Law

Foreword
This paper is based on the analysis of the legal concept of equality.

Thesis
Equality represents a complex concept consisting of formal and substantive equality perspectives realized applied by the court in relation to various social issues

Purpose of the Study
The purpose of the research paper is to analyze the issue of equality, and more importantly a balance between formal and substantive equality in relation to the spirit and purpose of section 15 of the Canadian Charter of Rights and Freedoms and the appropriate treatment of sex differences.

Statement of the Problem
Equality is an inseparable attribute of any democratic society which is guaranteed to all individuals. In past times the perspective of formal equality was applied for determining fairness of all the issues related to the given phenomenon. Development of feminist movement, establishment of equal rights and opportunities for all the members of human society, and many other issues facing contemporary society are more likely to turn a broad variety of factors to determine what is fair from the perspective of substantive equality. Mutual coexistence of formal and substantive equality typical of the Canadian society creates difficulties connected to definition of certain factors which may or may not be justified in accordance to perspective of formal or substantial equality. Such difficulties are related to the courts dealing with cases of unequal treatment, sex differences, etc. Due to these obstacles, there has to be established an appropriate balance between formal and substantial equality in relation to the spirit and major purposes of section 15 of the Canadian Charter of Rights and Freedoms.

Hypothesis 1
Establishment of proper balance between formal and substantive equality will increase productivity of courts performance in relation to the issue of equality granted by section 15 of the Charter.

Research Questions
The research questions being investigated are
What is meant by formal and substantive equality
How does substantive and formal equality reflect the purpose and objectives of section 15 of the Charter
How might be perspectives of formal and substantive equality applied in relation to the issues of differential treatment
What is the role of formal substantive equality in the modern world and in the future

Definition of Terms

Formal equality
Formal equality is achieved by treating like persons alike and unlike persons unlike. (Introduction to equality and the Charter, 1996, p. 20)

Substantive equality represents a comparative concept of legal treatment which may be influenced by differences typical of society, its spheres and members (Andrews v. The Law Society of British Columbia, 1996, pp. 22-23).

Equality represents one of the constituting parts of human personality. Equal rights and opportunities for self-realization in the world influence human dignity, understanding of ones worthiness, and place in human society. In different times the concept of equality played a significant role in peoples lives despite of historical perspective, equality meant certain privilege for an individual as a participant of social life. In democratic society equality defines one of the human fundamental rights or privileges granted by law. Section 15 of the Canadian Charter of Rights and Freedoms states, that everyone has the right to equality without discrimination on the basis of sex. Formal and substantive equality are the two concepts developed in response to modern society, its varied structure, views, and perceptions of life processes. A proper balance between formal and substantive equality is one of the major mechanisms which may be successfully applied to adequate treatment of equality in regard to sex differences, discrimination, and the other challenges raised by the modern complex society, social groups, and separate individuals.

Legal establishment of equality in the Canadian society is connected to development of section 15 of the Charter which contains the basic provisions connected to equality, its role, and influence on each individual members of the Canadian society. In pre-Charter period equality was regarded as identical treatment of all the individuals. The problem of equality was mostly raised by women looking for legal determination of their position, and influence in society. The Royal Commission on the Status of Women (RCSW) in its report on the status of Canadian women defines equality as freedom from discrimination and the principle that permits no distinction in rights and freedoms between men and women (Razack, 1991, p. 28). Equality of rights and freedoms between men and women refers not merely to the sphere of labor division it is connected to the roles occupied by men and women in society, treatment of their peculiarities in relation to work, family life, social benefits, and personal relations. Regarding feminist movement, it is possible to admit that one of the major targets of feminism is realization of each woman as a personality, active society member, contributing to its development and progress.

There are many views in relation to the role of feminism one of the common opinions is connected to understanding feminism as an attempt of women to gain dominance over men, occupy leading positions in social institutions, and control all the processes of social life. Contrary to this radical vision of feminism, it is necessary to admit that feminist movement in Canada made a large contribution to development of the concept of equality, its meaning and realization in practical life. Equality typical of Canadian society was based on Aristotles concept of formal equality according to which equality is achieved by treating like persons alike and unlike persons unlike (Introduction to equality and the Charter, 1996, p. 20). Such a simplistic vision of equality is applicable to society in which there exists a strict order and social division.
Realization of formal equality in practice may be illustrated by a Biblical parable about the landlord and the hired workers described in Mt. 201-17. The parable describes the landlord hiring workers for his vineyard at different periods of the day. Some of the workers were recruited early in the morning and worked the whole day long the others started their work in the afternoon, and still others worked only one hour till the end of the workday. In the evening, all of the workers received equal sum of money regardless of the total amount of time they worked (New Testament). Such compensation was considered to be fair as it reflected the initial agreement between the landlord and all of his workers. Analyzing the given parable from the perspective of the modern world, it is possible to assume that legal norms and provisions existing in modern society would treat the same situations on quite a different way. There might be claims concerning discrimination of human labor, unfair compensation, and many other issues. Though, the parable illustrates formal equality in its relation to fairness and treating alike persons alike.

Referring to the text of section 15 of the Charter it becomes evident that formal equality in its relation to fairness corresponds to the following provisions Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law (Constitution Act, 1982). In regard to the above mentioned provisions, formal equality provides equal opportunity for all individuals to be protected to law and use it for their benefit connected to distribution of resources to which we are entitled on the basis of our common humanity as rational beings (Razack, 1991, p. 49). This view on formal or liberal equality in its application to practical life seems to be too general a concept and does not correspond to the varied structure of modern society represented by numerous groups, their own beliefs and perceptions of social life which are different from the stereotypical mode of human relations.

Feminist views on equality were brightly represented by organization and activity of LEAF founded in 1982 at the time of adoption of section 15 of the Canadian Charter of Rights and Freedoms. LEAF represents feminist organization aimed at support of womens positions in regard to equality and its protection in the courts in relation to the issues of discrimination on the basis of sex, race, religion, etc. Constitutional lobbying as the main mechanism of LEAF served the function of enabling women to articulate precisely their vision of equality (Razack, 1991, p. 35). Womens vision of equality doesnt support equality in its liberal roots. One of the major characteristics of formal equality as regarded by feminists was its neutrality in relation to a particular case. Neutrality means no support for either of the participants of a certain case. On the one hand, neutrality means fairness in decisions regardless of the interests, conditions, or arguments typical of any of the participants of the case. On the other hand, neutrality of formal equality might cause unintentional discrimination resulting in further complications of a certain case. Among the major disadvantages of formal equality is its inability to define the criteria according to which people may be treated alike or unlike. Furthermore, formal equality doesnt allow establishing the main categories of criteria for comparison and treating people as alike or unlike (Introduction to equality and the Charter, 1996, p. 20).

Equality in its broader sense and influence on social issues was supported by feminist movement. Such equality was defined as substantive equality which represents a comparative concept which may be influenced by differences typical of society, its spheres and members (Andrews v. The Law Society of British Columbia, 1996, pp. 22-23). The key principles of substantive equality include analysis of the possible impact of a certain law on social groups and individual society members having their own peculiarities in regard to social norms, standards, and principles recognition of patterns of disadvantage, offence, and oppression which may be imposed by legal norms or provisions significant attention to varied treatment of social life experience by different groups in accordance to their religious beliefs, orientation, and attitudes to life in all its aspects. These principles of substantive equality were regarded by feminists as correct principles which might be applied to equality as a social phenomenon and legal issue.

Substantive equality is devoid of neutrality instead it is related to the content of each separate case, its conditions, participants, their arguments, and obstacles supporting the development of a certain case. The Eldridge case is a bright representation of the courts reliance on substantive equality perspective. The importance of substantive equality may be supported by the fact that identical treatment of all the members of human society is atypical for the present day life. Identical treatment excludes sexual minorities, people with disabilities, and certain religious groups consisting of the ordinary society members who work and live for society benefit, its development and future progress.

Women have utilized a majority of strategies both in the past and present times in their search for equality. Unions have reflected the ability to showcase womens problems at a widely based platform which has in turn led to an evolutionary transformation of equality perspectives. Having become their safety haven, women enroll in such unions in large numbers. Moreover, they have led feminist movements in promoting their agenda focusing on all gender equality issues. They are also characteristic of upfront initiation of action and tenacious defense. Labor issues which often affect women in regard to employment have become easier to resolve. In essence women under the umbrella of a union are better placed to face employers. This is mainly because employers have to choice but to acknowledge their female employees plights. The backbone of unions has also given them a courageous front which prompts them to complain when they are subjected to discrimination. In the absence of legal provisions negotiation becomes the only tool for equality and it is them that unions come in as such powerful forces.

