1 Introduction: Methodological and Theoretical Considerations
There are three caveats to be taken into consideration from the very beginning. First, the double meaning of the book title Comparative Matters (Hirschl 2014) must be a warning for everybody daring to compare not only the law of and for religious and linguistic minorities and Indigenous peoples in the jurisprudence from five continents, the topical substance of all the scholarly articles collected in this volume. Hence, the central question is: Comparison of what? Legal texts and their application in case law through courts? Is it possible to draw general conclusions from precedents or even paradigmatic cases which can travel as legal transplants from one legal system or continent to another? Do we compare groupings and their relations vis-à-vis society at large? But is it possible to compare groupings and their relations without a clear and unambiguous, let alone universally accepted definition of the concepts and terms minority and reasonable accommodation in light of the scholarly battles about what makes the difference between assimilation and integration both as sociological concepts as well as legal categories as this was, for instance, highlighted in the contribution by Isra and Faiz on the role of the Constitutional Court of Indonesia in the protection of minority rights and which I have tried to analyse for the European context elsewhere (Marko 2019a, 138–77)?
Second, “at the heart of comparative constitutional law’s blurred epistemological and methodological matrix is the tension between universalism and particularism” (Hirschl 2014, 197). Whereas the former emphasises the common elements of legal systems “across time and place”, the latter take as axiomatic vantage point the “unique and idiosyncratic nature of any given legal system” (Ibid.). From this juxtaposition follow two conclusions. For universalist constitutionalists, progress will mean that legal systems shall finally converge around the protection of human, including minority rights as one of the two core elements of any constitutional system based on the normative principles of rule of law and democracy combined with an institutional system of
Third, and only seemingly paradoxically, I will methodologically not reject any of these positions as a possible and therefore necessary vantage point of analysis. This logic of comparison follows from a theoretical position of “constitutional pluralism” which I have explored and further developed elsewhere (Marko 2019c, 398–413). From the underlying epistemological perspective of social constructivism, particularists have a valid point in arguing that the claim of “neutral or objective comparison” (Hirschl 2014, 198). simply masks the fact that all legal systems are inherently based on values which are expressed in more or less abstract language in constitutional texts or derived from their spirits, not as ghostly objects in space and time, but meaning in terms of original intent to be identified through a linguistic, historic and systematic interpretation of the respective legal materials. Insofar, the universalist position based on the belief in the normative principles of democracy, rule of law, and the protection of human and minority rights, cannot be separated from the worldview, i.e. ideology of liberalism. All efforts to neutralise this ideology as a meta-theory against which all other ideologies, cultures and legal systems can and must be measured are, therefore, nothing but an exercise in othering which must be criticised as Eurocentrist and imperialist, owing to their intellectual origins in the European history of state formation and nation building and their empirical consequences in the world history of colonialism and imperialism.
However, the juxtaposition of universalism and particularism in terms of an either/or dichotomy is in itself an ideological construction, based on the confusion of the normative dimensions of universalism and cosmopolitanism and the political desirability and/or empirical possibility of establishing a universal human rights regime. By distinguishing four “meanings” and concepts of “universality”, Jack Donnelly makes clear that the opposition of universalists and particularists/relativists cannot be overcome by a reformulation in presenting universality and relativity as a continuum, thus suggesting that it is possible to have more or less of both at the same time, but that a much better representation would be to conceive of their relationship as “a multidimensional discursive space” (Donnelly 2013, 197). He thereby distinguishes the “conceptual universality” as the epistemological vantage point in defining the very idea of personal human dignity from “substantive universality” as the “universality of a particular conception or list of human rights” (Ibid., 196) with the Universal
But what are the various “dimensions” which can be taken as analytical frame for the analysis of the mentioned “discursive space”? Against the bifurcation in the opposition of the normative validity of law on the one hand and the social recognition of law on the other in all theories of legal positivism, and thus taking the multidimensionality and multifunctionality of law seriously into account, we can again distinguish (see Fredman 2016, 281–84 and Marko 2019a, 166–67) four dimensions.
First, there is the “redistributive dimension” with regard to the socio-economic sphere of so-called modern societies. The concept of formal equality before the law instead of status hierarchies, translated into the legal obligation of state authorities to treat, as a minimum requirement, persons alike “without discrimination on any ground such as sex, race, colour, language, religion”,1 was conceived in classic anti-discrimination adjudication as an anti-classification approach as can be seen from notions of a “colorblind constitutionalism” (Kennedy 2013) or the “myth” of the cultural neutrality of law (Kymlicka 2002) to this day. Thus, from a liberal-individualistic or liberal-egalitarian ideological viewpoint, any special measure or affirmative action in US constitutional terminology, in particular when conceived as a group right for effective minority protection, was and is revealingly termed positive discrimination to this day as if amounting by definition to reverse discrimination of the members of the majority population as such. However, respecting and protecting cultural diversity requires not only equal opportunities in terms of redistribution of material resources as we will learn below from the overview on the case law concerning Indigenous peoples and religious or linguistic minorities.
