 |
Judicial Creativity
by Dr. Angela M. Ward
Enhancing Judges' Role As Enforcers of International Human Rights Law
Dr. Ward, Assistant Professor at the University of Essex, UK, delivered a thought-provoking keynote address at the Dublin Conference. Her paper is excerpted below.
Academic lawyers are always quick to criticise a judicial body when a ruling appears to fall short of human rights protection standards. Yet judicial bodies have made important and, indeed, critical positive contributions. In particular, those bodies in countries with a Bill of Rights in their constitution have been central to maintaining political stability in the post-war era by crafting, applying and upholding rafts of rules that form linchpins of modern democratic governance. Yet, a number of novel ideas are circulating in academic literature on how national judges might play a more active role in enforcing international human rights law. I see the judiciary playing a key role in securing the effective enforcement of democratic principles and human rights. There is a corpus of principles that even democratically elected officials may not infract, and it is within the legitimate realm of the judicial role to ensure adherence to these rules. This paper canvasses seven ideas that support this view.
1. There is nothing "undemocratic" in the judiciary tying the executive arm of government to promises made to protect and enforce human rights, especially when those promises are made through ratification of an international human rights instrument.
The act of ratifying an international human rights instrument supplies the judiciary with a mandate to enforce it. Tying governments to promises they made to their own people in the context of international human rights treaties is in no way undemocratic. This view is supported by the Australian High Court in the Teoh case. Mr.Teoh, a Malaysian citizen married to an Australian citizen, shared responsibility for raising 7 Australian-born children. He was denied a permanent residency permit and ordered deported because he after being convicted for importing heroin. Teoh's counsel argued that since Australia had ratified the Convention on the Rights of the Child (CROC), the government's right to deport non-citizens was limited in that CROC Article 3 provides that the best interests of the child shall be a primary consideration. Although ratified, CROC had not been implemented under Australian law. The High Court refused to order Teoh's deportation, relying on the government's ratification of the CROC in these words:
…ratification by Australia of an international convention is not to be dismissed as…an ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification …is a positive statement by the…government… to the world and to the Australian people that the… government…will act in accordance with the Convention. That… statement is an adequate foundation for a legitimate expectation…that administrative decision-makers will…treat the best interests of the child as a primary consideration.
The Proportionality Principle
Ratification of a human rights instrument also may justify scrutiny of State conduct under the proportionality principle, meaning that human rights instruments can provide a benchmark in determining whether results flowing from a human rights infraction are excessive when compared to a competing state aim. The case came before Australia's Federal Court in 2001, after the Government prohibited a boatload of asylum seekers from landing. A Court majority held that the Government acted within the executive's power to expel aliens under the Australian Constitution. The Court ignored the Refugee Convention, Article 32, that provides that states party "shall not expel a refugee lawfully in their territory save on grounds of national security or public order" and in accordance with " due process of law." The full Federal Court could have curtailed the executive's authority to ignore customary international rules.
2. It may not be undemocratic for the judiciary to enforce internationally recognised human rights norms in the face of conflicting legislation.
I support scholars who argue that judges have a legitimate function in policing the fundamental "rules of the game" in the polity over which they preside. It falls to the judiciary…to check a government's breach of these principles. For example, in Vishaka v. State of Rajasthan, India's Supreme Court cited the Convention On the Elimination Of All Forms of Discrimination Against Women in ruling that the proscription on sex discrimination in India's Constitution applies to sexual harassment in the workplace.
The Supreme Court ruling in Nguyen v. Immigration and Naturalization Service exemplifies a national court's failure to look to international standards. The applicant, born in Vietnam to an unmarried American father and Vietnamese mother and raised in Texas, sought US citizenship. It was denied because the father failed to take a step required by U.S. law to assert paternity before the applicant turned 18. This would not have been required if the mother was a US citizen. The Court found that the discriminatory means Congress employed to determine citizenship were "substantial" in achieving Congress' objectives. The majority would have seen that discriminatory treatment of children born out of wedlock breaches the European Convention's right to family, out-weighing any legitimate State aim, had they looked to European Court of Human Rights case law.
