Supreme Court

Derecho Constitucional / Constitucional Law

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Mexico Supreme Court refuses to uphold injunction decriminalizing abortion in Veracruz

Source: Jurist

August 01, 2020

 The Supreme Court of Mexico has ruled against an injunction that would have granted abortion rights in the Mexican state of Veracruz.

The injunction issued last year by a local judge in Veracruz had decriminalized the termination of pregnancy in the first 12 weeks, and it was sent to the Mexican Supreme Court for approval. In a 4-1 decision, the judges Wednesday cited technical grounds and stated that upholding the injunction would “greatly overstep the constitutional powers” of the Supreme Court. The judges did not address the issues of women’s reproductive rights and compliance with relevant international treaties.

The injunction of 2019 had ordered the state legislature of Veracruz to remove a provision from legislation that criminalizes abortion in the first 12 weeks of pregnancy, permits termination of pregnancy for medical reasons and removes the gestation limit on abortions in cases involving rape.

At present, out of the 31 states and the capital, only Mexico City and Oaxaca have decriminalized abortions (in 2007 and 2019, respectively). The other states limit abortions to cases involving rape. The Supreme Court decision upholding Mexico City’s abortion legislation had given a right to the states to form their own health and abortion policies. Since then, more than half of Mexico’s states have approved laws or constitutional amendments that criminalize abortion in every or in most circumstances. Veracruz was one of these states, and had approved a constitutional amendment in 2016 to “protect life from conception.”

Mexican women’s rights groups, including the Information Group on Reproductive Choice (GIRE),  had hoped that the Supreme Court would uphold the injunction, especially since it had in 2019 upheld a decision that permitted victims of sexual violence to terminate their pregnancy and to undergo abortions for medical reasons. Such a decision could have set a precedent for other states to issue similar injunctions.

Derecho Constitucional / Constitucional Law

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Supreme Court permits Trump administration to continue constructing border wall

Source: Jurist

August 01, 2020

-United States-

 The US Supreme Court Friday rejected a request to halt the Trump administration’s construction of the southern border wall while litigation on its construction is pending before the nation’s highest court.

In February 2019, President Donald Trump declared a national emergency concerning security along the southern border. Utilizing executive powers from the order, Trump allocated $2.5 billion from the defense budget to construct the barrier.

The Sierra Club immediately challenged the use of executive authority, but in July of 2019, the Supreme Court stated that the administration can continue to build the wall while lawsuits are pending in lower courts and stayed an earlier injunction against construction. This June, the Ninth Circuit found the appropriation was unlawful as Congress had not allocated the money.

The American Civil Liberties Union, the Sierra Club and the Southern Border Communities Coalition subsequently requested that the Supreme Court lift its 2019 stay. The groups contended that the stay functionally allows the administration to complete the inappropriately-funded wall while the Supreme Court considers hearing the case. Friday’s order rejected the plaintiffs’ proposition, though it does not provide any reasoning for the determination. Justice Breyer dissented, saying: “The Court’s decision to let construction continue, nevertheless, I fear, may ‘operate, in effect, as a final judgment’.”

Derecho Constitucional / Constitucional Law

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Recent Approach of the Supreme Court of India on Reservation

Source: Jurist

July 21, 2020

 After numerous decades, the order given by the Supreme Court of India, “reservation is not a fundamental right” has sparked an ardent political debate and unrest among backward communities. In this article, the author shall explain what was the view of the Supreme Court in earlier judgments regarding the reservation. Accordingly, the author shall explain if the right to the claim reservation is not a fundamental right, then what is the status of reservation. 

On 11th June 2020, in the case of Umedsinh P. Chavda vs. Union of India and Ors., the political parties of Tamil Nadu challenged the policy of Central Government according to which the Central Government has decided to not give the reservation to the Other Backward Classes (OBC). A petition was filed under article 32 of the Indian Constitution under the argument that the fundamental rights of OBC candidates are violated. However, the Supreme Court of India held that the reservation is not a fundamental right and hence this petition cannot be filed under article 32 as article 32 is available only for violation of a fundamental right. Therefore, a three-judge bench led by justice L.N. Rao ordered the petitioners to withdraw their petitions.

In February 2020 as well, the Supreme Court of India observed the same in the case of Mukesh Kumar and Anr. vs. The State of Uttarakhand and Ors. In this case, the argument of reserved category candidates was given under the decision of M. Nagraj vs. UOI (2006) that the government of Uttarakhand has not given reservation to Scheduled Castes and Scheduled Tribes whereas the State is bound to give reservation according to the report submitted in M. Nagraj Case which said about unsatisfactory of SCs and STs in government jobs that time. In this case, the honorable Supreme Court of India put on the decision given in the case of Ajit Singh vs. the State of Punjab (1999) where it was made clear that under Article 16(4) and Article 16(4-A), does not give any fundamental right in reservation in promotion. In Ajit Singh’s case, where the case of C.A. Rajendran vs. UOI (1968) was also discussed and here it was said that the State government would not be ordered for giving reservation by the courts. Even in the case of M.R. Balaji vs. State of Mysore (1963), Article 16(4) and Article 16(4-A) were supposed as enabling provisions. After relying upon previous verdicts of this Court of law, the Supreme Court held in the case of Ajit Singh that article 16(4) and 16(4-A) are in the nature of enabling provisions, conferring a discretion on the State Government to contemplate providing reservations, if instances so warrant. It is established law that the state government could not be dictated for the nomination in public posts. 