Second, it is necessary to take the “recognition dimension” much more seriously when we deal with the court jurisprudence in this volume in dealing with the factors why Indigenous peoples and minorities and their individual
Third, the phenomena of racial discrimination and the poverty trap for Indigenous peoples and minorities all over the world are structurally interdependent in terms of an intergenerational vicious circle based on mutually re-enforcing socio-economic deprivation and the racial inferiorisation of their members. Hence, understanding the problem of structural discrimination with the possibility for nationalist and populist political elites to mobilise fears and hatred following from such situations or even societal configurations to polarise societies into an us-versus-them antagonism, requires finally a holistic analytical approach by taking into account also the “participatory dimension” and the “transformative dimension” for social, political and the overall societal development. Against the postulates of modernisation theories in the social sciences only a few decades ago, this was and is, however, never a unilinear progress from primitive societies towards a universal model of modernity in terms of industrialisation, urbanisation, and secularisation, but a permanent process of social and societal integration and disintegration within what I have termed the “identity/diversity – equality – participation nexus” (Marko 2019a, 166) which shall serve as analytical framework for comparison of the minority jurisprudence in this concluding chapter.
When carefully reading all the articles of this volume, two major fields of inquiry into the discursive space of minority rights jurisprudence of all the countries and regions, respectively national and transnational or supra-national courts come to the fore. These are, first, the problem how to deal with and possibly overcome the categorical majority – minority distinction either as a normative proposition or as assimilatory or exclusivist empirical effect of seemingly culturally neutral policies? Following from this, does individual anti-discrimination law and piecemeal litigation of international bodies and national courts then suffice or is it necessary to recognise groups and corporate rights following from either international law, national law or the recognised customary law of Indigenous peoples or even non-recognised law of religious communities themselves? Hence, what we can – in the next section – observe from the argumentative claims of parties in the proceedings as well
This last juxtaposition already hints to the second field of inquiry guiding us as a red thread through all the articles, namely the mechanisms of judicial review and thus the role of courts in a system of separation of powers or, in US constitutional terminology, checks and balances which will be dealt with in the third section of this chapter. Is the process of judicial review when courts establish more generalised rules through precedents – not necessarily only in common law systems (see Chang et al. 2014, 308, 324–25) – already transforming courts from law interpreting bodies into law-makers with the danger of what was termed in French a gouvernement des juges over the legislative and the executive powers? Can, in particular, constitutional courts or courts of final appeal not only review legislation whether it is in conformity with the Constitution or not, but even instruct the legislator to adopt a new piece of legislation or even write a law itself as this was done by the Indian Supreme Court (see Chang et al. 2014, 459)? Hence, is any norm-generative process driven by courts in any case a violation of the principle of separation of powers or do we simply have to give up our century-old doctrines and positivistic legal theories and adapt these doctrines and theories to new realities in order to better grasp new challenges?
