pay Act 1970 Equal Pay Act 1970 Parliament of the United Kingdom Long title ... Statute book chapter 1970 Territorial extent England and Wales; Scotland Dates Royal Assent 1970 Status: Amended The Equal Pay Act 1970 is an Act of the United Kingdom Parliament which prohibits any less favourable treatment between men and women in terms of pay and conditions of employment. It was passed by Parliament in the aftermath of the 1968 Ford sewing machinists strike[1] [2] [3] [4] and came into force on 29 December 1975. The term pay is interpreted in a broad sense to include, on top of wages, things like holidays, pension rights, company perks and some kinds of bonuses. The legislation has been amended on a number of recent occasions to incorporate a simplified approach under European Union law that is common to all member states. Elements of a claim For an employee to claim under this Act they must prove one of the following: • That the work done by the claimant is the same, or broadly the same, as the other employee. • That the work done by the claimant is of equal value to that of the other employee. • That the work done by the claimant is rated (by a job evaluation study) the same as that of the other employee. Once the employee has established that they are employed on 'equal work' with their comparator then they are entitled to 'equal pay' unless the employer proves that the difference in pay is genuinely due to a material factor which is not the difference in gender.. Single Status In 1997, trades unions negotiated Single Status job evaluation, hoping that this would enforce the Equal Pay Act without needing to take numerous pay claims to industrial tribunal. Single Status was intended to establish whether jobs were of equal value, and bring in a pay model which would remove the need for equal pay claims. Jobs which had previously been classed as manual or administrative/clerical would be brought together under one payscale and one set of terms and conditions. Equal Pay Act 1970 141 Cases • Allonby v Accrington and Rossendale College [2004] IRLR 224 • Barber v Guardian Royal Exchange Assurance Group (C-262/88) [1991] 1 QB 344, definition of pay including occupational pension schemes • Hayward v Cammell Laird Shipbuilders Ltd (No 2) [1988] AC 894, equality clause implication under EqPA 1970 s1 • Home Office v Bailey [2005] IRLR 757, presumption of discrimination with a pay disparity • Strathclyde Regional Council v Wallace [1998] 1 WLR 259, purpose of legislation not fair wages • Shield v E Coomes Holding Ltd [1978] 1 WLR 1408, claimant must prove they are in like work to an actual comparator • Capper Pass Ltd v Lawton [1977] QB 852, work must be 'of the same or a broadly similar nature' • Eaton Ltd v Nuttall [1977] 1 WLR 549, the work may be rated as equivalent under EqPA s 1(5) through a job evaluation scheme which is 'thorough in analysis and capable of impartial application' • Pickstone v Freemans plc [1989] AC 66, a 'token man' defance does not defeat a claim • Macarthys Ltd v Smith (No 2) [1981] QB 180, a predecessor is a valid comparator • Diocese of Hallam Trustee v Connaughton [1996] ICR 860, a successor is a valid comparator • Leverton v Clywd County Council [1989] AC 706, 'common terms and conditions' can include those under collective agreements • British Coal Corporation v Smith [1996] ICR 515, terms and conditions must be 'substantially comparable' not identical • Lawrence v Regent Office Care Ltd [2002] IRLR 822, contracting out, an associated employer and a 'single source' test under art 141 TEC • Ratcliffe v North Yorkshire County Council [1995] ICR 833, contracting out • North Cumbria Acute Hospitals NHS Trust v Potter [2009] IRLR 176, 'single source' test • Defrenne v Sabena [1976] ICR 547 (C-43/75), the 'same establishment or service' definition • Clay Cross (Quarry Services) Ltd v Fletcher [1979] ICR 1, personal factors in the material difference defence • Rainey v Greater Glasgow Health Board [1987] AC 224, labour scarcity or geographical factors in the defence • Enderby v Frenchay Health Authority [1994] ICR 112 (C-127/92), defence through the 'state of the employment market' under the proportionality principle • Glasgow County Council v Marshall [2000] ICR 196, under the SDA 1975 if no evidence of discrimination is found, a pay disparity need not be justified • Redcar and Cleveland Borough Council v Bainbridge and Surtees v Middlesbrough Borough Council [2008] EWCA Civ 885, [2008] IRLR 776 • GMB v Allen [2008] EWCA Civ 810, [2008] IRLR 690 Equal Pay Act 1970 142 Notes [1] The Reunion (http:/ / www. bbc. co. uk/ radio4/ history/ reunion/ reunion7. shtml), BBC, published 2003, accessed 2010-10-04 [2] Equality Act an important milestone says Unite (http:/ / www. unitetheunion. org/ news__events/ latest_news/ equality_act_an_important_mile. aspx), Unite, 1 October 2010-10-01, accessed 2010-10-08 [3] Equal pay heroes honoured (http:/ / www. tuc. org. uk/ equality/ tuc-11985-f0. cfm), TUC, 2006-06-05 [4] Women's Worth: the story of the Ford sewing machinists notes by Sue Hastings (http:/ / www. unionhistory. info/ equalpay/ display. php?irn=651A), Sue Hastings, 2006, accessed 201-10-08 External links • Directive 97/80/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:31997L0080:EN:HTML), on the burden of proof in sex discrimination claims. • Treaty of the European Community (http://eur-lex.europa.eu/en/treaties/dat/12002E/htm/C_2002325EN. 003301.html), whose Article 141 address equal pay between men and women. Article 13, introduced by the Treaty of Amsterdam in 1996, is the basis for Directives 2000/78/EC and 2000/43/EC • Equal Pay Act 1970 (http://www.opsi.gov.uk/acts/acts1970/pdf/ukpga_19700041_en.pdf) as amended by The Equal Pay Act 1970 (Amendment) Regulations 2003 (http://www.opsi.gov.uk/si/si2003/ 20031656.htm) SI 2003/1656 • Directive 2006/54/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:L:2006:204:0023:01:EN:HTML), on the equal treatment of men and women in employment regarding the definitions of direct and indirect discrimination, harassment and provisions on maternity. It comes fully into effect in August 2008, and just does a consolidating job and repeals a number of previous Directives, including 76/207/EEC (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31976L0207:EN:HTML) and 2002/73/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0073:EN:HTML). • Sex Discrimination Act 1975 (http://www.uk-legislation.hmso.gov.uk/acts/acts1975/pdf/ ukpga_19750065_en.pdf) Equality Act 2010 143 Equality Act 2010 The Equality Act 2010 Parliament of the United Kingdom Long title An Act to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; to enable certain employers to be required to publish information about the differences in pay between male and female employees; to prohibit victimisation in certain circumstances; to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct; to enable duties to be imposed in relation to the exercise of public procurement functions; to increase equality of opportunity; to amend the law relating to rights and responsibilities in family relationships; and for connected purposes. 2010 c 15 Statute book chapter Territorial extent England and Wales; Scotland; Northern Ireland Dates Royal Assent 8 April 2010 Commencement 1 October 2010 Status: Current legislation Text of statute as originally enacted Official text of the statute [2] [1] as amended and in force today within the United Kingdom, from the UK Statute Law Database The Equality Act 2010 (c 15 [1]) is an Act of Parliament of the United Kingdom. The primary purpose of the Act is to consolidate the complicated and numerous array of Acts and Regulations, which formed the basis of anti-discrimination law in Great Britain. This was, primarily, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and three major statutory instruments protecting discrimination in employment on grounds of religion or belief, sexual orientation and age. This legislation has the same goals as the four major EU Equal Treatment Directives, whose provisions it mirrors and implements.[3] It requires equal treatment in access to employment as well as private and public services, regardless of the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. In the case of gender, there are special protections for pregnant women. However the Act allows transsexual people to be barred from gender-specific services if that is "a proportionate means of achieving a legitimate aim". [4] In the case of disability, employers and service providers are under a duty to make reasonable adjustments to their workplaces to overcome barriers experienced by disabled people. In this regard, the Equality Act 2010 did not change the law. Under s.217, with limited exceptions the Act does not apply to Northern Ireland. Equality Act 2010 144 Background The Labour Party included a commitment to an Equality Bill in its 2005 election manifesto. The Discrimination Law Review was established in 2005 to develop the legislation and was led by the Government Equalities Office. The review considered the findings of the Equalities Review Panel, chaired by Trevor Phillips, which reported in February 2007.[5] The Act is intended to simplify the law by bringing together existing anti-discrimination legislation. The Equality Act 2010 has replaced the Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003[6] and the Employment Equality (Age) Regulations 2006. The Act extends until 2030 the exemption from sex discrimination law allowing political parties to select all women or all men candidate short-lists. The existing exemption until 2015 was created by the Sex Discrimination (Election Candidates) Act 2002. The Parliamentary process was completed following a debate, shortly after 11pm on 6 April 2010, when amendments by the House of Lords were accepted in full.[7] Contents • [8] Part 1 Socio-economic inequalities (but this will not come into force ) • Part 9 Enforcement • • • • • • Part 2 Equality: key concepts • • • Chapter 1 Protected characteristics [10] Chapter 2 Prohibited conduct [9] • Chapter 1 Introductory Chapter 2 Civil courts Chapter 3 Employment tribunals Chapter 4 Equality of terms Chapter 5 Miscellaneous Part 10 Contracts, etc. Part 3 Services and public functions • Part 11 Advancement of equality • • Chapter 1 Public sector equality duty Chapter 2 Positive action • Part 4 Premises • Part 12 Disabled persons: transport • • • • Chapter 1 Taxis etc. Chapter 2 Public service vehicles Chapter 3 Rail vehicles Chapter 4 Supplementary [15] • Part 5 Work • • • • [11] Chapter 1 Employment, etc. [12] Chapter 2 Occupational pension schemes [13] Chapter 3 Equality of terms [14] Chapter 4 Supplementary • Part 13 Disability: miscellaneous • Part 6 Education • • • • Chapter 1 Schools Chapter 2 Further and higher education Chapter 3 General qualifications bodies Chapter 4 Miscellaneous • Part 14 General exceptions [16] • • Part 7 Associations Part 8 Prohibited conduct: ancillary • Part 15 General and miscellaneous Equality Act 2010 145 Debate Reform of the monarchy In April 2008, Solicitor General Vera Baird announced that as part of the Single Equality Bill, legislation would be introduced to repeal parts of the Act of Settlement 1701 that prevent Roman Catholics or those who marry Roman Catholics from ascending to the throne, and to change the inheritance of the monarchy from cognatic primogeniture to absolute primogeniture, i.e. the first-born heir would inherit the throne regardless of his or her gender or religion.[17] However, Attorney General The Baroness Scotland of Asthal subsequently ruled there would be no change in the law of succession in 2008, saying, "To bring about changes to the law on succession would be a complex undertaking involving amendment or repeal of a number of items of related legislation, as well as requiring the consent of legislatures of member nations of the Commonwealth".[18] The published draft bill does not contain any provisions to change succession laws. Bishop opposition Although the Act was never going to change the law from its existing position, or binding European Union law which covers many more Catholics than in the UK, and this position was spelled out in the High Court in R (Amicus) v Secretary of State for Trade and Industry[19] a small number of Roman Catholic Bishops of England and Wales made claims that they could be prosecuted under the Equality Act 2010 for refusing to allow married men, women, transsexual people and gay people into the priesthood.[20] [21] [22] The legislation has also attracted criticism from local Anglican clergy.[23] This claim has been rejected by the government. A spokesperson has said an exemption "covers ministers of religion such as Catholic priests"[20] and a document released by the Government Equalities Office states that that "the Equality Bill will not change the existing legal position regarding churches and employment".[24] Notes [1] [2] [3] [4] [5] [6] [7] http:/ / www. opsi. gov. uk/ acts/ acts2010/ ukpga_20100015_en_1 http:/ / www. statutelaw. gov. uk/ content. aspx?activeTextDocId=3698792 see EU Directive 2000/78/EC, 2000/43/EC, 2006/54/EC Equality Act sch.3, part 7, para 28 "Discrimination Law Review (DLR)" (http:/ / www. equalities. gov. uk/ dlr/ index. htm). Government Equalities Office. . See also, Equality Act (Sexual Orientation) Regulations See the debate in Hansard HC vol 508 cols 927-942 (http:/ / www. publications. parliament. uk/ pa/ cm200910/ cmhansrd/ cm100406/ debtext/ 100406-0021. htm#1004073000001) (6 April 2010) [8] "Socio-economic duty" (http:/ / www. equalities. gov. uk/ equality_act_2010/ faqs_on_the_equality_act_2010/ socio-economic_duty. aspx). Government Equalities Office. . Retrieved 16 January 2011. [9] age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation [10] s 13 direct discrimination, s 14 discrimination arising from disability, s 15 gender reassignment discrimination: cases of absence from work, s 16 pregnancy and maternity discrimination: non-work cases, s 17 pregnancy and maternity discrimination: work cases, s 18 indirect discrimination; Adjustments for disabled persons: s 19 duty to make adjustments, s 20 failure to comply with duty, s 21 regulations, s 22 comparison by reference to circumstances, s 23 references to particular strands of discrimination, s 24 harassment, s 25 victimisation [11] Employees: s 36 Employees and applicants, s 37 Employees and applicants: harassment, s 38 contract workers; Police officers: s 39 identity of employer, s 40 interpretation; Partners: s 41, partnerships, s 42 limited liability partnerships, s 43 interpretation; The Bar: s 44 barristers, s 45 advocates; Office holders: s 46 personal offices, s 47 public offices: appointments, etc, s 48 public offices: recommendations for appointments, etc., s 49 interpretation and exceptions; Qualifications: s 50 qualification bodies, s 51 interpretation; Employment services: s 52 employment service providers, s 53 interpretation; Trade organisations: s 54 trade organisations; Local authority members: s 55 official business of members, s 56 interpretation [12] s 57 Non-discrimination rule, s 58 Communications [13] Sex equality: s 59 Relevant types of work, s 60 Equal work, s 61 Sex equality clause, s 62 Sex equality rule, s 63 Sex equality rule: consequential alteration of schemes, s 64 Defence of material factor, s 65 Exclusion of sex discrimination provisions, s 66 Sex discrimination Equality Act 2010 in relation to contractual pay; Pregnancy and maternity equality: s 67 Relevant types of work, s 68 Maternity equality clause, s 69 Maternity equality clause: pay, s 70 Maternity equality rule, s 71 Exclusion of pregnancy and maternity discrimination provisions; Disclosure of information: s 72 Discussions with colleagues, s 73 Gender pay gap information; Supplementary: s 74 Colleagues, s 75 Interpretation and exceptions [14] s 76 Ships and hovercraft, s 77 Offshore work, s 78 Interpretation and exceptions [15] s 182, reasonable adjustments; s 183 improvements to let dwelling houses [16] statutory provisions, national security, charities, sport, general, age [17] "Move to change succession laws" (http:/ / news. bbc. co. uk/ 1/ hi/ uk_politics/ 7357017. stm). bbc.co.uk. 2008-04-20. . Retrieved 2008-04-21. [18] Andrew Pierce (29 April 2008). "U-turn on royal succession law change" (http:/ / www. telegraph. co. uk/ news/ newstopics/ theroyalfamily/ 1905565/ U-turn-on-royal-succession-law-change. html). London: The Telegraph. . [19] [2004] EWHC 860 (Admin) (http:/ / www. bailii. org/ ew/ cases/ EWHC/ Admin/ 2004/ 860. html) [20] English, Welsh bishops say Equality Bill redefines who can be priest (http:/ / www. thebostonpilot. com/ article. asp?ID=11224) [21] "Equality Bill redefines who can be priest: UK Bishops" (http:/ / www. cathnews. com/ article. aspx?aeid=18231). Cathnews.com. 2009-12-10. . Retrieved 2010-06-03. [22] Kirsty Walker (2009-11-18). "Christmas could be killed off by Harman's Equality Bill, bishops warn" (http:/ / www. dailymail. co. uk/ news/ article-1228643/ Christmas-killed-Harmans-Equality-Bill-bishops-warn. html). London: Dailymail.co.uk. . Retrieved 2010-06-03. [23] UK Government attacked over Equality Bil (http:/ / www. religiousintelligence. co. uk/ news/ ?NewsID=5374) [24] "Myth-Busting: the Equality Bill and Religion" (http:/ / www. webcitation. org/ 5mfNU5Tok) (PDF). Government Equalities Office. Archived from the original (http:/ / www. equalities. gov. uk/ pdf/ Equality Bill and Religion for press and website (3). pdf) on 2010-01-10. . Retrieved 2010-01-10.In the case of Ministers of Religion and other jobs which exist to promote and represent religion, the Bill recognises that a church may need to impose requirements regarding sexual orientation, sex, marriage and civil partnership or gender reassignment if it is necessary to comply with its teachings or the strongly held beliefs of followers. However, it would not be right to permit such requirements across all jobs within organised religions, such as administrators and accountants, and the Equality Bill makes this clear. 146 References • Polly Toynbee, ' Harman's law is Labour's biggest idea for 11 years (http://www.guardian.co.uk/ commentisfree/2009/jan/13/polly-toynbee-harriet-harman-social-mobility)' (13.1.2009) The Guardian External links • Framework For a Fairer Future (http://www.equalities.gov.uk/pdf/FrameworkforaFairerFuture.pdf) Government Equalities Office • "Proposals for a Single Equality Bill for Great Britain" (http://www.communities.gov.uk/publications/ communities/frameworkforfairnessconsultation). Communities and Local Government website. • Parliament page for the progress of the Bill (http://services.parliament.uk/bills/2008-09/equality.html) • Government Equalities Office page on the Equality Bill (http://www.equalities.gov.uk/equality_bill.aspx) - Employment Implications] UK Legislation • Official text of the Equality Act 2010 (http://www.legislation.gov.uk/ukpga/2010/15/contents) as amended and in force today within the United Kingdom, from the UK Statute Law Database • Official text of the Equality Act 2010 (http://www.legislation.gov.uk/ukpga/2010/15/contents/enacted) as originally enacted within the United Kingdom, from the UK Statute Law Database United Kingdom employment equality law 147 United Kingdom employment equality law United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997. Furthermore discrimination on the grounds of work status, as a part time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union, or with advice from a solicitor, ACAS or the Citizens Advice Bureau a claim may be brought in an employment tribunal. The Equality Act 2006 established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.[1] Discrimination is unlawful when an employer is hiring a person, in the terms and conditions of contract that are offered, in making a decision to dismiss a worker, or any other kind of detriment. "Direct discrimination", which means treating a person less favourably than another who lacks the protected characteristic, is always unjustified and unlawful, with the exception of age. It is lawful to discriminate against a person because of their age, however, only if there is a legitimate business justification accepted by a court. Where there is an "occupational requirement" direct discrimination is lawful, so that for instance an employer could refuse to hire a male actor to play a female role in a play, where that is indispensable for the job. "Indirect discrimination" is also unlawful, and this exists when an employer applies a policy to their workplace that affects everyone equally, but it has a disparate impact on a greater proportion of people of one group with a protected characteristic than another, and there is no good business justification for that practice. Disability differs from other protected characteristics in that employers are under a positive duty to make reasonable adjustments to their workplace to accommodate the needs of handicapped staff. For age, belief, gender, race and sexuality there is generally no positive obligation to promote equality, and positive discrimination is generally circumscribed by the principle that merit must be regarded as the most important characteristic of a person. In the field of equal pay between men and women, the rules differ in the scope for comparators. Any dismissal because of discrimination is automatically unfair and entitles a person to claim under the Employment Rights Act 1996 section 94 no matter how long they have worked. History Anti-discrimination law is a recent development. The old common law approach, and Acts of Parliament were directly discriminatory. They engendered the old prejudices of a class based society, which saw white, private school educated men as the only legitimate heirs to places of political and economic power. Like all countries, religious discrimination was also rife, but particularly against Catholics and Jews. The Catholic Emancipation Acts put an end to that only at the beginning of the 19th century and in employment, religious descrimination was stopped by employment law later on. It almost went without dispute that women were marginalised from general social participation. The first changes came at municipal level, particular in the Birmingham Municipal Council from the 1830s. The Chartists from the mid 19th century, and the Suffragettes after the turn of the 20th century lobbied for universal suffrage against a conservative judiciary and a liberal political establishment. In Nairn v The University Court of the University of St Andrews (1907) a judge called Lord McLaren even proclaimed that it is "a principle of the unwritten constitutional law of this country that men only were entitled to take part in the election of representatives to Parliament."[2] United Kingdom employment equality law 148 The Representation of the People Act 1918 gave the universal franchise to men, and knocked away the last barriers of wealth discrimination for the vote. But for women, only those over 30 were enfranchised, and the judiciary remained as conservative as ever. In Roberts v Hopwood (1925) a metropolitan borough council had decided to pay its workers £4 a week, whether they were men or women. The House of Lords approved the district auditor's cancellation payment for being overly gratuitous, given working class conditions. Lord Atkinson said the council had "allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour."[4] The Women's Social and Political Union became known for its militant activity. Emmeline Pankhurst once said that "the condition of our sex is so deplorable that it is our duty to break the law in order to call attention to the reasons why we [3] do." After a decade, the Representation of the People Act 1928 finally gave women the vote on an equal footing. Attitudes to racial prejudice in the law were set to change markedly with the proverbial "winds of change" sweeping through the Empire after World War II. As Britain's colonies won independence, many immigrated to the motherland, and for the first time communities of all colours were seen in London and the industrial cities of the North. The Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Act 1976 were passed by Harold Wilson's Labour government. In 1972, Britain became a member of the European Community, which became the European Union in 1992 with the agreement of the Maastrict Treaty. The Conservative government opted out of the Social Chapter of the treaty, which included provisions on which anti-discrimination law would be based. Although they passed the Disability Discrimination Act 1995, it was not until Tony Blair's "New Labour" government won the 1997 election that the UK opted into the social provisions of EU law. In 2000, the EU overhauled and introduced new Directives explicitly protecting people with a particular sexuality, religion, belief and age, as well as updating the protection against disability, race and gender discrimination. The law is therefore quite new and is still in a state of flux. Between the EU passing directives and the UK government implementing them, it is apparent that the government has often failed to offer the required minimum level of protection. More changes are likely soon to iron out the anomalies. Equality framework Equality legislation in the UK, formerly in separate Acts and regulations for each protected characteristic, is now primarily found in the Equality Act 2010. Particularly since the United Kingdom joined the Social Chapter of the European Union treaties, it mirrors a series of EU Directives. The three main Directives are the Equal Treatment Directive (Directive 2006/54/EC, for gender), the Racial Equality Directive (2000/48/EC) and the Directive establishing a general framework for equal treatment in employment and occupation (2000/78/EC, for religion, belief, sexuality, disability and age). Updates can be implemented automatically in domestic legislation as required by the case law of the European Court of Justice or changes in EU legislation. Direct discrimination Direct discrimination occurs when an employer treats someone less favourably on the ground of a protected characteristic. It is unlawful under section 13 of the Equality Act 2010. A protected characteristic (age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation) must be the reason for the different treatment, so that it is because of that characteristic that the less favourable treatment occurs. Generally, the law protects everyone, not just a group perceived to suffer discrimination. Therefore it is unlawful to treat a man less favourably than a woman, or a woman less favourably than a man, on the ground of the person's sex. United Kingdom employment equality law However people who are single are not protected against more favourable treatment of people in marriage or civil partnership, and non-disabled people are not protected if a disabled person is treated more favourably. In Coleman v Attridge Law in the European Court of Justice confirmed that a person may claim discrimination even if they are not the person with the protected characteristic, but rather they suffer unfavourable treatment because of someone they associate with. For the protected characteristic of Age, it is a defence to a claim of direct discrimination that the discrimination is "justified" by some reason. There is no defence of justification for other protected characteristics. 149 Harassment Under the Equality Act 2010 section 26,[5] a person harasses another if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating the other's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other. It is also harassment if a person treats another less favourably because the other has rejected or submitted to unwanted conduct of a sexual nature. Victimisation The definition of "victimisation" is found in the Equality Act 2010 section 27.[6] It refers to subjecting a person to a further detriment after they try to complain or bring proceedings in connection with discrimination, on their own behalf or on behalf of someone else. Indirect discrimination "Indirect" discrimination is unlawful under the Equality Act 2010 section 19.[7] It involves the application of a provision, criterion or practice to everyone, which has a disproportionate effect on some people and is not objectively justified. For instance, a requirement that applicants for a job be over a certain height would have a greater impact on women than on men, as the average height of women is lower than that of men. It is a defence for the employer to show that the requirement is “a proportionate means of achieving a legitimate aim”. • • • • • • • • • Ojutiku v Manpower Services Commission [1982] EWCA Civ 3 [8], [1982] ICR 661 R (Schaffter) v Secretary of State for Education [1987] IRLR 53 Rainey v Greater Glasgow Health Board [1987] AC 224 Clymo v Wandsworth London Borough Council [1989] ICR 250 Enderby v Frenchay Health Authority (C-127/92) [1994] ICR 112 R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [1995] 1 AC 1 Staffordshire County Council v Black [1995] IRLR 234 R (Seymour Smith) v Secretary of State for Employment [2000] ICR 244 Rutherford v Secretary of State for Trade and Industry (No 2) [2006] UKHL 19 Positive action Discrimination law is "blind" in that motive is irrelevant to discrimination and both minorities or majorities could make discrimination claims if they suffer less favourable treatment. Positive discrimination (or "affirmative action" as it is known in the US) to fill up diversity quotas, or for any other purpose, is prohibited throughout Europe, because it violates the principle of equal treatment just as much as negative discrimination. There is, however, a large exception. Suppose an employer is hiring new staff, and they have 2 applications where the applicants are equally qualified for the job. If the workforce does not reflect society's makeup (e.g. that women, or ethnic minorities are under-represented) then the employer may prefer the candidate which would correct that imbalance. But they may only do so where both candidates are of equal merit, and further conditions must be met. This type of measure is also known as positive action. Sections 158 and 159 Equality Act 2010 set out the circumstances in which positive United Kingdom employment equality law action is allowed. Section 159, which deals with positive action in connection with recruitment and promotion (and which is the basis for the example of equally qualified applicants above), does not come into force until April 2011.[9] The Government Equalities Office has issued a guide to the Section 159 rules.[10] Section 158 deals with the circumstances in which positive action is permitted other than in connection with recruitment and promotion, for example in provision of training opportunities. Section 158 does not have the requirement for candidates to be equally qualified. 150 Disability claims The normal types of claim apply to disability, but additional types of claim are particular to it. These are 'discrimination arising from disability' and the reasonable adjustment duty. "Discrimination arising from disability" was a newly formulated test introduced after the House of Lords decision in Lewisham LBC v Malcolm and EHRC[11] was felt to have shifted the balance of protection too far away from disabled people.[12] Section 15 Equality Act 2010 creates a broad protection against being treated unfavourably "because of something arising in consequence of" the person's disability, but subject to the employer having an 'objective justification' defence if it shows its action was a legitimate means of achieving a legitimate aim. There is also a 'knowledge requirement', in that the employer has a defence if it shows it did not know, and could not reasonably be expected to know, that the person had the disability. Section 15 will apply, for example, where a disabled person is dismissed due to a long absence from work which resulted from their disability - the issue will be whether the employer can show the 'objective justification' defence applies (assuming the 'knowledge requirement' is met). The reasonable adjustment duty is particularly important. The duty can apply where a disabled person is put at a 'substantial' disadvantage in comparison with non-disabled people by a 'provision, criterion or practice' or by a physical feature. The employer's obligation is, broadly, to take such steps as it is reasonable to have to take to avoid the disadvantage (s 20 Equality Act 2010). 'Substantial' means only more than minor or trivial (s 212(1) Equality Act 2010). A further strand of the duty can require an employer to provide an auxiliary aid or service (s 20(5) Equality Act 2010). There are provisions dealing with employer's lack of knowledge of the disability (Equality Act 2010 Sch 8 para 20). Employers should actively pursue policies to accommodate protected groups into the workforce. This duty is made explicit in law for pregnant women and for people who are disabled. For people with religious sensitivities, particularly the desire to worship during work cases show there is no duty, but employers should apply their minds to accommodating their employee's wishes even if they ultimately decide not to. Enforcement The main outcome of the Equality Act 2006 was the establishment of a new Equality and Human Rights Commission, subsuming specialist bodies from before. Its role is in research, promotion, raising awareness and enforcement of equality standards. For lawyers, the most important work of predecessors has been strategic litigation[13] (advising and funding cases which could significantly advance the law) and developing codes of best practice for employers to use. Around 20,000 discrimination cases are brought each year to UK tribunals. Defences Occupational Requirement Under the Equality Act 2010 Sch 9,[14] a number of defences are available to employers who have policies which discriminate. An "occupational requirement" refers to exceptions to the prohibition on direct discrimination. An example could be a theatre requiring an actor of Black African origin to play a Black African character. An employer has the burden of showing that they genuinely need somebody of a particular gender, race, religion, etc., for the job. These exceptions are few. United Kingdom employment equality law 151 Material Difference Under section 23 of the Equality Act, in order to show that there has been discrimination, the claimant must show that there is no material difference between the claimant and the other person, or "comparator", who does not share the same protected characteristic. If the respondent can show that there is another cause for the different treatment, not related to the protected characteristic, then the claim will fail. Justification It is a defence to a claim of unlawful indirect discrimination, and also to a claim of direct discrimination on the ground of age, that the discriminatory act is "a proportionate means of achieving a legitimate aim" (sections 13(2) and 19). Equality protection People with a protected characteristic are protected from discrimination in employment, and in access to services, education, premises, and associations. Examples of prohibited discrimination include as customers, in social security, access to education and other public services. The UK Labour Government codified and strengthened the disparate heads of protection into a single act, namely the Equality Act 2010. Gender In the UK, equality between sexes has been a principle of employment law on since the 1970s, when the Equal Pay Act 1970 and the Sex Discrimination Act 1975 were introduced. Also, in 1972, the UK joined the European Community (now the EU). Article 141(1) of the Treaty of the European Community states, "Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied." • Directive 2006/54/EC "on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation". Equal pay • Villalba v Merrill Lynch & Co Inc [2007] ICR 469 [15] Race In the Weaver v NATFHE race discrimination case (also known as the Bournville College Racial Harassment issue), an Industrial Tribunal decided that a trade union’s principal obligation in race harassment cases is to protect the tenure of the accused employee. A member of a trade union making a complaint of workplace harassment against a fellow employee was not entitled to union advice and assistance, irrespective of the merit of the case, because the employee complained against could lose his job. The Employment Appeal Tribunal upheld the decision and extended the decision to cover complaints of sexist harassment.[16] War World 2 poster. • Ghai v Newcastle City Council [2010] EWCA Civ 59 United Kingdom employment equality law 152 Disability • Disability Discrimination (Meaning of Disability) Regulations 1996, (SI 1996/1455) esp. rr.3-5 • Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability [17] from the Department for Work and Pensions website [18], esp Part II, para A1; "a substantial effect [under s.1(1) DDA 1995] is one which is more than "minor" or "trivial", and provides that tribunals ought to have regard, in deciding whether an impairment has such an effect to" things like time for relevant activities, the way they are done, impairments' cumulative effects and the effects of behaviour and environment. • • • • Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 910 Thaine v London School of Economics [2010] ICR 1422 Clark v TDG Ltd (t/a Novacold Ltd) [1999] IRLR 318 Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19 Sexuality • Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661 (in effect from 1 December 2003) • Equality Act (Sexual Orientation) Regulations Religion or belief While direct discrimination on grounds of religion or belief is automatically unlawful, the nature of religions or beliefs leads to the conclusion that objective justification for disparate impact is easier. Beliefs often lead adherents to the need to manifest their closely held views, in a way which may conflict with ordinary requirements of the work place. There is not the same degree of privilege granted to beliefs as is to a disability, requiring "reasonable adjustments" for the wishes of the believer. So in cases where an adherent to a religion wishes to take time off to pray, or wear a particular article of clothing or jewellery, it will usually be within the right of the employer to insist that the contract of employment is performed as was initially agreed. This refusal of the law to grant privileged status to beliefs may reflect the element of choice in belief or the need of a secular society to treat all people, whether believers or not, equally.[19] Discrimination on grounds of religion was previously covered in an ad hoc way for Muslims and Sikhs through the race discrimination provisions. The new regulations were introduced to comply with the EU Framework Directive 2000/78/EC on religion or belief, age, sexuality and disability. • Article 9 ECHR - Freedom of religion • Islington LBC v Ladele [2009] EWCA Civ 1357 Age • Employment Equality (Age) Regulations 2006, SI 2006/1031 (now repealed and replaced by the Equality Act 2010)[20] • Seldon v Clarkson Wright & Jakes and another [2010] EWCA Civ 899[21] Work status protection More recently, two measures have been introduced, and one has been proposed, to prohibit discrimination in employment based on atypical work patterns, for employees who are not considered permanent. The Part-time Workers Regulations and the Fixed-term Employee Regulations were partly introduced to remedy the pay gap between men and women. The reason is, women are far more likely to be doing non-full-time permanent jobs. However following the Treaty of Amsterdam, a new Article 13 promised Community action to remedy inequalities generally. The abortive Agency Workers Directive was meant to be the third pillar in this programme. Discrimination against union members is also a serious problem, for the obvious reason that some employers view United Kingdom employment equality law unionisation as threat to their right to manage. 153 Part time workers • • • • • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551 McMenemy v Capital Business Ltd [2007] IRLR 400 Sharma v Manchester City Council [2008] IRLR 336 Matthews v Kent & Medway Towns Fire Authority [2006] IRLR 367 A McColgan, 'Missing the point?' (2000) 29 Industrial Law Journal 260 • O'Brien v Ministry of Justice [2010] UKSC 34 [22] Fixed term "employees" • Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034 Agency workers • Temporary and Agency Workers (Equal Treatment) Bill 2008 • Agency Workers Directive Union members • Amalgamated Society of Railway Servants v Osborne [1910] AC 87, Lords Shaw and James said trade union support for MPs was ‘unconstitutional and illegal’. Reversed in 1913. • Article 11 ECHR • Public Interest Disclosure Act 1998 • O'Kelly v Trusthouse Forte plc • Wilson and Palmer v United Kingdom • TULRCA 1992 ss 137-177 Notes [1] [2] [3] [4] The EHRC replaced the Commission for Racial Equality, the Equal Opportunities Commission, and the Disability Rights Commission. (1907) 15 SLT 471, 473 Quoted in Bartley, p. 98. Roberts v Hopwood [1925] AC 578, 594; this reversed a Court of Appeal judgment in favour of the council workers, led by the more formidable mind of Atkin LJ [5] Formerly the SDA 1975 s 4A, RRA 1976 s 3A, DDA 1995 s 3B, EE(SO)R 2003 r 5, EE(RB)R 2003 r 5, EE(A)R 2006 r 6 [6] Formerly the SDA 1975 s 4(1), RRA 1976 s 2, DDA 1995 s 55, EE(RB)R 2003 r 4, EE(SO)R 2003 r 4, EE(A)R 2006 r 4 [7] Formerly SDA 1975 ss 1(1)(b) and 1(2)(b), RRA 1976 ss 1(1)(b) and 1(1A), EE(RB)R 2003 r 3(b), EE(SO)R 2003 r 3(b), EE(A)R 2006 r 3(b) [8] http:/ / www. bailii. org/ ew/ cases/ EWCA/ Civ/ 1982/ 3. html [9] "Featherstone: new tools will help make the workplace fairer" (http:/ / www. equalities. gov. uk/ news/ featherstone_new_tools_will_h. aspx). Government Equalities Office. . Retrieved 16 January 2011. [10] "Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion" (http:/ / www. equalities. gov. uk/ news/ featherstone_new_tools_will_h. aspx). Government Equalities Office. . Retrieved 16 January 2011. [11] [2008] UKHL 43, [2008] IRLR 700 (overturning Clark v TDG Ltd (t/a Novacold Ltd) [12] "Consultation on Improving Protection From Disability Discrimination: Government Response" (http:/ / www. officefordisability. gov. uk/ docs/ cons-response-ipfdd. pdf). Office for Disability Issues. April 2009. . Retrieved 16 January 2011. [13] This has been in decline recently; in 2005 the Commission for Racial Equality only funded three cases, CRE, Annual Report 2005 (http:/ / www. cre. gov. uk/ downloads/ ar05_main. pdf) (London: CRE, 2006) whereas up to 1984 it was funding one fifth of all claims. [14] Formerly SDA 1975 s 7, RRA 1976 ss 4A and 5, EE(RB)R 2003 r 7, EE(SO)R 2003 r 7, EE(A)R 2006 r 8 [15] http:/ / www. bailii. org/ uk/ cases/ UKEAT/ 2006/ 0223_05_3103. html [16] website for decision text (http:/ / www. legalferret. net) [17] http:/ / www. dwp. gov. uk/ publications/ dwp/ 2005/ dda/ ddaguidance. pdf United Kingdom employment equality law [18] http:/ / www. dwp. gov. uk/ consultations/ 2005/ disability. asp [19] K Marx, Zur Kritik der Hegelschen Rechtsphilosophie (Paris 1844) 'Religion ist der Seufzer der bedrängten Kreatur, das Gemüt einer herzlosen Welt, wie sie der Geist geistloser Zuständer ist.' 