Human Rights Day
Commemorating the Anniversary of the Universal Declaration of Human Rights
By S. Y. MOHAMED
Guyana Chronicle
December 10, 2003
The United Nations Charter was drafted at the San Francisco Conference in 1945 after the failure of the League of Nations to avert the Second World War. The main purpose of the Charter is to achieve international co-operation in the promotion of, and encouraging respect for, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. The general concept embodied in the Charter was elaborated three years later on 10th day of December, 1948, fifty-five years ago, by over one quarter of today's members of the United Nations General Assembly by proclaiming one of the most important testaments of our times - the Universal Declaration of Human Rights. (Universal Declaration), which contained an elaborate list of human rights proclaimed by the General Assembly to be 'a common standard of achievement for all peoples and all nations.' The Universal Declaration was not unanimous. It was adopted by 48 votes to none with eight members abstained, all the Eastern European members at that time, with Saudi Arabia and South Africa. The 10th day of December is set aside by the United Nations as 'Human Rights Day' to commemorate the anniversary of the Universal Declaration.
Two years later the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome in November 4, 1950, constituted one of the most important achievements of the Council of Europe. It was founded on the Universal Declaration but represented more than 'a common standard of achievement.'
The Universal Declaration and the European Convention derived their shape and form from the fountains of human rights and freedoms the Magna Carta in 1215, which guaranteed the right to personal liberty, immunity from wrongful detention and the right not to be deprived of property without due process, the Petition of Rights of 1628 which contained protests against taxation without consent of Parliament, the Bill of Rights of 1688 which limited the powers of the King and safeguard certain rights of the subject and the Act of Settlement of 1700 which regulated the succession to the throne..
2 The Universal Declaration was never translated into a universal human rights treaty. It did not itself impose any legal obligation upon States Members nor prescribed any legal right of the individuals. Consequently it was not recognized as binding on States Members when it was adopted and it is still not so regarded. There is no institution or body to which an individual may legally complain to, where there is a breach of a human right proclaimed by Universal Declaration. All the General Assembly did was to proclaim the Universal Declaration as 'a common standard of achievement for all peoples and all nations'.
Whereas the European Convention imposed legal obligations on the parties to it, to ensure that their laws are in conformity with it and supplies machinery for ensuring compliance with its provisions. Article l of Convention provides that the parties 'shall secure to everyone within their jurisdiction the rights and freedoms defined in section l of the Convention,' Any person, non-governmental organization or group of individuals claiming to be the victim of a violation of the rights set forth in the Convention may petition to the European Commission of Human Rights, which sits in private, and acts as an investigatory and reconciliatory body; if a friendly settlement cannot be reached by the Commission; it reports to the Committee of Ministers, which may prescribe remedial measures to be taken by the Government against which the petition has been lodged; alternatively, within a period of three months after the submission of the Commission's report, the case may be brought before the European Court of Human Rights; a judicial body constituted in 1959.. Today the European Court of Human Rights works full time. It is the largest permanent court in the world; it rules on infringement of the Convention after citizens, from those countries, which have signed the Convention, exhausted all domestic remedies. Nearly eight hundred million people have access to the Court; its jurisdiction stretches from Nuuk in Greenland to Petropaveloks in Russia Far East. There is no such mechanism under the Universal Declaration.
The hopes and aspiration of the General Assembly were that State Members were to incorporate in their legal system the provisions of Universal Declaration to secure their 'universal and effective recognition and observance.'
The first step in proclaiming the Universal Declaration as an 'International Bill of Human Rights' was the adoption of two human rights covenants by the General Assembly in 1966 - the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which came into force in March 1976.
3 The principles embodied in the Universal Declaration have been transformed into legal binding obligations and protect a wide range of human rights under these two covenants. They set out in more concrete details the basic fundamental rights proclaimed in the Universal Declaration, and imposed an obligation on all participating State Members to implement those rights.
Each State Member to the ICCPR undertakes to respect and to ensure to all individuals within its territory the rights recognized in the ICCPR 'without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'.
