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- Volume 23, Issue 2, 2007
South African Journal on Human Rights - Volume 23, Issue 2, 2007
Volume 23, Issue 2, 2007
Source: South African Journal on Human Rights 23, pp 209 –213 (2007)More Less
Developed, developing, and transitional countries are all marked, to different degrees and in different ways, by deep inequalities of gender, race, disability, religion, sexual orientation, and other fault-lines of prejudice, disadvantage, and exclusion. In many countries, equality legislation initially sought to free individuals from the negative effects of these group characteristics, believing that in a colour-blind and gender-neutral world individuals could thrive and develop their potential free from stereotypical assumptions.
Author Sandra FredmanSource: South African Journal on Human Rights 23, pp 214 –234 (2007)More Less
This paper examines the traditional dichotomy between measures addressing socio-economic inequalities and those aimed at inequality based on status, such as race, gender, disability or sexual orientation. using the conceptual framework of recognition and redistribution developed by Nancy Fraser and others, I argue that it is no longer tenable to keep the two spheres separate. Constructing a concept of socio-economic equality without considering the implications for status-based inequality can be damaging and ineffective. conversely, status-based measures are limited by their inability to mobilise the redistributive measures necessary to make real equality of opportunity and genuine choice possible. The paper begins by examining the interaction between socio-economic and status-based equality. I then sketch out a multi-dimensional notion of substantive equality which attempts to create a synthesis between the aims of both spheres. In the final part, I make some very tentative suggestions as to how the interpenetration can be more meaningfully captured in legal frameworks.
Author Judy FudgeSource: South African Journal on Human Rights 23, pp 235 –252 (2007)More Less
This article seeks to discover why constitutionally guaranteed equality rights have had a limited redistributive impact in Canada. It begins by reviewing different conceptions of equality, identifying the conception that is dominant within the Supreme court's jurisprudence, and illustrating how this conception is not conducive to redistribution. It then shifts to Newfoundland v NAPE, a 2004 decision of the Supreme court of Canada in which a unanimous Court upheld, as a demonstrably justified limitation on equality rights, legislation enacted by the Newfoundland government that overrode the pay equity agreement the government had negotiated with the unions representing women health-care workers. As this case proceeded through the courts, the national press reported a debate amongst Canadian elites about whether it was legitimate for the courts to issue decisions that interfered with the ability of elected governments to determine their spending priorities. The discussion of Newfoundland v NAPE emphasizes four themes in the decision that block or impede the redistributive potential of substantive equality - private debts versus public obligations, dignity versus distribution, fiscal crisis, and the separation of powers - which function as formidable hurdles for the transposition of a conception of substantive equality that is strongly redistributive into Canadian jurisprudence.
Author Catherine AlbertynSource: South African Journal on Human Rights 23, pp 253 –276 (2007)More Less
This article considers whether 'substantive equality', as a transformative idea and legal mechanism in the South African constitution, can generate legal solutions and court decisions that may result in transformative change. It does so by establishing a framework for analysing the 'inclusionary' or 'transformatory' effects of equality cases in relation to gender and sexual orientation. It argues that the idea of substantive equality is capable of addressing diverse forms of social and economic inequality, and that the legal form of substantive equality adopted by the constitutional court, emphasising context, impact, difference and values, has some potential for achieving meaningful social and economic change by and through courts. However, the manner is which the court has engaged with this legal form suggests that the transformative possibilities of equality are constrained by a number of factors. These include institutional concerns, the capacity and willingness of judges to recognise and address the multiple systemic inequalities that still pervade our society as well as their ability to develop a consistently transformative jurisprudence that applies the ideas of substantive equality to the concepts and doctrines that underpin many equality claims.
Author kamala SankaranSource: South African Journal on Human Rights 23, pp 277 –290 (2007)More Less
This article examines the manner in which the Indian constitution deals with diversity and inequality. It explores the linkages between constitutionally approved special provisions for certain groups, particularly women, and the broad interpretation of the constitutional right to 'life', which includes socio-economic rights. the article argues that, while special provisions are perceived to threaten access by other groups to education or jobs, the socio-economic rights that are increasingly being read into the right to life are relatively non-controversial since they do not readily translate into dedicated budgetary outlays, even though relief on a case-by-case basis is granted by the courts.
