Dictum of the day, or just be positive

U okviru ovako postavljene nadležnosti (i misije), Ustavni sud BiH je kroz svoju dosadašnju praksu, uz primjetan oprez i samoograničenja, iskazao i respektabilan nivo ekstenzivnog  razumijevanja i interpretacije ustavnoga teksta („slovo i duh“ ustavne norme), te više ili manje doprinio uspostavljanju  visokih standarda u legislativi na svim nivoima vlasti u Bosni i Hercegovini (...) odnosno primjenom pozitivnog ustavnosudskog aktivizma, u više slučajeva demonstrirao zaista zavidnu i utemeljenu  interpretatorsku širinu i odgovornost (...) (Ipak) većina u Ustavnom sudu BiH, umjesto da ustavnu normu interpretira stvaralački i dinamički, postupila je nedopustivo formalistički. Oprez i samoograničenje koje je ovakvom interpretacijom Ustava sebi dao Ustavni sud u konkretnom slučaju, prema mome mišljenju, sasvim sigurno odudaraju od potrebe, ali i obaveze da ovaj visoki organ u  nerijetko zamršenim pitanjima ocjene ustavnosti (pa i u slučajevima koji imaju dalekosežan utjecaj i posljedice na odnose u Bosni i Hercegovini)  pokaže više hrabrosti i dinamičnosti, kao organ koji uistinu podržava  Ustav u sveukupnosti značenja njegovih normi.

Odluka o dopustivosti i meritumu Ustavnog suda BiH, br. U-13/14, od 4. jula 2014., Izdvojeno mišljenje o neslaganju sudije M. Ćemana  

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 on permissible victories

The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.

Schuette v. BAMN, 572 U.S.____ (2014), Opinion of J. Sotomayor, p. 57

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 let the freedom ring

Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process. / The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded,not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

Schuette v. BAMN, 572 U.S.____ (2014), Opinion of J. Kennedy, p. 16. 

Dictum of the day, or democracy's anticipatory self-defence

In the Court’s view, the State is entitled to take preventive measures to protect democracy vis-à-vis such non-party entities as well, if a sufficiently imminent prejudice to the rights of others undermines the fundamental values upon which a democratic society rests and functions. One of such values is the cohabitation of members of society without racial segregation, without which a democratic society is inconceivable. The State cannot be required to wait, before intervening, until a political movement takes action to undermine democracy or has recourse to violence. Even if that movement has not made an attempt to seize power and the danger of its policy to democracy is not sufficiently imminent, the State is entitled to act preventively, if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy

Vona v. Hungary, ECHR, app. no. 35943/10, 09.07.2013., para. 57.

Dictum of the day, or on the essence of democracy

The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.

Hollingsworth v. Perry, 570 U.S. ___ (2013), Kennedy, J., dissenting

Dictum of the day, or on dream of healthy democracy

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs.  Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered... The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavors of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, “South Africa belongs to all who live in it”‘.

Democratic Alliance and Another v. Masondo NO and Another (CCT29/02) [2002] ZACC 28; 2003 (2) BCLR 128; 2003 (2) SA 413 (CC) (12 December 2002), J Sachs, para. 42-43.

Dictum of the day, on on the limits of speech

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Snyder v. Phelps, 562 U.S.__(2011)

Dictum of the day, or on the seriousness of democracy

Truly, democracy is not a game.

Arizona Free Enterprise Club's Freedom Club PAC, et al., Petitioners v. Ken Bennett, in His Official Capacity as Arizona Secretary of State, et al., 564 U.S.____(2011), dissenting opinion of Justice E. Kagan, p. 32.

Dictum of the day, or on hopes of equality

Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being [...] Democracy values everyone equally even if the majority does not. 

Ghaidan v. Godin-Mendoza [2004] UKHL 30 (21 June 2004), Hale J., para. 132.