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. The principles embodied in the Universal Declaration have been transformed into legally binding obligations and protect a wide range of human rights under these two covenants.

Fundamental rights

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 the right to life and personal liberty, from inhuman treatment, slavery and forced labour, from deprivation of property, the protection of freedom of expression and assembly and association, protection from discrimination and many others. These rights operate by themselves, and do not require any legislative or other initiative by the State to bring them into force. 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 remains to be covered under Part 2, Title 1 of the Constitution.

The Yassin and Thomas case

Guyana ratified the ICCPR on February 15, 1977 and acceded to the Optional Protocol on May 10, 1993 under which it accepted the competence of The United Nations Human Rights Committee (Committee), which supervises the implementation of the ICCPR, to consider a complaint.

The first communication to be considered by the Committee from Guyana was that of convicted murderers, Abdool Salim Yassin and Noel 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 did however order that the Advisory Council on the Prerogative of Mercy consider the recommendation of the Committee within 18 days and that the Minister, within 5 days of such consideration, express his own deliberate opinion to the President whether he should exercise any of his powers of the Prerogative of Mercy 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, the equality of women and many others. The rights under this Chapter were further increased to give effect to the recommendations 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. 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 un-ions and all social-economic organisations 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. Soon after the decision was given an Act was passed to amend the then article 39 to provide that the 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 with the right of trade unions to be consulted taken away, but it was later restored as a fundamental right in article 149C.

Human Rights Commission

The Human Rights Commission provided for in the recent amendments to the constitution, though not yet established, has as one of its many functions, to monitor the observance of the international treaties as they relate to the Fourth Schedule of the Constitution.

It also has power to institute legal proceedings on behalf of a person who alleges that any of the human rights in the international treaties has been contravened.

However, article 154A states that in regard to the enforcement of these rights: '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 realisation of the rights' enshrined in these international treaties. A person who alleges that any of the rights under the aforesaid treaties has been contravened in relation to him 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.

It is because of these two articles that the human rights under Chapter 11, as well as those in 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. It is for these reasons that these human rights are unenforceable until the State has provided for their implementation by legislation and the Human Rights Commission has prescribed the manner in which 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.