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The Citizenship Case

The Attorney General of The Republic of Botswana


Unity Dow



Court Documents, Judgements' Cases and Materials

Compiled and edited by Unity Dow

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[Page 190]


Puckrin, Judge of Appeal


I have read the judgements of the other members of this Court and it is with sincere regret that I am unable to concur with the conclusions reached by my learned brothers constituting the majority of the Court. My regret stems, first, from the fact that I do not lightly disagree with the views of judges with such. experience and erudition in this field and it is my earnest hope that my view will not be considered unduly contumacious, and, second, because I have great , personal sympathy for the aspirations of the Respondent in this case, being Unity Dow. However, I do not perceive that it is my duty as a Judge of this Court to impose my personal convictions upon an interpretation of the Constitution, for to do so, in my respectful view, permits this Court to become the.: overlord of the Constitution rather than its guardian. I agree entirely with the rationes and conclusion reached by my Brother Schreiner J.A., and in order W avoid prolixity I shall not repeat in this judgement anything stated by him. I do, however, wish to deal briefly with certain philosophical questions relating to the interpretation of constitutions.


It is correct that Government, the Court and citizens should pay obeisance to the Constitution of the land. In order to emphasize the importance of a written Constitution authors are wont to describe it in lofty, indeed often anthropomorphic language. But. the truth of the matter is mundane; a Constitution consists of a piece of paper with cyphers inscribed thereon. It is the thought and; will of men who breathe life into the inanimate body of a Constitution. First, Parliament enacts laws in terms of the Constitution, second, the Courts are



enjoined to interpret those laws and, (as in the present case) the Constitution, and third, the citizens of the land have to obey, and act in accordance with, such laws, but are entitled to rely on the protection afforded them by the Constitution. It is this complicated interaction between various branches of Government and the citizens of the land which render a Constitution the majestic thing of which much is spoken.


I turn now to deal with the manner in which the Courts fulfil a role in upholding a written Constitution. A Constitution, like any other statutory enactment, has to be interpreted. It is often said that it is the function of the Court to interpret the law, not to make it. This somewhat pithy statement requires considerable qualification. As pointed out by Gray in Nature and Sources of Law, 2nd edition at pp.170-171:


"Statutes do not interpret themselves; their meaning is declared by the Courts, and it is within the meaning declared by the Courts, and no other meaning, that they are imposed on the community as law... A statute is the express will of the legislative organ of the society; but until the dealers in psychic forces succeed in making full transference a working controllable force... the will of the legislature has to be expressed by words, spoken or written; that is by causing sounds to be made or by causing black marks to be made on white paper."


In a sense therefore, all law is judge-made law and the shape in which the Constitution or statute is imposed on a community as a guide to conduct is that statute or Constitution as interpreted by the Courts. The Courts thus put life into the dead words of a statute or Constitution. But this by no means implies that the Courts have a wide and unfettered discretion to interpret either Constitutions or statutes. The power of the courts to interpret Constitutions and statutes is circumscribed by various rules of interpretation, some less well defined than others. But the first among all rules must surely be that where the language used in a Constitution is unambiguous and clear the Courts may not deviate therefrom. Indeed, so much is clearly implied in the dictum of Kentridge J.A. in his judgement in this Court in Attorney General vs. Moagi (1981) B.L.R. 1 at p.32, where he stated the following:


"A Constitution such as the Constitution of Botswana, embodying fundamental rights, should as far as its language permits be given a broad construction. Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them so as to bring them in line with the common law." (my underlining)


Thus if the language of a Constitution permits of only one interpretation, then it is that interpretation which must he upheld by the Courts. Of course, this approach may sometimes be simplistic because language by its very nature is often, at best, an imprecise tool and there are few words or phrases (at any rate in the English language) which do not permit of some nuance. How then are Courts to approach the interpretation of a Constitution where some nuance is present in a phrase or word? There are at least three schools of thought on the subject which have been lucidly identified by Madame Justice Bertha Wilson of the Supreme Court of Canada, in a paper presented at a seminar at the University of Edinburgh, May 1988 on "Constitutional Protection of Human



Rights - the Canadian Experience since 1982". I adumbrate the schools hereunder:


1. The "Framer's Intent" School Of Interpretation:


An influential school of American scholars believes that the Constitution should be interpreted according to the intent of those who framed it. Adherents to this school hold that for a Constitutional enterprise to be legitimate answers to Constitutional problems must come from the text of the Constitution itself. Concomitantly, contemporary mores are irrelevant to the exercise and the only relevant values are those held by the framers at the time that the Constitution was created.


Whilst the "Framer's Intent" principle may be extremely relevant in the interpretation of ordinary statutes, its applicability to the construction of a Constitution has all but been debunked in those jurisdictions which share in common with Botswana a written Constitution. Perhaps the most serious criticism of the principle is that a group of draughtsmen, perhaps long since deceased, should be allowed to constrain the progressive development of any nation. The American experience provides an extreme example, for to apply the "Framer's Intent" principle would forever place American governmental thought into an 18th century straight jacket. This is precisely what the Court sought to achieve in the infamous case of Dred Scott vs. Sanford 19 How. 393 (1857).


In this case the Court was asked to determine whether blacks were American citizens within the meaning of the Constitution. Chief Justice Taney concluded:


"The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and not intended to be included under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race."


Dred Scott, supra p.404-405.


There seems to me little doubt that the sentiment expresses by Holmes, J.A. in Missouri vs. Holland 252 US 416 (1920) to the effect that "...the case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago" is correct. In my view, therefore, the "Framer's Intent" is not the correct approach to be adopted in interpreting the Constitution of Botswana.


Indeed, this Court has recognised this expressly in the judgement of Aguda J.A. in Petrus and Another vs. The State (1984) B.L.R. 14 as follows:


... [The Constitution] ...is a written, organic instrument meant not to serve not only the present generation, but also several generations yet unborn... but the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended



work and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve..."


2. The "Living Tree" Metaphor


The metaphor was first used by Lord Sankey in the case Edwards vs. The Attorney General of Canada (1930) A.C. 124 (P.C.). The point to be decided in the case was whether women were "persons" and eligible as such to be appointed to the Canadian Senate. The Supreme Court of Canada concluded that women were not "persons" within the meaning of the Canadian Constitution. An appeal to the Privy Counsel was upheld, the Council concluding that women were indeed "persons". Lord Sankey in his speech referred to the Canadian Constitution as "a living tree capable of growth and expansion within its natural limits."


Ibid. p.136.


Madame Justice Bertha Wilson op. cit. states the following:


"The Living Tree metaphor is not without its critics. It provides, it is said by some, a cloak for the crudest and least warranted judicial activism. Even the most modest of trees, it is pointed out, occasionally needs pruning. Besides, how does one know at what point the Constitution ceases to be a living tree and becomes a noxious weed choking off legitimate governmental goals? Thus, if the American Framer's Intent approach risks being over conservative, the Canadian Living Tree approach is open to the converse charge of being overly liberal and anti-democratic. As Canadian Judges, we are appointed and not elected officials. There would be something deeply illegitimate about our forays into judicial review of legislation if all there was to them was a desire to substitute our own personal values for those of our duly elected representatives. We cannot placidly assume that by some mysterious process we, the Judges, have been given access to the true answers to fundamental, social and political dilemmas... There is, therefore, no plausible justification for us to substitute our personal values and our moral choices for those of the elected legislature. The metaphor of the Living Tree is a harmless one so long as it is used merely to suggest that a Constitution must adapt and grow to meet modern realities. It could, however, become dangerous and anti-democratic if it were used to justify the shaping of the Constitution according to the personal values of individual judges."


I would heartily endorse the views expressed above by Madame Justice Bertha Wilson. If I may be permitted some poetic licence in regard to the "Living Tree" metaphor; the nutrients for the living tree must perforce derive from the democratic process and not from judicial conviction, and I do not consider myself either competent or qualified to superimpose my own personal convictions upon the Constitution and hence the people of Botswana.



