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experience of the Supreme Court of the United States was frankly stated in Penn Central Transportation Co v New York City :

 * '… this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.'"

Brennan J continued:

"In this Court, the limitation in par (xxxi) has not been thought hitherto to apply to a regulatory law that did not effect an acquisition of property. In Tooth's Case, the distinction between a law that provides for an acquisition of property and a law that does not was clearly drawn." His Honour then repeated the passage from the reasons of Mason J in Tooth which has been set out above.

Also in the Tasmanian Dam Case, Mason J, in a passage later approved by Dawson J , said:

"The emphasis in s 51(xxxi) is not on a 'taking' of private property but on the acquisition of property for purposes of the Commonwealth. To bring the constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be." (emphasis in original)

Whether the law in question sufficiently impairs the group of rights inhering in the property in question as to amount to an involuntary taking of that property, presents questions of substance and degree, rather than merely of form. That this is so is well settled by authority beginning at least with the reasons of Dixon J in Bank of New South Wales v The Commonwealth ("the Banking


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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Mahmoud Abbas's Speech to the 78th UN General Assembly

In the name of God, the most gracious, the most merciful

His Excellency Mr. Dennis Francis, President of the United Nations General Assembly,

His Excellency Mr. António Guterres, Secretary-General of the United Nations,

Ladies and Gentlemen, Heads and Members of Delegations,

May peace, blessings, and the mercy of God be upon you,

Once again, I come to you carrying the cause of my people, who are struggling for freedom and independence, to remind you of the tragedy caused by the Nakba since seventy-five years ago, the effects of which continue to be exacerbated by the Israeli occupation of our territory. This occupation that challenges your resolutions that have exceeded a thousand, violates the principles of international law and international legitimacy, while racing against time to change the historical, geographical and demographic reality on the ground aimed at perpetuating the occupation and entrenching apartheid.

Despite this painful reality, and thirty years after the Oslo Accords, which Israel has totally discarded, we still maintain hope that your esteemed organization will be able to implement its resolutions demanding an end to the Israeli occupation of our territory and the realization of the independence of the fully sovereign State of Palestine, with East Jerusalem as its capital, on the borders of the 4 th of June 1967, as well as resolving the issue of Palestine refugees, in accordance with the resolutions of international legitimacy, especially General Assembly Resolution 194 (III), and the relevant General Assembly and Security Council resolutions, all of which affirm the illegality of the Israeli occupation and its settlements, in particular resolution 2334 (2016), and the Arab Peace Initiative. Ladies and Gentlemen, As I stand before you here, the Israeli racist right-wing government continues its attacks on our people, and through its army and its racist terrorist settlers, continues to intimidate and kill our people, destroy homes and property, steal our money and resources, and detain the bodies of the martyrs. This is being done in full view of the world, and without any deterrence, punishment, or accountability, and the leaders and ministers of this government have even been bragging about their apartheid policies on our people under occupation. The occupation government also persists violating the City of Jerusalem and its people, assaulting our Islamic and Christian sacred sites, and violating the historical and legal status of the holy sites, especially Al-Aqsa Mosque, which international legitimacy has recognized as an exclusive place of worship for Muslims alone, including Bab Al-Rahma prayer hall and Al-Buraq Wall, according to a report by the League of Nations in 1930.

The occupying Power is also feverishly digging tunnels under and around Al-Aqsa Mosque, threatening its collapse, or the collapse of parts of it, which will lead to an explosion with untold consequences. We have repeatedly warned against transforming the political conflict into a religious conflict, for which Israel will bear full responsibility. I hereby call on the international community to assume its responsibilities in 3 preserving the historical and legal status of Jerusalem and its sacred places, especially Al-Aqsa Mosque, the Church of the Holy Sepulcher, and Al-Ibrahimi Mosque in Al-Khalil (Hebron). Here I wonder: Why remain silent about all the flagrant violations of international law that are being committed by Israel, the occupying Power? Why isn’t it subjected to serious accountability, why are sanctions not imposed on it for ignoring and violating international resolutions, as is the case with other countries? Why practice double standards when it comes to Israel? Why accept that Israel is a state above the law? Isn't it time to answer these questions? For our part, we will persist with our pursuit of accountability and justice at the relevant international bodies against Israel because of the continued Israeli occupation of our land, and the crimes that have been committed and are still being committed against us, as well as against both Britain and America for their roles in the fateful Balfour Declaration, and against everyone who had a role in the catastrophe and tragedy of our people, calling for acknowledgment, apology, reparations and compensation in accordance with international law.

Ladies and Gentlemen, In light of the deadlock in the peace process due to Israel’s policies, we come before you to again appeal for the holding of an international peace conference, in which all countries concerned with achieving peace in the Middle East will participate. Therefore, I ask your esteemed organization, and the SecretaryGeneral, Mr. Antonio Guterres, to call for and undertake the necessary arrangements to convene this peace conference, which may be the last opportunity to salvage the two-State solution and to prevent the situation from deteriorating more seriously, threatening the security and stability of our region and the entire world. I also call on your organization and the Secretary-General to act to implement the resolutions to provide protection for the Palestinian people from the constant aggressions of the occupation army and the terrorist Israeli settlers, as well as to support our approach to the international courts and bodies with jurisdiction, because the current situation is intolerable and untenable. Ladies and gentlemen, in the face of all that Israel is doing, systematically destroying the two-state solution, it has become necessary, in order to save this solution, to call on the Member States of your esteemed organization, each State, in its national capacity, to take practical steps on the basis of the relevant resolutions of international legitimacy and international law. I also call on the States that have not yet recognized the State of Palestine to declare their recognition and for the State of Palestine to be admitted to full membership in the United Nations. I can neither understand, nor accept, that some States, including America and European States, are reluctant to recognize the State of Palestine, which the United Nations has accepted as an observer State. These States confirm every day their support for the two-State solution, but they recognize only one of them, which is Israel. Why? What is the danger posed by the State of Palestine obtaining full membership in the United Nations? Israel enjoys this international recognition, though it has not adhered to the conditions for its accession to the United Nations, namely the implementation of resolutions 181 (II) and 194 (III). We therefore call on your esteemed organization to take deterrent measures against Israel, until it fulfills its obligations that were presented in a written declaration by its Minister of Foreign Affairs, at that time, Moshe Sharett.

Our request is for the sake of peace and justice, and out of respect for international law, international legitimacy, and this esteemed organization. Ladies and Gentlemen, Our people defend their homeland and their legitimate rights, through peaceful popular resistance as a strategic option for self-defense, and to liberate the land from a colonial occupation that does not believe in peace, and has no regard for the principles of truth, justice and human values. We will continue our resistance to this brutal occupation until it is defeated from our land. Ladies and Gentlemen, We are managing our affairs under extremely difficult and complex circumstances as a result of the restrictions that are being imposed on us by the occupying Power, which prevents us from accessing our natural resources, unlawfully withholds our money, and continues its siege on our people in the Gaza Strip, with the consequent exacerbation of the suffering of our people. Moreover, Israel bears full responsibility, through its control over all the crossing points and dividing lines between the occupied West Bank and its surroundings, and for the deliberate spread of weapons, drugs, and criminal killings taking place in Arab cities inside Israel, part of which is spilling over into our areas, creating a great threat to the societal security of Palestinians everywhere in our territory. I must tell you that as long as we continue to suffer under the abhorrent Israeli occupation, we will continue to need financial assistance from the international community, in addition to the crucial provision of financial support to the United Nations Relief and Works Agency for Palestine Refugees (UNRWA). We are thankful to the international community for the support it has given us to build our State and our economy, and we look forward to the continuation of this support until the occupation ends and we are able to rely on ourselves. Ladies and Gentlemen, Our State institutions are engaged in a comprehensive development and reform process, and in this context, they are cooperating with international institutions and with our partners in the region and the world.

