court ruling
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BELGIUM: ‘We need systemic transformation to stop the climate crisis’
CIVICUS speaks with Sarah Tak, General Coordinator of Klimaatzaak (‘Climate Case’), about a recent ruling by the Brussels court of appeal mandating drastic cuts in greenhouse gas emissions in Belgium by 2030.
Klimaatzaak is a civil society group founded in 2014 by 11 concerned citizens who wanted to take action against Belgium’s inadequate climate policy.
What’s the significance of the court ruling ordering the government to take more decisive action to cut greenhouse gas emissions?
Governments have been aware of the climate crisis for decades and committed to work together to stabilise greenhouse gas emissions to avoid the situation becoming truly dangerous. They have signed United Nations treaties on climate change to that end, yet unfortunately very little has been achieved. Scientists have been long telling us we must halve emissions by 2030 if we are to have a chance of limiting global warming to below 1.5 degrees compared to pre-industrial times. That is the danger threshold governments said they would strive not to cross when they signed the Paris Agreement in 2015, and they reaffirmed this commitment in 2021 at the COP26 climate summit. Yet they fail to translate these promises into domestic action and global emissions continue to rise, even to this day.
What this shows is that politicians are not able – or willing – to act on the climate crisis in the decisive way needed. Meanwhile the situation is becoming increasingly alarming, which is why judges are asked to step in, often by citizens or civil society groups who see their most fundamental rights threatened by climate change.
The verdict issued by the Brussels Court of Appeal on 30 November 2023 is truly historic because it was only the second time worldwide that judges have imposed a binding obligation on governments to reach a defined emission reduction target. The first victory was achieved by the Urgenda Foundation in the Netherlands in 2015. Our verdict found the climate policy of the Belgian federal, Brussels and Flemish regional governments to be negligent to the extent that it constitutes a breach of the human rights of all 58,586 individual co-plaintiffs in the lawsuit.
What was Klimaatzaak’s role in the court case?
We are a movement of concerned citizens that decided to start court actions to force governments to act on climate. Initially we were just 11 people, but we grew to a grassroots movement of 58,586 citizens. This number makes the Belgian climate case the largest worldwide, which is why it considers itself to be a lawsuit by and for citizens.
We started the legal case in 2014, by sending a formal notice to the four parts of Belgian government that have competence for climate policy – the federal government, plus those of the Flemish, Brussels-Capital and Walloon regions. After disputes about the procedural language, the proceedings on the merits of the case started in 2019.
Legally we built the case on two pillars, where we argued that the inadequate climate policy pursued by the Belgian authorities was a violation of both the tort provision of the Belgian civil code (the ‘duty of care’) and of articles 2 and 8 of the European Convention of Human Rights. Given the importance and urgency of the matter, we requested a penalty payment of €1 million (approx. US$1.07 million) for every month’s delay in executing the judgment.
When oral proceedings started in March 2021, people mobilised in more than 100 municipalities and cities across Belgium. An estimated 7,000 citizen climate advocates took to the streets dressed as lawyers to show their support. The Court of First Instance of Brussels issued its decision in June 2021, confirming that the Belgian climate policy was so substandard that it violated the legal duty of care and human rights, but it did not impose any specific reduction target.
Since it soon became clear that the competent ministers had no intention of abiding by the judgment and changing their policy course, we decided to start the appeal procedure in order to complement the first instance verdict with binding reduction targets. And this time everything went much faster because the Brussels Court of Appeal decided to prioritise our case. Submissions from the federal and regional governments were received and we then filed ours throughout 2022 and 2023. Four intense weeks of oral pleadings took place in September and October 2023, and the historic verdict was out before the end of November.
It was the backing of our countless supporters that helped sustain our work for so long. They kept us upright financially and morally. If anything, this was a victory of civil society and the public.
Do you expect this ruling to set a precedent for others to follow?
Our case is part of a wider trend and sets an important legal precedent that is already today being used in other jurisdictions to try to impose similar climate targets. Steep national emission reduction targets are urgently needed for climate policies to have a chance of being effective.
We are now seeing a lot of civil society groups, individual citizens and even government authorities turning to courts to push for climate action. There are more than 2,000 climate cases worldwide, initiated by a wide array of claimants. In the USA, the state of California is suing major oil corporations over claims they misled the public for decades and seeking the creation of a special fund to pay for recovery. Organisations such as Milieudefensie in the Netherlands already won a pioneering climate case against the oil major Shell and recently initiated a new climate case against IGN Bank.
To stop the climate crisis, we need systemic transformation: we need governments, carbon majors and banking and insurance companies to drastically change course. In the coming years we can surely expect a lot more litigation against not only governments but also other powerful actors. We simply need to hold them accountable if we want to see the transition that is needed before 2030.
Our case is already being consulted and referenced by civil society in other countries. We were contacted by several groups seeking similar rulings in their countries who were trying to understand the reasoning of the judges and use their arguments in their own proceedings.
What are the next steps in your advocacy work?
Elections will take place in Belgium in June 2024, so we are working to keep the verdict alive in public debate. After the election we will continue to monitor compliance with the ruling. The judges set up a follow-up mechanism so we can go back to them in 2025 if climate policy continues to be unsatisfactory. The judges will then decide on penalty payments if need be. A good mix of advocacy and legal work awaits us in the coming months and years.
Civic space in Belgium is rated ‘narrowed’ by theCIVICUS Monitor.
Get in touch with Klimaatzaak through itswebsite orFacebook page, and follow @Klimaatzaak onTwitter andInstagram.
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BELIZE: ‘Many laws remain that keep LGBTQI+ people as second-class citizens’
CIVICUS speaks about the situation of LGBTQI+ rights in Belize and the ongoing impacts of the British colonial legacy with Caleb Orozco, the chief litigant in a case successfully challenging Belize’s discriminatory laws and co-founder of the United Belize Advocacy Movement (UNIBAM).Founded in 2006, UNIBAM was the first LGBTQI+-led policy and advocacy civil rights organisation in Belize. Focused on dismantling systemic and structural violence that impacts on human rights, it uses rights-based approaches to reduce stigma and discrimination.
What was the process leading to the overturn of Belize’s so-called anti-gay laws?
The process of overturning the sodomy laws contained in Section 53 of the Criminal Code started with a preliminary assessment that guided the development of the University of the West Indies’ Rights Advocacy Project (URAP) led by Tracy Robinson, whose group initiated my case in 2010. In 2011 we worked with Human Dignity Trust, which joined as interested party, to engage on international treaty obligations.
In 2007, a conversation started at a meeting in Santo Domingo in the Dominican Republic, organised by the Caribbean Vulnerable Communities Coalition. URAP engaged by email and Viper Messenger, with additional regional conferences to flesh out legal arguments. The process identified Lisa Shoman as local Senior Counsel and Chris Hamel Smith, who argued the case in 2013.
