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Friday, December 17, 2010

European court rules- No human right to abortion, but asks Irish government for clearer regulations

Article by Marc Aupiais

Despite misleading arguments in media, the Council of Europe (not the EU) European Court of Human Rights, in Strasbourg, in France- has not ruled that Abortion is a human right. The court found that a Lithuanian woman living in Ireland was due Euro 15 000 as she had not been given information as to how her pregnancy related to the success of her Chemotherapy or on what risks it could pose to her health. The other two applicants who wanted ordinary therapeutic abortions were turned down by the court. Ireland was fined for having vague laws on the matter of abortion.

The Irish constitution bans abortion outright, while allowing for the right of life of a woman to be on equal footing: with wording suggesting that procedures not aimed primarily at abortion of a child, but which none the less result in it's collateral unintended/undesired death are acceptable. Procuring an abortion which is not "medically necessary" is considered a crime in Ireland, and both doctor and woman involved could be arrested.

In Attorney General v. X, in 1992,

"In this case in which a 14-year-old girl said she had become pregnant after being raped by her friend's father, the Attorney General of Ireland had enjoined the girl and her parents from traveling to England for an abortion. A psychologist had testified that in her present state of mind, the girl was suicidal. The Supreme Court of Ireland held that the right to life supersedes all other rights, including the right to travel. However, if there is a real and substantial risk to the life of the mother which can only be avoided by termination of the pregnancy, then an abortion is permissible. The Court determined that the girl's risk of suicide satisfied this condition, and therefore the girl was allowed to terminate her pregnancy."
U.S. National Library of Medicine
National Institutes of Health (US Government)
Ir Law Rep Mon. 1992 Mar 5;12(47):401-80.

A 1992 decision by the Irish Supreme Court, said that if a woman's life was endangered even by her own suicide threats then she should be allowed an abortion, however the Irish government never legislated on the decision, with many Irish claiming that it was based on false medical science and not real statistics and science. Furthermore, the girl was a 14 year old in the case, with very different anatomy, and unlike an adult immigrant from Lithuania was more of a suicide risk. Also the X case also involved not an abortion denied in Ireland but the right to travel to another jurisdiction to procure it. The girl's age of 14, just past puberty, makes her case very similar to the Recife incident, where the Catholic church none the less stated that the young girl's abortion was unacceptable and murder of her twin children. It also involved rape and a child.

The Irish Times reports that no woman has ever died in an Irish hospital due to lack of an abortion. American murder statistics show that pregnant women are the most vulnerable to murder as compared women at any other stage of life. Abortion is legal in America. Ireland is known for having some of the best maternal health statistics in the world. C-Fam has in the past shown correlation between legal abortion and poor medical practice in many countries such as India etc. In South Africa over half of pregnancies are aborted, with doctors claiming that life threatening situations are not addressed due to an essentially cosmetic surgery.

KPMG, has warned that if the South African population does not grow significantly, an aging longer living older population, without skilled youths to replace it may result in a collapse of the state: in South Africa and in other developing and developed countries with declining population growth rates. One of the reasons given by sources as to why black/Ethnically African South African women used to have such large families according to academically studied work, lies in ANC pressure on women to have more children under threat.

Fertility awareness which is between 95% and 98% effective year on year at preventing unwanted conceptions is permitted by the Catholic church when used "unselfishly" and is generally accepted in African culture which sees western devices such as condoms as an insult to a man's integrity and authority.

According to C-Fam and the Irish lawyers in the case, it was highly irregular for the case to appear in a European court before being judged by Irish courts which could have given clarity on the matter. While the European Court rejected this, it does seem contrary to its purpose.

The court explicitly said the European right to privacy does in no means create a right to abortion, thus rejecting the argument of Rode v Wade.

The Associated Press quotes Ireland's pro-abortion health minister, who notes that Irish anger about submission to the European Union, means that they will not legislate on the matter:

"The judges lambasted Ireland's defense claiming that the woman should have petitioned the Irish High Court for the right to have an abortion in Ireland. They said Irish doctors must be given clear legal guidance on the eligibility rules for abortions.