Hence, by the case of Mukesh Kumar, the Supreme Court made it clear that the government can ignore the report of any committee, however, if the State government want to give reservation to any class then the government will have to collect quantifiable data for the meagerness of the portrayal of that class in public services. If the pronouncement of State Government to provide reservations to promotion is confronted, the State concerned shall have to place before the Court, the vital computable facts and mollify the court that such reservations became obligatory on account of the scantiness of representation of SCs and STs in a specific class or classes of posts without distressing the general efficacy of administration as delegated by the article 335 of the Indian Constitution.

Court also emphasizes on the verse of article 16(4) and 16(4-A) and said these articles sanction the state to make a reservation in matters of selection and promotion in favor of SCs and STs “if in the view of the state they are ineffectively epitomized in the services of the State.” It is for the State Government to resolve whether reservations are required in the matter of selection and promotions to public posts. The language of Article 16(4) and 16(4-A) is clear and according to which, the inadequacy of representation is a matter within personal approval. In the case of Mukesh Kumar, the court also said that no one has the fundamental right to claim the reservation and for being it enforced the court cannot issue a writ of mandamus. 

In the case of Common Cause vs. Union of India (2003), the honorable Supreme Court of India held that for exercising discretionary power, a writ of mandamus cannot be issued.

It is also questioned that if the State is not giving reservation the state must express there is a satisfactory representation or not. The court said that not being certain to provide reservations, the state is not mandated to rationalize its pronouncement based on quantifiable data, showing that there is a satisfactory representation of members of SCs and STs in State services.

In the case of Suresh Chand Gautam (2016) the court made it clear and held that no mandamus can be dispensed by the court to the state to accumulate quantifiable data concerning to an adequacy of representation of SCs and STs in public services.

There are several reasons people argue reservation is a fundamental right. Two of them are:

  • Those people say reservation is a fundamental right they rely on two cases’ judgments, the first one is Jagdish Lal VS. the State of Haryana and 2nd one is Ashok Kumar Gupta vs. State of U.P. In these cases, it was observed that reservation is a fundamental right.
  • Some people believed that article 16(4) comes under part III (articles 12-35) of the Indian Constitution, which itself deals with fundamental rights, then why reservation does not come under the fundamental right.

By taking these two arguments only, in the case of Ajit Singh article 16(4) and Article 16(4-A) were discussed and was said that these two articles open with a non-obstante clause. There is a noticeable variance in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4-A). There is no order or command in Article 16(4) or Article 16(4-A) as in Article 16(1). Hence, both Article 16(4) and 16(4-A) are only empowering provisions. It means that if in article 16(4) and 16(4-A), it is written that “notwithstanding anything in this article, State shall provide reservation” then only reservation can be regarded as a fundamental right. 

In the case of Ajit Singh, inappropriately, all the verdicts of larger benches were not fetched to the notice of the bench which decided Ashok Kumar Gupta and Jagdish Lal and to the benches which followed these two cases. Because of the devastating authority right from 1963, we hold that both Articles 16(4) and 16(4-A) do not deliberate fundamental rights nor do they execute any constitutional duty to the State. Thus, the court said that Jagdish Lal and Ashok Kumar Gupta cases are per encuriam i.e. do not lay down the regulation appropriately. 

It has made clear from the above cases that the right to claim reservation is not a fundamental right. However, this can be said as a statutory or legal right because, for supporting the provisions of reservations any law, rule or act can be used.

Derecho Ambiental / Environmental Law

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Supreme Court rules Forest Service can authorize pipeline construction under Appalachian Trail

Source: Jurist

June 17, 2020

 The US Supreme Court ruled Monday that the Forest Service has statutory authority to issue a permit for the construction of a pipeline under the Appalachian Trail.

The case involved Dominion Energy, a natural gas company based in the Southeastern US, and its efforts to build a pipeline under a 600-foot stretch of the Appalachian Trail in the George Washington National Forest.

At issue in Monday’s decision was whether the Mineral Leasing Act, which provides authority for the Forest Service to issue permits through National Forests, extends to the Appalachian Trail, which is controlled by the National Park Service (NPS).

