Comparative Constitutional Rights
Abortion, assisted suicide, sodomy, obscenity/blasphemy.
I have not gone back to abortion but I spent a long time on my formative essay so I'm fairly confident that I know what the cases say. I tried to organise the cases for the remaining topics according 'ideas', in Kai's words, but ummm yeah, I couldn't match the broad points with the details in the cases. But I have pretty good notes, I believe; and I understand the cases quite well. I think. I hope.
I think I should do one more topic for this course. I'm worried that I'd only be able to answer one question if the 3 out of the 4 non-theory topics that he set are the ones that I dropped. Problem: affirmative action is boring; I didn't understand shit in the hate speech seminar; and I have little interest in the religion seminar. The upside to doing hate speech is that it's similar to obscenity/blasphemy, but the obvious downside is that I didn't understand the seminar and I didn't read the cases, so I'm going to have a lot of work to do. And I'm NOT doing the justification topics. There is a reason I chose the essay for the Theory of Human Rights Law class: I am absolutely sure that I will not be able to write a good theory-related essay in one hour, and since Kai is so hard to impress already, I should not try and bank on my weaknesses.
There's also this slight issue of how I really have no views on whether there is a right to justification. I mean, it makes sense in a facile sort of way but I have not forgotten how much I struggled to read that translated Rainer Forst article and I'm sure that it won't make sense if I tried to go deeper in my understanding of the theory to form a view for the purpose of the exam. In short - just no. Even though it's confirmed that there will be a question on it, just no.
I read an interesting idea in the South African and Indian sodomy cases on the issue of the enforcement of morality. Tried to think of how to construct an argument out of it. Failed. Will think again at some point before the exam.
Regarding obscenity, I find the Canadian court's argument that exposing or allowing access to the general public to pornography that contains violent sex would lead to a change in attitude towards the subjects of the porn (usually women), which would cause harm to the group represented in those materials (women), and this harm is therefore a valid basis to ban it despite a clear lack of direct causal connection between violent porn and change in attitude/behaviour utterly unconvincing and paternalistic. Say what you want about porn and its lack of value and how it appeals purely to the prurient interest in sex - fact is, pornography and sexually explicit materials engage the right to freedom of expression and it's a fundamental right in any liberal democracy that takes rights seriously. A presumed causal connection, and Parliament's reasonable apprehension of harm, do not sound solid enough to serve as a valid basis for the infringement.
In short, I'm really not cool with the state trying to control my thoughts and/or modify my behaviour.
Terrorism and the Rule of Law
I spent forever reading Al-Skeini and others v. United Kingdom because the facts of the case were just so harrowing and heartbreaking, especially what happened to the fifth and sixth applicants' sons. The fifth applicant's son was a 15-year-old boy who was rounded up by some British soldiers on the suspicion of looting, and it was suspected that, while in custody of the soldiers, he was mistreated and later forced by the soldiers to walk into a river, where he subsequently drowned. The sixth applicant's son was a 26-year-old hotel employee, who was detained by British soldiers along with the rest of his colleagues, and later found dead.
The relevant part of the judgment, emphasis added:
63. The sixth applicant is a Colonel in the Basrah police force. His son, Baha Mousa, was aged 26 when he died whilst in the custody of the British Army, three days after having been arrested by soldiers on 14 September 2003.
64. According to the sixth applicant, on the night of 13/14 September 2003 his son had been working as a receptionist at the Ibn Al-Haitham Hotel in Basrah. Early in the morning of the 14 September, the applicant went to the hotel to pick his son up from work. On his arrival he noticed that a British unit had surrounded the hotel. The applicant's son and six other hotel employees were lying on the floor of the hotel lobby with their hands behind their heads. The applicant expressed his concern to the lieutenant in charge of the operation, who reassured him that it was a routine investigation that would be over in a couple of hours. On the third day after his son had been detained, the sixth applicant was visited by a Royal Military Police unit. He was told that his son had been killed in custody at a British military base in Basrah. He was asked to identify the corpse. The applicant's son's body and face were covered in blood and bruises; his nose was broken and part of the skin of his face had been torn away.
65. One of the other hotel employees who were arrested on 14 September 2003 stated in a witness statement prepared for the United Kingdom domestic court proceedings that, once the prisoners had arrived at the base, the Iraqi detainees were hooded, forced to maintain stress positions, denied food and water and kicked and beaten. During the detention, Baha Mousa was taken into another room, where he could be heard screaming and moaning.
