Human Rights: Legislation or Moral Pressure?

- Nihal Jayawickrama
Chair, Trustee Committee, CHRI

Below is the adapted speech that Nihal Jayawickrama delivered at the Commonwealth Parliamentary Association Seminar held on “Corruption, Human Rights and Party Politics” on 26 January 2005 in London, UK.

Religious and cultural tradition of Human Rights

Nihal Jayawickrama

Contrary to popular belief and assertions made by political leaders in Asian and African countries that human rights concepts are Euro-centric in origin and conception, respect for human dignity is rooted deep in the religious and cultural traditions of the world. Many of the moral values that underpin the contemporary international law of human rights are an integral part of these religious and philosophical orders.

Many strands of philosophical thought that unfolded the concept of a natural law complemented this religious and cultural tradition. Aristotle, Cicero, and over 1500 years later, Hugo Grotius, and still later, John Locke and a galaxy of European political thinkers like Montesquieu, Voltaire and Paine all consolidated a doctrine of liberty and equality that had a profound influence the world over.

But at the end of the day, barely sixty years ago, these tremendous religious, cultural and philosophical forces could not prevent the unprecedented atrocities that were perpetrated during the Second World War by one government on millions of its own citizens. It was this, more than any other factor that helped create an international human rights law.

We now have such a body of international human rights law which is at least forty years old and seeks to protect the individual against the acts and omissions of his/her own government. Religious traditions and philosophical concepts have now been replaced by legal rules incorporated in a series of human rights treaties.

Experience of Sri Lanka

The existence of international or regional treaties, or domestic legislation based on them, is by no means the complete answer. The experience of Sri Lanka is a case in point. It was a country that became independent with the solid foundations of freedom. It had the highest per capita income in the Asian region. Its sterling reserves were high, and its registered unemployed were minimal. It had one of the smallest military budgets, and one of the most extensive social welfare programmes for any developing country. But the Independence Constitution of Sri Lanka did not contain a Bill of Rights.

Without any overriding law to protect human rights, it became possible for successive governments to utilise the extensive armoury of legislative power at its disposal to, for example, disenfranchise a significant minority of its population, impose the language of the majority on the principal minority community, extend its own life without recourse to a general election and to remove judges of superior courts without cause, compensation or resortto constitutional procedures. It was possible to transfer ownership of newspaper companies to the state, prevent passport holders from leaving the country, and to expel the Leader of the Opposition from Parliament.

Competent, independent and impartial judiciary

A mere statement of fundamental rights guaranteed in the Constitution does not automatically translate into it being implemented. There must also be a competent, independent and impartial judiciary capable of interpreting and applying the protected rights. Sadly, evidence suggests that corruption is steadily and increasingly surfacing in judicial systems in many countries across the Commonwealth.

For example, a national household survey that was conducted on corruption in Bangladesh revealed that eighty-eight percent of those surveyed thought it was impossible to obtain a quick and fair judgment from the judicial system without money or influence.

Sixty-three percent of those involved in litigation in the lower courts claimed they had paid bribes to either court officials or the opponent’s lawyer. In a similar survey in Tanzania, thirty-two percent of those surveyed reported payments to persons engaged in the administration of justice. In Uganda, only nine percent were willing to say that corruption in judicial administration was a “greatly exaggerated” problem.

The above figures pose a serious challenge to the administration of justice. Human rights law recognises as fundamental that everyone be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

A bribed judge will neither be independent nor impartial. But it is not only with money that a judge can be bribed. The executive, the powerful corporate sector, the legal profession, friends and family have all been known to exert undue influence on a vulnerable judge. A corrupt judiciary means that legislation on human rights, however well intentioned and cleverly drafted, remains crippled.

Conclusion

To sum up, moral pressure needs to go hand in hand with legislation. The protection of human rights, whether of the individual or of the group, requires also a firm and abiding commitment by all three branches of government - the executive, the legislature and the judiciary - to create a climate that is increasingly sensitive and less tolerant to the violation of human rights and more responsive to efforts in preventing them.

Countries are increasingly recognising the rights of their citizens to complain against their respective governments to the international and regional human rights monitoring bodies established by treaty. These are significant steps, and whether they are taken out of a genuine desire to improve conditions or for purely cosmetic reasons, they obviously mirror the aspirations of the people, and will in due course capture their imagination.