3. Purposive Interpretation


In recent years the House of Lords, (and particularly Lord Diplock) has emphasized the necessity of a "purposive construction" in relation to the written word. Thus a purposive construction has been applied in Constitutional cases, The Law of Contract and even the Law of Intellectual Property.


Attorney General of the Gambia vs. Momodou Jobe (1984) 3 WLR 174 p.183.


Soeiete United Docks vs. Government of Mauritius (1985) LRC (fonts) 801 at p.844.


Catnic Components Ltd. vs. Hill & Smith Ltd. (1982) R.I.C. 183 (HL).


Once again, I quote from Madame Justice Bertha Wilson, op. cit.:


"Thus Constitutional interpretation should be purposive. Rights should be interpreted in accordance with the general purpose of having rights, namely the protection of individuals and minorities against an overbearing collectivity."


In her judgement in R vs. Morgentaler (1988) I S.C.R. 30 the same Judge expresses herself as follows:


"The [Canadian Charter] is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the State will not be allowed to trespass. The role of the Courts is to map out, piece by piece, the parameters of the fence."


This approach to construction accordingly allows a Judge to combine a purposive with a contextual approach in order to determine the ambit and extent of any individual freedom or right under debate.


In my view a purposive construction of a Constitution is the correct means of interpretation. It provides a court with a metewand whereby the excesses of personal conviction may be kept in check. At each juncture in the exercise of construction a Judge should ask himself the question "within the context of this Constitution and taking into account the societal values, what is the purpose of the right sought to be protected?" The question is not therefore one of what the framers of the Constitution may have had in mind as at the date of its drafting, nor of what individual Judges believe the protection afforded under the Constitution should be.


In my view, therefore, and applying a purposive construction to the Constitution and attempting to "map out piece by piece the parameters of the fence", I am of the view that the Constitution, and particularly s.15 thereof, does not preclude the legislature from enacting a statute which provides that citizen-



ship shall pass in a patrilineal but not matrilineal fashion. In my view, for the reasons set out jn my Brother Schreiner J.A.'s judgement, the provisions of s.15 of the Constitution are clear and it is not necessary to invoke such extraneous aids to interpretation as Botswana's international obligations under various conventions and the like. I should emphasize that the opinion of the Chief Justice of Pakistan quoted by my learned Brother Aguda J.A. in his judgement herein, emphasizes that "in the event of doubt" the national law is to be interpreted in accordance with a State's international obligations. Where there is no such doubt there is no room for an invocation of statements flowing from international conventions and the like. It is, in my respectful view, a dangerous precedent to allow a court free reference to international declarations where no "doubt exists" (i.e. where the Constitution sought to be interpreted is unambiguous) for this would ultimately lead to an abandonment of sovereignty which would be wholly at variance with the entire purpose of the Constitution of Botswana.


Accordingly, I would allow the Appeal.




Section III


Annotated Bibliography




Table of Cases Cited



1. Annotated Bibliography of Selected Cases


Abdulaziz, Cabales and Balkandali v. The United Kingdom


ECHR 1985


The European Court of Human Rights


(Discrimination on the Basis of Sex and Race, and Degrading Treatment)


This case brought before the ECHR questions the validity of certain immigration rules in the U.K. in light of the European Convention on Human Rights. The applicants, Mrs. Abdulaziz, Mrs. Cabates and Mrs. Balkandali were lawfully and permanently settled in the United Kingdom. In accordance with the immigration rules in force at the relevant time, particularly regulations introduced in the "Statement of Changes in Immigration Rules" (HC 394) 1980 (hereafter referred to as the 1980 Rules), Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali were refused permission to remain with or join their wives in the United Kingdom as their husbands. The applicants charged that, by reason of this denial, they had been victims of a practice of discrimination on the grounds of sex, race, and also, in the case of Mrs. Balkandali, birth, in violation of Article 3 of the Convention and of Article 8, taken alone or in conjunction with Article 14. They further alleged that, contrary to Article 13, no effective domestic remedy existed for the aforementioned claims.


The 1980 Rules set out restrictions on persons seeking to join a spouse or intended spouse settled in the United Kingdom. The restrictions differ for persons considered "patrials" and "non-patrials", a status affected by facts such as place of origin (Colony or Protectorate), claim/ties to the Commonwealth (birth, parent's birth), and material laws in effect at time of attempted immigration. Moreover, the 1980 Rules present different, and the Applicants contend more stringent, restrictions on the husbands or fiances attempting to join spouses/intended spouses than on wives/fiancees. Under the 1980 Immigration Rules it is easier for a man settled in the U.K. than for a woman so settled to obtain permission for a non-national spouse to enter or remain in the country, thus the aforementioned discrimination. The British Government's main argument was that the legislation had as its legitimate intent the protection of a fragile domestic labour market at a time of high unemployment. The Court, however, found the prospective difference in impact on the labour market between male and female immigrants insufficient to justify discriminatory treatment on the basis of sex. The Court found the Rules in violation of Article 14 of the Convention.


As to the charges of discrimination on the grounds of race and birth, the Court found no violation by the 1980 rules. The Rules made no distinction on the ground of race, despite the probability of the restrictions having a disproportionately high impact on ethnic minorities due to their "preponderance" amongst would-be immigrants. The Rules did make a distinction between those born or having parents born in the United Kingdom and those who acquired their citizenship through other conditions. The Court, however, found that this distinction had a legitimate aim and did not "transgress the principle of proportionality". In terms of the alleged violation of Article 3 of the Convention, the



Court found that the difference of treatment the Applicants had been subjected to was not "degrading" in that it did not show, and was not designed to denote, contempt or lack of respect.


John Joseph Akar v. Attorney General of Sierra Leone PCA 20/69


Judicial Committee of the Privy Council


(Citizenship Rights and Constitutional Construction)


This case questions the constitutionality of certain amendments to the citizenship law of Sierra Leone. The Appellant (John Joseph Akar) brought the suit to the Supreme Court contending that the amendments to Section (I) of the Constitution by Act No. 12 of 1962 and Act No. 52 of 1965 are ultra vires the Constitution. On the 27th April, 1961, the Appellant became a citizen of Sierra Leone at the adoption of the Constitution Section 1 (1) of which states "Every person, who, having been born in the former Colony or Protectorate of Sierra Leone, was on the 27th day of April, 1961, a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Sierra Leone on the 27th day of April, 1961." The facts provide that the Appellant clearly falls within the conditions set for citizenship in the adopted version of the Constitution. Act No. 12 of 1962, Section 3 amended this subsection to read "Every person of negro African descent..." and defined the added terms to mean one whose father and whose father's father are or were negroes of African origin. Without question, this barred the Appellant from status as a citizen save for terms provided for by a second provision in Act No. 12, Section 4 which sets out a procedure of application for those who would but for Section 3 have been a citizen. The application does not guarantee citizenship and, if granted, does so with several limitations, including a 25 year residence requirement after application before being eligible for House of Representatives, District Council or local authority. The Appellant contended hat the said Amendments were a clear violation of Section 23 of the Constitution, subsections (I) (2) and (3) which provide:


(1)...no law shall make any provision which is discriminatory either of itself or in its effect.


(2)...no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or public authority.


(3) In this section, the expression `discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin political opinions, colour or creed...


The Supreme Court held the said Amendments as ultra vires the Constitution, declaring them null and void. The Court of Appeal reversed the decision, finding conditions set on citizenship in keeping with Subsection (4) (f) which allows discrimination by laws in so far as they are "reasonably justifiable in a democratic society".



The Privy Council in the case cited, reversed the decision made by the Court of Appeal and confirmed, in part, the decision rendered in the High Court, though by very different reasoning. The majority of the Privy Council found the purported amendments to Section 1 of the Constitution void as being in violation of Section 23 which prohibits the enactment of legislation which is discriminatory on the grounds of race.