Health Minister Mary Harney said she was confident that Ireland would draft legislation to bring the country's laws into line with its own Supreme Court — but said the step would have to wait for the next government. Ireland faces an unscheduled national election in the spring.

"Clearly we have to legislate, there's no doubt about that," Harney said. "But I don't think we have the capacity to bring forward proposals in a matter of weeks."

Harney noted that the government twice tried to resolve the issue with referendums in 1992 and 2001, but voters on both sides of the abortion argument rejected that constitutional amendment. In both cases, the government sought to limit the right to legal abortion only to cases where the woman was at risk of death — but excluding suicide threats.

She said lawmakers would face a "highly sensitive and complex" debate over what specific definitions should apply for life-threatening conditions. She said pregnant women suffering from cervical cancer, exceptionally high blood pressure or ectopic pregnancies already were receiving abortions in Irish hospitals.

The vast majority of nations in the 47-member Council of Europe permit broad access to abortion, most recently Spain, which legalized first-trimester abortions in July. Only Malta and Vatican City ban the practice outright, while several others seek to limit it to exceptional cases including rape and fetal abnormalities.

European Court of Human Rights judgments are legally binding but difficult to enforce. Council of Europe nations often take years to enact the legal reforms ordered. An offending nation that refuses to observe a court order could be expelled from the Council of Europe, but this has never happened."
Associated Press (American based; Secular special interests; non-governmental; story hosted by Yahoo)
December 16 / 2010

Whether the Council of Europe decisions are in any way binding is a matter of much debate. The court after all is not a representative of the Irish people.

Homosexuality was legalized following a similar decision by the court in Ireland. The same court banned crucifixes in Italian schools. The judgement is de facto unenforceable and according to C-Fam based on false facts:

"It thus seems that the third applicant (and, following her, the Court) completely distorted and confused the facts of the case. Had the applicant been in need of another cycle of chemotherapy, she would (also under current Irish law) have been entitled to receive it. Indeed, withholding such treatment from her would certainly have raised an issue under Article 2 of the Convention (i.e., the third applicant’s Right to Life). But this does not seem to have been the case. (Yet again, we notice how regrettable it is that the Court made this judgment without ascertaining the facts…) No chemotherapy was withheld from the applicant, nor was the loss of the unborn child caused by any chemotherapy or other treatment. Instead, the woman’s decision to have abortion was based on the irrational and unfounded assumption that the pregnancy might cause her cancer to recommence. This irrational thought would never have sufficed as a ground for “legal” abortion – especially not in a system where, as the ECtHR requests, the eligibility of a woman for having recourse to abortion on grounds of a risk for her life must be ascertained on the basis of objective criteria. One does not see, therefore, how the existence of such a system would ever have resulted in the applicant having access to a “lawful” abortion in Ireland…."
C-Fam (American based; Independent of the State; UN, EU and European and American legal coverage; Catholic, family, human rights and other special interests coverage)
December 16 / 2010

Sunday, August 8, 2010

MTV advert public indecency?

(A legal Listening post: Scripturelink legal-listener)

Short note by Marc Aupiais

It started out with a man appearing making bird-like movements- and tweeting like a bird, while moving in different directions, and wearing a suit. Then another man appears- looking the same as the man does.

The other man's pants (British: trousers) fall down as he commits a homosexual act against the other man. Before the MTV logo appears.

This advertisement for MTV Networks Europe- while undoubtedly filled with homosexual special interests, seems hardly appropriate for television- especially as it portrays sodomy- indecent assault, even if it portrayed ordinary homosexual behaviour- it would still be indecent to air where children may mimic sexually explicit behaviour- especially given the 2007 amendment to criminal law- which in my personal opinion- based on a reading of the amendment- criminalises such as displaying pornography to a minor- whether real or simulated!

If MTV cannot broadcast decent content- as this advertisement was broadcast at around 9 o'clock in the morning today- Saturday- then I suggest that DSTV- stop broadcasting the channel to children.

Wednesday, July 28, 2010


Please, to my friends: leave comments on this, if I make errors!

