"Negative" Rights vs. "Positive" Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order

Human Rights Quarterly

Volumn 22, Issue 4, 2000, Pages 1060-1097

  Hirschl, Ran ^a  

^a NONE

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EID: 0347040465     PISSN: 02750392     EISSN: None     Source Type: Journal    
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References (125)

1. The full list of countries that have undergone fundamental constitutional reform since the early 1970s is too long to cite. For example, Canada adopted a Charter of Rights in 1982; New Zealand did likewise in 1990; as did Hong Kong in 1991. Almost all the new democracies in eastern Europe adopted bills of basic rights as part of their new constitutions. Israel adopted new Basic Laws on human rights in 1992. Denmark incorporated the provisions of the European Convention on Human Rights into its domestic law in 1993, followed by Sweden in 1995. South Africa adopted a Bill of Rights as part of its new constitution in 1996. Even Britain, one of the last bastions of the Westminster system, has recently enacted the Human Rights Act 1998 (will come into force on 2 Oct. 2000) which effectively incorporates the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) into British constitutional law; this enactment marks the first rights legislation to be introduced in the U.K. in 300 years. For comprehensive surveys, see generally CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (G.H. Flanz ed., 2000).
2. For recent critique of the American parochialism in this regard, see, e.g., Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH., L. REV. 415 (2000); George P. Fletcher, Comparative Law as a Subversive Discipline, 46 AM. J. COMP. L. 683 (1998); Bruce Ackerman, The Rise of World Constitutionalism, in YALE LAW SCHOOL OCCASIONAL PAPERS, SECOND SERIES, NUMBER 3 (1997); HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE (1996); Martin Shapiro, Public Law and Judicial Politics, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II 365 (Ada W. Finifter ed., 1993).
3. For recent critique of the American parochialism in this regard, see, e.g., Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH., L. REV. 415 (2000); George P. Fletcher, Comparative Law as a Subversive Discipline, 46 AM. J. COMP. L. 683 (1998); Bruce Ackerman, The Rise of World Constitutionalism, in YALE LAW SCHOOL OCCASIONAL PAPERS, SECOND SERIES, NUMBER 3 (1997); HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE (1996); Martin Shapiro, Public Law and Judicial Politics, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II 365 (Ada W. Finifter ed., 1993).
4. For recent critique of the American parochialism in this regard, see, e.g., Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH., L. REV. 415 (2000); George P. Fletcher, Comparative Law as a Subversive Discipline, 46 AM. J. COMP. L. 683 (1998); Bruce Ackerman, The Rise of World Constitutionalism, in YALE LAW SCHOOL OCCASIONAL PAPERS, SECOND SERIES, NUMBER 3 (1997); HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE (1996); Martin Shapiro, Public Law and Judicial Politics, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II 365 (Ada W. Finifter ed., 1993).
5. For recent critique of the American parochialism in this regard, see, e.g., Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH., L. REV. 415 (2000); George P. Fletcher, Comparative Law as a Subversive Discipline, 46 AM. J. COMP. L. 683 (1998); Bruce Ackerman, The Rise of World Constitutionalism, in YALE LAW SCHOOL OCCASIONAL PAPERS, SECOND SERIES, NUMBER 3 (1997); HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE (1996); Martin Shapiro, Public Law and Judicial Politics, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II 365 (Ada W. Finifter ed., 1993).
6. For recent critique of the American parochialism in this regard, see, e.g., Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH., L. REV. 415 (2000); George P. Fletcher, Comparative Law as a Subversive Discipline, 46 AM. J. COMP. L. 683 (1998); Bruce Ackerman, The Rise of World Constitutionalism, in YALE LAW SCHOOL OCCASIONAL PAPERS, SECOND SERIES, NUMBER 3 (1997); HERBERT JACOB ET AL., COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE (1996); Martin Shapiro, Public Law and Judicial Politics, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE II 365 (Ada W. Finifter ed., 1993).
7. CAN. CONST. (Constitution Act, 1982), pt. I (Canadian Charter of Rights and Freedoms).
8. For studying the political origins of judicial empowerment through the constitutionalization of rights and the fortification of judicial review, see Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 L. & Soc. INQUIRY 91 (2000).
9. Canada features a decentralized model of judicial review whereby the constitutionality of laws may be determined by ordinary judicial courts. Under this system of judicial review, there is no special body empowered to decide upon the constitutionality of state action. Thus almost all courts (state, federal, or Supreme) have the power of judicial review of constitutionality. Israel features a centralized system of judicial review whereby the Supreme Court is the only body to determine the constitutionality of laws. New Zealand has followed the "preferential" model of judicial review that has been established over the past decade in several common law countries with a long tradition
10. The Constitution Act, 1982 is Schedule B of the Canada Act 1982, c. 11 (U.K.). The full text of the 1982 Constitution Act and the Charter of Rights and Freedoms is reproduced in many books dealing with Canadian constitutional law and politics. See, e.g., Peter W. Hogg, CONSTITUTIONAL LAW OF CANADA 1109 (1999).
11. The British North America Act, 1867 (U.K.); renamed the Constitution Act, 1867 by Constitution Act, 1982. The B.N.A. Act was passed in 1867 by the United Kingdom Parliament to create the Canadian federation. Among other things, the Act united the provinces of Canada (divided into two new provinces, Ontario and Quebec), Nova Scotia, and New Brunswick into a single "Dominion" under the name of Canada, established a bi-cameral national Parliament, as well as the fundamental distribution of legislative powers between the federal Parliament and the provincial Legislatures.
12. For recent accounts of the impact of the Charter on the judicialization of politics in Canada, see Christopher Manfredi, The Judicialization of Politics: Rights and Public Policy in Canada and the United States, in DEGREES OF FREEEDOM: CANADA AND THE UNITED STATES IN A CHANGING WORLD 310 (Keith Banting et al. eds., 1997); F.L. Morton, The Effect of the Charter of Rights on Canadian Federalism, 25 PUBLIUS 173 (1995); MICHAEL MANDEL, THE CHARTER OF RIGHTS AND THE LEGALIZATION OF POLITICS IN CANADA (1994).