The Privy Council held that Subsection (I) is "direct and prohibitive... that no law shall make any provision which is discriminatory." Further, the Council found it beyond dispute that the addition of the word "negro" involved a description by race. According to the Amendment, different people would be afforded different treatment attributable wholly to their inclusion in the description "negro". This the Council found unchallengeable. The question then remained as to whether the Amendments fell under the type of legislation which was allowed exception by Subsection (4)(f) by reason of it being " justifiable in a democratic society." The Council could found no reasonable grounds or "special circumstances" why persons allowed citizenship under the carefully construed Constitution as adopted should be excluded by subsequent legislation.


Arderne Scott Thesen Ltd. v. Cape Provincial Administration 1937 AD 452.


South African Appellate Division.


(The ultra vires Doctrine and the Effect of Invalidation of a Portion of an Act of Parliament)


The Appellants in this case charged before the Cape Provincial Division that Ordinance 3 of 1937 was ultra vires the Constitution in that the importer's licence it imposed was in fact indirect taxation. The Court a quo had found that the section of the Ordinance which imposed a licence for goods imported for "purposes other than for sale within the Province" was in conflict with the Constitution, but the portion of the Ordinance which required a licence to import goods for sale within the Cape Province was not. In this case the decision was that the court a quo had erred in finding that the valid and invalid portions of the Ordinance were separable.


The case brought before the Cape Provincial Division had involved Complicated constructional issues surrounding the powers of taxation. In the cross appeal, the question became more an academic one, focussing on the validity of a piece of legislation if one part of it is found to be ultra vires the Constitution. The Court majority, led by Curlew is, C.J., held that, in accordance with the Court's duty to maintain a Statute if possible, rather than destroy it, the remaining portion of Ordinance 37 was valid with the necessary eliminations. Stratford, J.A. in his dissent, pointed out that this Court (and many others) had several times affirmed a certain test to be applied in questions of this kind According to this test. if after deleting that portion of the enactment held to be invalid, it can reasonably be assumed that the remainder would have been passed by the legislating body, had it "correctly appreciated its powers", then the amended remainder can be declared a valid enactment. This still left the



Court to deal largely in the hypothetical, but with the consistency and guide of a tried test. Stratford found the whole of the Ordinance in question, after the extraction of the incompetent provisions and application of the stated test, to be invalid


Attorney General v. Moagi 1982 BLR.l


Court of Appeal, Botswana.


(Constitutional Construction)


The respondent in this case was accused of stealing cash which came into his possession thorough his position as a District Agriculture Officer, in the Public Service. When called to testify, the accused replied that he preferred to remain silent and that he had no witnesses to call. All rights and privileges had been explained to the accused, and he chose to exercise his right under Section 10 (7) of the Constitution which provides that "no person who is tried for a criminal offence shall be compelled to give evidence at his trial." Despite his plea of not guilty, he was convicted in the Magistrate's Court on a charge of contravening section 281 as read with section 269 of the Penal Code and sentenced to three years imprisonment. The Magistrate's judgement made it clear that Moagi's failure to testify had a great influence on the determination of his guilt, though there was sufficient evidence on which to convict the Accused without considering this fact. The Accused filed for an appeal to the High Court which itself raised the question whether it was contrary to the constitution to take this fact into account. The Court upheld the appeal on the ground that it was, in fact, contrary to the Appellant's Constitutional right, and having been so, was not affected by the Criminal Procedure and Evidence Proclamation and the High Court Act, which provide that no conviction shall be set aside by an irregularity which did not result in a failure of justice. The Attorney General of the Republic of Botswana applied for leave to appeal and was denied. The Attorney General then applied to the Court of Appeal for leave to appeal and the case in that court was argued as if leave had been granted.


It was held in the Court of Appeal, in the case cited, that the facts of the case in question called for an explanation by the Respondent and thus the Respondent's failure to give testimony might be taken into account but the weight to be given such failure should depend on the circumstances. Further, despite the possibility of a breach of Constitution in taking the fact into account, the provisions of the C.P. & E. Proclamation and the High Court Act nevertheless applied, and that the case against the Respondent was proved without taking into account the Respondent's failure to testify. The Court held that leave to appeal should have been granted by the High Court.


This case addresses a philosophical question of Constitutional construction and the Court's role in its interpretation. Aguda J.A. spoke most directly in answer by stating that the Courts must avoid "extreme legal sophistry" or risk alienating the system of justice in the eyes of the people, and that leaning towards "legalism at the expense of justice" put the judicial system in danger. Finally, to interpret the Constitution to hold that under no circumstances may the Court consider the failure of the Accused to give evidence is to misuse the



rights granted by the constitution to provide for the criminal as opposed to providing protection of the public interest.


The Attorney General for the State of New South Wales v. The Brewery Employees Union of New South Wales 1908 6 CLR


High Court of Australia


(Locus standi and Constitutional Construction)


A registered trade union under the Industrial Arbitration Act, the Brewery Employees Union registered a mark/label in the Register of Worker's Trade Marks under Fart VII of the Commonwealth Trademarks Act 1905. The Attorney General, at the request of several breweries in the State, initiated a suit in the High Court against the Union and the Registrar of Trade Marks, for a declaration that the provisions as to worker's trade marks were invalid, and thus the registration was invalid. Further, the plaintiffs called for an order cancelling the registration and an injunction restraining the Registrar from keeping a register of workers' trade marks. The debate in this case revolved around two issues: the appropriateness (locus standi) of the plaintiffs and the realm of the power of the Commonwealth in respect to trademarks as defined in the Constitution.


It was argued that the Attorney General for New South Wales and the other plaintiffs had no right to sue for the purpose of protecting traders in NSW because the rights infringed by the registration and therefore reservation of a trade mark were general rights, available to all traders. Moreover, a party must establish an existing right, not one dependent for its existence on possible future events. Despite these arguments, the majority opinion, led by Griffith C.J., found the plaintiff companies were "persons aggrieved" by the registration, whose custom would be directly affected by the registration of trade marks, and therefore were proper plaintiffs. The Court held that the power to regulate trade and commerce within a state was reserved for the state itself by Section 107 of the Constitution. In light of this, part VII of the Trade Marks Act 1905 was indeed an attempt to regulate the internal trade of the States and was ultra vires the Constitution. Therefore, Attorney General for the State of NSW was also held as a proper plaintiff, protecting the public interest of his State, and therefore had locus standi to challenge the validity of the Act.


Many questions were taken into consideration surrounding the issue of constitutional construction. The Constitution grants Parliament the power "to make laws with respect to trade marks". This phrase was the subject of much debate. Does this entitle Parliament to enforce trade marks or regulate their registration? Moreover, what constituted a "trade mark" at the time of the Constitution's framing might differ from the contemporary definition of such a mark. The rules of interpretation must necessarily be affected by the fact that it is the Constitution being considered, "a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." The court held that the Constitution needs to act as a broad outline for the governance of many



generations, and so the point was held that the meaning of the terms used in the Constitution must be ascertained b their significance in the 1900s.


Aumeeruddy-Cziffra and Others v. Mauritius 35/1978.


United Nations Human Rights Committee - Selected Decisions Under the Optional Protocol CCPR/C/OP/1. United Nations 1985, p.67.


In 1977, legislation was enacted in Mauritius which changed the rights to residence and citizenship in the country, namely the Immigration (Amendment) Act and the Deportation (Amendment) Act. Twenty Mauritian women initiated the proceedings before the UNHRC, alleging that the said Acts constituted discrimination based on sex against women, violated the right to found a family and home, and effectively removed protection of the courts of law, in breach of Articles 2, 3, 4, 17, 23, 25 and 26 of the International Covenant on Civil and Political Rights. The said Acts changed the status of foreign men married to Mauritian women citizens, denying them previously enjoyed rights of free access to residency and immunity from deportation. The enactment of the laws under the new Acts require the husbands of Mauritian citizens to apply for a residence permit to remain in the country, and in case of refusal of the permit, deny them any possibility of seeking redress before the Court. The said Acts do not affect the foreign wives of citizen men, who retain the right, protected by law, to reside in the country with their Mauritian husbands.