Author Siobhan MullallySource: South African Journal on Human Rights 23, pp 291 –316 (2007)More Less
The pursuit of substantive equality through legal strategies has met with significant obstacles in Ireland. Positive duties are one of a number of measures adopted in the pursuit of substantive equality, taking legal strategies beyond the limits of anti-discrimination laws. the reluctance to introduce positive duties to promote equality in Ireland is due largely to the absence of a substantive vision of equality and a growing antipathy towards socio-economic rights. this reluctance has particular implications for women. Over the last decade, the emergence of the so-called 'celtic tiger' economy has brought with it significant tensions concerning the distribution of care responsibilities in the domestic sphere. These tensions highlight deeper conflicts within Ireland's welfare regime and the limits of equality laws in tackling substantive inequality. This article traces these limits, highlighting the growing gap between equality protection in Ireland, North and South, and its detrimental impact on gender equality.
Author Joanne ConaghanSource: South African Journal on Human Rights 23, pp 317 –334 (2007)More Less
This article considers the viability of intersectionality as an analytical and strategic tool within the context of recent UK equality initiatives, in particular the expansion of grounds upon which a discrimination claim can be based, the establishment of a new single equality body, the commission of Equality and Human rights (CEHR), and the anticipated streamlining of equality legislation. The article contends that while intersectionality has played an important role in widening the terms of the debate around equality law and discourse, it has limited long-term purchase in the battle to combat inequality. The article considers the ways in which the concept of intersectionality has been deployed and explores current UK equality developments with an intersectional dimension. The article concludes with an analysis of the limits of intersectionality as a path to equality through law.
The interrelationship between equality and socio-economic rights under South Africa's transformative constitutionSource: South African Journal on Human Rights 23, pp 335 –361 (2007)More Less
This article develops the interrelationship between the equality and socio-economic rights in the Bill of Rights to enhance the responsiveness of our jurisprudence to the mutually reinforcing patterns of poverty and inequality in South Africa. We proceed from the principle that rights are interdependent and interconnected, and examine the implications of this for our evolving socio-economic rights and equality jurisprudence. We argue that such a reading accords with the mandate of the courts to promote the foundational constitutional values of human dignity, equality and freedom in their interpretation of the Bill of Rights, and advances the transformative goals of the constitution. The article examines how equality jurisprudence should be developed so as to be more responsive to material disadvantage and the values protected by socio-economic rights. thereafter, it examines how an equality perspective can enrich South Africa's evolving jurisprudence on socio-economic rights. We demonstrate how the value of equality can be integrated within the model of reasonableness review developed by the constitutional court for evaluating positive socio-economic rights claims. Finally, some of the strategic implications of this interdependent reading of equality and socio-economic rights for developing a jurisprudence that facilitates the attainment of social and economic transformation in South Africa are considered.
The Fifth Bram Fischer Memorial Lecture : the emperor's new clothes : Bram Fischer and the need for dissentAuthor Pius LangaSource: South African Journal on Human Rights 23, pp 362 –372 (2007)More Less
Bram Fischer lived a life of courage and had an instinctive will to do what he believed in; that is what set him apart from many in his generation. His refusal to conform because of his convictions pitted him against both his Afrikaner heritage and his profession as a lawyer. He chose to speak his mind and to follow his conscience, regardless of the cost to himself. today we are able to say that his life and activities were central in the creation of the democracy we cherish.
The role of courts in the development of the common law under s 39(2) : Masiya v Director of Public Prosecutions Pretoria (The State) and Another CCT Case 54/06 (10 May 2007) : notes and commentsAuthor Solomon A. DerssoSource: South African Journal on Human Rights 23, pp 373 –385 (2007)More Less
Although the decision in Masiya v Director of Public Prosecutions (Pretoria) dealt with several issues, this note addresses only the question of how the constitutional court framed and resolved the tension between its constitutional obligation to promote the spirit, purport and object of the Bill of Rights and the doctrine of separation of powers.
Source: South African Journal on Human Rights 23, pp 386 –401 (2007)More Less
This note provides descriptive statistics on the work of the constitutional court of South Africa in 2006. The statistics are organised into tables with the method of constructing each table given in the text that follows. The objectives and methods of this annual set of statistics are more fully laid out in the 995 edition of the SAJHR. The statistics are organised into two parts. Part I covers decisions in which the court produced a written judgment, while Part II addresses those applications that were considered in chambers and then dismissed without a judgment being given.
Health & Democracy : A Guide to Human Rights, Health Law and Policy in Post-apartheid South Africa, Adila Hassim, Mark Heywood & Jonathan Berger (Eds) : book reviewAuthor Maleka Femida CassimSource: South African Journal on Human Rights 23, pp 403 –406 (2007)More Less
Section 27(1) of the constitution provides that everyone has the right 'to have access to health care services, including reproductive health care'. In post-apartheid South Africa, access to health care is a basic human right - a principle that was not accepted in the past, and is indeed still not accepted in many other countries. despite this crucial development in our law, the health status of South Africans continues progressively to worsen and decline.