Ladies and Gentlemen, Our State institutions are engaged in a comprehensive development and reform process, and in this context, they are cooperating with international institutions and with our partners in the region and the world. We have recently held local elections, elections for institutions, federations, unions, and others. There is a specialized committee to develop the justice sector in Palestine. Civil society is also playing its role in adding vitality to our political system. All that remains for us is to hold democratic general elections, as conducted in 1996, 2005, and 2006. But the Israeli government is obstructing this by its decision to prevent elections from being held in East Jerusalem, inspite of the significant intervention of many countries, as well as regional and international organizations, to enable our Palestinian people in Jerusalem to vote and run in these elections. Today, we renew our rejection of any position holding us responsible for not convening these elections, which are a Palestinian necessity, that we want today before tomorrow.Ladies and Gentlemen, Our State institutions are engaged in a comprehensive development and reform process, and in this context, they are cooperating with international institutions and with our partners in the region and the world. We have recently held local elections, elections for institutions, federations, unions, and others. There is a specialized committee to develop the justice sector in Palestine. Civil society is also playing its role in adding vitality to our political system. All that remains for us is to hold democratic general elections, as conducted in 1996, 2005, and 2006. But the Israeli government is obstructing this by its decision to prevent elections from being held in East Jerusalem, inspite of the significant intervention of many countries, as well as regional and international organizations, to enable our Palestinian people in Jerusalem to vote and run in these elections. Today, we renew our rejection of any position holding us responsible for not convening these elections, which are a Palestinian necessity, that we want today before tomorrow.

In the face of this intransigent position of the Israeli government, we will continue to approach the relevant international bodies to hold the Israeli government accountable and force it to allow us to hold these long overdue elections. Ladies and Gentlemen, Last May, I participated in the commemoration of the seventy-fifth anniversary of the Palestinian Nakba, a tragedy recognized by this august organization. Yet, this painful anniversary continues to be ignored and denied by Israel, which is the party that is primarily responsible for this Nakba. I call upon you today to criminalize its denial, and to designate the 15th of May of each year as an international day to commemorate its anniversary, to commemorate the lives of the hundreds of thousands of Palestinians who were killed in massacres committed by Zionist gangs and whose villages were demolished and who were forcibly displaced from their homes, with their number reaching 950,000 people, which constituted more than half of the Palestinian population at the time. This is the least that the United Nations should do in honor of these victims and in condemnation of this human tragedy. Ladies and Gentlemen, For several years, we have presented our Palestinian narrative, and the story of our people, which has been deliberately distorted by the Zionist and Israeli propaganda. We are relieved that the peoples of the world and many of its countries have begun to believe our narrative and sympathize with it, after having been misled for decades. We thank all those who contribute to sharing this narrative and all who support and sympathize with it. We also thank people of conscience everywhere in this world who today are standing up for Palestinian rights and support our people’s struggle for freedom and independence. Ladies and Gentlemen, My message today to the Israelis is that this hideous occupation against us will not last regardless of their ambitions and delusions, because the Palestinian people are remaining on their land, which they have inhabited for thousands of years, generation after generation, as again confirmed by a recent UNESCO resolution regarding the city of Jericho. They cannot leave their land, and if anyone must leave it must be the occupiers and usurpers. My message to the international community is that it should assume its responsibilities with full courage and implement its resolutions related to realizing Palestinian rights. Finally, I address all of our people in Palestine, in the refugee camps, in the diaspora, and in every place in this vast world, with the highest expressions of appreciation and gratitude for their steadfastness and insistence on upholding their just cause and rights, and I pay tribute to our righteous martyrs, our brave prisoners, and our heroic injured people, and I say to everyone: a right is never lost when there is a demand behind it, and victory is ours, and we will celebrate the independence of our State in Jerusalem, our eternal capital, the crown jewel and the flower of cities.

They see it far away, and we see it close God willing, Peace, mercy and blessings of God be upon you.


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General Product Safety Regulations

 * General Product Safety Regulations 1994 (S.I. 1994/2328), an United Kingdom Statutory Instrument that implements the European Union's General Product Safety Directive of 92/59/EEC. Revoked by the General Product Safety Regulations 2005.
 * General Product Safety Regulations 2005 (S.I. 2005/1803), an United Kingdom Statutory Instrument that implements the European Union's General Product Safety Directive of 2001/95/EC.

title: General Product Safety Regulations


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1940 Amendments to the Constitution of the Philippines

P. R. No. 106

Resolved by the National Assembly of the Philippines, by a vote of not less than three-fourths of all its Members, to amend, as it does hereby amend, Resolution Numbered Thirty-eight, approved September fifteenth, nineteen hundred and thirty-nine, entitled "Resolution proposing amendments to Articles III, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, and XVII of the Constitution of the Philippines, and to the Ordinance appended thereto; and the adoption of two new articles, one establishing a Commission on Elections, and the other fixing the effective date of said amendments and adopting certain transitory provisions," so that said Resolution shall read as follows:

"Resolved by the National Assembly of the Philippines, by a vote of not less than three-fourths of all its Members, to propose, as it does hereby propose:

" To amend Article VI of the Constitution of the Philippines by providing for the establishment of a bicameral legislature in lieu of the legislative body therein provided, so that the said Article VI shall read as follows:

' The Legislative power shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives. ' The Senate shall be composed of twenty-four Senators who shall be chosen at large by the qualified electors of the Philippines, as may be provided by law.

' The term of office of Senators shall be six years and shall begin on the thirtieth day of December next following their election. The first Senators elected under this Constitution shall, in the manner provided by law, be divided equally into three groups, the Senators of the first group, to serve for a term of six years; those of the second group, for four years; and those of the third group, for two years.

' No person shall be a Senator unless he be a natural-born citizen of the Philippines and, at the time of his election, is at least thirty-five years of age, a qualified elector, and a resident of the Philippines for not less than two years immediately prior to his election.

' The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise, as far as practicable, contiguous and compact territory.

' The term of office of the Members of the House of Representatives shall be four years and shall begin on the thirtieth day of December next following their election.

' No person shall be a Member of the House of Representatives unless he be a natural-born citizen of the Philippines and, at the time of his election, is at least twenty-five years of age, a qualified elector, and a resident of the province in which he is chosen for not less than one year immediately prior to his election.

' (1) Elections for Senators and Members of the House of Representatives shall be held in the manner and on the dates fixed by law.

(2) In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

' The Congress shall convene in regular session once every year on the fourth Monday of January, unless a different date is fixed by law. It may be called in special session at any time by the President to consider general legislation or only such subjects as he may designate. No special session shall continue longer than thirty days and no regular session longer than one hundred days, exclusive of Sundays.

' (1) The Senate shall elect its President and the House of Representatives its Speaker. Each House shall choose such other officers as may be required. (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner and under such penalties as such House may provide. (3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, expel a Member. (4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may in its judgment require secrecy; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered into the Journal.

(5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

' The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest numbers of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman.

' There shall be a Commission on Appointments consisting of twelve Senators and twelve Members of the House of Representatives, elected by each House, respectively, on the basis of proportional representation of the political parties therein. The President of the Senate shall be the Chairman ex-officio of the Commission, but shall not vote, except in case of tie.

' The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of their President and Speaker, respectively. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of its Members, to discharge such powers and functions as are herein conferred upon it.

' The Senators and the Members of the House of Representatives shall, unless otherwise provided by law, receive an annual compensation of seven thousand two hundred pesos each, including per diems and other emoluments or allowances, and exclusive only of traveling expenses to and from their respective districts in the case of Members of the House of Representatives, and to and from their places of residence in the case of Senators, when attending sessions of the Congress. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and of the House of Representatives approving such increase. Until otherwise provided by law, the President of the Senate and the Speaker of the House of Representatives shall each receive an annual compensation of sixteen thousand pesos.

' The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of the Congress, and in going to and returning from the same; and for any speech or debate therein, they shall not be questioned in any other place.