2 Against the Dichotomy of Individual versus Collective Rights or the Problem How to Organise Diverse and Multiple Identities
As we learn from George Barrie’s chapter on the “‘Discovery’ of Native Title” in Australian law, until a few decades ago legal doctrines such as ”doctrine of discovery” of a terra nullius helped justifying the occupation of land of so-called non-civilised peoples and its economic exploitation by European Christian nations with their alleged innate superiority through what we call today genocide and ethnic cleansing.2 However, not only the ideologies of racism and nationalism will deny collective as well as individual rights to members
Bertus de Villiers article with his thought provoking title about the “elephant in the room” is, however, an important contribution to make us aware that (legal) definitions in the positivistic tradition of natural and legal sciences do not necessarily constitute the vantage point of law-making in constitutional assemblies or parliaments, but that courts, adjudicating about claims of parties in a norm contestation process, do not decide only about the legal validity of binding sources of law in the liberalist tradition of the myth of neutrality of law, but even more so about social recognition, including the dimension of cultural validation of normative principles and rules, when it comes to the question whether the party submitting a claim has legal standing, i.e. what constitutes status and/or membership both in legal as well as sociological terms. This more processual perspective helps to overcome the ideological dichotomy of individual versus collective rights as we can see also from the debate about the right to vote and to stand in elections for individual members of the Sámi people in Finland, when they elect their members for the trans-national Sámi parliament, or individual Māoris in New Zealand who can make a choice to have their names registered on the General or Māori electoral roll to cast their vote on the basis of a quota system, that is, a certain number of reserved seats for Māori in parliament. But, as De Villiers emphasises with the examples of case law from Finland, Australia and New Zealand, the “elephant in the room” is not the dichotomy between individual and collective rights, but the epistemologically and methodologically tricky question when is a person a Sámi or Māori? Can this legally be determined on the basis of allegedly objective criteria as positivists in legal sciences and the humanities claim such as belonging to a race, nation, minority group, or Indigenous people by descent? Or speaking the same, from the rest of the population different, language as
As the contributions by De Villiers, Barrie, Rautenbach, and Isra and Faiz clearly demonstrate, there is, however, not a one-size-fits-all solution. The assumption, reported by De Villiers, that also non-Māori persons, if they register for the Māori roll in the elections, can promote the interests of the Māori is the great exception from the rule of self-identification, because of the possibility and reality of the creation of what is then called “inflation of membership” and “ethno-business” (De Villiers) for the financial profit of self-appointed political elites.3 In particular the ideology of nationalism, which is best characterised not by content but by the requirement for absolute loyalty to the particular nation, and therefore the rules of belonging imprinted in constitutional law and legislation, underlying, for instance, constitutional provisions for official or state languages as the article of Palermo and Constantin proves, do exclude the possibility of subjective self-identification.. From their chapter on linguistic rights litigation of and for national minorities in Central, Eastern, and South-Eastern Europe we can draw more general lessons about the historic legacy and ongoing effects of the ideology of nationalism in the political context and legal framework of centuries’ old multi-ethnic empires having been turned into a communist multi-national federation in the case of the Russian Empire after First World War and, after the model of the Soviet Union after the Second World War, with the Socialist Federal Republic of Yugoslavia and bi-national Czechoslovakia. After the breakdown of the communist regimes in this region between 1989 and 1993, several newly independent states were thought to transform themselves from communist-authoritarian rule to liberal democracies based on the principle of democracy and institutions and mechanisms of rule of law. Moreover, due to the ongoing parallel process of European integration and the transformation of the European (Economic) Communities into the European Union as a political entity based on these very same values and principles of democracy, rule of law, and respect for human rights, “including the rights of persons belonging to minorities”,4 the parliaments of
Most apex courts in the region consider it necessary to protect the official or state language against encroachments which, in the view of the majority of judges of these courts, would follow from the implementation of linguistic rights of minorities. A case in point was the judgment of the Constitutional Court of Lithuania which argued in 1999 that the Lithuanian language as state language had “constitutional value” which made it compulsory for communication in public life so that names written in passports “in other, non-Lithuanian letters” would deny this constitutional value, but also disturb “the activity of state and local government institutions, (…) of enterprises, establishments and organisations (…)” (Constitutional Court of Lithuania 1999, item 7). And in 2014 the Lithuanian Ministry of Justice asked the Constitutional Court to “{interpret] some points of its 1999 ruling” (Palermo and Constantin). This time, the Court held that non-Lithuanian names and surnames can be registered also in different letters, however of only the Latin alphabet which were consistent with the tradition of the Lithuanian language and the rules of the Lithuanian language. It is important to note, however, what the Court does not directly express but actually means with this formula. Namely, that names must not be written in the Cyrillic alphabet, which is a clear case of indirect discrimination against citizens belonging to the Russian speaking minority in Lithuania, the second largest minority after Poles, comprising 5.8% of the population according to the 2011 census.
This example can make us sensitive for two more general problems. In line with Rogers Brubaker´s analytical framework for the new nationalisms in Eastern Europe, we can see in the case of the Russian minority that they are in a cross-pressure situation caught between the “nationalizing nationalism” of the newly independent democracies and the “homeland” or “transborder nationalism” of the former hegemons of multi-ethnic empires (Brubaker 1996; see also the reference to European empires in the contribution of Isra and Faiz
The second, general problem comes to the fore through a judgment of the Russian Constitutional Court as problem for multi-national federations in 1998, namely how to protect and preserve bi- or multilingualism. The state language law of the republic of Bashkortostan required proficiency in the Bashkir language alongside Russian in order to be allowed to stand for the elections of the president of Bashkortostan. Despite the fact that the Russian Federal Constitution grants the right for republics to determine additional official languages in their territories (Article 68), the language proficiency requirement in the second official language was found in violation of the Federal Constitution with the argument that political rights cannot be made dependent on linguistic proficiency in a language which “can never be the only official language of a republic” (Palermo and Constantin). And in 2004 the Russian Constitutional Court ruled in a case concerning the state language of Tatarstan that the power to legislate about the alphabet to be used for the languages in the Russian Federation is vested in the federal level, since this represents a guarantee against possible disadvantages suffered by Russian citizens if any republic would be allowed to introduce a different script. A single alphabet to be used throughout the territory of the Russian Federation is thus “essential, according to the Court, as it guarantees the balanced functioning of the Russian language and the state languages of the republics ‘within a common language space’”(Palermo and Constantin).