The State did not deny the discriminatory nature of the new legislation but argued that there was no general right, guaranteed by the Covenant, to enter, to reside in and not to be expelled from a particular country. Therefore, the State's obligations, under the Covenant, did not prevent it from setting restrictions upon entry or residence for some individuals and not others. The Applicants, however, focused their argument on the rights guaranteed to them as Mauritian citizens, in that they were infringed by the newly tenuous status of their spouses. Mauritian women who married foreign spouses were discriminated against on the basis of their sex alone, as the legislation did not affect heir Mauritian brothers. On the basis of this discrimination, the Applicants alleged unlawful interference with family life, the right to marry and found family, and the right to participate in the country's political and civil life, in hat the legislation might well have the effect of forcing them to live abroad in order to remain with their husbands. The State party argued that the said effects were based on the assumption of the right to residence, which it had denied, and thus were not legitimate.


The Committee, before delivering a judgement, made a distinction between he different groups of Applicants. It was found that only the three Applicants parried at the time the complaint was lodged were qualified to seek redress, Being directly affected by the alleged discriminatory legislation. The others could not stand as hypothetical victims or, by way of actio popularis, challenge the law for the good of the public interest. For the three Applicant's parried to foreign nationals, however, the Committee found them to have suffered from adverse consequences of the said statutes solely based on their



position as women. This form of discrimination, it was noted, violated both the Mauritius Constitution and the Covenant to which Mauritius was party. Each of the Applicant's, and their respective husbands, was considered to constitute a family within the meaning of the Covenant, and therefore the rights and protections associated with family life were also adversely affected strictly on the basis of sex. As to the charge that the Applicant's had been denied the right to take part in public affairs, the Committee, lacking evidence that such a denial of opportunity had actually occurred, decided not to deliver judgement based on hypothetical side effects. The Committee expressed the view that the State party should adjust the provision of the Immigration and Deportation Acts in order to implement its obligations under the Covenant.


Binga v. Cabinet for South West Africa and Others 1988 111 SA AD 184


South African Appellate Division


(The Ultra vires Doctrine)


In 1980, the State President of South West Africa (now Namibia) extended the conscription to military service in terms of the Defence Act 44 of 1957 to include "non-White inhabitants of the territory". The Appellant, Binga, was called upon to do national service at Walvis Bay. In the Supreme Court of South West Africa, the Appellant charged that Proclamation 198 of 1980 which on appeal, delivered by. Stewart, J. held that the right reversed the to procedural due process extended conscription to "non-Whites", which included himself, applied only in the territory and therefore, did not bind him to service at Walvis Bay. Moreover, the Appellant contended that the said Proclamation, promulgated by the State President in terms of Section 38 (1) of Act 39 of 1968, was outside powers granted the State President by Section 38 (1) and further, was in con- the flirt with Article 4 of the League of Nations Mandate imposed on South Africa in terms of South West Africa. The Supreme Court found that although tact. The Fourteenth Amendment, as held by the Court's decision, can only the Mandate had been incorporated into municipal law, section 38 (1) of the said Act did in fact confer extensive powers of legislation upon the State President without any mention of restrictions as imposed by international obligations. The State President, so empowered by Parliament, had the necessary authority to promulgate the Proclamation and therefore the Act's consistency with the Mandate was not a valid question. The Court of Appeal confirmed this decision.


This case calls into question the construction of Section 38 of the South West Africa Constitution Act 39 of 1968, which grants legislative power to the State President to make laws "for the Territory with a view to the regulation of any matter". This, in effect, gave the State President legislative power as wide as that of Parliament. The decision in the case cited gave a great deal of weight to these words, following the principle that Constitutional provisions for Legislative powers are not to be enlarged by construction and thus, conversely, restrictions not stated should not be implied. The League of Nations Mandate therefore, did not affect or restrict the State President's legislative jurisdiction, including the Proclamation.



The Board of Regents of State Colleges et al. v. David F. Roth 408 US S64


United States Supreme Court


(Right to Due Process)


The Respondent, a university professor, was hired under a one-year contract at a state university. When the contract expired, it was not renewed for the following academic year. In accordance with university rules, the Respondent was given no reason for the decision not to rehire him and no opportunity to challenge the decision. Lacking tenure rights under state law, the Respondent found no means for redress within the state system and therefore brought an action in the U.S. District Court alleging that the decision not to rehire him was based on statements he had made which were critical of the university administration and thus, was in violation of his right to freedom of speech. Further, he charged that failure to give him a reason for his non-retention and in opportunity to defend himself was in violation of his right to procedural due process. The District Court ruled in favour of the respondent on the due process claim only, ordering the university to grant him a hearing which would prresent reasons for his termination and hear his response. The United States Court of Appeals affirmed.


On appeal, the U.S. Supreme Court reversed the decision. The majority decision, delivered by Stewart J., held that the right to procedural due process applies only to the deprivation of interests encompassed within the Fourteenth amendment's protection of liberty and property. The debate focused on the issue of implied or assumed state responsibility to its employees. The Court found that the Respondent was not denied the opportunity to take advantage of other opportunities for employment and that it was only possible to protect rights which had been established either through an express or implied cone invoked to protect rights of liberty and property which are already existent. Thus lacking any contractual guarantee, the Respondent had not shown any such deprivation as charged.


Motshegwa Busang v. The State 1981 BLR C.A.


Court of Appeal, Botswana


(Locus standi)


The Applicant in this case, Motshegwa Busang, sought an order which would declare criminal proceedings before Bamangowato Senior Customary Court null and void. He had been convicted by said Court of a crime for which, he alleged, he had already been tried and acquitted by a subordinate court of tribal authority at Bobonong village. He sought protection under section 10 (5) of the Constitution which provides that no person "who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence..."


The High Court to which he appealed, (Hannah, J. presiding) concentrated on the question of whether the Appellant could, for the first time, raise the matter



of his previous acquittal before a High Court, when he had not done so before the Bamangwato Senior Customary Court. The High Court held that he could not. The matter came before the Court of Appeal and that court determined that Hannah, J. had erred in deciding the matter on the basis that the Appellant had not raised the plea of autrefois acquit to the appropriate Court. Rather, the Court of Appeal centred its judgement on two questions:


Whether the complainant in this case was an aggrieved party for the purposes of the original appeal (to the Bamangwato Tribal Authority);




Whether, in any event, the procedure followed in the Customary Court did not conflict with Section 10 (5) of the Constitution.


It was found that the Complainant did indeed fit the definition of "aggrieved person", entitling him to bring the appeal. It was further held that the Appellant had not been "tried" twice, but rather that the higher Customary Court sat as a Court of Appeal, and therefore, that the conviction held.


In determining the status of the Complainant as an "person aggrieved", Maisels P. took the position that a wide interpretation of those words was appropriate. Maisels P. referred to Lord Denning in Attorney General of the Gambia v. Njie 1961 (2) AER 504 who stated that the definition "should not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."


Abdiel Caban v. Kazim Mohammed and Maria Mohammed 441 US 380


United States Supreme Court


(Discrimination on the Basis of Sex, and the Right of an Unmarried Father to Consent to his Children's Adoption)


This case involves an New York statute which allows an unwed mother, but not an unwed father, the authority to block the adoption of her child by withholding her consent. A New York Surrogate had granted, without the fathers consent, a petition to a natural mother and her husband to adopt her two children. The Appellant, the natural, unwed father of the two children, challenged the constitutionality of the statute, alleging that it denied him equal protection of the law. The Appellant had resided with the children and their mother for several years, was identified as the children's father on their birth certificates, had supported them financially, and maintained constant contact with them even after separating from their mother. The New York Supreme Court, Appellate Division, affirmed the surrogate's grant of the adoption petition, and the New York Court of Appeals similarly affirmed.