LEAF developed an approach which was meant to delegate the charter provisions on sexual equality. The approach sought to assert the vitality of viewing constitutional equality on the basis of womens experiences. As such, they emphasized that claims of sexual equality be evaluated within the contexts of power relations and impacts of womens subordination. This perspective created a clear distinction between formal and substantive equality. Legal guidelines no longer insisted on the basic dynamics of sexual equality but on a larger spectrum of comparison. Even though formal equality does create a foundation for determining discrimination, its continued use may dispel the very elements of equality it aims to protect. The support for formal equality may be argued in reference to its ability to inhibit illogical decision making processes. Any defects which may be introduced in decision making processes meant to depict the fate of womens issues are rid by formal equality. However, with the injecting of substantive equality in such processes it becomes possible to ensure equality for women successfully.

It has been argued that the neutrality of formal equality is nothing short of illusions. Questions arise on whether there are indeed parties in law who can claim total neutrality. As a result this form of equality has been established as ineffective in dealing with certain equality controversial issues. Indeed, with its masquerade of independence, formal equality detaches from the reality of substantive rights. Both human rights and womens equality must coexist harmoniously for effective function. Substantive equality seems to achieve this while formal equality creates a dichotomy. The concentration on comparison has further reduced the popularity of formal equality and encouraged substantive equality especially in todays modern world.
Opportunities have not often come easy for women and creating this form of equality mandates a conceptual framework which disregards the elements of formal equality. Opportunities for women have to be redistributed under new guidelines which take into consideration their individual plights. Women are regarded according to their backgrounds and giving preference to the grave need for the opportunities. Another concept which has supported the use of substantive equality is the equality of outcomes. Here legal provisions and policies instigate equality through affirmative action, positive and reverse discrimination. Positive discrimination of women entails treating them favorably because they are women. This concept works in wide jurisdictions where the focus is to address general forms of past discriminations. This refers to instances when women are given educational opportunities as a way of promoting women education or a basic need for female empowerment in the society. The main agenda here is to recognize the value of different treatment in promoting equality. Other sectors where this concept has gain popularity include the field of politics. In politics, the issue of equality has prompted the special treatment of female politicians seeking political positions. Therefore, there is a consideration of outcome. If the expectations of particular actions are to create equality positive discrimination becomes inevitable.

Organization of Women Legal Education and Action Fund (LEAF), adoption of its statute and definition of the major objectives was a huge step on the way to equality. Activity of LEAF, its influence on realization of equality concept in legal decision-making marked an important shift from equality formal to equality substantive. Such equality had to be understood by the majority of women following their interests and protecting rights, it had to be beneficial to their needs and expectations.

LEAF has over the years ensured that they carry out high impact litigation processes in the search for women equity. Their role has been and still remains to ensure that law courts are predisposed to interpreting equality on a gender based perspective. This approach has been applied even in cases which have not centered on women. The effectiveness in litigation is evident how the judicial system has adopted a majority of the concepts and propositions made by LEAF in its numerous court cases. In the Andrew v. Law Society of British Columbia (1989), LEAF showcased a sound reevaluation of the equality provision of the Charter. The outcome depicted an affirmation of the Charters provisions as functioning to benefit the historically disadvantaged. In turn, this ruling dissuaded the instigation of reverse discrimination arguments from those who may have benefited from previous legislation developed by the high class (Jhappan, 2002). LEAF has had great success and participated in many cases where all forms of gender biases and issues have been portrayed. Legal expertise is provided in scrutinizing and depicting those relationships which exist between the fundamental causation factors of women inequality and the laws which foster and normalize inequality. It continues to represent women despite the upcoming challenges.

LEAF as well as many other organizations protecting rights and interests of women made a large contribution to legislature regarding gender relations, equality issues, and many other important things. Substantive equality different from the equality formal completely reflects the purpose and the objectives of section 15 of the Charter. The given section is believed to grant the necessary conditions, opportunities, and laws for women to enjoy different kinds of social benefits historically formed for and enjoyed by men.

Particularity has played a substantial role in enhancing the positive outcomes of most of the cases handled by LEAF. Having moved from an essentialism approach whose effectiveness was challenged and this led to the failure of promoting women equality. Particularity calls for the representation of the experiences and concerns of diverse women. Target is directed at an expansive outreach program which involves the inclusiveness of all kinds of women be it colored, immigrants, lesbians or even those with disabilities. Also, most efforts are employed in addressing those areas where women face great vulnerability for discrimination. This orients cases of racial discrimination, sexual identities and disabilities among others. This perspective has better prospects of achieving women equity because of its diversity. The ideal that the law remains the sole protector and regulator of equality is cemented in the constitution (Introduction to equality and the Charter, 1996). LEAF has utilized law courts in their adamant search for equality.

The debate on women equality inevitably attracts the issue of sex differences, discrimination and differential treatment. Sex difference is established by nature but defined by legal principles. It however, differs from sex discrimination and does not necessarily imply different treatment. In essence not all social groups can be treated the same. Following this, balance has been established in the differential treatment of the various societal groups. Sex differentiation refers to the treatment of people as of equal stature but then acknowledging their sex difference. This notion is not in itself illegal but this is conditioned by the absence of disadvantageous outcomes. Even though a balance is sought to create a distinction and draw a line between harmless differentiation and discrimination, sex differentiation is dependent on gender expectations. The stereotypes which dominate the society harbor negative perspectives on womens capabilities. Considered as the weaker sex, women suffer discrimination which is often propagated in the context of sexual differentiation. As a result, inequality is further perpetuated within most societal mainstreams.

Sex differentiation can be demonstrated in case scenarios which regard the femininity and masculinity of individuals. Sports teams have been formed with these characteristics in mind and under the circumstances sex differentiation is authenticated. As such curriculums for physical education entail boys to be in one group and girls in another. Issues of women inequality have been observed in this field especially when this form of grouping indicates that there exist discriminatory tendencies. Legalities concerning sex differentiated pairings allow this on the grounds that both groups accrue similar benefits. However, it becomes problematic to establish this.

Equality without discrimination on the basis of sex is an inseparable element of democratic society which supports the rights and freedoms of its members. Discrimination and differential treatment based on sex or gender differences cannot exist in the modern world with its new approaches to social relations, family life, and the other important affairs.

Women rights have generated a controversial debate over the legalization of abortion in nations where it is not. Sex differences have warranted the primary role of sexual reproduction to women. However, laws have not gone ahead and created similar conditions for them. It becomes difficult to alienate this perspective from gender discrimination. Thomson (1996) asserts that women possess as much the same rights as their unborn child. In retrospect, the claim is to create waivers in cases where womens lives are jeopardized by the pregnancy. Then women would have gotten fair treatment. In instances where third parties are involved womens rights seem to be disregarded. The law also ignores arguments which claim that women are entitled to deciding what affects their bodies. On the other hand, supporters of sexual equality in respect to reproductive rights have used a laid back approach. By endorsing voluntary motherhood they distance themselves from supporting abortion (Siegel, 2007). However, this endorsement has solely given women in such countries the right to choose whether to reproduce or not.

In todays society sexual equality is said to be inhibited by the restrictive laws on abortion and the use of contraception use. These laws are seen as suspect because they tend to presume that womens necessity for birth control as a complex issue which warrants esteem in social justice.  For the realization of sexual equality these restrictive laws have to be eliminated. This must be done in consideration of all involved parties and without employing any double standards. Furthermore, this will be possible if laws acknowledge women as the focal element of these laws. This means that their rights and opinions must be considered prior to others.
In theory, laws are what guarantees equality rights. However, in most cases these legal principles are not reflective of the reality of discrimination experienced by women. With the direct utilization of such laws there may be a conception of equal rights but ones which have certain limitations. However, the direct application of such legal resources in defending womens rights creates bases where other women experiencing discrimination may draw interpretation from. The success of various legal claims involving elements of women inequality also leads to the reevaluation of legislation. Proponents of womens rights have often drawn from these cases to challenge other laws. These dynamics of equal rights are seen as reactionary. There must be an element of provocation which then leads to action. From this perspective it is clearly evident that formal equality may lose stability due to its rigidity. Instead, substantive equality can create a firm foundation for the advocacy of womens rights.

In general, equality is conceived by a democratic comprehension of social justice. The moral elements of equality are focused on the ability to ensure equal outcomes for all and especially for the disadvantaged. This approach does not necessarily allow for diversity. It is therefore crucial to have legal systems which cater for diverse groups of people. LEAF and other international organizations have worked towards such an outcome by offering legal representation to diverse groups of women.