'Religion is the sigh of a broken being, the heart of a heartless world, just as it is the soul of soulless surroundings.' [20] http:/ / www. agediscrimination. info/ legislation/ Pages/ IntheUK. aspx [21] http:/ / www. agediscrimination. info/ cases/ Pages/ ItemPage. aspx?Item=230 [22] http:/ / www. bailii. org/ uk/ cases/ UKSC/ 2010/ 34. html 154 References Books • Hugh Collins, Keith Ewing, Aileen McColgan, Labour Law, Text, Cases and Materials (Hart 2005) ISBN 1841133620 • Simon Deakin, Gillian Morris, Labour Law (Hart 2004) • Lord Wedderburn, The Worker and the Law (Sweet and Maxwell 1986) ISBN 0421370602 • Gary Becker The Economics of Discrimination (2nd edn 1971) • Richard Posner, ' The Efficiency and Efficacy of Title VII (http://www.jstor.org/stable/3312066)' (Dec 1987) 136(2) University of Pennsylvania Law Review 513-521 Articles • C O’Cinneide, “The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times” (2007) Industrial Law Journal 141 External links • Equality Act 2010 (http://www.legislation.gov.uk/ukpga/2010/15/contents) • Equality and Human Rights Commission (http://www.equalityhumanrights.com/) Trade Unions • Trade Union and Labour Relations (Consolidation) Act 1992 (http://www.legislation.gov.uk/ukpga/1992/52/ contents) Non-permanent workers • Part-time Worker Directive 97/81/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:31997L0081:EN:HTML) • Fixed-term Work Directive 99/70/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:31999L0070:EN:HTML) • Agency Workers Directive 2008/56/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:52002PC0149:EN:HTML) • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551 (http://www. opsi.gov.uk/si/si2000/20001551.htm) • Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034 (http:// www.opsi.gov.uk/si/si2002/20022034.htm) • Agency Work Regulations 2010, text here (http://www.publications.parliament.uk/pa/cm200708/cmbills/ 027/08027.i-i.html) Protected characteristics • Treaty of the European Community (http://eur-lex.europa.eu/en/treaties/dat/12002E/htm/C_2002325EN. 003301.html), whose Article 141 address equal pay between men and women. Article 13, introduced by the Treaty of Amsterdam in 1996, is the basis for • Framework Directive 2000/78/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:32000L0078:EN:HTML) United Kingdom employment equality law • Race Equality Directive 2000/43/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=CELEX:32000L0043:EN:HTML) • Equal Treatment Directive 2006/54/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ. do?uri=OJ:L:2006:204:0023:01:EN:HTML), replacing 97/80/EC (http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:31997L0080:EN:HTML), 76/207/EEC (http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:31976L0207:EN:HTML) and 2002/73/EC (http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:32002L0073:EN:HTML) Other websites • Support for employers - Employers' Forum on Disability (http://www.efd.org.uk) • Disability Standard (http://www.disabilitystandard.com) Benchmark for Employers • Agediscrimination.info (http://www.agediscrimination.info) - for age discrimination statistics and information aimed at employers, employees, researchers, students, journalists and others interested in age discrimination issues in the UK. 155 Equality and Human Rights Commission The Equality and Human Rights Commission (EHRC) is a non-departmental public body in Great Britain which was established by the Equality Act 2006 and came into being on 1 October 2007. The Commission has responsibility for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales. It took over the responsibilities of three former commissions: the Commission for Racial Equality, the Equal Opportunities Commission (which dealt with gender equality) and the Disability Rights Commission. It also has responsibility for other aspects of equality: age, sexual orientation and religion or belief. As a national human rights institution, it seeks to promote and protect human rights in Great Britain (with the exception of matters falling within the remit of the Scottish Human Rights Commission, SHRC). The EHRC has offices in Manchester, London, Glasgow and Cardiff. It is classed as a non-departmental public body sponsored by the Government Equalities Office, meaning that it is separate and independent from Government but still accountable for its public funds. The chairman of the Commission is Trevor Phillips who was previously chairman of the Commission for Racial Equality. The EHRC's functions do not extend to Northern Ireland where there is a separate Equality Commission (ECNI) and a Human Rights Commission (NIHRC), both established under the terms of the Belfast Agreement. Powers The EHRC derives its powers from the Equality Act 2006, which resulted from the government white paper, Fairness for All: A New Commission for Equality and Human Rights.[1] Section 3 states the EHRC has a general duty to work towards the development of a society where equality and rights are rooted. This is taken to mean, (a) people’s ability to achieve their potential is not limited by prejudice or discrimination, (b) there is respect for and protection of each individual’s human rights (including respect for the dignity and worth of each individual), (c) each person has an equal opportunity to participate in society, and (d) there is mutual respect between communities based on understanding and valuing of diversity and on shared respect for equality and human rights. Section 30 strengthens the EHRC's ability to apply for judicial review and to intervene in court proceedings, through giving explicit statutory provision for such action. Sections 31-2 gives the EHRC a new power to assess public authorities' compliance with their positive equality duties. They can issue "compliance notices" if it finds a public authority is failing in its duties. Public authorities, importantly, are bound under the Human Rights Act 1998 to act in Equality and Human Rights Commission a way compatible with the European Convention on Human Rights (s.6 HRA). The EHRC's role is therefore one of catching matters before they lead to the courts. So if you work for a public sector employer (like a local council or the civil service) there are more avenues to hold enforce equality standards in your favour. This may seem somewhat odd, considering that public sector employers are consistently shown to have excellent workplace practices.[2] Section 30(3) of the Equality Act 2006 allows the EHRC to bring judicial review proceedings under the HRA against public authorities. This is a stronger tool than usual, because the EHRC is not subject to the normal requirement of being a "victim" of a Human Rights violation.[3] Under section 24, the EHRC can enter into binding agreements with employers. So for instance, it can agree that an employer will commit to equality best practice audits or avoid discriminatory practices that it may identify, in return for not investigating (a bad thing for employers' publicity). It can enforce these agreements through injunctions. Previously only the Disability Rights Commission had such powers, the CRE and the EOC were more limited. For instance, the EOC used only to have the power to get injunctions against bodies with a bad track record of discrimination.[4] Section 20 gives the EHRC the power to carry out investigations when it has the "suspicion" of unlawful discrimination taking place. Before this had been limited to a requirement of "reasonable suspicion" which in effect led the predecessors to be much more cautious. In legal terms this is the difference between an irrationality test and a reasonable man test. In other words, a court could not declare an investigation unlawful unless it considered that the EHRC was carrying out an investigation where no reasonable person could have come to the same conclusion. Before a court could declare an investigation unlawful if it thought that the proverbial "man on the Clapham Omnibus" would not regard an employer as being a suspect "discriminator". There are some complications in relation to the Human Rights Act 1998 with the EHRC's powers. If it is going to be a "named investigation" (i.e. the employer will probably get shamed by the publication of its name during an investigation), the EHRC cannot start an investigation into a public authority for breaches under the HRA. Also, it cannot support individual cases in tribunals and courts where the issue would concern matters that fall only under the HRA and not under some pre-existing British equality legislation (like the Sex Discrimination Act 1975). Practically this will be problematic, not least because if a claim did exist under the HRA, British legislation which did not cover such problems would usually be updated to comply with European Convention rights (these are the ones that the HRA implements). Also, the line between what is in the European Convention, what is actually covered by domestic legislation, is difficult to draw. At any rate, section 28 gives the Minister the power to give authorisation for a discrimination case to be fought if a domestic legislation issue has dropped away, but a purely human rights issue remains. As a successor body, the EHRC's new powers are not dramatic. Some people have called for the changes to go further, for instance, to allow the EHRC to bring proceedings against employers in its own name on any issue (not just human rights ones).[5] The American, Australian, Belgian, Canadian and New Zealand counterparts can. 156 International status Although it operates at sub-national level, the EHRC was in 2009 recognised as a member of the worldwide network of national human rights institutions, securing "A status" accreditation from the International Co-ordinating Committee of NHRIs (ICC). This gives the Commission enhanced access to the Human Rights Council, treaty bodies and other United Nations human rights bodies. The EHRC was the second NHRI in the UK, following the creation of the Northern Ireland Human Rights Commission (NIHRC) in 1999, and the Scottish Human Rights Commission (SHRC) became the third to gain ICC accreditation in 2010. The three bodies share representation and voting rights in the ICC and its regional network, the European Group of NHRIs. The EHRC has since 2008 engaged in parallel reporting ("shadow reporting") at examinations of the UK under the UN and Council of Europe human rights treaties, and in the Universal Periodic Review. It was designated in 2008 as part of the United Kingdom's independent mechanism for promoting, monitoring and protecting implementation in Equality and Human Rights Commission the state of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). (It shares that role with the other two NHRIs in the UK - the NIHRC and SHRC - and the Equality Commission for Northern Ireland.) The EHRC chairs the CRPD Working Group of the European Group of NHRIs. 157 Campaigns Working Better The Working Better Initiative was launched with a remit of coming up with innovative ways to meet the needs of modern workforce, with a particular focus on flexibility and family life. The Home Front survey[6] formed part of the initial consultation process. Good Relations The Commission aims to provide research and resources and advice to Local Authorities and to enable greater understanding between communities. Care and Support A report[7] produced by the Commission highlighted the need to shift from a 'safety net' approach to care to a 'springboard'. The report suggested ways that individuals could be given greater autonomy over their lives and encouraged to engage in society and make social and economic contributions. Litigation against the British National Party Following the election of 2 MEPs from the British National Party (BNP), a potential issue of public funding was raised by the commission as the BNP constitution states that recruitment is only open to members who are "indigenous Caucasian and defined ethnic groups emanating from that Race"[8] The Commission's legal director John Wadham has stated that "The legal advice we have received indicates that the British National party's constitution and membership criteria, employment practices and provision of services to constituents and the public may breach discrimination laws which all political parties are legally obliged to uphold"[9] This relates to the Race Relations Act 1976,[9] which outlaws the refusal or deliberate omission to offer employment on the basis of non-membership of an organisation. However the Race Relations Act sections 25 and 26 allow for exclusively ethnic organisations with a membership of fifty or more. The commission sent a letter to the BNP giving them until 20 July to provide written undertakings that there will not be discrimination in its recruitment procedures.[9] The BNP responded to the letter by stating that it "intends to clarify the word 'white' on its website".[10] However, because the commission believes the BNP will continue to discriminate against potential or actual members on racial grounds, on 24 August 2009 the commission announced that they had issued county court proceedings against the BNP.[10] [11] In a statement the commission reduced the grounds on which it was taking action against the BNP, stating "The Commission believes the BNP's constitution and membership criteria are discriminatory and, further, that the continued publication of them on the BNP website is unlawful. It has therefore issued county court proceedings against party leader Nick Griffin and two other officials. The Commission has decided not to take action on two further grounds set out in its letter before action in the light of the BNP's commitment to comply with the law."[10] Equality and Human Rights Commission 158 Commissioners The Commission is made up of 15 commissioners with backgrounds in various fields of equality and human rights. As of May 2010 they are: • • • • • • • Trevor Phillips OBE (chair) Baroness Prosser OBE (deputy chair) Stephen Alambritis Ann Beynon OBE Kay Carberry CBE Baroness Greengross OBE Meral Hussein Ece OBE • • • • • • • Dr Jean Irvine OBE Kaliani Lyle Angela Mason Baroness Sherlock OBE Michael Smith Simon Woolley Professor Geraldine Van Bueren Some of the first set of Commissioners resigned towards the end of their first term, while others did not seek a second term. The Commissioners included Morag Alexander, Kay Allen, Baroness Jane Campbell of Surbiton, Jeannie Drake CBE, Joel Edwards, Professor Kay Hampton, Francesca Klug, Sir Bert Massie CBE, Ziauddin Sardar, Ben Summerskill and Dr Neil Wooding. Nicola Brewer, the first chief executive (and ex officio Commissioner), returned to the diplomatic service. Offices The EHRC has four offices: in London (at More London, on the River Thames Bankside), in Manchester (in the Arndale Centre), in Cardiff (in Callaghan Square), and in Glasgow.[12] Notes [1] Fairness for All (http:/ / www. womenandequalityunit. gov. uk/ equality/ project/ cehr_white_paper. pdf) from the government's Women and Equality Unit website (http:/ / www. womenandequalityunit. gov. uk/ equality/ project/ project. htm) [2] see, for instance, Michael Rubenstein Equality, the private sector and the Discrimination Law Review: A preliminary report (http:/ / www. edf. org. uk/ news/ MichaelRubenstein. doc) at [29] [3] see s.7(1)(b) HRA 1998; usually you can only bring a Human Rights claim if you are actually the person whose rights are violated. You cannot do it on someone else's behalf. [4] s. 73 of the Sex Discrimination Act 1975 [5] Colm O’Cinneide, “The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times” (2007) Industrial Law Journal 141, 157 [6] Home front survey on Mumsnet (http:/ / www. mumsnet. com) [7] Care and Support report (http:/ / www. equalityhumanrights. com/ key-projects/ care-and-support/ ) [8] British National Party Constitution (9th edition) (http:/ / bnp. org. uk/ Constitution 9th Ed Sep 2005. pdf) SECTION 2: MEMBERSHIP point 1) [9] http:/ / www. guardian. co. uk/ politics/ 2009/ jun/ 23/ bnp-membership-policies-legal-threat [10] http:/ / www. equalityhumanrights. com/ media-centre/ commission-issues-county-court-proceedings-against-the-bnp/ [11] http:/ / news. bbc. co. uk/ 1/ hi/ uk/ 8218397. stm [12] Equality and Human Rights Commission website (http:/ / www. equalityhumanrights. com/ our-job/ contact-us/ ) retrieved 19 January 2010 External links • Equality and Human Rights Commission (http://www.equalityhumanrights.com) • Northern Ireland Human Rights Commission (http://www.nihrc.org) • Scottish Human Rights Commission (http://www.scottishhumanrights.com) 159 Asia Fundamental Rights in India 'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color or Gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The six fundamental rights recognised by the constitution are:[1] link http:/ / lawmin. nic. in/ coi/ coiason29july08. pdf 1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. 2) Right to freedom which includes speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality, right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases. 3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings; 4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. 5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice; and 6) Right to constitutional remedies for enforcement of Fundamental Rights. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions. Right to property was originally a fundamental right, but is now a legal right. Fundamental Rights in India 160 Genesis The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789).[2] Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Britishers political parties. In 1919, the Rowlatt Act gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population. In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom.[3] Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges. When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives under the presidency of Rajendra Prasad. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws.[4] Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions. The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee. Significance and characteristics The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State.[5] According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights.[6] Fundamental Rights in India All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation".[7] In some cases, High Court judges have acted on their own on the basis of newspaper reports. These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens.[8] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.[9] Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals.[10] For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled[11] that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Features such as secularism and democracy fall under this category. Since the fundamental rights can only be altered by a constitutional amendment, their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures.[12] A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well. 161 Right to equality Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following: • Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State[5] cannot discriminate any of the Indian citizens on the basis of their caste, creed, colour, sex,gender, religion or place of birth.[13] • Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.[14] • Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion.[15] According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of India.[9] Fundamental Rights in India • Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offense and anyone doing so is punishable by law.[16] The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well. • Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State.[17] The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India — these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition".[18] The Supreme Court, on 15 December 1995, upheld the validity of such awards. 162 Right to freedom The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the following six freedoms:[19] • Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality. • Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India. • Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India. • Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics. • Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion.[20] Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.[21] • Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade. The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced: • Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "Duress" (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This Fundamental Rights in India principle was first established in the Magna Carta.[22] • Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law.[23] This means that a person's life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year.[24] In 1996 however another Supreme Court ruling nullified the earlier one.[25] ) "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.[26] • In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age.[27] Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It is now soon to be tabled in Parliament for approval before it makes a fundamental right of every child to get free and compulsory education.[28] • Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.[29] The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency. 163 Right against exploitation The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labor),[30] and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution.[31] Begar, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision.[30] Child labour and Begar is prohibited under Right against exploitation. Right to freedom of religion Fundamental Rights in India Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health.[32] No person shall be compelled to pay taxes for the promotion of a particular religion.[33] A State run institution cannot impart education that is pro-religion.[34] Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.[35] 164 Cultural and educational rights As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions.[36] All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against The Flag of India any institution on the basis of the fact that it is administered by a minority institution.[37] But the right to administer does not mean that the State can not interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission. Right to constitutional remedies Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government.[38] Fundamental Rights in India 165 Critical analysis The fundamental rights have been criticised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity,[39] though these provisions have been enshrined in the Directive Principles of state policy.[40] The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive".[39] There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency. The provisions of acts like the Maintenance of Internal Security Act (MISA) and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights.[39] The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality is criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation.[39] The freedom to assemble peacably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.[41] [42] "Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate.[39] Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India.[43] India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide.[44] The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill'', 2003.[9] Amendments Changes to the fundamental rights require a constitutional amendment which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house — whether the Lok Sabha or Rajya Sabha. The right to education at elementary level has been made one of the fundamental rights under the Eighty-Sixth Amendment of 2002.[27] Right to property The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose off property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes. The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights[45] A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.[39] Fundamental Rights in India The liberalisation of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property.[46] The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL [47] As in 2007 the supreme court unanimously said that the fundamental rights are a basic structure of the constitution and cannot be removed or diluted. 166 Right To Education Article 21A - On 1 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force.[48] Making elementary education an entitlement for children in the 6-14 age group, the Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present. Prime Minister Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 6-14 age group get schooling. As per the Act, private educational institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs. 25,000 crore to the States for implementing the Act. The Centre has approved an outlay of Rs.15,000 crore for 2010-2011. The school management committee or the local authority will identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training. References • • Basu, Durga Das (1988). Shorter constitution of India. New Delhi: Prentice Hall of • India. Basu, Durga Das (1993). Introduction to the constitution of India. New Delhi: Prentice Hall of India. [49] "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69" . World [50] Legal Information Institute . Retrieved 2006-05-25. Date of ruling 15 December 1995 • • Maneka Gandhi v. Union of India; AIR 1978 S.C. 597, (1978). Pylee, M.V. (1999). India's constitution. New Delhi: S. Chand and Company. ISBN 81-219-1907-X. Sinha, Savita; Das, Supta; Rashmi, Neeraja (2005). Social Science – Part II. New Delhi: National Council of Educational Research and Training, India. ISBN 81-7450-351-X. Tayal, B.B.; Jacob, A. (2005). Indian History, World Developments and Civics. District Sirmour, Himachal Pradesh: Avichal Publishing Company. ISBN 81-7739-096-1. O'Flaharty, W.D.; J.D.M., Derrett (1981). The Concept of Duty in Asia; African Charter on Human and People's Right of 1981. Article 29 of Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. • • "Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461, (1973) 4 SCC • [51] 225" . Wikipedia. Retrieved 2006-05-25. In this case, famously known as the "Fundamental Rights case", the Supreme Court decided that the basic structure of the Constitution of India was unamendable. Laski, Harold Joseph (1930). Liberty in the Modern State. New York and London: Harpers and Brothers. • • • Fundamental Rights in India 167 Footnotes [1] [2] [3] [4] Constitution of India-Part III Fundamental Rights. Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-23 Gandhi, Rajmohan. Patel: A Life. p. 206. UNI. "Sardar Patel was the real architect of the Constitution" (http:/ / www. rediff. com/ freedom/ 22patel. htm). Rediff.com. . Retrieved 2006-05-15. [5] The term "State" includes all authorities within the territory of India. It includes the Government of India, the Parliament of India, the Government and legislature of the states of India. It also includes all local or other authorities such as Municipal Corporations, Municipal Boards, District Boards, Panchayats etc. To avoid confusion with the term states and territories of India, State (encompassing all the authorities in India) has been capitalized and the term state (referring to the state governments) is in lowercase. [6] Laski, Harold Joseph (1930). Liberty in the Modern State. New York and London: Harpers and Brothers. [7] "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69" (http:/ / www. worldlii. org/ int/ cases/ ICHRL/ 1995/ 69. html). World Legal Information Institute (http:/ / www. worldlii. org/ ). . Retrieved 2006-05-25. This was the case where Public interest litigation was introduced (date of ruling 15 December 1995). [8] Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-25 [9] "Citizenship (Amendment) Bill, 2003" (http:/ / web. archive. org/ web/ 20060425230738/ http:/ / rajyasabha. nic. in/ legislative/ amendbills/ XXXIX_2003. pdf) (PDF). Rajya Sabha (http:/ / rajyasabha. nic. in/ ). pp. 5. Archived from the original (http:/ / rajyasabha. nic. in/ legislative/ amendbills/ XXXIX_2003. pdf) on April 25, 2006. . Retrieved 2006-05-25. [10] "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69" (http:/ / www. worldlii. org/ int/ cases/ ICHRL/ 1995/ 69. html). World Legal Information Institute (http:/ / www. worldlii. org/ ). . Retrieved 2006-05-25. This was the case where fundamental rights were enforced against private individuals (date of ruling 15 December 1995). [11] Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461, (1973) 4 SCC 225 — In what became famously known as the "Fundamental Rights case", the Supreme Court decided that the basic structure of the Constitution of India was unamendable [12] Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-24 [13] Constitution of India-Part III Article 14 Fundamental Rights. [14] Constitution of India-Part III Article 15 Fundamental Rights. [15] Constitution of India-Part III Article 16 Fundamental Rights. [16] Constitution of India-Part III Article 17 Fundamental Rights. [17] Constitution of India-Part III Article 18 Fundamental Rights. [18] Basu, Durga Das (1988). Shorter Constitution of India. New Delhi: Prentice Hall of India. Basu, Durga Das (1993). Introduction to the Constitution of India. New Delhi: Prentice Hall of India. [19] Constitution of India-Part III Article 19 Fundamental Rights. [20] Pylee, M.V. (1999). India's Constitution. New Delhi: S. Chand and Company. ISBN 81-219-1907-X. [21] Vasudha Dhagamwar (4 May 2004). "The price of a Bill" (http:/ / www. indianexpress. com/ oldStory/ 46240/ ). . Retrieved 24 March 2009. [22] Constitution of India-Part III Article 20 Fundamental Rights. [23] Constitution of India-Part III Article 21 Fundamental Rights. [24] Nandan G (May 1994). "Indian grants right to suicide" (http:/ / www. bmj. com/ cgi/ content/ full/ 308/ 6941/ 1392). BMJ 308 (6941): 1392. . [25] Paper 3: Abolition and Restoration of Section 309 IPC – an overview by BR Sharma, A Sharma, D Harish: Anil Aggrawal's Internet Journal of Forensic Medicine: Vol. 7, No. 1 (January - June 2006) (http:/ / www. geradts. com/ anil/ ij/ vol_007_no_001/ papers/ paper003. html) [26] Maneka Gandhi v. Union of India; AIR 1978 S.C. 597, (1978). [27] 86th Amendment Act, 2002 (http:/ / indiacode. nic. in/ coiweb/ amend/ amend86. htm). [28] right to education bill (http:/ / www. indg. gov. in/ primary-education/ policiesandschemes/ right-to-education-bill). [29] Constitution of India-Part III Article 22 Fundamental Rights. [30] Constitution of India-Part III Article 23 Fundamental Rights. [31] Constitution of India-Part III Article 24 Fundamental Rights. [32] Constitution of India-Part III Article 26 Fundamental Rights. [33] Constitution of India-Part III Article 27 Fundamental Rights. [34] Constitution of India-Part III Article 28 Fundamental Rights. [35] Constitution of India-Part III Article 25 Fundamental Rights. [36] Constitution of India-Part III Article 29 Fundamental Rights. [37] Constitution of India-Part III Article 30 Fundamental Rights. [38] Constitution of India-Part III Article 32 Fundamental Rights. [39] Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-33 [40] Constitution of India-Part IV Article 41 Directive Principles of State Policy. [41] Senior Inspector justifies lathi-charge (http:/ / web. mid-day. com/ news/ city/ 2006/ may/ 137263. htm) during the 2006 Indian anti-reservation protests Fundamental Rights in India [42] Lathi Charge in Mumbai (http:/ / www. dnaindia. com/ report. asp?NewsID=1029206& CatID=1) during the 2006 Indian anti-reservation protests [43] "Child labour in India" (http:/ / www. indiatogether. org/ photo/ 2006/ chi-labour. htm). India Together (http:/ / www. indiatogether. org). . Retrieved 2006-06-27. [44] Index of perception of corruption, published by Transparency International. [45] 44th Amendment Act, 1978 (http:/ / indiacode. nic. in/ coiweb/ amend/ amend44. htm). [46] Mahapatra, Dhananjay (28 February 2009). "Should right to property return?" (http:/ / timesofindia. indiatimes. com/ India/ Should-right-to-property-return/ articleshow/ 4202212. cms). The Times of India. . Retrieved 8 July 2010. [47] "Court rejects plea to make property a fundamental right" (http:/ / www. thehindu. com/ news/ national/ article836599. ece). The Hindu (Chennai, India). 19 October 2010. . [48] "Education is now a fundamental right of every child" (http:/ / www. hindustantimes. com/ Education-is-now-a-fundamental-right-of-every-child/ Article1-525653. aspx). Hindustan Times. 1 April 2010. . Retrieved 8 July 2010. [49] http:/ / www. worldlii. org/ int/ cases/ ICHRL/ 1995/ 69. html [50] http:/ / www. worldlii. org/ [51] http:/ / en. wikipedia. org/ wiki/ Basic_structure#The_Kesavananda_Case_of_1973 168 National Human Rights Commission of India The National Human Rights Commission (NHRC) of India is an autonomous statutory body established on 12 October 1993,[1] under the provisions of The Protection of Human Rights Act, 1993[2] (TPHRA). Functions TPHRA mandates the NHRC to perform the following functions: • proactively or reactively inquire into violations of human rights or negligence in the prevention of such violation by a public servant • visit any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates and make recommendations • review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation • review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures • study treaties and other international instruments on human rights and make recommendations for their effective implementation • undertake and promote research in the field of human rights • spread literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means • encourage the efforts of NGOs and institutions working in the field of human rights • such other function as it may consider it necessary for the protection of human rights. • take suo motu action, if required in a case if the victim is not in a position to access a court. National Human Rights Commission of India 169 Composition and appointment Sections 3 and 4 of TPHRA lay down the rules for appointment to the NHRC. The Chairperson and members of the NHRC are appointed by the President of India, on the recommendation of a committee consisting of: • • • • • • The Prime Minister (chairperson) The Speaker of the House of the People The Minister-in-charge of the Ministry of Home Affairs in the Government of India The Leader of the Opposition in the House of the People The Leader of the Opposition in the Council of States The Deputy Chairman of the Council of States The NHRC consists of: • • • • A Chairperson who has been a Chief Justice of the Supreme Court of India One Member who is, or has been, a Judge of the Supreme Court of India One Member who is, or has been, the Chief Justice of a High Court Two Members to be appointed from among persons having knowledge of, or practical experience in, matters relating to human rights In addition to this, the Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes, National Commission for the Scheduled Tribes, and the National Commission for Women, serve as ex officio members. The current chairperson of the NHRC is Hon'ble Justice Shri K G Balakrishnan, and the other members are: • • • • • • Hon'ble Justice Shri Govind Prasad Mathur. Hon'ble Justice Shri B.C. Patel. Shri P.C. Sharma Shri Satyabrata Pal Shri Wajahat Habibullah, Chairperson, National Commission for Minorities Ms. Mamta Sharma, Acting Chairperson, National Commission for Women. International status The NHRC has been accredited with "A status" by the International Coordinating Committee of National Human Rights Institutions (the ICC), indicating that it is in conformity with the Paris Principles - a broad set of principles agreed upon by a conference of experts on the promotion and protection of human rights, in Paris in October 1991, and subsequently endorsed by the UN General Assembly. The Commission is thus entitled to participate in the ICC and in its regional sub-group, the Asia Pacific Forum. The NHRC currently maintains the global NHRI Forum [3] web portal on behalf of the ICC. National Human Rights Commission of India 170 Controversy A report concerning the manner of which the Shivani murder controversy case was rejected, a case which involved high ranking officials being implicated in the murder of a journalist, opened the organisation up to questioning over the usefulness of human rights commissions setup by the government at the national and state levels.[4] References [1] [2] [3] [4] http:/ / nhrc. nic. in/ Publications/ NHRCbrochure. pdf http:/ / nhrc. nic. in/ Publications/ HRActEng. pdf http:/ / www. nhri. net http:/ / www. indiatogether. org/ humanrights/ opinions/ nhrcshiv. htm External links • National Human Rights Commission Official Website (http://nhrc.nic.in/) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 171 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and Rules 1995 Citation Enacted by Date enacted Date commenced Official Act [1] Parliament of India 11 September 1989 31 March 1995 (Rules notified Summary [2] ) Preventing atrocities against the members of the scheduled castes and scheduled tribes Keywords Caste, Dalit, POA, SC/ST Act, Atrocities Act The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 was enacted by the Parliament of India(Act 33 of 1989), to prevent atrocities against Scheduled castes and scheduled tribes. The Act is popularly known as POA, the SC/ST Act, the Prevention of Atrocities Act or simply the Atrocities Act. The purpose of the Act was to help the social inclusion of Dalits into Indian society, but the Act has failed to live up to its expectations admitted by the Union Minister for Home Affairs in parliament on 30 August 2010 (quoted below)[3] . Article 17 of Indian Constitution seeks to abolish ‘Untouchability’ and its practice in any form is forbidden. It is basically a “statement of principle” that needs to be made operational with the ostensible objective to remove humiliation and multifaceted harassments meted to the Dalits and to ensure their fundamental and socio economic, political and cultural rights. This is to free Indian society from blind and irrational adherence to traditional beliefs and to establish a bias free society. For that, Untouchability (Offences) Act 1955 was enacted. However, lacunae and loopholes impelled the government to project a major overhaul of this legal instrument. From 1976 onwards the Act was revamped as the Protection of Civil Rights Act. Despite various measures adopted to improve the socio-economic conditions of the SCs and STs they remain vulnerable and are subject to various offences, indignities and humiliations and Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 harassment. When they assert their rights and against the practice of Untouchability against them the vested interest try to cow them down and terrorize them. Atrocities against the SCs and STs, still continued. The normal provisions of the existing laws like, the Protection of Civil Rights Act 1955 and Indian Penal Code have been found inadequate to check these atrocities[4] continuing the gross indignities and offences against Scheduled Castes and Tribes. Recognizing these, the Parliament passed ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act’, 1989 & Rules, 1995. The statement of objects and reasons appended to the Bill while moving the same in the Parliament, reads “despite various measures to improve the socioeconomic conditions of SCs & STs, they remain vulnerable. They are denied a number of civil rights; they are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious atrocities are committed against them for various historical, social and economic reasons.” The preamble of the Act also states that the Act is “to prevent the commission of offences of atrocities against the members of Scheduled Castes and Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offenses and for matters connected therewith or incidental thereto.” Thus objectives of the Act clearly emphasize the intention of the Government to deliver justice to these communities through proactive efforts to enable them to live in society with dignity and self-esteem and without fear or violence or suppression from the dominant castes. The practice of untouchability, in its overt and covert form was made a cognizable and non compoundable offence, and strict punishment is provided for any such offence. The SCs and STs (Prevention of Atrocities) Act, 1989 with stringent provisions (which extends to whole of India except the State of Jammu & Kasmhir) was enacted on 9 September 1989. Section 23(1) of the Act authorises the Central Government to frame rules for carrying out the purpose of the Act. Drawing power from this section, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules of 1995 were framed.[5] The rules for the Act were notified on 31 March 1995. 172 Salient features The salient features of the Act are: 1. 2. 3. 4. 5. 6. 7. Defines various types of atrocities against SCs/STs (Section 3(1)i to xv and 3(2)i to vii). Prescribes stringent punishment for such atrocities (Section 3(1)i to xv and 3(2)i to vii). Provides relief and rehabilitation package for victims of atrocities (Rule 11, 12(4)) Setting up of Special Courts (Section 14) and Special Public Prosecutor (Section 15) Identification of atrocities prone area. (Rule 3(1)) Setting up deterrents to avoid committing of atrocities on the SCs amongst others (Rule 3). Setting up a mandatory, periodic monitoring system at different levels: * District level (Rule 3xi, 4(2), 4(4), 17) * State level (8xi, 14, 16, 18) and * National level (Section 21(2), 21(3), 21(4)) Together with the rules, it provides a framework for monitoring the state response to the atrocities against Scheduled Castes and Scheduled Tribes. According to the Act and Rules, there are to be monthly reports (from the District Magistrates), quarterly review meetings at the district level by the District Monitoring and Vigilance Committee (DVMC) and half yearly reviews by a 25 member State Monitoring and Vigilance Committee (SVMC) the chaired by the Chief Minister. The performance of every Special Public Prosecutor (SPP) will also have to be reviewed by the Director of Public Prosecutions (DPP) every quarter. Annual reports have to be sent to the central government by 31 March every year. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 The Act and Rules are a potent mechanism and precision instruments that can be used in tandem with the Right To Information (RTI) Act 2005 to motivate the state to hold the mandatory meetings and enforce compliance. A monitoring calendar has been developed from the Act and rules to help human rights defenders[6] . 173 Special Courts For speedy trial, Section 14 of the Act provides for a Court of Session to be a Special Court to try offences under this Act in each district. Rule 13(i) mandates that the judge in a special court be sensitive with right aptitude and understanding of the problems of the SCs and STs. However, that is seldom the case. Most states have declared a court as a 'special court'. The hitch is that they are designated courts (as opposed to exclusive special courts) and so have to hear many other cases too. Consequently, at any time about 80% of the cases are pending[7] --defeating the very purpose of having special courts in the first place. Special Court Justice Ramaswamy observed in the case of State of Karnataka v. Ingale [8] that more than seventy-five percent of the cases brought under the SC/ST Act end in acquittal at all levels. The situation has not improved much since 1992 according to the figures given by the 2002 Annual Report dealing with SC/ST Act (of the Ministry of Social Justice and Empowerment)[9] Of the total cases filed in 2002 only 21.72% were disposed of, and, of those, a mere 2.31% ended in conviction. The number of acquittals is 6 times more than the number of convictions and more than 70 percent of the cases are still pending.[10] Inaugurating a two-day annual conference of State Ministers of Welfare/Social Justice, 8 Sept 2009, Prime Minister Singh expressed 'shock' that the conviction rate of cases of atrocities against the SC/STs is less than 30% against the average of 42% for all cognisable offences under the Indian Penal Code.[11] Karnataka has only 8 Special courts, though 15 of 30 districts are declared 'atrocity prone'. Overall conviction rates remain at or below 5%. Even the few special courts seem to be biased. In 2010, of the 101 cases disposed of in the Tumkur special court, not one was convicted. Gulbarga, another atrocity prone district had a conviction rate of just 2%. 7 districts had a conviction rate of 0% in 2010.[12] Investigation According to Rule 7(1)[13] investigation of an offence committed under the SC/ST Act cannot be investigated by an officer not below the rank of Deputy Superintendent of Police (DSP). Various High Courts have vitiated the trail based on the above rule and have improperly set aside the order of conviction.[14] . The rule was to ensure that the investigations were of high quality, and the assumption was that senior officials would not be as biased, nor as vulnerable to other pressures, as those in the lower rungs of the police force. But the judges in their wisdom have allowed perpetrators to go free based on this legal fig leaf. The Andhra Pradesh High Court, in D. Ramlinga Reddy v. State of AP,[15] took the position that provisions of Rule 7 are mandatory and held that investigation under the SC/S (Prevention of Atrocities) Act has to be carried out by only an officer not below the rank of DSP. An investigation carried out and charge sheet filed by an incompetent officer is more than likely to be quashed. Similarly, the Madras High Court in M. Kathiresam v. State of Tamil Nadu[16] held that investigation conducted by an officer other than a DSP is improper and bad in law and proceedings based on such an investigation are required to be quashed. The Courts without taking into consideration the inadequacies of the State, have been punishing SC/STs (the victims) for the same. Shri Pravin Rashtrapal, Member of Parliament rightly pointed out that there are insufficient officers at that level.