The Supreme Court concluded that the Forest Service has the power to authorize the pipeline’s construction because the NPS has only an easement for the Appalachian Trail. The Forest Service still maintains control of the George Washington National Forest and, thus, statutory authority to issue such permits.

The dissenting opinion argued that the NPS has control of the Appalachian Trail land area under the National Trails System Act.

Senator Joe Manchin voiced his support for the decision, stating, “the Supreme Court overruled a lower court decision that halted the progress of the Atlantic Coast Pipeline. This project would create jobs, invigorate our energy markets, and provided thousands of American homes and businesses with the energy they need.”

Cowpasture River Preservation Association responded to the ruling stating, “[The] decision doesn’t change the fact that Dominion chose a risky route through protected federal lands, steep mountains, and vulnerable communities.”

Derecho Constitucional / Constitucional Law

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Israel Supreme Court strikes down law legalizing settler homes on privately owned Palestinian land

Source: Jurist

June 09, 2020

Israel’s Supreme Court on Tuesday overturned a 2017 law that legalized settler homes built on privately owned Palestinian land in the West Bank.

Under the “Law for the Regularization of Settlement in Judea and Samaria,” which was approved in February 2017, settlers were allowed to remain on privately owned Palestinian land in the occupied West Bank if they did not have prior knowledge of Palestinian ownership. Settlers were also allowed to build on the land if they were given government approval.

The law retroactively legalized more than 4,000 homes built in the West Bank. It legalized 50 homes that had been built without government approval.

A nine-judge panel of the Supreme Court struck down the law on Tuesday in a vote of eight to one. The judges found that the law “unequally infringe[d]” upon Palestinian residents’ property rights.

Derecho Constitucional / Constitucional Law

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Brazil top court orders government to restore COVID-19 data amid cover–up controversy

Source: Jurist

June 10, 2020

Brazil’s Supreme Court on Tuesday ordered Health Ministry officials to restore previously available COVID–19 data to its national website after the Sustainability Network, Communist Party of Brazil, and the Socialism and Freedom Party accused the government of withholding vital infection and death toll data.

Justice Alexandre de Moraes noted in his decision that Brazil must provide essential information to citizens to adequately protect public health.

“The data had been provided and publicized … allowing the necessary comparative analyses and projections to assist public authorities in decision-making and allow the general population full knowledge of the pandemic situation experienced in the national territory,” Moraes noted.

Moraes ordered the Attorney General of the Union to restore the COVID–19 data within 48 hours, noting that delaying the release of virus data would make it “impossible” to implement safety protocols.

The order comes days after health ministry officials removed virus data from the agency’s website, despite Brazil’s having the second highest number of cases (26,000) and third highest number of confirmed deaths (37,143) worldwide.

President Jair Bolsonaro has been widely criticized for ignoring World Health Organization (WHO) recommendations, and has been accused of downplaying the pandemic’s severity for political gain.

Derecho Constitucional / Constitucional Law

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Brazil Supreme Court approves investigation into President Bolsonaro

Soure: Jurist

April 28, 2020

 Brazil’s Supreme Court on Tuesday approved an investigation into accusations that President Jair Bolsonaro sought to interfere with police investigations for political gain.

Brazilian Attorney General José Levi do Amaral requested the investigation on Monday after the Brazilian Justice Minister Sérgio Moro publicly accused the president last Friday of improper conduct in the appointment of the Brazilian Federal Police chief before he resigned in protest. The former Minister of Justice is one of Brazil’s most prominent champions of the Brazilian anti-corruption movement. He famously ran the 2015 investigation known as Operation Car Wash (Operação Lava Jato), which indicted many prominent Brazilian government officials and business executives on corruption charges.

Moro’s allegations centered around Bolsonaro’s recent decision to replace the head of the Federal Police. Moro accused Bolsonaro of “political interference” in a Justice Ministry concern. Moro also stated, “The President said more than once that he wanted someone he could be in touch with personally, who he could call directly, who he could receive information from, intelligence reports.” He went on to add that the president also cited fears about the outcomes of upcoming supreme court cases as further justification for the transition.

Bolsonaro announced Tuesday that the current head of intelligence, as well as his former campaign security chief, will be filling the role of the chief of the Federal Police. Brazil’s Supreme Federal Court and the Attorney General’s office have yet to clarify the scope of or provide more details on the investigation into the allegations surrounding the appointment.

However, the investigation falls at a precarious moment for the country and the presidential administration. Recent polls suggest there has been a sharp rise in discontent with the president as a result of the recent allegations and his handling of the current public health crisis. With some groups even calling for his impeachment, there is growing speculation that if Moro’s claims are proven true, the investigation may lay the groundwork for an impeachment trial. There are also increasing concerns that Brazil may become another COVID-19 epicenter after several weeks of inaction by Bolsonaro led to an apparent failure to prepare for the outbreak properly.