Meanwhile, we submitted reports for Belize’s Universal Periodic Review at the United Nations Human Rights Council to test the government’s response to the challenge to the sodomy laws. We also resorted to thematic hearings at the Inter-American Commission on Human Rights. The response of the government was that it needed a ‘political mandate’. We worked with the subcommittee for policy and legislation of the National AIDS Commission to monitor legislative opportunities and gauge the position of the government and the prime minister. We knew the government would not significantly fight the process.
In late 2010 we filed a challenge to Section 53 and a fight with the group of churches ensued. UNIBAM’s role was eventually reduced to that of an interested party, with the churches relegated to the same role, and I remained as the sole claimant.
We did not have a communications strategy, so we developed one. Nor did we have a security strategy, but we got help from the Human Dignity Trust. We participated in around 300 media interviews, collectively, over the years. The process included the derailment of the government’s revised national gender policy of 2013, with hundreds protesting across the country. Also, in Jamaica, 25,000 people protested to demand the removal of Professor Brendon Bain, an expert witness in my case in support of the churches, from his job at the University of the West Indies.
The case was heard by the Supreme Court in May 2013. We submitted personal experiences of discrimination and tried to strike out the churches, but we failed. Three years later, on 10 August 2016, the judge ruled in our favour, establishing that Section 53 was unconstitutional, which effectively decriminalised consensual same-sex activity held in private by consenting adults.
The Attorney General launched a partial appeal focused on the freedom of expression and non-discrimination on the grounds of ‘sex’, but the Court of Appeal’s judgment was reaffirmed in December 2019, with the expectation that the sodomy law had to be modified by parliament after the Court reaffirmed its unconstitutionality. Over time, the political tone changed: from claiming a political mandate was needed to change our sodomy law, to supporting 15 out of 17 Universal Periodic Review recommendations on LGBTQI+ rights in 2018. We are now waiting for parliament to modify the law as per the instruction of the Court of Appeal.
Did you experience backlash?
I experienced a lot of backlash throughout the process. This included character assassination and death threats, to the point that a personal security plan had to be put in place for me to go to court in 2013 and for my daily movement. Christian TV stations pushed negative propaganda and social media platforms buzzed with homophobia and threats.
How much progress has the LGBTQI+ rights movement achieved so far?
The LGBTQI+ rights movement became part of a National Working Group, in which I helped draft a cabinet note to advance the Equal Opportunities Bill and Hate Crime Legislation, with support from the Human Dignity Trust. Even though the Equal Opportunities Bill was endorsed by the cabinet, it didn’t reach parliament before the 2020 general election, because the evangelical ‘Kill the Bill’ campaign succeeded in derailing it just in time. We are not giving up in 2022!
I run the only LGBTQI+-led observatory of human rights in Belize, which provides litigation support to clients. We produce knowledge products on systemic and structural violence that feeds into a national and transnational advocacy framework that includes LGBTQI+ economic inclusion and livelihoods.
The process influenced and inspired the development of several niche organisations focused on LGBTQI+ families, health, trans issues and lesbian and bisexual women. It helped launch the global mandate of the Human Dignity Trust’s campaign on decriminalisation. Ours was in fact their first case back in 2011.
What challenges do LGBTQI+ people continue to face in Belize? How can challenges be addressed?
There is the denial of gender markers for trans people. Violence against us can take place in the family and the workplace. Kids experience discrimination in schools. In addition, family insecurity for LGBTQI+ parents is a huge deal. We endure economic rights violations and economic exclusion, as well as unequal access to economic benefits such as social security and government pensions.
LGBTQI+ Belizeans experience daily deficits in the police’s work that deals with us as victims of violence and detainees. If you’re of African descent and gay, expect police harassment.
We need resources to advance 20 amendments to laws that exclude LGBTQI+ Belizeans as citizens, which attack our dignity and rights and keep us as second-class citizens. The functions of the Human Rights Observatory, which provides redress to LGBTQI+ Belizeans and marginalised women, should be strengthened.
What kind of international support does Belizean LGBTQI+ civil society need?
International allies can support us with donations through our GoFundMe page. We also really value offers of pro-bono legal support for the work of our Human Rights Observatory, including legal research, legal defence, protection work, bill drafting, litigation support, and branding strategies, as well as offers of pro bono support to produce investigative or victim advocacy training.
Civic space in Belize is rated ‘narrowed’ by theCIVICUS Monitor.
Get in touch with UNIBAMthrough itswebsite and follow@UNIBAMSupport on Twitter. -
BERMUDA: ‘A right that the LGBTQI+ community enjoyed for four years has been stripped away’
CIVICUS speaks about the recent court decision on same-sex marriage in Bermuda with Adrian Hartnett-Beasley, a founding board member of OUTBermuda.OUTBermuda is a civil society organisation that promotes and supports the wellbeing, health, dignity, security, safety and protection of the LGBTQI+ community in Bermuda. It provides educational resources on issues of diversity, inclusiveness, awareness and acceptance of LGBTQI+ people, and advances human rights, conflict resolution and equality and diversity in Bermuda.
What is the significance of the recent court ruling declaring the ban on same-sex marriage constitutional? How has it affected LGBTQI+ people in Bermuda?
In March 2022, Bermuda’s highest judicial body, the Privy Council’s Judicial Committee, sided with the government of Bermuda, stating that it may regulate and restrict marriage licences only to unions between a man and a woman. According to the judgement, this does not violate the Bermudian Constitution. It would have violated the Human Rights Act of 1981 if the Bermuda Government had not amended it to allow discrimination on grounds of sexual orientation.
This judgement reversed previous decisions that starting in 2017 made it possible for same-sex couples to get legally married in Bermuda. As a result, a right that we as a community enjoyed for four years was stripped away.
We don’t have survey data, but the general feeling of disappointment is palpable. Our community and our allies are disappointed that this fundamental human rights issue was ever made political in the first place, first with an irresponsible referendum held in 2016 – a non-binding consultation that failed due to low turnout – and then again by successive administrations who used our community as leverage in two electoral campaigns.
We are still reviewing the case, but overall, we have concerns that our constitution has failed us and what this means, if people are paying attention, is that our constitution is not fit for purpose anymore.
How was OUTBermuda involved in the case, and what will it do next?
OUTBermuda was heavily involved throughout the process. We ran very successful arguments at the Supreme Court, the Court of Appeal and the Judicial Committee of the Privy Council, with the guidance and hard work of our legal teams. We believe our leadership and standing helped bring together a consortium of plaintiffs, which together supported the novel and intricate legal arguments being made before the courts, including two churches and a couple of individuals – together encapsulating a broad range of perspectives, as reflected in the evidence we submitted to the courts.
In its former life, that is, before it became a registered charity, OUTBermuda was known as Bermuda Bred and successfully sued the Bermuda government in 2015 to secure some immigration rights for non-Bermudian same-sex partners to live and work on the island. As a result of that victory, its members pivoted the organisation into OUTBermuda and registered it as a charity. The organisation has been leaning into the empty space in which the LGBTQI+ community had no voice ever since.