' No Senator or Member of the House of Representatives may hold any other office or employment in the Government without forfeiting his seat, nor shall any Senator or Member of the House of Representatives, during the time for which he was elected, be appointed to any civil office which may have been created or the emoluments whereof shall have been increased while he was a Member of the Congress.

' No Senator or Member of the House of Representatives shall directly or indirectly be financially interested in any contract with the Government or any subdivision or instrumentality thereof, or in any franchise or special privilege granted by the Congress during his term of office. He shall not appear as counsel before the Electoral Tribunals or before any court in any civil case wherein the Government or any subdivision or instrumentality thereof is the adverse party, or in any criminal case wherein an officer or employee of the Government is accused of an offense committed in relation to his office, or collect any fee for his appearance in any administrative proceedings, or accept employment to intervene in any cause or matter where he may be called upon to act on account of his office. No Member of the Commission on Appointments shall appear as counsel before any court inferior to a collegiate court of appellate jurisdiction.

' All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

' (1) The President shall submit within fifteen days of the opening of each regular session of the Congress a budget of receipts and expenditures, which shall be the basis of the general appropriations bill. The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the Budget, except the appropriations for the Congress and the Judicial Department. The form of the Budget and the information that it should contain shall be prescribed by law.

(2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein; and any such provision or enactment shall be limited in its operation to such appropriation.

' (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; but if not, he shall return it with his objections to the House where it originated, which shall enter the objections at large on its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas and nays, and the names of the Members voting for and against shall be entered on its Journal. If any bill shall not be returned by the President as herein provided within twenty days (Sundays excepted) after it shall have been presented to him, the same shall become a law in like manner as if he had signed it, unless the Congress by adjournment prevent its return, in which case it shall become a law unless vetoed by the President within thirty days after adjournment.

(2) The President shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object. When a provision of an appropriation bill affects one or more items of the same, the President cannot veto the provision without at the same time vetoing the particular item or items to which it relates. The item or items objected to shall not take effect except in the manner heretofore provided as to bills returned to the Congress without the approval of the President. If the veto refers to a bill or any item of an appropriation bill which appropriates a sum in excess of ten per centum of the total amount voted in the appropriation bill for the general expenses of the Government for the preceding year, or if it should refer to a bill authorizing an increase of the public debt, the same shall not become a law unless approved by three-fourths of all the Members of each House.

(3) The President shall have the power to veto any separate item or items in a revenue of tariff bill, and the item or items shall not take effect except in the manner provided as to bills vetoed by the President.

' (1) No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill.

(2) No bill shall be passed by either House unless it shall have been printed and copies thereof in its final form furnished its Members at least three calendar days prior to its passage, except when the President shall have certified to the necessity of its immediate enactment. Upon the last reading of a bill no amendment thereof shall be allowed, and the question upon its passage shall be taken immediately thereafter, and the yeas and nays entered on the Journal.

' (1) The rule of taxation shall be uniform.

(2) The Congress may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix, within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues.

(3) Cemeteries, churches, and parsonages or convents appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation.

(1) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was crated has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.

(2) No money shall be paid out of Treasury except in pursuance of an appropriation made by law.

(3) No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium.

' The heads of departments upon their own initiative or upon the request of either House may appear before and be heard by such House on any matter pertaining to their departments, unless the public interest shall require otherwise and the President shall so state in writing.

' The Congress shall, with the concurrence of two-thirds of all the Members of each House, have the sole power to declare war.

' In times of war or other national emergency, the Congress may by law authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.

" As a consequence of the amendments proposed in section one hereof, to amend section two of Article VII, except the first sentence thereof, and paragraph (7) of section 11 of the same Article; sections 2 and 3 of Article IX; and Article XIV of the Constitution of the Philippines, so that the same shall read as follows:

' * * *. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the seat of the National Government, directed to the President of the Senate, who shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted. The persons respectively having the highest number of votes for President and Vice-President shall be declared elected; but in case two or more shall have an equal and the highest number of votes for their office, one of them shall be chosen President or Vice-President, as the case may be, by a majority vote of the Members of the Congress in joint session assembled.'

' (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties, and with the consent of the Commission on Appointments, he shall appoint ambassadors, other public ministers, and consuls. He shall receive ambassadors and other public ministers duly accredited to the Government of the Philippines.'

' The House of Representatives, by a vote of two-thirds of all its members, shall have the sole power of impeachment.

' The Senate shall have the sole power to try all impeachments. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of three-fourths of all the Members of the Senate.'

' The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.'

" Whenever the words "National Assembly" appear in the other parts of the Constitution and in the Ordinance appended thereto, the name shall be understood as referring to the "Congress of the Philippines," unless the context requires otherwise.

" The amendments proposed in this Article shall become effective upon the termination of the term of office of the Members of the National Assembly elected under the Constitution adopted on the eighth day of February, nineteen hundred and thirty-five, except the provisions which refer to the election and qualifications of Senators and the Members of the House of Representatives, which shall take effect immediately upon the final adoption and approval of this amendment in accordance with said Constitution but only for the purpose of permitting their election and qualification: Provided, That until the expiration of the term of office of the Members of the National Assembly as above stated, they shall continue to act and shall exercise all the powers and perform all the functions upon them conferred by the Constitution, including the power to enact legislation necessary to give effect to this amendment."

" To repeal section 4 of Article VII of the Constitution of the Philippines and to amend the first sentence of section 2, and the whole of sections 5 and 6, of said article by changing the tenure of office of the President and the Vice-President of the Philippines, so that the said first sentence of section 2 and the said sections 5 and 6, which shall hereafter be known as sections 4 and 5 of Article VII of the Constitution, shall read as follows:

' The President shall hold his office during a term of four years, and together with the Vice-President chosen for the same term, shall be elected by direct vote of the people. * * *

' Elections for President and Vice-President shall be held once every four years on a date to be fixed by law.

The terms of the President and Vice-President shall end at noon on the thirtieth day of December following the expiration of four years after their election, and the terms of their successors shall begin from such time.

' No person shall serve as President for more than eight consecutive years. The period of such service shall be counted from the date he shall have commenced to act as President. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service of the incumbent for the full term for which he was elected."

" As a consequence of Section 1 hereof, to change the numeration of sections 7, 8, 9, 10, 11, and 12 of Article VII of the Constitution to sections 6, 7, 8, 9, 10, and 11, respectively.

" The repeal of section 4 of Article VII of the Constitution shall become effective upon the ratification of this Amendment by the people and its approval by the President of the United States. The other amendments herein proposed shall become effective upon the termination of the term of office of the President and the Vice-President elected under the Constitution adopted on the eighth day of February, nineteen hundred and thirty-five: Provided, That the provisions of Section 5 of Article VII of the Constitution, as proposed to be amended in Section 1 hereof, shall apply to every incumbent of the office of the President of the Philippines since the establishment of the Commonwealth.

" To add an Article to the Constitution of the Philippines, to be designated as Article X, establishing an independent Commission on Elections, reading as follows:

' There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the third for three years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution.

Until the Congress shall provide otherwise, the Chairman of the Commission shall receive an annual salary of twelve thousand pesos, and the other Members, ten thousand pesos each. Their salaries shall be neither increased nor diminished during their term of office.

' The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest election. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court.

No pardon, parole, or suspension of sentence for the violation of any election law may be granted without the favorable recommendation of the Commission.

' The Chairman and Members of the Commission on Elections shall not, during their continuance in office, engage in the practice of any profession, or intervene, directly or indirectly, in the management or control of any private enterprise which in any way may be affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in any contract with the Government or any subdivision or instrumentality thereof.

' The Commission on Elections shall submit to the President and the Congress, following each election, a report on the manner in which such election was conducted.'

' As a consequence of the approval of the new Article as proposed in section one hereof, to change the numeration of Articles X, XI, XII, XIII, XIV, XV, XVI, and XVII of the Constitution to Articles XI XII, XIII, XIV, XV, XVI, XVII, and XVIII, respectively.

