Human Rights in the Administration of Good Governance

In previous years, attention has increasingly turned towards the parliament as the State institution through which people exercise their right, enshrined in article 21 of the Universal Declaration, to participate in the conduct of the public affairs of the country. Indeed, if human rights are to become a reality for everyone, parliaments must fully play their role and exercise to this effect the specific powers they have, namely legislating, adopting the budget and overseeing the Government. ... Hence, the suggestion that IPU and the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations body specifically mandated to promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights, should publish a handbook with basic information about human rights and the international and regional systems designed to promote and protect them. - FOREWORD by the High Commissioner for Human Rights and the Secretary General of the Inter-Parliamentary Union.

• See also: IPU-OHCHR HR Manual for Parliamentarians - PDF (2,741Kb - 198 pages).

Human Rights in the Administration of Justice

The way in which justice is administered in a society is one of the basic indicators of its well-being. As highlighted by the Universal Declaration of Human Rights, ... it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. It is for national legal systems and the administration of justice to ensure that this goal is achieved. Independent legal professions play a fundamental role in the protection of human rights. They are the guardians of international human rights law, ensuring that it is properly enforced within the judicial process and that individuals whose rights have been violated can find an effective remedy domestically. In order to discharge this responsibility, judges, prosecutors and lawyers need to have access to information on the human rights standards laid down in the main international legal instruments and to the related jurisprudence developed by universal and regional monitoring bodies. - FOREWORD by the Office of the United Nations High Commissioner for Human Rights - Human Rights in the Administration of Justice.

• See also: Human Rights in the Administration of Justice: A Manual on Human Rightsfor Judges, Prosecutors and Lawyers xxxi - Provided by the Universityof Minnesota Human Rights Library - HTML.

Rule of Law and the role of the courts

The Venice Commission provides for Constitutional Case Law that greatly facilitates comparative research by practitioners, who can draw on approaches already adopted in other countries, particularly in the field of fundamental rights. Variations in case-law between constitutional courts increasingly reflect conscious rather than accidental differences of approach. The circulation of information is therefore a powerful force for trans-constitutionalism, enabling courts to draw inspiration from the constitutional practice of their counterparts elsewhere.

• See also: Conference on the Role of the Constitution in Building a State Governed by the Rule of Law, Baku, 11-12.11. 2005. Extracts from the CODICES database - PDF (2,015Kb - 227 pages).

Anti-corruption reform in Rule of Law programs

Absence of meritocracy along with pervasive politicization undermines professionalism and fuels corruption: decisions on recruitment, appointments and promotion of judges tend to be arbitrary. They usually are not based on merit, performance or experience. ... Those parties or partisan factions responsible expect from the judges they appoint passive acquiescence, active cooperation, and even total allegiance. The deference of judges to their political godfathers can be reflected, for example, in the acceptance of suggested legal case leading to predetermined decisions or the speeding up (or slowing down) of certain cases. ... Where every judge has his or her own patrons, be them politicians, superior judges or powerful individuals, formal institutions tend to be easily co-opted by these informal relationships and networks which dominate the political system in which the judiciary inserts itself. While the judiciary is expected to be politically independent, it nevertheless remains a critical political actor itself. Neither the government nor political parties can be solely blamed for undermining judicial independence. The judiciary inserts itself and is part of a broader and complex web of social networks, nourished by familiar, friendship and other social configurations, which vary from country to country. A critical lesson learned after almost two decades of rule-of-law reform is that the naive distinction between politicians and judges must be abandoned. As an Argentinean Supreme Court justice once commented, "all judges are politicians, whether they know it or not" (Abramovich 1992). - Excerpt of chapter to a book from Maria Gonzalez de Asis providing key findings of the last two decades of international efforts at promoting the rule of law in democratizing countries and transition economies.

• See also: Anticorruption reform in Rule of Law programs - Maria Gonzalez de Asis - PDF (372Kb - 22 pages).