This adverse ruling does not change that. We will continue to advocate for equality, justice and dignity for all LGBTQI+ Bermudians. If anything, the negative decision of the court highlights that OUTBermuda must continue its work.
What other challenges do LGBTQI+ people face in Bermuda?
The issues we face are as diverse as the community itself. At the core of all of it is acceptance; without acceptance, our community is subjected to unfair and illegal housing discrimination, which alongside family disapproval results in young people having nowhere to live and having higher rates of drug and alcohol abuse. Not surprisingly, this leads to members of our community staying in the closet longer, or at least being less comfortable about being themselves in public. All of this ends up resulting in our community not reaching its collective full potential.
OUTBermuda gets requests for help regularly, and this is the typical story we hear over and over. Marriage has been one, very public, issue but it’s by no means the only one – probably not even the most important one. We will continue working to educate people, including our political leaders, about the human rights of LGBTQI+ people. The next government must re-amend the Human Rights Act to reinstate the full protection of sexual orientation.
How much progress has the LGBTQI+ rights movement achieved so far? Have you experienced any anti-rights backlash?
We have made a lot of progress. When we started litigating for same-sex marriage, polls showed a slight majority of Bermudians were against it, and within five years, when same-sex marriage became legal, a clear majority supported it.
A poll we conducted in 2020, three years into same-sex marriage being legal, showed that 92 per cent of Bermudians believed that LGBTQI+ people deserved human rights protection, 95 per cent believed we deserved civil rights protection, 53 per cent were in favour of same-sex marriage and 72 per cent thought that a church should be allowed to perform a wedding between two consenting adults. An overwhelming majority of 75 per cent opposed the government spending more money on litigation to ban same-sex marriage, while a mere three per cent claimed they had been negatively affected by same-sex couples being able to marry, adopt or live together.
But this progress was met with backlash, particularly by organisations such as Preserve Marriage, which grew markedly since the early days of the public debate on marriage equality. They are well-organised and well-funded and are reacting quite violently to the evidence that public perceptions on all LGBTQI+ issues is increasingly more accepting.
What kind of support would Bermudian LGBTQI+ civil society need from their international counterparts?
Bermudian LGBTQI+ civil society, while physically isolated – more than 600 miles away from North Carolina – is fortunate to have great internet accessibility, so resources are easy to access and connections are easy to make. OUTBermuda as an organisation has been fortunate to receive the support of comparable – but larger and more sophisticated – organisations overseas in the form of resources, ideas and solidarity. As we have just hired our first employee – a part-time executive director – we are looking forward to building out those relationships and capitalising on the great work that has already been done in other jurisdictions – while still doing it the uniquely Bermudian way.
Get in touch with OUTBermuda through itswebsite or itsFacebook page, and follow@OUTBermuda on Twitter.
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INDIA: ‘An effective civil society is essential for advancing human rights’
CIVICUS speaks about the recent ban on the hijab, a headscarf worn by Muslim women, in educational institutions in the Indian state of Karnataka with Aiman Khan and Agni Das of the Quill Foundation. Founded in 2015, the Quill Foundation is an Indian civil society organisation (CSO) engaged in research and advocacy. Its work focuses on the human rights issues faced by underprivileged people, especially Adivasis, Dalits, Muslims, women, sexual minorities and differently abled persons.
Why was the use of the hijab banned in Karnataka schools?
The hijab ban should be seen in the wider socio-political context of India. Since the beginning of 2022, Indian Muslim women have been subjected to violence and discrimination carried out by multiple offenders. It started with an app called ‘Bulli Bai’ that placed vocal Muslim women in an online auction. This violated their privacy, as it used their photos and information without their consent.
Shortly after that, girls wearing the hijab were not allowed to enter a couple of colleges in Karnataka state in southwest India because the administration deemed the hijab a violation of the dress code for schoolgirls. This was followed by a Karnataka government order on 5 February. While this government order did not specifically ban the hijab, it did say that such ban would not violate Article 25 of the Indian Constitution, which guarantees all citizens the right to freedom of conscience as well as freedoms to profess, practise and propagate religion. As the girls who were restricted from wearing the hijab filed petitions in the high court, the verdict decided against them and chose to impose what they should wear. Both the state government and the high court used the excuse of maintaining ‘uniformity’ in educational institutions to impose restrictions on Muslim women wearing the hijab.
Following that order, several incidents of discrimination and violence against Muslim women were reported. They could not enter their educational institutions if they did not remove their hijab. Although the order did not include teachers, Muslim teachers were also asked to remove their hijab or burqa, a full body covering, at the gate of the campus.
How does the hijab ban relate to the overall status of minorities in India?
The hijab ban is arbitrary. it goes against India’s constitutional promise of secularism and fits into the trend of authorities using the law to criminalise minority communities. For instance, Karnataka’s anti-conversion law set barriers on converting to Islam or Christianity and made it more difficult for interfaith couples to marry. Following this law, the Christian community faced rising threats and violence as well as increased attacks on their places of worship.
Generally speaking, minority communities are subjected to vilification because they are framed as ‘the other’. The Muslim minority is a specific target of persecution. At mass assemblies of the Hindu community, calls are often made for the genocide of the Muslim community and the mass rape of Muslim women. Calls for social and economic boycott of Muslims have been repeated frequently over the past few years. This has included taking mass oaths to boycott Muslims.
Muslim business owners have suffered the full brunt of this incitement. In the states of Gujarat and Madhya Pradesh, some Muslim-owned shops have been set on fire by rioters or demolished by the very same authorities that should protect them. The perpetrators of such communal violence enjoy impunity and face no consequences.
The restriction on the use of the hijab was introduced in the context of this rising culture of intolerance. Even though the court limited the restriction to within the classroom, it has been implemented far and wide, including to suspend Muslim women teachers and other working Muslim women.
What are the implications of the hijab ban for women’s rights?
The high court’s verdict, which kept the ban on the basis that the hijab is not an essential part of Islam, erased Muslim women’s free will to choose for themselves and violated not only their right to education but also their freedom of practise their religion.
Several studies suggest that due to systematic discrimination against the Muslim community, Muslim women in India encounter extreme hurdles in accessing education, especially higher education. In this context, the hijab ban is patriarchal and regressive in nature, because it makes decisions on behalf of Muslim women regarding what to wear and how to practise their faith.
The decision further pushes Muslim women out of educational spaces and places them under threat in any public space. More than 400 Muslim girls have already been not allowed to appear for their exams and are facing distress, and attacks on Muslim women wearing hijabs and burqas have also increased across India. But the authorities have still not acknowledged the violence that Muslim women are going through.
How has civil society responded to the ban?
There have been protests on two fronts. The girls who have been directly affected by this restriction are protesting outside their college gates and holding demonstrations in other public spaces. But they are facing intimidation and threats by Hindutva vigilante groups while also being warned that they will be criminally charged for protesting.
In bigger cities, protests are also being organised by human rights CSOs and Muslim groups, and particularly by Muslim women.
Following the Karnataka high court ruling, CSOs have played an important role in raising awareness about the implications of the verdict. Several CSOs rejected the court order while also producing analysis to help the public understand its intricate legal language.
