For Commonwealth Lawyers and Judges, Fresh Thinking?

 Justice Navanethem PillayFunke Aboyade who was in Cape Town for the Commonwealth Law Conference, reports on a challenge thrown to the Commonwealth’s lawyers, judges and academics by Plenary Keynote Speaker, Navi Pillay…

Justice Navanethem Pillay, the UN Commissioner for Human Rights since 2008, gave the Keynote Address at the first plenary session of last week’s Commonwealth Law Conference in Cape Town.

Justice Pillay who was the first woman to start her own law practice in Kwa Zulu Natal in 1967 did not hold any punches in her views about corruption in the Judiciary.

‘As many of you know, in many countries the independence of the Judiciary has been compromised. The Judiciary is no longer seen as fair and transparent but as dishonest and biased and the population loses faith in the courts and the rule of law’ she said.
In a first class presentation, she also spoke about the nature of human rights and how we should think of them conceptually and in practice.

Her presentation also discussed the relationship between the rule of law and human rights and how this affects the administration of justice at the national level, as well as how international human rights standards have been invoked before national courts on a number of different subjects, ‘with the hope that this may inspire you to draw on international human rights provisions and their interpretation when you are practicing before your national courts’.

‘Human rights are to be applied on the basis of non-discrimination and equality’, she said.

Tellingly, she went on, ‘This can be an important stumbling block if a country is multi-ethnic in character and some ethnic groups are consistently marginalised and do not have their human rights fully respected. Marginalisation and discrimination can also take place on the grounds of gender, religion, language or national origin. Poverty in particular can be an important source of marginalisation, dividing society into “haves”, and “have nots”. Poverty can particularly affect access to the courts, unless there is a culture of human rights education in which all people are educated about their rights and learn how to ensure their rights are respected, including how to get legal aid’.

It was great food for thought as well as a message that resonated with delegates, particularly those from the developing or emerging nations of the Commonwealth, including Nigeria.

Ms Pillay slammed development models by States that ‘appear to accept violations of civil and political rights as the so-called “price to pay” for rapid economic development’, pointing out that these models had been adopted by some of the States that had ultimately experienced the Arab Spring.

‘The focus on economic growth alone often ignored whether the gains of economic growth were distributed evenly, accentuating social tensions and misery’, she said.

Arguing that the rule of law does not mean simply that the laws governing society should be passed by democratically elected parliament and interpreted by independent and impartial courts, she drew examples from South Africa Apartheid past, as well as the segregation policy in the United States in the 1950 and Australia’s former Immigration policy that restricted the immigration of non-whites. Hitler’s Nazi Germany was also a prime example of her thesis.

Ms Pillay ended her presentation with a powerful and most thought provoking conclusion by urging the Commonwealth’s lawyers ‘to think afresh about the possibility of invoking a wide variety of international human rights provisions and their interpretation, before your domestic courts.

‘In some cases you may wish to directly invoke a provision of an international human rights treaty. In other cases reference to international human rights standards may serve for you in interpreting provisions in your national constitutions, given that the constitutions of a considerable number of Commonwealth countries contain a bill of rights or a chapter on human rights.
Some courts, she said, have already relied on such arguments.

‘For example, the Indian Supreme Court in 1995 interpreted the right to life to include the “right to health, medical aid to protect the health and vigour of a worker while in service or post-retirement”. In addition to relying on provisions of the Indian Constitution, the Court cited the Universal Declaration of Human Rights and the Charter of the United Nations’.

‘The Constitutional Court of South Africa in 2000 applied the International Covenant on Economic, Social and Cultural Rights in a case involving the right to adequate housing. Although the South African Constitution contains a right to housing, the Court also made reference to article 2 of the Covenant in its decision, as well as to General Comment No. 3 adopted by the Committee on Economic, Social and Cultural Rights.

Some courts, she said, have also accepted arguments for environmental protection based on the right to the right to life or the right to health.

‘In Bangladesh, for example, a court found that the right to life “encompasses within its ambit, the protection and preservation of environmental and, ecological balance free from pollution of air and water.” In a case in Argentina concerning environmental harm to fisheries and wildlife in a lagoon, the court concluded that, “The right to live in a healthy and balanced environment is a fundamental attribute of people.”

It will be recalled of course, that the vexed and unresolved issue of environmental pollution, especially in the Niger Delta of Nigeria which gave rise to armed militancy in the region, paved the way to negotiations by the Federal Government which then resulted in the Amnesty programme.

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