Margaret Thornton

Social status: the last bastion of discrimination

Despite the increasing inequality between rich and poor, there is resistance towards proscribing discrimination on the basis of socioeconomic status. This resistance is marked in Anglophone countries, namely, Australia, New Zealand, Canada, the UK, the US, and South Africa, countries that are located in the high inequality/low mobility extreme in terms of socioeconomic status. This article argues that the resistance is associated with the embrace of neoliberalism, a political value system that extols the free market, individualism and profit maximisation. The commitment to competition policy necessarily produces inequality in contradistinction to equality, which informs the philosophical underpinnings of anti-discrimination legislation. Even in the comparatively few jurisdictions where legislation on the basis of social status or a cognate attribute exists, the legislative model is restrictive and the number of complaints minuscule. Most notably, an overview of the Anglophone countries reveals that there is a dearth of complaints involving national and multinational corporations, the primary wealth creators of the neoliberal state that are also major employers. Although employment generally gives rise to the preponderance of discrimination complaints on grounds such as race and sex, it is suggested that the resistance to social status discrimination serves to protect private corporations from scrutiny.
This is an original manuscript. It has not been published elsewhere and is not currently under consideration or accepted for publication elsewhere.

Anna Zawidzka-Łojek

Retirement age of Polish judges in the light of European Union anti-discrimination law

Although the organization of the judicial system is the competence of the Member States, this competence, like other competences of the Member States acting within the scope of European Union law, should be exercised in accordance with this law, in particular with the principle of equality. The considerations in this article focus on recent amendments to the Polish legislation regarding judges’ retirement age. The rules that lowered and differentiated the retirement age will be assessed in the light of EU anti-discrimination law, in particular EU regulations regarding the principle of equal treatment on grounds of sex and the principles of non-discrimination on grounds of age. Whilst assessing said provisions, one should take into account the particularity of judges’ functions related to the constitutional principle of the irremovability of judges and the need to ensure their independence and impartiality. This paper also touches upon the question of compliance with EU anti-discrimination law of the regulations that reversed the reform whereby general retirement age was equalised and the possible justification for these regulations. It does not refer to the retirement age of judges in the context of the principle of irremovability of judges and independence of the judiciary as part of the principle of effective judicial protection and the rule of law in the light of Article 2 of the Treaty on European Union (TEU), Article 19(1) TEU, and Article 47 of the Charter of Fundamental Rights of the European Union (CFREU).

 

János Fiala-Butora, András L. Pap, Anna Śledzińska-Simon

„Intimate citizenship” and illiberalism: lessons from Hungary, Poland, and Slovakia

Populist Backlashes, Disenchantment and the Raise of Illiberalism

Populist rhetoric questioning the validity and sustainability of the post-WW2 liberal consensus on human rights and constitutionalism seems to be on the rise in the Western world. The emergence of this New Populism follows the concept, ideology, and Zeitgeist of disenchantment that has both economic and cultural roots. On the one hand, growing economic inequality and instability, and on the other hand, cultural backlash against modernity and progressive
values may contribute to this phenomenon, which transforms the traditional division between left and right into an ideological cleavage between populists and cosmopolitan liberals. Although populism offers multiple operationalizing strategies both for right- and left-wing leaders in their contestation of the existing establishment, it primarily serves neoconservative social movements to attack neoliberal policies or even state institutions such as constitutional courts. Characteristically, illiberal populism may be initiated by bottom-up civic groups, political elites, or the government. It can serve as a tool for political mobilization of nationalist groups against various ‘isms’: multiculturalism, modernism, or even secularism. In Eastern and Central Europe it becomes a discursive framework for building constitutional identity and a model of illiberal democracy. What they share is challenging the legitimacy of liberal democracy.
Characteristically, the defining feature of populism motivated by disenchantment is that it is not accompanied by new grand narratives such as Marxism, Socialism, Communism, Fascism, or Nazism. Rather, disenchanted illiberalism is very similar to how Eric Hobsbawm saw nationalism in the 20th century: it is a substitute, a placebo for disorientation, and a surrogate for integration in a disintegrating society; when society fails, the nation appears as an ultimate guarantee.