Civil society has been able to respond in a tangible and timely manner, offering unconditional solidarity and support to the schoolgirls affected by the order and experiencing trauma resulting from violence, discrimination and harassment in the aftermath of the high court order. Some CSOs have offered mental health counselling and other services.
Other CSOs have offered litigation support, in two forms: first, by representing individual cases of religious discrimination and providing legal support to those who missed out on exams due to the ban; and second, by petitioning on larger issues before courts of law. There have been several petitions before the Supreme Court of India to challenge the Karnataka high court order.
In short, the civil society response has been key because of its capacity to play a full range of roles to drive change, from the micro to the macro level. An effective civil society is essential for advancing human rights in India, and the international community can play a vital role in reinforcing the work of local CSOs to amplify marginalised voices.
Civic space in India is rated ‘repressed’ by theCIVICUS Monitor.
Follow@aimanjkhan and@AgniDas26 on Twitter. -
INDIA: ‘Muslim girls are being forced to choose between education and the hijab’
CIVICUS speaks about the recent ban on the hijab, a headscarf worn by Muslim women, in educational institutions in the Indian state of Karnataka with Zakia Soman, a women’s rights activist and co-founder of the Bharatiya Muslim Mahila Andolan (Indian Muslim Women's Movement, BMMA).Founded in 2007, BMMA is an independent, secular, rights-based civil society organisation (CSO) that advocates for the rights of women and the Muslim minority in India.
Why have girls wearing the hijab been banned from school in Karnataka state?
Girls in hijab were denied entry into classrooms in the name of the school uniform rules, with the authorities citing a circular that states that each student must comply with the uniform requirement in school. Both the Karnataka government and the high court played the uniform card to justify preventing Muslim women wearing the hijab from entering the college campus.
While educational institutions undeniably have the right to set their own rules, these cannot infringe the fundamental rights granted by the Indian Constitution. According to Article 25 of our constitution, all citizens are guaranteed the right to freedom of conscience as well as freedoms to profess, practise and propagate religion.
And under no circumstance can a dress code for schoolgirls be more important than education itself. Muslim girls have the right to be in school with or without the hijab, which is why I oppose those who promote the court’s verdict as a decision that empowers women. Although I don’t believe in the hijab, I think it is wrong to discriminate against girls wearing it. Our nation will only progress when girls have access to education regardless of their religious affiliation.
Does the hijab row indicate the rise of anti-minorities voices in India?
Although it may sound like an internal disciplinary matter over girls wearing the hijab, the wider context of the hijab row is one of religious polarisation and politics of hate towards Muslims. The hijab row is an integral part of the politics of religious hate in India’s polarised milieu, where Muslims are the target of the growing anti-Islam propaganda aired on TV as well as on social media platforms.
There is a spiralling nationwide campaign against the Muslim community under the garb of religious festivities. Journalists and other monitors have found deliberate, concerted violence against life, property and businesses of India’s Muslim community carried out by hooligans claiming to celebrate religious festivals in the states of Delhi, Gujrat, Karnataka and many others. But ultimately, the Indian state must be held responsible for the terrible living conditions experienced by millions of Muslims.
How has civil society responded to the ban?
Civil society has extended solidarity to the affected girls and has supported them. However, civil society’s response has so far failed to impress the government and the high court, which sadly ruled to uphold the hijab ban inside classrooms in Karnataka state.
As for opposition parties, they have been unable to run a sustained campaign to challenge the climate created by hate speech and open calls for the genocide of Muslims. This is why it’s so important for the international community to stand up and support the voices of sanity in India.
What have pro-hijab protests achieved so far?
Peaceful protests have been held in support of Muslim women’s right to wear the hijab in educational institutions. However, I am afraid that conservative elements of the Muslim community got involved in the protests in a way that aggravated matters, making Muslim girls and their families even more vulnerable to political onslaught.
In my understanding, neither the hijab nor the burqa, a full body covering, is mandatory in Islam; however, patriarchal elements would like to put every Muslim girl and woman behind a burqa or hijab. The matter could have been easily resolved through dialogue between college authorities and parents. Instead, it got politicised, with different religious and political outfits jumping in the fray with their radical and antagonistic positions.
As a result, Muslim girls found themselves in a tough position, being forced to choose between education and the hijab, which is outright unfair to them. Since many Muslim parents will not allow girls to go to school without the hijab and schools will not give them entry into class with the hijab, many girls have dropped out of their studies and have not sat their exams.
Civic space in India is rated ‘repressed’ by theCIVICUS Monitor.
Get in touch with BMMA through itswebsite and follow@BMMA_India on Twitter. -
INDIA: ‘The hijab ban is just another tool used by right-wing politicians to remain in power’
CIVICUS speaks about the recent ban on the hijab, a headscarf worn by Muslim women, in educational institutions in the Indian state of Karnataka with Syeda Hameed, co-founder and board member of the Muslim Women’s Forum (MWF).
Founded in 2000, MWF is a civil society organisation (CSO) working for the empowerment, inclusion and education of Muslim women in India. Its primary goal is to provide Muslim women with a platform for expressing their aspirations and opinions on matters directly affecting their lives.
How did the hijab row start?
The controversy started in the town of Udupi, a small secular district of Karnataka state in southwest India, where girls wearing the hijab were not allowed to enter a college campus because the administration deemed it a violation of uniform rules. Some students protested against the ban, and protests escalated into violence.
From this tiny part of Karnataka, the hijab row spread to other parts of the country. In response to Muslim women wearing the hijab on campuses, many Hindu students took to wearing saffron shawls, a colour seen as a Hindu symbol.
The matter reached a Karnataka high court as some Muslim students filed petitions claiming that they have the right to wear the hijab under the guarantees provided by the Indian Constitution. But the high court’s verdict kept the ban, arguing that the hijab is not an essential part of Islam. Surprisingly, the bench in Karnataka includes one Muslim woman judge.
What triggered the decision by Karnataka’s educational institutions?
The decision to ban Muslim students from wearing the hijab in colleges’ premises came as a surprise. Such a ban is strange to our society. Unlike in France, where it has long been under the spotlight, the hijab had until very recently never been prohibited in India.
Karnataka state is known for its diverse society and pluralistic culture, with the two major religious groups, Hindus and Muslims, historically coexisting, along with a wide spectrum of other religious groups.
However, the roots of the Karnataka hijab controversy are quite deep, and are linked to growing Islamophobia. Those in power have ignited a sectarian fuse all over India in every possible way. Right now, Karnataka state also has a right-wing government, which has created fertile ground for strain in Hindu-Muslim relationships.
To them, the hijab ban is just another tool to remain in power. It is tied to current political events, notably the upcoming December election. Right-wing politicians fabricate issues that target Muslims, who are depicted as the ‘disruptive other’, to divert people’s attention from dire economic conditions. The hijab ban did the job well, as it captured media attention. Sensational media coverage only added fuel to the fire.
