I’ve just watched Ghana get unceremoniously kicked out of the World Cup by an unsinkable Uruguay team. Having already witnessed a despondent Brazil being outmanoeuvred and outwitted by a resilient Netherlands, I started to strongly believe that there is no footballing god. When Luis Suarez punched the ball off the line in the last of the 120 minutes of an incredible football match, I had hoped that, finally, some divine justice had been served on a plate and that the Black Stars would be the deserving representatives of a whole continent, come the semi-finals.
Instead, up stepped the hapless Asamoah Gyan – a 25-year-old gentle giant who had outrun and outlasted everyone else on the field – and he took the weight and responsibility of a whole continent in those last fatal steps before opting for power rather than accuracy and slamming the ball against that fateful crossbar. Uruguay had been let off the hook and the Russian roulette of a penalty shootout ensued.
It was too much for the Ghanaians, who had ran their hearts into the ground and given it their all. They were out, and with them were the hopes of a whole continent. Like Cameroon (England in 1990) and Senegal (Turkey in 2002) before them, Ghana proved unable to break the jinx of the quarter-finals for the African representatives. You had to yell it in the end. “This is unfair. This is not how it was meant to be.” The air was pregnant with exclamation marks of disappointment. The whole of the world (ok, except maybe large parts of Montevideo) cried out for justice.
Just Desserts
It’s a slippery business this justice thingy. Take football for example. It revolves around a set of rules that are (mostly) over a hundred years old but which continue to be interpreted and applied in real time by that most reviled species of human beings – the referee. Argentina’s first goal against Mexico, Luis Fabiano’s handling of the ball before scoring, Van Bommel’s uncarded efforts to destroy the legs of half the Brazil squad and, of course, the ball that crossed the line for everyone except the Uruguayan ref (there you go again with Uruguay) – they are all instances of split-second justice-making deliveries by a human being. In each case there will be a nation yelling “foul”, yelling “injustice” as well as yelling a few more unprintable expletives directed at the referee, his assistants and, in some cases, his immediate family.
Leaving the unprintable expletives (and the reason why, apparently, they are unprintable) aside, have you noticed that the subject of justice and the dispensation thereof has had a particular week in the spotlight that was not limited to the performance of the whistle-bearing men south of the equator? Justice – “the constant and perpetual wish to give everyone that which they deserve” (Corpus Juris Civilis) – often makes it to the headlines in the media but so much attention in so many different forums is a rare occasion that merits close attention.
Supreme
First up, the US Supreme Court where Chief Justice Roberts is coming to the end of his tenure. He is most likely to be replaced by Elena Kagan, the Solicitor-General whose confirmation hearings were underway in the Senate this week. Yes, one good thing about the method of political appointment in the Yankee system is that the proposed judges have to pass through the scrutiny of the representatives of the people during which they are asked questions on a variety of topics that might end up before them in court. Having seen this procedure in action, the articles in local papers this week calling for the respect of the principle of “seniority” in the appointment of new judges tend to look a bit frivolous (we’ve got vacancies thanks to Justice DeGaetano’s move to Strasbourg and Justice Galea Debono’s retirement).
Most important courts decide in a collegial manner – that means that the decision is not attributable to one judge in particular but is a decision of the group of judges forming the particular chamber making the decision. The practise of dissenting opinions (UK) might go some way towards giving a more personal touch to the decision – and in some cases leads to accusations of activism among some judges. The US are pioneers in this respect too, since records are kept of which judges voted for what decision. It is, in fact, possible to track a judge’s track record in decisions of a court much as you can track the voting record of an MEP at the European Parliament.
Chief Justice Roberts is a strong case in point. It turns out that in the five years he served as Chief Justice he was in the majority of the cases 92 per cent of the time. The Supreme Court has been dubbed “the Roberts Court” because of this statistic. During his tenure as Chief Justice, the Supreme Court has delivered some major rulings that have signalled a shift from its minimalist phase to a more assertive approach.