Most of the human rights mentioned in the Universal Declaration and in the elaborate provisions of the two covenants are enshrined in two places of our Constitution. First the ICCPR in Part 2 Title 1 of the Constitution under the caption 'Protection of Fundamental Rights and Freedoms of the Individual' (articles 138-153). These rights include - protection of right to life, protection of right to personal liberty, protection from inhuman treatment, protection from slavery and forced labour, protection from deprivation of property, protection of freedom of expression, protection of freedom to assembly and association, protection from discrimination and many others. These rights are self-operating rights; they are rights, which operate by themselves, and do not require any legislative or other initiative by the State to bring them in force. They are human rights, which are described as civil and political rights. They are fundamental because of the special protection afforded to them by the Constitution and can only be abridged in the manner stated by the Constitution. Article 153 gives a person a right to apply to the Court for redress if he alleges that any of the aforesaid rights has been contravened in relation to him. There is still a substantive range of human rights, which still remains to be covered under Part 2, Title 1 of the Constitution.
The United Nations Human Rights Committee (Committee) supervises the implementation of the ICCPR. The judicial jurisdiction of the Committee, one of the three jurisdictions of the Committee, is derived from the Optional Protocol under which a State Member accepts the competence of the Committee to consider a complaint called 'communication', from an individual alleging that he is the victim of a violation of the ICCPR. Only a communication of a State Member that acceded to the Optional Protocol can exercise such a right. Like any other body, the Committee has its own procedure when considering a communication. There is no oral hearing; the Committee is seized of the facts through communication.
4 A communication received by the Committee is sent to the State Member for its observations and the complainant is also given an opportunity of making observation on the information provided by the State Member. The complainant must exhaust all available domestic remedies before making a communication to the Committee.
Guyana ratified the ICCPR on 15th February, 1977 and acceded to the Optional Protocol on 10th May, 1993. The first communication to be considered by the Committee from Guyana was that of Yassin and Thomas who were sentenced to death by the Court of Appeal of Guyana. The Committee found that the facts presented before it revealed violations of the ICCPR for which the applicants were entitled to an effective remedy and recommended their release from custody. The applicants Yassin and Thomas applied to the High Court of Guyana to enforce the recommendation of the Committee. The Hon. Mr. Justice Carl Singh refused their application because the ICCPR was not incorporated into the municipal laws of Guyana. He, however, ordered that the Advisory Council on the Prerogative of Mercy to consider the recommendation of the Committee within 18 days and that the Minister within 5 days of such consideration express its own deliberate opinion to the President whether he should exercise any of his powers of the Prerogative of Mercy
The Privy Council held in a number of cases that the carrying out of a death sentence in certain circumstances is 'inhuman or degrading punishment or other treatment,' that the appropriate order in the circumstances is that the death sentence should be commuted to life imprisonment and a mandatory death sentence is inconsistent with the provisions of the Constitution. The Privy Council further held that a condemned man is entitled to sufficient notice of the date when the Advisory Council on Prerogative of Mercy would consider his case, be given a copy of all documents including the judge's report and international bodies report, if available, to make representation before a decision is taken by the Council. The Council is not bound to accept his representation but it must consider also the Report of International Bodies, if it does not accept the report it should explain why and, where a petition has be lodged to such bodies, the execution of the death sentence without consideration of such report is unlawful, such bodies should make every effort to deal with such petitions within a period of eighteen months, a few months over that period will be accepted.
The decisions of the Privy Council above, are one of the several reasons that many Caribbean countries are pushing ahead for the establishment of the Caribbean Court of Justice and like Guyana have withdrawn either wholly or partially from the Optional Protocol.