How do you view the hijab ban from a gendered perspective?
The hijab ban is a complete violation of women’s rights to express their own identities. It should be my choice alone whether to wear the hijab or not. I am a believing and practising Muslim and I don’t wear the hijab. Muslim women of my generation usually did not wear the hijab, but younger generations of Muslim women across the globe do. I see it as a search for an identity in the face of the charged atmosphere created by Islamophobia. Indian Muslim women have worn the hijab for about a quarter of a century.
We don’t oppose school uniforms because there is good reason for them, especially in a country such as India and all other South Asian countries, where both religious diversity and social inequality lead to differences in dress. But the use of the hijab in educational institutions had never been put to debate before the current Karnataka right-wing government suddenly considered it a violation of the school uniform rules.
As I said, in my generation very few girls wore the hijab, and therefore my uniform was skirt and blouse, which was acceptable at the time. Later, when girls started wearing the hijab, the situation escalated from establishing that their hijab should match the school uniform colours to starting to throw them out of schools.
What is the overall status of Indian Muslims as a minority?
As a former member of government, I observed the status of minorities change over time. From 2004 to 2014 I was a member of a now-extinct Planning Commission that was entrusted, among other responsibilities, with bringing minorities up to mark with society in every way possible. For ten years, we devised all kinds of schemes in the areas of education, employment and health, and tried to ensure minorities made the most of them. Our main tasks were to make these plans and ensure their implementation across the country by persuading the governments of India’s states to embrace them.
Change was slow because we did not have the power to force implementation. A key moment was when the government commissioned a report on the status of Muslims that provided a very candid conclusion by a retired Supreme Court judge. It stated that India’s 200 million Muslims, the second largest Muslim population in the world, had the lowest status on all social and economic parameters when compared to other religious groups. It should have been a wake-up call for the Indian government.
But since then, it has only got worse. Recent so-called ‘Hindu religious gatherings’ include a call for the genocide of Muslims. Some have suggested that the saffron flag should replace India’s national flag. Many decisions have been made in violation of the constitution. This is an extremely difficult moment for Muslims in India.
And the hijab ban is very much part of Muslim marginalisation. Muslims are being driven to a corner and targeted by a right-wing government that demonises them to boost their support and remain in power.
How has civil society responded to the ban controversy?
Many CSOs have raised the issue and protested against the ban. Voices have also raised internationally, both from civil society and from influential individuals, as was the case of US congressional representative Ilhan Omar. Maybe if they became louder, these voices could drive positive change in the lives of India’s Muslims, which are becoming exceedingly difficult.
Frankly, at times I feel it is a losing game.
All international attention that was paid to the ban has damaged the image of India without really making a dent on those in power, who only care about the upcoming general elections.
Civic space in India is rated ‘repressed’ by theCIVICUS Monitor.
Get in touch with the Muslim Women’s Forum through itswebsite and follow@syedaIndia on Twitter. -
ITALY: ‘Our legal action forced the authorities to act to protect nature and people’s health’
CIVICUS speaks about a recent biodiversity court victory in Italy with Francesco Maletto, wildlife and habitats lawyer at ClientEarth, an environmental civil society organisation that seeks systemic change through advocacy and litigation.Why did you take regional authorities to court?
ClientEarth, together with Lipu-Birdlife Italy, took legal action against the authorities for failing to take action to protect Lake Vico from catastrophic pollution caused by intensive hazelnut cultivation. We challenged the Lazio region, the water authorities and the municipalities of Caprarola and Ronciglione for breaching several European Union (EU) and national laws by failing to take the measures needed to protect Lake Vico – an EU-protected Natura 2000 site – and the people who depend on its resources.
How did Lake Vico become polluted?
For the last 50 years, there’s been intensive hazelnut cultivation in the area, with plantations covering more than 21,700 hectares. This has resulted in dangerous levels of fertiliser entering the lake. The constant accumulation of toxic chemicals has killed nature and wildlife and made the water undrinkable.
An excess of nutrients in the water can trigger a process known as eutrophication, which leads to massive algae growth. The algae deplete the oxygen in the water and release carcinogenic chemicals that cannot be removed naturally. These toxins are harmful to the environment and human health. They can cause illness if ingested.
The authorities have declared the water undrinkable, but haven’t identified an alternative source of drinking water for people in Caprarola and Ronciglione. As a result, residents continue to have this water in their homes but are unable to consume it.
The environmental and health impacts of intensive hazelnut cultivation are not limited to Lake Vico; they are widespread throughout the region. Lake Bolsena, Europe’s largest volcanic lake and a popular tourist destination, also suffers from agricultural pollution that has begun to degrade the environment and water quality.
What has the Council of State decided and what must the Lazio region do to comply?
The Council of State has ordered the Lazio region to take immediate action to reverse the destruction of protected habitats. The regional authorities have been given a strict six-month deadline to take the measures needed to restore the lake’s protected habitats. The court recognised that the authorities had been aware of this problem for a long time, but had failed to act.
This ruling was the third and final in a series of successful legal challenges brought by ClientEarth and Lipu-Birdlife Italy against the Lazio region. We had previously successfully challenged the authorities’ failure to take action to improve drinking water quality and tackle harmful nitrate levels, as required by EU and national law. The Lazio region was ordered to establish a nitrate vulnerable zone and take action to clean up the water.
What are the implications of this decision?
The decision has significant implications. This is the first time a decision has been taken in Italy on the basis of Article 6(2) of the Habitats Directive, which sets out the specific measures that authorities must take to avoid the deterioration of natural habitats and the disturbance of species at a given site.
This is important for two reasons. First, because the Council of State has given a broad and progressive interpretation of the state’s obligations under this provision and set out in detail what the measures under this legal provision should look like. Second, because our legal action forced the authorities to act to remedy the situation. The Council of State ruled that, although the Italian authorities are free to determine the content of the measures to be adopted, they have to act when the law requires them to do so.
In the past it has been difficult to enforce obligations due to the authorities’ discretion in exercising their powers. This decision opens new legal avenues to enforce environmental and biodiversity obligations in Italy and other EU countries.
What are the next steps in the process?
The Council of State’s decision is final and cannot be appealed. It means the Lazio region is obliged to act within six months. We’ll continue to closely monitor the actions taken by the authorities to ensure they comply with the court ruling.
Civic space in Italy is rated ‘narrowed’ by theCIVICUS Monitor.
Get in touch with ClientEarth through itswebsite orFacebook page, and follow @ClientEarth onTwitter andInstagram.
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NETHERLANDS: ‘No government should allow transfers of weapons to a state committing war crimes’
CIVICUS speaks with Frank Slijper, Arms Trade project lead at PAX, about a recent court victory in a case brought jointly with Oxfam Novib and the Rights Forum against the Dutch government for exporting arms to Israel that are being used in the assault on Gaza.PAX is the largest peace organisation in the Netherlands. It works to protect civilians against acts of war, end armed violence and build inclusive peace.
Why did you bring a lawsuit against the Dutch government?