UK | CHIEF JUSTICE LORD BINGHAM (1996 - 2000) AND RULE OF LAW SUB-RULES

• T.H. Bingham - "The core of the existing principle [of the rule of law] is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. I doubt if anyone would suggest that this statement, even if accurate as one of general principle, could be applied without exception or qualification. There are, for instance, some proceedings in which justice can only be done if they are not in public. But it seems to me that any derogation calls for close consideration and clear justification. And I think that this formulation, of course owing much to Dicey, expresses the fundamental truth propounded by John Locke in 1690 that 'Where-ever law ends, tyranny begins',* and also that famously stated by Thomas Paine in 1776, 'that in America THE LAW IS KING.'" - Lecture of Chief Justice Lord Bingham (Centre for Public Law, Sixth Sir Davis William Lecture, November 16, 2006, Cambridge University). - Bingham info

CA | CHIEF JUSTICE B. DICKSON (1984.04.18 - 1990.06.30) AND MEANING OF THE RULE OF LAW

• B. Dickson - "The meaning of the rule of law is very simple and well known to us all: the law must stand supreme as the source and fabric of all social organization. It is the law which provides the framework for relations among individuals as well as between the individual and the state: the law delineates the scope of each person’s liberties and responsibilities and defines the powers and duties of government. All obligations imposed on the individual and all restrictions upon his or her liberty must be justified by law. This is the most fundamental guarantee of equality and freedom we have achieved as a society. The Rule of Law protects individuals from arbitrary and capricious treatment at the hands of government and fosters confidence in each of us that the power of government to interfere with our lives is finite and ascertainable. It allows us to live together in freedom and harmony and provides the common ground for social progress and prosperity." - Speech of Chief Justice Brian Dickson ('The Rule of Law: Judicial Independence and the Separation of Powers' - Canadian Bar Association, 21 August 1985. Note: unpublished, archived: National Archives of Canada, MG31 E85 vol. 137 file 27, under 'Rule of Law'). - Dickson info

US | CHIEF JUSTICE J.G. ROBERTS (2005.09.29 - ) TO UPHOLD THE RULE OF LAW

• J.G. Roberts - "The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they’re going beyond the interpretation of the Constitution, where they’re making the law." - Senate Judiciary Committee (Graham Testimony, 9-13-05). "[W]ithout [ the rule of law ] any other rights that you may agree with as a matter of policy are meaningless. You need to have courts that will enforce the rule of law if you’re going to have rights that mean anything." - Senate Judiciary Committee (Durbin Testimony, 9-14-05). - Roberts info

AU | CHIEF JUSTICE M. GLEESON (1998.05.22 - 2008.08.29) FOR THE RESIGNATION OF UNRULY JUDGES

• M. Gleeson - "[I]n the administration of any law there comes a point beyond which discretion cannot travel. At this point, if a judge is unable in good conscience to implement the law, he or she may resign. There may be no other course properly available. Judges whose authority comes from the will of the people, and who exercise authority upon trust that they will administer justice according to law, have no right to subvert the law because they disagree with a particular rule. No judge has a choice between implementing the law and disobeying it." - Chief Justice Murray Gleeson (p.127 of his Boyer Lectures (2000) "The Rule of Law and the Constitution"). - Gleeson info

BD | CHIEF JUSTICE M. KAMAL (1999.06.01 - 1999.12.31) FOR ETHICS, ACCOUNTABILITY AND GOOD GOVERNANCE

• M. Kamal - "Good governance, ladies and gentlemen, is an extension of the principle of the rule of law. A society is well governed when there is a rule of law, not a rule of man or woman. A modern state is extensively governed by rules and regulations, by complex guidelines and instructions, by a web of regulations, restrictive, prohibitive and penal procedures. As a fish starts getting rotten from the head, good governance starts sliding from the hands of the people when the top people in parliament, executive and judiciary put rules and regulations aside and start ruling by the rule of the thumb." - Chief Justice Mustafa Kamal, on the 9th International Anti-Corruption Conference, 10-15 October 1999, Durban, South Africa. - Kamal info

* John Locke, Second Treatise of Government (1690), Chap XVII, s.202 (Cambridge University Press, 1988), p 400.