" If Article I of this Resolution is not ratified by the people, the reference in this article to the Congress or to the Commission on Appointments shall read the National Assembly and the Commission on Appointments of the National Assembly, respectively.

" The New Article of the Constitution as herein proposed shall take effect immediately upon its ratification by the people and its approval by the President of the United States."

Adopted, April 11, 1940.


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Gummow J

Case") . However, the consequence is that close attention is required to the terms in which the various cases applying that reasoning were decided. Expressions of conclusion in one case as to the deprivation of property, and, if so, the existence of an acquisition of property, do not necessarily provide a sufficient guide to the outcome in later disputes.

In that regard something should be said respecting three cases upon the development of doctrine from which submissions in the present matters sought to draw support. They are Minister of State for the Army v Dalziel, the Banking Case and the Tasmanian Dam Case , with reference to the reasons of Deane J.

The respondent in Dalziel occupied, as a weekly tenant of Bank of New South Wales, vacant land in the Sydney central business district upon which he conducted a parking station. In pursuance of authority conferred by regulations made under the National Security Act 1939 (Cth) the Minister took possession of that land for defence use purposes as fully "as if" the Minister held an unencumbered fee simple, and for a period not to extend more than six months after war hostilities ceased.

The Minister unsuccessfully submitted that Dalziel retained his weekly tenancy and the Bank its fee simple in the land, and that there had been no taking of any recognised estate or interest in the land, and therefore there had been no "acquisition".

Latham CJ, although in dissent, did indicate that as applied to land the term "property" in s 51(xxxi) may mean both the physical subject matter in relation to which exist rights of ownership, including a range of uses, and those rights of ownership themselves.


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Rh


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Rh


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Gummow J

The present matters before the Court concern intellectual property which has no physical subject matter, unlike a parcel of land or a chattel. However, although disavowed, some of the submissions by the plaintiffs and supporting interveners sought to objectify the intellectual property, particularly the registered trade marks, by attributing a character distinct from the bundle of rights given by the statutes in question. Perhaps to overcome this difficulty, counsel drew attention to the cardboard boxes upon the packaging of which the Packaging Act operates. Like a parcel of land, there might be postulated many uses of that physical subject matter, and thus a range of restraints or "regulation" of that subject matter. However, as counsel for Van Nelle correctly accepted, the only use to be postulated of the packaging was as a cigarette container. To focus upon the cardboard boxes as the subject of the proprietary rights of the plaintiffs would be to present a case both unreal and synthetic.

In Dalziel, Starke J said that, whilst what was conferred upon the Commonwealth was neither ownership nor any estate in the land, the right of temporary possession was to be classified "under the denomination of jura in re aliena [a right in the thing of another], and so a right of property, the subject of acquisition". On the other hand, Rich J concluded that "the Minister has seized and taken away from Dalziel everything that made his weekly tenancy worth having, and has left him with the empty husk of tenancy". Likewise, Williams J emphasised that the Commonwealth had divested Dalziel of that exclusive possession which was "of the very essence of the proprietary interest conferred [by his tenancy]".

It is with an appreciation of the unsuccessful submission put by the Minister in Dalziel and of the somewhat divergent approaches in the reasoning of the Court in that case, that there should be read the synthesis attempted by Dixon J in the Banking Case. In particular, the phrase "innominate and anomalous interests" used there may accommodate the classification by Starke J of the right to possession conferred upon the Commonwealth as jura in re aliena. Dixon J said:


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Rh Tones and Tonal Marks.

The Chinese of Amoy count eight tones; two of these, however (to wit, the 2d and the 6th), are one and the same. The names of these tones are as follows:

 * is chiⁿū piⁿâ = upper even.
 * chiⁿū siⁿa = upper tone.
 * chiⁿū khikhì [sic] = upper departing.
 * 4th chiⁿū jiṕ = upper entering.
 * 5th ē piⁿâ = lower even.
 * 6th ē siⁿa = lower tone.
 * 7th ē khì = lower departing.
 * 8th ē jiṕ = lower entering.

These two jiṕ tones always end in h, k, p, t. If the other tones end in a vowel, then the jiṕ ends in h, as: ba, bah. If the other tones end in ng, the jiṕ ends in k, as: kang, kak. If the other tones end in n, the jiṕ ends in t, as: kun, kut. If the other tones end in m, the jiṕ ends in p, as: kim, kip.

The chiⁿū siⁿa (2d) and ē siⁿa (6th) are the same.

The two jip tones are distinguished from all the others by their termination. The ē jiṕ (8th) is distinguished from the chiⁿū jiṕ (4th) by the mark ◌́ placed over it, as kut, kút; bak, bák. The chiⁿū jiṕ, therefore, needs no mark.

The chiⁿū piⁿâ (ist tone) has no tonal mark: its termination distinguishes it from the jiṕs, and its having no tonal mark distinguishes it from the other tones.

The 2d tone, or chiⁿū siⁿa is marked ◌́, as: kóng, bí.

The 3d tone (chiⁿū khikhì [sic]) is marked ◌̀, as: kàng.

The 5th tone (ē piⁿâ) is marked ◌̂, as: hêng.

The 7th tone (ē khì) is marked ◌̄, as: khiām.

Examples.


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Rh OUTLINE OF THE SYSTEM ADOPTED FOR ROMANIZING THE DIALECT OF AMOY.

dialects of Fuhchau, Amoy and Changchau are perhaps the most important varieties of the Chinese language as spoken in the province of Fuhkien: the first named city being the capital of the province, the second, of much maritime importance, and the last enjoying a high degree of reputation for literature, refinement and wealth. The points of difference between the dialects of the latter two are, however, on account of their closer vicinity to one another, much fewer than between those of Fuhchau and Amoy.

The experiment of writing the colloquial dialect of Amoy in Roman characters (sometimes modified by certain diacritical signs), was first made about the year 1848, by the Rev. John Lloyd, of the American Presbyterian Board of Missions, and was subsequently much improved and reduced to its present form by the Rev. Messrs. Doty and Talmage, missionaries of the American Board of Commissioners for Foreign Missions. Since 1851, these gentlemen have issued sundry elementary reading-books on this plan, among which are the Story of Joseph, as related in the Chinese version of Genesis xxxvii-xliv., and the Gospel according to St. John. For an account of the happy success which has followed this attempt to facilitate the acquisition of that difficult language to the natives themselves, see letters of Rev. J. V. N. Talmage in The Missionary Herald, vol. xlvii. p. 154; and vol. xlviii. pp. 17, 150.


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You Gentiles The efflorescence of our life, given free room, is profoundly different. We have none of this joyous gamesomeness. We fight and suffer and die, even as we labor and create, not in sport and not under the rules of sport, but in the feeling and belief that we are part of an eternal process. We cannot have art such as you have, a free and careless lyrical beauty, songs and epics. Our sense of beauty springs from immersion in the universe, from a gloomy desire to see justice done in the name of God. Morality itself we take simply and seriously: we have none of your arbitrary regulations, your fine flourishes and disciplined gallantries: we only know right or wrong: all the rest seems to us childish irrelevance. When God speaks in us, when his overwhelming will drives us to utterance we are great: otherwise we are futile. With you there cannot be a question of futility. We belong to the One mastering God: you belong to the republic of playful gods.

These are two ways of life, each utterly alien to the other. Each has its place in the 36


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The Question world—but they cannot flourish in the same soil, they cannot remain in contact without antagonism. Though to life itself each way is a perfect utterance, to each other they are enemies. 37


text:
Back Again

Oh, my boy, come in, do.
 * You've come back at last,

Two years since we saw you,
 * How the time has passed!

Have a bath and shave first,
 * No — a cup of tea?

Think you want a rest worst?
 * Dear, oh deary me!

Look, boy, at your boots, too,
 * All cut with the rocks,

Have you brought home with you
 * Any mended socks

They are always tearing?
 * Threw them all away?

Alberts you are wearing?
 * Goodness, what are they?

Felt that you were coming,
 * So I wrote to Bob,

He says things are humming:
 * And you'll get a job.