Human rights are inclusive of all individuals regardless of gender. Perhaps womens equality can be achieved wholesomely through the application of a human rights perspective. This combined approach will be better at eliminating substantive disadvantages which women are exposed to. More so, applying the concepts of dignity may create a permanent solution to the legal defects inhibiting equality. The effectiveness of such a framework could be attributed to the fact that human rights legislations impose various responsibilities on all individuals. For one the laws have identified forms of discrimination. Furthermore they ensure the protection of individuals who seek to establish equality for the disadvantaged. Their ability to impose personal responsibilities on individuals makes the advocacy for women equality plausible.

Currently, women equality has been achieved to some extent. Legislation has been critically tailored to cater for the disadvantaged women. Employment and workplace laws ensure that womens rights are addressed and equal treatment applied to all employees regardless of their gender. The right to reproduction for women still draws much attention especially in workplaces. Legal measures can be taken if discrimination is detected in employment procedures. Furthermore women have become more vigilant in fighting for equal treatment and with the many existing legal firms women can manage to get the best representation. Future research and implementation of legal guidelines on women equity should be considered.

From the above discussion it is evident that equality is indeed a complex concept. The complexity arises when formal equality clashes with substantive equality. Every democracy aims at assuring the equality of its people but with this underlying factor cases of inequality have been inevitable. Section 15 of Canadian Charter of Rights and Freedoms does lay a firm foundation for equality but its characteristic reliance on formal equality may be precedent to creating inequality.

On one hand, formal equality which was used in the past to establish justice fails to recognize the presence of inequalities within the society. In doing so, these inequalities are bound to escalate if no measures are taken to prevent this. The debate on equality has mainly aimed at establishing whether the legal provisions on equality are meant to achieve either substantive or formal equality. However, current trends show a substantial separation from such theories. Substantive equality basically complements formal equality by eliminating those inequalities which are present in the society and are not directly provided for by the Charter.
It has been established that substantive equality has been possible through the use of organizations which are dedicated to fighting for womens rights. However, these organizations do not draw their arguments from foreign laws but from the same constitutional provisions. LEAF has been instrumental in promoting women rights and their focus on helping women of vast diversities have contributed to their popularity. It is important to reflect on the role LEAF has played in creating a balance between formal and substantive equality.

Most of the cases in which LEAF has managed to establish discrimination claims and achieved fairness have challenged the existing laws. This has made LEAF a crucial enabler of the dynamism of equality. Their tenacity in seeking to alter laws and legal concepts has in most instances led to the permanent change of these laws. As a result, this provides a permanent solution to all women who may be facing similar discriminations. Using the same arguments they can seek equality through the legal systems. The search for substantive equality can be very challenging and while some women may be courageous enough to venture into finding it others often shy away. It is for such women and especially those minority groups which have faced continuous discrimination that LEAF sets out to help. Indirectly LEAF has empowered women to challenge laws which are discriminatory.

The integration of formal and substantive equality in the legal system will indeed increase efficiency and promote overall equality for all. This paper call for law courts to stop over relying of formal equality as it creates a dysfunctional legal system. Instead, reality should be a core component of legal systems and this can be achieved by the use substantive equity. Not only does this ensure the dynamism of the law and women equality but it also consolidates the legal systems.

A holistic system which ensures the protection of the minority rights must be founded on various principles and mechanisms. In addition, they should be elements which enable an effective incorporation of all groups while at the same time allowing them to keep their individual characteristics. These principles include the forbidding of discrimination and the implementation of measures aimed at protecting and promoting the individuals identity. The rules which govern the prohibition of discrimination are meant to guarantee individuals of formal equality. Moreover, they should be conducive for the achievement of substantive equality. Thus, the rules become quite vital in the process of accomplishing the objective of separate identity realization for the minority. Basically this objective can only be facilitated by the acquisition of substantive equality and this creates a dependent relationship between these principles.

In order to achieve complete equality for women it becomes crucial to make substantive equality a basic constitutional principle.  Not only would this work in heightening womens rights but it would also create a harmonious coexistence between the charter and the general constitution. Institutional actors would be prompted to evaluate the impacts of differential treatment on both minority groups and the rest of the population. Substantive equality holds great significance as it encompasses considerations of any ensuing differences. More so, it recognizes that there may be a necessity for differential treatment in the search for equality.

In essence, the achievement of complete justice through equality will depend on the assurance of two entities. For one, the law must be prepared to ensure that all individuals belonging to different minority groups are regarded with the same respect for perfect equality as other citizens. On the other hand, the law should ensure that it has fundamental elements which protect minority groups and indeed preserve their separate identities. These characteristics are interlocked with each other in the fact that the realization of true equality would be dependent on accommodating views and arguments from both the minority and majority. Disadvantaged women in the society should not be mandated to renounce their differences in the name of complying with formal equality. Ultimately, the solution will emanate from a clear and wholesome approach which serves both formal and substantive equality.

How do firefighters and emergency medical personnel determine if a person who appears to be impaired from alcohol or drugs has the legal capacity to consent or decline medical assistance What precautions are warranted in borderline cases

In any situation where life is threatened it is of utmost importance to deliver ambulatory service or fist aid care to the person due to the primary reason that saving life, the pragmatic philosophy of any emergency personnel, outweighs any issue on or regarding competency. But legally speaking and if time and situation permits the basic rule is to ask for consent. Given the situation where a person might be drug-impaired or alcohol-impaired hindering the capacity to assess their self, the recognition of implied consent is immediately imposed under the clause  if and only if  there is life or a limb in need of protection. It is also advisable to ask questions that can assess how impaired a person judgment is. Questions like,  Do you know where you are ,  Can you tell me what happened , or  Do you know what time is it . If given answers are vague or ambiguous another method that can help in assessing the capacity of the person is by using breathalyzer. It is to determine the amount of alcohol content in their breath, if results show that they have more than the standard amount alcohol content emergency personnel can record the incident along with signatures of witnesses regarding the situation and proceed with primary care but with the intention of only saving life or limb (Varone, 2007).

It is also advisable at all times to introduce yourselves to the person as well as your intention to them. Also make sure that every step that you are taking or about to take are spoken off and properly explained so as not to aggravate the situation and the person involved. It is of utmost important to document necessary steps and procedures taken and thereafter filling it as an incident report.

Being an editor of a student publication exposed me to various social issues the unfair distribution of public facility institutions (based on how much money the region contributes to the GDP)  the lack of appreciation for the jobs typically handled by women the restriction in the publics access to employment, goods and services and so on. While a lot can be said about these issues, I realized that the underlying principle is that, the society, including our national leaders,  has not yet been able to fully commit to the  essential principles of equity, democracy and respect for all persons and their points of view. This realization created an unrest within me I can not just sit and watch social injustice to go by, I must do something.

This is the main reason for my seeking admission into a law school. Knowledge on the U.S Legal System will equipped me with the necessary tools to help address the roots of these social issues.  This conviction came during a study tour in Jones Day, Washington, DC, where we learned that technicalities on how to go about a cause that you are fighting for are just as important the compassion that you put into it.

I look forward to law school as an opportunity to marry idealism and  reality. It is for me the bridge in which the gap between social justice and social movements can be linked.  As an experienced student leader, I belive that I have much to contribute to a program in law. My dedication into achieving social justice, my compassion for others coupled with my natural ability to reason and to think critically will surely make me one of the best lawyers in town. Reason and Passion merged is surely the most potent tool one can have.

I am almost finished with my business degree. And I am anxious to embark on the next stage of my careerthat is in a Law School.

In this day and age, there is no absolute definition of a terrorist.  In some cases, they are known as  guerrillas.  
Such individuals have ranged from political activists to those who have taken arms and called themselves revolutionaries, freedom fighters and to those who have gone too far, thugs and (of course), terrorists.

Nowadays, the lines that differentiate a guerilla (freedom fighter) and terrorist have become blurred.  Guerrillas are essentially resistance fighters.  They believe they are fighting for a (good) cause and for them, it is necessary to resist or overthrow the regime they regard as evil and opppressive.  They are guided either by religion or idelogy that provides a basis for their ideals and cause.   Their approach is two-tiered.  One one hand is their political arm which is made up of activists and agitators.  They are the overt face or front of the movement.  They  attack  through political agitation such as strikes, rallies and demonstrations as a way to discredit or destabilize the government.  Its other face is the armed movement which carries out guerrilla warfare or rebellion.  They strike at vital centers of the government from military installations to government institutions wherever they may be found.  However, in the process, there would be  collateral damage  which would result in the deaths of innocent civilians who are supposedly not the intended targets of these groups.  This is what makes guerrillas (or whatever name is given to them) different from terrorists.