[17] His statement is supported by the Annul Report of 2005-2006 of Ministry of Home Affairs.[18] Of the total posts sanctioned by the government under Indian Police Service (IPS) more than 15 percent of the posts are vacant. This basically means that there is one IPS officer for 77,000 SC/STs.33 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 In the case of Karnataka, there were no officers of the required rank in three districts, as admitted by the government at the State Vigilance and Monitoring Committee (SVMC) in September 2010. [19] Though officers of higher rank can conduct the investigation (the Act only says 'at least of rank'), in practice they seldom do. 174 Compensation Atrocities often take place when persons belonging to the SC community do not fulfill their 'caste functions' by doing ritually prescribed 'unclean' work or break the caste boundaries such as sitting in the bus or wearing a turban--often the preserve of the dominant castes. Atrocities are often a form of 'collective' punishment for daring to have even some semblance of non-dependence which is termed as 'prosperous', and the atrocity is to bring them back into the situation of total dependence and servitude. The state therefore has the duty to help the community back on its feet. In fact, a part of the reason why atrocities are committed is economic activity. In my experience, I have seen that in some areas, the Scheduled Caste or the Scheduled Tribe person is prosperous. My knowledge is mostly about the Scheduled Caste, not about the Scheduled Tribe. It is because of the economic activity, because of the enterprise, there are areas where the Scheduled Caste people have also become prosperous. The Scheduled Caste people are able to build brick and stone houses. The Scheduled Caste people are able to acquire vehicles. The Scheduled Caste people are able to dress better, send their children to better schools. One of the reasons why atrocities take place in those places is to cripple them economically. Every riot, every arson case cripples them economically. Therefore, it is important that the State must immediately rush in social and economic measures for the rehabilitation of those who have suffered through these atrocities.[20] The government has prescribed a schedule for compensation for Relief Amount. This is periodically updated. [21] under Rule 12.(4)) as Annexure 1 entitled Norms The record As ‘police’ and ‘public order’ are state subjects, primary responsibility for prevention of atrocities and maintenance of law and order rests with the State Governments. A responsive police administration has always been recognized as an essential requirement in any society that seeks to take care of its citizens. Such responsive administration is essential for prevention of atrocities likely to be inflicted upon SCs and STs by unscrupulous non-SC/ST elements. Section 21(1) and (2) of SC/ST (POA) Act, 1989 stipulate that the State Government shall take all such measures as may be necessary for its effective implementation. However despite the Act and Rules, the situation has not changed much. The incidence of atrocities is actually increasing, and the implementation of the law leaves much to be desired as this statement of the Union Minister for Home Affairs shows: "Madam, I must concede that the statistics do not reflect any decline in the atrocities. On the contrary, the information compiled by the Crime Records Bureau shows that the number of cases registered of atrocities against the Scheduled Castes and the Scheduled Tribes is, in fact, on the rise. I have the numbers from 2006 to 2008, subsequent years are being compiled. Take for example the case of the Scheduled Castes. The number of cases of atrocities against the Scheduled Castes registered in 2006 was 26,665. That itself is an understatement. Many of the cases are simply not registered. In 2007, it was 29,825 and in 2008 it was 33,365. So, this clearly shows the rise in trend. I can make one or two deductions from this. 1. Firstly that there is no let up in the atrocities committed on the Scheduled Castes. 2. The other inference one can make is, perhaps, because of the pressure that is put on the State Governments by the Central Government, by public opinion and by NGOs, now the States are showing greater willingness to deal with the problem. Therefore, more cases are being registered. [...] Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 We cannot be happy about the fact that approximately 33,000 cases are being registered as atrocities against Scheduled Castes in one year. What makes it even more disturbing is that while so many cases are registered, the conviction rate hovers around 30%. What makes it doubly painful is that there is rise in atrocities, but when you try to prosecute and convict, the conviction rate is only 30%. It was 28%, 31.4% and 32%. Not only are acquittals very high; pendency is about 80%. [...] I am afraid that the disposal of the cases is low; the rate of conviction is low. Therefore, it is fair to conclude that the feeling amongst the Scheduled Castes and the Schedule Tribes that all these laws and all these statements, all these pronouncements have really not brought any relief to them. That feeling is running high and I cannot but say that feeling is justified." [22] (p143,144 of the printed text). 23 States have set up SC/ST Protection Cells. Nodal Officers have been appointed in 28 States.[23] Though the Act and rules are stringent, it is not a deterrent, as the Minister for Home Affairs P Chidambaram admitted in the Lok Sabha, referring to the Central Committee monitoring the implementation of the Act: A committee under the Chairmanship of the Minister of Social Justice was set up after the SCs and STs (PoA), 1989 was passed. That Committee has met, so far, 10 times. The situation in 25 States and 4 Union Territories were reviewed. That committee has expressed that the most important areas of concern are the following five: 1. firstly, the high rate of acquittal; 2. secondly, the high rate of pendency of cases and very low rate of disposal; 3. thirdly, inadequate use of the preventive provisions of the Act, while the punitive provisions are invoked and FIR is registered, preventive provisions are rarely invoked; 4. fourthly, that the committees and other mechanisms provided in the Act have virtually not been put to use; and fifthly, 5. the Act itself may not be deterrent, perhaps it is not being as deterrent as we thought it could be.[24] 175 Drawbacks and lacunae Bias Going through the Indian judicial system is degrading for any Dalit because of the still existing biases of the court judges. One example is the conduct of an Allahabad High Court judge who had his chambers "purified" with water from the ‘ganga jal’ because a Dalit judge had previously sat in that chamber before him.[25] Another example is the case of State of Karnataka v. Ingale.[8] The State of Karnataka had charged five individuals with violating the SC/ST Act. At trial, four witnesses testified that the defendants had threatened Dalits with a gun to stop them from taking water from a well. The defendants told the Dalits that they had no right to take water, because they were `untouchables'. The trial judge convicted all of the defendants. On appeal, the Additional Sessions judge confirmed the conviction of three defendants but acquitted two. On further appeal to the High Court, the judge acquitted all the defendants after rejecting the testimony of the four Dalit witnesses. The Dalits finally got relief from the Supreme Court. Perhaps the most important bias (re implementation of this Act) is that there is little done to prevent atrocities. Most of the reports are of what is done after an atrocity has been committed. Few states have preventive measures in place. The 'relief' provided is a pittance and the confidence of the community is seldom rebuilt. Legal system The legal regime is fraught with contradictions. While the legal text is explicit in seeking remedies, the implementation of the text appears to evade actual performance. Laws and legal processes are not self executing; they depend on the administrative structure and the judiciary with the anticipation that the social attitudes are driven by notions of equity, social justice and fair play.[26] However, the increasingly indifferent responses of those involved in the implementation of laws protecting the weak, the oppressed and the socially disadvantaged have Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 persisted over the years and the system has failed to provide for self-correction. The problem is that the victims of atrocities suffer not only bodily and mental pain but also feelings of insecurity and social avoidance which is not present for the victims of other crimes. If the judge delegated to protect them shows indifference, it further aggravates their already vulnerable position. Rehabilitation According to the preamble of the SC/ST Act, it is an Act to prevent the commission of offences of atrocities against SC/STs, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. The Madhya Pradesh High Court also had the same view and observed in the case of Dr. Ram Krishna Balothia v. Union of India[27] that the entire scheme of the SC/ST Act is to provide protection to the members of the Scheduled Castes and Scheduled Tribes and to provide for Special Court and speedy trial of the offences. The Act contains affirmative measures to weed out the root cause of atrocities, which has denied SCs and STs basic civil rights. The Act has addressed the problem the regarding the dispensation of justice, but what the failed to deal with is the problem of ‘rehabilitation’. There is mention of rehabilitation under Section 21(2)(iii), but there are no provision addressing the same. As it has been stated earlier that victims of atrocities are on a different level when compared to victims of other crimes, hence there should be special provision for the same. According to the report submitted by the National Commission for Review and Working of the Constitution,[28] victims of atrocities and their families should be provided with full financial and any other support to make them economically self-reliant without their having to seek wage employment from their very oppressors or classes of oppressors. Also it would be the duty of the state to immediately take over the educational needs of the children of such victims and provide for the cost of their food and maintenance. SCs and STs constitute 68% of the total rural population. According to the 1991 agricultural census a large number of SCs and STs are marginal farmers compared to the other sections of the society and because of this the number of cultivators are going down. In other words, the landlessness is increasing at a faster rate among SCs and STs. At the same time, the number of SC and ST workers as agricultural labourer is increasing at a faster rate when compared to other sections of the society. This basically implies that after losing their land holdings, SC and ST cultivators are becoming agriculture labourers. Loss of land, on the one hand, is caused by atrocities making them more vulnerable. This in turn fuels and promotes continuance of atrocities and untouchability. Marginalisation is one of the worst forms of oppression. It expels a whole category of people from useful participation in the society and therefore potentially subjected to material deprivation and this could even lead to extermination. Moreover, this leads to the state of powerlessness which perhaps is best described negatively; the powerless lack authority, status and a sense of self.[29] Moreover, every right has three types of duties—duty to • Avoid deprivation. • Protect from deprivation. • Aid the deprived. Though the SC/ST Act does cover these duties, and its implementation is admittedly uneven, it is found wanting most in the third: duty to aid the deprived. One possible reason could be that the State has to work through its officials who are drawn from the same oppressive social strata. Though the Act does mention that officers and other staff appointed in an area prone to atrocity shall have the right aptitude and understanding of the problems of the SCs and STs (Rule 13(1)) [30] in practice, these officials often collude with their caste brethren and even file counter-cases against the victims or their family members.[31] This means, in addition to the perpetrators getting away with the original crime, free to further intimidate the victims, the victims are left helpless—denied the government compensation and assistance to rebuild their life. They have to go back to the same perpetrator caste for their livelihood or daily wage labour. Hence, it is necessary to make the SCs and STs self dependent. 176 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 Lack of awareness The statement of object and reason of the SC/ST Act clearly reveals that the Act, in its letter and spirit, desires that Dalits lead a dignified life. However, even after 16 years of its existence in the statute book, it has not shown its desired effect. The majority of the beneficiaries of this Act are unaware of the legitimate claims of leading a dignified way of life or are unwilling to enforce it intensively. Even the Police, prosecutors and judicial officers are unaware of this Act as was pointed out by Calcutta High Court in the case of M.C. Prasannan v. State of West Bengal.[32] Misapplication of the Act by police and the courts aggravates the problem ultimately leads to acquittals.[33] Some atrocities not covered Social and economic boycott and blackmail are widespread. In view of the fact that the main perpetrators of the crime sometimes co-opt a few SC/STs with them and take advantage of local differences among the SC/STs and sometimes they promote and engineer crimes but get them executed by some members of SC/STs, the Act should be suitably amended to bring such crimes and atrocities within the purview of the definition of atrocities under the Act.[28] Likewise, the Special Courts established under Section 14 of the Act are required to follow the committal procedure under Cr.P.C. Such an interpretation prevents the speedy trail envisaged under the Act. The absence of adequate special courts has resulted in slow disposal of atrocity cases and a huge backlog. Dalits in other religions not covered This Act is applicable only for those communities that are in the government Schedule Caste or Schedule Tribe lists. Those who suffer from caste based discrimination (CBD) but are left out of the government list—the Dalits—(mainly those who profess Christianity or Islam, but even others who are not on the list due to mis-classification) do not come under its purview. This makes Dalits who have exercised their freedom of religion more vulnerable (if they or their ancestors changed their religion) or subject to administrative whims and fancies (if they profess to be Hindu, Sikh or Buddhist). 177 Empowering provision: Migration Under constitutional provisions, a caste or tribe is notified with reference to a State or Union territory. Hence a person born in state/UT gets certificate of SC/ST if his/her father belongs to specified caste/tribe in that state as SC/ST. On migration to another state, they lose their SC/ST status for affirmative actions, i.e. benefit of admission in educational institutes, reservation in government employment etc but the protection accorded under this Act stays. Once a person is notified as SC/ST in any state/UT, they are protected under the SCs and STs (Prevention of Atrocities) Act, 1989 throughout the country, irrespective of whether the particular caste or tribe is notified in the state/UT where the offence is committed. Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 178 References [1] http:/ / tribal. gov. in/ writereaddata/ linkimages/ poaact989E4227472861. pdf [2] http:/ / socialjustice. nic. in/ poa-rule. php?pageid=1 [3] Home Minister P Chidambaram in Lok Sabha (Lower House of Indian Parliament) on 30 August 2010 (http:/ / 164. 100. 47. 132/ LssNew/ psearch/ Result15. aspx?dbsl=3161& ser=& smode=t#3000*25) [4] The Statement of the object and reasons for SC/ST(PoA)ACT 1989 [5] Rules 1995 'G.S.R 316(E) - In exercise of the powers conferred by sub-section (1) of Section 23 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), the Central Government hereby makes the following rules...' (http:/ / socialjustice. nic. in/ poa-rule. php?pageid=1) [6] Human Rights Defenders Monitoring Calendar (http:/ / openspace. org. in/ files/ SCST PoA DHRD monitoring calendar. xls) [7] Home Minister P Chidambaram in the Lok Sabha (Lower House of Indian Parliament) on 30 August 2010 (http:/ / 164. 100. 47. 132/ LssNew/ psearch/ Result15. aspx?dbsl=3161& ser=& smode=t#3000*25) [8] (1992) 3 S.C.R. 284 [9] Annual Report on The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 for the Year 2002, at p.12. (http:/ / socialjustice. nic. in/ schedule/ welcome. htm) [10] 2001 Census (http:/ / www. censusindia. gov. in) [11] The Hindu, accessed 13 December 2011 (http:/ / www. thehindu. com/ news/ national/ article16635. ece) [12] Karnataka State Report 2011 (http:/ / openspace. org. in/ files/ 2011 Karnataka SCST POA Act monitoring. pdf) [13] 7(1).— An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government /Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time (http:/ / socialjustice. nic. in/ poa-rule. php?pageid=4). [14] In 2002 the conviction rate was a mere 2 percent. Report by Ministry of Social Justice and Empowerment (http:/ / socialjustice. nic. in/ schedule/ welcome. htm) [15] 1999 Cr LJ 2918 [16] 1999 Cr LJ 3938 [17] Lok Sabha Debates, see http:/ / 164. 100. 24. 208/ ls/ lsdeb/ ls13/ ses13/ 210803. htm [18] Ministry of Home Affairs - Govt of India - India an Overview - India - History (http:/ / mha. nic. in/ annual_reports. htm) [19] Karnataka State Report 2011 (http:/ / openspace. org. in/ scstpoakarnataka2011) [20] Home Minister P Chidambaram in the Lok Sabha on 30 August 2010 (http:/ / 164. 100. 47. 132/ LssNew/ psearch/ Result15. aspx?dbsl=3161& ser=& smode=t#3000*25) [21] Ministry of Social Justice and Empowerment (accessed 13 December 2011 (http:/ / socialjustice. nic. in/ poa-rule. php?pageid=9) [22] Home Minister P Chidambaram in the Lok Sabha (Lower House of Indian Parliament) on 30 August 2010 (http:/ / 164. 100. 47. 132/ LssNew/ psearch/ Result15. aspx?dbsl=3161& ser=& smode=t#3000*25) [23] Home Minister P Chidambaram in Lok Sabha (Lower House of Indian Parliament) on 30 August 2010 (http:/ / 164. 100. 47. 132/ LssNew/ psearch/ Result15. aspx?dbsl=3161& ser=& smode=t#3000*25) [24] Home Minister P Chidambaram in the Lok Sabha (Lower House of Indian Parliament) on 30 August 2010 (http:/ / 164. 100. 47. 132/ LssNew/ psearch/ Result15. aspx?dbsl=3161& ser=& smode=t#3000*25) [25] "Human Rights Watch, “Broken People: Caste Violence Against India's Untouchables"" (http:/ / www. hrw. org/ reports/ 1999/ india). Hrw.org. . Retrieved 2008-12-29. [26] K.I. Vibhute, “Right to Live with Human Dignity of Scheduled Castes and Tribes: Legislative Spirit and Social Response – Some Reflections”, 44 JILI (2002) 469 at 481. [27] AIR 1994 MP 143 [28] 11 (http:/ / lawmin. nic. in/ ncrwc/ finalreport/ v2b3-7. htm) [29] Iris Young, “Justice and Politics of Difference”. Amita Dhanda (compiled by), “Law and Poverty Reading Material – IV Semester B.A.B.L (Hons)”, 1st edition 2006, p.29 [30] http:/ / socialjustice. nic. in/ poa-rule. php?pageid=7 [31] “Whenever the SC or ST victim of atrocity presents a report to the Sub-Inspector or Circle-Inspector in charge of Police Station and if he records F.I.R., and register a case, the Sub-Inspector or Circle-Inspector should arrest the assailant or assailants who committed the atrocity on the complaint-SC. But the Sub-Inspector or Circle-Inspector who recorded the F.I.R., and registered a case did not arrest the assailants except in rare cases. On the other hand, it is stated in their representations that those assailants against whom the SC-victims presented complaints lodge counter reports to the Police against SC-victims and the Sub-Inspectors or Circle-Inspectors register counter cases against the SCs (Victims) and arrest them. When a counter report is presented by the assailant who is the accused in the report presented by the SC-victim, it was filed obviously with the sole intention to counter blast the complaint filed by the SC-victim. As a result of the counter cases, the real SC victims of the atrocities are being arrested and subjected to criminal litigation as accused in the counter cases” (Justice Punnayya Commission, Government of Andhra Pradesh 2001). [32] 1999 Cr LJ 998 (Cal) [33] Karansingh v. State of MP, 1992 Cr LJ 3054 (MP) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 179 External links • Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (http://tribal.gov.in/writereaddata/ linkimages/poaact989E4227472861.pdf) Misuse Although these reservations for SC/STs were brought about to uplift the underprivileged sections of the society, there have been reports that certificates have been issued to people not belonging to these castes by using unfair means. Employment (Equal Opportunities) Law, 1988 Employment (Equal Opportunities) Law is an Israeli law passed in 1988, that prohibits the employer from discriminating between job applicants or employees on the following criteria: • • • • • • • • • • • • Sex Sexual orientation Pregnancy Fertility treatment Parenting Age Race Religion Nationality Country of origin Political view Reservist duty Anything required by the character or substance of the position or job is not be deemed discriminatory by the law. Prohibition of discrimination applies to hiring, working conditions, promotion, professional training or studies, discharge or severance pay and benefits and payments provided for employees in connection with their retirement from employment. The law was enacted in 1988, and replaced an earlier 1981 law. The law further provides that, under certain conditions, provisions in an enactment, collective agreement or employment contract made in connection with maternity are not to be considered discriminatory. It also provides that any rights given to working mothers are to be given equally to working fathers, under certain conditions. Protection from sexual harassment is addressed in s. 7, which states that an employer shall not "act against" an employee who rejects, or opposes, any act of a sexual nature committed by the employer or by the supervisor of the employee. Violation of the law constitutes both a civil and criminal offence, and courts may grant compensation even when no material damage was caused. In addition, civil proceedings can be initiated by an employee, an employee organization or civil rights group, with special protection granted to the worker filing the complaint. Ministry of Labour and Social Affairs is responsible for promoting the law. Employment (Equal Opportunities) Law, 1988 180 References External links • ‫( חוק שוויון ההזדמנויות בעבודה‬http://www.tamas.gov.il/NR/exeres/ 82CF3999-915B-4D33-BE32-48D61416302D.htm), law in Ministry of Labour and Social Affairs(Hebrew) • Commission for Equal Opportunity at Work (Hebrew) (http://www.moital.gov.il/CmsTamat/Rsrc/Shivyon/ Shivyon.html) • International Labour Organization (http://www.ilo.org/public/english/employment/gems/eeo/law/israel/el. htm) Basic Law: Human Dignity and Liberty Basic Law: Human Dignity and Liberty is a Basic Law, intended to protect main human rights in Israel. The view of most Supreme Court judges, is that the enactment of this law and of Basic Law: Freedom of Occupation began the Constitutional Revolution, due to the fact the Knesset gave these two laws super-legal status, giving the courts the authority to disqualify any law contradicting them. According to this claim (which is not supported by all) these laws marked a substantial change in the status of human rights in Israel. The law was enacted on the final days of the 12th Knesset, March 17, 1992. Rights protected by Basic Law: Human Dignity and Liberty The rights protected by this law are detailed in several clauses: • Section 1: The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law tile values of the State of Israel as a Jewish and democratic state. (source [1]) • Section 2: There shall be no violation of the life, body or dignity of any person as such. • Section 3: There shall be no violation of the property of a person. • Section 4: All persons are entitled to protection of their life, body and dignity. • Section 5: There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise. • Section 6: • (a) All persons are free to leave Israel. • (b) Every Israeli national has the right of entry into Israel from abroad. • Section 7: • • • • (a) All persons have the right to privacy and to intimacy. (b) There shall be no entry into the private premises of a person who has not consented thereto. (c) No search shall be conducted on the private premises of a person, nor in the body or personal effects. (d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person. However, several cardinal human rights are missing from this document, such as the Right for Equality, Freedom of Speech, Freedom of Religion, Freedom of Protest, and others. These rights were given to the residents of Israel by general principles which existed before this Basic Law. Although these rights were not included in the law, some jurists, such as former President of The Supreme Court of Israel Aharon Barak, see these rights are directly derived from the "right to dignity". Basic Law: Human Dignity and Liberty 181 Guarantee of super-legal status Due to these rights' great importance, the Knesset chose to give this law a high legal status, proteced by several means. Section 8 of this law asserts that "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law." (sentence in italics added in a 1994 amendment to the law). This clause became known as "limiting paragraph", as it limits and restricts the Knesset in legislating laws contradicting this law. Section 12 defends the law from Emergency Regulations, stating that the government cannot change this Basic Law, and thus cannot weaken the rights it protects, by the emergency regulations it can enact. As written: "This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations;". However, when a state of emergency is in place, regulations can be enacted that restrict these rights: "notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required." Thus, the protection from emergency regulations is not full, and is up to the government and supreme court's judgement. External links • Full text of the law, on the Israeli Knesset's website [2] References [1] http:/ / www. jewishvirtuallibrary. org/ jsource/ Politics/ Basic_Law_Human_Dignity_and_Liberty. html?MFAH00hi0 [2] http:/ / www. knesset. gov. il/ laws/ special/ eng/ basic3_eng. htm Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000 182 Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000 Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law is an Israeli law enacted in 2000, that prohibits those who provide products, public services or operate public places from discriminating in providing products, public services, entry to public places or providing services in public places, on the grounds of a customer's race, religion, nationality, land of origin, sex, sexual orientation, political views, personal status or parenthood. The law does not apply directly to discrimination on the grounds of disability, since accessibility arrangements for disabled persons, and prohibition of discrimination are covered by the Equal Rights for Persons with Disabilities Law. The law originated from an initiative of the Association for Civil Rights in Israel. One of the practices that sped up the enactment of the law, was discrimination frequently practiced by bouncers at nightclub entrances. The law has 3 exceptions: • When the practice originates from the nature of the product, public service or public place. • When the practice exists in a non-profit organization or club, and is done in order to promote the special needs of members of the organization or club, on the condition that special needs do not counteract the law's purpose. • When separate frameworks exist for men and women, and the lack of separation will prevent from part of the public access to product, public service or public place. Violation of the law is a criminal offense, and an offender can be ordered to pay compensation to victims of discrimination, even without proof of damages. Class action lawsuits are allowed under the law. External links • [1], law in Ministry of Labour and Social Affairs(Hebrew) References [1] http:/ / www. tamas. gov. il/ NR/ exeres/ A4587F25-5F3F-4FBA-8A90-818960801A9E. htm 183 Oceania Sex Discrimination Act 1984 The Sex Discrimination Act 1984 is an Act of the Parliament of Australia which prohibits discrimination on the basis of sex, marital status, pregnancy or potential pregnancy in a range of areas of public life. These areas include work, accommodation, education, the provision of goods, facilities and services, the activities of clubs and the administration of Commonwealth laws and programs. Among other things, the Act seeks to eliminate discrimination involving dismissal of employees with family responsibilities and to eliminate sexual harassment in areas of public activity. The Act also seeks to create recognition and acceptance within the community of the principle of the equality of men and women. The rights and responsibilities of pregnant and potentially pregnant workers in the workplace were clarified by the Sex Discrimination Amendment (Pregnancy and Work) Act 2003. The Act implements Australia’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women which came into force in September 1981 and which Australia ratified in July 1983, subject to several reservations and declarations.[1] The Act also gives effect to parts of International Labour Organisation Convention 156 which concerns workers with family responsibilities. External sources • Sex Discrimination Act 1984 on Austlii [2] References [1] Declarations, Reservations and Objections to CEDAW (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ reservations-country. htm) [2] http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ sda1984209/ Racial and Religious Tolerance Act 2001 184 Racial and Religious Tolerance Act 2001 The Racial and Religious Tolerance Act 2001 was implemented by the Steve Bracks' Labor government in the state of Victoria, Australia. It was effective from 1 January 2002. The Act The explicit purposes of the Act are: • To promote racial and religious tolerance by prohibiting certain conduct involving the vilification of persons on the ground of race or religious belief or activity; • To provide a means of redress for the victims of racial or religious vilification; • To make consequential amendments to the Equal Opportunity Act 1995. The expressed objects of the Act are: • To promote the full and equal participation of every person in a society that values freedom of expression and is an open and multicultural democracy; • To maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons; • To promote conciliation and resolve tensions between persons who (as a result of their ignorance of the attributes of others and the effect that their conduct may have on others) vilify others on the ground of race or religious belief or activity and those who are vilified.[1] The first case The first ruling on the laws went to the Islamic Council of Victoria against Catch the Fire Ministries on 17 December 2004. On 9 March 2002, Daniel Scot spoke at a seminar concerning Islam, sponsored by Catch the Fire Ministries, an organization led by Danny Nalliah. The seminar was attended by three Australian Muslims, who along with the Islamic Council of Victoria, launched action under the Act, claiming that the intent of the speech had been to vilify Muslims, rather than to discuss Islam itself. They also complained about written materials which had been distributed by Danny Nalliah. After being considered by the Equal Opportunity Commission, the case was heard by the Victorian Civil and Administrative Tribunal, and became the first real test case under the Act. In the landmark ruling on 17 December 2004, the Tribunal ruled that Nalliah, Scot and Catch the Fire Ministries had breached the new law. Writing in The Age newspaper, David Palmer claimed that the finding by Vice President Michael Higgins meant that "truth is no longer an acceptable defence".[2] The Vice President heard further submissions regarding 'remedies' early in 2005. On 22 June 2005, Vice President Higgins delivered his final verdict on the religious vilification issue regarding "remedies". He found that financial compensation would be inappropriate, but ordered Nalliah and Scot to take out newspaper advertisements to the value of $68,690 which summarised the findings in the case. Nalliah once again slammed the ruling, comparing the legislation to "sharia law by stealth". He vowed that he would rather go to jail than comply with the ruling. He publicly declared his intention to continue fighting the case, potentially as far as the High Court of Australia. The Age newspaper quoted him as stating "We may have lost the battle, but the war is not over. The law has to be removed, there is no question."[3] The case attracted widespread attention in the United States and Matt Francis, from the Australian Embassy in Washington DC claimed that the embassy was; "flooded with messages from Americans concerned to learn that two Christian pastors in Australia are facing accusations of vilifying Islam". He also claimed a significant number of e-mails and phone calls were received about the case.[4] Racial and Religious Tolerance Act 2001 The Becket Fund for Religious Liberty, a non-profit interfaith public interest law firm based in Washington, intervened on Pastor Daniel Scot's behalf, and attempted to engage a dialogue with the Attorney General of Australia. The firm sent multiple letters of concern that touched on Australia's Human Rights record. Part of the first exchange stated that:[5] "Australia is obliged by international conventions to protect rights of conscience, freedom of expression, and equal protection under the law as Australia has ratified the Universal Declaration of Human Rights (UDHR) and its enforcement mechanism, the International Covenant on Civil and Political Rights (ICCPR). The free speech, belief, and religious exercise provisions of Articles 18, 19, and 26 in the ICCPR protect the right freely to preach about and analyze religious truth-claims of competing religions." The US non-profit proceeded to provide funding for legal representation with local counsel, and provided legal arguments employed before the Supreme Court of Victoria. Nalliah's lawyers had previously appealed to the Supreme Court of Victoria, in an 'Originating Motion' alleging both that Higgins showed signs of bias, that there were errors in the decision and that the Act itself was unconstitutional. Following the decision, a formal appeal was lodged with the Supreme Court - Court of Appeal - and the Originating Motion was dropped. The Appeal was heard in August 2006.[6] On 14 December 2006, the Supreme Court of Victoria (Court of Appeal), allowed the appeal. The court set aside the 2004 orders of the Victorian Civil and Administrative Tribunal and ordered that the matter be remitted for a second hearing. Further, they ordered that no new evidence be admitted, and that Vice President Higgins not preside over the new hearing.[7] The Islamic Council of Victoria was ordered to pay half of Scot's and Nalliah's legal costs of the appeal. 185 The second case In 2005 the second case using the act was brought to VCAT against the Salvation Army by Ararat prison inmate Robin Fletcher. Prisoner Fletcher, a convicted child sex offender, serving a 10-year sentence, is a Wiccan who claimed in his suit that the 'Salvos', "posed a danger to his safety",[8] and that the Salvation Army's 'Alpha Christianity' course, offered in jails, discriminated against him on the ground of his Wiccan religion. Justice Stuart Morris, the president of VCAT presided over the case, and summarily dismissed Fletcher's claims against the Salvation Army, Corrections Victoria and course distributors CMC Australasia as "preposterous". He added that the allegations were "nowhere near the mark" of religious vilification. In his summation he called for the Racial and Religious Tolerance Act to be amended to limit people's right to launch a lawsuit."[9] Islamic holy war books In July 2005, the Australia-Israel Jewish Affairs Council threatened to take a Melbourne bookshop, run by the Islamic Information and Services Network of Australasia to court for alleged breaches of the Act and the Crimes Act.[10] Books promoting Islamic holy war and the killing of non-Muslims who insult Muhammad were submitted to the Victoria Police security intelligence unit by the Jewish council. The council's director of policy analysis, Ted Lapkin described the books for sale as; "Extreme jihadist material, explicitly calling for violence against non-Muslims". Racial and Religious Tolerance Act 2001 186 Media blitz In February 2006 Bracks launched a $260,000 media "blitz" to counter community opposition to the act.[9] The advertising campaign was attacked by the State Opposition as a "politically motivated campaign by the Bracks Government using taxpayers' money". The Bracks Government had by the start of 2006 received more than 5000 letters concerning the laws, with the vast majority opposed. Opposition youth spokesman Nick Kotsiras said he believed the campaign was designed to counter strong community opposition to the laws and would be aimed particularly at young people, stating that; "This only illustrates this Government's inability to deal with the cultural differences that exist here in Victoria." Victorian Liberal Party position State shadow Attorney general Andrew McIntosh announced prior to the election that the Liberal Party would repeal the religious section of the "fundamentally flawed" Act.[11] While addressing a protest rally, organised by the Coalition for Free Speech, outside the Victorian Parliament, he said they would keep the act but fine tune it, stating that; "Large sections of the community advocate on behalf of the act, and large sections say it is disgraceful. We need to bring the groups together." Criticism In January 2006, nineteen Christian leaders from Melbourne's largest churches gathered 27,000 signatures for the removal of the civil provisions of the Act. They expressed "dismay" at the premiers continued insistence of faith leaders support.[2] Independent MP Russell Savage, whose support helped Bracks form Government in 1999, described the act as; "the worst legislation he had ever seen passed".[12] Jenny Stokes, of the Coalition for Free Speech, which organised a protest rally against the law, said she welcomed the commitment to repealing the act's religious section but wanted a commitment that the Liberals wouldn't replace it.[11] References [1] http:/ / www. austlii. edu. au/ au/ legis/ vic/ consol_act/ rarta2001265/ [2] "religious vilification law undermines multiculturalism" (http:/ / www. theage. com. au/ news/ opinion/ religious-vilification-law-undermines-multiculturalism/ 2006/ 04/ 30/ 1146335604488. html) The Age 30 April 2006 [3] Historic win in religious hatred case (http:/ / www. theage. com. au/ news/ National/ Historic-win-in-religious-hatred-case/ 2004/ 12/ 17/ 1102787271940. html) The Age, 18 December 2004 [4] "Australian Embassy Deals With Concerns About Religious Vilification Case" (http:/ / www. cnsnews. com/ ForeignBureaus/ Archive/ 200310/ FOR20031029g. html) CNSNews 29 October 2003 [5] http:/ / www. becketfund. org/ index. php/ case/ 101. html [6] Court of Appeal (Supreme Court of Victoria) decision Dec 2006 - overturning VCAT decision (http:/ / www. austlii. edu. au/ au/ cases/ vic/ VSCA/ 2006/ 284. html) [7] Court of Appeal (Supreme Court of Victoria) decision Dec 2006 - overturning VCAT decision (http:/ / www. austlii. edu. au/ au/ cases/ vic/ VSCA/ 2006/ 284. html) [8] "Religious vilification in Victoria" (http:/ / www. abc. net. au/ rn/ talks/ 8. 30/ relrpt/ stories/ s1364814. htm) ABC Radio National 27 April 2005 [9] "Government to Run Ads on Racial and Religious Tolerance" (http:/ / www. pluralism. org/ news/ intl/ index. php?xref=Racial+ and+ Religious+ Tolerance+ Act+ (Australia)& sort=DESC) The Herald Sun 23 February 2006 [10] Row over Melbourne 'holy war' book sales (http:/ / www. theage. com. au/ news/ war-on-terror/ row-over-melbourne-holy-war-book-sales/ 2005/ 07/ 18/ 1121538915909. html?oneclick=true)The Age 19 July 2005 [11] "libs coy over hatred laws" (http:/ / www. theage. com. au/ news/ national/ libs-coy-over-hatred-laws/ 2006/ 08/ 09/ 1154802962877. html) 9 August 2006 [12] "speaking freely is risky business" (http:/ / www. theage. com. au/ news/ national/ speaking-freely-is-risky-business-rally-told/ 2006/ 08/ 08/ 1154802889839. html) The Age 8 August 2006 Racial and Religious Tolerance Act 2001 187 External links • "Racial and Religious Tolerance Act 2001" (http://www.austlii.edu.au/au/legis/vic/consol_act/ rarta2001265/) • The Becket Fund for Religious Liberty Homepage (http://www.becketfund.org) • The Becket Fund Australia Case Page (http://www.becketfund.org/index.php/case/101.html) • Catch the Fire Ministries website (http://www.catchthefire.com.au/) • Interview with Danny Nalliah on PRODOS Worldwide podcast (http://www.prodos.solidvox.com/?p=11/) • Islamic Council of Victoria v Catch the Fire Ministries Inc (Final) 2004 VCAT 2510 (22 December 2004) (http:// www.austlii.edu.au/au/cases/vic/VCAT/2004/2510.html/) • Submission from Catch The Fire Ministries To the Equal Opportunity Commission of Victoria in response to complaints made by the Islamic Council of Victoria (http://www.liberalsforfreespeech.org/ CatchTheFireMinistriesSubmissionToEOC.pdf/) • Hereticpress editorial on the abolition of free speech on religion (http://www.hereticpress.com/Dogstar/ Religion/Vilification.html#science) Further reading • Garth Blake, "Promoting Religious Tolerance in a Multifaith Society: Religious Vilification Legislation in Australia and the UK." The Australian Law Journal, 81 (2007): 386-405. Australian Human Rights Commission The Australian Human Rights Commission (previously the Human Rights and Equal Opportunity Commission) is a national human rights institution, a statutory body funded by, but operating independently of, the Australian Government. It has the responsibility for investigating alleged infringements under Australia’s anti-discrimination legislation. Matters that can be investigated by the Commission include "discrimination on the grounds of race, colour or ethnic origin, racial vilification, sex, sexual harassment, marital status, pregnancy, or disability." The Commission falls under the portfolio of the Attorney-General of Australia. Commission Presidents • • • • • The Hon. Catherine Branson 2008 The Hon. John von Doussa 2003 - 2008 Professor Alice Tay 1998 - 2003 Sir Ronald Wilson 1990 - 1998 Hon. Justice Marcus Einfeld 1986 - 1990 Australian Human Rights Commission 188 Legislation The Commission investigates alleged infringements under the following legislation: • • • • • Racial Discrimination Act 1975 Sex Discrimination Act 1984 Disability Discrimination Act 1992 Age Discrimination Act 2004 Human Rights and Equal Opportunity Commission Act 1986 Public inquiries One of the more visible functions of the Commission is to conduct public inquiries. Some examples of inquires conducted include: • • • • • Same-Sex: Same Entitlements Inquiry into financial and workplace discrimination against same-sex couples Separation of Aboriginal and Torres Strait Islander Children from their Families National Inquiry into Children in Immigration Detention Homeless Children Inquiry Pregnancy Discrimination Inquiry • Inquiry into the Accessibility of electronic commerce and new service and information technologies for older Australians and people with a disability • Inquiry into Human Rights and Good Governance Education in the Asia Pacific Region • MacLennan-Hookham suspension Gender identity and sexuality Private members, the Australian Greens and the Australian Democrats have tried to add sexuality and/or gender identity to the list of matters that can be investigated by the Commission, which has always failed to pass at least one house of parliament since 1995, because of a lack of support from the Australian Labor Party and the Coalition in the federal parliament.