We brought this lawsuit to stop our government exporting military equipment to Israel. PAX does research into the arms trade in countries that violate human rights and approaches those who finance it by appealing to their social responsibility. Oxfam and the Rights Forum share our values, so we decided to sue the government together. We had previously called on it to stop giving Israel free rein in Gaza but the government had not acted on our calls, choosing instead to continue supplying Israel with F-35 fighter jet parts despite the rapidly deteriorating situation.
No government should allow transfers of weapons to a state committing war crimes. If there was ever a clear case of why this is so, this is it.
Given the urgency of the situation we had to act quickly, and so we did, Merely four weeks after we learned about these exports to Israel, through a government leak posted by the NRC newspaper, we were in court making our case.
What did the court decide?
On 12 February, the Court of Appeal in The Hague ordered the Dutch government to stop all transfers of F-35 fighter jet parts to Israel within seven days, given the clear risk of violations of international humanitarian law by Israel. The court ruled that after 7 October 2023 the minister of Foreign Affairs was obliged to reassess the licence for the export and transit of F-35 parts to Israel and that this assessment should conclude that further export and transit must no longer be permitted. In addition, the court stated that such an assessment cannot be ‘weighed’ against other interests such as potential damage to diplomatic relations or economic interests. It also made clear that any ‘general’ arms transfer licence for an indefinite period must include a reassessment trigger in case the situation changes drastically, because otherwise the very idea of arms export controls would be undermined.
The court also made clear that violations of international humanitarian law don’t need to be proved and that a ‘clear risk’ of such violations suffices. It found it ‘sufficiently plausible’ that F-35 fighter jets were involved in violations of international humanitarian law while also pointing out that there’s no requirement to prove a direct link between a specific weapons transfer and the alleged violations of international humanitarian law.
Importantly, the court rejected claims by the government that information provided by human rights organisations such as Amnesty International and by United Nations (UN) special rapporteurs could not be credibly verified. Instead, it said that such sources must be taken ‘extremely seriously’.
It also reaffirmed the very important role of civil society organisations in monitoring and ensuring the implementation of state obligations under the Arms Trade Treaty (ATT).
The government had a week to comply with the court ruling and said it would do so. Sadly, however, it didn’t agree with the Appeals Court verdict and announced it would take the case to the Supreme Court for a final decision.
Are you taking any further steps in relation with the Dutch government’s approach to the Israel-Palestine conflict?
The Dutch government claims it is taking a balanced approach, speaking to both sides, when in fact it has refused to clearly condemn Israel, voted alongside the USA against UN resolutions that condemn Israel and demand an immediate ceasefire, and has refused to stop supplying weapons to Israel. Yes, it has enabled airdrops of medical supplies, but that is nothing more than a basic humanitarian obligation.
In all the years our government has taken this supposedly balanced approach, not much has been achieved and a solution has not come any closer. More Palestinians have been forcibly displaced and illegal Israeli settlements have grown. We keep advocating for practical steps and measures to stop these violations and for an end to military cooperation between the Netherlands and Israel.
For now, we are awaiting the last part of the legal process, and we have no choice other than keep defending our case, as we have successfully done so far.
Do you expect this court ruling to have any international repercussions?
The Appeals Court’s broad analysis of states’ obligations under the ATT and the European Union Common Position on Arms Exports makes this ruling an important source for any other organisation considering litigation. This case has been incredibly important for the future of arms export control, because it is the first time Dutch judges have set out so clearly and in such detail the government’s obligations to implement export controls. Governments that export arms must ensure that their exports comply with obligations under the ATT.
Civic space in the Netherlands is rated ‘open’ by theCIVICUS Monitor.
Get in touch with PAX through itswebsite orFacebook page, and follow it onTwitter andInstagram.
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TURKS AND CAICOS ISLANDS: ‘Advancing LGBTQI+ rights requires advocacy, awareness-raising and a concerted effort to foster a culture of inclusion’
CIVICUS speaks with Tim Prudhoe, a lawyer with Stanbrook Prudhoe, about a legal challenge brought against discriminatory legislation against LGBTQI+ people and the struggle for equal rights of same-sex married partners in Turks and Caicos Islands (TCI).
Stanbrook Prudhoe is a law firm specialising in complex and cross-border cases in the Caribbean region.
What legal action are you involved in?
Since 2021 we have been representing Tim Haymon, a US citizen, and Richard Sankar, a Turks and Caicos Islander, in legal proceedings against the TCI government. The case is now up on appeal after findings of breaches of rights protected under the TCI constitution. The couple married in Florida in 2020, but Tim has been denied an exemption from the need to obtain a work permit, although that exemption is available to the spouse of a Turks and Caicos Islander. There is no definition of ‘spouse’ under the relevant immigration legislation and the definition used in the letter of refusal referenced the marriage legislation. The Marriage Ordinance treats same-sex marriages as void.
The refusal of the spousal exemption was by the Director of Immigration. Tim and Richard brought proceedings against him alleging breaches of the protected rights of equality before the Law, the right to family and private life and freedom from discrimination on the basis of sexual orientation.
The trial took place in November 2022 and the decision was delivered in March 2024. The TCI Supreme Court upheld two of our three claims, finding violations of the constitutional rights to private and family life and to protection against discrimination on the basis of sexual orientation. However, the court did not uphold the claim of equality before the law. That is the subject of an appeal that will be heard on 23 and 24 October.
The government has also appealed. Although it relied on no evidence during the trial, it now disputes any findings of constitutional breach. The government’s legal team remains headed by Ivan Hare KC of Blackstone Chambers in London, UK. Colours Caribbean, an LGBTQI+ rights organisation, successfully applied to join the appeal as an interested party.
Before the claims were first started, Tim and Richard offered to abandon their legal action if the government enacted civil partnership legislation giving same-sex couples the same rights and benefits as opposite-sex couples. Unfortunately, this offer was ignored. Our appeal document itself repeats that offer. When we first made that offer, we even provided the government with a copy of the Cayman Islands legislation recognising civil partnerships as a precedent they could work from. But, again, no response.
The Supreme Court’s decision was a significant step forward for LGBTQI+ rights in TCI. Former TCI Premier Michael Misick criticised it publicly, calling for Richard to have his Turks and Caicos Islander status revoked. If successful, the government’s appeal would be a major setback for equality. Either way, the outcome will have broader implications for LGBTQI+ rights across the Caribbean.
What’s the status of LGBTQI+ rights in TCI, and what difference have recent Privy Council rulings made?
The status of LGBTQI+ rights in TCI has a long way to go still. The government’s reliance on traditional moral standards and recent rulings on marriage issues by the UK Privy Council, the final court of appeal for TCI and other British Overseas Territories, are significant barriers to the advancement of LGBTQI+ rights.
Recent Privy Council rulings on same-sex marriage in Bermuda and the Cayman Islands have significantly influenced the discourse on LGBTQI+ rights in TCI. The combined appeal on the right to marry in the Ferguson case in Bermuda and the Bodden Bush case in the Cayman Islands is particularly noteworthy.
