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 self-restraint

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to  say what the law is.”  Marbury v.  Madison , 1 Cranch 137,  177 (1803). That is easier in some cases than in others.  But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. / Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all  possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

King v. Burwell 576 U.S. _____ (2015) 21.

Dictum of the day, or on the constitution of the past

[T]he Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is acceptable and represents a radical and decisive break from that part of the past which is unacceptable. It constitutes a decisive break...to a constitutionally protected culture of openness and democracy and universal human rights for...all ages, classes, and col-ours....The past was pervaded by inequality, authoritarianism, and repression. The aspiration of the future is based on what is justifiable in an open and democratic society based on freedom and equality. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted to give effect to the purposes sought to be advanced by their enactment.

The Constitutional Court of South Africa, Shaballala and Others v. Attorney General of the Transvaal and Another, 1996 South Africa 725 (C.C.)

Dictum of the day, or Schomburg's fundamental dissent redux (?)

[I] fundamentally dissent from the entire Appeal Judgement, 
which contradicts any sense of justice.

Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Judgment, 16 November 2012, Dissenting opinion of Judge Fausto Pocar, p. 20

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, or on the umpf of judiciary

[W]hy should acts of a foreign judiciary be treated differently from other acts of state, and what is the basis of that difference? – the answer, in our judgment, is that judicial acts are not acts of state for the purposes of the act of state doctrine. The doctrine in its classic statements has never referred to judicial acts of state, it has referred to legislative or executive (or governmental or official) acts of a foreign sovereign. [...]. It is not hard to understand why there should be a distinction. Sovereigns act on their own plane: they are responsible to their own peoples, but internationally they are responsible only in accordance with international law and internationally recognized norms. Courts, however, are always responsible for their acts, both domestically and internationally. Domestically they are responsible up to the level of their supreme court, and internationally they are responsible in the sense that their judgments are recognizable and enforceable in other nations only to the extent that they have observed what we would call substantive or natural justice, what in the United States is called due process, and what internationally is more and more being referred to as the rule of law. In other words the judicial acts of a foreign state are judged by judicial standards, including international standards regarding jurisdiction, in accordance with doctrines separate from the act of state doctrine, even if the dictates of comity still have an important role to play [...] ‘[O]nly the more normal restraints of judicial comity hold sway in that judicial context.’

Yukos Capital Sarl v OJSC Rosneft Oil Company [2012] EWCA Civ 855

Dictum of the day, or eat that SCOTUS!

The Court does not exclude that the display of a contextually ambiguous symbol at the specific site of mass murders may in certain circumstances express identification with the perpetrators of those crimes; it is for this reason that even otherwise protected expression is not equally permissible in all places and all times. In certain countries with a traumatic historical experience comparable to that of Hungary, a ban on demonstrations – to be held on a specific day of remembrance – which are offensive to the memory of the victims of totalitarianism who perished at a given site may be considered to represent a pressing social need. The need to protect the rights to honour of the murdered and the piety rights of their relatives may necessitate an interference with the right to freedom of expression, and it might be legitimate when the particular place and time of the otherwise protected expression unequivocally changes the meaning of a certain display. Similar considerations apply if the expression, because of its timing and place, amounts to the glorification of war crimes, crimes against humanity or genocide [...] Moreover, where the applicant expresses contempt for the victims of a totalitarian regime as such, this may amount – in application of Article 17 of the Convention – to an abuse of Convention rights [...]

Fáber v. Hungary (application no. 40721/08), Chamber Judgment, 24 July 2012, para. 58

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 the legitimacy of concensus

The existence of a consensus has long played a role in the development and evolution of Convention protections [...] the Convention being considered a “living instrument” to be interpreted in the light of present‐day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention.

A, B.and C. v. Ireland, 2032 Eur.Ct.H.R., at para.234 (2010).