Derechos Humanos / Human Rights

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India Supreme Court rules women in military can receive permanent commissions

Source: Jurist

February 17, 2020

 The Supreme Court of India ruled Monday that women enlisted in India’s military are permitted to receive permanent commissions, a right previously held only by men.

Women in India were first permitted to enter the army in 1992 under a provision for an initial period of five years. In 1996, the provision limiting the enrollment for a period of five years was removed. Amendments to the 1992 law in 2005 extended the tenure of Women Special Entry Scheme Officers by five years while extending men’s tenure for Short Service Commissions to 14 years.

Women who completed the precommission training would be granted PCs while still being placed lower than other candidates passing from the Indian Military Academy.

According to the Union of India, women are not employed on duties which are hazardous in nature unlike their male counterparts in the same Arm/Service who are liable to be employed in combat duties. For instance, a male officer […] in the engineering branch would undergo a tenure in the Rashtriya Riffle/Assam Rifles while women officers are not employed due to the “inherent risks”.

The court also brought attention to the regular discriminatory claims brought to them in regard to women in the Army, such as the concept that women may not be fit for military service due to “pregnancy, motherhood and domestic obligations towards their children and families.” They stated that claims have also been brought that having women present would require more “moderated” behavior by men, an overall lower standard due to women’s “physiological limitations.” Further, it was said that including women was “inadvisable” due to instances in which military members are subjected to minimal hygiene facilities.

Despite contentions from the Union of India that there are not discriminatory practices in the military, even in light of the aforementioned claims, the Indian Supreme Court rejected their argument:

The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. … Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women.

The court ordered that compliance with its ruling must be instituted within three months and included a list of directions.

Derechos Humanos / Human Rights

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India Supreme Court orders review of restrictions in Jammu and Kashmir

Source: Jurist

January 13, 2020

The Supreme Court of India on Friday issued an order to the central government and to the administration of the states of Jammu and Kashmir to begin an immediate review of restrictions on movement and landline, mobile phone, and internet access in those states.

Internet access in Jammu and Kashmir has been blocked since August of last year, in what has been called the longest internet clampdown in the history of a democratic nation. The orders cracking down on movement and communication came as the government revoked Jammu and Kashmir’s autonomous status.

The petitioners to the court included editors and journalists whose rights were severely curtailed by lack of internet and phone communication and restrictions on freedom of movement. In its decision, the court formulated a “doctrine of proportionality” that the government must adhere to in the future when deciding whether or not to place such limits. When issuing an order that would restrict a “fundamental right,” any limitation “without appropriate justification will be classified as disproportionate.” The government response to any emergency situation must therefore be proportionate to the circumstances and to the individual rights involved. Such decisions, the court said, are subject to judicial review, and the court gave a list of factors it would consider in determining the legality of any restrictions imposed:

The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.

The court ordered the government to review, using this rule of proportionality, all restrictions that have been placed upon Jammu and Kashmir, and publish the results of the review within one week.

Derechos Humanos / Human Rights

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India Supreme Court orders state government to compensate rape survivor

Fuente: Jurist

October 01, 2019

India’s Supreme Court on Monday directed the state government of Gujarat to pay 5 million Indian rupees (US$ 70,000) in two weeks as compensation to Bilkis Bano, a 40-year-old woman who was raped by a mob during an anti-Muslim pogrom in 2002.

In April the court had ordered the Gujarat government to compensate Bano monetarily. It had also instructed the state to give her government employment and a house in a locality of her choosing. This is the highest compensation ever given to a rape survivor in India.

The Gujarat government had initially promised to follow the apex court’s order but told a three-judge bench on Monday that it intended to file a review petition. The bench, led by Chief Justice Ranjan Gogoi, gave the state two weeks to comply with the decision.

Bilkis Bano was raped and 14 members of her family, including her 3-year-old daughter, were murdered in March 2002 when a lynch mob attacked a Muslim community in Gujarat’s Dahod district. Bano faced an uphill battle for justice as the state police allegedly refused to cooperate with her and suppressed evidence. After police dismissed the case against her assailants, she approached the National Human Rights Commission of India and petitioned the Supreme Court seeking a reinvestigation. The Supreme Court directed a federal agency, the Central Bureau of Investigation (CBI), to carry out an investigation, following which the case was transferred outside of Gujarat.

In 2005 a special court in the state of Maharashtra indicted 19 individuals, including police officers, for rape and suppressing evidence. In January 2008, 11 people were sentenced to life imprisonment on multiple counts of rape and murder, and a policeman was convicted of falsifying evidence. Seven others were acquitted.

In 2017 the Bombay High Court upheld the trial court’s decision partially by affirming terms of life imprisonment given to the 11 individuals convicted. The court also set aside the acquittal of the remaining seven accused in the case, including Gujarat police officers and doctors of a government hospital, who were convicted of suppressing evidence.