Not by judiciary alone

Param Cumaraswamy, Special Rapporteur on the Independence of Judges and Lawyers

I am indeed honored to be invited to participate in launching this new publication article 2 by the Asian Legal Resource Centre (ALRC). The ALRC must be congratulated for this innovative undertaking. I have been associated with the Centre for many years. It is today one of the leading regional NGOs in Asia analysing human rights issues and exposing human rights violations through its monthly publication Human Rights SOLIDARITY. Thus through such publications human rights consciousness is kept alive in the region. On a personal note, I would like to congratulate Basil Fernando, who is a live wire behind the Centre. His relentless and untiring efforts for the cause of human rights in the Asian region are most remarkable and admirable.

It is true that over the years the international human rights community has been involved in the articulation of the rights throughout the International Bill of Rights. I understand that 148 countries having ratified the ICCPR and 145 the International Covenant on Economic, Social and Cultural Rights (ICESCR). However not much has been done for states to implement these rights. Implementation processes have been extremely slow. As the Deputy High Commissioner just mentioned, article 2 provides duties for governments to apply and guarantee all the rights set out in the Covenants. Of course under international law the implementation of human rights is primarily a domestic matter. Hence, the duty of government is to do so. However, events have shown and continue to show that in our daily lives these rights are violated often most blatantly and with impunity—not only by governments but also by non-state actors.

While a lot has been said about the role of the judiciary, by itself the judiciary cannot be the sole guardian of human rights. The legislature and executive have equally important roles in this exercise and the effectiveness of the judiciary depends on the support and respect it gets from these other two arms of the government. In the last year we saw how an independent Supreme Court in Zimbabwe was assaulted by the high-handed power of the executive arm. When the judiciary itself requires protection how can it independently and impartially remedy violations of human rights? Having held this mandate for the last seven years, and having intervened in about 100 countries, I’ve seen how agents of justice systems have been subjected to all forms of threats and harassment, including assassination. Hence, we need outside support as well for the protection and remedying of human rights violations. This is where national human rights institutions can play an important role. However, many of those set up recently are not as effective as they ought to be. They hardly meet the minimum standards of the Paris Principles. Hence, constant vigilance of the civil society through the NGO community becomes vital, as does the raising of awareness and exertion of pressure on states to comply with their treaty obligations. In the final analysis, public opinion is the most effective pressure on governments who violate human rights. We saw this in the way of people power was exerted in two countries in Asia, the Philippines and Indonesia. In Thailand massive public demonstration also brought down a particular government.

In the last 50 years, the international community has been engaged in standard setting and the formulation of norms for the promotion and protection of human rights. There are today, in my opinion, enough standards and enough norms. What I would really like to see in the next 50 years is committed implementation of these standards. It is in this context that I see the relevance of this publication, article 2. It is a welcome initiative and I wish it every success.

Before I close, I want to touch on something the Deputy High Commissioner mentioned about, the Bangalore Principles, which are very fine principles that have been reiterated at several subsequent colloquiums. What I would really like is one step further that the Office of the High Commissioner could undertake if resources are available. It will be very useful to have a database where judgments of the apex courts on human rights issues are analysed and immediately disseminated to all judiciaries and all the heads of judiciaries in the world. There have been very interesting judgments from apex courts on human rights issues, but they are not disseminated to many parts of the world in a timely manner.

In this regard I will give you two experiences that I encountered recently. The Supreme Court of Canada has a very good collection of jurisprudence now on judicial independence, and how/if an independent court could really come in aid of human rights violations. Bangladesh has had related issues before its Supreme Court. The Chief Justice of Bangladesh—who has since retired—met me in Durban and one evening mentioned to me about the issues before his court. He asked me whether I know of any precedents and I mentioned to him about the decisions of the Supreme Court of Canada. But the Dhaka Supreme Courts did not have the Canadian dominion law reports. What we did was to send a quick email to the Chief Justice of Canada to supply a whole set of judgments on a particular issue to the Bangladesh Supreme Court. Three weeks later the case was heard and two months later the judgment was delivered in the Bangladesh Supreme Court, consistent with the principles set out in the judgments of the Supreme Court of Canada. Both countries shared the common law tradition. Hence you find how effective this kind of networking can be. This is why it will be extremely useful if we can have a database of these judgments collected, collated, edited and immediately disseminated to all the supreme courts.

I was in East Timor recently and saw the way the judges are trying to implement international human rights law, but they don’t have adequate resources. They don’t have a library, they don’t have assistants, they don’t have enough lawyers—these are the difficulties judiciaries in emerging countries are experiencing, and we can be more effective by giving them this kind of assistance. I had a similar experience in South Africa, where there was a case going before a South African court on the problem of provocation. The lawyers handling the matter asked me whether there was a precedent. I said yes, the Caribbean courts had one recently. Immediately they were very interested in this particular judgment. Immediately the citations were sent to South Africa and I think they are waiting for the judgement of that particular case. This is a kind of networking we can do. And with that note, I once again wish this publication all success.

Comments arising out of questions from the floor

On the domestic application of international human rights norms, that is the essence of the Bangalore Principles that the Deputy High Commissioner mentioned earlier. But unfortunately, those principles have been formulated based on the common law tradition. May I also add that judges today in many parts of the world are also going through what we call continuous legal education, because once they are appointed as judges it does not mean that they stop learning. They continue to learn and they attend courses as well. If we talk about training programmes on domestic implementation of international human rights norms, we really need to get judges from all countries involved and sensitised with regard to what other judges are doing. The Bangalore Principles goes to the extent that even if a country has not ratified the particular convention there are way for the courts to creatively implement international law on human rights.

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