Terrorists, as the name suggests aims to strike terror or fear.  They share the same roles as guerillas but the difference is they take it a step further by inflicting as much damage as they can even if it means harming civilians.  The purpose of this is to expose the weakness of the state or its inabiltiy to protect its citizens despite the measures they have implemented.  Whats more, in the day and age, terrorists have enalarged their territory.  They are no longer limited to their locale and have gone transnational where terrorist groups have established linkages with other groups who share a common cause with them or serve as their overseas extensions.  The favorite target such organizations are powerful nations like the United States (US) whom they regard as evil and oppressive and they feel justified attacking them even if it means targetting civilians.  This was evident on the terrorist attacks on September 11, 2001.  These attacks would not be the last as subsequent attacks have followed and have taken place in places other than the US, most notably in the United Kingdom (UK), an ally of the US that dates back to the Second World War. Like the US, the UK has also had its share of terrorism on its own soil, mainly from the more radical elements of the Irish Republican Army (IRA) and recently, Al-Qaeda as well, the most recent terrorist attack on British soil was the one that  took place on 7 July 2005. which killed over 50 people.  By far this was the worst terrorist attack Britain ever experienced since the bombing in Brighton by the IRA in the 1980s.  In the light of these attacks, it can be seen that the terrorists appraoch or methods in carrying out his mission has evolved through the years.  From assassination of key individuals and hostage-taking, they have  graduated  into suicide attacks, willingly sacrificing their lives to inflict more casualties and damage in the name of his faith.
According to those who have studied the nature of terrorists, the ones motivated by religion are far more dangerous than those motivated by ideology such as the IRA and the left-wing  national liberation  movements of Italys Red Brigade, the German Red Army Faction and Perus Shining Path to name a few.  For them, innocent lives mean nothing and for them, their belief is far more important and they would not care if collateral damage is caused by their attacks so as long as their goals are achieved.

Upon identifying perpatrators of the attacks, the next thing any government would do is to implement measures in addressing this threat from identifying the perpetrators to dealing with them accordingly.  The full resources of the state are at their disposal.  However, in this new war on terror, no matter where it is waged, one question remains to be answered who is the terrorist  Even though definitions have been given, the line that separates terrorists from freedom fighters and even common criminals are not clearly defined if seen  from a legal perspective.  In other words, there is still no definite definition of terrorism and how does one classify a terrorist.

In his work, Inside Terrorism, Bruce Hoffman attempts to define terrorism in the first chapter of his book.  According to him, the  mainstream  definitions of terrorism are unsatisfying in the sense that they are too pedestrian to accurately define terrorism.  Even though one appears to be acceptable (terrorism aims to induce terror), it still fall short because it is still broad in scope to accurately capture the definition of a terrorist.  For Hoffman, the more acceptable definition comes from OED which means anyone (terrorist) who intends to further his views through coercive intimidation.  He further adds that terrorism is inherently political in nature which entails the acquisition and use of (coercive) power to impose its will on others.  Through his work, let alone this chapter, Hoffman is aware of the contextual, if not cultural differences which makes the classification of terrorism very murky.

In another book written by Eqbal Ahmad and David Barsamian, Terrorism Theirs and Ours, they give us a history of how terrorism evolved on how certain groups were labeled terrorists on one hand, and freedom fighters on another.  Two such examples given are the Haganah, the Jewish underground movement, led by men like Menachem Begin and the Palestinian Liberation Organization of the late Yasser Arafat.  They were hailed as heroes by their ilk and those who sympathize to their cause yet reviled by those whom they attack.  Like Hoffman, Ahmad and Barsamian sees there is no absolute definition or classification of a terrorist.  From the title of the book alone, it serves to underscore the clash of cultures and societies in labeling one a terrorist (or freedom fighter), depending on who one is listening to.  They even cite a statement made by the former Secretary of State George Shultz who said there is no absolute defintion of a terrorist.  Going back to the title of the book, it is a matter of context which would still be debated.

In an article written in the American Sociological Review titled Conceptualization of Terrorism, Jack Gibbs attempted to explain in detail the nature of terrorism.  He begins by asking these questions
Is terrorism necessarily illegal (a crime)
Is terrorism necessarily undertaken to to realize some particular type of goal
How does terrorism necessarily differ from conventional military operations, be it a civil war or a full-blown conflict or even guerrilla warfare
Is it necessarily the case that the opponents of the state engage in terrorism
Is terrorism necessarily a unique strategy in the employment of violence

Gibbs then attempts to answer each one of the questions.  For some, terrorism is regarded as a crime since it entails breaking laws ranging from destruction of property to murder.  Terrorism has a goal to attain and they believe that violence or destruction is the way to get the attention they crave and it would be considered successful if the desired effect, no matter how big or small the magnitude, is achieved.  From the purview of military operations, terrorism has evolved.  It used to be a tactic in guerrilla warfare and can sometimes be performed by military forces but in essence, the war on terrorism is classified as a low-intensity conflict as its participants do not engage in  traditional  warfare strategy and tactics and requires different strategies and tactics in dealing with it.  With regards to the fouth question, terrorism or violence is the ultimate measure the opponents of the state will employ if all other means fail.  This is usually carried out by the most determibned  terrorist  groups who strongly adhere to their ideology or faith which they regard as more important than anything else.  In answering the fifth question, terrorism is a unique strategy as it seeks to undermine the morale of society   to make them lose faith in their government to show they cannot be protected and that their government is weak and powerless to stop them.  Essentially, terrorist attacks are meant to make a psychological impact.  It is not only armed warfare but psychological warfare at the same time and violence is the vehicle to achieve that effect.

Another attempt to define terrorism can be found in an article written by David Rodin in Ethics titled Terrorism Without Intention.  Rodin admits that there is absolutely no definite way to define terrorism especially since the term has been overused and somewhat  distorted  by various sectors.  He has given us various categorical definitions of terrorism based on a particular context.  One is from a tactical or operational context in terms of the weapons and tactics employed by the terrorists.  Basically, what this means is anyone who uses weapons that tends to inflict maximum damage especially on non-military targets, regardless of the delivery method would be considered a terrorist.  But Rodin considers it too narrow.  The other is from a teleological context in regards to the aims and goals of terrorists which is political in nature.  Terrorist attacks, regardless of the size or magnitude, intend to deliver a strong political message to both government and society as it intendsto further a cause terrorists subscribe to whethr it is religion or ideology.  Another context is centered on the agent or perpetrator.  According to Rodin, it eliminates the state from the equation and focuses it on non-state entities.  Gone were the days of state-sponsored terrorism of the 1970s and the 1980s.  Transnational terrorism is not sponsored by any state although Afghanistan during the reign of the Taliban gave refuge to Osama bin Laden.  Todays terrorist groups are essentially non-state entities living in the shadows worldwide in cells ready to respond to the call when needed as was the case of the suicidal hijackers on September 11, 2001 and more recently  Umar Farouk Abdulmutallab, the Nigerian follower of Al-Qaeda who attempted to blow up an American airliner on Christmas Day 2009.  They do not represent a country but if one would ask them, they represent their faith which gives them the impetus to carry out such attacks.  Corollary to this would be the context based on objectives or goals.  Every terrorist has a goal to achieve and so as long as the desired effect is achieved, to sow terror, it is considered successful.

Rodin would then synthesize these four contextual definitions to arrive at his definition of terrorism as a  deliberate, negligent or reckless use of force against noncombatants, by state or nonstate actors for ideological ends and in the absence of a substantially just legal process.   Rodin further goes on to discuss in detail the characteristics of terrorism such as the use of force which would range from bombing to hostage taking and even murder which includes assassinations of high-profile individuals or large-scale massacres.  Terrorists are guided by ideology or belief that gives them the impetus or motivation to carry out and even justify their attacks.  Looking at it through the prism of their beliefs, they regard themselves as freedom fighters or patriots out to fight a cruel entity or institution that makes them believe what they do is right when others see it as wrong.  Furthermore, it is this belief that distinguishes a terrorist from a common criminal which is the reasons why advocates of stronger measures against terrorism argue that such terrorists should not be tried in civilian courts, not only because of the ideological element but the terrorists themselves regard themselves as soldiers despite waging unconventional warfare .  With regards to noncombatants, they are civilians.  Terrorists favor attacking civilians not only because they are easy to attack but they form the bulk of the citizenry in a state or society and any successful attack would undermine their faith in their government whose responsibility is to maintain peace and order and to ensure their security.  In the absence if legal process, it follows that terrorists do not follow the law and often acts with impunity in defying the laws of a state.  In unconventional warfare, this is the advantage they have over the security forces as they are bound by laws and their disregard for laws allows them to get away with their acts knowing that security forces can only go so far in dealing with them.  And yet in their mind, their acts are a manifestation of their pursuit of justice but it is a justice defined by their beliefs which further emboldens them in committing such acts that others would find abhorrent such as massacring innocent civilians.