This case, aptly criticised by Palermo and Constantin, confuses the fact and legal-dogmatic conclusions drawn. The Russian language and Cyrillic script are official anyhow so that the rights of Russian speakers are not by definition limited or even endangered through bilingualism. Hence, the rights of minority speakers cannot – in the language of US constitutional law – be declared
Moreover, as we can learn from several of the contributions in this volume, not only language nationalism, but also the legal category of (biological) descent as prominent marker in both the ideologies of racism and nationalism has not yet been overcome. For instance, the Act on the Sámi Parliament of 1995 only indirectly refers to descent for the definition of being a Sámi with the conditions established in its Section 3 that in addition to a self-declaration “at least one of his parents or grandparents has learnt Sámi as his first language” or that “he is a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp (…).” Hence, the notion of biological descent has to a certain degree been substituted in practice by the decision of the election committee of the Sámi parliament itself on who is entitled to vote. Despite of the fact that the Sámi parliament has been concerned that persons who are not accepted as Sámi have attempted to register as Sámi in order to influence policy issues on which the Sámi parliament must be consulted, it remains, however, as De Villiers correctly argues, a very
The problem becomes even more complex since disputes about the right to vote can be appealed to the Supreme Administrative Court of Finland. This Court obviously sought a compromise in 2015 when it allowed 93 persons to be registered as Sámi. This decision was based on the weight the Court gives to self-identification and the fundamental right to free association in balancing it with the right of the community to define itself as culturally distinct from the rest of society. Thus, any dispute about rights concerning status and membership is therefore embedded in a triadic structure of individual(s) – groups/communities – society at large, represented by state courts as supervisory bodies and therefore ultimately guardians in a legal system based on rule of law. However, are the principles and institutional mechanisms of democracy, rule of law and the protection of human and minority rights through judicial review sufficient guarantees for a peaceful living together in diversity? Hence, there is one basic question which follows from all the contributions in this volume and addressed in the title of this section, namely how to organise different and multiple identities also in liberal-democratic national states in order to preserve and protect cultural diversity?
First, this problem is highlighted by De Villiers with the example of the Afrikaans community in South Africa which is characterised as “smorgasbord of identities” with its internal multiplicity of racial groups, with different histories and ideologies, scattered throughout the whole territory, but categorised and classified as one community on the basis of language. But when De Villiers notes that it is ironic that not size, but internal diversity and the geographical distribution of speakers must be seen as main challenge in what I dubbed the identity/diversity – equality – participation nexus as necessary functional requirement for the effective representation and participation as group, the following question must be raised: How is it possible to overcome the implicit assumption that this necessarily requires the cultural homogeneity of groups with the consequence that society at large is seen as multi-ethnic society and multi-national state composed of neatly distinguished cultural and, in the end, also political containers based, at best, on the co-existence of groups?6
Second, none of the courts and countries under consideration can provide a solution how to resolve the regular double conflict of “external intervention”
This issue which is also known as problem of protection of minorities within minorities in scholarly literature about minority rights lies at the heart of Christa Rautenbach’s contribution about key judgments on the accommodation of Islamic family law in South Africa. As an example for legal pluralism she describes South African law as “mostly uncodified amalgam of laws to be found in various sources (…) [that] include the Constitution, legislation, judicial precedent, customary law (traditional laws) and common law (a mixture of Roman-Dutch law and English common law).” What has not been included to date are the legal rules of religious communities such as Muslims, who practice their rules in what she terms “the private sphere”, in accordance with Muslim religious authorities. Nevertheless, ongoing disputes about issues arising under non-recognised Muslim family law, in particular the (non-)recognition of Islamic marriages as valid contracts and the consequences for other rights for women which must be seen as particularly unfair to them, are brought before the courts of South Africa.
construed to encompass also widows of polygynous Muslim marriages, the practical effect would be that the widows of such marriages will be discriminated against solely because of the exercise by their deceased husbands of the right accorded to them by the tenets of a major faith to marry more than one woman. Such discrimination would not only amount to a violation of their rights to equality on the basis of marital status, religion (it being an aspect of a system of religious personal law) and culture, but would also infringe their right to dignity.
