A few days ago the Israeli Supreme Court issued a decision that forces the Jerusalem Municipality to fund the Gay Rights March organized by the local glbt (gay, lesbian, bisexual, and transsexual) organization - the Jerusalem Open House (Ynet report here, the full decision in Hebrew as a pdf file here). This decision is great news, I think, for anyone who supports glbt rights and equality. However, when I read the decision I felt troubled by it. In pragraph 54 of the decision, Justice Amit mentions that "the Israeli law regarding the gay community and its members reflects the changes that the Israeli society had gone through over the years. The Israeli society believes that the law must be indifferent to sexual orientation..." (my translation). Then Justice Amit goes over important milestones in the history of the gay struggle for legal equality in Israel and concludes, in paragraph 55, that "there's no wonder that scholars described the 1990's as the 'gay decade'... it should be mentioned that Israel's approach towards its gay population is one of the ways in which it proves it is a democratic and liberal state, unlike all other near and far states in the Middle East..." (again my translation).
Without addressing the motives of Justice Amit to compare Israel to its neighbors where such a comparison is completely irrelevant, these comments made me feel like Justice Amit, writing for the court, doesn't see glbt equality as a matter necessitated by a basic principle of justice. Rather, it is an expression of a public opinion that should be praised for its liberalism and acceptance. It should be appreciated.
And if you think that this is only an Israeli thing - yesterday the U.S. Senate voted against a bill that would allow to repeal the 'don't ask don't tell' policy of the U.S. armed forces (here). What I found amazing is not that the bill was repealed but that the bill itself made the repeal of the policy dependent on the outcome of a poll conducted by the Pentagon to survey the opinions of soldiers and find out if the change of policy would not hurt troop morale.
Somehow, glbt equality seems to be perceived as different from women's equality or racial equality. There were always people against them - but I don't think that those supporting them felt like they are doing someone a favor or that such equality depends on public opinion or the willingness of the voters to accept such equality. Is equality something that everyone deserves or does equality depend on the current beliefs of the crowd? Cause if equality should only be given to those who the public sees as equal - doesn't that make equality redundant? I mean, equality is worth something only if the political institutions are forced to provide equal rights to those that the public desires to discriminate. Otherwise, is equality a protection against discrimination at all? Is it even a right?
Showing posts with label Constitutional Law. Show all posts
Showing posts with label Constitutional Law. Show all posts
Wednesday, September 22, 2010
Saturday, April 10, 2010
Muzzle the Watchdog
In the past few weeks the Israeli media has filled with obscure hints to the fact that something is going on. It wasn't clear what exactly that thing is, but if you knew how to read between the lines it was clear that something important has happened and that there's a gag order on it. Soon after, those bloggers who always know what's going on started letting out the details - a certain journalist was arrested in connection to some leak of army secrets. A few more weeks passed and the case was published in international media. After that, the gag order was lifted and most of the story exploded in Israeli media as well.
Gag orders are given by courts all around the world, all the time. What was so special about this one is that it involved journalists (which made it interesting for other journalists to talk about), and that the acts it referred to are illegal-but-maybe-moral (depending on your perspective, I guess). Either way, because it was easy to see how the story unfolded, there are two things to be said about it:
1. If 10 years ago a gag order would have prevented flow of information, it seems that now what it does is direct the flow of information in a way that gives room to unofficial and independent sources. Rather than looking at the leading newspapers (which are usually the main sources of information for most), people looked for information in blogs, indi-media websites, and social networks. Those website, that usually target only a very small audience, suddenly got a place on front stage. A cynic would say that in this sense, gag orders are actually the most democratic tool of the government to control the media. Thank god I'm not a cynic.
2. The specific gag order, as given by the magistrates court, did not only suppress the details of the affair, but also the fact that there is a gag order in effect. Official media could not even mention the fact that they are stopped from reporting something. It seems that this is the most outrageous part about the whole thing, since this part of the gag order does not even allow the public to evaluate the way media is treated by the authorities. Sometimes, there could be good reasons to muzzle the watchdog. But putting it to sleep without telling the owner is hardly justifiable.