Rodins article is complimented by an article by Saul Smilansky also published in Ethics titled,  Terrorism, Justification and Illusion. He defines terrorism as an act that intentionally targets civilians with lethal or intense violence for political purposes.  Although his initial definition is similar to that of Rodin, Smilansky breaks away from the similarity when one arrives at the second part of his article which questions the justification of terrorist acts.  Here he differentiates terrorist acts which are justified (legally and morally to a certain extent) to the ones not justified which is mostly the case.  He cites several examples ranging from the  Troubles  between the British and IRA and Al-Qaaeda against the West.  These are some of the examples of unjustified acts of terrorism.  In the case of the former, Smilansky explains why their efforts are hopeless such as if the IRA are Catholic, they could just live in the Republic of Ireland rather than force the issue in Northern Ireland which is part of the United Kingdom.  Another point is there is hardly any repression commited by British forces against them.  It is also a known fact that the Irish are at odds with the British as the former is Catholic and the latter mostly Protestant or Anglican.  From the looks of things, the Catholics in Northern Ireland are the ones agitating when it is not even necessary given the circumstances on hand that makes for opportunity for them.

With regards to Al-Qaeda, Smilansky explains that this group became emboldened following its success in helping drive out the Soviets from Afghanistan but has become deeply  religious  to the point it has become very radical and intolerant of anything they percieve goes against the teachings of the Quran as they see it.  This is what made them resent and oppose the west as much as they despised the godless communists.  What makes them dangerous is they advocate contnuing struggle to impose fundemantalist Muslim rule even if it means using violence to achieve their ends.  Because of this, there is no moral justification whatsoever of the actions have been taken by Al-Qaeda even in the eyes of Muslim countries whom they try to win over to their side.  Although Smilansky explains instances where terrorism can be justified, the two groups he mentioned would not qualify in his given criterion even though they keep insisting their actions are justifiable in accordance to their beliefs.  Needless to say, neither the IRA nor Al-Qaeda can make the claim that they are patriots or freedom fighters as they lack the moral legitimacy to justify their actions which is why they fail to win over a lot of adherents and tend get only those who are easy to manipulate the poor and ignorant masses, especially Al-Qaeda.

In his article, Defense Against Terrorism, Brian Jenkins emphasized that the war on terror is unlike any wars fought by any nation, even the great powers such as the US.  According to the article, the early terrorist attacks in thw 70s was considered (by the terrorists themselves) to be the start of the third world war, it was a war nobody expected since it was the height of the Cold War and everybody dreaded more the specter of a nuclear war than a terrorist war.  Americans, as well as their allies have been under constant attack and the challenge thrown was how does one take on terrorists.  In his article, Jenkins, explains how a conventional war would be impractical and inappropriate.  One reason is that the adversaries, especially at present, are non-state actors.  They are not necessarily harbored or coddled by the governments of the countries where they are based and are in fact not welcome there as well and are harbored by local insurgent groups whom they share a common cause such as Osama bin Laden being accomodated by the Taliban in the mountains bordering Afghanistan and Pakistan.  Furthermore, terrorist groups are getting more clever as time passes making use of the latest technology at the time, making them all the more dangerous than before.  He also explains the complexity of defining a terrorist since not all countries share the same problem or issue such as the US and its allies such as the United Kingdom and Israel which are also on the receiving end of terrorist threats and attacks.  The clash of criteria in defining terrorists led to the clich or aphorism of one mans terrorist is another mans freedom fighter, making it very difficult if not impossible to arrive at an absolute definition of a terrorist and who should be considered a terrorist, especially at present as transnational terrorism has become the  rage  of those extremist groups who wanted to strike a blow at the great powers.

There is also the ambiguity on how to treat terrorists whether as combatants  at war  or criminals.  The debate goes on in this issue on how terrorists captured or arrested should be treated.  Because terrorist acts also violate local laws which make concerned groups demand they be classified as criminals.  The danger of this is that if people like Umar Farouk Abdulmutallab are to be classified as criminals, they are entitled to the same due process as common criminals which would make it difficult for intelligence and security services to get information from him which would be vital in the ongoing war on terror.

In his article,  Poverty, Political Freedom and the Roots of Terrorism published in the American Economic Review, Alberto Abadie explains through statistical data the causes of terrorism which can be summed up by poverty and political marginalization.  His study forms the core of this article.  According to Abadie, terrorism emerges whenever governments are weak and unstable.  It is during this time the lack of a strong central government invites conflict betweeen diverse groups who vie for power, both eco and the weaker ones would be marginalized and seeing nowhere else to go or no other measures to be taken, they employ violence as the only  feasible  way to further their cause.  For them, the use of force seems to be an  equalizer  giving them the leverage they need to make themselves feel superior.  Indigenous groups like the Japanese Red Army, the German Red Army Faction and even the Colombian FARC fall under this category.  They feel that what they are doing is right as they use force to defend themselves and the  defenseless  against the oppression and  persecution  of the state.  The likes of Al-Qaeda and its affiliates take it to a much higher level as they are not limited to national boundaries and have gone transnational, taking the fight to the bigger powers like the United States whom they saw as persecuting them and keeping them inferior and worse, corrupting their culture.

In his book, Terrorism and US Foreign Policy, Paul Pillar, a former milirary and intelligence officer of the Central Intelligence Agency gives insights on the nature of terrorism   its origins, motives and goals.  One salient feature of his work is how should governments deal with terrorism.  He said that it is best to undermine the base of terrorism by addressing the social and economic problems of the masses.  These poor and less educated folk are susceptible to the teachings of radicals which make them easy candidates for terrorism.  By addressing their social and economic needs, nobody would think of becoming terrorists.  The only challenge now is how to deal with terrorist groups whose goal is to see to the destruction of the United States and its allies which they see as evil entitites that must be wiped off the face of the earth.  It is in this regard that he sees military action is the only viable solution although he gives a caveat that it is not the absolute solution to dealing with terrorists.  If there is one significant thing military action can do is to  send a message  to terrorists to prove that they are not beaten nor would they allow themselves to be cowed.  It also sends a strong message to its citizens to have faith in their government, that it will be there to protect them and keep them safe.

The book, Keeping Us Safe Secret Intelligence and Homeland Security was written by Arthur Hulnick a former intelligence officer who served in the United States Air Force and the Central Intelligence Agency with considerable years of experience prior to becoming a university professor at Boston University.  In his book, Hulnick gives us his view on how the United States should protect itself from terrorism from an  insider s  perspective that is completely devoid of any political undertones.  The way he describes the nature of homeland security is something fans of Tom Clancy s novels would be easily familiar with and appreciate.
Hulnick explains the existing system in practice and at the same time identifies its weaknesses, especially in counterintelligence.  He admits that this is where the United States is wanting if it ever thinks of defeating terrorists.  One is to recruit agents from the ranks of the enemy, in this case Al-Qaeda which has proven to be a challenge since it is virtually impossible to infiltrate the organization, especially its core leadership which explains why Osama bin Laden and even Mullah Omar remain at large to this day.

As countries that have been targets of terrorist attacks, the governments of the United States and the United Kingdom crafted laws that aims to address the threat of terrorism.  In the United States, a month after the terrorist attacks on 11 September 2001, the 107th Congress of the United States passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, or simply the Patriot Act which was signed into law by President George W. Bush on 26 October 2001. This gives the United States government expanded powers in performing its duty in protecting the nation against terrorist attacks such as going over erstwhile confidetial records such as banking and financial records, tap into telephone and other electronic communications and even detaining and deporting foreign individuals suspected of terrorist affiliations.  Theoretically, these measures are intended to be preventive or proactive, going after terrorists before they could even commit their acts.  The argument of the government is that saving (American) lives is the primary goal of the government in this ongoing war on terror and the rationale behind it is prevention is much better than a response following a terrorist attack.  The law itself has come under fire from liberal, especially left-wing groups who regard it as unconstitutional as it violates the civil liberties of individuals and they feel these civil liberties also apply to non-American citizens who are living on American soil much to the consternation of the officials in the security and intelligence agencies who lament these actions taken by  sympathizers  and  defeatists  whose interference is making them lose the war on terror with their insistence that suspected and arrested terror suspects be given due process like common criminals.

