The rule of law and human rights

Basil Fernando, Executive Director, Asian Human Rights Commission, Hong Kong

Serious problems relating to the rule of law have together become a serious impediment to the realisation of human rights in many countries throughout the globe. In many cases, the judicial system has all but collapsed, despite pretences to the contrary by state representatives. Under such circumstances, mere ratification of the International Covenant on Civil and Political Rights by these states has no meaning. The body of human rights articulated by the Covenant presupposes the basic functioning of institutions to address violations of these rights. Where these institutions are functioning, people have the faith that they may realise these rights. When people lack faith in the institutions needed to ensure the rule of law, work to ensure human rights is in grave peril. When a state with broken institutions ratifies the Covenant, and makes other gestures to give an impression that it is complying with international human rights standards, it will not generate enthusiasm for human rights, but rather, create cynicism about the very idea of human rights protection. Thus, the obligation of the state to respect, protect and fulfil human rights is intertwined with its obligation to maintain the rule of law through credible and trustworthy institutions.

The proper functioning of three institutions in particular is of the utmost importance. Those are the institutions relating to investigations of rights’ violations, prosecution of the perpetrators, and punishment of the perpetrators and compensation of victims. Given the serious problems relating to the rule of law prevailing in many parts of the globe today, the workings of these institutions call for closer study if human rights are not to be relegated to mere wishful thinking.

The investigation function belongs to the policing agency. Many studies from various parts of the world highlight various problems prevalent in policing. Some of these are caused by historical events, such as periods of repression when the police function has been confused with the defence function, which pertains to the military. Prolonged civil conflicts, for instance, restrict the political space in which an independent policing institution may develop. However, there are even more difficult situations, where for various reasons the most common mode of criminal investigation becomes torture, which hinders tremendously the prospect of any human rights standards being achieved. The worst scenario is where policing agencies build close links with criminals. The means by which policing agencies with serious problems can be transformed into law-abiding institutions is therefore a vital matter for human rights defenders to take up.

The prosecuting branch is expected to take up on investigations by the policing institution, but numerous studies of many countries also attest to various problems that prevent this branch from performing its vital role with independence and integrity. In some instances, the powers of prosecutors are so limited that they are unable to intervene in many matters affecting the basic rights of the people. In other cases, the paucity of resources made available to the prosecuting branch renders it unable to carry out its functions in a manner that will convince the public of its capacity to play a serious role in maintaining the rule of law. The worst scenario is where the decision to prosecute or not follows political directives to the branch, or via another agency. Sometimes competition between these key institutions themselves retards the effective functioning of the prosecution. For example, law enforcement agencies or security agencies can under certain circumstances have enormous influence over the prosecuting branch. Whatever the circumstances, the overall effect on the mind of the public is that there is no effective prosecuting agency available to protect basic rights. It follows that any popular impulse to pursue human rights is suppressed.

Like the two preceding agencies, studies from around the world reveal that the judiciary is also very often unable to function as required to maintain the rule of law. In some circumstances, the limitations are constitutional or based on law, for example, where judicial review of the executive is not permitted or highly restricted. However, there are many cases where the independence of the judiciary is retarded by procedural failures. For example, the adjudication of cases may take so long as to militate against the principles of fair trial. Witnesses may suffer serious threats and other forms of violence during such long periods, while complainants may be forced into settlements and thus abdicate their rights. The work of the judiciary can also be hampered by a lack of resources, resulting in shortages of judges, courts, or other facilities needed for its efficient functioning. More troubling still is when there is direct or indirect political control. Studies by the Special Rapporteur on the Independence of Judges and Lawyers have revealed the many impediments to the independent functioning of the judiciary. The limitations of the investigation and prosecution branches mentioned above also undermine the role of the judiciary.

When a state ratifies the International Covenant on Civil and Political Rights, it may be unable to meet its obligations for any of the above-mentioned reasons. In many countries the situation is so serious that local populations resist attempts at human rights education because there are absolutely no legal safeguards that will allow for them to be realised. In these cases, people may take the law into their own hands. For example, a mob catching an alleged thief takes him to a marketplace and beats him to death. An accidental killing in a road leads not only to the assault or murder of the driver, but also to an attack on the police station responsible for patrolling roads in the vicinity by local residents frustrated at the inability of the police to properly control traffic. Parallel justice systems may evolve, through public opinion or, ostensibly, religious codes and cultural practices, usually with forms of adjudication and punishment deeply offensive to universal standards of human rights. It is not possible to counteract such trends without simultaneously trying to re-establish confidence in the rule of law.

Where there are deep problems relating to the rule of law in the three institutions described above, the introduction of subsidiary institutions, such as national human rights commissions in keeping with the Paris Principles, is futile. The effectiveness of subsidiary agencies depends on the minimum proper functioning of the policing, prosecuting, and judicial branches. If proper attention is not paid to the central problems, resources spent on national human rights institutions will be wasted. In fact, it has often been argued by many in different parts of the world that the only purpose these national institutions have is as international propaganda tools for their respective governments. The role of national human rights institutions, therefore, depends upon the credible functioning of the basic agencies intended to protect the rule of law.

Studies by the UN Sub-Commission on Human Rights into the functioning of the police, prosecution, and judiciary in supporting the rule of law and thereby enhancing the promotion and protection of human rights are urgently needed to articulate the actual problems in realising human rights throughout the world. This is even more necessary given the growing divide between more developed countries where the rule of law is guaranteed through a relatively well functioning police system, prosecution branch and judicial system and everywhere else. People in those countries obtain support in their struggles for human rights from this basic foundation of the rule of law, and as a result very often fail to understand what it means to live in a place where the institutions intended to realise the rule of law are themselves impediments. A detailed study into these issues by the Sub-Commission may pave the way to an important exchange between concerned persons from these different backgrounds, thereby allowing the international community to support the development of basic institutions for the rule of law in places where it does not at present exist. In fact, such an effort is imperative if the stated goals of the Sub-Commission, to promote and protect human rights, are to be achieved at all.

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