Kevin Grigsby

A battle for equality: same-sex marriage in Colombia

Introduction

On 28 April 2016 the Constitutional Court of Columbia, by 6 to 3 vote, gave same-sex couples the right to enter into legally recognized marriages with individuals of their choosing, regardless of gender. In its lengthy opinion, the Constitutional Court examined its past jurisprudence relating to homosexuals and the marital rights of same-sex couples in addition to conducting a comparative examination of those same rights in various nations across the globe. In reaching its conclusion that the marriage regime was unconstitutional as it existed, the Constitutional Court emphasized principles of human dignity, autonomy, and equality.
After a brief look at the historical backdrop, this essay will explore the constitutional context that led the Constitutional Court to ultimately recognize marriage as a fundamental right worthy of enjoyment by all. Highlighting the principles of human dignity, autonomy, and equality, the judgment will be examined in the light of similar contemporary decisions in Europe, North America, and Africa.

Erica Howard

Moving hate speech to the civil courts

This article examines whether hate speech against vulnerable groups can be challenged under anti-discrimination measures. It is argued that criminal laws against hate speech have a number of disadvantages; and, that, therefore, alternative ways of dealing with hate speech need to be found. A possible alternative could be found in anti-discrimination laws, which generally contain civil remedies. This article analyses whether anti-discrimination provisions in the ECHR and in EU law can be used against the speaker or author of hate speech. Hate speech can involve two fundamental human rights: the right to freedom of expression and the right to be free from discrimination.
Both these rights and the possible conflict between the two are part of the discussion in this article. The conclusion is that the EU anti-discrimination directives do provide an alternative and better way of challenging hate speech.

Katie Morris, Joanna Szymanska

Countering hate speech against LGBT people: challenges to pluralism and the promotion of freedom of expression in Eastern Europe and Central Asia

‘Freedom of expression and equality are foundational rights, whose realisation is essential for the enjoyment and protection of all human rights. They are also mutually supporting and reinforcing human rights. It is only when coordinated and focused action is taken to promote both freedom of expression and equality that either can effectively be realised.’

This article presents policy and programmatic work conducted by ARTICLE 19, an international NGO working to promote freedom of expression. It is based on: (a) ARTICLE 19’s interpretation 2 of state obligations under the ICCPR for promoting inclusion, diversity, and pluralism; and (b) research into the compliance of Belarus’, Kyrgyzstan’s, Moldova’s, Russia’s, and Ukraine’s legislative and policy frameworks with these standards, focused on responses to hate speech towards lesbian, gay, bisexual and transgender (LGBT) people. It starts from the premise that this will only be achieved when the rights to equality and non-discrimination, and the right to freedom of expression are properly protected, as the basis for other positive measures to be taken. One of the common arguments is that freedom of expression and equality are in conflict.
This article argues that freedom of expression and equality are mutually supporting and reinforcing human rights, and that the promotion of both is necessary to tackle discrimination and prejudice.

Lina Papadopoulou

Book Review

Angioletta Sperti, Constitutional Courts, Gay Rights and Sexual Orientation Equality (Hart Publishing, 2017, 220 p + xxviii, ISBN 978-178225-642-7).
Review by Lina Papadopoulou

Introduction
Angioletta Sperti’s recent monograph Constitutional Courts, Gay Rights and Sexual Orientation Equality focuses on homosexuals’ rights, based mainly on the principle of equal dignity; rights which were recognised by the courts in the last quarter or so of the 20 th century following societal developments. During this period, an unprecedented number of cases involving homosexuals’ rights were brought before the courts, giving rise to a series of judicial decisions on this multifaceted issue, based on a legal, especially constitutional, perspective. The book therefore combines insights on both the procedural part of the author’s research, that is to say, the ways in which constitutional courts adjudicate on socially sensitive legal issues such as gay rights, and also the substantive part, which is sexual orientation equality. It is hard to say whether the author’s primary aim was to deal with the former or the latter, as her book contains equally interesting insights on both fields of legal inquiry.