[1] Human Rights Medals and Awards Since 1987 the Human Rights Medal and other awards have been presented at the Commission’s annual Human Rights Medal and Awards ceremony. The Human Rights Medal is awarded to individuals "for their outstanding contribution to human rights in Australia". In 2008 the Young People’s Human Rights Medal was awarded for the first time. Other awards are: • • • • • • • Human Rights Community (Individual) Award. Human Rights Community (Organisation) Award. Human Rights Radio Award Human Rights Television Award Human Rights Print Media Award Human Rights Arts Non-Fiction Award Human Rights Law Award - sponsored by the Law Council of Australia Australian Human Rights Commission 189 International status The Commission is one of some 70 national human rights institutions (NHRIs) accredited by the International Co-ordinating Committee of NHRIs (ICC), a body sponsored by the Office of the United Nations High Commissioner for Human Rights (OHCHR). The Commission's "A status" accreditation allows it special access to the United Nations human rights system, including speaking rights at the Human Rights Council and other committees. The Commission can present parallel reports ("shadow reports") to UN treaty committees examining Australia's compliance with international human rights instruments. It has been very active in developing NHRIs throughout the Asia-Pacific region, and is a leading member of the Asia Pacific Forum of NHRIs, one of four regional sub-groups of NHRIs. References [1] Australian DemocratsAustralian Democrats Press Releases (http:/ / www. democrats. org. au/ news/ index. htm?press_id=5948& display=1) External links • The Australian Human Rights Commission website (http://www.humanrights.gov.au) New Zealand Bill of Rights Act 1990 190 New Zealand Bill of Rights Act 1990 New Zealand Bill of Rights Act 1990 Parliament of New Zealand Long title/ Purpose Introduced by An Act (a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and (b) To affirm New Zealand's commitment to the International Covenant on Civil and Political Rights Sir Geoffrey Palmer Dates Commencement immediate (no commencement clause) Other legislation Amendments Related legislation 1993 Human Rights Act 1993 Status: Current legislation The New Zealand Bill of Rights Act 1990 (sometimes known by its acronym, NZBORA or BORA) is a statute of the New Zealand Parliament setting out the rights and fundamental freedoms of the citizens of New Zealand as a Bill of rights. It is part of New Zealand's uncodified constitution. History In 1985 a White Paper entitled "A Bill of Rights for New Zealand", was tabled in Parliament by the then Minister of Justice, Hon Geoffrey Palmer. The paper proposed a number of controversial features, which sparked widespread debate: • The Bill of Rights was to become entrenched law so that it could not be amended or repealed without a 75% majority vote in the House of Representatives or a simple majority in a public referendum; • The Bill of Rights was to therefore have status as supreme law, thereby causing some erosion to the doctrine of Parliamentary sovereignty; • The Treaty of Waitangi was to be wholly incorporated within the Bill of Rights thus elevating the Treaty's status to that of supreme law; • The Judiciary would have the power to invalidate any Act of Parliament, common law rule or official action which was contrary to the Bill of Rights. The Bill then went to the Justice and Law Reform Select Committee, which recommended that New Zealand was "not yet ready" for a Bill of Rights in the form proposed by the White Paper. The Committee recommended that the Bill of Rights be introduced as an ordinary statute, which would not have the status of superior or entrenched law. In its current form, the Bill of Rights is similar to the Canadian Bill of Rights, passed in 1960. The Act does create an atmosphere change in New Zealand law in that it provides judges the means to "interpret around" other acts to New Zealand Bill of Rights Act 1990 ensure enlarged liberty interests. The Bill of Rights has a liberty-maximising clause much like the Ninth Amendment to the United States Constitution, and this provides many opportunities for creative interpretation in favour of liberties and rights. 191 Application of the Bill of Rights The Act applies only to acts done by the three branches of government (the legislature, executive and judiciary) of New Zealand, or any body in the "performance of any public function, power, or duty" created by the law (Section 3). Section 4 specifically denies the Act any supremacy over other legislation. The section states that Courts looking at cases under the Act cannot implicitly repeal or revoke, or make invalid or ineffective, or decline to apply any provision of any statute made by parliament, whether before or after the Act was passed because it is inconsistent with any provision of this Bill of Rights. Section 5 allows for "Justified Limitations" on the rights guaranteed by the Act which are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"." Section 6 ensures that where an interpretation of an Act has a meaning that is consistent with the Act, that meaning shall be preferred to any other meaning. Section 7 Reports Section 7 of the Act requires the Attorney-General to draw to the attention of Parliament the introduction of any Bill that is inconsistent with the Act. The Ministry of Justice, which prepares this advice for the Attorney-General, requires a minimum of two weeks to review the draft legislation. See the list of bills reported as inconsistent with the New Zealand Bill of Rights Act 1990. Civil and Political Rights Part II of the Act covers a broad range of Civil and Political Rights. Life and the Security of the Person As part of the right to life and security of the person, the Act guarantees everyone: • The right not to be deprived of life except in accordance with fundamental justice (Section 8) • The right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment (Section 9) • The right not to be subjected to medical or scientific experimentation without consent (Section 10) • The right to refuse to undergo any medical treatment (Section 11) Democratic and Civil Rights Electoral Rights The Act sets out the electoral rights of New Zealanders. The Act guarantees that every New Zealand citizen who is of or over the age of 18 years has: • The right to vote in elections of members of Parliament, which shall be held by equal suffrage and by secret ballot (Section 12(a)) • Has the right to become a member of the House of Representatives (Section 12(b)) Furthermore, the Act guarantees everyone: Freedom of Thought, Conscience, and Religion • The right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference (Section 13) New Zealand Bill of Rights Act 1990 Freedom of expression • The right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form (Section 14) Religion and Belief • The right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private (Section 15) Assembly • The right of peaceful assembly (Section 16) Association • The right to freedom of association (Section 17) Movement • The right to freedom of movement and residence in New Zealand. (Section 18(1)) The Act guarantees to every New Zealand citizen: • The right to enter New Zealand (Section 18(2)) The Act guarantees everyone: • The right to leave New Zealand (Section 18(3)) The Act also (Section 18(4)) ensures that non-New Zealand citizens lawfully in New Zealand shall not be required to leave except under a decision taken on grounds prescribed by law. 192 Non-Discrimination and Minority Rights Section 19 of the Act guarantees freedom from discrimination, on the grounds of discrimination set out in the Human Rights Act 1993. Search, Arrest, and Detention The Act guarantees everyone: • The right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise (Section 21) • The right not to be arbitrarily arrested or detained (Section 22) Everyone who is arrested or who is detained has the right to: • Be informed at the time of the arrest or detention of the reason for it; and • Consult and instruct a lawyer without delay and to be informed of that right; and • Have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful. Everyone who is arrested for an offence has the right to be charged promptly or to be released. Everyone who is arrested or detained for any offence or suspected offence shall have the right to: • Refrain from making any statement and to be informed of that right. Everyone deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the person (Section 23). Criminal Justice The Act requires that everyone who is charged with an offence: • Shall be informed promptly and in detail of the nature and cause of the charge; and • Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and • Shall have the right to consult and instruct a lawyer; and • Shall have the right to adequate time and facilities to prepare a defence; and New Zealand Bill of Rights Act 1990 • Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months; and • Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and • Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court. (Section 24) Fair Trial Everyone who is charged with an offence has the minimum right: • • • • • • To a fair and public hearing by an independent and impartial court; To be tried without undue delay; To be presumed innocent until proved guilty according to law; Not to be compelled to be a witness or to confess guilt; To be present at the trial and to present a defence; To examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution; • If convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty; • If convicted of the offence, to appeal according to the law to a higher court against the conviction or against the sentence or against both: • In the case of a child, to be dealt with in a manner that takes account of the child's age (Section 25) Double Jeopardy Section 26 covers instances of double jeopardy. The Act holds that: • No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred. • No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again. 193 Remedies Section 27 of the Act guarantees everyone the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's right, obligations, or interests protected or recognised by law. Every person also has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals. Important court cases A large number of cases have been heard under the Act since it was passed in 1990, mostly pertaining to rights around arrest and detention. • Flickinger v. Crown Colony of Hong Kong, [1991] 1 NZLR 439, the Court of Appeal held that section 66 of the Judicature Act 1908, which denied the right of appeal in extradition cases such as this one, was to be interpreted in light of section six of the Act. Nonetheless, the Court held in this case the Bill of Rights had not been breached, and the appeallant, Flickinger, had to return to Hong Kong to face charges. • Simpson v. Attorney General, [1994] 3 NZLR 667 (also known as Baigent's case), the plaintiffs alleged that police officers had persisted in bad faith with the search of the late Mrs Baigent's house when they knew that her property had been mistakenly named in a search warrant issued for a drug dealers' house. The plaintiffs sued on the grounds the police breached section 21 of the Bill of Rights' Act, the right to be secure against unreasonable search and arrest. Four out of five of the Court of Appeal's bench held that: New Zealand Bill of Rights Act 1990 • The fact that the Bill of Rights did not include a specific remedies section did not mean Parliament did not intend to compensate for breaches of the Act; • The Bill of Rights had to be interpreted in light of New Zealand's obligations under the ICCPR; • The Courts can award remedies for breaches of the Bill of Rights; • The liability of breaches of the Act fell on the Crown. • Hopkinson v. Police, [2004] 3 NZLR 704, in 2003, Paul Hopkinson, a Wellington schoolteacher, burned the Flag of New Zealand as part of a protest in Parliament grounds at the New Zealand Government's hosting of the Prime Minister of Australia, against the background of Australia's support of the United States in its war in Iraq. Hopkinson was initially convicted under Flags, Emblems, and Names Protection Act 1981 of destroying a New Zealand flag with intent to dishonour it, but appealed against his conviction. On appeal, his conviction was overturned on the grounds that the law had to be read consistently with the right to freedom of expression under the Bill of Rights. This meant that his actions were not unlawful because the word dishonour in the Flags, Emblems and Names Protection Act had many shades of meaning, and when the least restrictive meaning of that word was adopted Hopkinson's actions didn't meet that standard. This somewhat unusual result was due in part to the fact that the Bill of Rights does not overrule other laws (see Flag desecration). 194 References External links • New Zealand Bill of Rights Act 1990 (http://legislation.govt.nz/act/public/1990/0109/latest/whole.html) • Ministry of Justice pamphlet on the Bill of Rights (PDF) (http://www.justice.govt.nz/pubs/other/pamphlets/ bill_of_rights/bill_rights.pdf) • Public Address: A Clayton's Bill of Rights (http://www.publicaddress.net/default,3023.sm#post) • New Zealand Herald: Bill of Rights unlikely to grow up (http://subs.nzherald.co.nz/section/1/story. cfm?c_id=1&objectid=10398300) New Zealand Human Rights Act 1993 195 New Zealand Human Rights Act 1993 Human Rights Act 1993 Parliament of New Zealand Long title/ Purpose An Act to consolidate and amend the Race Relations Act 1971 and the Human Rights Commission Act 1977 and to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights Dates Date passed 1 February 1994 Other legislation Amendments Related legislation 1993 New Zealand Bill of Rights Act 1990 Status: Current legislation The Human Rights Act 1993 is an Act of the Parliament of New Zealand which deals with discrimination. It was a consolidation and amendment of the Race Relations Act 1971 and the Human Rights Commission Act 1977. It passed into law 1 February 1994. The Act governs the work of the New Zealand Human Rights Commission. It also outlawed discrimination on a wide variety of grounds, including:[1] 1. 2. 3. 4. 5. 6. Sex (including pregnancy and childbirth) Marital status Religious belief Ethical belief Colour Race 7. Ethnic or national origins 8. Disability 9. Age 10. Political opinion 11. Employment status 12. Family status 13. Sexual orientation There are a significant number of caveats, including "genuine occupational qualification," "domestic employment in a private household," "to preserve reasonable standards of privacy," "national security" and "organised religion." New Zealand Human Rights Act 1993 196 External links [1] (http:/ / www. legislation. govt. nz/ act/ public/ 1993/ 0082/ latest/ DLM304475. html) • Full text of the Act (http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304212.html) Constitution of Fiji: Chapter 4 Chapter 4: Bill of Rights. Chapter 4 of the Constitution of Fiji is titled Bill of Rights. It is one of the longest chapters of the Constitution, comprising a total of twenty-three sections. Fiji's Bill of Rights covers Sections 21 through 43 of the Constitution. Significantly, it sets out the rights of the people and the limitations on the powers of the various branches of government, before specifying the structure of the government. The idea is that the government is subject to human rights, rather than the reverse. Section 21 deals with the application of the Bill of rights. It binds all members of all branches of the Fijian government - legislative, executive, or judicial - at all levels: central, divisional, and local. Laws conflicting with the Bill of Rights are prohibited. Clause 6 of this section goes so far as to declare, "To the extent that it is capable of doing so, this Chapter extends to things done or actions taken outside Fiji." This implies the stand that Fiji will take on behalf of human rights in international forums such as the United Nations. Section 22 guarantees the most fundamental right of all - the right to life. Sections 23 to 29 set out people's basic judicial rights, and spell out the limitations on the powers of law enforcement authorities. • Section 23 and 26 establish the right to personal liberty and the freedom from unreasonable searches and seizure. Arbitrary arrest, and unreasonable searches of persons or property, are prohibited. • Section 24 - freedom from servitude and forced labour. All forms of slavery and forced labour are prohibited. Forced labour does not include labour reasonably required of a person serving a prison term, duties required of a member of Fiji's Armed Forces, or the "labour reasonably required as part of reasonable and normal communal or civic obligations." • Section 25 - freedom from cruel or degrading treatment. All forms of physical, mental, and emotional torture are prohibited, as are "cruel, inhumane, degrading or disproportionately severe treatment or punishment." Similarly, nobody may be subjected to scientific or medical treatment without informed consent, or the consent of a lawful guardian. • Section 27 sets out the rights of arrested, detained, or charged persons. Every person who is arrested or detained must be informed in writing, in a language they understand, of the reasons for the detention and of the nature of the charges. No person may be detained without trial, nor detained without the right to legal representation. Detainees who cannot afford to pay for legal services are to have legal aid provided for free. All detainees are to be treated "to be treated with humanity and with respect for their inherent dignity." • Section 28 deals with the rights of charged persons. No person may be tried in absence, unless the court is satisfied that the charged person's failure to attend the trial is deliberate. No person may be prosecuted for an offence that was not unlawful at the time it occurred, not be sentenced to a more severe punishment than was applicable when the offence occurred. Nor may any person be tried a second time for an offense of which they have previously been convicted or acquitted. • Section 29 guarantees the right of access to courts or tribunals, and the right to a fair trial. Sections 30 through 39 set out personal and communal freedoms. Except in a few limtied circumstances related to national security, public safety or health, people are guaranteed freedom of expression (Section 30) assembly (including the right to protest and demonstrate - Section 31), and association (Section 32). Hate speech, slander, and defamation are explicitly excluded from the protection of the Freedom of Expression clause. Constitution of Fiji: Chapter 4 • Section 33 lays down the rules for labour relations. The rights of both employers and workers to form associations and bargain collectively are protected. Every worker has the right to be treated humanely and to work in an environment that is as safe as practicable. • Section 34 guarantees freedom of movement. Every citizen, and every other person lawfully resident in Fiji, has the right to reside in any part of Fiji, to move freely throughout Fiji, and to leave Fiji. Subsequent to leaving, every citizen of Fiji has the right to return at any time. • Section 35 establishes freedom of religion and belief. "Every person has the right, either individually or in community with others, and both in public and in private, to manifest religion or belief in worship, observance, practice or teaching." No person may be required to attend any religious ceremony without their consent, or the consent of a parent or guardian if the person is under the age of 18, and "A person must not be compelled to take an oath, or to take an oath in a manner contrary to their religion or belief, or that requires them to express a belief they do not hold." These provisions were included in the Constitution to allay the fears of Hindus and Muslims that an ethnic-Fijian (and Christian-dominated) government might compel their children to receive Christian religious instruction through the school system, as well as fears of some Christians that employers, many of whom are Indo-Fijian, might require participation in Hindu festivals. • Section 36 provides for the secret ballot. Every voter has the right to vote confidentially. • Section 37 affirms the right to individual privacy. Unless national security or public order is at stake, the privacy of personal communication is inviolable. This rules out telephone tapping, e-mail monitoring, and mail censorship. • Section 38 declares all persons to be equal before the law, and prohibits discrimination on the grounds of race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age, disability, religious belief, or political opinion. In the case of disabled persons, restaurants, hotels, places of entertainment, taxis, and other public amenities must make reasonable provision for their access. • Section 39 guarantees the right of all persons to a basic education, and to equal access to educational institutions. Every religious denomination, and every cultural and social community, has the right to establish and manage schools. Such schools may be administered on the basis of the need to maintain their religious, cultural, or social character, but admission must be "open to all qualified students without discrimination on any ground prohibited by this Constitution." • Section 40 prohibits the compulsory acquisition of property by the state, except in a few very restricted circumstances related to public purposes. In such cases, compensation to the full market value of the property must be paid. Sections 41 through 43 deal with matters concerning the enforcement of the Bill of Rights, and its interpretation. • Section 41 deals with the enforcement of the Bill of Rights. The High Court is empowered to interpret the Constitution, and persons considering that any provisions of the Bill of Rights have been or are likely to be contravened, may appeal to the High Court. Those receiving an unfavorable verdict may appeal to the Court of Appeal or to the Supreme Court (Fiji). • Section 42 establishes the Human Rights Commission, which is empowered to educate the public about their rights under the Bill of Rights, and to make recommendations to the government about human rights issues. The Human Rights Commission is chaired by the Ombudsman of Fiji, one person who is qualified to be a judge, and a third person appointed by the President on the advice of the Prime Minister, who is first required to consult the Leader of the Opposition and the House of Representatives committee responsible for human rights. • Section 43 lays out how the Bill of Rights is to be interpreted. The Bill of Rights denies being an exhaustive document. All rights and freedoms recognized or conferred by common law, customary law, and legislation, are deemed to be granted unless clearly inconsistent with the Bill of Rights. In addition, in interpreting the Bill of Rights, the courts "must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law." 197 198 Africa African Charter on Human and Peoples' Rights |- | The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. It emerged under the aegis of the Organisation of African Unity (since replaced by the African Union) which, at its 1979 Assembly of Heads of State and Government, adopted a resolution calling for the creation of a committee of experts to draft a continent-wide human rights instrument, similar to those that already existed in Europe (European Convention on Human Rights) and the Americas (American Convention on Human Rights). This committee was duly set up, and it produced a draft that was unanimously approved at the OAU's 1981 Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986– in honour of which 21 October was declared "African Human Rights Day". Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples' Rights was to be created. The protocol came into effect on 25 January 2005. In July 2004, the AU Assembly decided that the ACHP would be incorporated into the African Court of Justice. In July 2005, the AU Assembly then decided that the ACHP should be operationalised despite the fact that the protocol establishing the African Court of Justice had not yet come into effect. Accordingly, the Eighth Ordinary Session [1] of the Executive Council of the African Union meeting in Khartoum, Sudan, on 22 January 2006, elected the first judges of the African Court on Human and Peoples' Rights. The relationship between the newly created Court and the Commission is yet to be determined. As of 15 June 2009, 53 countries have ratified the Charter.[2] Content The African Charter on Human and People's Rights followed the footsteps of the European and Inter-American systems by creating a regional human rights system for Africa. The Charter shares many features with other regional instruments, but also has notable unique characteristics concerning the norms it recognizes and also its supervisory mechanism.[3] The preamble commits to the elimination of Zionism, which it compares with colonialism and apartheid,[4] caused South Africa to qualify its 1996 accession with the reservation that the Charter fall in line with the UN's resolutions "regarding the characterization of Zionism."[5] African Charter on Human and Peoples' Rights 199 Norms contained in the Charter Civil and Political Rights The Charter recognises most of what are regarded universally accepted civil and political rights. The civil and political rights recognised in the Charter include the right to freedom from discrimination (Article 2 and 18(3)), equality (Article 3), life and personal integrity (Article 4), dignity (Article 5), freedom from slavery (Article 5), freedom from cruel, inhuman or degrading treatment or punishment (Article 5), rights to due process concerning arrest and detention (Article 6), the right to a fair trial (Article 7 and 25), freedom of religion (Article 8), freedom of information and expression (Article 9), freedom of association (Article 10), freedom to assembly (Article 11), freedom of movement (Article 12), freedom to political participation (Article 13), and the right to property (Article 14). Some human rights scholars however consider the Charter's coverage of other civil and political rights to be inadequate. For example, the right to privacy or a right against forced or compulsory labour are not explicitly recognised. The provisions concerning fair trial and political participation are considered incomplete by international standards.[3] However, this is subject to argument as for example Article 5 of the Charter states "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of this legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited" also, Article 15 states "Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work" - which may be understood to prohibit forced or compulsory labour, although this is not explicitly mentioned. Similarly, the Charter does not explicitly recognise the right to vote as a means of political participation, but Article 13 states "(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. (2) Every citizen shall have the right to equal access to the public service of his country. (3) Every individual shall have the right of access to public property and services in strict equality of all persons before the law." Economic, Social and Cultural Rights The Charter also recognises certain economic, social and cultural rights, and overall the Charter is considered to place considerable emphasis on these rights. The Charter recognises right to work (Article 15), the right to health (Article 16), and the right to education (Article 17). Through a decision by the African Commission on Human and Peoples' Rights, SERAC v Nigeria (2001), the Charter is also understood to include a right to housing and a right to food. Peoples' Rights and Group Rights In addition to recognising the individual rights mentioned above the Charter also recognises collective or group rights, or peoples' rights. As such the Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards the family protection by the state (Article 18), while "peoples" have the right to equality (Article 19), the right to self-determination (Article 20), to freely dispose of their wealth and national resources (Article 21), the right to development (Article 22), the right to peace and security (Article 23) and "a generally satisfactory environment" (Article 24). African Charter on Human and Peoples' Rights 200 Duties The Charter not only awards rights to individuals and peoples, but also includes duties incumbent upon them. The duties recognise include those towards the family and state security, the duties to pay taxes, and to promote the achievement of African unity (Article 29). Article 27(2), which is included under the heading "duties", provides "The rights and freedoms of each individual shall be exercised with due regards to the rights of others, collective security, morality and common interest".[3] References [1] [2] [3] [4] [5] http:/ / www. africa-union. org/ root/ au/ Documents/ Decisions/ com/ AU6th_ord_Council_Decisions_Jan2006_Khartoum. pdf http:/ / www. achpr. org/ english/ ratifications/ ratification_african%20charter. pdf Christof Heyns, the essentials of...Human Rights, 2005 (http:/ / www. achpr. org/ english/ _info/ charter_en. html) (http:/ / www. doj. gov. za/ policy/ african charter/ africancharter. htm) External links • African Charter on Human and Peoples' Rights (http://www.achpr.org/english/_info/charter_en.html) • African Commission on Human and Peoples' Rights (http://www.achpr.org/english/_info/news_en.html) • Decisions of the Eighth Ordinary Session of the Executive Council (http://www.africa-union.org/root/au/ Documents/Decisions/com/AU6th_ord_Council_Decisions_Jan2006_Khartoum.pdf) Maputo Protocol 201 Maputo Protocol Maputo Protocol Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Type Drafted Signed Location Effective Condition Signatories Depositary Languages Human rights instrument (women) March 1995 (Lome, Togo) 2003 July 11 Maputo, Mozambique 2005 November 25 Ratification by 15 nations of the African Union 46 (28 ratified) African Union Commission English, French [1] The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, better known as the Maputo Protocol, guarantees comprehensive rights to women including the right to take part in the political process, to social and political equality with men, to control of their reproductive health, and an end to female genital mutilation.[2] As the name suggests, it was adopted by the African Union in the form of a protocol to the African Charter on Human and Peoples' Rights. Origins Following on from recognition that women's rights were often marginalized in the context of human rights, a meeting organized by Women in Law and Development in Africa (WiLDAF) in March, 1995, in Lomé, Togo called for the development of a specific protocol to the African Charter on Human and People’s Rights to address the rights of women. The OAU assembly mandated the African Commission on Human and Peoples' Rights (ACHPR) to develop such a protocol at its 31st Ordinary Session in June, 1995, in Addis Ababa.[3] A first draft produced by an expert group of members of the ACHPR, representatives of African NGOs and international observers, organized by the ACHPR in collaboration with the International Commission of Jurists, was submitted to the ACHPR at its 22nd Session in October 1997, and circulated for comments to other NGOs. [3] Revision in cooperation with involved NGO's took place at different sessions from October to January, and in April 1998, the 23rd session of the ACHPR endorsed the appointment of Julienne Ondziel Gnelenga, a Congolese lawyer, as the first Special Rapporteur on Women's Rights in Africa, mandating her to work towards the adoption of the draft protocol on women’s rights.[3] The OAU Secretariat received the completed draft in 1999, and in 2000 at Addis Ababa it was merged with the Draft Convention on Traditional Practices in a joint session of the Inter Africa Committee and the ACHPR.[3] After further work at experts meetings and conferences during 2001, the process stalled and the protocol was not presented at the inaugual summit of the AU in 2002. In early 2003, Equality Now hosted a conference of women's groups, to organize a campaign to lobby the African Union to adopt the protocol, and the protocol's text was brought up to international standards. The lobbying was successful, the African Union resumed the process and the finished document was officially adopted by the section sumit of the African Union, on July 11, 2003.[3] Maputo Protocol 202 Adoption and ratification The protocol was adopted by the African Union on 11 July 2003 at its second summit in Maputo, [4] Mozambique. On 25 November 2005, having been ratified by the required 15 member nations of the African Union, the protocol entered into force.[5] Of the 53 member countries in the African Union, the heads of states of 46 countries signed the protocol, and as of July 2010, 28 of those countries had ratified and deposited the protocol. [6] Signed by Algeria, Angola, Benin, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Côte d'Ivoire, Comoros, Congo, Djibouti, Current map of the Maputo Protocol's ratification process. Democratic Republic of the Congo, Equatorial Guinea, Ethiopia, Gabon, Gambia, Ghana, Guinea-Bissau, Guinea, Kenya, Libya, Lesotho, Liberia, Madagascar, Mali, Mozambique, Mauritius, Namibia, Nigeria, Niger, Rwanda, Sahrawi Arab Democratic Republic, São Tomé and Príncipe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Swaziland, Tanzania, Togo, Uganda, Zambia, Zimbabwe Ratified by Angola, Benin, Burkina Faso, Cameroon,[7] Cape Verde, Comoros, Democratic Republic of the Congo, Djibouti, Gambia, Ghana, Guinea-Bissau, Libya, Lesotho, Liberia, Mali, Malawi, Mozambique, Mauritania, Namibia, Nigeria, Rwanda, Senegal, Seychelles, South Africa, Tanzania, Togo, Uganda, Zambia, Zimbabwe, Kenya Neither signed nor ratified by Botswana, Egypt, Eritrea, Tunisia Reservations At the Maputo Summit, several countries expressed reservations.[1] Tunisia, Sudan, Kenya, Namibia and South Africa recorded reservations about some of the marriage clauses. Egypt, Libya, Sudan, South Africa and Zambia had reservations about "judicial separation, divorce and annulment of marriage." Burundi, Senegal, Sudan, Rwanda and Libya held reservations with Article 14, relating to the "right to health and control of reproduction." Libya expressed reservations about a point relating to conflicts. Maputo Protocol 203 Articles The main articles are: • • • • • • • • • • • • • • • • • • • • • • • • Article 2: Elimination of Discrimination Against Women Article 3: Right to Dignity Article 4: The Rights to Life, Integrity and Security of the Person Article 5: Elimination of Harmful Practices • This refers to female genital mutilation and other traditional practices that are harmful to women. Article 6: Marriage Article 7: Separation, Divorce and Annulment of Marriage Article 8: Access to Justice and Equal Protection before the Law Article 9: Right to Participation in the Political and Decision-Making Process Article 10: Right to Peace Article 11: Protection of Women in Armed Conflicts Article 12: Right to Education and Training Article 13: Economic and Social Welfare Rights Article 14: Health and Reproductive Rights Article 15: Right to Food Security Article 16: Right to Adequate Housing Article 17: Right to Positive Cultural Context Article 18: Right to a Healthy and Sustainable Environment Article 19: Right to Sustainable Development Article 20: Widows' Rights Article 21: Right to Inheritance Article 22: Special Protection of Elderly Women Article 23: Special Protection of Women with Disabilities Article 24: Special Protection of Women in Distress Article 25: Remedies Opposition There are two particularly contentious factors driving opposition to the Protocol: its article on reproductive health, which is opposed mainly by Catholics and other Christians, and its articles on female genital mutilation, polygamous marriage and other traditional practices, which are opposed mainly by Muslims. Christian opposition Pope Benedict XVI has described the Protocol as "an attempt to trivialize abortion surreptitiously". [8] The Roman Catholic bishops of Africa oppose the Maputo Protocol because it defines abortion as a human right. The US-based pro-life advocacy organization, Human Life International, describes it as "a Trojan horse for a radical agenda." [9] In Uganda, the powerful Joint Christian Council has successfully opposed moves to ratify the treaty on the grounds that Article 14, in guaranteeing abortion "in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus," is incompatible with traditional Christian morality. [10] In an open letter to the government and people of Uganda in January, 2006, the Catholic Bishops' Conference of Uganda set out their opposition to the ratification of the Maputo Protocol. [11] It got later ratified on 22 July, 2010.[12] Maputo Protocol 204 Muslim opposition In Niger, the Parliament voted 42 to 31, with 4 abstentions, against ratifying it in June, 2006; in this Muslim country, several traditions banned or deprecated by the Protocol are common.[13] Nigerien Muslim women's groups in 2009 gathered in Niamey to protest what they called "the satanic Maputo protocols", specifying limits to marriage age of girls and abortion as objectionable.[14] In Djibouti, however, the Protocol was ratified in February, 2005 after a subregional conference on female genital mutilation called by the Djibouti government and No Peace Without Justice, at which the Djibouti Declaration on female genital mutilation was adopted. The document declares that the Koran does not support female genital mutilation, and on the contrary practising genital mutilation on women goes against the precepts of Islam.[15] [16] [17] References [1] AU Executive Council endorses protocol on women's rights, Panafrican News Agency (PANA) Daily Newswire, September 7, 2003 [2] The Maputo Protocol of the African Union (http:/ / www. gtz. de/ de/ dokumente/ en-fgm-maputoprotocol. pdf), brochure produced by GTZ for the German Federal Ministry for Economic Cooperation and Development [3] Rights of Women in Africa: Launch of a Petition to the African Union (http:/ / www. pambazuka. org/ en/ publications/ africanvoices_chap04. pdf), by Mary Wandia, Pambazuka News 162, June 24, 2004, republished in "African Voices on Development and Social Justice Editorial from Pambazuka News 2004" by Firoze Manji (Ed.) and Patrick Burnett (Ed.), Mkuki na Nyota Publishers, Tanzania, ISBN 978-9987-417-35-3 [4] African Union: Rights of Women Protocol Adopted (http:/ / www. scoop. co. nz/ stories/ WO0307/ S00279. htm), press release, Amnesty International, 22 July 2003 [5] UNICEF: toward ending female genital mutilation (http:/ / www. scoop. co. nz/ stories/ WO0602/ S00099. htm), press release, UNICEF, 7 February 2006 [6] List of countries which have Signed, Ratified/Acceded the Maputo Protocol (http:/ / www. africa-union. org/ root/ au/ Documents/ Treaties/ List/ Protocol on the Rights of Women. pdf), African Union official website [7] Mforgham, Solomon Tembang (5 July 2009). "Abortion, homosexual row erupt in Cameroon" (http:/ / www. africanews. com/ site/ Abortion_homosexual_row_erupt_in_Cameroon/ list_messages/ 25824). Africa News. . Retrieved 2009-07-17. [8] Pope to diplomats: Respect for rights, desires is only path to peace (http:/ / www. catholicnews. com/ data/ stories/ cns/ 0700125. htm), January 8, 2007, Catholic News Service [9] Marking The International Day of Women (http:/ / www. oecumene. radiovaticana. org/ en1/ Articolo. asp?c=191776), March 8, 2008, Vatican Radio [10] Rights Treaty in Uganda Snags on 'African Values' (http:/ / www. womensenews. org/ article. cfm/ dyn/ aid/ 3619), Women's eNews, June 2, 2008 [11] Open Letter to the Government and People of Uganda (http:/ / www. ewtn. com/ library/ BISHOPS/ letterbpsuganda. htm) Concerning the Ratification of the Protocol to the African Charter on Human Rights and Peoples' Right: On the Rights of Women in Africa, Catholic Bishops' Conference of Uganda, document hosted at Eternal Word Television Network [12] http:/ / www. africa4womensrights. org/ post/ 2010/ 08/ 02/ Uganda-becomes-the-28th-State-Party-to-the-Maputo-Protocol! [13] Niger MPs reject protocol on women's rights (http:/ / www. iol. co. za/ index. php?set_id=1& click_id=86& art_id=qw1149543182315B216), Independent Online, June 6, 2006 [14] JOURNÉE NATIONALE DE LA FEMME NIGÉRIENNE: Les femmes musulmanes s’opposent aux ‘’textes sataniques’’ relatifs à la femme (http:/ / www. tamtaminfo. com/ index. php?option=com_content& view=article& id=1373:journee-nationale-de-la-femme-nigerienne-les-femmes-musulmanes-sopposent-aux-textes-sataniques-relatifs-a-la-femme& catid=49:societe& Itemid=96). Mamane Abdou, Roue de l’Histoire (Niamey) n° 456. 14 May 2009. [15] Djibouti ratifies the Maputo Protocol against the practice. Conference in Djibouti affirms Koran says nothing about it (http:/ / www. wadinet. de/ projekte/ frauen/ fgm/ attach2. htm), WADI [16] DJIBOUTI: Anti-FGM protocol ratified but huge challenges remain (http:/ / www. irinnews. org/ report. aspx?reportid=53109), 14 December 2008, IRIN [17] Second Thematic Session Third Report - Le Protocole de Maputo (http:/ / www. npwj. org/ No+ Peace+ Without+ Justice/ Female+ Genital+ Mutilation/ History/ Djibouti+ 2005/ Second+ Thematic+ Session+ -+ Third+ Report), French, recording announcement of the Djibouti government's imminent intention to ratify the Maputo Protocol, No Peace Without Justice, February 2, 2005 Maputo Protocol 205 External links • Treaties and protocols of the African Union (http://www.africa-union.org/root/au/Documents/Treaties/ treaties.htm) - African Union official website • The Maputo Protocol in the news (http://www.stopfgmc.org/client/final_category.aspx?root=389), stopfgmc.org, the website of the International Campaign for the Abandonment of Female Genital Mutilation • Page on the protocol (http://www.achpr.org/english/_info/women_prot..htm) at the official ACHPR website. • Maputo Protocol text (http://74.125.93.132/search?q=cache:KN_heCif2fYJ:www.africa-union.org/root/au/ Documents/Treaties/Text/Protocol%20on%20the%20Rights%20of%20Women.pdf+Protocol+to+the+ African+Charter+on+Human+and+peoplesâ+Rights,+relative+to+the+Rights+of+Women+in+Afric+ text&hl=en) Chapter 2 of the Constitution of South Africa Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments and municipal councils. Some provisions, such as those prohibiting unfair discrimination, also apply to the actions of private persons. South Africa's first bill of rights was contained in Chapter 3 of the transitional Constitution of 1993, which was drawn up as part of the negotiations to end apartheid. This "interim Bill of Rights", which came into force on 27 April 1994 (the date of the first non-racial election), was largely limited to civil and political rights (negative rights).