As a measure for combatting terrorism in the United Kingdom, the British Government, through Parliament passed the Crime and Security Act  2001.   The law is akin to the American Patriot Act in the sense that it also intends to protect its citizens from further terrorist attacks following the events in the United States and it received royal assent on 14 December 2001.  Some of the salient features or provisions of the Act include the seizure of suspected terrorist asset and property, disclosure of certain information such as financial records for security purposes, to detain and deport any foreign national with suspected ties to terrorist groups.  In addition, it forbids the creation and dealing of weapons of mass destruction whether it is nuclear, chemical or biological, the detention of aircraft where an act of violence is suspected to have happened, it allows the police to forcefully fingerprint individuals to determine their identity and to regulate telephone companies and internet providers to preserve any data for national security (investigation) purposes.  However, like the Patriot Act, it has been subject to intense criticism by the Law Lords as being incompatible with the European Convention on Human Rights as several of its provisions threaten to violate the rights of the individual.  Because of this, this Act was replaced by The Prevention of Terrorism Act 2005 which received royal assent on 11 March of that same year.  Under this law, the Home Secretary can impose  control orders  on those suspected of being terrorists or affiliated with terrorist organizations in any way or form.  Such control orders would entail the prohibition of the possession of certain materials that might be used in the performance of terrorist activities even those innocous such as a mobile phone, restriction in the use of certain utilities such as internet access which may be perceived as getting or sending instructions among terrorists, restrictions on movements and even trying to get consent or permission to travel, to surrender ones passport and to report to a person of authority at all times to name a few of these control orders the Home Secretary or the courts can impose on an individual suspected of being a terrorist.  Like the earlier law it replaced, this law came under fire from human rights groups, notably Amnesty International among others that regard these measures as  cruel  and oppressive as well as still incompatible of the human rights laws both in Great Britain and the European Community.  In addition to the opposition of these control orders, Amnesty Internatonal deplores the illegal detention of suspected terrrorists without trial and even the use of torture.

By way of conclusion, both the US and the UK have been victims of terrorist attacks and it is incumbent upon its leaders in government to take measures not only in protecting its citizens from terrorist attacks but also to deal with terrorist threats accordingly, even if it means operating outside their borders to do so.  Both countries face terrorist attacks being the object of resentment of people who claim to be  victimized  or  oppressed  by these two nations hence the use of terrorism  where they aim to bring them down and see to their destruction for nothing would satisfy them more than to see them wiped off the face of the earth, especially by Al-Qaeda, the latest enemy.

Besides fighting the enemy on the battlefields of Afghanistan and other parts of the world, the war on terrorism is also waged on the home front as the enemy they face is a non-state entity who fights unconventionally.  Capable of infiltrating their borders and living there for long stretches, taking time to assimilate themselves into mainstream society waiting for the right moment to strike. One of the difficulties of fighting terrorists on the home front is the laws of the countries.  It just so happens that both the US and the UK are democratic countries and one of the advantages terrorist groups capitalize on is that these governments are not so repressive nor are their laws draconian as they place value on and respect the rights of the individual and is guaranteed by their laws, even those accused of crimes.  The terrorists of the twenty-first century are far from being the ignorant or illiterate drones who are brainwashed into bloodthirsty fanatics.  Todays terrorists are more clever with several of them educated (ironically) in western universities and using this knowledge to their advantage to gain the upper hand.

Another advantage they have is they have on their side as (unwitting) allies liberals and left-wing groups of these countries who have a penchant for opppsing the policies of the government on a regular basis.  Such as the case when there was opposition to the Patriot Act (US) and the  Crime and Security Act  2001 (and later the  The Prevention of Terrorism Act 2005).  Their  allies  would invoke the violation of human rights and civil liberties which proved to be a detriment to the efforts of the government to combat terrorism in their borders.  For these liberals, even though they do not regard these terrorists as  freedom fighters,  to them, the terrorist acts they committed is nothing more like criminal acts which is why any terrorist arrested should be given the same due process accorded to criminals.  Such measures are hamstringing the governments in Washington and London in addressing terrorism which makes Al-Qaeda boast that this is how the west will lose the war on terror even though their enemies are numerically and technologically superior to them.  Furthermore, it puts the society in a dilemma whether to regard terrorist activities as an act of war or a common crime.

However, if there is one thing that needs to convince the public that a state of war exists with terrorist groups, one needs to go back to the time when Osama bin Laden issued his declaration of jihad against the West.  In his declaration, anyone is fair game, military or civilian.  It in light of this declaration that the governments of both the US and UK believe that the civilian justice system or the currently laws in place are inadequate in addressing the problem of terrorism thus the need for special powers and institutions which they feel are necessary to combat the threat of terrorism even on their native soil.  In an article written in the American Journal of International Law, Ruth Wedgwood explains that civilian courts are not the appropriate places to try terrorists and fully supports military commissions.  There is an apparent incompatability of the criminal justice system to the counter terrorism and counterntelligence efforts of the government such as the presentation of evidence which also serves as vital intelligence material needed by security and military forces in the continuing fight.  To use this as material evidence in a civilian court would compromise operational security and jeopardize ongoing operations.

Besides this, both governments are in a dilemma on how to deal with terrorism as they fear that any attempt to introduce harsher measures might create more terrorists than lessening them.  Whats more, there is a delicate balance in prosecuting an ongoing war while trying to maintain some semblance of normalcy in the home front.  If one were to look at life in both the United States and Britain, they do not appear to be nations at war and everything looks like it is peacetime as opposed to the conditions both countries faced in the Second World War where the citizens also took part in the war effort and were also mobilized.

It is the opinion of the author that terrorists should be dealt with diffrently from common criminals.  Basing it on the related literature given above, terrorists like Al-Qaeda have long declared themselves to be soldiers or warriors and bin Laden had already made a declaration of war against the west.  The problem with the west is that they tend to look at things from their perspective, waiting for a formal declaration of war and insisting on classifying terrorists as criminals, especially the ones arrested on American or British soil.

One of the duties of the state is to protect its citizens and in order for it to do so, they should not be hamstrug by too many laws.  While it is true that the rule of law is a characteristic feature in any democracy, there are times when not all the laws are applicable especially in timesof war or extraordinary conditions.  The problem with left-wing groups is they regard the rule of law to be absolute in both war and peace.  Such a thinking is dangerous and to do so would give an undue advantage to the enemy who is very clever and knows this inherent  flaw  in democractic societies and will use it to their advantage.  The government must be allowed to suspend these laws to protect its citizens.  It is once said that laws are not  suicide pacts  entered by the government and its citizens.  Laws are meant to regulate the conduct of (democratic) society to ensure that the rights of an individual will not interfere with the rights of another individual.  The challenge faced by governments now which is made very difficult by pressure groups is to maintain order, fight terrorism but at the same time adhere to the rule of law.

It is the opinion of this author that this is very unrealistic.  Security and freedom are trade offs.  If one wants to ensure that they can live in peace and have that feeling no harm will befall them or their loved ones, certain sacrifices in personal freedoms have to be made for allowing too much freedom is also very dangerous to a state and there has to be a need for stronger regulation, most especially under wartime conditions.  The war on terror should be considered a wartime condition much like the one during the Second World War and the public must be aware of that.  People should not be under the illusion that there is no war even though their soldiers are fighting elsewhere.  There should be a revival of that same mobilization the home front had shown in the last war if it is to win the war on terrorism for as long as the civilian population are living under this illusion that everything is normal, the enemy is confident tin winning the war.

In the conduct of the employment of an individual, the compliance to laws both for the employed and the employee govern the relationship between the two entities. Much of the laws implement certain guidelines that the employer and the employee as they relate to tenure and security of the employment of the employee. In instances where the employee is relieved or is terminated from the company, what remedies does the

Case for unfair dismissal
In the aforementioned case Protectacoat Firthglow Ltd vs. Szilagyi IRLR 2009 365, the issue of fraudulent contracts was taken up by the Employment Appeal Tribunal (EAT) on the 26th of April 2008 that dismissed but not en toto the appeal of appellant Protectacoat Firthglow Ltd (Protectacoat) from the ruling of an employment judge. Protectacoat is engaged in the business of the application of protective shields to the outer walls of homes (British and Irish Legal Information Institute).  The claimant in the issue, Mr. Miklos Szilagyi, had accomplished two separate documents, one is a deed that stated for the creation of a partnership agreement with one Glen Nesbit, Szilagyis assistant, naming the partnership business partnership as MG coatings pursuant to the statutes under the 1890 Partnership Act, the other document being a service agreement with Protectacoat that states that the M  G will undertake services for the company. Following a disagreement between claimant and the company on the provision for a scaffolding or the task can be safely accomplished with the use of ladders, Protectacoat undertook measures to rescind the contract with the claimant.