13. For recent accounts of the impact of the Charter on the judicialization of politics in Canada, see Christopher Manfredi, The Judicialization of Politics: Rights and Public Policy in Canada and the United States, in DEGREES OF FREEEDOM: CANADA AND THE UNITED STATES IN A CHANGING WORLD 310 (Keith Banting et al. eds., 1997); F.L. Morton, The Effect of the Charter of Rights on Canadian Federalism, 25 PUBLIUS 173 (1995); MICHAEL MANDEL, THE CHARTER OF RIGHTS AND THE LEGALIZATION OF POLITICS IN CANADA (1994).
14. For recent accounts of the impact of the Charter on the judicialization of politics in Canada, see Christopher Manfredi, The Judicialization of Politics: Rights and Public Policy in Canada and the United States, in DEGREES OF FREEEDOM: CANADA AND THE UNITED STATES IN A CHANGING WORLD 310 (Keith Banting et al. eds., 1997); F.L. Morton, The Effect of the Charter of Rights on Canadian Federalism, 25 PUBLIUS 173 (1995); MICHAEL MANDEL, THE CHARTER OF RIGHTS AND THE LEGALIZATION OF POLITICS IN CANADA (1994).
15. How the Charter Changes Justice (An interview with Chief Justice Lamer), THE GLOBE & MAIL, 17 Apr. 1992, at A11.
16. The full text of the New Zealand Bill of Rights Act 1990 is reproduced in many books dealing with New Zealand's constitutional law and politics. See, e.g., RIGHTS AND FREEDOMS: THE NEW ZEALAND BILL OF RIGHTS ACT 1990 AND THE HUMAN RIGHTS ACT 1993, at 500 (Grant Huscroft & Paul Rishworth eds., 1995) [hereinafter RIGHTS AND FREEDOMS]. For a comprehensive discussion of the Bill's operational provisions, see P. Joseph, The New Zealand Bill of Rights Act 1990, 7 PUB. L. REV. 76 (1996).
17. The full text of the New Zealand Bill of Rights Act 1990 is reproduced in many books dealing with New Zealand's constitutional law and politics. See, e.g., RIGHTS AND FREEDOMS: THE NEW ZEALAND BILL OF RIGHTS ACT 1990 AND THE HUMAN RIGHTS ACT 1993, at 500 (Grant Huscroft & Paul Rishworth eds., 1995) [hereinafter RIGHTS AND FREEDOMS]. For a comprehensive discussion of the Bill's operational provisions, see P. Joseph, The New Zealand Bill of Rights Act 1990, 7 PUB. L. REV. 76 (1996).
18. The Human Rights Act, 1993 (N.Z.) prohibits discrimination on the basis of sex, marital status, religious belief, ethical belief, color, race, ethnic or national origin, disability, age, political opinion, employment status, or family status. The Privacy Act, 1993 (N.Z.) aims to protect individuals by regulating the disclosure of information about them. For a detailed discussion of the new legal protection of rights and liberties in New Zealand, see the essays in RIGHTS AND FREEDOMS, supra note 13.
19. See Lord Cooke, A Sketch from the Blue Train, N.Z.L. J. 10-13 (1994).
20. In 1994, for example, the Court observed that lack of entrenchment and constitutional status "makes no difference to the strength of the Bill of Rights where it is to be applied." See Simpson v. Attorney Gen. [1994] 3 N.Z.L.R. 667, 706. This and other recent decisions of the Court of Appeal indicate that the Bill of Rights, though non-entrenched, may gradually gain sufficient legal and political authority to allow the courts to practically exercise most of the powers of scrutiny and control they would have had under a system of full-scale judicial review.
21. For a similar view, see P. Joseph, The Shifting Terrain of Judicial Review, N.Z.L. J. (1999). R. Harrison, Judicial Review: Recent Trends, Id.
22. For a similar view, see P. Joseph, The Shifting Terrain of Judicial Review, N.Z.L. J. (1999). R. Harrison, Judicial Review: Recent Trends, Id.
23. See, e.g., RIGHTS AND FREEDOMS, supra note 11; Joseph, supra note 11; Joseph, supra note 15, at 85; Harrison, supra note 15.
24. Sir Ivor Richardson, Rights Jurisprudence - Justice for All? in ESSAYS ON THE CONSTITUTION 61, 75 (Philip A. Joseph ed., 1995).
25. For detailed accounts of the historical roots of this situation, see C. Goldberg, Religious Zionism and the Framing of a Constitution for Israel, 3 ISR. STUD. 211 (1998); Ruth Gavison, The Controversy Over Israel's Bill of Rights, 15 ISR. Y.B. HUM. RTS. 113 (1985); Philippa Strum, The Road Not Taken: Constitutional Non-Decision Making in 1948- 1950 and Its Impact on Civil Liberties in the Israeli Political Culture, in ISRAEL: THE FIRST DECADE OF INDEPENDENCE 83 (S. Ilan Troen & Noah Lucas eds., 1995).
26. For detailed accounts of the historical roots of this situation, see C. Goldberg, Religious Zionism and the Framing of a Constitution for Israel, 3 ISR. STUD. 211 (1998); Ruth Gavison, The Controversy Over Israel's Bill of Rights, 15 ISR. Y.B. HUM. RTS. 113 (1985); Philippa Strum, The Road Not Taken: Constitutional Non-Decision Making in 1948- 1950 and Its Impact on Civil Liberties in the Israeli Political Culture, in ISRAEL: THE FIRST DECADE OF INDEPENDENCE 83 (S. Ilan Troen & Noah Lucas eds., 1995).