Now, dear, don't come near me,
 * You're all over dust,

Can you smoke? Oh, dear me.
 * 'Spose so if you must.

title: Back Again


text: Talk:Back Again

title: Talk:Back Again


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 most amazing thing in your life, the most in contrast with ours, is its sport. By this I do not mean simply your fondness for physical exercise, your physical exuberance, but the psychological and social institutionalization of sport, its organization, its predominant rôle as the outlet and expression of your spiritual energies.

I will not go into the history of sports among you, contrasting it with its absence from our records and emotions. But surely there is something of extraordinary significance in the predominance of sports in your first high civilization, their religious character and their hold on the affection and attention of the masses. That the overwhelming significance of this manifestation of life has been ignored is due essentially to the pomposity of historians, who care for dignity and 38


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.Bradley1854__cdo-list ruby { font-size: 200%; /*ruby-position: under;*/ /* XXX (2023): Unrecognized or unsupported property*/ }

.Bradley1854__cdo-list ruby > rt { font-size: 50%; }


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Gummow J

"I take [Dalziel] to mean that s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property." (emphasis added)

The provisions of Divs 2 and 3 of Pt IV of the Banking Act 1947 (Cth) were held by Dixon J effectively to deprive the private banks of the substance and reality of proprietorship of their assets and undertaking and the shareholders of the substance and reality of proprietorship of their shares, and to place this beneficial enjoyment and control in the hands of agents of the Commonwealth. What distinguished this conclusion from that in Dalziel was that it was reached not directly as in Dalziel, but indirectly by reference to the circuitous devices constituted by the interconnected plan which his Honour saw laid out in Divs 2 and 3 of Pt IV of the statute. The phrase "possession and control" was used by Dixon J to identify the substance of the property of which the banks and their shareholders had been stripped in favour of the Commonwealth ; it was not used to indicate that s 51(xxxi) was engaged by a "taking" which yielded no more than some measure of control of the use of that which had been taken. Yet that is how some of the submissions by the present plaintiffs assume the remarks of Dixon J are to be understood.

It is, however, apparent that in the Tasmanian Dam Case, Deane J considered that the absence of a material benefit to the Commonwealth of a proprietary nature, at least in that case, did not avoid the conclusion that there had been an acquisition of property for the purposes of the Commonwealth. His Honour went on to support that doctrinal conclusion on two grounds.

One ground was that because "property" in s 51(xxxi) includes the "innominate and anomalous interests" to which Dixon J had referred in the Banking Case, there was no reason in principle why "a corresponding benefit under a legislative scheme cannot, in an appropriate case, be regarded as property". However, as indicated above, Dixon J used this expression with


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is the essence of our difference: that we are serious, you are not. The French shading of the word comes nearer my meaning: vous n'êtes pas sérieux. Not as a matter of intent, but as a matter of constitution.

This lack of seriousness, thus uttering itself in your ethics, and governing the character of your relations to each other, must also govern your religion, your symbolized relations with the universe. And I have always felt, in contemplating your religious experiences and declarations, the same alienation from them as from your morality. Your feeling for Godhead partakes of the imaginative and lyrical playfulness which is your essential nature, and whatever may be the formal creed in which your feelings are wrapped their true nature cannot be hidden. 64


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Rh OVERCROWDING.—Each succeeding year there is a greater number of patients resident in State hospitals. There is a constantly increasing number of beds provided to care for these patients, but at no time has the nnmber of beds been sufficient to furnish adequate facilities for all patients. As soon as additional construction is undertaken, there is a greater influx of patients than the constrnction was intended to accommodate. Consequently there is almost always a certain amount of overcrowding in most State hospitals. It is preferable to express this overcrowding in relation to figures of rated capacity, rather than to numbers of beds, for beds can be crowded into space never intended to hold them. Many hospitals contain one-bed rooms, spaciously constrncted, and as a result, are made to hold two or three beds. Day-rooms have been provided in construction plans so that patients may move about unhampered; when it becomes necessary to use these rooms at night for beds, which are crowded into the corners as best they can be by day, a patient's freedom becomes cramped. Few persons enjoy such enforced proximity at all times to their fellows.

Over the period 1926 through 1938 there has not been great change in the degree of overcrowd1ng, but it has varied slightly above and below 10 percent. This may, in some hospitals, not be too great an excess, but in others it evokes serious problems of administration and makes adequate therapeutic care of patients difficult.

YEAR

Average daily resident patient population

Normal capacity of hospitals

EXCESS OF POPULATION OVER CAPACITY

Number

Percent

1938 381,708 348,809 32,899 9.4

1937 369,489 333,237 36,252 10.9

1936 358,429 321,708 36,721 11.4

1935 347,620 312,158 35,462 11.4

1934 336,637 302,759 33,878 11.2

1933 327,812 295,703 32,109 10.9

1932 307,939 279,807 28,132 10.1

1931 296,700 270,585 26,115 9.7

1930 278,829 247,407 31,422 11.7

1929 269,892 244,599 25,293 10.3

1928 264,072 239,471 24,601 10.3

1927 256,009 232,572 23,437 10.1

1926 248,852 232,321 16,531 7.1

There was apparently hospital construction in certain of the States during 1938. Rhode Island, New Jersey, Michigan, Missouri, South Carolina, Alabama, and California show large decreases in the proportion of overcrowding from the previous year.

Similarly, there are a number of States whose degree of overcrowding has increased seriously in that 1-year period. The greatest overcrowding is recorded in Iowa, Delaware, Georgia, Kentucky, and Colorado.


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Gummow J

reference to the rejection in Dalziel of the submission that what had to be taken was some specific estate or interest in land recognised at law or in equity, and in the Banking Case what had been taken from the banks and the shareholders and placed in the hands of the agents of the Commonwealth was the substance of proprietary interests.

The other ground which Deane J advanced in the Tasmanian Dam Case was by way of analogy expressed as follows :

"The benefit of a restrictive covenant, which prohibits the doing of certain acts without consent and which ensures that the burdened land remains in a state which the person entitled to enforce the covenant desires to have preserved for purposes of his own, can constitute a valuable asset. It is incorporeal but it is, nonetheless, property." However, restrictive covenants are not imposed in gross but must "touch and concern", that is to say benefit or enhance the value of, the land of the covenantee. There is a binary relationship between the two parcels of land, one bearing the burden and the other receiving the benefit.

The proposition that there need be no corresponding benefit of a proprietary nature which, with some hesitation, Deane J accepted in the Tasmanian Dam Case, was not adopted in that case by any other member of the Court. Other passages in his Honour's reasons have been referred to in later cases, but in support of the proposition that to enliven s 51(xxxi) there must be the derivation of an identifiable and measurable advantage of a proprietary nature.

Nevertheless, to varying degrees, the plaintiffs in the present cases and supporting interveners sought to rely upon what Deane J had said, at least as a means of supporting the sufficiency of an attenuated connection between the operation of the Packaging Act and the derivation of a benefit to the Commonwealth. But, as indicated above, that reasoning in the Tasmanian Dam Case was not soundly based.


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dreams of men concerning the latter days are a common index to their ideals of life, for no one will think of the future except as his own. These dreams, like their close kin, the night dream, are extraordinarily difficult of interpretation—much more difficult than the psychoanalyst would have us believe. But on occasions they are presented with unmistakable clarity and directness—by the prophets.