[1] The current Bill of Rights, which replaced it on 4 February 1997 (the commencement date of the final Constitution), retained all of these rights and added a number of new positive economic, social and cultural rights. Application The extent of the jurisdiction and application of the Bill of Rights is defined by sections seven and eight, entitled "Rights" and "Application" respectively. Section seven provides that the rights apply to "all people in our country" (although certain rights are limited to citizens) and requires the state (by which is meant government at all levels) to "respect, protect, promote and fulfil" the Bill of Rights. It also notes that the rights in the Bill are subject to the limitations provided for in section thirty-six and elsewhere in the Bill; see Limitations below. Although section two already provides for the supremacy of the Constitution over all laws and government actions, section eight explicitly states that the Bill of Rights applies to all law and binds all branches and organs of government. It further states that the provisions of the Bill also bind private parties to the extent that they are applicable, given the nature of the rights in question, and requires the courts to develop the common law to this effect. Finally, section eight extends the benefits of the Bill of Rights to juristic persons, taking into account the nature of the rights and the juristic persons in question. Thus, for example, the right to human dignity and the right to health care clearly only apply to actual human beings, while the right to freedom of expression and the right to property apply also to corporations. Chapter 2 of the Constitution of South Africa 206 Rights Equality Section 9 contains strong provisions on equality, or the right to equality. Section 9 is in line with internationally recognised human rights law, but the provision is more detailed than for example in the Universal Declaration of Human Rights. The Section starts with "Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken." The Section, like the Universal Declaration of Human Rights prohibits all discrimination "on one or more grounds, including...", but specifically lists the following grounds "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." This is list is more extensive than the equality provisions in most human rights instruments, noteworthy are the distinction between "gender" and "sex", the inclusion of "pregnancy", the distinction between "race" and "colour", the inclusion of "age" and "disability". Section 8 again not only indicates negative responsibilities, in that the State is not allowed to discriminate, but also positive responsibilities in that it provides that "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination." See negative and positive rights. Section 8 includes the limitation "Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair." This limitation allows for the South African government to enact the Black Economic Empowerment program, which seeks to redress the inequalities of Apartheid by giving previously disadvantaged groups (black Africans, Coloureds and Indians who are SA citizens) economic opportunities previously not available to them. Human dignity Section 10 states “Everyone has inherent dignity and the right to have their dignity respected and protected.” Life Section 11 states “Everyone has the right to life.” In S v Makwanyane this was judged to forbid the death penalty. Freedom and security of the person Section 12 protects “Freedom and Security of the Person”. The Section sets out the rights contained under this provision, which include standard due process profisions, freedom from arbitrary arrest, freedom from torture, and freedom from cruel, inhuman or degrading punishment. The Section also stipulates the freedom from all forms of violence, regardless of whether a public or private source. This provision is unique amongst human rights instruments. The Section starts with “Everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause; not to be detained without trial; to be free from all forms of violence from either public or private sources; not to be tortured in any way; and not to be treated or punished in a cruel, inhuman or degrading way.” The Section also covers reproductive rights, although not extensively defined. Adding to this the Section grants “security in and control over” the own body and to not be subjected to medical or scientific experiments without informed consent. These two provisions are unique amongst human rights instruments. Chapter 2 of the Constitution of South Africa The Section reads “Everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction; to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent. 207 Slavery, servitude and forced labour Section 13 states “No one may be subjected to slavery, servitude or forced labour.” Privacy Section 14 contains details provisions on the right to privacy. Defining the scope as follows “Everyone has the right to privacy, which includes the right not to have their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed.” Freedom of religion, belief and opinion Section 15 states “Everyone has the right to freedom of conscience, religion, thought, belief and opinion.” The Section expands on the Right to freedom of religion by stating “ Religious observances may be conducted at state or state-aided institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary. The Section also seeks to define how the right to freedom of religion, belief and opinion is balanced against tradition and custom, by stating “This section does not prevent legislation recognising marriages concluded under any tradition, or a system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. “ The Section also provides that “Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.” Freedom of expression Section 16 contains detailed provisions with regards to freedom of expression, stating “Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.” Section 16 contains the following limitations to freedom of expression “The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” Assembly, demonstration, picket and petition Section 17 states “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” Freedom of association Section 18 states “Everyone has the right to freedom of association.” Political rights Section 19 sets out a detailed set of political rights, stating “Every citizen is free to make political choices, which includes the right to form a political party; to participate in the activities of, or recruit members for, a political party; and to campaign for a political party or cause.“ The Section also safeguards public participation by the means of election by stating “Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution. Every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution, and to do so in Chapter 2 of the Constitution of South Africa secret; and to stand for public office and, if elected, to hold office.” These provisions contain the implied limitation that only citizens of South Africa have a right to vote, and that they must be “adults”. 208 Citizenship Section 20 states that “No citizen may be deprived of citizenship.” Freedom of movement and residence Section 21 provides that “Everyone has the right to freedom of movement. Everyone has the right to leave the Republic.” Hence these provisions are applicable to all humans, while the following are limited to South African citizens. “Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic. Every citizen has the right to a passport.” Freedom of trade, occupation and profession Section 22 enshrines freedom of trade occupation and profession. This set of rights is unique among human rights instruments. The Section states “Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.” Labour relations Section 23 sets out a number of labour rights, including the right to collective bargaining, and to join a trade union. The Section also stipulates the rights of the employer, as well as the rights of a trade union or employers’ organisation, in great detail, which is unique amongst human rights instruments. The Section states “Everyone has the right to fair labour practices. Every worker has the right to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike.” With regards to employers the Section states “Every employer has the right to form and join an employers' organisation; and to participate in the activities and programmes of an employers' organisation.” The Section lists the following rights for trade unions and employer organisations “Every trade union and every employers' organisation has the right to determine its own administration, programmes and activities; to organise; and to form and join a federation. Every trade union, employers' organisation and employer has the right to engage in collective bargaining.” The Section concludes with the following limitation “National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1). National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).” Environment Section 24 sets out a number of environmental rights, which is unique in terms of human rights instruments, although environmental rights are recognised in the African Charter on Human and Peoples' Rights, although not in detail, and the Stockholm Declaration. Article 24 specifically puts environmental rights into the context of human health, stating “Everyone has the right to an environment that is not harmful to their health or well-being;” As well as recognising the rights of future generations in the context of sustainable development by stating “and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.” Chapter 2 of the Constitution of South Africa 209 Property Section 25 enshrines the right to property, which is a standard international human right. The Section is very detailed, making it unique among human rights instruments. The Section amongst others covers arbitrary deprivation of property and compensation in great detail, which is in the context of the South African post-apartheid era and the Black Economic Empowerment program. The Section states “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.” The Section makes detailed provisions on compensation by stating “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.” The Section sets out the context in which these provisions may be of relevance, in stating “For the purposes of this section the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and property is not limited to land. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.” Housing Section 26 grants the right to housing, which is recognised by the African Commission on Human and Peoples' Rights. In the case SERAC v Nigeria (2001), the Commission concluded that the African Charter on Human and Peoples' Rights should be understood to include a right to housing and a right to food. The Section states that “Everyone has the right to have access to adequate housing.” Section 26 places positive responsibilities upon the state in stating that “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.” Section 26 also grants the right to due process with regards to housing, stating that “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Health care, food, water and social security Section 27 sets out a number of rights with regards to health, including right to access to health care, including reproductive rights. Section 27 also enshrines the right to social security, the right to food, and the right to water. Section 27 also states that “No one may be refused emergency medical treatment.” Again, positive responsibilities are placed on the state, the Section stating that “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.“ Chapter 2 of the Constitution of South Africa 210 Children Section 28 lists a number of rights held by children. These rights relate to domestic family life, child labour, education, imprisonment, and armed conflict. It is stated that “In this section "child" means a person under the age of 18 years.“ and “A child's best interests are of paramount importance in every matter concerning the child.“ The rights listed are as follows • • • • • • ”to a name and a nationality from birth;” ”to family care or parental care, or to appropriate alternative care when removed from the family environment;” ”to basic nutrition, shelter, basic health care services and social services;” ”to be protected from maltreatment, neglect, abuse or degradation;” ”to be protected from exploitative labour practices;” ”not to be required or permitted to perform work or provide services that are inappropriate for a person of that child's age; or place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;” • ”not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be kept separately from detained persons over the age of 18 years; and treated in a manner, and kept in conditions, that take account of the child's age;” • ”to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result;” • ”not to be used directly in armed conflict, and to be protected in times of armed conflict.” Education Section 29 enshrines the right to education, and defines the positive responsibilities of the state in this respect. The Section states “Everyone has the right to a basic education, including adult basic education; and to further education, which the state, through reasonable measures, must make progressively available and accessible.” The right to education is amongst others recognised in the Universal Declaration of Human Rights, and Section 29 expands on this provision in detail with regards to language, and the right to establishment self-funded of private schools. The detailed provisions with regards to language reflects the fact that South Africa is a culturally diverse nation and has 11 official languages. Chapter 1 (Founding Provisions), Section 6 (Languages) of the Constitution of South Africa is the basis for government language policy, and Section 29 (Chapter 2, Bill of Rights) places positive responsibilities upon the state in this regard. Section 29 states that “Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.” See: Languages of South Africa Chapter 2 of the Constitution of South Africa 211 Language and culture Section 30 also considers the issue of language in terms of cultural rights, although with limitation. Section 30 states that “Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.” See: Languages of South Africa Cultural, religious and linguistic communities Section 31 specifically considers cultural, religious and linguistic communities within South Africa. Section 31 does not grant these communities group rights, but reaffirms their individual rights to exercise a number of cultural rights. Section 31 states that “Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practise their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.” Section 31 concludes with the following limitation “The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.” Access to information Section 32 provides for the right to access to information, also known as the right to know. This provision is unique among human rights instruments, but are comparable with freedom of information legislation in other countries. The right to know was enshrined in the South African Bill of Rights in reaction to the restrictive information policies by the Apartheid regime. Section 32 states that “Everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.” Section 32 not only provides for access to information held by the state, but also from a third party if it is required to excercie or protect any right. This makes this provision unique, even among freedom of information legislation, which commonly only apply to public bodies. Section 32 applies to public bodies, as well as private bodies, including companies.[2] Procedures for access to information under section 32, and the limitations on the release of information, are regulated by the Promotion of Access to Information Act, 2000. Just administrative action Section 33 states that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.” This section is unique amongst human rights instruments in terms of its detail on administrative due process. Access to courts Section 34 effectively provides for the right to a fair trial. It states “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” Chapter 2 of the Constitution of South Africa 212 Arrested, detained and accused persons Section 35 is a very detailed list of rights, or right to due process. The Section lists rights with regards to arrest, court appearance, detention and fair trial. Limitations Rights contained in the Bill of Rights are not absolute and may be limited by way of specific limitation clauses where individual rights are subject to limitations set out in the individual Sections, e.g. Section 9 on equality. In addition, the Constitution provides a General Limitation Clause at Section 36, which provides for all rights in the Bill of Rights to be limited in terms of law of general application and that "limitations must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom." Any limitation must therefore be reasonable and may only be made with good cause. Limits should also be less restrictive. Organs of state, such as the judiciary, the legislature or the executive, may invariably limit rights in carrying out their functions. For example by limiting the freedom of a prisoner. Further, because of the horizontal application of the Bill of Rights, rights may be limited by the actions or decisions of other persons. The courts are empowered to test the validity of the limitation in terms of S36. Section 36 provides certain factors that must be taken into account by the courts when determining if a limitation is reasonable and justifiable: • • • • • The nature of the right. The importance of the limitation The nature and extent of the limitation The relation between the limitation and its purpose, and Less restrictive means to achieve the purpose. These factors are not limited and other factors that the court may deem necessary may also be taken into account. When the nature of the right is considered, the courts will have to take into account the content of the right, the importance of the right and the interest which is protected. It is, for instance, very difficult to justifiably limit the right to life as the Constitutional Court held in S v Makwanyane where capital punishment was abolished. The promotion and protection of a permissible or lawful public interest will be important when considering the limitation and its purpose. Further, the Constitution requires a less restrictive means to be considered, rather than limiting the rights of an individual, in achieving that purpose. [3] Comparison with other human rights instruments The limitations clause under section 36 has been compared to similar clauses in the European Convention on Human Rights. Specifically, there are limits on privacy rights (Section 8(2)), "except such as is in accordance with the law and is necessary in a democratic society", limits on freedom of thought and religion (art. 9(2)), "subject only to such limitations as are prescribed by law and are necessary in a democratic society," etc. In Canada the Canadian Charter of Rights and Freedoms was adopted in 1982. Section 1 of that Charter, like section 36 of the South African law, states that rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."[4] Chapter 2 of the Constitution of South Africa 213 References [1] [2] [3] [4] Cockrell, Alfred (July 1997). "The South African Bill of Rights and the 'Duck/Rabbit'". Modern Law Review 60 (4): 513–537. http:/ / www. freedominfo. org/ features/ 20020717. htm/ Rautenbach, Malherbe. "Constitutional Law, 4th Edition," 2004. ISBN 9780409050530 Brice Dickson, "Human Rights in the 21st Century," Amnesty International Lecture, Queen's University, Belfast, 11 November 1999. External links • Copy of the Bill of Rights from the official South African Government website (http://www.info.gov.za/ documents/constitution/1996/96cons2.htm) Black Economic Empowerment Black Economic Empowerment (BEE) is a programme launched by the South African government to redress the inequalities of Apartheid by giving previously disadvantaged groups (black Africans, Coloureds, Indians and some Chinese[1] --who are SA citizens) economic opportunities previously not available to them. It includes measures such as Employment Equity, skills development, ownership, management, socioeconomic development and preferential procurement. Rationale After the transition of Apartheid in 1994, it was decided by the government of the African National Congress that direct intervention in the distribution of assets and opportunities was needed to resolve the economic disparities created by Apartheid policies which had favoured white business owners. BEE intended to transform the economy to be representative of the demographics, specifically race demographics of the country. BEE was defined in the 2001 Commission Report as follows, "It is an integrated and coherent socio-economic process. It is located within the context of the country's nation transformation programme, namely the RDP (Reconstruction and Development Programme). It is aimed at redressing the imbalances of the past by seeking to substantially and equitably transfer and confer ownership, management and control of South Africa's financial and economic resources to the majority of the citizens. It seeks to ensure broader and meaningful participation in the economy by black people to achieve sustainable development and prosperity." — BEE Commission Report, pg. 2 Successful implementers of BEE also see it as a means to create economic growth in South Africa, and as vital to their corporate strategy. Legislation On 9 February, 2007, the first BEE Codes of Good Practice was gazetted by the South-African Government. This newest release of the Codes is also known as Broad-Based Black Economic Empowerment or B-BBEE This included the following Codes: • • • • Code 100 – Ownership Code 200 – Management & Control Code 300 – Employment Equity Code 400 – Skills Development • Code 500 – Preferential Procurement • Code 600 – Enterprise Development Black Economic Empowerment • Code 700 – Socioeconomic development • Codes 800 - 807 - Qualifying Small Enterprises The following sector scorecards have also been gazetted (in terms of section 12): • Financial Sector Scorecard [2] • Construction Sector Scorecard[3] • Tourism Sector Code [4] Also gazetted were general guidelines and definitions, among which, the definition of the beneficiaries of BEE. The definition is the same as that of the Black Economic Empowerment Act of 2003 which states that "black people" is a generic term which means Africans, Coloureds and Indians and included provisions to ensure that they must have been South African citizens prior to 1994.[5] The fact that Chinese individuals (some of whom were classified as Coloureds under Apartheid, others as honorary white), who were also submitted to legal discrimination prior to 1990 (but exempt from the Group Areas Act as of 1984 when the Group Areas Amendment Act was promulgated), have been excluded as beneficiaries of black empowerment, has led to a renewed media debate regarding the definition of “black” in current legislation.[6] As of 2008, Chinese people have been reclassified as "black" after The Chinese Association of South Africa took the South African government to court and won.[7] The BEE legislation is supported and functions in conjunction with various other forms of Legislation, including the Employment Equity Act, Skills Development Act, Preferential Procurement Framework and others. The legislation was developed through numerous task teams and have taken more than 3 years to be gazetted since the first Act (December 2003) and the first Codes of Good Practice released in November 2005 which addressed Statement 100 and 200. Subsequent Codes were released in December 2006 addressing Codes 300 to 700. Based on public and stakeholder comments, the final codes were adjusted and gazetted.[8] 214 Scorecards Enterprises may be rated based on various scorecards, however only the following have been gazetted as of February 2007:[9] • • • • • • Generic Broad Based Scorecard Generic Narrow Based Scorecard Qualifying Small Enterprises Narrow Based Scorecard Qualifying Small Enterprises Broad Based Scorecard Financial Sector Scorecard Construction Sector Scorecard The last two - Financial Sector scorecard and Construction Sector scorecard have not been passed into law. They were gazetted under section 12 of the act, which is for comment only. They will need to be gazetted in terms of section 9 of the act to become an official sector code. Until that happens all enterprises falling in these two industries are required to use the codes of good practice in producing a scorecard. Significant leniency for Small Enterprises has been built into the gazetted codes. Based on the Qualifying Small Enterprises Codes, all companies with a turnover under R5 million p.a. is completely exempt from BEE and automatically qualifies as a level 4 contributor or achieves 100% BEE Contribution Recognition. The generic broad based scorecard. All seven pillars must be addressed totalling 100 points Black Economic Empowerment 215 Element Ownership Management Control Employment Equity Skills Development Preferential Procurement Enterprise Development Weighting 20 points 10 points 15 points 15 points 20 points 15 points Compliance Targets 25%+1 (40% to 50%) (43% to 80%) 3% of payroll 70% 3% (NPAT) 1% (NPAT) Socio- Economic Development 5 points Qualifying Small Enterprises (those with an annual turnover from R5 - 35 million) are rated on the following scorecard and may choose any four of the pillars to address, totalling 100 points Element Ownership Management Employment Equity Skills Development Preferential Procurement Enterprise Development Weighting 25 points 25 points 25 points 25 points 25 points 25 points Compliance Targets 25%+1 50.1% (40% to 70%) 2% of payroll 50% 2% (NPAT) 1% (NPAT) Socio- Economic Development 25 points Exemption Small businesses, generally with a turnover of less than R5m, are considered to be Exempted Micro Enterprises and do not need to be measured against the BEE scorecards as stated above. Criticism Critics argue that BEE's aim was to attempt to create equality of the workforce of South Africa as a whole by enforcing the advantaging of the previously disadvantaged and the disadvantaging the previously advantaged. This results in businesses having to consider the social background of any potential applicant instead of making decisions purely based on qualifications and experience (News Daily, May 24, 2004). Instead of using this type of policy, it has been suggested by critics that a policy of qualification equality should be used. This would allow businesses to focus on employing the person with the highest qualifications, the most experience and the best recommendations. To allow previously disadvantaged individuals to achieve these qualifications and experience, critics of BEE say that the government should place more emphasis on secondary and tertiary education, as well as subsidise companies wishing to employ entry level applicants. In response to criticism, the South African Government launched Broad Based Black Economic Empowerment which is the current gazetted framework for addressing Black Empowerment beyond enriching a few. BEE has also been criticized for creating a brain drain, where the qualified white expertise is leaving for areas where they would not be discriminated against. Inkatha Freedom Party leader Mangosuthu Buthelezi is a strong critic of BEE and supports this view. He has stated that "the government's reckless implementation of the affirmative action policy is forcing many white people to leave the country, creating a skills shortage crisis".[10] Archbishop Desmond Tutu has warned that South Africa is sitting on a "powder keg" because millions are living in "dehumanising Black Economic Empowerment poverty" stating that Black Economic Empowerment only serves an elite few.[11] 216 References [1] "Chinese are declared to be Black, so are Chinese are Fully Black?" (http:/ / beepartner. com/ 2008/ 06/ 30/ chinese-are-declared-to-be-black-so-are-chinese-are-fully-black/ ). BEE Partner, South Africa Economy Watch. . Retrieved 2008-06-30. [2] "Codes of Good Practice on Broad-Based Black Economic Empowerment - Financial Sector Charter" (http:/ / www. dti. gov. za/ bee/ beecharters/ gazetteno610. pdf) (PDF). Department of Trade and Industry. . Retrieved 2007-08-23. [3] "Codes of Good Practice on Broad-Based Black Economic Empowerment - Construction Sector Charter" (http:/ / www. dti. gov. za/ bee/ beecharters/ gazetteno616. pdf) (PDF). Department of Trade and Industry. . Retrieved 2007-08-23. [4] "Codes of Good Practice on Broad-Based Black Economic Empowerment - Tourism Sector Codes" (http:/ / www. thedti. gov. za/ bee/ beecharters/ tourism. pdf) (PDF). Department of Trade and Industry. . [5] "Codes of Good Practice on Broad-Based Black Economic Empowerment - Schedule 1, Interpretation and Definitions" (http:/ / www. dti. gov. za/ bee/ beecharters/ schedule1. pdf) (PDF). Department of Trade and Industry. . Retrieved 2007-08-23. [6] Vuyo Jack (2007-04-29). "Chinese people fall in grey area of BEE scorecard" (http:/ / web. archive. org/ web/ 20070927011730/ http:/ / www. busrep. co. za/ index. php?fSectionId=553& fArticleId=3803052). Business Report. Archived from the original (http:/ / www. busrep. co. za/ index. php?fSectionId=553& fArticleId=3803052) on 2007-09-27. . Retrieved 2007-08-23. [7] "S Africa Chinese 'become black'" (http:/ / news. bbc. co. uk/ 2/ hi/ 7461099. stm). BBC News. 2008-06-18. . Retrieved 2011-06-27. [8] "The BEE Codes of Good Practice" (http:/ / www. dti. gov. za/ bee/ beecodes. htm). Department of Trade and Industry. . Retrieved 2007-08-23. [9] "BB-BEE Codes of Good Practice" (http:/ / www. dti. gov. za/ publications/ BB-BEE Codes of Good Practice Booklet121206. pdf) (PDF). Department of Trade and Industry. . Retrieved 2007-08-23. [10] "Buthelezi slams affirmative action" (http:/ / www. mg. co. za/ articlepage. aspx?area=/ breaking_news/ breaking_news__national/ & articleid=297671). Mail & Guardian. 2007-02-01. . Retrieved 2007-08-23. [11] "Tutu warns of poverty 'powder keg'" (http:/ / news. bbc. co. uk/ 2/ hi/ africa/ 4035809. stm). BBC. 2004-11-23. . Retrieved 2009-11-12. External links • Broad-Based Black Economic Empowerment Act, 2003 (http://www.info.gov.za/gazette/acts/2003/a53-03. pdf) • (http://www.thedti.gov.za/bee/complete.pdf) Department of Trade and Industry BEE Strategy • SANAS (http://www.sanas.co.za/) South African National Accreditation System 217 International International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Parties and signatories to the ICCPR:   signed and ratified   signed but not ratified   neither signed nor ratified Type Drafted Signed Location Effective Signatories Parties Depositary Languages United Nations General Assembly Resolution 1954 16 December 1966 [1] United Nations Headquarters, New York 23 March 1976 74 [1] [1] [1] 167 Secretary General of the United Nations French, English, Russian, Chinese, Spanish International Covenant on Civil and Political Rights at Wikisource The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of October 2011, the Covenant had 74 signatories and 167 parties.[1] The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).[2] The ICCPR is monitored by the Human Rights Committee (a separate body to the Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The International Covenant on Civil and Political Rights Committee normally meets in Geneva and normally holds three sessions per year. 218 Genesis The ICCPR has its roots in the same process that led to the Universal Declaration of Human Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference which led to the founding of the United Nations, and the Economic and Social Council was given the task of drafting it.[2] Early on in the process, the document was split into a declaration setting forth general principles of human rights, and a convention or covenant containing binding commitments. The former evolved into the UDHR and was adopted on December 10, 1948.[2] Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural rights.[3] These eventually caused the convention to be split into two separate covenants, "one to contain civil and political rights and the other to contain economic, social and cultural rights."[4] The two covenants were to contain as many similar provisions as possible, and be opened for signature simultaneously.[4] Each would also contain an article on the right of all peoples to self-determination.[5] The first document became the International Covenant on Economic, Social and Cultural Rights and the second the International Covenant on Civil and Political Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966.[6] Because of political reasons was the International Covenant on Economic, Social and Cultural Rights adopted shortly before the International Covenant on Civil and Political Rights. Summary The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.[7] Part 1 (Article 1) recognises the right of all peoples to self-determination, including the right to "freely determine their political status",[8] pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence,[9] and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.[10] Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights.[11] It also requires the rights be recognised "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,"[12] and to ensure that they are enjoyed equally by women.[13] The rights can only be limited "in time of public emergency which threatens the life of the nation,"[14] and even then no derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood, and freedom of thought, conscience and religion.[14] Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to • physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8); • liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Articles 9 – 11); • procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (Articles 14, 15, and 16); • individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 – 24); International Covenant on Civil and Political Rights • prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Article 20); • political participation, including the right to join a political party and the right to vote (Article 25); • Non-discrimination, minority rights and equality before the law (Articles 26 and 27). Many of these rights include specific actions which must be undertaken to realise them. Part 4 (Articles 28 – 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise the competence of the Committee to resolve disputes between parties on the implementation of the Covenant (Articles 41 and 42). Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources".[15] Part 6 (Articles 48 – 53) governs ratification, entry into force, and amendment of the Covenant. 219 Core provisions Rights to physical integrity Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law.[16] It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely.[17] It therefore requires parties to take positive measures to reduce infant mortality and increase life expectancy, as well as forbidding arbitrary killings by security forces.[17] While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes"[18] and forbids it to be used on children and pregnant women[19] or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide.[20] The UN Human Rights Committee interprets the Article as "strongly suggest[ing] that abolition is desirable",[17] and regards any progress towards abolition of the death penalty as advancing this right.[17] The Second Optional Protocol commits its signatories to the abolition of the death penalty within their borders. Article 7 prohibits torture and cruel, inhuman or degrading punishment.[21] As with Article 6, it cannot be derogated from under any circumstances.[14] The article is now interpreted to impose similar obligations to those required by the United Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement.[22] In response to Nazi human experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.[21] Article 8 prohibits slavery and enforced servitude in all situations.[23] The article also prohibits forced labour, with exceptions for criminal punishment, military service and civil obligations.[24] Liberty and security of person Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law,[25] and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.[25] These provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or for educational or immigration purposes.[26] Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge.[27] It also restricts the use of pre-trial detention,[25] requiring it to be imposed only in exceptional circumstances and for as short a period of time as possible.[26] International Covenant on Civil and Political Rights Article 10 requires anyone deprived of liberty to be treated with dignity and humanity.[28] This applies not just to prisoners, but also to those detained for immigration purposes or psychiatric care.[29] The right complements the Article 7 prohibition on torture and cruel, inhuman or degrading treatment.[29] The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated from convicted prisoners, and children to be separated from adults.[28] It requires prisons to be focused on reform and rehabilitation rather than punishment.[28] Article 11 prohibits the use of imprisonment as a punishment for breach of contract.[30] 220 Procedural fairness and rights of the accused Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public.[31] Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce cases or to protect the interests of children.[31] These obligations apply to both criminal and civil hearings, and to all courts and tribunals.[32] The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes the Presumption of innocence[31] and forbids double jeopardy.[31] It requires that those convicted of a crime be allowed to appeal to a higher tribunal,[31] and requires victims of a Miscarriage of justice to be compensated.[31] It establishes rights to a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.[31] Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.[33] Article 16 requires states to recognize everyone as a person before the law.[34] Individual liberties Article 12 guarantees freedom of movement, including the right of persons to choose their residence and to leave a country.[35] These rights apply to legal aliens as well as citizens of a state,[36] and can be restricted only where necessary to protect national security, public order or health, and the rights and freedoms of others.[37] The article also recognises a right of people to enter their own country.[38] The Human Rights Committee interprets this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality.[36] They also regard it as near-absolute; "there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable".[36] Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.[39] Article 17 mandates the right of privacy.[40] This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour,[41] however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision.[42] Article 18 mandates freedom of religion.[43] Article 19 mandates freedom of expression.[44] Article 20 mandates sanctions against inciting hatred.[45] Articles 21 and 22 mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and also defines the International Labour Organisation.[45] [46] International Covenant on Civil and Political Rights Article 23 mandates the right of marriage.[47] The wording of this provision excludes coverage of same-sex couples from protection by this marriage right, however it does not prohibit the recognition of same-sex marriage by a signatory country.[48] Article 24 mandates the right to a nationality.[49] Article 27 mandates the rights of ethnic, religious and linguistic minority to enjoy their own culture, to profess thier own religion, and to use their own language.[50] 221 Political rights Article 3 provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independently and can only be relied upon in relation to another right protected by the ICCPR. In contrast, Article 26 contains a revolutionary norm by providing an autonomous equality principle which is not dependant upon another right under the convention being infringed. This has the effect of widening the scope of the non-discrimination principle beyond the scope of ICCPR. Optional protocols There are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the Covenant.[51] This has led to the creation of a complex jurisprudence on the interpretation and implementation of the Covenant. As of October 2011, the First Optional Protocol has 114 parties.[52] The Second Optional Protocol abolishes the death penalty; however, countries were permitted to make a reservation allowing for use of death penalty for the most serious crimes of a military nature, committed during wartime.[53] As of December 2010, the Second Optional Protocol had 73 parties.[54] Reservations A number of parties have made reservations and interpretative declarations to their application of the Covenant. Argentina will apply the fair trial rights guaranteed in its constitution to the prosecution of those accused of violating the general law of nations.[1] Australia reserves the right to progressively implement the prison standards of Article 10, to compensate for miscarriages of justice by administrative means rather than through the courts, and interprets the prohibition on racial incitement as being subject to the freedoms of expression, association and assembly. It also declares that its implementation will be effected at each level of its federal system.[1] Austria reserves the right to continue to exile members of the House of Habsburg, and limits the rights of the accused and the right to a fair trial to those already existing in its legal system.[1] Bahamas, due to problems with implementation, reserves the right not to compensate for miscarriages of justice.[1] Bahrain interprets Articles 3 (no sexual discrimination), 18 (freedom of religion) and 23 (family rights) within the context of Islamic Sharia law.[1] Bangladesh reserves the right to try people in absentia where they are fugitives from justice and declares that resource constraints mean that it cannot necessarily segregate prisons or provide counsel for accused persons.[1] Barbados reserves the right not to provide free counsel for accused persons due to resource constraints.[1] Belgium interprets the freedoms of speech, assembly and association in a manner consistent with the European Convention on Human Rights. It does not consider itself obliged to ban war propaganda as required by Article 20, and interprets that article in light of the freedom of expression in the UDHR.[1] International Covenant on Civil and Political Rights Congo, as per the Congolese Code of Civil, Commercial, Administrative and Financial Procedure, in matters of private law, decisions or orders emanating from conciliation proceedings may be enforced through imprisonment for debt.[1] Denmark reserves the right to exclude the press and the public from trials as per its own laws. Reservation is further made to Article 20, paragraph 1. This reservation is in accordance with the vote cast by Denmark in the XVI General Assembly of the United Nations in 1961 when the Danish Delegation, referring to the preceding article concerning freedom of expression, voted against the prohibition against propaganda for war.[1] Gambia, as per it's constitution, will provide free legal assistance for accused persons charged with capital offences only.[1] The United States has made reservations that none of the articles should restrict the right of free speech and association; that the US government may impose capital punishment on any person other than a pregnant woman, including persons below the age of 18; that "cruel, inhuman and degrading treatment or punishment" refers to those treatments or punishments prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the US Constitution; that Paragraph 1, Article 15 will not apply; and that, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14, the US government may treat juveniles as adults, and accept volunteers to the military prior to the age of 18. The United States also submitted five "understandings", and four "declarations".[55] 222 National implementation and effects The International Covenant on Civil and Political Rights has 167 states parties, 67 by signature and ratification, and the remainder by accession or succession. Another five states have signed but have yet to ratify the treaty.[1] Australia The covenant is not enforceable in Australia, however, AHRC legislation [56] allows the Australian Human Rights Commission (AHRC) to examine enacted legislation [57] (to suggest remedial enactments[58] ), its administration[59] (to suggest avoidance of practices [60] ) and general compliance [61] with the covenant which is schedule to the AHRC legislation.[62] New Zealand While New Zealand has not incorporated the ICCPR into law, it took measures to give effect to many of the rights contained within it by passing the New Zealand Bill of Rights Act in 1990. United States Reservations, understandings, and declarations The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[55] Some have noted that with so many reservations, its implementation has little domestic effect.[63] Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing",[64] and in a Senate Executive Report stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts."[65] Effect on domestic law Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action within the U.S. judicial system is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 [66] (6th Cir., 2001) (discussing ICCPR's relationship to death penalty cases, citing to other ICCPR cases). Thus while the ICCPR is ostensibly binding upon the United States as a matter of international law, it does not form part of the domestic law of the nation. International Covenant on Civil and Political Rights International law Prominent critics in the human rights community, such as Prof. Louis Henkin[67] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust [68][69] ("Rarely has a treaty been so abused.") have denounced the United States' ratification subject to the non-self-execution declaration as a blatant fraud upon the international community, especially in light of its subsequent failure to conform domestic law to the minimum human rights standards as established in the Covenant over the last fifteen years. In 1994, the United Nations' Human Rights Committee expressed similar concerns: Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.