27. For detailed accounts of the historical roots of this situation, see C. Goldberg, Religious Zionism and the Framing of a Constitution for Israel, 3 ISR. STUD. 211 (1998); Ruth Gavison, The Controversy Over Israel's Bill of Rights, 15 ISR. Y.B. HUM. RTS. 113 (1985); Philippa Strum, The Road Not Taken: Constitutional Non-Decision Making in 1948-1950 and Its Impact on Civil Liberties in the Israeli Political Culture, in ISRAEL: THE FIRST DECADE OF INDEPENDENCE 83 (S. Ilan Troen & Noah Lucas eds., 1995).
28. For further discussion, see ITZHAK ZAMIR & ALLEN ZYBSBLADT, PUBLIC LAW IN ISRAEL (1996); A. RUBINSTEIN, THE CONSTITUTIONAL LAW OF THE STATE OF ISRAEL (1996) [Hebrew]; GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES (1993).
29. For further discussion, see ITZHAK ZAMIR & ALLEN ZYBSBLADT, PUBLIC LAW IN ISRAEL (1996); A. RUBINSTEIN, THE CONSTITUTIONAL LAW OF THE STATE OF ISRAEL (1996) [Hebrew]; GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES (1993).
30. For further discussion, see ITZHAK ZAMIR & ALLEN ZYBSBLADT, PUBLIC LAW IN ISRAEL (1996); A. RUBINSTEIN, THE CONSTITUTIONAL LAW OF THE STATE OF ISRAEL (1996) [Hebrew]; GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES (1993).
31. In the years before 1992, the Knesset passed nine basic laws, primarily covering the powers vested in the various branches of government. None of these laws, however, provided any sort of constitutional protection for human rights or civil liberties.
32. See Basic Law: Human Dignity and Liberty, 1992, S.H. 1391 (enacted by the Knesset on 17 Mar. 1992, two weeks after Basic Law: Freedom of Occupation); Basic Law: Freedom of Occupation, 1994, S.H. 1454 (amended version of 9 Mar. 1994 replaced original of 3 Mar. 1992). The official English version of the new Basic Laws is reprinted in 〈http://www.mfa.gov.il/mfa/go.asp/〉.
33. See Basic Law: The Government, 1992, S.H. 1396.
34. Basic Law: Human Dignity and Liberty, § 8; Basic Law: Freedom of Occupation, § 4.
35. Justice Aharon Barak, The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law, 31 ISR. L. REV. 3 (1997).
36. See, e.g., Justice Aharon Barak, The Israeli Constitution: Past, Present and Future, 43 HA'PERAKLIT 5 (1996) [Hebrew]; A. Maoz, Constitutional Law: The Constitutional Revolution, in Y.B. ISR. L. 1996-1997 (A. Rozen-Zvi ed., 1996) [Hebrew]; Justice Aharon Barak, A Constitutional Revolution: Israel's Basic Laws, 4 CONST. F. 83 (1993); Pnina Lahav, Rights and Democracy: The Court's Performance, in ISRAELI DEMOCRACY UNDER STRESS 125 (Ehud Sprinzak & Larry Diamond eds., 1993); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law? 26 ISR. L. REV. 238 (1992).
37. See, e.g., Justice Aharon Barak, The Israeli Constitution: Past, Present and Future, 43 HA'PERAKLIT 5 (1996) [Hebrew]; A. Maoz, Constitutional Law: The Constitutional Revolution, in Y.B. ISR. L. 1996-1997 (A. Rozen-Zvi ed., 1996) [Hebrew]; Justice Aharon Barak, A Constitutional Revolution: Israel's Basic Laws, 4 CONST. F. 83 (1993); Pnina Lahav, Rights and Democracy: The Court's Performance, in ISRAELI DEMOCRACY UNDER STRESS 125 (Ehud Sprinzak & Larry Diamond eds., 1993); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law? 26 ISR. L. REV. 238 (1992).
38. See, e.g., Justice Aharon Barak, The Israeli Constitution: Past, Present and Future, 43 HA'PERAKLIT 5 (1996) [Hebrew]; A. Maoz, Constitutional Law: The Constitutional Revolution, in Y.B. ISR. L. 1996-1997 (A. Rozen-Zvi ed., 1996) [Hebrew]; Justice Aharon Barak, A Constitutional Revolution: Israel's Basic Laws, 4 CONST. F. 83 (1993); Pnina Lahav, Rights and Democracy: The Court's Performance, in ISRAELI DEMOCRACY UNDER STRESS 125 (Ehud Sprinzak & Larry Diamond eds., 1993); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law? 26 ISR. L. REV. 238 (1992).
39. See, e.g., Justice Aharon Barak, The Israeli Constitution: Past, Present and Future, 43 HA'PERAKLIT 5 (1996) [Hebrew]; A. Maoz, Constitutional Law: The Constitutional Revolution, in Y.B. ISR. L. 1996-1997 (A. Rozen-Zvi ed., 1996) [Hebrew]; Justice Aharon Barak, A Constitutional Revolution: Israel's Basic Laws, 4 CONST. F. 83 (1993); Pnina Lahav, Rights and Democracy: The Court's Performance, in ISRAELI DEMOCRACY UNDER STRESS 125 (Ehud Sprinzak & Larry Diamond eds., 1993); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law? 26 ISR. L. REV. 238 (1992).
40. See, e.g., Justice Aharon Barak, The Israeli Constitution: Past, Present and Future, 43 HA'PERAKLIT 5 (1996) [Hebrew]; A. Maoz, Constitutional Law: The Constitutional Revolution, in Y.B. ISR. L. 1996-1997 (A. Rozen-Zvi ed., 1996) [Hebrew]; Justice Aharon Barak, A Constitutional Revolution: Israel's Basic Laws, 4 CONST. F. 83 (1993); Pnina Lahav, Rights and Democracy: The Court's Performance, in ISRAELI DEMOCRACY UNDER STRESS 125 (Ehud Sprinzak & Larry Diamond eds., 1993); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law? 26 ISR. L. REV. 238 (1992).