66. Late on 15 September 2003 Brigadier Moore, who had taken part in the operation in which the hotel employees had been arrested, was informed that Baha Mousa was dead and that other detainees had been ill-treated. The Special Investigation Branch was immediately called in to investigate the death. Since local hospitals were on strike, a pathologist was flown in from the United Kingdom. Baha Mousa was found to have 93 identifiable injuries on his body and to have died of asphyxiation. Eight other Iraqis had also been inhumanely treated, with two requiring hospital treatment. The investigation was concluded in early April 2004 and the report distributed to the unit's chain of command.
67. On 14 December 2004 the Divisional Court held that the inquiry into the applicant's son's death had not been effective (see paragraph 77 below). On 21 December 2005 the Court of Appeal decided to remit the question to the Divisional Court since there had been further developments (see paragraph 81 below).
68. On 19 July 2005 seven British soldiers were charged with criminal offences in connection with Baha Mousa's death. On 19 September 2006, at the start of the court-martial, one of the soldiers pleaded guilty to the war crime of inhumane treatment but not guilty to manslaughter. On 14 February 2007 charges were dropped against four of the seven soldiers and on 13 March 2007 the other two soldiers were acquitted. On 30 April 2007 the soldier convicted of inhumane treatment was sentenced to a year's imprisonment and dismissal from the Army.
69. On 25 January 2008 the Ministry of Defence published a report written by Brigadier Robert Aitken concerning six cases of alleged deliberate abuse and killing of Iraqi civilians, including the deaths of the fifth and sixth applicants' sons (“the Aitken Report”).
70. The applicant brought civil proceedings against the Ministry of Defence, which concluded in July 2008 by the formal and public acknowledgement of liability and the payment of GBP 575,000 in compensation.
71. In a written statement given in Parliament on 14 May 2008 the Secretary of State for Defence announced that there would be a public inquiry into the death of Baha Mousa. The Inquiry is chaired by a retired Court of Appeal judge, with the following terms of reference:
“To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations which have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen's Lancashire Regiment in Iraq in 2003, and to make recommendations.”
At the time of adoption of the present judgment, the Inquiry had concluded the oral hearings but had not yet delivered its report.
I'm not entirely sure why the hotel employees were even detained in the first place, but there you go. All of the applicants here suffered deaths of relatives at the hands of British soldiers in Iraq. While all of the cases were sad and tugged at my heart, the ones that really outraged me were the last two. The first four were kind of understandable in the sense that the deaths of the Iraqi civilians, unjust as they were, occurred in confusing situations where the British soldiers thought that they were under attack and had to act to protect themselves. The last two, though, seemed to be sheer abuse of power situations, Abu Ghraib on a smaller but significantly similar scale. It's disgusting what people can do to each other. It's outrageous how people don't stop to think that the person that they are ill-treating or torturing is someone's son, someone's husband, someone's daughter, someone's wife. It says a lot about the darkness of the human psyche, how inherently cruel we all are, that actual human beings could order a 15-year-old to drown himself, or to beat to death a presumably innocent man, probably just because they can.
I also really loved this:
CONCURRING OPINION OF JUDGE BONELLO
Human rights imperialism
37. I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.
38. Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.
39. I, for one, advertise my diversity. At my age, it may no longer be elegant to have dreams. But that of being branded in perpetuity a human rights imperialist, I acknowledge sounds to me particularly seductive.
International Human Rights Law
My stance on torture is that it should never be allowed, not even in ticking time bomb scenarios.
I agree with everything that Jeremy Waldron has said on this issue.
I found fascinating how Alan Dershowitz founded his 'judicial torture warrant' argument on a commitment to the rule of law. Does he not consider that the legalising of torture, even if only in the rarest of rare circumstances, would amount to an attack on the rule of law? Is the rule of law valuable because people obey the law, or does it have normative force because it demonstrates an unwavering commitment to some higher principles that transcend the authoritative force of law as mere command?
Liberal democracy is objectively superior to all other forms of governance and all other political theories
I say this with no irony and no apologies. A liberal democracy that takes rights seriously (as opposed to neo-democracies, in Prof Gearty's words) creates a society where the individual is able to exercise his autonomy to formulate his conception of the good life, and has the liberty to live his life accordingly. The foundation of the universality of human rights is really simple and it claims only two things: that humans have autonomy (perhaps in the Kantian manner) and liberty. The former claim is about what human beings are; the latter claim is about what human beings want. Only a liberal democracy is able to provide the conditions for humans to live autonomously and freely.
This is perhaps why I will find it rather difficult to return to Singapore, but that's another thought for another day.
(This section is really poorly developed but I'm getting tired. Maybe I'll come back to it some other time.)