Gag orders are given by courts all around the world, all the time. What was so special about this one is that it involved journalists (which made it interesting for other journalists to talk about), and that the acts it referred to are illegal-but-maybe-moral (depending on your perspective, I guess). Either way, because it was easy to see how the story unfolded, there are two things to be said about it:
1. If 10 years ago a gag order would have prevented flow of information, it seems that now what it does is direct the flow of information in a way that gives room to unofficial and independent sources. Rather than looking at the leading newspapers (which are usually the main sources of information for most), people looked for information in blogs, indi-media websites, and social networks. Those website, that usually target only a very small audience, suddenly got a place on front stage. A cynic would say that in this sense, gag orders are actually the most democratic tool of the government to control the media. Thank god I'm not a cynic.
2. The specific gag order, as given by the magistrates court, did not only suppress the details of the affair, but also the fact that there is a gag order in effect. Official media could not even mention the fact that they are stopped from reporting something. It seems that this is the most outrageous part about the whole thing, since this part of the gag order does not even allow the public to evaluate the way media is treated by the authorities. Sometimes, there could be good reasons to muzzle the watchdog. But putting it to sleep without telling the owner is hardly justifiable.
Monday, November 30, 2009
When Wolves Go to Vote
In perfect time for the Eid, the Swiss voters passed a federal referendum today, which bans the construction of minarets throughout the country. If I understand the process correctly, then according to Swiss law any popular initiative is subject to the inspection of the Federal Council, which examines whether it is in breach of mandatory international law. If it is not, the initiative goes to public vote, and from that point on it cannot be struck down by any national institution based on its merit. The Swiss people, then, are an ultimate sovereign of Switzerland - their will is law, and it is not subjected to any constitutional restrictions.
There's a lot to say about this referendum. First, it is interesting to see how in so many instances democracy in it's most 'raw' form can be destructive to minority groups' rights. Much like California's Proposition 8 which banned gay marriage, the Swiss ban on minarets is a perfect example of the famous saying that "democracy is two wolves and a lamb voting on what to eat for lunch." If majority vote is all that counts, minorities are in extreme and constant danger of losing their rights every time they seem to contradict majority values or interests.
Another point is that this referendum doesn't even pretend to apply equally to everyone. It doesn't prohibit all constructions for religious purposes from exceeding a certain height, but targets only construction of one specific kind of religious architecture - the Muslim kind. Some might say that this is a good thing, since the referendum does not hide its purpose behind vague language. To cite another famous saying, "the law prohibits both rich and poor from sleeping under bridges. Surprisingly, only the poor are ever arrested for breaking that law." So according to this line of argument, at least this referendum did not use general language that "accidentally" applies only to Muslim structures, but made it very clear what it's targeting. That way, at least everyone knows what they are voting about.
Still, there's something discomforting about the fact that restrictions apply to one religious community and not to another. According to the official Federal Administration news portal, the supporters of the ban suggest that "[minaret] constructions symbolise a religious and political claim to power that calls into question the Federal Constitution and the Swiss system of law." Since Switzerland has no official religion, one can wonder why construction of massive churches does not provoke the same claim to power as minarets do. One might also suspect that a more generally applicable language was not used simply because any referendum that would sound like a restriction on the construction of churches would not have been as favorable in a country with a Christian majority. Either way, the posters supporting the ban make it perfectly and uncomfortably clear that this is not really an attempt to keep Switzerland secular, but an attempt to keep it clean of Muslim architecture. (Watch this report.)
Saying that this is an example of the need in restrictions on the power of the sovereign is true only if one thinks that the ban is unjust. Obviously, the sovereign cannot decide on everything, and some rights should be granted to everyone, regardless of public opinion. But the Swiss Council does narrow down the issues on which the public may vote according to binding international law. So the question this case poses isn't really whether majority vote should be restricted in certain cases, but what are the cases which majority vote should be restricted in. Answering this latter question (as oppose to the former one) depends a lot on one's point of view. In certain legal systems, such as the American one, the right for equality trumps the public's power to decide as it wills, and targeting one particular group (Muslims, in this case) as the sole subject of a referendum makes it unconstitutional. In Switzerland it doesn't.
It's easy to make a moral evaluation, and say that the American system is better, because equality is more important than the majority's will. But I don't know if a legal argument can be made to the same extent. By that I mean that it's hard to find something in the legal system itself (rather than in the evaluation of its results) that would explain why a majority shouldn't be able to decide every matter, as long as it does not breach international law. The claim that a law is unconstitutional requires a constitution by which the law can be measured. If the constitution allows any kind of referendum to be passed into law (again, as long as it is permitted by international law) there is no legal principle or binding document by which the referendum can be evaluated within the particular legal system.