The functions of the prophet as a seer and a foreseer have been confounded for this reason. The true prophet sees into the ultimate longings of his group—longings which may even run counter to the day's desires. These ultimate longings are shifted into the far future—beyond the reach of temporal complications and compromises: and he that unveils 78


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friendly tribute has been paid to the higher ethical nature of the Jew, it has always been made to appear that the Jew obeys the laws of a common morality more strictly than does the gentile. Jews and friends of Jews have wanted to make it appear that, if we differ from you ethically, it is in that we are more self-sacrificing, more generous, more loyal, more honest, etc. I do not desire to make it appear so, and in the foregoing pages I have tried to avoid any such implication. Within our system we need be neither better nor worse behaved than you within yours. We may transgress as frequently as you, perhaps more frequently—I cannot tell: it is on the nature of the systems that I base the distinction. We deny your very system, you ours. 91


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16c. 36

(4) The duty to conﬁrm or deny does not arise if, or to the extent that, compliance with section 1(1)(a)—
 * (a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1), or
 * (b) would involve the disclosure of any information (whether or not already recorded) which is conﬁdential information obtained from a State other than the United Kingdom or from an international organisation or international court.

(5) In this section—
 * “international court” means any international court which is not an international organisation and which is established—
 * (a) by a resolution of an international organisation of which the United Kingdom is a member, or
 * (b) by an international agreement to which the United Kingdom is a party;
 * “international organisation” means any international organisation whose members include any two or more States, or any organ of such an organisation;
 * “State” includes the government of any State and any organ of its government, and references to a State other than the United Kingdom include references to any territory outside the United Kingdom.

28.—(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice relations between any administration in the United Kingdom and any other such administration.

(2) In subsection (1) “administration in the United Kingdom” means—
 * (a) the government of the United Kingdom,
 * (b) the Scottish Administration,
 * (c) the Executive Committee of the Northern Ireland Assembly, or
 * (d) the National Assembly for Wales.

(3) The duty to conﬁrm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).

29.—(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
 * (a) the economic interests of the United Kingdom or of any part of the United Kingdom, or
 * (b) the ﬁnancial interests of any administration in the United Kingdom, as deﬁned by section 28(2).

(2) The duty to conﬁrm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).

30.—(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of—

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 of the best illustrations wherewith to contrast your adaptability to discipline and our lack of it is to be found in the difference between your behavior in church and our behavior in our own unmodernized synagogue—the orthodox synagogue.

In church all is order and decorum, rhythm and régime. In the synagogue all is chaos. In the church leaders and responses are carefully prepared, carefully followed and observed. It is clean and neat, charming and exact. You behave well. You do as you are told—in mass. You create esprit de corps in the church: there is a suggestive, hypnotizing decency in the trained correctness of your service. In the synagogue all is disorder; we talk during service; we answer out of turn; and when we answer in mass one begins earlier, another ends later; 107


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Rh

 * (i) whether a person should be charged with an offence, or
 * (ii) whether a person charged with an offence is guilty of it,
 * (b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or
 * (c) any criminal proceedings which the authority has power to conduct.

(2) Information held by a public authority is exempt information if—
 * (a) it was obtained or recorded by the authority for the purposes of its functions relating to—
 * (i) investigations falling within subsection (1)(a) or (b),
 * (ii) criminal proceedings which the authority has power to conduct,
 * (iii) investigations (other than investigations falling within subsection (1)(a) or (b)) which are conducted by the authority for any of the purposes specified in section 31(2) and either by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under any enactment, or
 * (iv) civil proceedings which are brought by or on behalf of the authority and arise out of such investigations, and
 * (b) it relates to the obtaining of information from confidential sources.

(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2).

(4) In relation to the institution or conduct of criminal proceedings or the power to conduct them, references in subsection (1)(b) or (c) and subsection (2)(a) to the public authority include references—
 * (a) to any officer of the authority,
 * (b) in the case of a government department other than a Northern Ireland department, to the Minister of the Crown in charge of the department, and
 * (c) in the case of a Northern Ireland department, to the Northern Ireland Minister in charge of the department.

(5) In this section—
 * “criminal proceedings” includes—
 * (a) proceedings before a court-martial constituted under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 or a disciplinary court constituted under section 52G of the Act of 1957,
 * (b) proceedings on dealing summarily with a charge under the Army Act 1955 or the Air Force Act 1955 or on summary trial under the Naval Discipline Act 1957,

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Page:You Gentiles (1924) by Maurice Samuel 1895-1972.djvu/128

spoken of Jews and gentiles—in mass. Certain of you will assuredly object: "You cannot deal with masses as with men. 'You cannot indict a nation.' "

The objection is futile—not only has it been the universal practice to indict and to punish masses as if they had personality and to treat nations as such: but you are doing it to-day, everywhere. And I believe that fundamentally, the practice is just, despite the objections of the few whom I shall answer here. Particularly consonant is the practice with your gentile philosophy. Here is your nation: X. It is composed of militarists and pacifists and mobs. The government is militaristic—whether it represent a minority or a majority. And the militaristic government 124


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Page:Complete Works of Count Tolstoy - 13.djvu/127

 For we walk by faith, not by sight, that is, we live. Here again nothing is said about the knowledge of God in part, but about living by faith. All these texts are adduced in order to prove that God is incomprehensible and comprehensible only in part. Again we find here an intentional mixing up of ideas. The author purposely mixes up two ideas: the comprehensibility of the existence of God and the comprehensibility of God himself. When we speak of the beginning of everything, of God, we evidently recognize and comprehend his existence. But when we speak of God’s essence, we obviously cannot comprehend that. Why then prove that he is comprehensible in part? If nothing in the world is completely comprehensible to us, then it is evident that God, the beginning of all beginnings, is absolutely incomprehensible. Why prove it? and why prove it in such a strange manner, by adducing incorrect words from John, which prove that no man has ever seen God, and inexact words from Paul, which refer to something quite different, to the proof of the comprehensibility of God in part?

These strange texts and the strange proofs arise from this, that the word “comprehensibility” is used here and elsewhere in a double sense: in its natural sense of understanding and in the sense of knowledge taken on trust. If the author had understood comprehensibility as comprehensibility, he would not have tried to prove that we comprehend God in part, but would have admitted at once that we cannot comprehend him; but he understands here by the word “comprehensibility” knowledge taken on faith, purposely mixing up this conception with the conception of the recognition of the existence of God. And so it turns out with him that we can comprehend God in part. When he adduces the text about our comprehending God through his creations, he has in mind the recognition of God’s existence; but when he quotes the text that “God spoke to the fathers through


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18c. 36

 * (d) proceedings before the Courts-Martial Appeal Court, and
 * (e) proceedings before a Standing Civilian Court;
 * “offence” includes any offence under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957.

(6) In the application of this section to Scotland—
 * (a) in subsection (1)(b), for the words from “a decision” to the end there is substituted “a decision by the authority to make a report to the procurator fiscal for the purpose of enabling him to determine whether criminal proceedings should be instituted”,
 * (b) in subsections (1)(c) and (2)(a)(ii) for “which the authority has power to conduct” there is substituted “which have been instituted in consequence of a report made by the authority to the procurator fiscal”, and
 * (c) for any reference to a person being charged with an offence there is substituted a reference to the person being prosecuted for the offence.

31.—(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
 * (a) the prevention or detection of crime,
 * (b) the apprehension or prosecution of offenders,
 * (c) the administration of justice,
 * (d) the assessment or collection of any tax or duty or of any imposition of a similar nature,
 * (e) the operation of the immigration controls,
 * (f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained,
 * (g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2),
 * (h) any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment, or
 * (i) any inquiry held under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment.

(2) The purposes referred to in subsection (1)(g) to (i) are—
 * (a) the purpose of ascertaining whether any person has failed to comply with the law,

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Rh

 * (c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,
 * (d) the purpose of ascertaining a person’s fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on,
 * (e) the purpose of ascertaining the cause of an accident,
 * (f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration,
 * (g) the purpose of protecting the property of charities from loss or misapplication,
 * (h) the purpose of recovering the property of charities,
 * (i) the purpose of securing the health, safety and welfare of persons at work, and
 * (j) the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.

(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).

32.—(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
 * (a) any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter,
 * (b) any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or
 * (c) any document created by—
 * (i) a court, or
 * (ii) a member of the administrative staff of a court,
 * for the purposes of proceedings in a particular cause or matter.

(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
 * (a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or
 * (b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of this section.