Monday, July 26, 2010

Rex v Zikalala [1953] 2 All SA 224 (A)

Case looks into the requirement to find non-violent, or where the life is not threatened, non-deadly means when necessary, in order to avoid taking a life, however, the risk of being stabbed in the back, of being killed by the aggressor, means that at times such as where grievous bodily harm such as in risk to life is risked, and killing an assailant will suffice, it is acceptable to kill to protect one's own life, even if there is a small chance of escaping an armed assailant. The appellate division notes that the chances of escape otherwise would involve jumping over other patrons heads, and that Zikalala would be at risk of falling if he attempted to flee, while he had a chance of a non-violent escape, it was not a good one. Further, having failed to kill him the time 5 days before, the aggressor, with his gang who were armed with knives said in Afrikaans: You Dog, you still aren't dead, before stabbing at the defender. Zikalala was convicted, and the conviction set aside on appeal, in that the Crown failed to prove that his defence of Private (sometimes called colloquially Self) defence did not stand. Zikalala knew his assailant had attempted to kill him before, and that his life was in imminent danger, and that his only viable means were deadly force, as he was unable to flee with satisfaction of safety.

However, the court in making this decision, stresses that danger to his life was imminent, and in the case of risk to life, such as a stab to the back risked- it quotes a law book, it is acceptable to kill an assailant, rather than take any great risk to life, where it is not a viable option to flee. It is not proved that Zikalala beyond reasonable doubt, had not committed the killing out of self defence. The court saw deadly danger as imminent. This case does not challenge the doctrine of the lesser evil/proportionate force/proportionality, but reinforces it, relying on danger to life to uphold a defence of private defence. It is only acceptable to take a life, if one's life is endangered, in the case of an attack against one's person.

The judge's claim that "natives" blacks would not interfere to save Zikalala's life, seeing it as a private matter, however may be subject to question, as this was a case decided before the 1996 Constitutional reforms. Ziklala says the Appellate Division, should not have been demanded to act on a reasonable chance to escape, but was lawful or not proved unlawful in his stabbing of the deceased.

The case refers to danger to life and limb as different from cases of theft: note the and, it is not an or. Only where the life is in danger may a life be taken. Otherwise one is speaking of a defence other than private defence, such as putative private defence.

Sunday, July 25, 2010

Challenging James Grant's Double Life of unlawfulness: fact and law

Note by Marc Aupiais

One of the legal opinions I have had to read as part of our course lately is that of James Grant, course co-ordinator here at the University of the Witwatersrand, Johannesburg. I personally disagree with his view on the S v Engelbrecht 2005 (2) SACR 41 (W) case.

I think firstly, the court made the correct decision, in sentencing the battered woman for murder, given that only a novel plea, and that of private defence were raised, and secondly that the Assessors, did in fact stick to questions of fact in the case, and not those of law. I may well be wrong in this opinion, and I certainly invite debate, this is after all a blog I created to listen as much as to speak. here is my argument.

Now Mr grant says that it is a question of law, where facts would give rise to a conviction, basing this on the state's right to appeal, as shown in many cases: whereby the state can appeal on a question of law. Thereby, allowing for the development of this given concept, that of a legal question verses that of a factual question.

Noting the decision is Basson, whereby the Supreme Court of Appeal said that it was a question of fact whether a judge should recuse himself, and the state thus appealed to the constitutional court, Mr grant notes: that Ackerman J, says that it is only a question of law where it relates to the standard of law applicable, and only then, and not when dealing with the application of the actual law.

Grant quotes the CC which says that it is legal question which applies first in relation to recusal cases: in that the standard of the reasonable person must be determined by the judge, before the test as regards whether the judge lived up to this, a factual question. He goes on to quote the CC on negligence cases (culpa), where it then says that the SCA seemingly erred in the case, whereby recusal was in fact a question of law. When dealing with reasonable person test.

Grant then says that this implies that the same is true for the reasonableness required in the case of wrongfulness. In private defence, reasonableness comes into play as regards whether or not it is reasonable to defend one's interests by force, and what degree of force is reasonable.

He then cites Goliath, I assume: S v Goliath 1972 (3) SA 1 (A), which deals with not private defence, but the argument of necessity, via compulsion, in order to justify that it is a question of law, whether conduct would be lawful. Relating to what could be expected of the ordinary reasonable person (I might note that while Goliath was let off on the murder, Mandela, in a lower court, but later case, was found guilty). None the less, what is required of the reasonable person, Grant correctly states, is a legal question, and not a factual question.