On appeal, the U.S. Supreme Court reversed the decision. The reasoning in the judgement, delivered by Powell J. centred around the right to equal protection under the law, as guaranteed by the Fourteenth Amendment. It was



held that the gender distinction made by the statute did not in any way serve a legitimate end. The arguments considered the difference between maternal and paternal relations during the child's development and the legitimate governmental objective of promoting the adoption of illegitimate children, but the Court found that no universal difference justified the prejudicial protection of the law. The Statute, it was held, violated the Fourteenth Amendment.


Cabinet of the Transitional Government for the Territory of South West Africa v. Eins 1988 (3) SA 369 AD


Appellate Division, South Africa


(Locus standi)


This case is an appeal against a decision of the Supreme Court of South West Africa which had found that Section 9 of the Residence of Certain Persons in South West Africa Regulation Act 33 of 1985 (SWA) was unconstitutional and invalid. The said Act gave the Cabinet of the Transitional Government of South West Africa certain powers to prohibit persons from being in the territory or to order removal from the territory. Eins (the respondent in this case) originally initiated the proceedings, charging that the Act was contrary to the Bill of Fundamental Rights contained in annexure 1 to the schedule to the South West Africa Legislative and Executive Authority Establishment Proclamation 8101 of 1985. The decision in the Supreme Court of South West Africa declared that the Act was indeed unconstitutional, and that Eins had locus standi to institute the proceedings because his right to freedom of movement under the Bill of Fundamental Rights was vulnerable to infringement by the Act. The court held that a person need not wait until his rights were actually infringed before he had locus standi to seek the protection of the Court.


On appeal, the court in the case cited reversed the decision, finding that Eins did not have locus standi to bring the application, as he had suffered no direct violation of his rights. The Court held that the appropriate time for addressing the Act's validity could only be when the Cabinet had exercised, or proposed to exercise its powers under the said section. Eins, having no "reasonable grounds" to believe that he was such a person as referred to in Section 9 against whom action by the Cabinet was imminent, was found to he an invalid applicant to challenge the Act.


Craig et al. v. Boren, Governor of Oklahoma, et al. 429 US 190


United States Supreme Court


(Discrimination on the Basis of Sex)


This case challenged the Oklahoma statute which prohibited the sale of' nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18. The Appellants, Craig, a male between the ages of 18 and 21, and Whitener, a licensed vendor of 3.2% beer, charged that the statutory scheme


which made such distinctions on the basis of sex constituted gender-based discrimination, depriving 18 to 20 year-old men the equal protection of the law. The District Court cited Reed v. Reed and several subsequent cases which



established the rule that classification by gender must substantially further important governmental objectives. In deciding this case, the majority of Court a quo came to the conclusion that the Appellee's statistical evidence regarding young males drunk driving arrests and traffic injuries, in comparison to similar statistics for young females, substantiated the claim that the statute furthered the objective of road safety by imposing the discriminatory regulations.


While accepting that the intention of the legislation was legitimate, the Court held, on appeal, that the evidence which supported the differential treatment afforded to males between the ages of 18 and 21 was general and inconclusive. The Court found that, lacking positive assurance that sex was an appropriate indicator for the predisposition to drinking and driving, the statute could not be found to directly serve the achievement of the stated objective. Since only declaratory and injunctive relief was sought, Appellant Craig was dismissed as a viable Appellant because he became 21 after the Court had noted probable jurisdiction. It was held, however, that Whitener had a right to challenge the statutes, which were held as discriminatory against males age 18 to 20 in violation of the Equal Protection Clause.


Dalrymple and Others v. Colonial Treasurer 1910 TS 372


South Africa - Transvaal


(Locus standi)


Dalrymple and others, the Applicants in this case, are residents of the Transvaal and members of the legislative council. As counsellors and as ordinary, tax-paying citizens, they alleged that the Executive Government had committed a breach of statute, spending public funds contrary to the Payment of Members of Parliament Act (12 of 1907). The Parliament of the Transvaal was summoned by proclamation to meet in an extraordinary session, which is defined by Sec. 2 of the said Act as any session of Parliament other than an ordinary session. Parliament convened on the given date, and the House of Assembly resolved that for the purpose of payment, the session would be considered "ordinary" in terms of the Act. The Colonial Treasurer then took the necessary steps under the Audit and Exchequer Act (14 of 1907) to credit the accounts of the accounting officers with payment appropriate for an ordinary, as opposed to extraordinary, session.


Though the question of wrong-doing on the part of the Executive Government was one of little debate, the Court, led by Innes C.J. was first charged with the question of locus standi. The Applicants based their application on their position as taxpayers, having a clear right to see that public funds are used appropriately, similar to the position of a rate payer to a municipality. Though the latter situation has a great number of precedents in Cape law, the Court held that the two situations were not directly analogous. A tax payer could not seek redress for misuse of funds on behalf of the public, popularis actio of Roman Law no longer being viable. The Court held that the Applicant's did not have locus standi to initiate the proceedings, though made no order as to costs.



Director of Education, Transvaal v. McCagie and Others 1918 AD 621


South African Appellate Division


(Locus standi)


The respondents in this case, McCagie and others, applied to the Transvaal Provincial Division for an order inter alia to set aside appoints made by the Director of Education. The appointments, they alleged, were made contrary to the Transvaal Education Act, 1907, which as amended provides that when a vacancy occurs on the teaching staff of a school, the School Board shall recommend to the Director at least two qualified applicants for the vacant post and the Director shall if he chooses to make the appointment, appoint one of such applicants. One of the definitive qualifications for the post of High School Principal, according to the Act, is "university degree, or other evidence of the necessary academic qualifications." In the original application, McCagie and others alleged that the Director appointed two unqualified applicants to fill the vacant positions and that they, as qualified applicants, had locus standi to seek redress from the Court. The Transvaal Provincial Division held that McCagie and others did in fact have locus standi to bring the case and on appeal the court (Innes, C.J. presiding) upheld that decision.


In his judgement, Innes C.J. noted that the popularis actio of the Roman Law is no longer recognized, and that in fact current principle of law is that a private individual can only sue on his/her own behalf, not on behalf of the public. The question then became whether or not McCagie and Others were personally affected, personally prejudiced by the alleged wrongdoing in the Director's appointments. It being admitted that the respondents possess the qualifications required by the Act's regulations, Innes C.J., found that the position of McCagie and Others was direetly affected by the Director's consideration of unqualified applications. McCagie and Other's prospects for successful application were prejudiced by the Director's action, though no personal right was violated, and therefore they had locus standi to seek relief from the Court.


Frontiero et Vir. v. Richardson, Secretary of Defense, et al. 411 US 677, 1973.


United States Supreme Court


(Discrimination on the Basis of Sex, and Husbands as Dependants)


This is the case of a married woman Air Force officer, Sharon Frontiero, who applied for increased benefits for her husband as a "dependent" under statutes which provided military personnel with benefits for family members comparable to those provided by business or industry careers. Such benefits, including increased housing allowances and medical and dental insurance, would have automatically been granted to the wife of a male member of the armed services. The Appellant, however, was denied such benefits on the basis that she failed to demonstrate that her husband was dependant on her for more than one-half his financial support. The Appellants brought the case before the District Court, charging that the statutes made unreasonable distinctions on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. The discrimination, the Appellants, contended, centred around the fact



that a similarly situated male lieutenant would not be burdened with demonstrating his wife's dependency and further, would receive the benefits of a defined "dependent" even if the wife was indeed financially independent. The District Court ruled against the Appellants who appealed against the decision.