So maybe this is just a lesson about the (almost) infinite power of legal regimes, as oppose to their limited moral validity. It might also be a chance to make an argument against referendums in general, since we would like our laws to follow our morals, and the public is usually not the best evaluator of moral considerations. Of course, morals are debatable and maybe not one set of morals should run through the entire legal system. But that's why we need a parliament, full of legislators that feel they need to satisfy a constituency they know very little of, and to represent what they believe is its opinions and believes. This imaginative voter, as limited as it is, turns out to be much more moral than the actual one.
There's a lot to say about this referendum. First, it is interesting to see how in so many instances democracy in it's most 'raw' form can be destructive to minority groups' rights. Much like California's Proposition 8 which banned gay marriage, the Swiss ban on minarets is a perfect example of the famous saying that "democracy is two wolves and a lamb voting on what to eat for lunch." If majority vote is all that counts, minorities are in extreme and constant danger of losing their rights every time they seem to contradict majority values or interests.
Another point is that this referendum doesn't even pretend to apply equally to everyone. It doesn't prohibit all constructions for religious purposes from exceeding a certain height, but targets only construction of one specific kind of religious architecture - the Muslim kind. Some might say that this is a good thing, since the referendum does not hide its purpose behind vague language. To cite another famous saying, "the law prohibits both rich and poor from sleeping under bridges. Surprisingly, only the poor are ever arrested for breaking that law." So according to this line of argument, at least this referendum did not use general language that "accidentally" applies only to Muslim structures, but made it very clear what it's targeting. That way, at least everyone knows what they are voting about.
Still, there's something discomforting about the fact that restrictions apply to one religious community and not to another. According to the official Federal Administration news portal, the supporters of the ban suggest that "[minaret] constructions symbolise a religious and political claim to power that calls into question the Federal Constitution and the Swiss system of law." Since Switzerland has no official religion, one can wonder why construction of massive churches does not provoke the same claim to power as minarets do. One might also suspect that a more generally applicable language was not used simply because any referendum that would sound like a restriction on the construction of churches would not have been as favorable in a country with a Christian majority. Either way, the posters supporting the ban make it perfectly and uncomfortably clear that this is not really an attempt to keep Switzerland secular, but an attempt to keep it clean of Muslim architecture. (Watch this report.)
Saying that this is an example of the need in restrictions on the power of the sovereign is true only if one thinks that the ban is unjust. Obviously, the sovereign cannot decide on everything, and some rights should be granted to everyone, regardless of public opinion. But the Swiss Council does narrow down the issues on which the public may vote according to binding international law. So the question this case poses isn't really whether majority vote should be restricted in certain cases, but what are the cases which majority vote should be restricted in. Answering this latter question (as oppose to the former one) depends a lot on one's point of view. In certain legal systems, such as the American one, the right for equality trumps the public's power to decide as it wills, and targeting one particular group (Muslims, in this case) as the sole subject of a referendum makes it unconstitutional. In Switzerland it doesn't.
It's easy to make a moral evaluation, and say that the American system is better, because equality is more important than the majority's will. But I don't know if a legal argument can be made to the same extent. By that I mean that it's hard to find something in the legal system itself (rather than in the evaluation of its results) that would explain why a majority shouldn't be able to decide every matter, as long as it does not breach international law. The claim that a law is unconstitutional requires a constitution by which the law can be measured. If the constitution allows any kind of referendum to be passed into law (again, as long as it is permitted by international law) there is no legal principle or binding document by which the referendum can be evaluated within the particular legal system.
So maybe this is just a lesson about the (almost) infinite power of legal regimes, as oppose to their limited moral validity. It might also be a chance to make an argument against referendums in general, since we would like our laws to follow our morals, and the public is usually not the best evaluator of moral considerations. Of course, morals are debatable and maybe not one set of morals should run through the entire legal system. But that's why we need a parliament, full of legislators that feel they need to satisfy a constituency they know very little of, and to represent what they believe is its opinions and believes. This imaginative voter, as limited as it is, turns out to be much more moral than the actual one.