41. See CHARLES FRIED, RIGHT AND WRONG 110 (1978). In a recently published article, Cécile Fahre relies on the 'duty distinction' to distinguish between negative and positive rights: "(N]egative rights ground negative duties of non-interference, they are not assigned to scarse goods and therefore do not conflict with one another; by contrast . . . positive rights ground positive duties to help and resources." See C. Fabre, Constitutionalising Social Rights, 6 J. POL. PHIL. 263, 264 (1998).
42. See CHARLES FRIED, RIGHT AND WRONG 110 (1978). In a recently published article, Cécile Fahre relies on the 'duty distinction' to distinguish between negative and positive rights: "(N]egative rights ground negative duties of non-interference, they are not assigned to scarse goods and therefore do not conflict with one another; by contrast . . . positive rights ground positive duties to help and resources." See C. Fabre, Constitutionalising Social Rights, 6 J. POL. PHIL. 263, 264 (1998).
43. See, e.g., HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY (1980); J. Waldron, Welfare and the Images of Charity, 36 PHIL. STUD. 463 (1986); Jeremy Waldron, Rights, in A COMPANION TO CONTEMPORARY POLITICAL PHILOSOPHY 575, 579 (Robert E. Goodin & Philip Pettit eds., 1995).
44. See, e.g., HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY (1980); J. Waldron, Welfare and the Images of Charity, 36 PHIL. STUD. 463 (1986); Jeremy Waldron, Rights, in A COMPANION TO CONTEMPORARY POLITICAL PHILOSOPHY 575, 579 (Robert E. Goodin & Philip Pettit eds., 1995).
45. See, e.g., HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY (1980); J. Waldron, Welfare and the Images of Charity, 36 PHIL. STUD. 463 (1986); Jeremy Waldron, Rights, in A COMPANION TO CONTEMPORARY POLITICAL PHILOSOPHY 575, 579 (Robert E. Goodin & Philip Pettit eds., 1995).
46. For a comprehensive discussion of the moral foundations of "positive" social rights and their constitutional entrenchment in numerous national constitutions and international treaties and covenants, see K.D. Ewing, Social Rights and Constitutional Law, PUB. L. (Spring 1999), 104; Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in A New South African Constitution, 141 U. PA. L. REV. 1 (1992).
47. For a comprehensive discussion of the moral foundations of "positive" social rights and their constitutional entrenchment in numerous national constitutions and international treaties and covenants, see K.D. Ewing, Social Rights and Constitutional Law, PUB. L. (Spring 1999), 104; Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in A New South African Constitution, 141 U. PA. L. REV. 1 (1992).
48. See, e.g., STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS; WHY LIBERTY DEPENDS ON TAXES (1999); SHUE, supra note 27.
49. The official collections of high court decisions for each of these countries are published several times a year under the following titles: the Supreme Court Reports (S.C.R.) -Canada; Piskey Din (Supreme Court Decisions, in Hebrew) - Israel; and the New Zealand Law Reports - New Zealand. All the data bases for this analysis are on file with the author. All decisions of the national high courts of all three countries are published on the web at 〈www.court.gov.il〈 (Israel); 〈www.brookers.co.nz/legal/judgments〉 (New Zealand); and 〈www.lexum.umontreal.ca/csc-scc/en/index.html〉 (Canada).
50. See CF.H. 2316/95 G'nimmat v. State, 49(4) P.D. 589 (lsr.) [Hebrew]; C.A. 1302/92 State v. Nahamias, 49(3) 309 (Isr.) [Hebrew]. On the impact of the constitutional revolution on procedural criminal law in Israel, see Barak, supra note 25; and E. Gross, The New Constitutional Rights of the Defendant in Israel, 1 3 BAR-ILAN L. STUD. 155 (1996) [Hebrew].
51. In this context, it is important to note that despite the growing inclination of the Israeli Supreme Court to give the provisions of Basic Law: Human Dignity and Liberty a relatively generous interpretation when dealing with cases involving due process and legal rights, the Court has been much less vigilant in protecting the legal rights of security detainees and prisoners (almost all of whom are Arab-Israeli citizens and Arab residents). On the Israeli Supreme Court's record in protecting rights of Arab-Israeli citizens and Arab residents of the Occupied Territories, see, e.g., MENACHEM HOFNUNG DEMOCRACY, LAW AND NATIONAL SECURITY IN ISRAEL (1996); ILAN PELEG, HUMAN RIGHTS IN THE WEST BANK AND GAZA: LEGACY AND POLITICS (1995); Ronen Shamir, Suspended in Space: Bedouins under the Law of Israel, 30 L. & SOC'Y REV. 231 (1996); Ronen Shamir, "Landmark Cases" and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice," 24 L. & SOC'Y REV 781 (1990); DAVID KRETZMER, THE LEGAL STATUS OF THE ARABS IN ISRAEL (1990) The Court only very recently ceased to reject human rights organizations' claims that the use of systematic torture and inhumane treatment of Arab-Israeli and Palestinian detainees by the Israeli security services is unconstitutional, and thus contradicts the provisions of Basic Law: Human Dignity and Liberty. In an ironic variation on this position the Court recently ruled (C.A. 1684/96, "Tnu La'khayot Likhyot" (Let the Animals Live) v. Hamat Gader Vacation Indus. Ltd., 51(3) 832 [Hebrew], that based on Basic Law Human Dignity and Liberty, alligators in a zoo have the right to be kept and removed under humane conditions. No one doubts, of course, the importance of this decision and its positive implications for the improved treatment of animals. It is somewhat odd however, that alligators enjoy the constitutional right to basic humane conditions while human beings are still not constitutionally entitled to this basic right.