Hassam 2008, para. 16
Contrast [the approach of a religious state] to the application of MPL [Muslim Personal Law] in a secular state, where the state provides the enforcement of personal law as a matter of policy. For if MPL is enforced as a matter of religion then it raises questions of doctrinal entanglement and the permissible limits of state enforcement of religious policy. As a matter of policy, on the other hand, it raises questions as to how MPL fits into a constitutional framework and a secular administration. This invariably leads to a paradox where communities expect and demand the recognition of MPL from the modern state in a multicultural and secular
context; but at the same time they may express reservations about a secular authority implementing and interpreting religious law!
It is further argued in this context by courts that “it is quite inimical to all values of the new South Africa for one group to impose its values on another and that the Courts should only brand a contract as offensive to public policy if it is offensive to those values which are shared by the community at large, by all right-thinking people in the community and not only one section of it” (Ryland 1997, 707) and that both the principles of equality and the principle of tolerance of diversity and the recognition of the plural nature of society are seen as values underlying chapter 3 of the South African Constitution. The paradox quoted and the problem of external intervention leading to internal restriction under one and the same Constitution will, however, remain a paradox only, if this line of argumentation were seen as “two opposing central forces” which “may well be irreconcilable in the context of the Constitution” (Rautenbach).In my view, however, it is not the purported paradox, but the dichotomising view which might become a self-fulfilling prophecy when it is declared “that these conflicting interests have the potential of causing a constitutional tug-of-war between the self-same constitutional values provided in the Constitution, namely the right to equality on the one hand and culture- and religion-based rights on the other hand” as if a “politics of equal dignity” must, by definition, exclude a “politics of difference” and vice versa (Ibid.).
Moreover, what is termed court-driven “accommodation” in a multicultural context as achievement is summarised by Judge Yekiso in Hoosain (2010, para. 19) and disappointing at best by declaring that “[T]he courts, relying on the provisions of the Constitution, have been able to ameliorate the onerous consequences resulting from non-recognition of Muslim marriages by extending piecemeal recognition to such marriages (…)” so that neither the recognition dimension, nor participation dimension, let alone transformative dimension in the discursive space about effective minority rights protection has been effectively driven forward in complementing the necessary tolerance of people in a multicultural context to an effective guarantee of rights and obligations. Whether this can be achieved through the legislative recognition of Muslim family law as this has been ordered by the Western Cape High Court in Women’s Legal Centre Trust (2018), as an obligation following from the Constitution’s provision under Section 7(2) that the state is under a duty ”to respect, promote and fulfil the rights in the Bill of Rights” remains to be seen.
However, how is it possible that a court may order the legislative power to adopt an act with a content pre-determined by that court’s ruling? Is this not in violation of the system of separation of powers as Rautenbach herself critically
This statement, assuming a role of courts in judicial review proceedings as mere interpreters of the law of the land, including the Constitution on top of the hierarchy of norms in a legal system, and bound by the “clear and unambiguous” text “irrespective of injustice consequences” brings us now to the next general field of inquiry.
3 Methods of Interpretation and Courts as Law-makers
In dealing with two cases of the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights concerning land rights of and for Indigenous peoples as group rights, Tomaselli and Cittadino celebrate the “evolutionary interpretation” of these judicial bodies by recognising the achr as “living instrument.” However, as can be seen from the dissenting opinion quoted, not everybody would join this celebratory comment by arguing that Article 3 achr literally grants that “[e]very person has the right to recognition as a person before the law” so that Indigenous peoples would not need a collective right to property following from Article 21 achr. Hence, is the recognition of legal status for groups and therefore the concept of group rights by the Court an interpretation extra legem or even contra legem as the dissenting opinion seems to assume?
The word ‘spouse’ in its ordinary meaning includes parties to a Muslim marriage. Such a reading is not linguistically strained. On the contrary, it corresponds to the way the word is generally understood and used. It
Daniels 2004, para. 19is far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word ‘spouse’ than to include them. Such exclusion as was effected in the past did not flow from courts giving the word ‘spouse’ its ordinary meaning. Rather, it emanated from a linguistically strained used of the word flowing from a culturally and racially hegemonic appropriation of it. Such interpretation owed more to the artifice of prejudice than the dictates of the English language. Both in intent and impact the restricted interpretation was discriminatory, expressly exalting a particular concept of marriage, flowing initially from a particular worldview, as the ideal against which Muslim marriages were measured and found to be wanting.
