Minorities, courts, and law

The paper disagrees with the least common denominator approach adopted by the Indian Constitutional Courts to construe religious freedom. The Essential Religious Practice Test, developed by the Supreme Court to determine whether a religious practice is protected under the Constitution, extensively limits the scope of religious freedom as it protects only those practices that ‘form an essential part of religion‘ & leaves out other religious practices. The paper, through case studies, analyses the flaws of the Test, based on – the practices it fails to protect, the practices it may fail to protect because it misconstrues constitutional provisions & principles, & the rationale adopted by it to provide constitutional protection. To conclude, the paper provides a purposive- textual analysis of Article 25 of the Indian Constitution & Constituent Assembly Debates on religious freedom to argue for a more liberal test for determining the constitutional protection of religious practices

The conception of indigenous peoples‘ consultation rights comprehends the free, prior, and informed consent related to any public or private initiative which affect them, as well as their effective participation on the respective decision-making process. Considering its legal applicability in Latin America, some important elements seem connected to the Inter-American Court of Human Rights‘ precedents, e.g., Mayagna [Sumo] Awas Tingni v. Nicaragua (2001), Yakye Axa Community v. Paraguay (2005), Moiwana Village v. Suriname (2005), and Saramaka People v. Suriname (2007). Additionally, it is noteworthy that the Convention ILO No. 169 (1989) was mostly ratified by Latin American States (more than 60% of all current States Parties). These factors are able to provide relevant legal sources, in order to analyze the question whether or not indigenous consultation rights would generate mandatory legal obligations to Latin American States, as a result of the regional ordre public.

The Constitution of the Republic of South Africa recognizes 11 languages as official languages for government purposes. This means that these languages must be used by government to communicate with the public, enact legislation and use within its courts. Although this gives significant recognition to indigenous languages, most of these languages are rarely used by government in practice. The purpose of the paper is to investigate the legislative provisions and case law regarding governmental use of official languages in South Africa and to assess if this approach is followed in practice within the government and other organs of state. Ultimately the paper will conclude that the current legislation pays mere lip-service to the recognition of all South Africa‘s indigenous languages and that this (initially) innovative approach has become a dismal failure with regard to protection and promotion of language rights, and ultimately human dignity, in South Africa.

The paper provides a critical view against the universalism of human rights by identifying the relevance of culture in the construction of the content of each particular right. Contemporary constitutional theory highlights the abstract and general nature of the enunciative formulation of rights in constitutional texts or treaties. The standard thesis holds that rights are not rules but principles, i.e. norms open to interpretation. In contrast, the cultural view rescues emotional and cultural elements in general that complement the merely linguistic view of rights. In order to express the expectations of diverse cultures in the protection of dignity, rights must incorporate the emotional and cultural assets of each context. With this premise, this paper focuses, specifically, on the case of demands of due process and its elements in Andean communities.