Mr Grant then looks into Kader, to reference the judge in saying that questions of law do not extend to how the standards of law are applied, but only to the standard, the rule to be used.

Where I start to disagree with him, is where he says that it is a legal question whether a set of facts should lead logically to a conviction, the normative process of the reasonable person test. I disagree, in that he says assessors may only look at questions of fact, not questions of law. He also notes as noted above that application is a factual question. I would say it is however a legal question whether a standard of facts leads to a conviction, but there would be no purpose in any assessors, if we were to say that the normative process belongs solely to the judge. i would say it applies to him as far as setting out the rule and the standard to be used, but not so far as applying them to the individual facts, a factual exercise.

S v Engelbrecht 2005 (2) SACR 41 (W), Mr Grant notes, is a case where the woman was seemingly stalked, abused physically, sexually, financially etc by her husband. She placed a plastic bag over his head having secured his hands, and suffocated her husband, with part of a dressing gown, having given up on the authorities, and taken the law into her own hand. She had previously approached the police and attempted divorce, and had left and returned to the relationship several times. They had a small child together during the marriage.

Already, I question Mr Grant's assertion that the case was decided wrongly. Private defence of person is subject to reasonableness in the response, but also to the lesser evil test, proportionality. It is not lawful to kill a person who will only harm you. Mere physical or psychological harm is not adequate cause to kill. Harm must, as noted be imminent or commenced. But what type of harm is imminent or commenced? The court decided that it was inevitable that the woman would be hurt again, whether right or wrong, and that force would be required to protect herself, as she could not rely on the authorities, or expensive legal procedures, or be expected to leave her home or job. What I disagree on is whether deadly force was acceptable. After all, the harm the deceased would have done was inevitable and terrible, and shameful, but it was not imminently threatening the battered woman's life. Therefore, she had every right to restrain him with ordinary force, but I would say that deadly force was excessive, and unreasonable, even if it appeared reasonable to her: we are not speaking of subjective negligence, but objective lawfulness. Now the court says that inevitable extends to imminence in this case, and Grant says that the assessors must that obey the judge by viewing this as a question of law which binds them. I agree with Grant here. Grant says that the assessor who questions how reasonable it is to say that the violence was imminent, was out of his jurisdiction. but I would say that one may simply draw this back, to whether or not the violence was inevitable, that imminence comes from inevitableness in this judge's legal question may be bound, but whether an attack was inevitable I would see as a question of fact, of application.

Grant then says that it is a question of law whether the battered woman should have given the state a fair chance in protecting her, and that the assessors, who were the majority should have not assessed this as a factual question, but simply agreed with the judge, as he says that the normative process of judging whether the accused is guilty of being unreasonable is one which only the judge may decide. He goes on to say that when life or limb are threatened it is trite that deadly force may be used. Perhaps I was taught wrongly on this matter, but I understood that only where life and not merely limb (R v K [1956] 3 All SA 324 (A) ; REX v ZIKALALA [1953] 2 All SA 224 (A) : that is to say that the injury threatened must be grievious) was threatened, may deadly force be used. The assessors say that the accused had other options, and that the violence was thus not needed to avoid the harm. She was convicted of the murder and did not appeal.

My conclusion is that Mr Grant is wrong, in saying that deadly force is acceptable to prevent future non-deadly abuse. I also believe him incorrect in stating that applying the reasonable person test (a question of legal standards) to the facts is a question of law, I would say it is a question of fact, as demonstrated by his own quotation above. Whether the attack was imminent or not depended on whether it was inevitable or not, whether it was inevitable or not, should force not be used, was a question of fact. the assessors said it was not imminent, and therefore, decided on that, that the woman was unreasonable. I believe thus that Mr grant is incorrect in his portrayal of the difference between factual and legal questions. A judge can set the standard as a legal question, but it is a factual question whether or not the accused lived p to that standard.

Please note, this essay does not constitute legal advice.

Reference is made to a journal article by an academic from the University a.k.a. Wits:

this is: in the SACJ 2007 (1) pages 1 - 16