Dictum of the day, or on hard truths

Koji je to datum u savremenoj historiji koji ispunjava taj uvjet, a da ga svi prihvate kao takvog? Da ima simboliku zajedničkog sjećanja koje doprinosi jačanju kolektivnog identiteta? Pa sam kolektivni identitet je sporan u ovoj zemlji?! Koje je to zajedničko sjećanje koje ima zajedničku simboliku? Savremena historija ne nudi odgovor, daljnja historija ne nudi odgovor, daleka historija ne nudi odgovor?! Gorko ukazujem na to da bi se, možda, u vremenu ranog srednjeg vijeka našao takav datum, ali sumnjam, jer bi jednima smetalo, npr., krunisanje u pravoslavnom manastiru, drugima ljiljan kao iskaz katoličke vjernosti na zastavi, a trećima historijska činjenica ko je srušio tu tvorevinu ranog srednjeg vijeka!

Odluka o dopustivosti i meritumu Ustavnog suda BiH, br. U-3/13 od 26.11.2015., Izdvojeno mišljenje o neslaganju Zlatka M. Kneževića

Dictum of the day, or on Children of a Lesser God

Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death, have no one to plead for them.

S.J. v. Belgium, app. no. 70055/10, 19 March 2015, Dissenting opinion of judge Pinto de Albuquerque, para. 12. 

Dictrum of the day, or on the nature of constitutions

Kad je riječ o zaštićenim ustavnim dobrima, Ustavu se ne može pristupati na način da se iz cjeline odnosa koji se njime ustrojavaju izvlači jedna odredba, pa se ona onda tumači zasebno i mehanički, neovisno o svim ostalim vrijednostima koje su Ustavom zaštićene. Ustav čini jedinstvenu cjelinu. On posjeduje unutarnje jedinstvo i značenje pojedinačnog dijela vezano je uz sve ostale odredbe. Promatra li ga se kao jedinstvo, Ustav odražava pojedina sveobuhvatna načela i temeljne odluke u vezi s kojima se moraju tumačiti sve njegove pojedinačne odredbe.

Judgment of the Constitutional Court of the Republic of Croatia, U-VIIR-4640/2014, 12 August 2014, para. 10.  

Dictum of the day, or "your freedom rings hollow"

In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

Schuette v. BAMN, 572 U.S.____ (2014), Opinion of J. Sotomayor, p. 46.

Dictum of the day, or on social adequacy of harm

"Social adequacy" does not prevent a circumcision performed for religious reasons on a boy unable to consent, yet based on the consent of his parents, by a doctor in proper fashion, from fulfilling the elements of the offence [...] This view nevertheless states that the procedure which cannot be excused and conflicts with the child's well-being is seen as socially inconspicuous, generally accepted and historically approved and therefore not subject to the formal stigma of the criminal law. / The correct view is that next to the conduct fulfilling the elements of actus reus and mens rea, the element of social adequacy has no independent significance. On the contrary, the social adequacy of certain behaviour is merely the reverse of the fact that a judgment of legal disapproval cannot be reached. The purpose of social adequacy is not to countermand an existing judgment of disapproval [...]

Landgericht Cologne, Judgment, 7 May 2012 - Docket no. 151 Ns 169/11

Dictum of the day, or on the arithmetic of constitutions

[C]onflict between convention and law which prevents the courts from enforcing conventions also prevents conventions from crystallizing into laws, unless it be by statutory adoption. It is because the sanctions of convention rest with institutions of government other than courts, such as the Governor General or the Lieutenant Governor, or the Houses of Parliament, or with public opinion and ultimately, with the electorate, that it is generally said that they are political [...] It should be borne in mind however that, while they are not laws, some conventions may be more important than some laws. Their importance depends on that of the value or principle which they are meant to safeguard. Also they form an integral part of the constitution and of the constitutional system. They come within the meaning of the word "Constitution" in the preamble of the British North America Act, 1867 [...] That is why it is perfectly appropriate to say that to violate a convention is to do something which is unconstitutional although it entails no direct legal consequence. But the words "constitu­tional" and "unconstitutional" may also be used in a strict legal sense, for instance with respect to a statute which is found ultra vires or unconstitu­tional. The foregoing may perhaps be summarized in an equation: constitutional conventions plus constitutional law equal the total constitution of the country.

Reference re Amendment of Constitution of Canada/Partition Reference, [1981] S.C.J. No. 58, [1981] 1 S.C.R. 753 (S.C.C.), p. 883-884.

Dictum of the day, or on rejection of absurdity

It is further suggested that if the secession bid was successful, a new legal order would be created in that province, which would then be considered an independent state. Such a proposition is an assertion of fact, not a statement of law. It may or may not be true; in any event it is irrelevant to the questions of law before us. If, on the other hand, it is put forward as an assertion of law, then it simply amounts to the contention that the law may be broken as long as it can be broken successfully. Such a notion is contrary to the rule of law, and must be rejected.

Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 107-108.

Dictum of the day, or on judicial regret

A Judge cannot but lament, when such cases as the present are brought into judgment. It is impossible that the reasons on which they go can be appreciated, but where institutions similar to our own, exist and are thoroughly understood. The struggle, too, in the Judge's own breast between the feelings of the man, and the duty of the magistrate is a severe one, presenting strong temptation to put aside such questions, if it be possible. It is useless however, to complain of things inherent in our political state. And it is criminal in a Court to avoid any responsibility which the laws impose. With whatever reluctance therefore it is done, the Court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North-Carolina [...] The end is the profit of the master, his security and the public safety; the subject, one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make any thing his own, and to toil that another may reap the fruits. What moral considerations shall be addressed to such a being, to convince him what, it is impossible but that the most stupid must feel and know can never be true--that he is thus to labour upon a principle of natural duty, or for the sake of his own personal happiness, such services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect. I most freely confess my sense of the harshness of this proposition, I feel it as deeply as any man can. And as a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things, it must be so. There is no remedy. This discipline belongs to the state of slavery. They cannot be disunited, without abrogating at once the rights of the master, and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and free portions of our population. But it is inherent in the relation of master and slave.

North Carolina v. Mann 13 N.C. 263 (N.C. 1830), Opinion of Judge Ruffin

Dictum of the day, or on terrorists and hostages

The Court will not speculate on the issue of whether, as a matter of principle, it is always necessary to negotiate with terrorists and “ransom” the lives of hostages by offering terrorists money or meeting their other requirements. The applicants’ wide-ranging allegation calls into question all anti-terrorist operations, and refers to matters far beyond the competence of this Court, which is not in a position to indicate to member States the best policy in dealing with a crisis of this kind: whether to negotiate with terrorists and make concessions or to remain firm and require unconditional surrender. Formulating rigid rules in this area may seriously affect the authorities’ bargaining power in negotiations with terrorists. What is clear in the circumstances of this specific case is that most of the terrorists’ demands were unrealistic.

Case of Finogenov and Others v. Russia (Applications no. 18299/03 and 27311/03), 20 December 2011, para. 223.

Dictum of the day, or on the contentious practices

The Court observes, on a general note, that the rites and rituals of many religions may harm believers’ well-being, such as, for example, the practice of fasting, which is particularly long and strict in Orthodox Christianity, or circumcision practised on Jewish or Muslim male babies. It does not appear that the teachings of Jehovah’s Witnesses include any such contentious practices.

Case of Jehovah's Witnesses of Moscow v. Russia, European Court of Human Rights, Application no. 302/02, 10 June 2010, para. 144.