[Errata Corrige: Chief Justice Roberts is NOT resigning as erroneously asserted in this article. Chief Justice is there for life (a bit like a pet) – it is Justice John Stevens who has retired and will be replaced by Elena Kagan – thanks to Indy readers the Jacobin and John Lane for the quick corrections this morning]
Only last year, a 5-4 decision in the Citizens United case meant that corporations were allowed unlimited spending in elections (reported in J’accuse – remember?). It was not to be the only controversial decision. It also ruled that a government law that makes it a crime to depict cruelty to animals violated the First Amendment (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances). Sound familiar?
Human
Across the big pond another Court was in the news this week. The Strasbourg ECFHR was in session listening to the pleadings before it in Italy’s appeal in what has come to be known as the “Crucifix Case”. The Strasbourg court has the wonderful facility of streaming live webcasts of big sittings of the court so we were lucky enough to watch the pleadings of the parties and main interveners (Malta also intervened by the way) to the case much earlier than expected. I watched a streamed version of the pleadings two days later, mainly because my curiosity had been piqued by the presence of one of my former Bruges professors on the team representing 10 of the intervening states.
Professor Joseph Weiler spoke for the intervening 10 countries (Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, San Marino, Romania and the Russian Federation), all of which were supporting Italy’s case to keep the crucifix in the classrooms. While Weiler agreed with Italy’s ultimate aim, he disagreed with the position taken by the Italian representative who described the crucifix as a passive symbol with no relation to teaching, which he describes as secular.
The issue, according to Weiler, is that the court must be wary of “the Americanisation of Europe with a single rule that goes against a multiplicity of constitutions”. This side of the Atlantic, Christian countries have the right to define themselves with regard to their religious heritage. More than half the population of Europe lives in states that cannot be described as laique. The state and its symbols are essential to democracy. The professor reminded the court that it is because of our history that many of our state symbols have a religious dimension. In essence, Prof. Weiler criticised the Court’s first ruling because it failed to distinguish between private rights and public identity. While the Court may have every right and duty to impose an obligation on states to ensure that their public schools are not a place which is “religiously coercive”, it must be aware that there is no “One Size Fits All” manner in which this may be achieved.
Weiler’s solution is not to take tolerance too far as to make the very rule promoting tolerance intolerant. He showed how this could happen by asking whether the Court’s earlier decision should mean rewriting Great Britain’s national anthem (God Save the Queen) or the Irish, German and Maltese constitutions, all of which invoke religion in one way or another. It’s a hard act to follow, and the Strasbourg court still has to decide on the matter, but it also goes to show that the difficult matter of balancing rights and interests is not as straightforward as our emotions might lead us to believe.
Stitched
Which brings me to the 82-page masterpiece of our very own Constitutional Court. You will by now have heard of the Stitching controversy and the way it was decided by Malta’s Constitutional Court. The decision of the Board of Censors was upheld by the Court by way of a curious bit of not so linear logic. Reading through the motivational part of the judgement, you get the feeling that emotions and morals trumped the necessity to ground the reasoning in legal justification. Like the ECFHR judgement banning crucifixes from classes, this latest product of the Constitutional Court might require revisiting – maybe in the Strasbourg court itself. Taken to the extreme, the application of this judgement would require a rather punctilious and efficient policing and censorship force and threatens to obliterate a substantial amount of media from the Maltese landscape.
It might still be early to cry “injustice”, and it is definitely not the time to yell expletives towards the referees in question – especially judging by the level of tolerance advocated at that particular freedom of expression. It’s not time to be alarmist but definitely time to be activist and explore the limits of this particular interpretation of the island’s mores. Pleasures, they say, yet to come.
European
In our corner of the judicial sphere, the tempo is mighty hectic before the relative lull of summer. Which is why J’accuse has gone through an extended hiatus after the New York break. We will be back soon enough to report from the island itself on our well deserved visit. We are equipped with new blogging tools, including the amazing flip camera and an amazing Macbook that is absolutely stunning. Pity about the hitches Apple is having with the iPhone 4 (antenna problems it seems – quite a blooper for the company) but we will remain diehard supporters of the logo and all its products.
Be seeing you sooner than you think in Malta. In the meantime, remember: “Expecting the world to treat you fairly because you are a good person is a little like expecting a bull not to attack you because you are a vegetarian”.
www.akkuza.com will be migrating to Malta in 10 days time. Heavy blogging activity is predicted.