As can be seen from this quote therefore, the opinion that the ordinary meaning of words is self-evident, must be called a myth having been created by positivistic legal sciences.
Moreover, each and every legal text and terminology is based on concepts as not only a social constructivist approach in legal and social sciences declares. Also Judge von Heerden highlighted this linguistic fact in his reasoning in the case Hassam (2008) already quoted above. Hence, with the mechanism of judicial review, courts are primarily tasked with the business of (re-)conceptualisation and operationalisation of more or less abstract language of constitutional and legal texts in light of not only changing norms, but also changing facts. In regard to the title of this chapter, law can never be understood properly if law is conceived as static phenomenon of an existing hierarchy of norms having been created by a revolutionary big-bang with a new Constitution and legislation so that judges simply have to and in practice do implement the ”clear and unambiguous” norms they find in the Constitution and parliamentary acts. Quite the contrary, as this has already been addressed in the previous section, every legal system must be understood as a “cycle of norm-generation” (Marko 2019a, 167–75) following from the competitive interplay of values and interests which follow from both legal norms and facts and which are brought by parties before courts and lead to new norm-setting processes when apex courts have finally decided the case and parliaments become active again.
This dynamic view of law has also been recognised by Judge Farlam in the already mentioned case Ryland /1997) where the court had to decide whether to overrule previous judgments that had refused, on the grounds of public policy, to recognise Muslim marriages as valid contracts under South African law or not. Judge Farlam agreed that public policy is a question of fact and not of law, but, at the same time, he argued that “facts” were amended by the
But is it then possible any longer not to conceive a supra-national human rights charter or a Constitution like the South African one, which is ordering all state authorities to give the norms of the Bill of Rights effect in practice, a “living instrument” and to argue that the “interpretative role of courts” must be exercised “irrespective of their injustice consequences”, a doctrine which would follow only from a legal theory of strict separation of law and morals?
As we can see from the case law of Canadian, Australian and international courts in the chapters of Barrie, Strydom, Tomaselli and Cittadino and De Villiers through an extensive historic analysis the courts developed the arguments which are termed “revolutionary” in the Australian context by Barrie in the analysis of the Mabo (no. 2) decision (1992). This case had been stimulated by the Canadian case Calder (1973) in rejecting the ethnocentric, even racist perspective in order to overturn the doctrines of discovery and terra nullius. By establishing aboriginal rights as group rights against the classic-liberalist interpretation of property as an individual right as this is still the case with the European Court of Human Rights (Marko et.al., 2019a, 208–10), we can find now a doctrine in the case law under scrutiny here which could be termed “the prohibition to uphold the effects of past ethnic cleansing”. This dogmatic concept was developed by the Bosnian Constitutional Court in the so-called Constituent Peoples case U 5/98 (2000) concerning the problems of restitution for so-called minority returns8 which had been prevented by state authorities on the regional and local level after the end of the war in 1995.9 In the same vein, the Justices in the Mabo (no. 2) case overturned the doctrine of discovery holding that the common law of Australia would “perpetuate injustice if it were to continue to embrace it” and that “Australian common law should not be frozen in in age of racial discrimination” (Barrie).
What all these judgments have in common is thus a strong transformative impact not only with regard to the recognition of group rights in terms of land and property rights as can be seen from the case law of the achr elaborated in detail by Tomaselli and Cittadino, but also a strong participatory and transformative dimension in terms of restorative justice.10
to adopt all necessary measures to guarantee the participation of the Sarayaku peoples, through their own institutions and mechanisms and in accordance with their values, practices, customs and forms of organization, in the decisions made regarding matters and policies that had or could have an impact on their territory, their life and their cultural and social identity, affecting their rights to communal property and to cultural identity.
Kichwa Indigenous People of Sarayaku v. Ecuador 2012, para. 232.