52. In this context, it is important to note that despite the growing inclination of the Israeli Supreme Court to give the provisions of Basic Law: Human Dignity and Liberty a relatively generous interpretation when dealing with cases involving due process and legal rights, the Court has been much less vigilant in protecting the legal rights of security detainees and prisoners (almost all of whom are Arab-Israeli citizens and Arab residents). On the Israeli Supreme Court's record in protecting rights of Arab-Israeli citizens and Arab residents of the Occupied Territories, see, e.g., MENACHEM HOFNUNG DEMOCRACY, LAW AND NATIONAL SECURITY IN ISRAEL (1996); ILAN PELEG, HUMAN RIGHTS IN THE WEST BANK AND GAZA: LEGACY AND POLITICS (1995); Ronen Shamir, Suspended in Space: Bedouins under the Law of Israel, 30 L. & SOC'Y REV. 231 (1996); Ronen Shamir, "Landmark Cases" and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice," 24 L. & SOC'Y REV 781 (1990); DAVID KRETZMER, THE LEGAL STATUS OF THE ARABS IN ISRAEL (1990) The Court only very recently ceased to reject human rights organizations' claims that the use of systematic torture and inhumane treatment of Arab-Israeli and Palestinian detainees by the Israeli security services is unconstitutional, and thus contradicts the provisions of Basic Law: Human Dignity and Liberty. In an ironic variation on this position the Court recently ruled (C.A. 1684/96, "Tnu La'khayot Likhyot" (Let the Animals Live) v. Hamat Gader Vacation Indus. Ltd., 51(3) 832 [Hebrew], that based on Basic Law Human Dignity and Liberty, alligators in a zoo have the right to be kept and removed under humane conditions. No one doubts, of course, the importance of this decision and its positive implications for the improved treatment of animals. It is somewhat odd however, that alligators enjoy the constitutional right to basic humane conditions while human beings are still not constitutionally entitled to this basic right.
53. In this context, it is important to note that despite the growing inclination of the Israeli Supreme Court to give the provisions of Basic Law: Human Dignity and Liberty a relatively generous interpretation when dealing with cases involving due process and legal rights, the Court has been much less vigilant in protecting the legal rights of security detainees and prisoners (almost all of whom are Arab-Israeli citizens and Arab residents). On the Israeli Supreme Court's record in protecting rights of Arab-Israeli citizens and Arab residents of the Occupied Territories, see, e.g., MENACHEM HOFNUNG DEMOCRACY, LAW AND NATIONAL SECURITY IN ISRAEL (1996); ILAN PELEG, HUMAN RIGHTS IN THE WEST BANK AND GAZA: LEGACY AND POLITICS (1995); Ronen Shamir, Suspended in Space: Bedouins under the Law of Israel, 30 L. & SOC'Y REV. 231 (1996); Ronen Shamir, "Landmark Cases" and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice," 24 L. & SOC'Y REV 781 (1990); DAVID KRETZMER, THE LEGAL STATUS OF THE ARABS IN ISRAEL (1990) The Court only very recently ceased to reject human rights organizations' claims that the use of systematic torture and inhumane treatment of Arab-Israeli and Palestinian detainees by the Israeli security services is unconstitutional, and thus contradicts the provisions of Basic Law: Human Dignity and Liberty. In an ironic variation on this position the Court recently ruled (C.A. 1684/96, "Tnu La'khayot Likhyot" (Let the Animals Live) v. Hamat Gader Vacation Indus. Ltd., 51(3) 832 [Hebrew], that based on Basic Law Human Dignity and Liberty, alligators in a zoo have the right to be kept and removed under humane conditions. No one doubts, of course, the importance of this decision and its positive implications for the improved treatment of animals. It is somewhat odd however, that alligators enjoy the constitutional right to basic humane conditions while human beings are still not constitutionally entitled to this basic right.
54. In this context, it is important to note that despite the growing inclination of the Israeli Supreme Court to give the provisions of Basic Law: Human Dignity and Liberty a relatively generous interpretation when dealing with cases involving due process and legal rights, the Court has been much less vigilant in protecting the legal rights of security detainees and prisoners (almost all of whom are Arab-Israeli citizens and Arab residents). On the Israeli Supreme Court's record in protecting rights of Arab-Israeli citizens and Arab residents of the Occupied Territories, see, e.g., MENACHEM HOFNUNG DEMOCRACY, LAW AND NATIONAL SECURITY IN ISRAEL (1996); ILAN PELEG, HUMAN RIGHTS IN THE WEST BANK AND GAZA: LEGACY AND POLITICS (1995); Ronen Shamir, Suspended in Space: Bedouins under the Law of Israel, 30 L. & SOC'Y REV. 231 (1996); Ronen Shamir, "Landmark Cases" and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice," 24 L. & SOC'Y REV 781 (1990); DAVID KRETZMER, THE LEGAL STATUS OF THE ARABS IN ISRAEL (1990) The Court only very recently ceased to reject human rights organizations' claims that the use of systematic torture and inhumane treatment of Arab-Israeli and Palestinian detainees by the Israeli security services is unconstitutional, and thus contradicts the provisions of Basic Law: Human Dignity and Liberty. In an ironic variation on this position the Court recently ruled (C.A. 1684/96, "Tnu La'khayot Likhyot" (Let the Animals Live) v. Hamat Gader Vacation Indus. Ltd., 51(3) 832 [Hebrew], that based on Basic Law Human Dignity and Liberty, alligators in a zoo have the right to be kept and removed under humane conditions. No one doubts, of course, the importance of this decision and its positive implications for the improved treatment of animals. It is somewhat odd however, that alligators enjoy the constitutional right to basic humane conditions while human beings are still not constitutionally entitled to this basic right.