Friday, November 20, 2009
The Rock It Cannot Lift
In his book, "The Concept of Law", H.L.A. Hart asks if a legislative body can bind itself and its successors by transferring legislative powers over specific issues to a new and different body:
"[I]t might be conceded that Parliament might irrevocably alter the present constitution of Parliament by abolishing the House of Lords altogether... It might also be concede, as Dicey says, that Parliament could destroy itself totally, by an Act declaring its powers at an end and repealing the legislation providing for the election of future Parliaments. If so, Parliament might validly accompany this legislative suicide by an Act transferring all its powers to some other body, say the Manchester Corporation. If it can do this, cannot it effectually do something less? Can it not put an end to its powers to legislate on certain matters and transfer these to a new composite entity which includes itself and some further body?... It is quite possible that some of the questionable propositions... will one day be endorsed or rejected by a court called on to decide the matter." (pp. 151-152)
Yesterday, the Supreme Court of Israel decided on a strikingly similar matter. In a case questioning the constitutionality of an amendment to the law that made it possible for the state to privatize its prisons, the Court ruled such transfer of authority to be unconstitutional. The State, according to the Supreme Court, not only has the right to use hold a person prisoner if he or she committed a crime, it also has the duty to execute that right by itself and not delegate it to others. In what is pretty much an international precedent, the Court ruled that, with regards to certain issues, the government is incapable of stripping itself of its powers and transfer them to others, since no other body but the state itself is capable of balancing the proper interests of state and the individual.
It's easy to think of this ruling as dealing with human rights of prisoners, as even some of the Justices do. But I think the real question that was answered here is not 'what are the prisoner's rights?', but, rather, 'what is a state?'. So far, constitutions restricted governments only in what they are allowed to take or deprive their citizens. This, however, is an unprecedented decision about what the government must provide. While constitutional law was thus far focused on keeping governments small, this decision is focused on making sure the government won't grow too small. The truth is, that - as Justice Levi writes in his dissenting opinion - conditions in state prisons are sometimes so bad that prisoners might be better of in private hands. Nonetheless, the court decided that the government simply doesn't have the power to give away some of its powers to others.
Much like in the question whether an almighty god can create a rock he himself cannot lift, the Israeli Supreme Court was faced with the question which kinds of rocks can the parliament create. Yesterday it decided that there's a new kind of rocks that are has to be left on the ground.
Here is the Court's ruling (Hebrew) and a brief report (Hebrew and English).
"[I]t might be conceded that Parliament might irrevocably alter the present constitution of Parliament by abolishing the House of Lords altogether... It might also be concede, as Dicey says, that Parliament could destroy itself totally, by an Act declaring its powers at an end and repealing the legislation providing for the election of future Parliaments. If so, Parliament might validly accompany this legislative suicide by an Act transferring all its powers to some other body, say the Manchester Corporation. If it can do this, cannot it effectually do something less? Can it not put an end to its powers to legislate on certain matters and transfer these to a new composite entity which includes itself and some further body?... It is quite possible that some of the questionable propositions... will one day be endorsed or rejected by a court called on to decide the matter." (pp. 151-152)
Yesterday, the Supreme Court of Israel decided on a strikingly similar matter. In a case questioning the constitutionality of an amendment to the law that made it possible for the state to privatize its prisons, the Court ruled such transfer of authority to be unconstitutional. The State, according to the Supreme Court, not only has the right to use hold a person prisoner if he or she committed a crime, it also has the duty to execute that right by itself and not delegate it to others. In what is pretty much an international precedent, the Court ruled that, with regards to certain issues, the government is incapable of stripping itself of its powers and transfer them to others, since no other body but the state itself is capable of balancing the proper interests of state and the individual.
It's easy to think of this ruling as dealing with human rights of prisoners, as even some of the Justices do. But I think the real question that was answered here is not 'what are the prisoner's rights?', but, rather, 'what is a state?'. So far, constitutions restricted governments only in what they are allowed to take or deprive their citizens. This, however, is an unprecedented decision about what the government must provide. While constitutional law was thus far focused on keeping governments small, this decision is focused on making sure the government won't grow too small. The truth is, that - as Justice Levi writes in his dissenting opinion - conditions in state prisons are sometimes so bad that prisoners might be better of in private hands. Nonetheless, the court decided that the government simply doesn't have the power to give away some of its powers to others.
Much like in the question whether an almighty god can create a rock he himself cannot lift, the Israeli Supreme Court was faced with the question which kinds of rocks can the parliament create. Yesterday it decided that there's a new kind of rocks that are has to be left on the ground.
Here is the Court's ruling (Hebrew) and a brief report (Hebrew and English).
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