In the case Kaliña and Lokono Peoples v. Suriname (2015) the Inter-American Court was called to assess the lack of recognition of collective property rights and the failure to delimit, demarcate or grant land titles to Indigenous peoples, the continuous granting of property titles to non-Indigenous peoples, the creation of nature reserves and granting mining concessions to private third parties without free, prior and informed consultation, including an impact assessment and benefit-sharing. After having, first, confirmed its jurisprudence on group rights and legal standing, the Court orders states, second, in an interpretative move to reverse the burden of evidence – which in the European legal context follows from the concept of indirect discrimination to
In assessing the task of (re-)conceptualisation and operationalisation of courts, we can thus summarise:
- –The Inter-American Court reconceptualises seemingly individual rights under the achr into group rights by recognising also Indigenous peoples and tribal communities as right-holders with legal standing before courts so that the invocation of Article 3 achr shall provide an “autonomous” (Tomaselli and Cittadino) ground for legal standing in claims against violation of the achr. This can be seen in analogy to the jurisprudence of the European Court of Human Rights with regard to Article 14 of the European Convention on Human Rights (echr), the non-discrimination provision (see Marko 2019b, 308) which also provides for the autonomy of this guarantee independent of the fact whether the Court has found a violation of the substantive rights and freedoms guaranteed under the echr;
- –in addition to generally using the proportionality principle which is becoming more and more a global gold standard of judicial review (Kremnitzer et al. 2020), the Court operationalises the equality principle and establishes an affirmative duty of states by a reversal of the burden of evidence, in order to
- –give effect to the rights of restitution, benefit-sharing and last, but not least, effective participation through free, prior, and informed consultation in line with the (non-binding) UN Declaration on the Rights of Indigenous Peoples.
However, as we can see from the Canadian and Australian case law reported, the results from the court-generated (r)evolutionary interpretation processes cannot resolve all problems in all contexts.
In operationalising the meaning of aboriginal rights under Section 35(1) of the Canadian Constitution Act of 1982, the Supreme Court of Canada in the case Van der Peet (1996) established the following criteria:
- –The claimant to an aboriginal right must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture so that without this practice, custom or tradition the culture in question would fundamentally be altered;
- –
Concerning the timeline, a court should consider whether the claimant’s demonstration of the connection with the land in its customs and laws has been continuing from the period prior to contact with European societies to the present day. This should, however, be interpreted flexibly so as not to impose too high a burden of evidence; nevertheless, the Court determines, a native title cannot be revived for contemporary recognition which has ceased with the abandoning of laws and customs based on tradition; - –The aboriginal title is held communally. It cannot be held by individual aboriginal persons so that it is a collective right to land held by all members of an aboriginal nation, distinguishing it from normal, that is, individual, private property interest.
In operationalising the meaning of free, prior, and informed consultation of Indigenous peoples (Eichler 2019) as part of the concept of effective participation11 we can conclude from the case law under scrutiny:
- –Free and informed consultation is not guaranteed, if negotiations to conclude private law contracts between Indigenous peoples and third parties are not supervised by state authorities which is declared an affirmative duty of states;
- –Free, prior and informed consultation must contribute to “dialogue and consensus-building processes” from the first stages of the planning or preparation of the proposed measure in “good faith and [with] the aim of reaching an agreement” (Kichwa Indigenous People of Sarayaku v. Ecuador 2012, paras. 167 and 178)
- –However, Indigenous and Aboriginal peoples have no veto rights, nor can their cultural autonomy rights justify claims for “independence or separation” (Strydom; see Sanila-Aikio v. Finland 2018, para. 6.9).
Concerning Rautenbach´s critical remarks about courts as “law-makers”, we can now summarise the findings in the chapters of this volume about methods of interpretation and the forms of judicial decisions and remedies.
First, and above all, seen from a perspective which conceives law not as a static hierarchy of norms, but as a norm-generative cycle and therefore process which is driven in the same way by parliaments as well as by individuals and groups through litigation before courts, we can no longer conceive the interpretation of law and law-making as a dichotomy. As we could learn from all the chapters, judges do not simply follow the ordinary or linguistic meaning of a legal text. Since almost all legal language is subject-specific and/or abstract, it
Judges and courts thus refer either to the historic and systematic interpretation with the “original intent” topos (see Isa and Faiz in their chapter on Indonesia) or make use of the functional interpretation, that is, the “purposive approach ” (see also Chang et al. 2014, 417–431). It goes without saying that the choice between these different methods of interpretation is usually dependent on the respective legal culture and/or change of generations of judges sitting on the bench. Several examples of cases and dissenting opinions quoted in the previous section demonstrate that even a text-based approach may lead to surprising results through the (r)evolutionary approach developed not only by the Inter-American Court of Human Rights when turning classic liberal-individualist human rights into group rights or collective rights to communal land. Another example was the interpretation of constitutional principles and rules, in particular, the right to equality which was turned into an affirmative duty of states to take special measures on behalf of minorities and Indigenous peoples by reversing the burden of evidence. The critique raised from a positivistic-legal perspective then is the question, whether such results of interpretation are extra legem or even contra legem. Also the development of the dogmatic topos of “past de jure discrimination” as legitimation for the declaration that constitutional rights and obligations must go beyond the usual test of the validity of law ratione temporae since, otherwise, the effects of past injustice for which state authorities are responsible could not be corrected, will at least be considered extra legem by legal positivists. But as we can conclude, this topos is now used on three continents at least in order to get rid of the legacies of racist policies and laws under colonial rule or the consequences of wars in deeply ethnically divided societies and states.