55. In this context, it is important to note that despite the growing inclination of the Israeli Supreme Court to give the provisions of Basic Law: Human Dignity and Liberty a relatively generous interpretation when dealing with cases involving due process and legal rights, the Court has been much less vigilant in protecting the legal rights of security detainees and prisoners (almost all of whom are Arab-Israeli citizens and Arab residents). On the Israeli Supreme Court's record in protecting rights of Arab-Israeli citizens and Arab residents of the Occupied Territories, see, e.g., MENACHEM HOFNUNG DEMOCRACY, LAW AND NATIONAL SECURITY IN ISRAEL (1996); ILAN PELEG, HUMAN RIGHTS IN THE WEST BANK AND GAZA: LEGACY AND POLITICS (1995); Ronen Shamir, Suspended in Space: Bedouins under the Law of Israel, 30 L. & SOC'Y REV. 231 (1996); Ronen Shamir, "Landmark Cases" and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice," 24 L. & SOC'Y REV 781 (1990); DAVID KRETZMER, THE LEGAL STATUS OF THE ARABS IN ISRAEL (1990) The Court only very recently ceased to reject human rights organizations' claims that the use of systematic torture and inhumane treatment of Arab-Israeli and Palestinian detainees by the Israeli security services is unconstitutional, and thus contradicts the provisions of Basic Law: Human Dignity and Liberty. In an ironic variation on this position the Court recently ruled (C.A. 1684/96, "Tnu La'khayot Likhyot" (Let the Animals Live) v. Hamat Gader Vacation Indus. Ltd., 51(3) 832 [Hebrew], that based on Basic Law Human Dignity and Liberty, alligators in a zoo have the right to be kept and removed under humane conditions. No one doubts, of course, the importance of this decision and its positive implications for the improved treatment of animals. It is somewhat odd however, that alligators enjoy the constitutional right to basic humane conditions while human beings are still not constitutionally entitled to this basic right.
56. Basic Law: Human Dignity and Liberty, 1992 § 4.
57. See H.C. 5100/94, Public Comm. Against Torture in Israel v. State, decision released on 7 Sept. 1999 (unpublished) (Isr.).
58. Internal security regulations from 1987 allowed security forces to apply "moderate physical pressure" to suspects during interrogation. In 1994, following a series of suicide bombings, the government further eased restrictions on the use of physical force against suspects who might have knowledge of imminent terrorist attacks. The death in custody of several suspected Palestinian detainees highlighted the practice of violently "shaking" some detainees to obtain evidence.
59. Many of the NZBOR cases concerning criminal due process and remedies for breaches of the New Zealand Bill of Rights were recently summarized in R v. Grayson & Taylor 11997] 1 N.Z.L.R. 399.
60. See R. v. Kirifi [1992] 2 N.Z.L.R. 8; R. v. Butcher [1992] 2 N.Z.L.R. 257.
61. See Ministry of Trans. v. Noort [1992] 3 N.Z.L.R. 260.
62. See R. v. Goodwin [1993] 2 N.Z.L.R. 153; R. v. Te-Kira [1993] 3 N.Z.L.R. 257; R. v. Pratt [1994] 3 N.Z.L.R. 21.
63. See R. v. Jefferies [1994] 1 N.Z.L.R. 290; R. v. A. [1994] 1 N.Z.L.R. 429; R. v. Grayson & Taylor, supra note 37. The Court's generous interpretation of the NZBOR provisions protecting procedural due process rights is evident even in the Grayson ruling, where the Court handed down a slightly narrower interpretation of search and seizure NZBOR guarantees than had been adopted earlier by the Court in the Jefferieis case.
64. See Martin v. Tauranga Dist. Ct. [1995] 2 N.Z.L.R. 419 (reversing [1995] 1 N.Z.L.R. 491). See also R. v. Donaldson 11995] 3 N.Z.L.R. 641; R. v. Morin, 3 S.C.R. 286 (1992).
65. See Simpson v. Attorney-Gen. [1994] 3 N.Z.L.R. 667.
66. The Court of Appeal awarded monetary compensation for breaches of the NZBOR in several other cases. See, e.g., Auckland Unemployed Workers' Rights Centre, Inc. v. Attorney-Gen. [1994] 3 N.Z.L.R. 720.
67. For a comprehensive analysis of the Canadian Supreme Court's criminal due process adjudication, see KENT ROACH, DUE PROCESS AND VICTIMS' RIGHTS: THE NEW LAW AND POLITICS OF CRIMINAL JUSTICE (1999); DON STUART, CHARTER JUSTICE IN CANADIAN CRIMINAL LAW (2d ed. 1996).
68. For a comprehensive analysis of the Canadian Supreme Court's criminal due process adjudication, see KENT ROACH, DUE PROCESS AND VICTIMS' RIGHTS: THE NEW LAW AND POLITICS OF CRIMINAL JUSTICE (1999); DON STUART, CHARTER JUSTICE IN CANADIAN CRIMINAL LAW (2d ed. 1996).
69. See MANDEL, supra note 8, at 201.
70. See R. v. Feeney [1997] 2 S.C.R. 117.
71. See R. v. Seaboyer [1991] 2 S.C.R. 577.
72. See R. v. O'Connor [1995] 4 S.C.R. 411. See also R. v. Daviault [1994] 3 S.C.R 63.
73. See R. v. Mills (1999) 3 S.C.R. 668.
74. See R. v. M. [1996] 2 N.Z.L.R. 659.
75. See R. v. T. [1999] 2 N.Z.L.R. 602.
76. See R. v. CIP, Inc. [1992] 1 S.C.R. 843.
77. See JOEL BAKAN, JUST WORDS: CONSTITUTIONAL RIGHTS AND SOCIAL WRONGS 91 (1997).
78. The most important attempt was a "social union" provision included in the Charlottetown Accord, which was defeated in a national referendum in 1992.
79. R. v. Prosper [1994] 3 S.C.R. 236, 267.
80. Andrews v. Law Soc'y of B.C. [1989] 1 S.C.R. 143, 163-64.
81. See Adler v. Ontario [1996] 3 S.C.R. 609.
82. Id. at 61 3. Following the Court's decision, the parents presented the case before the UN Human Rights Committee (UNHRC). In 1999, the Committee released its recommendation stating that Ontario's refusal to fund non-Roman Catholic denominational schools amounts to a violation of fundamental freedom of religion and equality rights. Waldman v. Canada (1999), CCPR/c/c7/694/1999.