[70] Indeed, the United States has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant. See Hain v. Gibson, 287 F.3d 1224 [71] (10th Cir. 2002) (noting that Congress has not done so). Its subjects are not permitted to sue to enforce their basic human rights under the Covenant, as noted above. It has not ratified the Optional Protocol [72]. As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials' insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its subjects of the "effective remedy" under law the Covenant is intended to guarantee. In 2006, the Human Rights Committee expressed concern over what it interprets as material non-compliance, exhorting the United States to take immediate corrective action: The Committee notes with concern the restrictive interpretation made by the State party of its obligations under the Covenant, as a result in particular of (a) its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice; (b) its failure to take fully into consideration its obligation under the Covenant not only to respect, but also to ensure the rights prescribed by the Covenant; and (c) its restrictive approach to some substantive provisions of the Covenant, which is not in conformity with the interpretation made by the Committee before and after the State party’s ratification of the Covenant. The State party should review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose. The State party should in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war; (b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and (c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.[73] As a reservation that is "incompatible with the object and purpose" of a treaty is void as a matter of international law, Vienna Convention on the Law of Treaties, art. 19, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (specifying conditions under which signatory States can offer "reservations"), there is some issue as to whether the non-self-execution declaration is even legal under domestic law. 223 International Covenant on Civil and Political Rights 224 States not members of the Covenant The majority of states in the world are parties to the ICCPR. As of November 2010 the following 27 states have either not yet signed the convention, or have signed but have not yet ratified the convention.[74] Signed but not ratified 1. 2. 3. 4. 5. 6. 7.  People's Republic of China (1998-10-05)[75]  Comoros (2008-09-25)  Cuba (2008-02-28)  Nauru (2001-11-12)  Palau (2011-09-20)  São Tomé and Príncipe (1995-10-31)  Saint Lucia (2011-09-22) Neither signed nor ratified 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.  Antigua and Barbuda  Bhutan  Brunei  Burma (Myanmar)  Fiji  Kiribati  Malaysia  Marshall Islands  Federated States of Micronesia  Oman  Qatar  Saint Kitts and Nevis  Saudi Arabia  Singapore  Solomon Islands  Tonga  Tuvalu  United Arab Emirates  Vatican City (through the Holy See) Non-members of the UN 1. 2.  Taiwan (Republic of China)[76]  Kosovo [77] Notes [1] "UN Treaty Collection: International Covenant on Civil and Political Rights" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-4& chapter=4& lang=en). UN. 2011-10-14. . Retrieved 2011-09-04. [2] "Fact Sheet No.2 (Rev.1), The International Bill of Human Rights" (http:/ / web. archive. org/ web/ 20080313093428/ http:/ / www. unhchr. ch/ html/ menu6/ 2/ fs2. htm). UN OHCHR. June 1996. Archived from the original (http:/ / www. unhchr. ch/ html/ menu6/ 2/ fs2. htm) on 2008-03-13. . Retrieved 2008-06-02. [3] Sieghart, Paul (1983). The International Law of Human Rights. Oxford University Press. p. 25. [4] United Nations General Assembly Resolution 543, February 5, 1952. [5] United Nations General Assembly Resolution 545, February 5, 1952. International Covenant on Civil and Political Rights [6] United Nations General Assembly Resolution 2200, December 16, 1966. [7] The following section summarises the text of the Covenant. [8] ICCPR, Article 1.1. [9] ICCPR, Article 1.2. [10] ICCPR, Article 1.3. [11] ICCPR, Article 2.2, 2.3. [12] ICCPR, Article 2.1. [13] ICCPR, Article 3. [14] ICCPR, Article 4.1. [15] ICCPR, Article 47. [16] ICCPR, Article 6.1. [17] "CCPR General Comment No. 6: The right to life" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 84ab9690ccd81fc7c12563ed0046fae3?Opendocument). UN OHCHR. 1982-04-30. . Retrieved 2010-10-10. [18] ICCPR, Article 6.2. [19] ICCPR, Article 6.5. [20] ICCPR, Article 6.3. [21] ICCPR, Article 7. [22] "CCPR General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 6924291970754969c12563ed004c8ae5?Opendocument). UN OHCHR. 1992-03-10. . Retrieved 2010-10-10. [23] ICCPR, Articles 8.1, 8.2. [24] ICCPR, Article 8.3. [25] ICCPR, Article 9.1. [26] "CCPR General Comment No. 08: Right to liberty and security of persons" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ f4253f9572cd4700c12563ed00483bec?Opendocument). UN OHCHR. 1982-06-30. . Retrieved 2010-10-10. [27] ICCPR, Articles 9.2, 9.3. [28] ICCPR, Article 10.1. [29] "General Comment No. 21: Replaces general comment 9 concerning humane treatment of persons deprived of liberty" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 3327552b9511fb98c12563ed004cbe59?Opendocument). UN OHCHR. 1992-04-10. . Retrieved 2010-10-10. [30] ICCPR, Article 11. [31] ICCPR, Article 14.1. [32] "General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ bb722416a295f264c12563ed0049dfbd?Opendocument). UN OHCHR. 1984-04-13. . Retrieved 2010-10-10. [33] ICCPR, Article 15. [34] ICCPR, Article 16. [35] ICCPR, Article 12. [36] "CCPR: General Comment No. 27: Freedom of movement" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 6c76e1b8ee1710e380256824005a10a9?Opendocument). UN OHCHR. 1999-11-02. . Retrieved 2010-10-10. [37] ICCPR, Article 12.3. [38] ICCPR, Article 12.4. [39] ICCPR, Article 13. [40] ICCPR, Article 17. [41] "Toonen v Australia Communication No. 488/1992 (1994) U.N. Doc CCPR/C/50/D/488/1992 at [8.1-8.6 (http:/ / www1. umn. edu/ humanrts/ undocs/ html/ vws488. htm)"]. . [42] "Joslin v New Zealand (2002) Comm. No. 902/1999 U.N. Doc. A/57/40 at 214 (2002) at [Appendix (My Lallah & Mr Scheinen) (http:/ / www1. umn. edu/ humanrts/ undocs/ 902-1999. html)"]. . [43] ICCPR, Article 18. [44] ICCPR, Article 19. [45] ICCPR, Article 20. [46] ICCPR, Article 22. [47] ICCPR, Article 23. [48] Joslin v New Zealand (2002) Comm. No. 902/1999 U.N. Doc. A/57/40 at 214 (2002) at [8.2-9.0(majority)] & [1(Lallah & Scheimin JJ] "Joslin v New Zealand (2002) Comm. No. 902/1999 U.N. Doc. A/57/40 at 214 (2002)" (http:/ / www1. umn. edu/ humanrts/ undocs/ 902-1999. html). . [49] ICCPR, Article 24. [50] ICCPR, Ariticle 27. [51] OP1-ICCPR, Article 1. 225 International Covenant on Civil and Political Rights [52] "UN Treaty Collection: Optional Protocol to the International Covenant on Civil and Political Rights" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-5& chapter=4& lang=en). UN. . Retrieved 2011-10-14. [53] OP2-ICCPR, Article 2.1 [54] "UN Treaty Collection: Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-12& chapter=4& lang=en). UN. . Retrieved 2009-10-12. [55] U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992). (http:/ / www1. umn. edu/ humanrts/ usdocs/ civilres. html) [56] "Australian Human Rights Commission 1986 (Cth)" (http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ ahrca1986373/ ). . [57] "Australian Human Rights Commission 1986 (Cth), s11(e)" (http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ ahrca1986373/ s11. html). . [58] "Australian Human Rights Commission 1986 (Cth), s11(j)" (http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ ahrca1986373/ s11. html). . [59] "Australian Human Rights Commission 1986 (Cth), s11(f) i.e. (f)(i) - Conciliation (f)(iI) - Reporting" (http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ ahrca1986373/ s11. html). . [60] "Australian Human Rights Commission 1986 (Cth), s11(n)" (http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ ahrca1986373/ s11. html). . [61] "a) Australian Human Rights Commission 1986 (Cth), s11(k) b) Australian Human Rights Commission 1986 (Cth), s11(m)" (http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ ahrca1986373/ s11. html). . [62] "Australian Human Rights Commission 1986 (Cth), schedule 2" (http:/ / www. austlii. edu. au/ au/ legis/ cth/ consol_act/ ahrca1986373/ sch2. html). . [63] Black, Allinda; Hopkins, June, eds (2003). "Covenant on Civil and Political Rights" (http:/ / www. gwu. edu/ ~erpapers/ teachinger/ glossary/ cov-civilpol-rights. cfm). The Eleanor Roosevelt Papers. Hyde Park, New York: Eleanor Roosevelt National Historic Site. . Retrieved February 21, 2009. [64] 138 Cong. Rec. S4781-84 (1992) [65] S. Exec. Rep. No. 102-23 (1992) [66] http:/ / bulk. resource. org/ courts. gov/ c/ F3/ 274/ 274. F3d. 337. 99-4271. html [67] Louis Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346 (1995) [68] http:/ / www. law. uh. edu/ faculty/ main. asp?PID=34 [69] Jordan J. Paust, International Law As Law Of the United States 375 (2d ed. 2003) [70] Hum. Rts. Comm. General Comment No. 24 (http:/ / www1. umn. edu/ humanrts/ gencomm/ hrcom24. htm) (52), para. 11, 18–19, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994) [71] http:/ / bulk. resource. org/ courts. gov/ c/ F3/ 287/ 287. F3d. 1224. 01-5014. html [72] http:/ / www2. ohchr. org/ english/ bodies/ ratification/ 5. htm [73] Concluding Observations of the Human Rights Comm.: United States of America, U.N. Doc. No. CCPR/C/USA/CO/3/Rev.1, para. 10 (2006) (http:/ / www. webcitation. org/ query?url=http:/ / www. state. gov/ documents/ organization/ 133837. pdf& date=2010-10-23) [74] Status of the International Covenant on Civil and Political Rights (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-4& chapter=4& lang=en), United Nations Treaty Collection (http:/ / treaties. un. org/ Pages/ Home. aspx?lang=en), March 9, 2009. [75] Except the Special Administrative Region of Hong Kong, in which the ICCPR is binding. See Human rights in Hong Kong. [76] The ROC lost its United Nations seat in 1971 (replaced as the representative of China by the People's Republic of China under Resolution 2758). The Republic of China government signed the Covenant in 1967 but not ratified; in 2009 Taiwan finally ratified it, but the deposit was rejected by UN. [77] Kosovo, although not a UN member state, is obliged to respect the ICCPR rights as a successor state to Yugoslavia. 226 References External links • Text of the Covenant (http://www2.ohchr.org/english/law/ccpr.htm) • List of parties (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4& lang=en) • article 2 (http://www.article2.org) Bimonthly publication highlighting article 2 of the ICCPR Convention on the Elimination of All Forms of Racial Discrimination 227 Convention on the Elimination of All Forms of Racial Discrimination ICERD International Convention on the Elimination of All Forms of Racial Discrimination Signed Location Effective Condition Signatories Parties Depositary Languages 7 March 1966 New York [1] [1] [1] 4 January 1969 [2] 27 ratifications 86 [1] [1] [3] [4] 175 UN Secretary-General Chinese, English, French, Russian and Spanish The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races.[5] Controversially, the Convention also requires its parties to outlaw hate speech and criminalize membership in racist organizations.[6] Membership of the Convention on the Elimination of All Forms of Racial Discrimination:   Recognise competence under Article 14  Do not recognise competence under Article 14  Signed but not ratified  Neither signed nor ratified The Convention also includes an individual complaints mechanism, effectively making it enforceable against its parties. This has led to the development of a limited jurisprudence on the interpretation and implementation of the Convention. The convention was adopted and opened for signature by the United Nations General Assembly on December 21, 1965,[7] and entered into force on January 4, 1969. As of October 2011, it has 86 signatories and 175 parties.[1] The Convention is monitored by the Committee on the Elimination of Racial Discrimination (CERD). Convention on the Elimination of All Forms of Racial Discrimination 228 Genesis In December 1960, following incidents of antisemitism in several parts of the world,[8] the United Nations General Assembly adopted a resolution condemning "all manifestations and practices of racial, religious and national hatred" as violations of the United Nations Charter and Universal Declaration of Human Rights and calling on the governments of all states to "take all necessary measures to prevent all manifestations of racial, religious and national hatred".[9] The Economic and Social Council followed this up by drafting a resolution on "manifestations of racial prejudice and national and religious intolerance", calling on governments to educate the public against intolerance and rescind discriminatory laws.[10] Lack of time prevented this from being considered by the General Assembly in 1961,[11] but it was passed the next year.[10] During the early debate on this resolution, African nations led by the Central African Republic, Chad, Dahomey, Guinea, Ivory Coast, Mali, Mauritania, and Upper Volta pushed for more concrete action on the issue, in the form of an international convention against racial discrimination.[12] Some nations preferred a declaration rather than a binding convention, while others wanted to deal with racial and religious intolerance in a single instrument.[13] The eventual compromise, forced by Arab nations' reluctance to discuss antisemitism[14] was for two resolutions, one calling for a declaration and draft convention aimed at eliminating racial discrimination,[15] the other doing the same for religious intolerance.[16] The draft Declaration on the Elimination of All Forms of Racial Discrimination was adopted by the General Assembly on November 20, 1963.[17] The same day the General Assembly called for the Economic and Social Council and the Commission on Human Rights to make the drafting of a Convention on the subject an absolute priority.[18] The draft was completed by mid-1964,[19] but delays in the General Assembly meant that it could not be adopted that year.[14] It was finally adopted on December 21, 1965.[7] Summary The Convention follows the structure of the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights, with a preamble and twenty-five articles, divided into three parts.[20] Part 1 (Articles 1 – 7) commits parties to the elimination of all forms of racial discrimination and to promoting understanding among all races (Article 2). Parties are obliged to not discriminate on the basis of race, not to sponsor or defend racism, and to prohibit racial discrimination within their jurisdictions. They must also review their laws and policies to ensure that they do not discriminate on the basis of race, and commit to amending or repealing those that do. Specific areas in which discrimination must be eliminated are listed in Article 5. The Convention imposes a specific commitment on parties to eradicate racial segregation and the crime of apartheid within their jurisdictions (Article 3). Parties are also required to criminalize the incitement of racial hatred (Article 4), to ensure judicial remedies for acts of racial discrimination (Article 6), and to engage in public education to promote understanding and tolerance (Article 7). Part 2 (Articles 8 – 16) governs reporting and monitoring of the Convention and the steps taken by the parties to implement it. It establishes the Committee on the Elimination of Racial Discrimination, and empowers it to make general recommendations to the UN General Assembly.[21] It also establishes a dispute-resolution mechanism between parties (Articles 11 – 13), and allows parties to recognise the competence of the Committee to hear complaints from individuals about violations of the rights protected by the Convention (Article 14). Part 3 (Articles 17 – 25) governs ratification, entry into force, and amendment of the Convention. Convention on the Elimination of All Forms of Racial Discrimination 229 Core provisions Definition of "racial discrimination" Article 1 of the Convention defines "racial discrimination" as ...any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.[22] Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as are affirmative action policies and other measures taken to redress imbalances and promote equality.[23] This definition does not distinguish between discrimination based on ethnicity and discrimination based on race, in part because the distinction between the ethnicity and race remains debatable among anthropologists.[24] The inclusion of descent specifically covers discrimination on the basis of caste and other forms of inherited status.[25] Discrimination need not be strictly based on race or ethnicity for the Convention to apply. Rather, whether a particular action or policy discriminates is judged by its effects.[26] In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.[26] The question of whether an individual belongs to a particular racial group is to be decided, in the absence of justification to the contrary, by self-identification.[27] Prevention of discrimination Article 2 of the Convention condemns racial discrimination and obliges parties to "undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms".[5] It also obliges parties to promote understanding among all races.[5] To achieve this, the Convention requires that signatories: • • • • Not practice racial discrimination in public institutions[28] Not "sponsor, defend, or support" racial discrimination[29] Review existing policies, and amend or revoke those that cause or perpetuate racial discrimination[30] Prohibit "by all appropriate means, including legislation," racial discrimination by individuals and organisations within their jurisdictions [31] • Encourage groups, movements, and other means that eliminate barriers between races, and discourage racial division[32] Parties are obliged "when the circumstances so warrant" to use affirmative action policies for specific racial groups to guarantee "the full and equal enjoyment of human rights and fundamental freedoms".[5] However, these measures must be finite, and "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved".[5] Article 5 expands upon on the general obligation of Article 2 and creates a specific obligation to guarantee the right of everyone to equality before the law regardless of "race, colour, or national or ethnic origin".[33] It further lists specific rights this equality must apply to: equal treatment by courts and tribunals,[34] security of the person and freedom from violence,[35] the civil and political rights affirmed in the ICCPR,[36] the economic, social and cultural rights affirmed in the ICESCR,[37] and the right of access to any place or service used by the general public, "such as transport hotels, restaurants, cafes, theatres and parks."[38] This list is not exhaustive, and the obligation extends to Convention on the Elimination of All Forms of Racial Discrimination all human rights.[39] Article 6 obliges parties to provide "effective protection and remedies" through the courts or other institutions for any act of racial discrimination.[40] This includes a right to a legal remedy and damages for injury suffered due to discrimination.[40] 230 Condemnation of apartheid Article 3 condemns apartheid and racial segregation and obliges parties to "prevent, prohibit and eradicate" these practices in territories under their jurisdiction.[41] This article has since been strengthened by the recognition of apartheid as a crime against humanity in the Rome Statute of the International Criminal Court.[42] The Committee on the Elimination of Racial Discrimination regards this article as also entailing an obligation to eradicate the consequences of past policies of segregation, and to prevent racial segregation arising from the actions of private individuals.[43] Prohibition of incitement Article 4 of the Convention condemns propaganda and organizations that attempt to justify discrimination or are based on the idea of racial supremacism.[6] It obliges parties, "with due regard to the principles embodied in the Universal Declaration of Human Rights", to adopt "immediate and positive measures" to eradicate these forms of incitement and discrimination.[6] Specifically, it obliges parties to criminalize hate speech, hate crimes and the financing of racist activities,[44] and to prohibit and criminalize membership in organizations that "promote and incite" racial discrimination.[45] A number of parties have reservations on this article, and interpret it as not permitting or requiring measures that infringe on the freedoms of speech, association or assembly.[46] The Committee on the Elimination of Racial Discrimination regards this article as a mandatory obligation of parties to the Convention,[47] and has repeatedly criticized parties for failing to abide by it.[48] It regards the obligation as consistent with the freedoms of opinion and expression affirmed in the UNDHR and ICCPR[49] and notes that the latter specifically outlaws inciting racial discrimination, hatred and violence.[50] It views the provisions as necessary to prevent organised racial violence and the "political exploitation of ethnic difference."[51] Promotion of tolerance Article 7 obliges parties to adopt "immediate and effective measures", particularly in education, to combat racial prejudice and encourage understanding and tolerance between different racial, ethnic and national groups.[52] Dispute resolution mechanism Articles 11 through 13 of the Convention establish a dispute resolution mechanism between parties. A party that believes another party is not implementing the Convention may complain to the Committee on the Elimination of Racial Discrimination.[53] The Committee will pass on the complaint, and if it is not resolved between the two parties, may establish an ad hoc Conciliation Commission to investigate and make recommendations on the matter.[54] This procedure has never been used.[55] Article 22 further allows any dispute over the interpretation or application of the Convention to be referred to the International Court of Justice.[56] This clause has been invoked only once, by Georgia against Russia.[57] Convention on the Elimination of All Forms of Racial Discrimination 231 Individual complaints mechanism Article 14 of the Convention establishes an individual complaints mechanism similar to that of the First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Parties may at any time recognise the competence of the Committee on the Elimination of Racial Discrimination to consider complaints from individuals or groups who claim their rights under the Convention have been violated.[58] Such parties may establish local bodies to hear complaints before they are passed on.[59] Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints that refer to events that occurred before the country concerned joined the Optional Protocol are not permitted.[60] The Committee can request information from and make recommendations to a party.[60] The individual complaints mechanism came into operation in 1982, after it had been accepted by ten states-parties.[61] As of 2010, 58 states had recognised the competence of the Committee,[1] and 54 cases have been dealt with by the Committee.[62] Reservations A number of parties have made reservations and interpretative declarations to their application of the Convention. The Convention text forbids reservations "incompatible with the object and purpose of this Convention" or that would inhibit the operation of any body established by it.[63] A reservation is considered incompatible or inhibitive if two-thirds of parties object to it.[63] Article 22 Afghanistan, Bahrain, China, Cuba, Egypt, Equatorial Guinea, India, Indonesia, Iraq, Israel, Kuwait, Lebanon, Libya, Madagascar, Morocco, Mozambique, Nepal, Saudi Arabia, Syria, Thailand, Turkey, Vietnam, and Yemen do not consider themselves bound by Article 22. Some interpret this article as allowing disputes to be referred to the International Court of Justice only with the consent of all involved parties.[1] Obligations beyond existing constitution Antigua and Barbuda, the Bahamas, Barbados, Guyana, Jamaica, Nepal, Papua New Guinea, Thailand and United States of America interpret the Convention as not implying any obligations beyond the limits of their existing constitutions.[1] Hate speech Austria, Belgium, France, Ireland, Italy, Japan, Malta, Monaco, Switzerland and Tonga all interpret Article 4 as not permitting or requiring measures that threaten the freedoms of speech, opinion, association, and assembly.[1] Antigua and Barbuda, the Bahamas, Barbados, Fiji, Nepal, Papua New Guinea, Thailand and United Kingdom interpret the Convention as creating an obligation to enact measures against hate speech and hate crimes only when a need arises. The United States of America does not accept any obligation to enact measures under Article 4, which it views as incompatible with freedom of expression.[1] Immigration Monaco and Switzerland reserve the right to apply their own legal principles on the entry of foreigners into their labour markets.[1] The United Kingdom does not regard the Commonwealth Immigrants Act 1962 and Commonwealth Immigrants Act 1968 as constituting any form of racial discrimination.[1] Indigenous people Tonga reserves the right not to apply the Convention to any restriction on the alienation of land held by indigenous Tongans. Fiji has significant reservations around Article 5, and reserves the right not to implement those provisions if they are incompatible with existing law on voting rights, the alienation of land by indigenous Fijians.[1] Convention on the Elimination of All Forms of Racial Discrimination 232 Jurisprudence The individual complaints mechanism has led to a limited jurisprudence on the interpretation and implementation of the Convention. So far 45 complaints have been registered with the Committee; 17 of these have been deemed inadmissible, 14 have led to a finding of no violation, and in 10 cases a party has been found to have violated the Convention. Four cases are still pending.[62] Several cases have dealt with the treatment of Romani people in Eastern Europe. In Koptova v. Slovakia the Committee found that resolutions by several villages in Slovakia forbidding the residence of Roma were discriminatory and restricted freedom of movement and residence, and recommended the Slovak government take steps to end such practices.[64] In L.R. v. Slovakia the Committee found that the Slovak government had failed to provide an effective remedy for discrimination suffered by Roma after the cancellation of a housing project on ethnic grounds.[65] In Durmic v. Serbia and Montenegro the Committee found a systemic failure by the Serbian government to investigate and prosecute discrimination against Roma in access to public places.[66] In several cases, notably L.K. v. Netherlands and Gelle v. Denmark, the Committee has criticized parties for their failure to adequately prosecute acts of racial discrimination or incitement. In both cases, the Committee refused to accept "any claim that the enactment of law making racial discrimination a criminal act in itself represents full compliance with the obligations of States parties under the Convention".[67] Such laws "must also be effectively implemented by the competent national tribunals and other State institutions".[68] While the Committee accepts the discretion of prosecutors on whether or not to lay charges, this discretion "should be applied in each case of alleged racial discrimination in the light of the guarantees laid down in the Convention"[69] In The Jewish community of Oslo et al. v. Norway, the Committee found that the prohibition of hate speech was compatible with freedom of speech, and that the acquittal of a neo-Nazi leader by the Supreme Court of Norway on freedom of speech grounds was a violation of the Convention.[70] In Hagan v. Australia, the Committee ruled that, while not originally intended to demean anyone, the name of the "E. S. 'Nigger' Brown Stand" (named in honour of 1920s rugby league player Edward Stanley Brown) at a Toowoomba sports field was racially offensive and should be removed.[71] Impact The impact of an international treaty can be measured in two ways: by its acceptance, and by its implementation.[72] [73] On the first measure, the Convention has gained near-universal acceptance by the international community, with fewer than twenty (mostly small) states yet to become parties.[1] Most major states have also accepted the Convention's individual complaints mechanism, signaling a strong desire to be bound by the Convention's provisions.[1] On the second measure, the Convention has had a significant impact on national legislation, with many states adopting legislation outlawing racial discrimination by the state, in the workplace, or in the provision of services such as housing and education. Such legislation may be either civil or criminal.[74] Examples of the former include the Race Relations Act 1971 (New Zealand), Racial Discrimination Act 1975 (Australia), Race Relations Act 1976 (UK), and Canadian Human Rights Act (Canada). Criminal provisions are used in Belgium, Denmark, France, Italy, Norway and Portugal.[74] Despite reservations to the Convention, most western European nations have criminalized the incitement of racial hatred.[74] The Convention has faced persistent problems with reporting since its inception, with parties frequently failing to report fully,[75] or even at all.[76] As of 2008, twenty parties had failed to report for more than ten years, and thirty parties had failed to report for more than five.[77] One party, Sierra Leone, had failed to report since 1976, while two more – Liberia and Saint Lucia had never met their reporting requirements under the Convention.[78] The Committee has responded to this persistent failure to report by reviewing the late parties anyway – a strategy that has produced some success in gaining compliance with reporting requirements.[79] This lack of reporting is seen by some as a Convention on the Elimination of All Forms of Racial Discrimination significant failure of the Convention.[80] However the reporting system has also been praised as providing "a permanent stimulus inducing individual States to enact anti-racist legislation or amend the existing one when necessary."[81] 233 Committee on the Elimination of Racial Discrimination The Committee on the Elimination of Racial Discrimination is a body of human rights experts tasked with monitoring the implementation of the Convention. It consists of 18 independent human rights experts, elected for four-year terms, with half the members elected every two years. Members are elected by secret ballot of the parties, with each party allowed to nominate one of its nationals to the Committee.[82] All parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to give effect to the Convention. The first report is due within a year of the Convention entering into effect for that state; thereafter reports are due every two years or whenever the Committee requests.[83] The Committee examines each report and addresses its concerns and recommendations to the state party in the form of "concluding observations". The Committee typically meets every March and August in Geneva.[84] The current (as of August 2010) membership of the Committee is:[85] Name Anwar Kemal (chair) Alexei S. Avtonomov Noureddine Amir José Francisco Cali Tzay Anastasia Crickley Fatimata-Binta Victoria Dah Ion Diaconu Régis de Gouttes Kokou Mawuena Ika Kana (Dieudonnè) Ewomsan Huang Yong An Gün Kut Dilip Lahiri José Augusto Lindgren Alves Pastor Elias Murillo Martinez Chris Maina Peter Pierre-Richard Prosper Waliakoye Saidou Patrick Thornberry State  Pakistan Term 2010–2014  Russian Federation 2010–2012  Algeria  Guatemala  Ireland  Burkina Faso  Romania  France  Togo  China  Turkey  India  Brazil  Colombia  Tanzania  USA  Niger  UK 2010–2014 2010–2012 2010–2014 2010–2012 2010–2012 2010–2014 2010–2014 2010–2012 2010–2014 2010–2012 2010–2014 2010–2012 2010–2012 2010–2012 2010–2014 2010–2014 Convention on the Elimination of All Forms of Racial Discrimination 234 References [1] "Parties to the International Convention on the Elimination of All Forms of Racial Discrimination" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-2& chapter=4& lang=en). United Nations Treaty Collection. . Retrieved 2009-10-08. [2] ICERD, Article 19. [3] ICERD, Article 18. [4] ICERD, Article 25. [5] ICERD, Article 2.1 [6] ICERD, Article 4. [7] United Nations General Assembly Resolution 2106 (XX), December 21, 1965. [8] Lérner, Natán (1980). The U.N. Convention on the Elimination of All Forms of Racial Discrimination. Sijthoff & Noordhoff International. p. 1. ISBN 90-286-0160-0. [9] United Nations General Assembly Resolution 1510 (XV), December 12, 1960. [10] United Nations General Assembly Resolution 1779 (XVII), December 7, 1962. [11] United Nations General Assembly Resolution 1684 (XVI), December 18, 1961. [12] Lérner, p. 2. [13] Schwelb, Egon (1966). "The International Convention on the Elimination of All Forms of Racial Discrimination". International & Comparative Law Quarterly 15: 996–1068. [14] Schwelb, p. 999. [15] United Nations General Assembly Resolution 1780 (XVII), December 7, 1962. [16] United Nations General Assembly Resolution 1781 (XVII), December 7, 1962. [17] United Nations General Assembly Resolution 1904 (XVIII), November 20, 1963. [18] United Nations General Assembly Resolution 1906 (XVIII), November 20, 1963. [19] Lérner, p. 5. [20] The following section summarizes the text (http:/ / www2. ohchr. org/ english/ law/ cerd. htm) of the Convention. [21] ICERD, Article 9.2. [22] ICERD, Article 1.1. [23] ICERD, Articles 1.2 and 1.4. [24] A. Metraux (1950) "United Nations Economic and Security Council Statement by Experts on Problems of Race" in American Anthropologist 53(1): 142–145) [25] "CERD General Recommendation No. 29: Article 1, paragraph 1 of the Convention (Descent)" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ f0902ff29d93de59c1256c6a00378d1f?Opendocument). UN OHCHR. 2002-11-01. . Retrieved 2008-06-05. [26] "CERD General Recommendation No. 14: Definition of discrimination (Art. 1, par.1)" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ d7bd5d2bf71258aac12563ee004b639e?Opendocument). UN OHCHR. 1993-03-22. . Retrieved 2008-06-05. [27] "CERD General Recommendation No. 08: Identification with a particular racial or ethnic group" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 3ae0a87b5bd69d28c12563ee0049800f?Opendocument). UN OHCHR. 1990-08-22. . Retrieved 2010-10-09. [28] ICERD, Article 2.1(a). [29] ICERD, Article 2.1(b). [30] ICERD, Article 2.1(c). [31] ICERD, Article 2.1(d). [32] ICERD, Article 2.1(e). [33] ICERD, Article 5. [34] ICERD, Article 5(a). [35] ICERD, Article 5(b). [36] ICERD, Articles 5(c) and (d). [37] ICERD, Article 5(e). [38] ICERD, Article 5(f). [39] "CERD General Recommendation No. 20: Non-discriminatory implementation of rights and freedoms" (http:/ / web. archive. org/ web/ 20080213111923/ http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 8b3ad72f8e98a34c8025651e004c8b61?Opendocument). UN OHCHR. 1996-03-15. Archived from the original (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 8b3ad72f8e98a34c8025651e004c8b61?Opendocument) on February 13, 2008. . Retrieved 2009-10-09. [40] ICERD, Article 6. [41] ICERD, Article 3. [42] Rome Statute of the International Criminal Court, Article 7.1(j). [43] "CERD General Recommendation No. 19: Racial segregation and apartheid" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 18c91e92601301fbc12563ee004c45b6?Opendocument). UN OHCHR. 1995-08-18. . Retrieved 2009-10-09. [44] ICERD, Article 4(a). [45] ICERD, Article 4(b). [46] See "Reservations" below for more details. Convention on the Elimination of All Forms of Racial Discrimination [47] "CERD General Recommendation No. 07: Legislation to eradicate racial discrimination" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ c5a2e04b85557870c12563ee003e883f?Opendocument). UN OHCHR. 1985-08-23. . Retrieved 2009-10-09. [48] "CERD General Recommendation No. 01: States parties' obligations (Art. 4)" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 09bca82e6dab7b8fc12563ee0039c575?Opendocument). UN OHCHR. 1972-02-25. . Retrieved 2009-10-09. [49] "CERD General Recommendation No. 15: Organized violence based on ethnic origin" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ e51277010496eb2cc12563ee004b9768?Opendocument). UN OHCHR. 1993-03-23. pp. paragraph 4. . Retrieved 2009-10-09. [50] ICCPR, Article 20.2. [51] CERD General Recommendation No. 15, Paragraph 1. [52] ICERD, Article 7. [53] ICERD, Article 11. [54] ICERD, Articles 12 & 13. [55] "Human Rights Bodies – Complaints Procedures" (http:/ / www2. ohchr. org/ english/ bodies/ petitions/ index. htm). UN HCR. . Retrieved 2009-03-22. [56] ICERD, Article 22. [57] "Pending cases: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)" (http:/ / www. icj-cij. org/ docket/ index. php?p1=3& p2=1& code=GR& case=140& k=4d). International Court of Justice. . Retrieved 2009-12-20. [58] ICERD, Article 14 (1). [59] ICERD, Article 14 (2) – (5). [60] ICERD, Article 14 (6) & (7). [61] "Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination" (http:/ / www2. ohchr. org/ english/ bodies/ cerd/ procedure. htm). UN OHCHR. . Retrieved 2009-10-11. [62] "Status of communications dealt with by CERD under Art. 14 Procedure" (http:/ / www2. ohchr. org/ english/ bodies/ cerd/ docs/ CERDSURVEYArt14. xls). UN CERD. 2010-07-22. . Retrieved 2010-08-03. [63] ICERD, Article 20.2. [64] "Communication No 13/1998 : Koptova v. Slovakia. 01/11/2000" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 464937c637ce5c0ec12569d20033a961?Opendocument). UN CERD. 2000-11-01. . Retrieved 2009-10-11. [65] "Communication No. 31/2003 : L.R. v. Slovakia. 10/03/2005." (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 3764f57be14718c6c1256fc400579258?Opendocument). UN CERD. 2005-03-10. . Retrieved 2009-10-11. [66] "Durmic v. Serbia and Montenegro" (http:/ / www. bayefsky. com/ pdf/ serbia_t5_cerd_29_2003. pdf). UN CERD. 2006-03-06. . Retrieved 2009-10-11. [67] "Communication No 4/1991 : L.K. v. Netherlands. 16/03/93." (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ ec0884e5a47c1a1480256714005f6000?Opendocument). UN CERD. 1993-03-16. . Retrieved 2009-10-11. [68] "Communication No. 34/2004 : Gelle v. Denmark. 15/03/2006" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 6715d3bdbeff3c0dc125714d004f62e0?Opendocument). UN CERD. 2006-03-15. . Retrieved 2009-10-11. [69] L.K. v. Netherlands, para. 6.5 [70] "The Jewish community of Oslo et al. v. Norway, Communication No. 30/2003, U.N. Doc. CERD/C/67/D/30/2003 (2005)" (http:/ / www1. umn. edu/ humanrts/ country/ decisions/ 30-2003. html). UN CERD. 2005-08-15. . Retrieved 2009-10-11. [71] "Hagan v. Australia" (http:/ / www. bayefsky. com/ html/ australia_t5_cerd_26_2002. php). UN CERD. 2003-03-20. . Retrieved 2009-10-11. [72] Lérner, p. 165. [73] Heyns, Christof; Viljoen, Frans (2001). "The Impact of the United Nations Human Rights Treaties on the Domestic Level". Human Rights Quarterly 23: 183–535. [74] Mary Coussey (2002-04). "Home Office Research Study 238: Tackling racial equality: international comparisons" (http:/ / www. homeoffice. gov. uk/ rds/ pdfs2/ hors238. pdf). UK Home Office. p. 10. . Retrieved 2009-11-15. [75] "CERD General Recommendation No. 04: Demographic composition of the population" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 5786c74b85372739c12563ee003d8c89?Opendocument). UN OHCHR. 1973-08-25. . Retrieved 2009-11-15. [76] "CERD General Recommendation No. 06: Overdue reports" (http:/ / www. unhchr. ch/ tbs/ doc. nsf/ (Symbol)/ 9aea5ab9c02d7132c12563ee003e44a4?Opendocument). UN OHCHR. 1982-03-19. . Retrieved 2009-11-15. [77] "Report of the Committee on the Elimination of Racial Discrimination Seventy-second session (18 February-7 March 2008) and Seventy-third session (28 July-15 August 2008) (A/63/18)" (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ G08/ 449/ 20/ PDF/ G0844920. pdf?OpenElement). UN General Assembly. 2008. . Retrieved 2009-11-15. [78] Report of the Committee on the Elimination of Racial Discrimination, p. 103. [79] Report of the Committee on the Elimination of Racial Discrimination, pp. 104–105. [80] Felice, William F. (2002). "The UN Committee on the Elimination of All Forms of Racial Discrimination: Race, and Economic and Social Human Rights". Human Rights Quarterly 24: 205–236. [81] Lérner, Natán (2003). Group rights and discrimination in international law (second edition). The Hague: Kluwer Law International. p. 71. ISBN 90-411-1982-5. [82] ICERD, Article 8. 235 Convention on the Elimination of All Forms of Racial Discrimination [83] ICERD, Article 9. [84] "Committee on the Elimination of Racial Discrimination – Sessions" (http:/ / www2. ohchr. org/ english/ bodies/ cerd/ sessions. htm). UN OHCHR. . Retrieved 2008-06-03. [85] "Committee on the Elimination of Racial Discrimination – Members" (http:/ / www2. ohchr. org/ english/ bodies/ cerd/ members. htm). UN OHCHR. . Retrieved 2010-08-03. 236 • "International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)" (http://www2. ohchr.org/english/law/cerd.htm). UN OHCHR. Retrieved 2009-12-20. Further reading • The U.N. Convention on the Elimination of All Forms of Racial Discrimination. By Natán Lérner. Alphenaan den Rijn: Sijthoff & Noordhoff International, 1980. External links • List of parties (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4& lang=en) • Committee on the Elimination of Racial Discrimination (http://www2.ohchr.org/english/bodies/cerd/) • Decisions of the Committee on the Elimination of Racial Discrimination (http://www.worldcourts.com/cerd/ eng/decisions.htm) • CERD jurisprudence (http://www.bayefsky.com/docs.php/area/jurisprudence/node/3/treaty/cerd/opt/0) Convention on the Elimination of All Forms of Discrimination Against Women 237 Convention on the Elimination of All Forms of Discrimination Against Women Convention on the Elimination of all Forms of Discrimination against Women Signed Location Effective Condition Parties 18 December 1979 New York City 3 September 1981 20 ratifications 187 (Complete List) Convention on the Elimination of All Forms of Discrimination Against Women at Wikisource The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an international convention adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it came into force on 3 September 1981. The United States is the only developed nation that has not ratified Participation in the CEDAW the CEDAW. Several countries have ratified the Convention subject to certain declarations, reservations, and objections.[1] The Convention The Convention defines discrimination against women in the following terms: Any distinction, exclusion or restriction made on the basis of sex which has the Convention on the Elimination of All Forms of Discrimination Against Women 238 effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. A world map showing countries by CEDAW enforcement, 2010. It also establishes an agenda of action for putting an end to sex-based discrimination: States must take measures to seek to eliminate prejudices and customs based on the idea of the inferiority or the superiority of one sex or on stereotyped role for men and women. States ratifying the Convention are required to enshrine gender equality into their domestic legislation, repeal all discriminatory provisions in their laws, and enact new provisions to guard against discrimination against women. However, special protection for maternity is not regarded as gender discrimination (Article 4). Appropriate measures, including legislation, to suppress all forms of trafficking in women and forced prostitution are also not regarded as gender discrimination (Article 6). Equal opportunity in education for female students is required, and coeducation is encouraged. (Article 10). States ratifying the Convention must also establish tribunals and public institutions to guarantee women effective protection against discrimination, and take steps to eliminate all forms of discrimination practiced against women by individuals, organizations, and enterprises (Article 2,(e)). Members and ratification The seven UN member states that have not ratified or acceded to the convention are Iran, Palau, Somalia, Sudan, South Sudan, Tonga, and the United States. The United States and Palau have signed it, but not yet ratified it.[2] The one UN non-member state that had not acceded to the convention is the Holy See/Vatican City.[2] [3] The Republic of China (Taiwan) in 2007 has also ratified the treaty in its legislature, but is unrecognized by the United Nations and is a party to the treaty only unofficially.