(4) In this section—

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Gummow J

A comparison between several decisions given after the Tasmanian Dam Case was drawn by Gaudron and Gummow JJ in a passage in Smith v ANL Ltd. On the one hand, their Honours noted:

"The legislation which was invalid in its application to the plaintiff in Georgiadis [v Australian and Overseas Telecommunications Corporation ] denied his right to recover damages for non-economic loss and deprived him of his entitlement to full recovery of economic loss, [even though it] did not extinguish the whole of the rights comprising his common law cause of action. The law which was successfully challenged in Newcrest Mining (WA) Ltd v The Commonwealth did not in terms extinguish Newcrest's mining tenements and the Kakadu National Park extended only 1,000 m beneath the surface. Nevertheless there was an effective sterilisation of the rights constituting the property in question, the mining tenements. On the surface and to the depth of 1,000 m, s 10(1A) of the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) forbade the carrying out of operations for the recovery of minerals. As a legal and practical matter, the vesting in the Commonwealth of the minerals to that depth and the vesting of the surface and the balance of the relevant segments of the subterranean land in the Director of National Parks and Wildlife denied to Newcrest the exercise of its rights under the mining tenements."

The passage in ANL continued:

"On the other hand, the degree of impairment of the bundle of rights constituting the property in question may be insufficient to attract the operation of s 51(xxxi). For example, the prohibition imposed under the legislation upheld in Waterhouse v Minister for the Arts and Territories upon the export of the applicant's painting left him free to retain, enjoy, display or otherwise make use of the painting. He was free to sell, mortgage or otherwise turn the painting to his advantage, subject to


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 streets, whose daily bread was the imperial dole, whose whole business in life was to watch the criminals being scourged, blinded, deprived of tongue, hand, nose, or foot, beheaded, and hanged; to bawl at the circus, to gaze upon the processions of state, to kiss the holy pictures, and to kneel before the holy images. In times of ardent controversy, too, they discussed theology. Then there were the great palaces of the nobles—later on Venice and Pisa could show their own—and the monasteries and the multitudinous churches, each with its holy pictures, its images, and its precious relics. In the port the navy of the empire was reckoned by hundreds of war-ships, and there were the countless masts of the vessels which came and went laden with the trade of East and West. As for a middle class, that gradually disappeared. What contributed mainly to its decay was the destruction of the organized civil service. When everything began to be given to favourites, when the favourites filled up the subordinate posts with their protégés, the organization of the civil departments was destroyed, and with it one important element of the middle class. Then again the connection of the citizens with the army was altogether cut off by religious fanaticism. When one of the emperors asked the patriarch to declare that those who died in the frontier wars, died in a holy cause, this patriot replied that, so far from making any such declaration, he would exclude from the sacraments of the Church for three years every man who had chosen the life of a soldier. With such teaching from the churches, it cannot be a matter of surprise that the citizens learned


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us have done with recollections and recriminations," you say. "You have spoken hitherto of conditions which are vanishing: of orthodox Jews mostly, of old customs and emotions which are dying out. You yourself are not an orthodox Jew; nor are we medieval Christians. We see the Jew gradually modernizing. He becomes more like us—more difficult to recognize as a Jew. Granting there are occasional relapses, we are still moving toward real tolerance. The present age is not like any age before it, and the modern Jew is not like any Jew before him. You have lasted two thousand years in exile—you will not last for ever. All those ceremonials of yours are breaking down: your discipline, your defensive mechanisms. At least in America, England, France, Germany, 135


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20c. 36

 * (b) “proceedings in a particular cause or matter” includes any inquest or post-mortem examination,
 * (c) “inquiry” means any inquiry or hearing held under any provision contained in, or made under, an enactment, and
 * (d) except in relation to Scotland, “arbitration” means any arbitration to which Part I of the Arbitration Act 1996 applies.

33.—(1) This section applies to any public authority which has functions in relation to—
 * (a) the audit of the accounts of other public authorities, or
 * (b) the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions.

(2) Information held by a public authority to which this section applies is exempt information if its disclosure would, or would be likely to, prejudice the exercise of any of the authority’s functions in relation to any of the matters referred to in subsection (1).

(3) The duty to confirm or deny does not arise in relation to a public authority to which this section applies if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the exercise of any of the authority’s functions in relation to any of the matters referred to in subsection (1).

34.—(1) Information is exempt information if exemption from section 1(1)(b) is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.

(2) The duty to confirm or deny does not apply if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.

(3) A certificate signed by the appropriate authority certifying that exemption from section 1(1)(b), or from section 1(1)(a) and (b), is, or at any time was, required for the purpose of avoiding an infringement of the privileges of either House of Parliament shall be conclusive evidence of that fact.

(4) In subsection (3) “the appropriate authority” means—
 * (a) in relation to the House of Commons, the Speaker of that House, and
 * (b) in relation to the House of Lords, the Clerk of the Parliaments.

35.—(1) Information held by a government department or by the National Assembly for Wales is exempt information if it relates to—
 * (a) the formulation or development of government policy,
 * (b) Ministerial communications,
 * (c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or
 * (d) the operation of any Ministerial private office.

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 to look on the profession of arms with contempt. Here was another outlet for a middle class destroyed.

Other causes were the accumulation of private property, which made the aristocracy rich out of all proportion, the transference of trade to foreign merchants, the intermittent successes and defeats of the empire, which were naturally felt first by the middle class, and the growth of a servile spirit among a poor and lazy population. The great families were, it is true, presently ruined, but the mischief was by this time done, and the Greek natives of the city were plunged into the lowest depths.

Yet there were always among them artificers more skilful, engineers more ingenious, scholars more learned, artists more dexterous, than in any other country of the world. Constantinople, even in its lowest stage of decay, was far in advance of the west of Europe.

The Church decayed with the people—perhaps more rapidly. It is difficult to believe that there was a vital force left at all in this great branch of the Christian Church, and it seems indeed to have become eight hundred years ago what it seems to be now—a Church of the merest formalism. There were endless ceremonies, fasts, feasts, services, worship of saints, relics, and images: to conform to all these was to ensure heaven. There were monasteries in plenty, into which it was the fashion of the aged—Isaac Comnenus retired into one—to retreat, there to pass the remainder of their days in repose and meditation. These monasteries got endowments; the endowments grew to be used for the sup-


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 port of the cadets of noble families in luxury. Even private houses, with all their inmates, were turned into monasteries. We have seen how many emperors, generals, and rebels were sent to repent in monastic cloisters. The church ritual was very splendid; patriarchs, bishops, and clergy vied with each other in producing the most magnificent musical services.

Such, very briefly sketched, was the Constantinople of the tenth, eleventh, and twelfth centuries. An emperor first, made sacred by every form of ceremony and state; the emperor's immediate connections, dignified by grand names, but possessing no power and having no control over affairs except that gained by personal influence; the chief officers of the state, mere private secretaries appointed at will; the strongest emperors baffled by their inability to compass the control over everything; no trained body of departmental servants; an army composed entirely of rustics and foreigners; generals suspected after every successful enterprize; a capital crowded with an unwarlike and cowardly mob, living on imperial doles, eager for the games of the circus, without interest or care for the state; and a splendid city, the most splendid city of the earth, abounding with treasures of every kind, and occupying the finest site that the world has to show.


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anything, you must learn (and are learning) to dislike and fear the modern and "assimilated" Jew more than you did the old Jew, for he is more dangerous to you. At least the old Jew kept apart from you, was easily recognizable as an individual, as the bearer of the dreaded Jewish world-idea: you were afraid of him and loathed him. But to a large extent he was insulated. But as the Jew assimilates, acquires your languages, cultivates a certain intimacy, penetrates into your life, begins to handle your instruments, you are aware that his nature, once confined safely to his own life, now threatens yours. You are aware of a new and more than disconcerting character at work in the world you have built and are building up, a char- 144


text: Constantinople: A Sketch of its History from its Foundation to its Conquest by the Turks in 1453/Chapter 8


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change the instruments of their expression—but they remain the same illusions. Religions change their gods, but remain the same religions. The atheist gentile has made Science his god, but it has not changed his religion.