83. See Schachter v. Canada [1992] 2 S.C.R. 679. The Court held that unemployment insurance child care benefits had to be provided equally to both natural and adoptive parents, and that the Unemployment Insurance Act's provision of such benefits to the latter but not to the former was therefore unconstitutional.
84. See Eldridge v. British Columbia [1997] 3 S.C.R. 624. The Court held that the failure of hospitals and doctors to provide publicly funded sign-language interpretation as part of the provision of medical services was discriminatory towards deaf patients of the BC medicare system.
85. Geoffrey Palmer, CONSTITUTION IN CRISIS 57 (1992).
86. See Lawson v. Housing N.Z. (1997) 2 N.Z.L.R. 474.
87. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A./6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
88. Lawson [1997] 2 N.Z.L.R. at 494. In a similar spirit, the New Zealand Court of Appeal held recently that the decision of a semi-private health insurance company to remove a patient from a dialysis program and to discontinue his medical treatment based on his poor mental condition did not amount to a breach of the patient's right to life protected by Section 8 of the NZBOR. See Shortland v. Northland Health Ltd. [1998] 1 N.Z.L.R. 433.
89. Mendelssohn v. Attorney-Gen. [1999] 2 N.Z.L.R. 268.
90. On the different alternatives in interpreting Basic Law: Human Dignity and Liberty, see the Court's discussion in H.C. 454/94, The Women's Lobby in Israel v. Government of Israel, 48(5) P.D. 501 [Hebrew].
91. See Aharon Barak, Human Dignity as a Constitutional Right, 41 HA PERAKLIT 271 (1994) [Hebrew].
92. A. BARAK, LEGAL INTERPRETATION 419 (1994) [Hebrew].
93. See H.C. 1 554/95, G.I.L.A.T. v. Minister of Educ., 50(3) P.D. 2 [Hebrew].
94. Id. at 25-26 (translation mine, R.H.). The rationale behind the Court's decision seems to replicate the U.S. Supreme Court's landmark judgment in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), at 35, where the Court ruled that although "the grave significance of education both to the individual and to our society cannot to be doubted . . . education is not among the rights afforded explicit protection under the Federal Constitution. Nor do we find any basis for saying it is implicitly so protected."
95. See H.C. 3954/91, Agbaria v. Minister of Educ., 45(5) P.D. 472 [Hebrew].
96. See H.C. 240/98, Adalah v. The Minister of Religious Affairs, (decision released on 3 Sept. 1998; unpublished).
97. See H.C. 205/94, Nof v. Ministry of Defense, 50(5) P.D. 449 [Hebrew].
98. See, e.g., A. Yoran, The Constitutional Revolution in Taxation in Israel 23 MISHPATIM 55 (1994) [Hebrew].
99. Article 3 of the new Basic Law states: "A human being's property must not be harmed " Article 8 of the new law states: "Rights under this Basic Law must not be infringed, except by a Law appropriate to the values of the State of Israel which has a valid purpose, and then to an extent that does not exceed necessity." Basic Law Human Dignity and Liberty §§ 3, 8 (1992).
100. See C.A. 6821/93, United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195 [Hebrew]. For further discussion, see A. Gross, The Politics of Rights in Israeli Constitutional Law, 3 ISR. STUD. 80 (1998); C.A. 5209/91, State v. Ramid Ltd., 49(4) P.D. 830 [Hebrew].
101. United Mizrahi Bank 49(4) P.D. at 205 (translated by Ran Hirschl).
102. Such exclusion of positive social rights from any provisions for constitutional protection of rights is by no means limited to the three countries examined in this paper. For instance, despite the explicit protection of positive rights by Article 3 of the Italian Constitution of 1948, the Italian Constitutional Court degraded positive rights to second class, "programmatic" (read: unenforceable) status. See Michael Mandel, Legal Politics Italian Style, in THE GLOBAL EXPANSION OF JUDICIAL POWER 261 (C. Neal Tate & Torbjörn Vallinder eds., 1995). The South African Constitutional Court seems to be following this same trend despite the explicit recognition (subjective to available governmental resources) of some social rights in the newly enacted South African Constitution, and despite the outrageously unequal distribution of wealth that obstructs any meaningful attempt to establish social justice in the post-apartheid South Africa. See, e.g., Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 765 (CC); In re Gauteng Sch. Educ. Bill, 1996 (3) SA 165 (CC).
103. It is important to note in this regard that the judicial interpretation of constitutional rights provisions under market liberalism show a marked tendency to reflect that ideological atmosphere by protecting liberty and property rather than supporting state-underwritten regulatory employment laws. The best known example of this occurred during the era of "Lochnerism" in the United States, when a profoundly conservative Supreme Court used the Constitution's "Contract Clause," the "Taking Clause," and the 14th Amendment to block socially-progressive legislation for more than thirty years. During the "Lochner Era" (from 1885 to 1930, roughly-speaking), the U.S. Supreme Court struck down some 150 pieces of legislation concerning labor relations, labor conditions and working hours. In the famous Lochner ruling, the Court invalidated a state law that limited the working hours of bakers, claiming that the safety of bakers provided "no reasonable ground tor interfering with the liberty of person of the right of free contract." See Lochner v. New York, 198 U.S. 45 (1905). During the "Lochner Era," the Court declared unconstitutional laws banning 'yellow dog' contracts. See Adair v. U.S., 208 U.S. 161 (1908); Coppage v. kansas, 236 U.S. 1 (1915). Seee also adkins v. Children's Hosp. 261 U.S. 525 (1923) (laws requiring minimum wages for women); Hammer v. Dagenhart, 247 U.S. 251 (1918) (laws restricting child labor).
104. See Reference Re: Pub. Serv. Employee Relations Act (Alta.) [1987] 1 S.C.R. 313, 319-P.S.A C. v. Canada [1987] 1 S.C.R. 424; Saskatchewan v. Retail, Wholesale & Dep't Store Union Local 544 [1987] 38 D.L.R. (4th) 277 (Can.).