[4] The latest state to have acceded the convention was Nauru on June 23, 2011.[2] Convention on the Elimination of All Forms of Discrimination Against Women 239 Committee on the Elimination of Discrimination against Women Convention oversight is the task of the Committee on the Elimination of Discrimination against Women, which is made up of 23 experts on women's issues from different UN member states. The Committee meets twice a year to review reports on compliance with the Convention's provisions that the signatory nations are required to submit every four years. The Committee is one of the eight UN-related human rights treaty bodies. The Committee's members, described as "experts of high moral standing and competence in the field covered by the Convention", are elected to serve four-year terms in staggered elections held every two years. Its officers are a chairperson, three vice-chairpersons, and a rapporteur. Efforts are made to ensure balanced geographical representation and the inclusion of the world's different forms of civilization and legal systems. Committee members and experts also attend an annual luncheon, hosted by the NGO Committee on the Status of Women, NY (NGO CSW/NY), where key issues are discusses and the efforts of the committee are honored.[5] As of January 2011, the members are: Name Silvia Pimentel (Chairperson) Victoria Popescu (Vice-Chairperson) Zohra Rasekh (Vice-Chairperson) Nicole Ameline (Vice-Chairperson) Violet Tsisiga Awori (Rapporteur) Magalys Arocha Dominguez Barbara Evelyn Bailey Niklas Bruun Indira Jaising Soledad Murillo de la Vega Zou Xiaoqiao Ayse Feride Acar Olinda Bareiro-Bobadilla Meriem Belmihoub-Zerdani Naela Mohamed Gabr Ruth Halperin-Kaddari Yoko Hayashi Ismat Jahan Violeta Neubauer Pramila Patten Maria Helena Lopes de Jesus Pires Patricia Schulz Dubravka Šimonović State  Brazil  Romania Term Expires 2012 2012  Afghanistan 2012  France  Kenya  Cuba  Jamaica  Finland  India  Spain  China  Turkey  Paraguay  Algeria  Egypt  Israel  Japan  Bangladesh  Slovenia  Mauritius 2012 2012 2012 2012 2012 2012 2012 2012 2014 2014 2014 2014 2014 2014 2014 2014 2014  Timor Leste 2014  Switzerland  Croatia 2014 2014 Convention on the Elimination of All Forms of Discrimination Against Women 240 Optional Protocol The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women is a side-agreement to the Convention which allows its parties to recognise the competence of the Committee on the Elimination of Discrimination against Women to consider complaints from individuals.[6] The Optional Protocol was adopted by the UN General Assembly on 6 October 1999 and entered into force on 22 December 2000.[7] Currently it has 79 signatories and 103 parties.[8] Controversy In an article in Moment Magazine in February 2011, Paula Kweskin, in discussing so-called “honor” killings taking place in the Palestinian Authority, writes that two-thirds of all murders in the Palestinian Authority and Gaza are “honor” killings. These crimes go unpunished and laws grant impunity to those who kill based on “family honor.” In interviews and press releases on their websites, many NGOs, including Badil, the Palestinian Center for Human Rights, and the Women’s Center for Legal Aid and Counseling, have decried “honor” killings and the lack of legal protection for Palestinian women; yet these NGOs are silent when given a forum at CEDAW to address these problems.[9] The CEDAW has been controversial for statements seen by a number of states and NGOs as promoting Western-style radical feminism. Often referenced is a 2000 report which said that in Belarus, "the Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers' Day and a Mothers' Award, which it sees as encouraging women's traditional roles."[10] Other controversial positions of CEDAW include supporting the decriminalization of prostitution in specific countries, criticizing Slovenia because only 30% of children are in daycare, and pressuring numerous states to decriminalize abortion.[11] Other requests are seen by groups as a backdoor to forcing states parties to adopt an Equal Rights Amendment or comparable national legislation, which is seen as a violation of the CEDAW treaty mandate and the sovereignty of states parties.[12] Australian and (defunct) New Zealand anti-feminist groups voiced similar concerns in the early eighties. More recently, the controversy concerning CEDAW has centered around the question of easy access to abortion and contraception. According to C-FAM (the Catholic Family and Human Rights Institute), at UN meetings officials pressed the delegation from Colombia to liberalize its abortion laws and to inaugurate campaigns encouraging contraceptive use and "reproductive health awareness".[13] Further reading • The Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol: Handbook for Parlamentarians [14], Inter-Parliamentary Union 2003 References [1] "Declarations, Reservations and Objections to CEDAW" (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ reservations-country. htm). Un.org. . Retrieved 2011-09-27. [2] "'Convention on the Elimination of All Forms of Discrimination Against Women'" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-8& chapter=4& lang=en). Treaties.un.org. . Retrieved 2011-09-27. [3] Note: See New Zealand No 47 Declarations and Reservations New Zealand has signed this treaty on behalf on Niue. [4] Government Information Office, Republic of China (Taiwan). "Taiwan Aims to Sign Up Against Discrimination." September 8, 2006. [5] "NGO CSW, NY / About / How We Work" (http:/ / www. ngocsw. org/ about/ how-we-work). Ngocsw.org. 2011-07-26. . Retrieved 2011-09-27. [6] Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (http:/ / www1. umn. edu/ humanrts/ instree/ cedawopprot-2000. html), Article 1. [7] "Optional Protocol to Women's Convention Comes into Force" (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ protocol/ wom1242. htm). 2000-12-21. . Retrieved 2008-07-15. Convention on the Elimination of All Forms of Discrimination Against Women [8] "Parties to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-8-b& chapter=4& lang=en). UN OHCHR. . Retrieved 2009-10-03. [9] by elisniv (2011-02-24). "NGOs Fail Palestinian Women at the UN" (http:/ / momentmagazine. wordpress. com/ 2011/ 02/ 24/ ngos-fail-palestinian-women-at-the-un/ ). Momentmagazine.wordpress.com. . Retrieved 2011-09-27. [10] "Womenwatch report" (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ reports/ a5538. pdf). . Retrieved 2011-09-27. [11] "Nations Pressured by CEDAW" (http:/ / fota. cdnetworks. net/ pdfs/ 2009-02-b-80-Nations-Pressured-by-CEDAW-Comm-summ. pdf). . Retrieved 2011-09-27. [12] "Concerned Women for America - Exposing CEDAW" (http:/ / www. cwfa. org/ articledisplay. asp?id=1971). Cwfa.org. . Retrieved 2011-09-27. [13] "UN Committee Pressures Slovakia over its Concordat with the Catholic Church" (http:/ / www. c-fam. org/ publications/ id. 664/ pub_detail. asp). . [14] http:/ / www. ipu. org/ PDF/ publications/ cedaw_en. pdf 241 External links • CEDAW site (http://www2.ohchr.org/english/bodies/cedaw/index.htm) • Convention text (http://www2.ohchr.org/english/law/cedaw.htm) • List of parties (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4& lang=en) • CEDAW 2010 (http://www.cedaw2010.org/), the website of the CEDAW Task Force of The Leadership Conference on Civil and Human Rights. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 242 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women OP-CEDAW Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women Signed Location Effective Condition Signatories Parties Depositary Languages 6 October 1999 New York [1] [2] [1] 22 December 2000 [3] 10 ratifications 79 99 [1] [1] UN Secretary-General [4] [5] Arabic, Chinese, English, French, Russian and Spanish The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP-CEDAW) is an international treaty which establishes complaint and inquiry mechanisms for the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Parties to the Protocol allow the Committee on the States parties and signatories to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women   states parties which Elimination of Discrimination against recognise competence for Articles 8 and 9  states parties which do not recognise Women to hear complaints from competence for Articles 8 and 9  non-state parties signatories  non-state parties individuals or inquire into "grave or non-signatories systematic violations" of the Convention. The Protocol has led to a number of decisions against member states on issues such as domestic violence, parental leave and forced sterilization, as well as an investigation into the systematic killing of women in the Mexican city of Ciudad Juárez, Chihuahua. The Protocol was adopted by the United Nations General Assembly on 6 October 1999, and in force from 22 December 2000. As of December 2009 the Protocol had 79 signatories and 99 parties.[1] Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 243 Genesis In 1979 the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).[6] The Convention outlawed discrimination against women,[7] but did not include any mechanism by which this prohibition could be legally enforced.[8] An individual complaints mechanism was suggested during the original drafting of CEDAW, but was rejected at the time.[9] Fifteen years later, the Vienna Declaration and Programme of Action of the 1993 World Conference on Human Rights suggested that new procedures were needed to implement the Convention, and suggested a "right of petition".[10] An independent expert group produced a draft in 1994,[11] containing a complaint procedure and an inquiry procedure, and this was adopted for further study by the Committee on the Elimination of Discrimination against Women in early 1995.[12] The idea of an Optional Protocol was further endorsed by the Fourth World Conference on Women in 1995, which called for "the elaboration (of) a draft optional protocol to the Women's Convention that could enter into force as soon as possible."[13] In March 1996 the Commission on the Status of Women established an open-ended working group to produce a formal draft.[13] This reported back after three years of deliberation in early 1999. The Optional Protocol was finally adopted by the UN General Assembly on 6 October 1999.[14] Summary The Convention on the Elimination of All Forms of Discrimination against Women outlaws discrimination on the basis of gender, and obligies its parties to repeal discriminatory laws and guarantee equality in the fields of health, employment, and education.[] The Optional Protocol is a subsidiary agreement to the Convention. It does not establish any new rights, but rather allows the rights guaranteed in the Convention to be enforced.[15] Articles 1 - 7 create an individual complaints mechanism similar to those of the First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination. Parties agree to recognise the competence of the Committee on the Elimination of Discrimination against Women to consider complaints "by or on behalf of" individuals or groups who claim their rights under the Convention have been violated.[16] If a complaint is submitted on behalf of a victim, then this requires their consent, unless the submitter can justify acting without it.[17] What constitutes "justification" in such a case is up to the Committee.[18] The ability for complaints to be submitted on behalf of victims is seen as vital in allowing NGOs such as women's organizations and human rights groups to use the Protocol to enforce the Convention.[13] Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints referring to events which occurred before the country concerned joined the Optional Protocol are not permitted.[19] The Committee can request information from and make recommendations to a party,[20] though these are not binding.[21] Articles 8 - 10 create an inquiry mechanism. Parties may permit the Committee to investigate, report on and make recommendations on "grave or systematic violations" of the Convention.[22] The Committee may invite the relevant party to respond and inform it of any measures taken as a result of such an inquiry, either directly or through the normal reporting process under the Convention.[23] Parties may opt out of this obligation on signature or ratification,[24] but only Bangladesh, Belize and Colombia have done so.[1] Article 11 requires parties to ensure that those complaining under the Optional Protocol are not subjected to ill-treatment or intimidation.[25] Article 13 requires parties to inform their citizens about the Convention, the Optional Protocol, and the rulings of the Committee, so as to facilitate complaints.[26] Articles 12 and 14 govern the procedure[27] and reporting[28] of the Committee in handling complaints. Articles 15 - 21 govern ratification, entry into force, and amendment of the Optional Protocol. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 244 Reservations and membership A number of parties have made reservations and interpretative declarations to their application of the Protocol. Bangladesh, Belize and Colombia have exercised their right under Article 10 of the Protocol not to recognise the jurisdiction of the Committee to investigate "grave or systematic violations" of the Convention.[1] Colombia declares that neither the Protocol nor the Committee can require it to decriminalise "offences against life or personal integrity".[1] Not every state which is a party to CEDAW is a party to the Protocol, and several major states still remain outside the Protocol. The United States of America has not became a signatory because it has not yet ratified CEDAW.[29] [30] Japan does not participate in any of the individual communications mechanisms for human rights treaties, but is currently considering joining while observing how these procedures are functioning.[31] The People's Republic of China is currently "studying the problem of accession to the Optional Protocol".[32] Individual Complaints The Committee on the Elimination of Discrimination against Women has considered eleven complaints against seven countries since the Optional Protocol came into force,[33] on subjects such as domestic violence, division of property, forced sterilization and parental leave. Six complaints were rejected for lack of jurisdiction or because the complainants had not exhausted all domestic remedies. The other five decisions are summarised below: In 2005, in the case of A.T. v. Hungary,[34] the Committee ruled that Hungary had violated numerous articles of the Convention by failing to adequately protect women against domestic violence. It recommended that the complainant be immediately protected from her abusive former partner, and that Hungary improve its handling of domestic violence cases and immediately adopt the Committee's previous recommendation for a law allowing protection and exclusion orders.[34] The recommendations were implemented by the time of Hungary's sixth periodic report to the Committee in 2006.[35] In 2006, in the case of Dung Thi Thuy Nguyen v. The Netherlands,[36] the Committee expressed concerns about aspects of parental leave provisions in The Netherlands. It recommended the Dutch government collect further information on the number of women combining part-time salaried employment with self-employment, and review the law if this revealed that a significant number of women were disadvantaged.[36] In 2006, in the case of A.S. vs Hungary,[37] the Committee ruled that the forced sterilization of a Roma woman in Hungary violated the Convention. It recommended compensating the complainant for the breach of her rights, a full review of legislation surrounding informed consent in cases of sterilisation to ensure it complied with international human rights standards, and ongoing monitoring of Hungarian medical facilities to ensure that any changes were put into practice.[37] In 2007, in the cases of Şahide Goekce (deceased) v. Austria[38] and Fatma Yildirim (deceased) v. Austria,[39] the Committee ruled that the Austrian government was failing to protect women from domestic violence.[38] It recommended strengthening the implementation and monitoring of existing domestic violence laws and greater training for police.[39] Inquiries The Committee has also conducted one inquiry into "grave or systematic violations" under Article 8, in relation to the systematic killing of women in the Mexican city of Ciudad Juárez, Chihuahua.[40] This found "serious lapses in compliance"[41] by the Mexican government and tolerance of severe and systematic abuses of women's rights.[41] The Committee recommended the involvement of federal as well as state authorities in the investigation of the murders,[42] the punishment of negligent or complicit officials and those involved in the persecution of victims' relatives,[43] and increased violence prevention plans.[44] Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women 245 Impact and criticism The impact of an international treaty can be measured in two ways: by its acceptance, and by its implementation.[45] [46] On the first measure, the Optional Protocol has gained widespread international acceptance. Most major states are parties, and the Protocol is the second most-accepted enforcement mechanism after the First Optional Protocol to the International Covenant on Civil and Political Rights.[47] [48] On the second measure, the number of complaints dealt with by the Committee has been limited. A 2008 assessment for the UK government found that the Protocol had hardly been used by NGOs as originally expected, that the reasoning of the Committee was unpredictable, and that it had not had an impact on policy-making.[49] It found that there had been some limited success in highlighting the importance of effective policies to protect women from domestic violence and forced sterilization, but that outside these areas, the Protocol "has not led to a breakthrough in advancing women’s rights."[49] It concludes that unless greater efforts are made to highlight awareness of the Optional Protocol and build trust in the rulings of the Committee, the complaints mechanism will remain under-utilized.[50] The Protocol has been criticised by legal academics such as Bal Sokhi-Bulley and feminists such as Catharine MacKinnon who view the complaints mechanism as difficult, lengthy,[21] and lacking transparency.[18] The voluntary nature of the Protocol and the non-binding nature of its "recommendations" are seen as key limits on its effectiveness.[51] [52] [53] Despite this, these critics tend to view the Protocol as a valuable, if flawed, instrument for realizing women's rights.[54] [55] [56] References [1] "Parties to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-8-b& chapter=4& lang=en). United Nations. . Retrieved 2009-10-03. [2] "Discrimination Against Women Statistics" (http:/ / www. discriminationagainstwomen. net/ discrimination-against-women). 2000-12-21. . Retrieved 2008-07-15. [3] OP-CEDAW, Article 16. [4] OP-CEDAW, Article 20. [5] OP-CEDAW, Article 21. [6] "Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979" (http:/ / www2. ohchr. org/ english/ law/ cedaw. htm). UN OHCHR. . Retrieved 2009-09-06. [7] CEDAW, Article 2. [8] Meron, Theodor (1990). "Enhancing the Effectiveness of the Prohibition of Discrimination Against Women" (http:/ / www. jstor. org/ stable/ 2203022). American Journal of International Law 84 (1): 213–217. . [9] Felipe Gómez Isa (2003). [_http:/ / www. ajicl. org/ AJICL2003/ vol202/ Gomez. pdf "The Optional Protocol for the Convention on the Elimination of All Forms of Discrimination against Women: Strengthening the Protection Mechanisms of Women’s Human Rights"]. Arizona Journal of International and Comparative Law 20 (2): 291–321. _. [10] "CEDAW: History of the Optional Protocol" (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ protocol/ history. htm). UN Division for the Advancement of Women. . Retrieved 2008-07-28. [11] Kwong-leung Tang (2000). "The Leadership Role of International Law in Enforcing Women's Rights: The Optional Protocol to the Women's Convention". In Sweetman, Caroline. Women and leadership. Oxford, UK: Oxfam. pp. 65–72. ISBN 085598452X. [12] "Report of the Committee on the Elimination of Discrimination against Women (Fourteenth Session)" (http:/ / documents-dds-ny. un. org/ doc/ UNDOC/ GEN/ N96/ 179/ 04/ IMG/ N9617904. pdf?OpenElement). UN CEDAW. pp. 2–5. . Retrieved 2008-07-28. [13] "Claiming Women's rights: the Optional Protocol to the UN Women's Convention" (http:/ / www. amnesty. org/ en/ library/ asset/ IOR51/ 008/ 2002/ en/ 71b6f44d-d80e-11dd-9df8-936c90684588/ ior510082002en. html). Amnesty International. 2001. . Retrieved 2009-12-17. [14] United Nations General Assembly Resolution 54/4, 6 October, 1999. [15] "The Optional Protocol to CEDAW & its applicability "on the ground"" (http:/ / www. awid. org/ eng/ Issues-and-Analysis/ Library/ The-Optional-Protocol-to-CEDAW-its-applicability-on-the-ground). Association for Women's Rights in Development. 2008-12-02. . Retrieved 200-12-17. [16] OP-CEDAW, Article 1. [17] OP-CEDAW, Article 2. [18] MacKinnon, Catherine (2004). "CEDAW’s Optional Protocol Procedures". Interights Bulletin 14 (4): 173–174. [19] OP-CEDAW, Article 4. [20] OP-CEDAW, Articles 6 & 7. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women [21] Bal Sokhi-Bulley (2006). "The Optional Protocol to CEDAW: First Steps". Human Rights Law Review 6 (1): 157. [22] OP-CEDAW, Article 8. [23] OP-CEDAW, Article 9. [24] OP-CEDAW, Article 10. [25] OP-CEDAW, Article 11. [26] OP-CEDAW, Article 13. [27] OP-CEDAW, Article 14. [28] OP-CEDAW, Article 12. [29] "CEDAW in the United States" (http:/ / www. aauw. org/ About/ international_corner/ upload/ CEDAWin-the-US. pdf). AAUW. . Retrieved 2010-02-04. [30] "History of the Treaty for the Rights of Women" (http:/ / www. womenstreaty. org/ facts_history. htm). Working Group on Ratification of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women. . Retrieved 2010-02-04. [31] "Responses to the list of issues and questions with regard to the consideration of the sixth periodic report: Japan (CEDAW/C/JPN/Q/6/Add.1)" (http:/ / www2. ohchr. org/ english/ bodies/ cedaw/ docs/ AdvanceVersions/ CEDAW-C-JPN-Q6-Add1. pdf). Committee on the Elimination of Discrimination against Women. 2009-04-14. p. 65. . Retrieved 2010-02-05. [32] "Responses to the list of issues and questions for consideration of the combined fifth and sixth periodic report of China (CEDAW/C/CHN/Q/6/Add.1)" (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N06/ 379/ 77/ PDF/ N0637977. pdf?OpenElement). Committee on the Elimination of Discrimination against Women. 2006-06-08. p. 28. . Retrieved 2010-02-04. [33] "Convention on the Elimination of Discrimination against Women: Optional Protocol: Decisions/Views" (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ protocol/ dec-views. htm). UN Division for the Advancement of Women. . Retrieved 2008-07-15. [34] "Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: Communication No.: 2/2003, Ms. A. T. v. Hungary" (http:/ / www2. ohchr. org/ english/ law/ docs/ Case2_2003. pdf). 2005-01-26. . Retrieved 2008-07-15. [35] "Sixth periodic report of Hungary under the Convention on the Elimination of All Forms of Discrimination against Women" (http:/ / documents-dds-ny. un. org/ doc/ UNDOC/ GEN/ N06/ 402/ 22/ PDF/ N0640222. pdf?OpenElement). 2006-06-15. pp. 50. . Retrieved 2008-07-15. [36] "Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: Communication No. 3/2004: Dung Thi Thuy Nguyen v. The Netherlands" (http:/ / www2. ohchr. org/ english/ law/ docs/ Case3_2004. pdf). 2006-08-14. . Retrieved 2008-07-16. [37] "Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: Communication No.: 4/2004, Ms. A. S. v. Hungary" (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ protocol/ decisions-views/ Decision 4-2004 - English. pdf). 2006-08-29. . Retrieved 2008-07-15. [38] "Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: Communication No. 5/2005: Şahide Goekce (deceased) v. Austria" (http:/ / documents-dds-ny. un. org/ doc/ UNDOC/ GEN/ N07/ 495/ 43/ PDF/ N0749543. pdf?OpenElement). 2007-08-06. . Retrieved 2008-07-16. [39] "Views of the Committee on the Elimination of Discrimination against Women under article 7, paragraph 3, of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: Communication No. 6/2005: Fatma Yildirim (deceased) v. Austria" (http:/ / documents-dds-ny. un. org/ doc/ UNDOC/ GEN/ N07/ 495/ 37/ PDF/ N0749537. pdf?OpenElement). 2007-08-06. . Retrieved 2008-07-15. [40] "Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico" (http:/ / www. un. org/ womenwatch/ daw/ cedaw/ cedaw32/ CEDAW-C-2005-OP. 8-MEXICO-E. pdf). 2005-01-27. . Retrieved 2008-07-15. [41] Report on Mexico, p. 42. [42] Report on Mexico, p. 43. [43] Report on Mexico, p. 44. [44] Report on Mexico, p. 46. [45] Lérner, Natán (1980). The U.N. Convention on the Elimination of All Forms of Racial Discrimination. Sijthoff & Noordhoff International. p. 165. ISBN 90-286-0160-0. [46] Heyns, Christof; Viljoen, Frans (2001). "The Impact of the United Nations Human Rights Treaties on the Domestic Level". Human Rights Quarterly 23: 183–535. [47] "Nominal Commitments to Human Rights: A Global Survey" (http:/ / www. ucl. ac. uk/ spp/ research/ research-projects/ nchr/ #tabs-2). University College London School of Public Policy. 2009-08-01. . Retrieved 1010-02-03. [48] As of December 2009, OP-ICCPR had 113 parties to OP-CEDAW's 99. [49] Jim Murdoch (2008). "The Optional Protocol to the United Nations Convention for the Elimination of all forms of Discrimination Against Women (CEDAW): The Experience of the United Kingdom" (http:/ / www. justice. gov. uk/ publications/ docs/ un-optional-protocol-women. pdf). p. 1. . Retrieved 2009-12-17. [50] Murdoch (2008), p. 27. [51] Isa (2003), p. 320 - 321. 246 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women [52] Sokhi-Bulley (2006), p. 157. [53] Kwong-leung Tang (2004). "Internationalizing Women's Struggle against Discrimination: The UN Women's Convention and the Optional Protocol". British Journal of Social Work 34 (8): 1182. [54] Isa (2003), p. 319 - 320. [55] Sokhi-Bulley (2006), p. 158. [56] Tang (2004), p. 1185. 247 • "Optional Protocol to the Convention on the Elimination of Discrimination against Women (OP-CEDAW)" (http:/ /www2.ohchr.org/english/law/pdf/cedaw-one.pdf). UN OHCHR. Retrieved 2009-12-16. External links • List of parties (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8-b& chapter=4&lang=en) • Committee on the Elimination of Discrimination against Women (http://www2.ohchr.org/english/bodies/ cedaw/index.htm) • Decisions (http://www2.ohchr.org/english/law/jurisprudence.htm) made under the Optional Protocol United Nations Security Council Resolution 1325 UN Security Council Resolution 1325 Date: 31 October 2000 Meeting no.: 4,213 Code: S/RES/1325 ( Document [1]) Vote: For: 15 Abs.: 0 Against: 0 Subject: Women and peace and security Result: Adopted Security Council composition in 2000: permanent members:  CHN  FRA  RUS  UK  USA non-permanent members:  ARG  MLI  BAN  NAM  CAN  NED  JAM  TUN  MAS  UKR United Nations Security Council Resolution 1325 248 Female trade union demonstration United Nations Security Council Resolution 1325, adopted unanimously on October 31, 2000, after recalling resolutions 1261 (1999), 1265 (1999), 1296 (2000) and 1314 (2000), the Council called for the adoption of a gender perspective that included the special needs of women and girls during repatriation and resettlement, rehabilitation, reintegration and post-conflict reconstruction.[2] It was the first formal and legal document from the United Nations Security Council that required parties in a conflict to respect women's rights and to support their participation in peace negotiations and in post-conflict reconstruction. The resolution was initiated by Netumbo Nandi-Ndaitwah, then Minister of Women's Affairs in Namibia when the country took its turn chairing the Security Council.[3] After lobbying by dozens of women's organizations and the United Nations Development Fund for Women (UNIFEM), the resolution was adopted unanimously.[4] Resolution Observations The Security Council was concerned about civilians in armed conflict, particularly women and children, who constituted most of the victims and were increasingly targeted by armed elements. This in turn had an impact on the possibilities for peace and reconciliation. Women played an important role in the prevention and resolution of conflicts and therefore it was important that they were equally involved in the process of maintaining international peace and security. It was also recognised the need to adopt a gender perspective in peacekeeping operations and the training of personnel on women's rights. Acts The resolution called upon all countries to allow increased representation for women at all levels.[5] The Secretary-General Kofi Annan was requested to increase the participation of women at decision making levels in conflict resolution and peace process; appoint more women as Special Representatives and envoys; and expand their role in peacekeeping operations, particularly among military observers, police, human rights and humanitarian personnel. In this regard the Council expressed its willingness to incorporate a gender perspective into peacekeeping operations.[6] The Security Council called upon all parties involved in negotiating and implementing peace agreements had to take into account the special needs of women and girls in armed conflict, support women's peace initiatives and implement international humanitarian law and human rights law that respects the rights of women and girls. Parties to armed conflict were also urged to take measures to protect women and girls from gender-based violence such as rape and other forms of sexual abuse, and to respect the humanitarian nature of refugee camps and take the needs of women and girls into their design. The resolution emphasised the responsibility of all countries to prosecute those responsible for crimes against them. During the disarmament, demobilisation and reintegration process, the differing needs of female and male ex-combatants had to be taken into account. Finally, the Secretary-General was requested to conduct a study concerning the impact of armed conflict upon women and girls, report its findings and on gender mainstreaming as a whole in United Nations peacekeeping missions. The resolution also calls upon all countries to respect fully international law applicable to the rights and protection of women and girls, in particular the obligation under the Geneva Convention of 1949 and Additional Protocol thereto of 1977, the Refugee convention of 1951 and the Protocol thereto of 1967, the Convention on the Elimination of All Forms of Discrimination Against Women and the Optional Protocol thereto of 1999, the Convention on the Rights of the Child and Optional Protocol on the Involvement of Children in Armed Conflict as well Optional Protocol on the Sale of Children, Child Prostitution and United Nations Security Council Resolution 1325 Child Pornography, to bear in mind the provitions of the Rome Statute of the International Criminal Court.[7] 249 Related groups The Friends of 1325 is an informal or ad hoc group of United Nations Member States who formed as a result of the adoption of Resolution 1325 in order to advocate for the implementation of Resolution 1325; it is organized by Canada.[8] The NGO Working Group on Women, Peace and Security is a coalition of eighteen NGOs which collectively advocate for the equal and full participation of women in all efforts to create and maintain international peace and security. Formed in 2000 to call for a Security Council resolution on Women, Peace and Security, the NGOWG now focuses on implementation of all Security Council resolutions that address this issue. The NGOWG serves as a bridge between women’s human rights defenders working in conflict-affected situations and policy-makers at U.N. Headquarters.[9] One of the founding members of the NGO Working Group, PeaceWomen is a project sponsored by the WILPF to promote the implementation of Resolution 1325, through providing a centralized hub of information on information related to women, peace and security.[10] References [1] http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N00/ 720/ 18/ PDF/ N0072018. pdf?OpenElement [2] "Security Council, unanimously adopting resolution 1325 (2000), calls for broad participation of women in peace-building post-conflict reconstruction" (http:/ / www. un. org/ News/ Press/ docs/ 2000/ 20001031. sc6942. doc. html). United Nations. October 31, 2000. . [3] Landsberg, Michele (Summer 2003). "Resolution 1325 - Use It or Lose It" (http:/ / www. msmagazine. com/ june03/ landsberg. asp). Ms Magazine. . [4] Murthy, Padmini; Smith, Clyde Lanford (2009). Women's global health and human rights. Jones & Bartlett Learning. p. 38. ISBN 978-0763756314. [5] Ramsbotham, Oliver; Woodhouse, Tom; Miall, Hugh (2005). Contemporary conflict resolution: the prevention, management and transformation of deadly conflicts (2nd ed.). Polity. p. 272. ISBN 978-0745632131. [6] Neutwirth, Jessica (June 22, 2002). "Women and Peace and Security: The Implementation of U.N. Security Council Resolution 1325" (http:/ / www. thefreelibrary. com/ Women+ and+ peace+ and+ security:+ the+ implementation+ of+ U. N. + Security. . . -a090988305). Duke Journal of Gender Law & Policy 253. . [7] Paragraph 9 of the Security Council Resolution 1325 [8] Korieh, Chima Jacob; Okeke-Ihejirika, Philomina Ezeagbor (2008). Gendering global transformations: gender, culture, race, and identity. Taylor & Francis. p. 206. ISBN 978-0415963251. [9] http:/ / womenpeacesecurity. org/ about/ [10] http:/ / www. peacewomen. org/ External links • Text of Resolution at UNHCR.org (http://www.unhcr.org/refworld/docid/3b00f4672e.html) • Resolution 1325: does it make any difference? (http://www.opendemocracy.net/democracy-resolution_1325/ issue.jsp) - openDemocracy • Resources on Resolution 1325 (http://www.peacewomen.org/un/UN1325/1325index.html) • Naraghi-Anderlini, Sanam (2000). The A-B-C to UN Security Council Resolution 1325 on women and peace and security (http://www.undp.org/cpr/cpr_all/4_cross_cutting/4.1_gender/4_SC_Resolution_1325_A-B-C. PDF). International Alert. (PDF) Yogyakarta Principles 250 Yogyakarta Principles The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of principles relating to sexual orientation and gender identity, intended to apply international human rights law standards to address the abuse of the human rights of lesbian, gay, bisexual, and transgender (LGBT) people, and issues of intersexuality. The Principles were developed at a meeting of the International Commission of Jurists, the International Service for Human Rights and human rights experts from around the world at Gadjah Mada University on Java from 6 to 9 November in 2006. The concluding document "contains 29 principles adopted unanimously by the experts, along with recommendations to governments, regional intergovernmental institutions, civil society, and the UN itself".[1] The principles are named after Yogyakarta, the smallest province of Indonesia (excluding Jakarta) located on the island of Java. These principles have not been adopted by States in a treaty, and are thus not a legally binding part of international human rights law.[2] Among the 29 signatories of the principles were Mary Robinson, Manfred Nowak, Martin Scheinin, Elizabeth Evatt, Philip Alston, Edwin Cameron, Asma Jahangir, Paul Hunt, Sanji Mmasenono Monageng, Sunil Babu Pant, Stephen Whittle and Wan Yanhai. The signatories intended that the Yogyakarta Principles should be adopted as a universal standard,[3] but some states have expressed reservations.[4] In alignment with the movement towards establishing basic human rights for all people, the Yogyakarta Principles specifically address sexual orientation and gender identity. The Principles were developed in response to patterns of abuse reported from around the world. These included examples of sexual assault and rape, torture and ill-treatment, extrajudicial executions, honour killing[5] , invasion of privacy, arbitrary arrest and imprisonment, medical abuse, denial of free speech and assembly and discrimination, prejudice and stigmatization[6] in work, health, education, housing, access to justice and immigration. These are estimated to affect millions of people who are, or have been, targeted on the basis of perceived or actual sexual orientation or gender identity.[7] Background The website promoting the Principles notes that concerns have been voiced about a trend of people's human rights being violated because of their sexual orientation or gender identity. While the United Nations human rights instruments detail obligations to ensure that people are protected from discrimination and stereotypes,[8] , which includes people's expression of sexual orientation or gender identity, implementation of these rights has been fragmented and inconsistent internationally. The Principles aim to provide a consistent understanding about application of international human rights law in relation to sexual orientation and gender identity.[3] Development From 6 to 9 November 2006, an international seminar of legal experts on human rights took place at Yogyakarta, Indonesia. The seminar clarified the nature, scope and implementation of states’ human rights obligations under existing human rights treaties and law, in relation to sexual orientation and gender identity. The principles that developed out of this meeting were adopted by human rights experts from around the world, and included judges, academics, a former UN High Commissioner for Human Rights, NGOs and others.[3] The Irish human rights expert Michael O'Flaherty was rapporteur responsible for drafting and development of the Yogyakarta Principles adopted at the meeting.[9] Vitit Muntarbhorn and Sonia Onufer Corrêa were the co-chairpersons.[10] Yogyakarta Principles 251 Reasoning The compilers explain that the Principles detail how international human rights law can be applied to sexual orientation and gender identity issues, in a way that affirms international law and to which all states can be bound. They maintain that wherever people are recognised as being born free and equal in dignity and rights, this should include LGBT people. They argue that human rights standards can be interpreted in terms of sexual orientation and gender identity when they touch on issues of torture and violence, extrajudicial execution, access to justice, privacy, freedom from discrimination, freedom of expression and assembly, access to employment, health-care, education, and immigration and refugee issues. The Principles aim to explain that States are obliged to ensure equal access to human rights, and each principle recommends how to achieve this, highlighting international agencies' responsibilities to promote and maintain human rights.[3] The Principles are based on the recognition of the right to non-discrimination. The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with these matters in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the International Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work), 15 of 2002 (on the right to water) and 14 of 2000 (on the right to the highest attainable standard of health), it indicated that the Covenant proscribes any discrimination on the basis of, inter alia, sex and sexual orientation "that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]".[11] The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised states, for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, ‘lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished’. Launch and response The finalised Yogyakarta Principles was launched as a global charter for gay rights on 26 March 2007 at the United Nations Human Rights Council in Geneva.[12] [13] Michael O’Flaherty, spoke at the International Lesbian and Gay Association (ILGA) Conference in Lithuania on 27 October 2007; he explained that "all human rights belong to all of us. We have human rights because we exist – not because we are gay or straight and irrespective of our gender identities", but that in many situations these human rights are not respected or realised, and that "the Yogyakarta Principles is to redress that situation".[9] The Yogyakarta Principles were presented at a United Nations event in New York on 7 November 2007, co-sponsored by Argentina, Brazil and Uruguay. Human Rights Watch explain that the first step towards this would be the de-criminalisation of homosexuality in 77 countries that still carry legal penalties for people in same-sex relationships, and repeal of the death penalty in the seven countries that still have the death penalty for such sexual practice.[7] Human-rights and LGBT-rights groups took up the principles, and discussion has featured in the gay press,[14] as well as academic papers and text books (see bibliography). These principles, while explaining the way existing human rights statutes need to be applied in specific situations relevant to LGBT people's experience, influenced the proposed UN declaration on sexual orientation and gender identity in 2008.[15] Yogyakarta Principles 252 Controversy On July 2010, Vernor Muñoz, United Nations Special Rapporteur on the Right to Education, presented to the United Nations General Assembly an interim report on the human right to comprehensive sexual education, in which he cited the Yogyakarta Principles as a Human Rights standard.[16] In the ensuing discussion, the majority of General Assembly Third Committee members recommended against adopting the principles.[17] For instance, the Representative of Malawi, speaking on behalf of all African States argued that the report: Reflected an attempt to introduce controversial notions and a disregard to the Code of Conduct for Special Procedures Mandate-holders as outlined in Human Rights Council resolution 8/4. She expressed alarm at the reinterpretation of existing human rights instruments, principles and concepts. The report also selectively quoted general comments and country-specific recommendations made by treaty bodies and propagated controversial and unrecognized principles, including the so-called Yogyakarta Principles, to justify his personal opinion.[18] Trinidad and Tobago, on behalf of the Caribbean States members of CARICOM, argued that the special rapporteur "had chosen to ignore his mandate, as laid down in Human Rights Council resolution 8/4, and to focus instead on the so-called 'human right to comprehensive education.' Such a right did not exist under any internationally agreed human rights instrument or law and his attempts to create one far exceeded his mandate and that of the Human Rights Council."[19] The representative of Mauritania, speaking on behalf of the Group of Arab States, said that the Arab States were "dismayed" and accused the rapporteur of attempting to promote "controversial doctrines that did not enjoy universal recognition" and to "redefine established concepts of sexual and reproductive health education, or of human rights more broadly".[20] The Russian Federation expressed "its disappointment and fundamental disagreement with the report," writing of the rapporteur: As justification for his conclusions, he cited numerous documents which had not been agreed to at the intergovernmental level, and which therefore could not be considered as authoritative expressions of the opinion of the international community. In particular, he referred to the Yogyarkarta Principles and also to the International Technical Guidance on Sexuality Education. Implementation of various provisions and recommendations of the latter document would result in criminal prosecution for such criminal offences as corrupting youth.[21] Meanwhile, the Council of Europe states in "Human Rights and Gender Identity" that Principle 3 of the Yogyakarta Principles is "of particular relevance":[22] Because same sex marriage is possible only in five member states of the Council of Europe, transgender persons who are already married usually have to divorce prior to their new gender being officially recognised, although in many cases they would prefer to remain a legally recognised family unit, especially if they have children. Such enforced divorces may have a negative impact on the children of the marriage.