On appeal, the Supreme Court reversed the decision, the majority opinion being delivered by Brennan J. The judgement explored the possibility that the distinction furthered an important governmental objective connected to the traditional family unit, but found that the statute's classifications based on sex were unjustifiably discriminatory. The legislation was found to be based on an "archaic and overbroad" generalization that male worker's earnings are more vital to a family's support than a female worker's earnings. Such discrimination was held to be contrary to the Due Process Clause of the Fifth Amendment and directly in violation of the Constitution. It is important to note that the dissenting opinion, delivered by Powell J. concurred in the decision that the statutes deprived service women of due process. The opinion stated, however, that in light of the fact that the Equal Rights Amendment had been submitted to the States for ratification, it was an inappropriate time for the Court to rule on sex as a "suspect classification".


James v. The Commonwealth of Australia (1936) AC 578


Australian Appeal Court


(Constitutional Construction)


This case involves the Dried Fruits Act, 1928-35, and the Dried Fruits (InterState Trade) Regulations, 1934 which either prohibit trade of such goods entirely if there is no licence, or partially prohibit it if a licence is granted. The Appellant, a grower and processor of dried fruits, claimed damages for the seizure by the Commonwealth of his goods and sought redress before the High Court of Australia. James claimed that the restrictions imposed on him by the two said Acts contravened section 92 of the Constitution of the Commonwealth which provides that trade, commerce and intercourse among the States shall be "absolutely free". The Commonwealth argued that the whole of the claim did not show any cause of action, and further, that the said Acts were valid laws of the Commonwealth. The Court found in favour of the Commonwealth and dismissed the action. On appeal, the decision was reversed finding the Dried Fruits Act, 1928-1935 and the Regulations made pursuant thereto contrary to Section 92 of the Constitution, and therefore invalid.


The Court of Appeal, in reversing the decision, relied on an interpretation of "absolutely free", as used in Section 92, to mean "not subject to any limitation or exception". As such, section 92 was found to be the declaration of a guaranteed right, not to be contravened by legislation instituting interference or infringement. The Commonwealth, it was found, was equally bound to uphold the Section of the Constitution as were legislative bodies of the States. The decision left no doubt as to the boundaries of Constitutional rights in Australia, holding that Section 92 applied equally to the States and the Commonwealth, and was not contrary to the exclusive powers granted to the Commonwealth by the Constitution.



Sandra Lovelace v. Canada


UNHRC 1981. Human Rights Committee - Selected Decisions under the Optional Protocol, CCPR/C/OP/1, United Nations 1985, p.83.


(Discrimination on the Basis of Sex, and the Rights of Ethnic Minorities)


The Applicant in this case was born and registered as a "Maliseet Indian" in Canada and, until the time of her marriage to a non-Indian in 1970, enjoyed all the rights and privileges such status granted her under the Indian Act. However, Section 12 (1) (b) provides that an Indian woman who marries a nonIndian man loses her status and rights therein, but does not impose the same disadvantage on an Indian man who marries a non-Indian woman. The Applicant appealed to the Committee for redress, charging that the Act discriminated against her on the grounds of her sex alone and was therefore contrary to Articles 2 (1), 3, 23(1) and (4), 26, and 27 of the Covenant. Further, the Applicant justified her presentation of the case to the Committee by citing decisions in the Supreme Court of Canada which upheld the validity of Section 12 (1) (b).


The State party defended its position, justifying the said legislation on the grounds that some definition of "Indian" had to be imposed in view of the special privileges granted to the Indian communities. Further, the State party argued that the structure of the said Subsection was construed by the traditionally patrilineal nature of the communities themselves, particularly in regards to residence. The Applicant claimed that among the many privileges denied her at the loss of her status under the Act, the most important was the right to residence on the reserve, "the loss of cultural benefits of living in an Indian community." Despite her divorce from the non-Indian man, the Applicant continued to be denied her right to the status.


The Committee, taking into consideration that the date of the Applicant's marriage, and thus loss of Indian status under the Act, was prior to the date of Canadian adoption of the Covenant found itself incompetent to rule on the original event of alleged discrimination. It could, however, consider issues of ongoing discrimination as it believed the original distinction to be irrefutably based on sex alone. Of the ongoing effects, the Committee ruled that denying the Applicant the right to reside on the reservation was in conflict with Article 2? of the Covenant which provides protection for "persons belonging to... ethnic, religious, or linguistic minorities". Further, the Article guarantees the right for aperson of such identity to live in community with other members of their group, participate in their own culture, practice religion and language. The Committee found that the Canadian legislation, in that it deemed the Applicant no longer a "person belonging to..." the Indian community and thereby denied her the legal right to reside on the Tobique Reserve, was in conflict with the Covenant.



McGowan et al. v. State of Maryland HN 23


United States Supreme Court


(Constitutional Construction)


The Appellants in this case were convicted in a Maryland state court of making sales on a Sunday in violation of criminal statutes known as the Maryland Sunday Closing laws. The Appellants, employees of a discount department store, contended that the laws in question were contrary to the equal protection and due process clauses of the Fourteenth Amendment and the Constitutional guarantees of freedom of religion and separation of church and state. The Appellants alleged that the statutes, which provide for numerous exemptions, make classifications and draw distinctions which violate the right to equal protection. Further, they argued that the Sunday Closing laws are so vague as to interfere with the definition of prohibited behaviour, violating due process. Finally, the Appellants contend that the laws respect a specific establishment of religion, prohibiting the free exercise thereof, and are therefore, in violation of their Constitutional rights. The Maryland Court of Appeals affirmed their conviction, as did the Supreme Court of the United States.


The majority opinion, delivered by Warren, C.J., held that the Maryland statute did not violate the equal protection clause. While recognizing the lack of an absolute formula, it was held that the Fourteenth Amendment did in fact permit legislation which differentiated between groups of citizens, the Constitutional guarantee being offended only if the classification rests on grounds "wholly irrelevant to the State's objective." Distinctions between groups of vendors based on their business and between vendors in various counties, did not violate this rule. The Court held further that States had the power to enact legislation which resulted in some inequality so long as the State objective was legitimate. The Court found the Appellants without standing to attack the statutes on the ground that they violated their right to freedom of religion but held that they could contend the violation in terms of the constitutional provision prohibiting laws "respecting an establishment of religion". This charge, however, was found to be invalid in view of the fact that the "purpose and effect of the statutes was not to aid religion but to set aside Sunday as a day of rest and relaxation." This decision confirmed that a statutory discrimination would not be set aside if any statement of facts could reasonably justify the objective of the legislation.


Minister of Home Affairs v. Biekle and Others 1984 (2) SA 439


Zimbabwe Supreme Court


(Constitutional Construction)


In a case brought by the Respondent (Bickle and Others) before the High Court of Zimbabwe, it was contended that the Emergency Powers (Forfeiture of Enemy Property) Regulations SI 925 D of 1981 (Z) were made based on a presumption of powers granted by the Constitution which in fact did not exist. According to the argument made on the respondent's behalf in the Court a quo, the Regulations were given the power of legislation based on a definition of "enemy" which the Constitution could not legitimately bear. The Regulations



and the forfeiture order made under them were invalid by reason of their infringement of Section 1 (8) (b) of the Constitution, their being ultra vires of the Emergency Powers Act under which they were made, and finally the forfeiture order made by the Magistrate thereunder deserved review. The primary question addressed by both the High Court and the Court of Appeal was that of constitutionality, and the interpretation of the Constitution to determine the legitimacy of legislation made under it.


The Emergency Powers Regulations purport to confer upon the State the power to seize the property of any person who is an enemy of the State by reason that he is or has been, acting (a) as the agent of or on behalf, or in the interests of any foreign country... and (b) in a manner which is prejudicial to the public safety of Zimbabwe or which is subversive to Zimbabwe..."


Bickle was the subject of a forfeiture order made by reason of his being an "enemy" of the State as defined by the Regulations. Bickle contended and the High Court held that the Regulations were in conflict with Section 16 (8) (b) in Chapter III of the Zimbabwean Constitution which protects the individual against compulsory acquisition of his property by the State save in certain prescribed circumstances none of which is "property belonging to or used by or on behalf of an enemy". It was found that "enemy" as used in the Constitution meant "enemy of the State, one with whom Zimbabwe is at war...", and that the definition could not be extended as had been done for the purposes of the Regulations.