"In the scientific field," the atheist gentile tells me, "we will find world unity. In science there is no room for the subconscious, and it is the subconscious which dictates the eternal enmities. Place your relations on a conscious basis, and you may have differences to be adjusted—but not enmities.

"The solution of the Jewish-gentile problem, as of every instinct problem, lies in the pursuit of Truth through science. All other problems are not really problems, but purely technical matters, to be settled by the appli- 156


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would be absurd to pretend that the Jewish masses are distinguished from your masses by a conscious appreciation of the difference I have described. Indeed, very few even of the thinking Jews understand the nature of the problem. It is certain that the Westernized masses of Jews are doing their best to minimize, or to ignore, the difference between Jew and gentile: they and their leaders assert, frequently and vehemently, that there is no difference. Jew and gentile are alike except in their opinions regarding certain very simple "matters of faith."

You, too, will assert: "Even if we grant this distinction between gentile and Jewish genius, are we to understand that it permeates the masses, that the strain of seriousness is to be found in your hundreds of thousands of 177


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Gummow J

the requirement of an export permit if the owner or any other person desired to take it out of Australia. The legislation considered in British Medical Association v The Commonwealth, and held invalid on other grounds, today perhaps would be thought to be nearer the line of invalidity. In British Medical Association, Dixon J was of the opinion that there was no involuntary taking of property from chemists without just compensation. The chemists were legally free to supply pharmaceuticals or not, as they pleased, in a situation where, if a sale were made at other than a price fixed by the Commonwealth, there would be little or no other trade for them in that commodity."

In Australian Tape Manufacturers Association Ltd v The Commonwealth, the Court unanimously upheld the validity of a law which provided that copyright in a published sound recording was not infringed by the making on private premises of a copy of the recording on blank tape for the private and domestic use of the maker. This result was reached on the basis that, although the law reduced the content of the exclusive rights given to copyright owners, there was no "acquisition of property". As Dawson and Toohey JJ put it, there was no acquisition of property by the conferral of a freedom generally to do something which previously constituted an infringement of the proprietary right of another.

On the other hand, the defendant tortfeasor considered in Georgiadis was, pro tanto, relieved of liability. Further, the sterilisation of the mining tenements in Newcrest augmented the title of the Commonwealth and the Director to the land in question. These two cases illustrate the proposition that the modification or deprivation of the proprietary rights of one party may yield to another party a countervailing benefit or advantage of a proprietary nature.

As noted above, the TMA, like other trade mark legislation, does not confer on registered owners or authorised users a liberty to use registered trade marks free from restraints found in other statutes. Nevertheless, the power of exclusion which is conferred by the TMA, the Patents Act, the Copyright Act and the Designs Act does carry with it the right to relax that exclusivity in favour of


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the situation which I have described constitute a problem? Or is it merely one of the insoluble difficulties of life which, being insoluble, should be understood as such and suffered tacitly? Death is not a problem, being inevitable. Is this struggle between our two worlds as inevitable? Shall we resign ourselves to the struggle and do what we can to mitigate its worst effects, or shall we continue the search for a complete solution?

The one solution which is generally offered as complete and satisfactory is, quite apart from its feasibility, not a solution at all: only a dissolution. The disappearance of the Jewish people by complete submergence in the surrounding world would not, in reality, solve the problem; any more than one solves a 188


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would be an ideal condition, presumably—the merging together of Jew and gentile, for the production of a world neither wholly gentile nor yet dual with Jew and gentile—but composed of both in certain proportions fixed by our numbers and the laws of heredity. That is, at least, the best solution within view, and if we are to be reasonable—on paper at least—it would be the only one to be considered.

But we must remember that this ideal cannot be realized in one generation or in two, or in five. If we were to assume (the assumption is an absurd one) that within this generation the Jewish world could be won over to this point of view, it would still need four or five generations (probably more) to obliterate our identity. At that it would call 196


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 share in the recovery of the East, Asia Minor, and Armenia.

The successor of Alexius is described as possessing every virtue which becomes a Christian as well as a sovereign. He reigned five and twenty years. He made himself popular in his capital by his military successes. The people saw with satisfaction an increase in the imperial revenues, and therefore in their own material prosperity. He gave up his father's practice of disbanding his forces after each campaign, ceased to rely on the Byzantine militia, and trained his soldiers carefully as professional soldiers, not as volunteers or as militiamen. Naturally, therefore, his armies were composed entirely of foreign mercenaries, of Slavonians, Bulgarians, Patzinaks, Comans, and Turks. John, however, seems to have failed in turning his victories to the best advantage. Perhaps he despaired of improving the ruined roads, rebuilding the broken bridges, and reviving the desolate cities which everywhere mocked the magnificence of Constantinople: perhaps he found no time in the multiplicity of his campaigns. His sister, Anna Comnena, who with his mother conspired against him, did not write his life or exploits. Yet two historians have handed them down, and if we know little personally of this prince, we know enough to be assured that he had none of his father's duplicity, and relied on honest fighting for the defence of his state.

John was succeeded by his son Manuel, who possessed his father's headlong courage without his prudence. He was always, it is true, ready to fight, but he preferred a


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is little more to be said. I would only like to set down, before concluding, a few considerations which might help to clarify the issue between us. For I cannot believe that the contest between our two ways of life will come to an end within measurable time, and I cannot believe that while the contest continues it will ever be lifted to purely spiritual levels. I will not confound eschatology with daily experience: if ever the dream of the prophet should come true, if ever men should live at peace with each other, expressing their antagonisms without enmity—why, they will no longer be men, but another species, and talk of Jew and gentile will be as irrelevant then as it might have been twenty thousand years ago. The world is getting better, no doubt, but the improvement is not 210


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It would have been a happier task for me if I had been able to write this book, with sincerity, in another tone; if I had been able to record a struggle of two ideals and types which was never compromised and obscured by physical lusts and cruelties. But rather than utter the old, untruthful courtesies, tempering resentment with caution and tact, it would have been better not to write at all, and I was driven to write. I believe that though I may have erred here and there, I have been mainly right: and I console myself with the thought that if this book offends by its assertiveness, God knows that the infinite tactfulness of thousands of other Jews seems to have offended no less. Whatever we do we are damned—and I would rather be damned standing up than lying down. 221


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 tournament to a battle, and lavished the treasure of the empire on the unbridled indulgence of every passion. But at the commencement of his reign Manuel was probably the tallest, the most handsome, and the strongest man in his own dominions. Never was seen so splendid a prince. He wore armour heavier than an ordinary man could lift; he carried a heavier spear and shield than even any Norman; he could tear a stirrup in two with his hands. As he had the strength, so he had the vices of the Latins, whose society he courted, and with whom he intermarried. He drank wine to excess, and spent a large part of his time in feasting. Yet he far surpassed the ignorant Westerns in learning; like all the Greeks, he could argue about theology; he interfered with the decisions of the synods; and understood the practice and science of surgery.

The following is an account of the city in the reign of Manuel, given by a contemporary traveller.

The circumference of the city of Constantinople is eighteen miles, one half of the city being bounded by the continent, the other by the sea, two arms of which meet here, the one a branch or outlet of the Russian, the other of the Spanish, sea. Great stir and bustle prevail at Constantinople, in consequence of the confluence of many merchants, who resort thither, both by land and by sea, from all parts of the world, for purposes of trade—merchants from Babylon and Mesopotamia, from Media and Persia, from Egypt and Palestine, as well as from Russia, Hungary, Lombardy, and Spain. In this respect the city is equalled only by Bagdad, the Mohammedan metropolis. At Constantinople is the place of worship called St. Sophia, the metropolitan seat of the pope of the Greeks, who are at variance with the pope of Rome. It (St. Sophia) contains as many altars as there are days in the year, and possesses countless riches, which are augmented every year by the