3. Judicial rulings pertaining to democratic principles and human rights should be viewed as part of a dialectic process, in which an immutable rule emerges only after broad social discourse and input from political actors.
Objections that judges are not democratically elected and, therefore, should defer to the judgment of politicians must be viewed against the backdrop of political realities. Perhaps the most vivid illustration of the judicial impotence when confronted with a government determined to enforce its own interpretation of human rights rules emanates from Zimbabwe where the Supreme Court ruled in the Commercial Farmers Union case that under the Constitution, white farmers whose lands were seized were denied equal protection and discriminated against on racial grounds. Despite the Court's ruling, land resettlement continues to be a dominant controversy in Zimbabwe.
4. Legal certainty can be preserved by limiting the sources on which judges draw to international human rights instruments, and legal rules common to modern democracies.
A concern often raised is that judicial enforcement of human rights rules will create legal uncertainty. I contend that once the judge finds sufficient evidence of an alleged right in international instruments and in the legal traditions of modern democracies, the threshold required to protect legal certainty will be satisfied.
I have identified 13 human rights rules common to the ICCPR and the regional human rights instruments of Europe, Africa and the Americas, including freedom of expression, the right to fair trial and due process of law, the right to free movement of people, the prohibition on torture, the right to family life, and the right to participate in fair political processes, to name a few. These, I would argue, represent minimal international standards that domestic judges are mandated to enforce.
5. Cultural relativism can be accommodated by referring to the development of regional rules.
Concerns that western values might be imposed on non-western states by the elaboration of "universal" standards can be resolved by developing regional rules. For instance, the African Charter, Article 29 states that individuals have the duty to "preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents…and maintain them in case of need." This suggests that liberalised definitions of family in western states may not necessarily graft into an African cultural context.
6. Rules formed in the days of "horse and carriage" may not be apt under human rights instruments.
Many rules crafted by national courts limiting the legal effects of international treaties arose in the days when states had little recourse to the international arena. This suggests that it is time to rethink some of the legal principles formulated in a bygone era. One such rule is the distinction between self-executing and non-self executing treaties. Even in countries where constitutional law vests treaties with primary status, the idea that treaties can be non-self executing, and, therefore, unenforceable in national courts, has impaired national enforcement of human rights instruments.
7. Judges have a legitimate role in crafting effective legal sanctions to enforce rights recognised in international human rights instruments
I submit that a major impediment to widespread state observance of human rights agreements has been the absence of sufficiently potent sanctions to deter their breach. Yet, national courts may be able to upgrade the sanctions that apply to such breaches by requiring that the full force of domestic sanctions be applied to them.
Judges As Guardians
I see the judiciary as the guardian of "essential" rules on which rest the foundations of democratic governance and human rights standards. Fundamental human rights form part of these rules and national judges have a mandate, if not a legal duty, to secure their enforcement. On the recent 50th anniversary of the Universal Declaration of Human Rights, Mary Robinson, then U.N. Human Rights Commissioner observed:
I do not see this 50th anniversary of the Declaration of Human Rights as an occasion for celebration. Count up the results of 50 years of human rights mechanisms, 30 years of multi-billion dollar development programs and endless…rhetoric, and the impact is quite under-whelming…. There is a failure of implementation on a scale which shames us all.
If national judiciaries were more active in enforcing international human rights rules, the results in terms of prevention could be highly significant. If the judiciary in the former Yugoslavia had preserved freedom of expression, the propaganda machine essential to Slobodan Milosevic's rise may not have functioned. If the right to life and rule of law had been preserved in Rwanda, mass human rights violations there might have been thwarted. In achieving these goals, and meeting the challenges of transnationalism, international human rights law presents an invaluable source of legal doctrine, and one on which national judiciaries can legitimately and confidently draw.
Back to Top
Back to Conference Papers
|
1850 M Street NW