In Bermuda, same-sex couples had the right to marry for a period before the law was changed. Marriages already performed remained valid, but no new marriages could be celebrated – a situation that led to a case being taken to the European Court of Human Rights on the grounds that those left out were in practical effect facing discrimination. The Privy Council ruled that marriage was a unique legal institution and those jurisdictions could decide the scope of marriage without violating their constitutions.
This gave us an insight into the Privy Council’s position. However, we distinguished our case in TCI by focusing on recognition of equivalent legal rights rather than the establishment of a right to marry. The government argued we were trying to introduce the right to marry via the back door, because of the attempt to invoke the spousal exemption from immigration restrictions.
The Privy Council’s decision, which confirmed that jurisdictions can define marriage, wasn’t that surprising. TCI’s constitution, like Cayman’s, includes a preamble about TCI being a God-fearing nation. The government’s arguments in TCI appeal rely heavily on this. This is pretty odd, in light of the fact that it failed to present any actual evidence at trial.
Despite these challenges, the LGBTQI+ community and its advocates continue to press for equality and recognition, reflecting a wider struggle in many small jurisdictions.
What are the challenges for LGBTQI+ activism in TCI?
A major challenge is stigma, which is keenly felt in a place as small as TCI. Despite the presence of people who identify as LGBTQI+, there isn’t a well-developed community infrastructure such as gay pubs or clubs. There’s been a slight improvement in visibility following recent decisions, but it hasn’t yet become a significant movement. For example, there’s now anticipation for an upcoming gay pride event, a notable first for the TCI, albeit modest, as a boat trip during Gay Pride Week in June.
Living as an LGBTQI+ person in TCI often means necessarily leading a discreet life. While there are both locals and expatriates in same-sex relationships, such partnerships are not flaunted or embraced as a popular lifestyle choice. Rather, they tend to remain private, perhaps implicitly acknowledged by the community but not openly discussed.
There’s a complex interplay between legal processes and government responses. Despite government appeals against decisions concerning LGBTQI+ rights, such actions are influenced by political dynamics, particularly when elections are approaching. The electorate consists solely of Turks and Caicos Islanders and has strong opinions on issues such as same-sex marriage, which politicians must navigate with caution.
Constitutional protections theoretically guard against discrimination, but practical enforcement is uncertain. While legal recourse exists in principle, instances of intimidation and hostility, such as aggressive media commentary or social media harassment, deter people from pursuing anti-discrimination cases.
In essence, while there is a legal framework to combat discrimination, the challenges of social stigma, political sensitivities and intimidation hinder progress towards full LGBTQI+ equality in TCI.
What role has civil society played in the case?
We’ve worked with the Pride group that’s recently emerged. Although not gay myself, I was pleased to attend their meeting to have a chance to explain relevant parts of the legal challenge. I have been a friend of Richard for many years, and more recently Tim as well.
The only outside group involved was Colours Caribbean, whose involvement in the Cayman case I had been aware of for some time. When they heard of our legal victory, despite ongoing appeals from both sides, they approached us to join the proceedings. We don’t control their involvement, but the fact that we haven’t objected to it apparently influenced the court’s decision to give them a speaking role in the October appeal.
What are your expectations?
I expect that Tim and Richard will win their appeal on the failure by the judge to deal with the equality before the law claim. Whatever the outcome of the government’s appeal, I expect that the British government will have to exercise its power of override, as it did in the Cayman Islands context, to introduce civil partnership recognition legislation. In TCI, the Governor, a British-appointed official, has a constitutional power to legislate in the best interests of the jurisdiction. For example, previous governors have forced through legislation decriminalising same-sex sexual activity – a move still resisted in other parts of the Caribbean.
I think our success will primarily relate to the anti-discrimination aspect of the lower court judge’s decision. Right now, we are in a perplexing situation: the judge has agreed with our argument that Richard and Tim’s constitutionally protected rights are being violated but he stopped short of implementing the necessary remedial measures.
This creates a glaring inconsistency: existing violations are acknowledged but no remedy is provided. So if another same-sex couple were to seek spouse treatment, they would be denied the exemption, even though the Court has recognised this as a breach of constitutional rights. It is unlikely that the Court of Appeal will accept this situation. We argue that the judge made a fundamental mistake in finding breaches but not proposing remedies. Moreover, the judge’s criticism of our approach fails to recognise alternative ways of remedying the situation, such as amending immigration laws to include same-sex couples in the eligibility criteria for spousal exemptions.
The delay in the judge’s decision, despite mounting pressure, suggests a rushed outcome in the end. It appears that in his haste, the judge failed to thoroughly explore possible solutions to the violations identified. I therefore anticipate that the Court of Appeal will scrutinise the lower court’s handling of the case and consider remedies in line with constitutional obligations.
What are the next steps?
The trajectory of progress depends heavily on the outcome of the Court of Appeal hearing. It’s unlikely a decision will be made immediately after the hearing, given the complexity and scale of the case. As we have argued that the lower court judge erred in his decision, the matter could be escalated to the Privy Council for constitutional review.
However, in terms of broader progress and the continued advancement of LGBTQI+ rights, increased visibility and public awareness are paramount. The greater the exposure and discussion surrounding the case, particularly at the appellate level, the more likely it is that attitudes will evolve positively. Increased awareness fosters confidence within the LGBTQI+ community, encouraging people to live more openly and authentically.
Historically, many people who identify as LGBTQI+ have felt compelled to leave TCI and seek more accepting environments abroad, primarily in cities in the UK or the USA. This trend underscores the prevailing reluctance to accept LGBTQI+ identities in the local context. It will undoubtedly take time to overcome this suspicion and foster a culture of acceptance, but progress is evident and ongoing.
It is my hope as a legal practitioner that church groups engage in this discussion in a constructive and inclusive way, avoiding regressive interpretations of religious doctrine. Such interpretations, rooted in outdated beliefs, only serve to hinder progress. It’s worth noting that TCI, essentially a tourist destination, relies heavily on its reputation as a progressive and welcoming place. Failure to address LGBTQI+ rights risks tarnishing this image, with negative implications for tourism and therefore for economic prospects.
Advancing LGBTQI+ rights in the TCI requires ongoing advocacy, awareness-raising and a concerted effort to foster a culture of inclusion and acceptance within the local community and wider society.
Get in touch with Stanbrook Prudhoe through itswebsite and connect with Tim Prudhoe onLinkedin.
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USA: ‘The framers of the constitution envisioned an accountable president, not a king above the law’
CIVICUS discusses the recent US Supreme Court ruling on presidential immunity and its potential impact on the 5 November presidential election with Praveen Fernandes, Vice President at the Constitutional Accountability Center, a US think tank and public interest litigation organisation dedicated to studying and applying the constitution’s text, history and values.On 1 July, the US Supreme Courtruled that presidents have absolute immunity for the exercise of their core constitutional powers and are entitled to a presumption of immunity for other official acts, although they don’t enjoy immunity for unofficial acts. The decision comes as Donald Trump faces criminal charges for trying to overturn his 2020 election loss to Joe Biden. The question now is whether Trump’s actions will be considered official or unofficial. But it’s unlikely he’ll be tried before the election, and if he returns as president he could pardon himself. Critics claim the Supreme Court ruling violates the spirit of the US Constitution by placing the president above the law.