M  G bought a legal action against the company on grounds of unfair dismissal as stated in the provisions of s 111 of the 1996 Employment Rights Act under the title of employee as laid out in s 230 of the same law. Finding merit in the litigation, the employment magistrate held that the tribunal had sufficient legal basis to hear the claim and the claimant fit into the definitions of an employee under the law (Law Reports) .

The questions posed before the appellate court were the determination on whether the agreements forged by the two parties can be considered fraudulent and whether the professional relationship between Mr. Szilagyi and Protectacoat fit into the tenets of an employee and employer. In applying the test for qualification for fraud, the Court of Appeals took the questions and framed them into the parameters of employment law. The determination of the real relationship in the employee-employer status, whether this is the true relationship of the two parties, are found in the wording of the contract. In essence, terms of employment and the determination of the two are mutuality of obligation, performance of that obligation, and a degree of control of the employer over the employee. In the ruling of the Court of Appeals, the Court decided that the written covenants did not represent the real motives or expectations in the case. In short, the partnership accord was not the real motivation or relationship it was that  of the employer and employee that really governed the relationship between Protectacoat and Szilagyi (Stephen Ravenscroft and Abigail Attwood, 2010) .

In the case of Autoclenz Ltd v Belcher  Ors 2009 All ER (D) 134 (Oct), is worthy to note since the case deals with the ruling of the appellate court that the determination of ones employment status is not influenced by the categorizations in HM Revenue and Customs (Ravenscroft, Attwood, 2010). In the facts of the case, Autoclenz washed cars intended to be out on auction. The company (Autoclenz) provided the equipment for cleaning the vehicles at a flat rate to valeters. The valeters were paid on a per piece basis, gave invoices to the company on a weekly basis for payment, paid their own taxes and signed written agreements that indicated that they were sub contractors who were self-employed (Pearson and Hinchliffe, 2009).

The written agreements between the valeters and British Car Auctions stated that the valeters, one of which became the claimant in the case, Mr. Belcher, were independent contractors, under sub contract with BCA. Under the provisions of the agreement, the contract permitted the valeters to contract others to perform valeting for them, and that there would be no responsibility for the valeters top accept work if the tasks were given to them nor on Autoclenz to offer work if such work was open. In the latter part of 2007, the valeters lodged a legal action with the employment tribunal stating that they were actually workers hired by Autoclenz, and requested that an order be issues to the company to compensate them under the provisions of the National Minimum Wage Act and holiday pay due them under the 1998 Working Time Regulations Act (Jane Elgar, 2009) .

In the ruling of the ET, the judge rules that the true relationship of the two parties were not reflective of the state of the status between the valeters and A Ltd. In addition, the judge discovered that the degree of control of A Ltd over the valeters were found to be sufficient as that of an employer on the employees, this making them full employees and not just independent contractors of the company. In the alternative, the judge ruled that if he was in error with regard to employment status that the valeters were workers since they offered a personal service and did not have the capacity to send someone to substitute for them (Elgar, 2009).

The issue of substitution clauses was dealt with in the case of Archer-Hoblin Contractors Ltd v. MacGettigan 2009 All ER (D) 88 (Aug). In the ruling of the Employee Appeal Tribunal, a clause, unless it is a fraud, that gives a person with an undeniable right to delegate or substitute the services that he offers to another in the context of the contract is an infringement on the rights of a worker within the ambit of the 1998 Working Time Regulations Act.  In the case, the court must perceive the clause in its literal form, that if the clause is free of ambiguity, the definition and effect should be adduced by viewing the rights and responsibilities that are created by it. In the facts of the case, Mr. MacGettigan, a steel worker who  performed work for Archer-Hobgoblin for a period of five months. In MacGettigans contract, it is stated that he as a self employed sub contractor, possessed a substitution clause and was not entitled to any holiday or sick leave benefits (Ravenscroft, Attwood, 2010) .

In his argument before the  court, MacGettigan stated that he was a worker in the context of the Working Time Regulation Act and therefore should be given holiday and sickness benefits. In determining the case of MacGettigan, the court said that was prevalent in practice constituted important evidence whether the intention of the parties were truly reflected in the substitution clause in the contract, meaning whether the provision in the contract can be considered as a sham, but not pertaining to the rights and responsibilities that were created by the contract, which is of primary importance. In practice, substitution clauses are helpful tools to attain self employment status. But it is also very rare for two parties to agree with the intention for the clause to be used.  If such is the intended desire, then the two parties must documents such intentions to negate the possibility that the clause was indeed fraudulent (Ravenscroft, Attwood, 2010) .

The Case of Protectacoat Unfair Dismissal
In the case at hand, the claimant in the case, Miklos Szilagyi, worked for Protectacoat,  argued that he was unfairly dismissed by the company. Arguing against the case of Szilagyi,  the company argued that the claimant was a partner in the company and not an employee as the claimant states. This flaw in the argument of Szilagyi, in the opinion of the company, imperiled his case before the court. The Employment Tribunal (ET) held that the partnership covenant entered into by Szilagyi was a sham and that Szilagyi was in fact an employee of the company (Wright, Johnston and MacKenzie LLP, 2009) .

First let us deal with the issues concerning a case for unfair dismissal. In the case of unfair dismissal, in the context of the 1974 Trade Union And Labour Relations Act, as amended by the 1978 Employment Protection Act and the 1996 Employment Rights Act, employees can contest the act of the employer regarding hisher dismissal from their jobs. There are two elements in a case for unfair dismissal. One, the conduct of the dismissal must be considered equitable, that the tribunal must be satisfied that the actions  of the employer must be conceived as reasonable and fair to the employee in every aspect of the proceedings. The court will adduce this fact according to the merits of the case and in the interest of fairness. Second, under the tenets of the 1974 law, there are various reasons that the employee may be dismissed if the conduct of the dismissal is seen as equitable. They are

Redundancy,
Health issues, an inadequacy in capabilities, or insufficient qualifications for the tasks in which the  employee is undertaking for the company
Misconduct, as this may require a dismissal in one case or be a series of lesser cases taken collectively to warrant dismissal of the employee
Instances where the employee cannot continue performing the task assigned by the company without infringing on the law, and
Other significant reasons that will warrant the dismissal of the employee from their present position in the company (Shaun Tyson, Alfred York, 2000).

Other reasons that an employee can cite to challenge what they perceive as an unfair dismissal from their positions is a refusal of the individual to affiliate themselves with a specific trade union organization. The protection can also be applied in the context that the employee refuses to donate to a particular charity in lieu of paying union fees. But employers are also prohibited from initiating any action that falls short of a dismissal to force employees to affiliate with a particular labour organization and should not choose persons to be subject to redundancy proceedings on account of their being members of another labour group (Tyson, York, 2000).

Under the tenets of the 1996 law, an employer cannot act to harm an employee with regards to their employment if the employee reported an unsafe action by the company (Tyson, York, 2000). In the case of Mr. Szilagyi, the company had unfairly dismissed him as a result of his refusal to work in what he termed as an unsafe working environment. Also, Protectacoat alleges that the claimant had filed his claims against the company beyond the time that the law allowed. Included in the argument of the company was the reiteration that the claimant was only an independent contractor of the company and not employed by them (British and Irish Legal Information Institute, 2009).

Prior to the enactment of the 1996 statute, the prevailing statute with regards to disciplining and dismissing employees was the 1978 Employment Protection (Consolidation) Act. In 1996, when the law came into effect, it consolidated the provisions contained in the 1978 law with several other pieces of various labour laws, such as the 1986 Wages Act, The 1994 Sunday Trading Act and the 1993 Trade Union Reform and Employment Rights Act. Further changes were incorporated in the 1999 Employment Relations Act and the 2002 Employment Act (John Gennard, Graham Judge, 2004).

