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.
cultural tradition of Human Rights
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and philosophical concepts have now been replaced by legal rules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.
of Sri Lanka
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
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.
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.
of those involved in litigation in the lower courts claimed they
had paid bribes to either court officials or the opponents
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
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.
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
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
Nihal Jayawickrama replaced Ms. Annie Watson of the Commonwealth
Trade Union Council as the new Chair of the Trustee Committee
of CHRI. The CTUC disbanded in January 2005. Ms Watson spent
little over one year on CHRIs Trustee Committee. We
thank Ms. Watson for her invaluable contribution to CHRI
over many years.
graduate in law of the University of Ceylon, Nihal practiced
law before serving first as Attorney General, and then as
Permanent Secretary to the Ministry of Justice in Sri Lanka.
After obtaining his doctorate in international human rights
law from the University of London (SOAS), he taught Law
at the University of Hong Kong and at the University of
Saskatchewan, Canada. Thereafter, he served as the Executive
Director of Transparency International in Berlin. A consultant
to the UN and several other international organisations
on anti-corruption strategies and judicial reform, he is
currently coordinating a programme on strengthening judicial
integrity which is led by a group of Chief Justices including
eight from the Commonwealth.
Jayawickrama has published widely on constitutional law,
human rights and governance issues, and is the author of
The Judicial Application of Human Rights Law International,
Regional and National Jurisprudence, which was published
by Cambridge University Press in 2003. We look forward to
working with him over the coming years.