What has the Supreme Court said about presidential immunity?
In Trump v. United States, the Supreme Court’s conservative majority ruled that a former president can be granted a measure of immunity from criminal prosecution for acts committed while in office.
The majority opinion held that there is absolute immunity from prosecution for acts within the president’s ‘exclusive and preclusive authority’ – powers the constitution specifically assigns to the president and no other branch of government. There is a presumption of immunity for official acts that are part of a president’s duties, although this can be rebutted if the government can show that prosecution would not threaten the powers and functions of the executive branch. There is no immunity for unofficial acts.
As the dissenting opinions make clear, the court’s doctrine of presidential immunity departs not only from the text and history of the constitution, but also from the court’s own precedent.
How does this ruling affect the criminal charges against Trump?
While it’s impossible to know with certainty how this Supreme Court decision will affect all of the pending criminal cases against Trump, what we do know is that it will cause additional delays in prosecutions that have already been delayed far too long.
For instance, the federal criminal case related to the 6 January 2021 attempted overturning of the 2020 election was paused for over 200 days until the Supreme Court issued its decision. Now the district court has to deal with issues such as which alleged crimes involve unofficial acts and can therefore be prosecuted.
However, it is highly unlikely that the federal trial will reach a verdict before the presidential election in November. As a result, voters will likely be forced to cast their ballots without knowing whether one of the candidates is criminally responsible for attempting to overturn the results of the last election.
Do you think this ruling could allow for an unfettered second Trump presidency?
The danger seems great in a possible future Trump presidency where the fear of prosecution has been largely removed. But this goes far beyond Trump – it’s a danger that extends to anyone who holds such a powerful role without being held accountable to the same criminal laws that bind all other individuals.
But there are still safeguards. Prosecutors can still pursue crimes related to unofficial acts, and there are still political accountability mechanisms, such as the ability to impeach a president for high crimes and misdemeanours by a vote in the House of Representatives and conviction in a trial in the Senate.
What are the broader implications of this ruling for US democracy?
The conservative majority opinion in Trump v. United States challenges the accountability envisioned by the framers of the constitution and moves the nation closer to the monarchical systems they sought to avoid. The framers envisioned a president accountable to the governed, not a king above the law.
Immunising such a powerful position in the federal government from criminal accountability poses a significant risk and should be sobering to all Americans.
This ruling is the latest reminder that even when the constitution is clear, we depend on judges to interpret it fairly. Judicial nominations matter. Electing presidents who will nominate fair and principled judges is important. Electing senators who will rigorously scrutinise those nominations is important. Let’s not forget that.
Civic space in the USA is rated ‘narrowed’ by theCIVICUS Monitor.
Get in touch with the Constitutional Accountability Center through itswebsite and follow@MyConstitution on Twitter.
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USA: ‘The stakes in the 2024 election are incredibly high for the fate of US democracy’
CIVICUS discusses the recent US Supreme Court ruling on presidential immunity and its potential impact on the 5 November presidential election with Ciara Torres-Spelliscy, a professor of Law at Stetson University College of Law.On 1 July, the US Supreme Courtruled that presidents have absolute immunity for the exercise of their core constitutional powers and are entitled to a presumption of immunity for other official acts, although they don't enjoy immunity for unofficial acts. The decision comes as Donald Trump faces criminal charges for trying to overturn his 2020 election loss to Joe Biden. The question now is whether Trump's actions will be considered official or unofficial. But it's unlikely he'll be tried before the election, and if he returns as president he could pardon himself. Critics claim the Supreme Court ruling violates the spirit of the US Constitution by placing the president above the law.
What are the main points of theSupreme Court ruling on presidential immunity?
This is a ruling in the federal case against Trump for trying to overturn his loss to Biden in the 2020 election. He is accused of pressuring state officials to overturn the results, spreading lies about voter fraud and using the Capitol riot of 6 January 2021 to delay Biden’s certification and stay in power. Trump pleaded not guilty and asked the US Supreme Court to dismiss the entire case, arguing that he was acting in his role as president and was therefore immune from prosecution.
The Supreme Court didn’t do that, but instead created three new categories of presidential immunity: complete immunity for official acts involving core constitutional powers, potential immunity for acts within the ‘outer perimeter’ of official duties and no immunity for private, unofficial acts.
The key question now is whether Trump’s actions will be deemed official, giving him immunity, or unofficial, leaving him open to prosecution. This is the first case of its kind, as Trump is the first American president to be prosecuted.
How does this ruling affect Trump's other criminal cases?
This immunity ruling is likely to delay all four of his criminal cases, as judges will have to apply these new rules and drop any charges that involve the use of core presidential powers, as these can no longer be used as evidence against him.
As well as being accused of trying to overturn his 2020 defeat, Trump is also accused of paying adult film actress Stormy Daniels hush money during the 2016 election and not properly accounting for it in his business records. This case is unlikely to be affected by the ruling, as his actions don't involve either core or peripheral presidential powers. Judge Merchan will have to decide whether any of his 34 felony business fraud convictions will stand or be thrown out.
But some of his other crimes occurred during his time in the Oval Office. Trump is accused of conspiring to overturn his 2020 loss in Georgia by asking the state's top election official to ‘find 11,780 votes’. Trump has pleaded not guilty and could be prosecuted in his personal capacity, as presidents have no role in administering US elections. As in the Capitol case, this was a private action he took as a candidate and it would be difficult to fit into the category of presidential immunity.
The fourth case Trump faces is the Mar-a-Lago classified documents case. Trump is accused of mishandling classified documents by taking them to his Mar-a-Lago residence after leaving office and refusing to return them to the National Archives when he could no longer lawfully possess them. As his alleged crimes took place when he was no longer president, this case shouldn’t be affected by the immunity ruling. However, he could argue he possessed the documents while in office and ask that his case be treated differently from other defendants. This case was dismissed by Judge Cannon. However, the Mar-a-Lago criminal case could come back to life if the 11th Circuit reverses her dismissal.
What are the broader implications of this case for the presidential election?
After this decision, the American public should think about the consequences of who they elect as president, because the presidency can become a wellspring of crime.
An honest president wouldn't be affected by the Trump v. US decision, because an honest person doesn’t need criminal immunity. Only time will tell whether the Supreme Court has invited future presidents to go on a crime spree. But what is certain is that only US voters can keep criminals out of the White House. So, as I write in my new book, Corporatocracy, the stakes in the 2024 election are incredibly high for the fate of US democracy.
Civic space in the USA is rated ‘narrowed’ by theCIVICUS Monitor.
Get in touch with Ciara Torres-Spelliscy through herLinkedIn page and follow@ProfCiara on Twitter and Bluesky.