Once the employee has determined that they were indeed dismissed by the company, the proof of burden is now placed on the shoulders of the employer to justify the dismissal of the employee. If the employer does not provide a reason why the employee has been dismissed, then  the dismissal is deemed unfair since the statutory proof has not been accomplished. Also, if the reason for the dismissal of the employee is concocted by the employer with the goal of dismissing the employee as the true reason for doing so is unacceptable, then the employer will fail to discharge this duty as the reasons fall beyond the ambit of section 98  (1) or (2) of the 1996 ERA. But for the employer to give false reasons is not fatal to the case of the employer,as the duty to ascertain the true reasons fall within the duties of the tribunal that drove the employer to dismiss the employee (David Lewis,  Malcolm Sargeant, 2004).
Protectacoat Firthglow v Descombes

Prior to the hearing, lawyers for the company communicated with Szilagyi and asked him to give reasons on why he should be considered as an employee of the company. Szilagyi drew the companys attention to the case of Protectacoat Firthglow v Descombes 2004 UKEAT 0916_03_1901. In that case, the company was the subject of two claims bought before the tribunal by Messrs. Simon Descombes and Roderick Lamont, the two cases herd as one by the court. Both claimed for unfair dismissal, illegal deduction of wages and damages for breach of contract. In this case, the company averred that the two were not employees of the company, the same argument made against Szilagyi. The court ruled that they had acquired jurisdiction and issued an alternative that the two had fit the requirements of workers under section 230 (3) of the 1996 law, which were challenged by the company  (United Kingdom Employment Appeal Tribunal, 2004).

As earlier mentioned in the paper, the company specializes in the spraying of protective coatings to the external walls of houses, and the work mainly comprised work schedules of one or two days. Firthglow stated that these jobs were done by teams that were engaged as sub contractors by the company. As the company did not wish to recognize these contractors as employees, the company concocted the scheme of getting two people to enter into partnership agreements with each other first and then the company would engage the services of the partnership to carry out the tasks. In the determination of the court on the merits of the case, the court investigated whether each of the workers was actually an employee of the company. The court found that the company usually advertised for personnel in the local job markets, and that Firthglow provided training and required documentation, was more similar to an employer looking for an employee rather than a company who was on the lookout for sub contractors (Employment, 2004).

Also, the working time of the company and the structure of the work did not meet the criteria set for independent contractors. They had no viable choices in the start of their work, the sub contractors had to report to the yard of the company and were provided the tasks that were available for the day, the materials and the data necessary to complete the work. As such, the company had a significant amount of control over the amount of time that each worker put in. Not only did the company exercise a significant amount over the time of the contractors, but also over the process and the system of the work to be done. No member of the teams provided any input on the quotations for the projects or conducted assessments or inspections on the projects to be done (Employment, 2004).

Along with other factors, the tribunal ruled that all of these elements taken together can be construed as an employer exercising a significant amount of control over the employees and the work process. The finding of the court was buttressed by the fact that all the subcontractors were provided training by the company in all the procedures and the particulars of the tasks. The tribunal also discovered that the contractors were provided with vans that bore Firthglows company logo and company details. All the tools such as the scaffolding, spraying equipment, hard hats and other pieces of equipment were also provided by the company, pointing strongly to the existence of a employer-employee relationship rather than the subcontractor-contractor relationship being argued by the company (Employment, 2004).

In the hearing, Szilagyi, appearing before the tribunal in person, began his testimony on the circumstances  that led to his being allegedly employed by Protectacoat in March of 2006. In his statement, he said that he saw a Protectacoat van parked at Tescos and inquired of the driver if there were employment opportunities at the company, which the driver answered by handing him a business card of the company. He then proceeded to the Crawley yard of the company where he met Mr. Simon Squires, the manager of the depot. Squires interviewed Szilagyi if was familiar with health and safety jobs, which Szilagyi said no. But still Squires asked the claimant to sign a safety and induction form at the depot (England and Wales Court of Appeal (Civil Division), 2009).

After filling up the card, Szilagyi boarded a van with two other men to learn the rudiments of the job. Szilagyi and the two other men learned the basics of the job and received cash for a period of two to three weeks. In the statement of Mr. Foxwell, attorneys for Protectacoat, averred that the two were subcontractors hired by the company to train Szilagyi. In the hearing, apart from the other items mentioned earlier in the paper to allege Szilagyis claim of employment with the company,  Szilagyi also averred that he had come into a contract of employment with Firthglow. In his words, the documents he had signed did not truly reflect the real status of the relationship between himself and the company, calling the documents a sham, or fraud. Szilagyi aver that the real relationship of the two were not actually reflected in the contracts (England and Wales, 2009).

Sham Contracts
But in the case of Protectacoat, the main point of contention in the appeal is the contention of the employment judge that the documents entered into by Szilagyi and the company were to be construed as sham contract. In effect, the judge ruled that the true nature of the relationship of the two parties in the appeal was that of employee-employer rather than that of company with an independent contractor. In the ruling, the judge stated that there were facts that pointed to the existence of a sham contract between the two. One, the company had advertised that the personnel sent to the work sites were employees of the company  rather than contractors, but the company argued before the tribunal that the opposite was the truth. Second, in ruling on the services contract purportedly between the contractors and the company, the contract was fraudulent in that no fees were charged by the company to the contractors (England and Wales, 2009).

Sham contracting is the practice of an employer trying to conceal the true relationship between him and his employee and trying to mask the same with a fictitious arrangement that the employee is only an independent contractor who is self employed. This practice is conducted that the employee will not be able to avail of the benefits and other dues that they will acquire with the attainment of employee status (Fair Work Online). In a recent ruling by a Federal magistrate court in Australia,  the International Labour Organization declared that self employed persons and self employment is a legitimate enterprise, and called for the abolition of the practice of establishing sham contracts. Enacted in the provisions of the Australian 2009 Fair Work Act, which prohibits an employer from pursuing the following activities
Conceal an employer-employee relationship, possible or existing, and construe the same as an independent contracting relationship
Remove or threaten to remove an employee and then contract their services as an independent contractor, and

Concoct a lie with the intent to coerce the employee to become an independent contractor (Fair Work).

In the Australian case for sham contracts, CFMEU v Nubrick Pty Ltd 2009 FMCA 981 (7 October 2009), a manager had contracted the services of two employees in a brick making factory as independent contractors, or in the case of the ILO, as self employed individuals. The manager and the the workers were of the belief that having their own Australian Business Number (ABN) had in fact secured their status as self employed individuals. But in the ruling of the judge, the two were found to be employees of Nubrick (Ken Philips, 2010). In the case of many companies, they engage a host of workers under different types of contract. They can be direct employees of the company, contractors that are engaged by the company or private individuals who offer their services to a company for the purposes of taxes or through a managed service contract and agency temps that are engaged through the services of a third party (Law Society of Scotland, 2010).

As a common practice, persons that are not directly hired as employees by a certain company will be given written agreements that state they are to construed as self employed individuals that are engaged in the context of service agreements with a particular company.  The question as to the status of the individual crops us in the context of the termination of the contract and that the employer ends the contract by which the person was hired or the employer does not to retain the services of the individual for an extended period beyond the time of the contracts tenure. In the latter context, the party may feel an injustice may have been committed against them and is considering legal options against the company. This may take the from of unfair dismissal proceedings, constructive dismissal and redundancy claims (Law Society, 2010).

In the case of Mr. Szilagyi, the employment judge ruled that the relationship of the two were concealed and that the true relationships were made to appear as a contractor and an engaging company for whom Szilagyi had come to a contract for services, and not as a direct employee. Apart from the aforementioned factors that weighed heavily on the decision of the judge to rule that the contract and the agreements were a sham, the judged also discovered that the).  company also mandated the procedures by which Szilagyi would conduct and the tasks he was supposed to accomplish. The mere fact that the claimant had to report to the companys yard constituted that the claimant was under direct supervision and control of the company (England and Wales, 2009).

The barometer case in the case for contractors as employees is found in Ready Mixed Concrete (South East) Limited v. Minister of Pensions and National Insurance 1968 2QB 497. In the case, the tribunal had to determine whether the driver who was also the owner of the same for the purpose of delivering the companys ready mixed concrete products was contracted under a contract of service or a contract of services. In the facts of the case, the appellant was engaged in the business of manufacturing and selling ready mixed concrete.  Ready Mixed Concrete (RMC) had contracted an independent hauler to deliver their products to their customers (HM Revenue and Customs).

The contract with the hauler was discontinued and instead of re-engaging another hauling company, RMC decided to create a policy that will have the companys products to be delivered to their customers with the use of drivers who owned their trucks working under contracts given by RMC. The drivers the entered into a hire purchase accord with Ready Mix Finance Limited to acquire a lorry, the mixing equipment mounted on the lorry to be considered as the property of RMC. In the mid 1960s, the company had asked the Social Security Minister to adduce the employment status of one these owner-drivers, a certain Mr. Lattimer. In the decision of the Minister, he concluded that Lattimer was employed under a contract of services. On appeal, the appellate ruled that the driver was in fact a businessman and not an employee of the company (HM).

But the crux of the contention is the existence of a sham contract between Szilagyi and Firthglow and was the real relationship of the two is actually that Szilagyi was an actual employee of the company and thus claim unfair dismissal. Szilagyi contended before the tribunal that he had indeed entered into such an agreement with the company.