On appeal, the Regulations were held as null and void, thereby rendering the question of Bickle's vulnerability to the power of the Regulations irrelevant. The Court relied upon adopted canons of interpretation in defining "enemy", citing a necessary balance between giving full import to general terms and not exaggerating the "actual language used."


Minister of Home Affairs and Another v. Collins MacDonald Fisher and Another (1980) AC 318


Judicial Committee of the Privy Council (Constitutional Construction)


This case considers the plight of a Jamaican woman, mother of four children born out of marriage who married a Bermudian in 1972. The mother and the children all under 18, took up residence in Bermuda with the Bermudian citizen in 1975. In 1976, the Minister of Labor and Immigration ordered the children to leave Bermuda because they were not citizens as defined by section 1 I (5)d of the Bermuda Constitution. The said section provides that


"...a person shall be deemed to belong to Bermuda if that person... (d) is under the age of 18 years and is the child, stepchild or child adopted in a manner recognised by law of a person to whom any of the foregoing paragraphs of this subsection applies."


The mother and her husband applied to the Supreme Court for a declaration that the children were to be deemed to belong to Bermuda, and were refused the declaration on the ground that the children were illegitimate, and therefore



not within the definition of the said section. The decision was reversed on appeal brought by the mother and husband, the majority of the Court finding the definition of "children of a person" to include illegitimate children for the purposes of the subsection.


On appeal by the Minister of Home Affairs (formerly of Labor and Immigration) and the Minister of Education, the Court in the case cited affirmed the decision of the Court of Appeal of Bermuda, holding that a constitutional instrument should not necessarily be used in the manner and according to the rules which applied to Acts of Parliament, arid therefore, the same definition of "child" that was used in statutes did not apply. Section 11 (5) (d) was to be interpreted generously, including illegitimate child in the meaning of "child", giving the children in question the status of belonging to Bermuda.


Emphasis was placed in the judgement, delivered by Lord Wilberforce, on the necessity of maintaining the integrity of the words in the Constitution, respecting the language, traditions and usages which gave the words their contemporary meaning. According to Lord Wilberforce, "A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a Court of law..." In interpreting the meaning of the phrase, "child of a person", therefore, the Court must use the language to the furthest extent possible, without offending the character and origin of the instrument, to provide protection for stated rights and freedoms. Section t 1 of the Constitution is one of the sections dealing with fundamental rights and freedoms of the individual, and subsection (5) (d) recognizes the family as a "unit" or "group". In keeping with the protection of individual rights, if the rights of the family unit were to be maintained, "child" must include "illegitimate child" for the purposes of the subsection.


Govindan Sellappah Nayar Kodakan Pillai v. Punchi Banda Mudanayake and Others 1955 AER 833


Judicial Committee of the Privy Council


(Citizenship Rights and Constitutional Construction)


The appellant in this case was an Indian Tamil living in Ceylon (now Sri Lanka) who was born in India of Indian parents. He was denied entry on the register of electors on the grounds that he was not a citizen of Ceylon within the meaning of the Citizenship Act, No. 18 of 1948. The appellant contended that Sections 4 and 5 of the Act which laid down the qualifications necessary for a person born outside Ceylon to become a citizen, as well as the Ceylon (Parliamentary Elections) Order in Council, 1946, Section 4(l) (a), as amended by the Ceylon (Parliamentary Elections) Amendment Act, No. 48 of 1949 which disqualified any non-citizen from entering any register of electors were both ultra vires the Ceylon (Constitution and Independence) Order in Council, 1946. Section 29 (2) (b) of the Ceylon Constitution provides that no law "shall make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable..." The Appellant charged that the construction of the said sections of the Citizenship Act imposed an exceptional disability on the Indian Tamil community in Ceylon. The Court, on appeal, held that the power of the Ceylon legislature



was a "natural and legitimate function... to determine the composition of its nationals...", thereby finding the said Acts intra vires the Constitution.


The matter came before the Judicial Committee of the Privy Council on appeal. The principle of the approach by the Judicial Committee was to determine the "pith and substance, the true character of the legislation challenged". Sections 4 and 5 of the Citizenship Act accord citizenship to persons born in Ceylon if


(a) his father or (b) paternal grandfather and great grandfather were born in Ceylon


and to persons born outside of Ceylon if


(a) his father and paternal grandfather were born in Ceylon or (b) his paternal grandfather and great grandfather were born in Ceylon.


The appellant argued that the conditions impose a particular disability on the Tamil Indian community in Ceylon because of the relatively recent migration of their ancestry to the Island. The effect, and the Appellant charged that the effect was intentional, was to render many Tamil Indians born or resident in Ceylon for extended periods, non-citizens. The Court's judgement was straightforward. Having established that there did indeed exist a process through which Tamil Indians (and other affected immigrants) could apply to provide citizenship rights to their descendants, it was held that the intention of the Legislature was to define citizenship, not to disable any particular community. If legitimate conditions such as standards of literacy, property, birth or residence, disproportionately excluded the immigrant community, that fact might be "directly relevant to the question of their suitability as citizens of Ceylon."


Petrus and Another v. the State CA 34/83


Court of Appeal, Botswana


(Supremacy of the Constitution and Constitutional Construction)


The two accused were convicted by a magistrate of housebreaking and theft. Each was sentenced to three years' imprisonment and to corporal punishment as provided by section 301(3) of the Criminal Procedure and Evidence Act. On review, the High Court reserved for the Court of Appeal the question as to whether section 305(1) of Penal Code made it compulsory for the Court to sentence the two accused to corporal punishment, given the term of three years' imprisonment. On the initial appeal to the High Court, counsel raised the question of whether corporal punishment, as prescribed in section 301(3) of the Criminal Procedure and Evidence Act was constitutional as being in conflict with section 7(1) of the Constitution which provides that "No person shall be subjected to torture or to inhuman or degrading punishment or other treatment." The case was postponed in order to constitute a court of five judges to hear the appeal, and that Court, in the case cited, re-formulated the question as follows: first, whether corporal punishment, as prescribed in section 301(3) of the Criminal Procedure and Evidence Act was ultra vires as being in conflict with section 7 of the Constitution and second, whether the provisions of section 305(1) of the Penal Code with regard to the imposition of corporal punishment were permissive or mandatory.



The Court held that the imposition of corporal punishment, as defined by amendments to the Penal Code and the Criminal Procedure and Evidence Act, was mandatory and not discretionary. It was further held, however, that "repeated and delayed infliction of corporal punishment" as prescribed in section 301(3) of Cap. 08:02 was ultra vires the Constitution and was therefore null and void.


This case presented the supremacy of a written Constitution, in that legislation which is found to be ultra vires any provision of the Constitution is invalid. Further, it established the power of the Court, at the instance of a citizen, to scrutinize legislation and the procedure available to the Court to test legislation for its consistency with the rights and protections guaranteed under the Constitution.


Reed v. Reed 404 US71


United States Supreme Court


(Discrimination on the Basis of Sex)


Section IS-312 of the Idaho Code provides a list of those persons entitled to administer the estate of one who dies intestate. The list designates, in order of eligibility, classes of persons, the third class being "the father or mother." Following the death of their son, both Cecil and Sally Reed, filed petitions with the probate court seeking appointment as administrator to their son's estate. Given both applications, and finding neither under any "legal disability", the court named Cecil Reed the administrator. The probate judge gave reason that, given two equally entitled candidates with competing claims to the position, the court was bound by Section 15-314 of the Statute which provides that..." of several persons claiming... to administer, males must be preferred to females, and relatives of the whole to that of the half blood." Sally Reed, the Appellant in the case, appealed originally to the District Court of Idaho on the grounds that the said section violated the Equal Protection Clause of the Fourteenth Amendment. The Court ruled in her favour and ordered that the Probate Court determine which of the two parties was "better qualified" to administer the estate, without regard to sex. The order was never carried out, as Cecil Reed took a further appeal to the Idaho Supreme Court which reversed the decision of the District Court, finding no violation of the Fourteenth Amendment, but simply adherence to a policy which provided for administrative expediency. This Court, on final appeal, found unanimously in favour of the Appellant (Sally Reed) and remanded the case for further proceedings "not inconsistent with this order".