105. Public Serv. Employee Relations Act [1987] 1 S.C.R. at 319-20.
106. See Professional Inst. of the Pub. Serv. v. Northwest Territories (Commissioner) [1990]
107. See Retail Wholesale & Dep't Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] 2 S.C.R. 573. See also United Nurses v. Alberta [1992] 89 D.L.R. (4th) 609.
108. Retail, Wholesale & Dep't Store Union, Local 580 v. Dolphin Delivery Lid., 2 S.C.R. 573, 594 (1986).
109. See also British Columbia Gov't Employees' Union v. British Columbia (1988) 53 D.L.R. (4th) 1. Moreover, while the right to strike was not granted constitutional protection under the Charter, the right not to associate, raised by anti-unionists, has been elevated to the status of a constitutional right. See Lavigne v. Ontario Pub. Serv. Employees Union [1991] 2 S.C.R. 211.
110. See National Union of Belgian Police v. Belgium (1975) 1 EHRR 578; Young v. UK 4 EHRR 38 (1981); Lavigne [1991] 2 S.C.R. 211.
111. See RJR MacDonald, Inc. v. Canada [1995] 3 S.C.R. 199.
112. RJR-MacDonald v. Canada (Attorney-General), 3 S.C.R. 199 (1995).
113. This immunity for strikers was established by the Knesset in 1965, following the Supreme Court's decision in C.A. 167/62, Leo Beck High Sch. v. Organization of High Sch. Teachers, 16 P.D. 2205 [Hebrew]. The immunity of strikers in a tort action is protected under the Israeli law of tort (art. 62b).
114. See C.A. 593/81, Ashdod Vehicle Enterprises v. Tsizik, 41(3) P.D. 169 [Hebrew]. 91 See eg Tel-Aviv District Court 2233/89, Barclays Discount Bank Ltd. v. Discount Bank Employees Union (unpublished, 1989) [Hebrew]; Haifa District Court 1380/93, National Coal Company Ltd. v. Markowitz (unpublished, 1994) [Hebrew]. While this notion may be logical in other spheres, it is not logical in the context of labor disputes. In most industrial actions, the predominant intention is to further workers' interests, but this can never be achieved without intentionally damaging employers' interests, including their relations with third parties.
115. See H.C. 1074/93, Attorney-Gen, v. National Labor Ct., 49(2) P.D. 485 [Hebrew].
116. The right to freedom of occupation has been recognized by the UN Declaration of Human Rights (art. 23), the UN Covenant on Economic, Social, and Cultural Rights (art. 6), the Conventions and Recommendations of the ILO, the European Social Charter of the Council of Europe, and the European Community's Charter of Fundamental Social Rights. It has also been elevated to a constitutional right in several leading democracies such as Spain (Chapter II of the Spanish Constitution), and Germany (art. 12(1) of the GRUNDGESETZ [Constitution]).
117. BARAK, supra note 68, at 597.
118. See H.C. 987/94, Euronet Gold Lines Ltd. v. Ministry of Communication, 48(5) P.D. 412 [Hebrew].
119. See H.C. 1 71 5/97, Association of Inv. Management in Israel v. Minister of Fin., decision released on 25 Sept. 1997 (unpublished).
120. See Capital Coast Health Ltd. v. New Zealand Med. Lab. Workers Union, Inc. [1996] 1 N.Z.L.R. 7.
121. See id. at 8. See also Lewis v. Real Estate Inst. [1995] 3 N.Z.L.R. 385.
122. See Vriend v. Alberta [1998] 1 S.C.R. 493. The de facto meaning of this decision is that the state has an obligation to enact human rights legislation that is broad enough to allow human rights claims to be made about discrimination based on sexual orientation.
123. See M v. H [1999] 2 S.C.R. 3.
124. See H.C. 721/94, El Al Airlines Ltd. v. Danilowitch 48(5) P.D. 749 [Hebrew].
125. Rulings in the same spirit were recently given by the U.S. Supreme Court in Romer v. Evans 517 U S 618, 116 S.Ct. 1620 (1996); by the Australian Supreme Court in Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994), and by the Hungarian Supreme Court (perhaps the most active and powerful court in the world) in Decision 14/1995 on the Legal Equality of Same Sex Partnerships (decision delivered 13 Mar. 1995). The Constitutional Court of South Africa followed suit in its landmark 1998 decision in the National Coalition for Cay and Lesbian Equal. v. Minister of Justice, 1999 (1) SA 6 (CC), where sodomy laws that criminalize private sexual conduct between consenting adults that causes no harm to anyone else, and a 1957 act prohibiting sexual conduct between men in certain circumstances were declared to be inconsistent with the equality rights provisions of the SABOR and discriminatory against men in general, and homosexual men in particular. The Court also noted that such sodomy laws intrude upon the innermost sphere of human life, and therefore constitute a severe violation of the constitutional right to privacy. Most recently, in National Coalition for Cay and Lesbian Equal. v. Minister of Home Affairs (CCT 10/99, decision released on 2 Dec. 1999; unpublished), the South African Constitutional Court further expanded its interpretation of equality rights provisions pertaining to sexual orientation, by ruling that foreign same-sex partners of permanent South African residents should be entitled to the same immigration and residence rights as marital partners of heterosexual South African residents. The New Zealand Court of Appeal also made a preliminary step in this direction: in its recent landmark decision in the Quilter case (1998), for example, the Court ruled that the exclusion of gay and lesbian couples from the status of marriage under the Marriage Act of 1955 is discriminatory and contradicts Section 19 of the NZBOR. However, the Court also ruled that it was not possible to interpret the Marriage Act to include same-sex marriages as the appellants requested, and that such a radical change in the law must come from the legislature rather than from the judiciary. See Quilter & Pearl v. Attorney-Gen. [1998] 2 N.Z.L.R. 88.