5 Second, the human rights of the ICESCR are stated in Chapter 11 of the Constitution under the caption 'Principles and Bases of the Political, Economic and Social System' (articles 9-39). The human rights in this Chapter include the right and duty to work, the right to rest, recreation and leisure, the right to free education from nursery to university, the equality for children born out of wedlock, the right to own personal property which includes dwelling houses and the land on which they stand, the equality of women and many others. The rights under this Chapter were further increased to give effect to the recommendation of the Constitutional Reform Committee as approved by the Oversight Committee on Constitutional Reform.
These rights are described as Directive Principles of State Policy. They are principles fundamental to the governance of the country, which require legislation by the State for them to be enjoyed. They are human rights, which by their nature cannot be regarded as self-operating. The resources required for realizing them would be such as to require the intervention of the State and therefore the need for State legislation. Article 38 provides for national co-operation and development of economy 'in order to ensure the realization of the rights set out in this Chapter.' Though they are not enforceable in a court of law, article 39 provides that 'it is the duty of Parliament, the Government, the courts and all other public agencies to be guided in the discharge of their functions by the principles set out in this Chapter'. In India it is specifically stated in the Constitution that these rights are not enforceable in the Court.
The Labour (Amendment) Act of 1984 affected the welfare of workers. It had the effect of nullifying a decision of the court. The human right affected was article 11 of the Chapter 11, which provides that co-operatives, trade unions and all social-economic organizations are entitled to participate in various management and decision-making processes of the State. The validity of the Act was challenged on the ground that the Trade Union Congress did not participate in any discussion in any stage of the Bill. It was argued on behalf of the State that the Directive Principles mentioned in Chapter 11 are not justiciable. The Court held, with few exceptions, that they are justiciable. Soon after the decision was given an Act of 1988 amended the then article 39 to say that the aforesaid Directive Principles of Chapter 11 are not enforceable unless it is so provided by legislation. No law, except one dealing with children born out of wedlock, has been passed to say that they are enforceable. Article 39 was further repealed and replaced by another provision by an Act of 2003 which says, inter alia, that 'Parliament may provide for any of those principles to be enforceable in any court or tribunal.' Article 11 was also repealed, the right of trade union to be consulted was taken away, but it was later restored as a fundamental right in article 149C.
6 The fundamental rights and freedoms as enshrined in Part 2 Title 1 of the Constitution do not encompass all the human rights of the Universal Declaration and the elaborate provisions of the two covenants, although some of them in the ICESCR have been elevated as fundamental rights and freedoms.
The Human Rights Commission, not yet established, one of its many functions, is to monitor the observance of the international treaties, mentioned in the Fourth Schedule of the Constitution, including the ICCPC and ICESCR, with power to institute legal proceedings on behalf of a person who alleges that any of the human rights embodied in the aforesaid international treaties has been contravened in relation to him. But it is provided in article 154A, that the human rights of the aforesaid treaties are 'enforceable in the manner hereinafter prescribed.' It is prescribed that 'the State shall, having regard to the socio-cultural level of development of the society, take reasonable legislative and other measures within its available resources to achieve the progressive realization of the rights' enshrined in those international treaties and, that a person who alleges that any of the rights under the aforesaid treaties has been contravened in relation to him without prejudice to any other action lawfully available may apply to the Human Rights Commission in such manner as the Commission may prescribe for redress. The provisions of article 154A are similar to the provisions in article 38. By these two articles the human rights under Chapter 11 and of the international treaties are regarded as 'programmed rights,' the implementation of which needs to be programmed according to the available resources, policies and priorities of the State for them to be realized and make their exercise possible. It is for these reasons that the human rights enshrined in Chapter 11 and of the international treaties aforesaid are unenforceable until the State has provided for their implementation by legislation and the Human Rights Commission has prescribed the manner a person may apply to it for redress.
The Human Rights Commission therefore, shall not institute legal proceedings on behalf of a citizen whose rights, under the aforesaid international treaties, have been breached in relation to him, until the State has taken 'reasonable legislative and other measures within its available resources to achieve the progressive realization of the rights' and the Commission has prescribed the manner a person may apply to it for redress.
The fragile powers of the Ombudsman have not been affected by the recent legislation passed by Parliament.