The real challenge for all critics of judicial activism is the fact that apex courts – after having unsuccessfully warned the legislator or administration that the law or administrative regulation implemented will no longer be interpreted as being in conformity with the Constitution or law except for the interpretation given by the Court as we could see from the Indonesian case analysed by Isra and Faiz12 – will instruct the legislator to amend the respective law or to adopt a new law within a certain time period or, in the final analysis, the Court will itself draft and impose the new law and thus become a positive law-maker, not only a negative law-maker as this was already distinguished and elaborated by Hans Kelsen in his pure theory of law (see also Chang et al. 2014, 308, fn 9).
Last, but not least, due to the processes of industrialisation and urbanisation of almost all countries of the world and the demographic processes going hand in hand with the former and despite the fact that most members of Aboriginal peoples live in cities and regional areas where little land is available to claim, all the progressive results achieved in the jurisprudence of courts must realistically be assessed so that Barrie comes to the conclusion that the Australian Native Title Act of 1993 must be perceived as “a major advance in national reconciliation displacing racism and the denial of justice for aboriginal peoples.”
4 Preliminary Conclusions
These observations in search for meaning through intercultural understanding in comparing jurisprudence on the rights of minorities and Indigenous peoples from five continents have shown that different cultures, in particular also legal
What we could also observe is the danger of ideologically triggered dichotomisations such as individual versus collective rights, objective versus subjective criteria for the determination of legal status, or private versus public affairs. Instead, I hope that I could demonstrate against the doctrines of positivistic legal theory with the examples highlighted in this chapter that there cannot be a strict separation between law and politics or law and morals and that substantialist or even naturalist conceptualisations of race, descent, or nation in order to determine the ordinary meaning of legal texts would only help to preserve racist or other ideological prejudices, since law and therefore legal language itself is never value-neutral as liberal ideology would like to make us believe. Quite contrary, in order to avoid reifications, naturalisations and dichotomisations of socially constructed concepts and empirical social relations, legal analysis thus requires a multiperspectival approach which is based on the four problem-oriented dimensions elaborated in the introductory section of this chapter.
Nevertheless, problems and therefore misunderstandings will also remain concerning the relationship between universalists and particularists/relativists as we could see from the unresolved problem how to deal with the intricate relationship of external intervention and internal restriction and the question how to organise multiple identities and thus achieve social and system integration without the classical assumptions of the ideologies of state and nation building which either define culture as legally irrelevant for abstract citizenship or transform culture into neatly separated ethnic, that is, culturally and socially closed boxes. However, what we could see from the case law discussed in all the chapters of this volume and what gives hope for enhanced intercultural understanding is the fact that the notions and concepts of functional and anthropological universality (Donnelly 2013) come more and more to the fore in the jurisprudence in all the five continents.
Article 14 of the European Convention on Human Rights reads as follows: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
See, for instance, the 2019 Final Report of the Canadian National Inquiry into Missing and Murdered Indigenous Women and Girls at
For a similar problem and debate in Romania concerning the constitutionally guaranteed seats for minorities see Marko and Constantin (2019, 371).
Article 2 Treaty on European Union reads as follows: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
Article xix, para. 3 of the Basic Law of the Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger von 1867).
See my critique of the concept of “multi-national federalism” in Marko (2020), as well as the different territorial and demographic context in Indonesia elaborated by Isra and Faiz in this volume with the overlapping majority – minority positions in different regions.
For a critique of Rosenfeld’s model of “comprehensive pluralism”, see Marko (2019c, 407–09).
The return of Bosniaks, Croats and Serbs in areas where they would be numerically in a minority position.
See Marko (2006); the author of this chapter has also been the judge rapporteur in this case serving as international judge in Bosnia-Herzegovina.
For an overview in the European context see Marko et al. (2019a, 193–96).
For an overview in the European context, see Marko and Constantin (2019, 340–95).
See also Chang et al. (2014, 443–48) with reference to European case law.
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Case Law
Please refer to the list on pages viii–xvi.