The Court opinion, delivered by Burger, C.J. centred around the question of whether the distinction made between males and females and the preference given to males in Section IS-314 was "reasonable or arbitrary". Such differentiation could be made, it was pointed out, if it directly furthered a reasonable objective of the State. The argument was advanced that the statutes avoided Intra-family conflicts by eliminating an area of controversy and the administrative hassle which would ensue. It was held, however, that this was not enough :o justify differential treatment to persons similarly situated except for sex, contrary to the Equal Protection Clause of the Fourteenth Amendment.



Rogers, Secretary of State v. Bellei 401 US 380


United States Supreme Court


(Constitutional Construction and Citizenship Rights)


Bellei, the Respondent in this case, brought before the U.S. District Court the question of the constitutionality of Section 301(b) of the Immigration and Nationality Act of 1952 which provides that one who acquires citizenship by virtue of having been born abroad to parents, one of whom is an American citizen must satisfy a residency requirement of five consecutive years between the ages of 14 and 28. The Respondent contended that the Section of the Act which imposed such restriction was contrary to the Fifth Amendment guaranteeing him due process of the law and the Fourteenth Amendment which provides that Congress has "no power, express or implied, to take away an American citizen's citizenship without his assent." The Court a quo, relying heavily on two precedents (namely Afroyim v. Rusk, and Schneider v. Rusk) held the section unconstitutional. The decision was reversed on appeal, the majority opinion delivered by Blackmun, J. in the cases here cited.


The facts surrounding the Respondent's inclusion in the category of people affected by Section 301(b) as well as his failure to fulfil the residency requirement imposed therein are undisputed. The Court debate focused on the Constitutional rights guaranteed, and whether or not the said section of the Immigration and Nationality Act infringed upon those rights as charged. A distinction was made between the status of the Respondent in regard to the Fourteenth Amendment and the persons in the two cases relied upon as precedents. In both precedent cases judgements were rendered which maintained the person in question's citizenship. In each case, however, the person was a U. S. citizen by virtue of the first sentence of the Amendment which grants unrestricted citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof..." This was not the case of Bellei, who was neither born or naturalized in the U.S. and had never been subject to the jurisdiction of the U.S., but had been born in Italy of an Italian national father and an American national mother. Blackmun, J. noted that only recent (1934) liberalization of citizenship legislation extends any claim to citizenship at all to children born abroad of American women and foreign men. Further, in terms of Constitutional rights to citizenship, the Fourteenth Amendment, adopted in 1908, does not reach beyond the realm of its first sentence, leaving the acquisition of citizenship to those born abroad or under other varying conditions to be regulated by Congress. It was held that establishing qualifications such as residency is clearly within the jurisdiction of Congress in the exercise of its power, conferred by the Constitution, "to establish a uniform rule of naturalization." In terms of the Fifth Amendment, the Court concluded that the condition imposed on the Respondent was not "unreasonable, arbitrary or unlawful" and therefore, withstood the Constitutional challenge.



Societe United Docks v. Government of Mauritius SV CILSA 1982 232


Supreme Court, Mauritius


(Locus standi and Constitutional Construction)


In this case, the plaintiffs charged that they were financially prejudiced by the Mauritius Sugar Terminal Act 1979, and therefore sought redress for an infringement of the their rights as guaranteed by the Constitution. The Act, the plaintiffs claimed, created a monopoly in favour of the Mauritius Sugar Terminal Corporation and made no provisions for compensation to those who suffered financial loss and prejudice as a result. The Government claimed that the plaintiffs showed no cause of action because they did not show that "any right to property as guaranteed by the Constitution had been violated". This preliminary issue was heard by two judges in the Supreme Court, resulting in an overruling of the objection.


The decision is considered "seminal" in respect to the Chief Justice's review of constitutional construction. The plaintiff's basic rights in question, the case was called upon to examine specifically section 3 of the Mauritius Constitution, part of Chapter II which defines fundamental rights and freedoms of the individual. In his judgement, the Chief Justice reinforced the Constitution as "a meaningful document: its voice carries higher and further than that of ordinary legislation..."


As to the argument presented by the Government, which sought to relegate section 3 to the status of a preamble, the Chief Justice in this case held that section 3, like "every pronouncement of the Constitution must be presumed to enshrine a principle of abiding value." In conjunction with several points based on linguistic reasoning, the Chief Justice insisted that the Constitution be interpreted as the protective instrument its framers intended, guarding the fundamental rights of the people, with section 3 as the constructive foundation of these rights.


Veriava v. President, South African Medical and Dental Council 1985 (2) SA 315 TPD


South Africa - Transvaal


(Locus standi)


Veriava, the complainant in this case, charged that the South African Medical and Dental Council, as the "guardian of the prestige, status and dignity of the medical profession", had a responsibility to institute an inquiry into a complaint of improper and disgraceful conduct by members of the medical profession. Act 56 of 1974 establishes the Council, outlines the procedure for investigating complaints, and states that the Council "shall have the power" (section 41) to initiate an inquiry and exercise its powers as a quasi-judicial body if supplied with prima facie evidence of improper or disgraceful conduct by the medical practitioners in question. Based on the evidence submitted by two different sets of complainants (groups of medical practitioners), the Council's Medical Committee of Preliminary Inquiry as well as the Council itself, found



an inquiry unnecessary. Veriava, in conjunction with fellow medical practitioners, made an application to the Court for an order to direct the Council to institute an inquiry. The Court held that the Council had a duty to institute the inquiry, given the evidence submitted, and that, as medical practitioners, Vervia et al. had locus standi to approach the Court for relief.


The Medical, Dental and Supplementary Health Service Professions Act 56 of 1974 has as its object, protection of the public in their professional relationship to medical practitioners, but also, protection of members of the medical profession in relation to their fellow members' conduct. In reaching the decision on locus standi, the Court took into consideration the affect on an individual practitioner of the common reputation shared by the entire profession. It was found that Veriava and the other applicant medical practitioners had a "direct interest and real right" in requiring the Council to investigate alleged misconduct by a fellow practitioner. Thus, the judgement held that as registered practitioners, the applicants had locus standi to approach the Court.


Weinberger, Secretary of Health, Education and Welfare v. Wiesenfeld 420 US 636


United States Supreme Court


(Discrimination on the Basis of Sex)


This case challenged the provision of the Social Security Act which granted benefits to the widow and dependent children of a deceased man, based on earnings, but granted similar benefits only to the dependent children of a deceased woman and not to her widower. The Respondent in this case brought the proceedings before the District Court, charging that the gender-based distinction mandated by the provision was in violation of her right to equal protection, secured by the Fifth Amendment, as it unjustifiably discriminated against female wage earners. Women, similarly employed to men, were required to pay similar social security taxes, and yet the said provision offered them notably less protection for their survivors than their male counterparts. The District Court affirmed, as did the Supreme Court on appeal, led by Brennan J.


The majority found that the benefits granted were "non contractual", did not compensate for work performed and did not necessarily correlate with contributions to the program. Given that, to make distinctions between covered employees solely on the basis of sex was discriminatory and put women in a financially prejudiced position. The Government argued that the intention of the provision was to provide an income for women who, because of economic discrimination, were unable to provide for themselves, thus the distinction served a legitimate governmental objective and should be allowed. The Court found, however, that the true intention of the legislation was to permit women to elect not to work and to devote themselves to the care of children. The decision held that such an objective did not serve to justify gender-based discrimination diminishing the protection of women who did work.



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