(3.2.2) They recommend that member states "abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person's gender identity in laws regulating the process for name and sex change." (V.4) as well as to "make gender reassignment procedures, such as hormone treatment, surgery and psychological support, accessible for transgender persons, and ensure that they are reimbursed by public health insurance schemes." (V.5) Similarly, the Parliamentary Assembly of the Council of Europe adopted a document titled "Discrimination on the basis of sexual orientation and gender identity" on 23 March 2010,[23] in which the parliamentarians argued that the prejudice that "homosexuality is immoral" is a "subjective view usually based on religious dogma that, in a democratic society, cannot be a basis for limiting the rights of others." They also argued that the belief that "homosexuality is worsening the demographic crisis and threatening the future of the nation" is "illogical," and that "granting legal recognition to same-sex couples has no influence on whether heterosexuals marry or have children."[23] Piero A. Tozzi, of the Catholic Family and Human Rights Institute, issued a briefing paper ‘Six Problems with the Yogyakarta Principles’.[15] [24] He argues that where Principle 24 seeks to recognize the diversity of family forms, this could devalue the concept of the family by including any grouping of two (or more) people. He also argues that Yogyakarta Principles Principles 20 and 21 could be used to restrict freedom of speech. 253 Overview The Principles themselves are a lengthy document addressing legal matters. A website established to hold the principles and make them accessible has an overview of the principles,[25] reproduced here in full: • Preamble: The Preamble acknowledges human rights violations based on sexual orientation and gender identity, which undermine the integrity and dignity establishes the relevant legal framework, and provides definitions of key terms. • Rights to Universal Enjoyment of Human Rights, Non-Discrimination and Recognition before the Law: Principles 1 to 3 set out the principles of the universality of human rights and their application to all persons without discrimination, as well as the right of all people to recognition as a person before the law without sex reassignment surgery or sterilisation. • Example: • Laws criminalising homosexuality violate the international right to non-discrimination (decision of the UN Human Rights Committee). • Rights to Human and Personal Security: Principles 4 to 11 address fundamental rights to life, freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention, and human trafficking.[26] • Examples: • The death penalty continues to be applied for consensual adult sexual activity between persons of the same sex, despite UN resolutions emphasizing that the death penalty may not be imposed for “sexual relations between consenting adults.” • Eleven men were arrested in a gay bar and held in custody for over a year. The UN Working Group on Arbitrary Detention concluded that the men were detained in violation of international law, noting with concern that “one of the prisoners died as a result of his arbitrary detention”. • Economic, Social and Cultural Rights: Principles 12 to 18 set out the importance of non-discrimination in the enjoyment of economic, social and cultural rights, including employment, accommodation, social security, education, sexual and reproductive health including the right for informed consent and sex reassignment therapy. • Examples: • Lesbian and transgender women are at increased risk of discrimination, homelessness and violence (report of United Nations Special Rapporteur on adequate housing). • Girls who display same-sex affection face discrimination and expulsion from educational institutions (report of UN Special Rapporteur on the right to education). • The United Nations High Commissioner for Human Rights has expressed concern about laws which “prohibit gender reassignment surgery for transsexuals or require intersex persons to undergo such surgery against their will”. • Rights to Expression, Opinion and Association: Principles 19 to 21 emphasise the importance of the freedom to express oneself, one’s identity and one’s sexuality, without State interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others. • Example: • A peaceful gathering to promote equality on the grounds of sexual orientation and gender identity was banned by authorities, and participants were harassed and intimidated by police and extremist nationalists shouting slogans such as “Let’s get the fags” and “We’ll do to you what Hitler did with Jews” (report of the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia & related intolerance). Yogyakarta Principles • Freedom of Movement and Asylum: Principles 22 and 23 highlight the rights of persons to seek asylum from persecution based on sexual orientation or gender identity. • Example: • Refugee protection should be accorded to persons facing a well-founded fear of persecution based on sexual orientation (Guidelines of the United Nations High Commissioner for Refugees).[27] • Rights of Participation in Cultural and Family Life: Principles 24 to 26 address the rights of persons to participate in family life, public affairs and the cultural life of their community, without discrimination based on sexual orientation or gender identity. • Example: • States have an obligation not to discriminate between different-sex and same-sex relationships in allocating partnership benefits such as survivors’ pensions (decision of the UN Human Rights Committee). • Rights of Human Rights Defenders: Principle 27 recognises the right to defend and promote human rights without discrimination based on sexual orientation and gender identity, and the obligation of States to ensure the protection of human rights defenders working in these areas. • Examples: • Human rights defenders working on sexual orientation and gender identity issues in countries and regions around the world “have been threatened, had their houses and offices raided, they have been attacked, tortured, sexually abused, tormented by regular death threats and even killed. A major concern in this regard is an almost complete lack of seriousness with which such cases are treated by the concerned authorities.” (report of the Special Representative of the UN Secretary-General on Human Rights Defenders). • Rights of Redress and Accountability: Principles 28 and 29 affirm the importance of holding rights violators accountable, and ensuring appropriate redress for those who face rights violations. • Example: • The UN High Commissioner for Human Rights has expressed concern about "impunity for crimes of violence against LGBT persons” and “the responsibility of the State to extend effective protection. The High Commissioner notes that "excluding LGBT individuals from these protections clearly violates international human rights law as well as the common standards of humanity that define us all." • Additional Recommendations: The Principles set out 16 additional recommendations to national human rights institutions, professional bodies, funders, NGOs, the High Commissioner for Human Rights, UN agencies, treaty bodies, Special Procedures, and others. • Example: • The Principles conclude by recognising the responsibility of a range of actors to promote and protect human rights and to integrate these standards into their work. A joint statement delivered at the United Nations Human Rights Council by 54 States from four of the five UN regions on 1 December 2006, for example, urges the Human Rights Council to “pay due attention to human rights violations based on sexual orientation and gender identity” and commends the work of civil society in this area, and calls upon “all Special Procedures and treaty bodies to continue to integrate consideration of human rights violations based on sexual orientation and gender identity within their relevant mandates.” As this statement recognises, and the Yogyakarta Principles affirm, effective human rights protection truly is the responsibility of all. 254 Yogyakarta Principles 255 Bibliography • The Yogyakarta Principles [28] • The Yogyakarta Principles [29] (Official site of UNHCR) • Ju Andrzejewski, Marta Baltodano, Linda Symcox, Social Justice, Peace, and Environmental Education: Transformative Standards, Routledge (2009) [30] • Michael O’Flaherty and John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, Human Rights Law Review 2008 8(2):207-248; doi:10.1093/hrlr/ngn009 • S. Farrior, Human Rights Advocacy on Gender Issues: Challenges and Opportunities, J Human Rights Practice, March 1, 2009; 1(1): 83 - 100. • BO Dittrich, Yogyakarta Principles: applying existing human rights norms to sexual orientation and gender identity, HIV AIDS Policy Law Rev. 2008 Dec;13(2-3):92-3. • International Lesbian, Gay, Trans, Bisexual and Intersex Association, State-sponsored Homophobia: a world survey of laws criminalising same-sex sexual acts between consenting adults, May 2011. References [1] Human Rights Watch World Report 2008 (http:/ / books. google. com/ books?id=4QL9BElMSbkC& pg=PA35& dq=Yogyakarta+ Principles& ei=uDVCSoq2JaTYMLKvqMEO& client=mozilla) [2] United Nations Genernal Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N09/ 576/ 53/ PDF/ N0957653. pdf?OpenElement), para. 9. [3] About the Yogyakarta Principles (http:/ / www. yogyakartaprinciples. org/ principles_en_about. htm) [4] United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N09/ 576/ 53/ PDF/ N0957653. pdf?OpenElement), para. 9. [5] UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, II, B. para 14 (http:/ / www. unhcr. org/ refworld/ docid/ 48abd5660. html) [6] Preamble of the Yogyakarta Principles [7] Reuters report: "UN: Support Global Gay Rights Charter", 5th Nov 2007 (http:/ / www. alertnet. org/ thenews/ newsdesk/ HRW/ d7bc1e961a61c711589cc05ab4fbede3. htm) [8] Preamble, Principle 25 (b) and Additional Recommendations (o) of the Yogyakarta Principles [9] The Yogyakarta Principles: Rapporteur Addresses Gay Conference (http:/ / www. ukgaynews. org. uk/ Archive/ 07/ Oct/ 2702. htm) [10] Introduction to The Yogyakarta Principles [11] CESCR General Comments 14, 15 and 18 (http:/ / www2. ohchr. org/ english/ bodies/ cescr/ comments. htm) [12] Geneva launch of Yogyakarta Principles (http:/ / www. ilga-europe. org/ home/ news/ latest_news/ the_yogyakarta_principles_to_be_launched_on_26_march_in_geneva) [13] Sexual Orientation, Gender Identity and International Human Rights Law (http:/ / www. yogyakartaprinciples. org/ yogyakarta-article-human-rights-law-review. pdf) [14] United Nations to host LGBT rights panel, Maryam Omidi, Pink News, 29th October 2007 (http:/ / www. pinknews. co. uk/ news/ articles/ 2005-5889. html) [15] French UN “Sexual Orientation” Push Linked to Radical Yogyakarta Principles, Piero A. Tozzi, Catholic Family and Human Rights Institute, 1st January 2009 (https:/ / www. c-fam. org/ publications/ id. 954/ pub_detail. asp) [16] Report of the United Nations Special Rapporteur on the right to education, 23 July 2010, UN Doc. A/65/162 (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N10/ 462/ 13/ PDF/ N1046213. pdf?OpenElement), para 23: Sexual education is a basic tool for ending discrimination against persons of diverse sexual orientations. A very important contribution to thinking in this area was made by the 2006 Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity. The Special Rapporteur fully endorses the precepts of Principle 16, referring specifically to the right to education. [17] International Service for Human Rights, Majority of GA Third Committee unable to accept report on the human right to sexual education (http:/ / www. ishr. ch/ archive-general-assembly/ 933-majority-of-ga-third-committee-unable-to-accept-report-on-the-human-right-to-sexual-education) [18] United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N09/ 576/ 53/ PDF/ N0957653. pdf?OpenElement), para. 9. Yogyakarta Principles [19] United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N09/ 576/ 53/ PDF/ N0957653. pdf?OpenElement), para. 11. [20] United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N09/ 576/ 53/ PDF/ N0957653. pdf?OpenElement), para. 14-15. [21] United Nations General Assembly, Official Records, Third Committee, Summary record of the 29th meeting held in New York, on Monday, 25 October 2010, at 3 p.m (http:/ / daccess-dds-ny. un. org/ doc/ UNDOC/ GEN/ N09/ 576/ 53/ PDF/ N0957653. pdf?OpenElement), para. 22-23. [22] Human Rights and Gender Identity, 29th July 2009 (http:/ / www. transvestit. dk/ Human rights and gender identity COE. pdf) [23] Council of Europe Parliamentary Assembly, Discrimination on the basis of sexual orientation and gender identity, 23rd March 2010 (http:/ / assembly. coe. int/ Main. asp?link=/ Documents/ WorkingDocs/ Doc10/ EDOC12185. htm) [24] Piero A. Tozzi J.D., Six Problems with the Yogyakarta Principles (http:/ / www. c-fam. org/ publications/ id. 439/ pub_detail. asp), PDF (http:/ / www. c-fam. org/ docLib/ 20080610_Yogyakarta_Principles. pdf), Catholic Family and Human Rights Institute: International Organizations Research Group Briefing Paper (2007) [25] Overview of Yogyakarta Principles (not subject to copyright and reproduced with permission of webmaster) (http:/ / www. yogyakartaprinciples. org/ principles_en_overview. htm) [26] Principle 11. The Right to Protection from all form of exploitation, sale and trafficking of human being [27] UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (http:/ / www. unhcr. org/ refworld/ docid/ 48abd5660. html) [28] http:/ / www. yogyakartaprinciples. org/ [29] http:/ / www. unhcr. org/ refworld/ category,REFERENCE,ICJRISTS,,,48244e602,O. html [30] http:/ / books. google. com/ books?id=D1KmFdFCULEC& pg=PA254& dq=Yogyakarta+ Principles& ei=uDVCSoq2JaTYMLKvqMEO& client=mozilla, 256 Convention on the Rights of Persons with Disabilities 257 Convention on the Rights of Persons with Disabilities Convention on the Rights of Persons with Disabilities   states parties   states that signed, but have not ratified   states that have not signed Drafted Signed Location Effective Condition Signatories Parties Depositary Languages 13 December 2006 30 March 2007 New York 3 May 2008 20 ratifications 153 107 Secretary-General of the United Nations Arabic, Chinese, English, French, Russian and Spanish The Convention on the Rights of Persons with Disabilities is an international human rights instrument of the United Nations intended to protect the rights and dignity of persons with disabilities. Parties to the Convention are required to promote, protect, and ensure the full enjoyment of human rights by persons with disabilities and ensure that they enjoy full equality under the law. The text was adopted by the United Nations General Assembly on 13 December 2006 and opened for signature on 30 March 2007. Following ratification by the 20th party, it came into force on 3 May 2008.[1] As of December 2011, it has 153 signatories and 107 parties, including the European Union which 'concluded' the treaty (in effect, ratified it to the extent responsibilities of the member states were transferred to the European Union) on 23 December 2010.[2] The Convention is monitored by the Committee on the Rights of Persons with Disabilities. Genesis 1981-1992 was the UN "Decade of Disabled Persons." In 1987, a global meeting of experts to review progress recommended that the UN General Assembly should draft an international convention on the elimination of discrimination against persons with disabilities. Draft convention outlines were proposed by Italy and subsequently Sweden, but no consensus was reached. Many government representatives argued that existing human rights documents were sufficient. Instead, non-compulsory "Standard Rules on the Equalisation of Opportunities for Persons with Disabilities" were adopted by the General Assembly in 1993. In 2000, leaders of five international disability NGOs issued a "Beijing Declaration", calling on all governments to support a Convention. In 2001, the General Assembly, following a proposal by Mexico, established an Ad Hoc Committee to consider proposals for a comprehensive and integral convention to promote and protect the rights and dignity of persons with disabilities, based on a holistic approach.[3] Disability rights organisations, including the International Disability Alliance as Convention on the Rights of Persons with Disabilities coordinator of an ad hoc International Disability Caucus, participated actively in the drafting process, in particular seeking a role for disabled people and their organisations in the implementation and monitoring of what became the Convention.[4] 258 Summary The Convention follows the civil law tradition, with a preamble, in which the principle that "all human rights are universal, indivisible, interdependent and interrelated " of Vienna Declaration and Programme of Action is cited, followed by 50 articles. Unlike many UN covenants and conventions, it is not formally divided into parts. Article 1 defines the purpose of the Convention: to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity Articles 2 and 3 provide definitions and general principles including communication, reasonable accommodation and universal design. Articles 4 - 32 define the rights of persons with disabilities and the obligations of states parties towards them. Many of these mirror rights affirmed in other UN conventions such as the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights or the Convention Against Torture, but with specific obligations ensuring that they can be fully realised by persons with disabilities. Rights specific to this convention include the rights to accessibility including the information technology, the rights to live independently and be included in the community (Article 19), to personal mobility (article 20), habilitation and rehabilitation (Article 26), and to participation in political and public life, and cultural life, recreation and sport (Articles 29 and 30). In addition, parties to the Convention must raise awareness of the human rights of persons with disabilities (Article 8), and ensure access to roads, buildings, and information (Article 9). Articles 33 - 39 govern reporting and monitoring of the convention. Articles 40 - 50 govern ratification, entry into force, and amendment of the Convention. Article 49 also requires that the Convention be available in accessible formats. Core Provisions Guiding principles of the Convention There are eight guiding principles that underlie the Convention: 1. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons 2. Non-discrimination 3. Full and effective participation and inclusion in society 4. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity 5. Equality of opportunity 6. Accessibility 7. Equality between men and women 8. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities Convention on the Rights of Persons with Disabilities 259 Definition of disability The Convention adopts a social model of disability, and defines disability as including those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Principle of "reasonable accommodation" The Convention defines "reasonable accommodation" to be "necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms" at the Article 2 and demands this all aspects of life including inclusive education. Accessibility The Convention stresses that persons with disabilities should be able to live independently and participate fully in all aspects of life. To this end, States Parties should take appropriate measures to ensure that persons with disabilities have access, to the physical environment, to transportation, to information and communications technology, and to other facilities and services open or provided to the public. Situations of risk and humanitarian emergency Article 11 of the Convention affirms that States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of armed conflict, humanitarian emergencies and the occurrence of natural disaster. Right to education The Convention states that persons with disabilities should be guaranteed the right to inclusive education at all levels, regardless of age, without discrimination and on the basis of equal opportunity. State Parties should ensure that: 1. children with disabilities are not excluded from free and compulsory primary education, or from secondary education; 2. adults with disabilities have access to general tertiary education, vocational training, adult education and lifelong learning; 3. persons with disabilities receive the necessary support, within the general education system, to facilitate their effective education; and 4. effective individualized support measures are put in place to maximize academic and social development. State Parties should take appropriate measures, such as: 1. endorsing the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring; 2. supporting the learning of sign language and promoting the linguistic identity of the deaf community; 3. advocating that education of persons, particularly children, who are blind and/or deaf, is delivered in the most appropriate languages and means of communication for the individual; and 4. employing teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train education professionals and staff about disability awareness, use of augmentative and alternative modes and formats of communication, and educational techniques and materials to support persons with disabilities. Convention on the Rights of Persons with Disabilities 260 Right to health Article 25 specifies that "persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability."[5] Protecting the integrity of the person Article 17 of the Convention states that every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. Respect for the family Article 23 of the Convention prohibits compulsory sterilization of disabled persons and guarantees their right to adopt children. Habilitation and rehabilitation Article 26 of the Convention affirms that "State Parites shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes: 1. Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths; 2. Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas. 3. States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation service. 4. States Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation. Participation rights The Convention on the Right of Persons with Disabilities recognised that "that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others" and that "persons with disabilities continue to face barriers in their participation as equal members of society." The Convention makes participation of the disabled one of its principles, stating "The principles of the present Convention shall be:...Full and effective participation and inclusion in society", subsequently enshrining the right of disabled to participate fully and equally in the community, education, all aspect of life (in the context of habilitation and rehabilitation), political and public life, cultural life, leisure and sports.[6] States Parties should take appropriate measure such as: 1. To enables persons with disabilities to have the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society. 2. In accordance with international law, to ensure that law protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials. 3. So that persons with disabilities should be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture. Convention on the Rights of Persons with Disabilities 261 Work and employment Article 27 requires that States Parties recognize the right of persons with disabilities to work, on an equal basis of others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. And that State Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to inter alia: 1. Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, continuance of employment, career advancement and safe and healthy working conditions; 2. Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances; 3. Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others; 4. Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training; 5. Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment; 6. Promote opportunities for self-employment, entrepreneurship, the development of cooperative and starting one's own business. 7. Ensure that reasonable accommodation is provided to persons with disabilities in the workplace. 8. Promote the acquisition by persons with disabilities of work experience in the open labour market. 9. Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. 2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forces or compulsory labour. Adequate standard of living and social protection Article 28 requires that State Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this rights without discrimination on the basis of disability. 2. State Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that rights without discrimination on the basis of disability, and shall take appropriate steps to safegurad and promote the realization of the rights, including measures; 1. To ensure equal access by persons with disabilities to clean water service, and to ensure access to appropriate and affordable service, device and other assistance for disability-related needs. 2. To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes. 3. To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assictance and respite care. 4. To ensure access by persons with disabilities to public housing programmes. 5. To ensure equal access by persons with disabilities to retirement benefits and programmes. Convention on the Rights of Persons with Disabilities 262 Right to vote Article 29 requires that all Contracting States protect "the right of persons with disabilities to vote by secret ballot in elections and public referendums".[7] According to this provision, each Contracting State should provide for voting equipment which would enable disabled voters to vote independently and secretly. Some democracies, i.e. United States, Japan, Netherlands, Slovenia, Albania or India allow disabled voters to use electronic voting machines or electronic aides which help disabled voters to fill the paper ballot. In others, among them Azerbaijan, Kosovo, Canada, Ghana, United ISG TopVoter, a machine designed specifically to be used by voters with Kingdom, and most of African and Asian disabilities. countries, visually impaired voters can use ballots in Braille or paper ballot templates. Many of these and also some other democracies, Chile for example, use adjustable desks so that voters on wheelchairs can approach them. Some democracies only allow another person to cast a ballot for the blind or disabled voter. Such arrangement, however, does not assure secrecy of the ballot. Article 29 also requires that Contracting States ensure "that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use." In some democracies, i.e. Sweden and United States, all the polling places already are fully accessible for disabled voters. Reservations A number of parties have made reservations and interpretative declarations to their application of the Convention.[8] Australia does not consider itself bound to stop forcibly medicating those labeled mentally ill.[8] El Salvador accepts the Convention to the extent that it is compatible with its constitution.[8] Malta interprets the right to health in Article 25 of the Convention as not implying any right to abortion. It also reserves the right to continue to apply its own election laws around accessibility and assistance.[8] Mauritius does not consider itself bound by the Article 11 obligation to take all necessary measures to protect people with disabilities during natural disasters, armed conflict or humanitarian emergencies, unless permitted by domestic legislation.[8] The Netherlands interprets the right to life in Article 10 within the framework of its domestic laws. It also interprets Article 25(f), which bars the discriminatory denial of health care, as permitting a person to refuse medical treatment, including food or fluids.[8] Poland interprets Articles 23 and 25 as not conferring any right to abortion.[8] The United Kingdom has reservations relating to the right to education, immigration, service in the armed forces and an aspect of social security law.[8] Convention on the Rights of Persons with Disabilities 263 Optional protocol The Optional Protocol to the Convention on the Rights of Persons with Disabilities is a side-agreement to the Convention which allows its parties to recognise the competence of the Committee on the Rights of Persons with Disabilities to consider complaints from individuals.[9] The text is based heavily on the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The Optional Protocol entered into force with the Convention on 3 May 2008.[1] As of October 2011, it has 90 signatories and 63 parties.[10] Committee on the Rights of Persons with Disabilities The Committee on the Rights of Persons with Disabilities is a body of human rights experts tasked with monitoring the implementation of the Convention. It initially consisted of 12 independent human rights experts, with half elected for a two-year term and half elected for four-years.[11] Thereafter members will be elected for four-year terms, with half the members elected every two years. As the Convention has achieved 80 ratifications, the Committee will be expanded to 18 members.[11] References [1] "Landmark UN treaty on rights of persons with disabilities enters into force" (http:/ / www. scoop. co. nz/ stories/ WO0805/ S00048. htm). Scoop. 208-05-05. . Retrieved 2008-06-28. [2] "UN Treaty Collection: parties to the Convention on the Rights of Persons with Disabilities: List of parties" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-15& chapter=4& lang=en). UN. 2011-09-07. . Retrieved 2011-09-07. [3] O'Reilly, A. (2003) A UN Convention on the Rights of Persons with Disabilities: The Next Steps (http:/ / www. disabilityworld. org/ 01-03_03/ news/ unconvention. shtml) Paper presented at the General Assembly Meeting of Rehabilitation International Arab Region, 8–9 March 2003, Kingdom of Bahrain. [4] Handicap International UK - UN Convention on the Rights of Persons with Disabilities (http:/ / www. handicap-international. org. uk/ what_we_do/ disability_rights/ un_convention) [5] Article 25 (http:/ / www2. ohchr. org/ english/ law/ disabilities-convention. htm#25) [6] Convention on the Rights of Persons with Disabilities (http:/ / www. un. org/ disabilities/ convention/ conventionfull. shtml) [7] Ron McCallum, 'Participating in Political and Public life' (2011) 32 AltLJ 80. http:/ / www. altlj. org/ news-and-views/ opinion/ 92-participating-in-political-and-public-life [8] "Convention on the Rights of Persons with Disabilities: Declarations and Reservations" (http:/ / web. archive. org/ web/ 20080612043933/ http:/ / www2. ohchr. org/ english/ bodies/ ratification/ 15. htm#reservations). UN OHCHR. 2008. Archived from the original (http:/ / www2. ohchr. org/ english/ bodies/ ratification/ 15. htm#reservations) on 2008-06-12. . Retrieved 2008-06-28. [9] Optional Protocol to the Convention on the Rights of Persons with Disabilities (http:/ / www2. ohchr. org/ english/ law/ disabilities-op. htm), Article 1. [10] "UN Treaty Collection: Optional Protocol to the Convention on the Rights of Persons with Disabilities" (http:/ / treaties. un. org/ Pages/ ViewDetails. aspx?src=TREATY& mtdsg_no=IV-15-a& chapter=4& lang=en). UN. . Retrieved 2010-09-15. [11] Convention on the Rights of Persons with Disabilities, Article 34. External links • Text of the Convention (http://www2.ohchr.org/english/law/disabilities-convention.htm) • List of parties (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15& chapter=4&lang=en) • Committee on the Rights of Persons with Disabilities (http://www.ohchr.org/EN/HRBodies/CRPD/Pages/ CRPDIndex.aspx) - Official monitoring body • UN Enable (http://www.un.org/disabilities/) Article Sources and Contributors 264 Article Sources and Contributors Discrimination  Source: http://en.wikipedia.org/w/index.php?oldid=465734228  Contributors: 1234r00t, 1337owner, 17morria, 200.191.188.xxx, 24fan24, A.K.A Daisy, A8UDI, A930913, ABF, ALC, AV3000, Abootmoose, Abrech, Acer29, Acharya.bhanubhakta@gmail.com, Adambro, AdjustShift, Afaprof01, Ahoerstemeier, Aitias, Ajakajason, Akiora, Alansohn, Albion moonlight, AliceJMarkham, AllanL5, Allstarecho, Alphachimp, Altenmann, Amberrock, Americanhistorygal, Amp873, Andromeda-Hannah, Andy Marchbanks, Andycjp, Angela, Angelkeen, Angusmclellan, Anon172, Apoc2400, Aqualung, Arakunem, ArglebargleIV, Arrala, Art Markham, Artaxiad, Arthena, Asian it crimerings, Atif.t2, Atulfotedar, Avoided, AwamerT, Ayrrow, Az1568, BRG, Backpackadam, Badanedwa, Banak, Bardsandwarriors, Batlinspil, Bearcat, Beeblebrox, Beetstra, Ben Ben, Benandorsqueaks, Benjiboi, Benjwong, Bentogoa, Bfigura's puppy, Big Adamsky, Binksternet, Biruitorul, Bis032, Blanchardb, Bmc5708, Bmclaughlin9, Bob A, Bobblewik, Bonadea, Bongwarrior, Bookandcoffee, Bootstoots, Borgx, Boyon12, Brandon5485, Brassbandplayer, Breno, Brewcrewer, Brianbrodkin, Brighterorange, Bucoli, Buster7, Bwileyr, Bwpach, CCWorld, CJ Withers, CWii, Cailil, Calmer Waters, Caltas, Canadian-Bacon, Capricorn42, CardinalDan, Cculber007, Cdc, Cerejota, Cfsenel, Chris the speller, ChrisHodgesUK, Chrisj1948, Ckatz, Clayoquot, Cleared as filed, Cloudcall, Cloviz, Coalition4change, Cobaltbluetony, Colenso, Colonies Chris, Cometstyles, Conversion script, Coroebus, Craig.P, Crashoz, Crunkdawg, Ctjf83, Cubs Fan, Cybercoderfront, D6, DARTH SIDIOUS 2, DMCer, DRTllbrg, Daf, Daniel, Daniel19924, Daniel5127, Dargen, Daven200520, David Gerard, Daviedoodle, DawsonB, Daydreamforever, Dbachmann, Dc233709, Dcrumrin, DeadEyeArrow, Deavenger, December21st2012Freak, Delldot, DerHexer, Desiphral, Dethme0w, Dethomas, Dicknyabooty, Diddims, Difu Wu, Dingdongme, Discospinster, DividedByNegativeZero, Dmerrill, Dolfrog, Dolovis, Don4of4, Dr.enh, Dr.frog, Drahcir, Dreadstar, Drumnbach, Duki50, Dungodung, Durova, EYOB, EagleFan, Ed Poor, EdH, Eddie.willers, Edgar181, Edhabib, El C, Elaragirl, Eleland, Elenseel, Eleuther, Elipongo, Elockid, Epbr123, Eric-Wester, ErisDiscord, Escape Orbit, Eu.stefan, Evalowyn, Everyking, Ewawer, Excirial, FF2010, Falconleaf, Famspear, Faradayplank, Favonian, FellowWikipedian, Fieldday-sunday, FisherQueen, Flammifer, Floradanica2002, Flyguy649, Fontefrancesco, ForbiddenWord, Fourdee, Francs2000, Fratrep, Freechild, Frédérick Lacasse, Fæ, GDonato, 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Yworo, ZachPruckowski, Zalgo, Zerimar117, Zgolfer, Zikar, Zoicon5, Zollerriia, 1348 anonymous edits Equal justice under law  Source: http://en.wikipedia.org/w/index.php?oldid=446976260  Contributors: Akerans, Anythingyouwant, Bluszczokrzew, CapitalR, Charles Matthews, Eatonbick, Hmains, JPMcGrath, Kesal, Neutrality, Nicolaennio, RekishiEJ, Rillian, Savidan, UpstateNYer, Wavelength, Wl219, 13 anonymous edits Rule of law  Source: http://en.wikipedia.org/w/index.php?oldid=465120615  Contributors: 1diot, 21655, ABCXYZ, Abfackeln, Agonzalezb, Ajbp, Alessandriana, Alex756, Ancheta Wis, Andre Engels, AndrewKemendo, Andrewhorning, Anomalocaris, Anythingyouwant, Baruchim, Beland, Bigbadbobned, Bigsprinta, Binarybits, Biruitorul, BlueGroup, Bobo192, Bouldergeist, Brianga, Brizvegite, Bryan Derksen, Butwhatdoiknow, Bvanderveen, Calton, Cantus, Careless hx, Cesay, Chensiyuan, Childhoodsend, Chris814, Chrisminter, Computor, Coolcaesar, Cretog8, Cubanmissile, Cutler, D. 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Koavf, Kozuch, Lostintherush, Manchurian candidate, Manoj C Menon, Manshuv, Michaelas10, Mirage5000, Neutrality, PhilKnight, Piano non troppo, Pigman, Praveen Dalal, Pravinvnslic, RDBrown, RTC, Rama's Arrow, Random832, Razorflame, Reliableforever, Rjwilmsi, Rpal, Rror, Ruslik0, Ryan rm, Seresin, Shadowjams, Shimgray, Shreshth91, Siddhant, Spacemanbiff, Stwalkerster, Sumanch, Sundar, Suri 100, Sushant.gupta.gupta, SwampyQ2, Tabletop, Thiseye, Tony1, 266 Article Sources and Contributors Toussaint, Troyeebarua, Ukexpat, Vigneshwaran2007, VishalB, Wingman4l7, Woohookitty, Zvar, सुभाष राऊत, 175 anonymous edits National Human Rights Commission of India  Source: http://en.wikipedia.org/w/index.php?oldid=460620561  Contributors: AbhisheksinghWIKI, Aille, Astromanity, Bmanisk, Bmicomp, Bpselvam, Brocach, Canistabbats, Curiouslycalm, Dwaipayanc, Ekabhishek, Fabrictramp, Fairview2008, Franchesca786, Fuseau, HLindholt, Hadez47, Hemanshu, Hypnosadist, Jay, John of Reading, Jovianeye, Leolaursen, 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Marokwitz, Melvynadam, Okedem, Rich Farmbrough, Shilonite, 7 anonymous edits Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000  Source: http://en.wikipedia.org/w/index.php?oldid=393258166  Contributors: Auntof6, Good Olfactory, Igorb2008, Scarykitty, Ynhockey, 2 anonymous edits Sex Discrimination Act 1984  Source: http://en.wikipedia.org/w/index.php?oldid=384331066  Contributors: Dethroned Buoy, Ewawer, Fuseau, Gfoley4, 3 anonymous edits Racial and Religious Tolerance Act 2001  Source: http://en.wikipedia.org/w/index.php?oldid=462244005  Contributors: Barrylb, Bless sins, Dbachmann, Dethroned Buoy, Dl2000, Eagleswings, Guy M, Iacobus, Jacklee, Jonbender, Lightmouse, Mitch Ames, Nyenten, PDH, Prester John, Rebecca, Recurring dreams, Rjwilmsi, Servatai, Shyamsunder, Silverhorse, StAnselm, Tim!, Wayne Miller, 15 anonymous edits Australian Human Rights Commission  Source: 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That-Vela-Fella, Tony Sidaway, Toussaint, Zed088, 3 anonymous edits Chapter 2 of the Constitution of South Africa  Source: http://en.wikipedia.org/w/index.php?oldid=458485052  Contributors: Addihockey10, CanadianCaesar, Deodar, Edward, Excirial, Fuseau, Gregorydavid, Htonl, IkonicDeath, Johann375, John of Reading, LeaveSleaves, Lordmanwe, Majestic t, Mandarax, RHaworth, Rjwilmsi, SasiSasi, Sesel, Silverhorse, Simprolaw, Sky Attacker, Stifle, TDS, 48 anonymous edits Black Economic Empowerment  Source: http://en.wikipedia.org/w/index.php?oldid=460771914  Contributors: 2005, 3fred3, Adriaan, Alan Liefting, AndreasJS, Angel4everyoung, BEESupporter, Betaran, Billwallace, DanMS, Dewet, Diamondportal, DiscipleOfKnowledge, Duncanbrown1982, Ettrig, FranklinvD, G.A.S, Gaius Cornelius, Goodlucca, Gurch, Htonl, Icairns, JFine, Jaq316, Joel7687, Joziboy, Kaihsu, Lohan2, Lquilter, Macnos, Mgllama, Mywiki10100, Park3r, Part Time Security, Pearle, Pears apples blue waters, Pegship, PeregrineAY, 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Mayooranathan, Michael Hardy, Mike Rosoft, Mrsfisherrocks, Mxn, Nakon, Nazanin9, Neutrality, Nicmila, NorthernThunder, Nova77, Orange Suede Sofa, Pexise, Plasticup, Quadparty, Raggz, Rhobite, Rich Farmbrough, Rjwilmsi, Ro35dy34, Rober-houdin, SMargan, Sardanaphalus, SasiSasi, Sesmith, Shadowjams, Siddhant, Source001, SpikeToronto, Stalik, Sylvank, Tayl1257, Terence7, That-Vela-Fella, Themightyquill, Theodoranian, Threedots, Tibetibet, Tim!, TonyW, Torad, Trananh1980, UW, Ultramarine, WACourson, Wtmitchell, Zodon, ゴーヤーズ, 165 anonymous edits Convention on the Elimination of All Forms of Racial Discrimination  Source: http://en.wikipedia.org/w/index.php?oldid=461224361  Contributors: Altenmann, Andrew Gwilliam, AndrewWatt, Arthur Rubin, Bender235, Bertsnert, Bolivian Unicyclist, Brocach, Bucoli, Caerwine, Closedmouth, Dana boomer, Flewis, Fuseau, Good Olfactory, Hamiltonstone, IdiotSavant, Jeff79, Jmabel, Johannes Rohr, Kaliz, LeContexte, Legislana, Marek69, Midnighttonight, Mild Bill Hiccup, Mushii, Myanw, Nick Number, Nirmos, Plasticup, Pruneau, Rjwilmsi, Sardanaphalus, Sgt Pinback, Simetrical, Soxin6, SpecMode, Spinach charm, That-Vela-Fella, Tibetibet, Tim!, Todeswalzer, UW, Uncle G, Vice regent, Wizardman, Yone Fernandes, Zariane, Zingi, Zodon, Zouhair, 24 anonymous edits Convention on the Elimination of All Forms of Discrimination Against Women  Source: http://en.wikipedia.org/w/index.php?oldid=461120840  Contributors: ADM, Alaniaris, Allstar86, Andres, AndrewWatt, Andrwsc, Auranor, Blarneytherinosaur, Bolivian Unicyclist, Bucoli, Calibanu, Cestdrey, ChantillyToyota, Correogsk, Crimsonclover88, Dakinijones, Darlene Williams, Dev1n, Dzskat, Ethicsinpractice, Ewawer, Fixthiserror, Fram, Fuseau, Gidonb, Glitterglue, Gonzonoir, Good Olfactory, Hajor, Hammersoft, Harel, Hjb26, IdiotSavant, JASpencer, Jakes18, Jmabel, Joshua Issac, Jpylam, Kant66, Karel Anthonissen, KazakhPol, Ken Arromdee, Koavf, LilyKitty, Martlayton, Missionary, NERIUM, NawlinWiki, Nikthestoned, 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Burton, Phyesalis, Q11, R'n'B, Reneekg, SUASS, Sardanaphalus, Satiksme, SenorAnderson, Sesel, Simetrical, Soosim, SusanLesch, Svick, Tarikur, TelusFielder, That-Vela-Fella, Tibetibet, Tide rolls, Tim!, Tototom, Toussaint, Triquetra, UW, Viking59, WIKIEDITSupervisors, YURiN, Yamara, Zingi, Zodon, АлександрВв, ‫ 46 ,ﻫﻤﺎﻥ‬anonymous edits Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women  Source: http://en.wikipedia.org/w/index.php?oldid=463645009  Contributors: ADM, Aille, Amire80, Bender235, Darlene Williams, Good Olfactory, Hamiltonstone, IdiotSavant, J04n, Jztinfinity, Koavf, Michael Devore, Sstoffel, That-Vela-Fella, Toussaint, Wasted Time R, 3 anonymous edits United Nations Security Council Resolution 1325  Source: http://en.wikipedia.org/w/index.php?oldid=453897314  Contributors: Bolivian Unicyclist, Caerwine, Crink, Dravecky, Eumolpo, Fisherjs, Greenhas, GregorB, Klpm85, LilyKitty, Mariadelcarmenpatricia, Midway, Ozzykhan, SarahL, SebastianHelm, SimonP, Skier Dude, Woohookitty, Wps nyc, 11 anonymous edits Yogyakarta Principles  Source: http://en.wikipedia.org/w/index.php?oldid=465297310  Contributors: ADM, Arexcairo, Arjayay, Arsonal, BD2412, Belovedfreak, Benjiboi, Bicycle bell, BonifaciusVIII, Brocach, Cowpoke49, Cybercobra, Derekbd, Ecelan, FT2, Furkhaocean, Fuseau, Gaia Octavia Agrippa, Haymaker, Iohannes Animosus, JimVC3, Jncraton, Kevinkor2, LilHelpa, LilyKitty, Maksym Kozub, MishMich, Muhandes, Nick Number, Noergler, Nono64, Parksandrecreation, Penbat, Pigman, Poweron, R'n'B, RandomLurker, Reaper Eternal, Stephan Schulz, Toussaint, VC29, Vis-a-visconti, Woohookitty, Zenswashbuckler, 24 anonymous edits Convention on the Rights of Persons with Disabilities  Source: http://en.wikipedia.org/w/index.php?oldid=465662665  Contributors: ALJIntern, Abyssadventurer, Allstar86, Bodnotbod, Brocach, Correogsk, Cyberpower678, DPINAC, Dodger67, EverSince, Fuseau, Good Olfactory, IdiotSavant, JAH2435, Jesanj, L.tak, LilyKitty, Mandarax, Mild Bill Hiccup, Neutrality, PartTimeGnome, PrimeHunter, Quinacrine, Rich Farmbrough, Sardanaphalus, SasiSasi, Trananh1980, Wavelength, Woohookitty, Zodon, 24 anonymous edits 267 Image Sources, Licenses and Contributors 268 Image Sources, Licenses and Contributors Image:Segregation 1938b.jpg  Source: http://en.wikipedia.org/w/index.php?title=File:Segregation_1938b.jpg  License: Public Domain  Contributors: John Vachon for U.S. Farm Security Administration Image:DurbanSign1989.jpg  Source: http://en.wikipedia.org/w/index.php?title=File:DurbanSign1989.jpg  License: GNU Free Documentation License  Contributors: w:User:GuinnogGuinnog File:Uganda Anti-Homosexuality Bill protest.jpg  Source: http://en.wikipedia.org/w/index.php?title=File:Uganda_Anti-Homosexuality_Bill_protest.jpg  License: Creative Commons Attribution-Sharealike 2.0  Contributors: riekhavoc File:Protesto contra o sistema de cotas.jpg  Source: 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Fjodor, Fry1989, Homo lupus, Hydrargyrum, Idh0854, KAVEBEAR, Kalathalan, Manuelt15, Mattes, Nagy, Nightstallion, Serinde, Svgalbertian, Telim tor, Vonvon, Yaddah, Zscout370, 17 anonymous edits File:Flag of Idaho.svg  Source: http://en.wikipedia.org/w/index.php?title=File:Flag_of_Idaho.svg  License: Public domain  Contributors: Awg1010, Denelson83, Dzordzm, Fry1989, Homo lupus, Mmaxx, Robbiegiles, Serinde, Smooth O, Svgalbertian, 2 anonymous edits Image Sources, Licenses and Contributors File:Flag of Illinois.svg  Source: http://en.wikipedia.org/w/index.php?title=File:Flag_of_Illinois.svg  License: Public domain  Contributors: Awg1010, Denelson83, Dual Freq, Dzordzm, Fry1989, Homo lupus, Hydrargyrum, Kranar drogin, Mattes, Permjak, Smooth O, Svgalbertian, TheCatalyst31, 6 anonymous edits File:Flag of Indiana.svg  Source: http://en.wikipedia.org/w/index.php?title=File:Flag_of_Indiana.svg  License: Public Domain  Contributors: User:Denelson83 File:Flag of Iowa.svg  Source: http://en.wikipedia.org/w/index.php?title=File:Flag_of_Iowa.svg  License: Public domain  Contributors: Awg1010, Denelson83, Dzordzm, Fry1989, Homo lupus, Hydrargyrum, Mattes, Mnmazur, Serinde, Smooth O, Svgalbertian, 2 anonymous edits File:Flag of Kansas.svg  Source: http://en.wikipedia.org/w/index.php?title=File:Flag_of_Kansas.svg  License: Public domain  Contributors: AnonMoos, Denelson83, Dzordzm, Fry1989, Homo lupus, Mattes, Serinde, Smooth O, Svgalbertian, Zscout370, 2 anonymous edits File:Flag of Kentucky.svg  Source: http://en.wikipedia.org/w/index.php?title=File:Flag_of_Kentucky.svg  License: Public Domain  Contributors: Commonwealth of Kentucky File:Flag of Louisiana.svg  Source: http://en.wikipedia.org/w/index.php?title=File:Flag_of_Louisiana.svg  License: Public Domain  Contributors: User:.... 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