HUMAN RIGHTS AND COMPARATIVE CONSTITUTIONS = A NON-TRADITIONAL VIEW Never in the history of the world has there been such unity of purpose in promoting the concept of human rights and basic freedoms. From the crumbling walls of Eastern Europe to the small but measured steps in negotiating the dismantling of apartheid, from the Cape to Cairo, New York to Managua, from East Berlin to Burma, there is consensus and unity of purpose about liberty and freedom. So any discussion on "Human Rights and Comparative Constitutions", is entirely appropriate. It is also an acknowledgement of the profound changes now sweeping the world today. ‘This must please human rights activists throughout the world. Indeed, the globilisation of the village which we now call the world has bought home the reality of current events in a most dramatic form. But the euphoria of that glorification must not blind one to the fact that the basic philosophical and political underpinnings of freedom and liberty are not necessarily shared universally. It is to some of these variations that this paper speaks. In a sense then, this paper deals more with the sociology and the politics of the law on human rights than with the letter of the law itself or, put in another way, more with the ethos than with the literalism of the law on Human Rights. The letter of the law on 1. This paper was delivered at a Conference held in Mahwah, New Jersey, U.S.A., June 1990 on “Human Rights & Comparative Constitutions".Human Rights is well documented in various International Instruments on Human Rights, available in a recent UN compilation. Among these are the Slavery Convention (1926), the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Universal Declaration of Human Rights (1948), Declaration of the Rights of the Child (1959) and, more recently, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") (1985, and Declaration on the Right to Development (1986). A discussion of "Human Rights and Comparative Constitutions" must necessarily involve some examination of a trinity of concepts; namely, (1) the nature and content of the rights themselves; (2) the independence of the Judiciary upon which much of the enjoyment of those rights depends; and (3) the role of the legal profession. Issues (1) and (2) above will be touched upon briefly. There seems to be a certain complacency about the apparent universality of the law on Human Rights. America, for example, has been extremely fortunate to have settled its broad national goals from very early and has had a constitution that_has_run_peacefully 7 sr the past_two hundred years. Because of the "broad" agreement as to national goals, American society on the whole is fairly stable and so is its law. True, from time to time, acute 2 Human Rights: A compilation of International Instruments, United Nations, New York 1988. 2challenges have and do face the nation and the law as, for example, questions of abortion, the death penalty, the right to privacy, the plague of aids, affirmative action and minority rights. But the built in structures of the state have been resilient enough to withstand the seismic shocks which reverberate from those dilemmas. So the talk of Human Rights in that societal setting makes eminent sense. But, for the largest majority of the nations of the world and their evolving legal systems, the goals_ofsociety—are far from settled. In fact, some are, still fighting over the basic fundamentals of statehood. (Some of these issues relate to the conflict between church and state, as in Mexico; the system of government which truly reflects the national will, as in Africa; the role that should be ascribed to the armed forces who seem ready to replace elected governments and constitutions; the horrendous effects of uprooting roughly 25 millions people from Africa and elsewhere into slavery; and the traumatic effects of colonialism on these societies. etc. etc.] I submit that the law in these jurisdictions must and is fighting qualitatively an entirely different kind of battle from the law, say in the U.S.A. It must mean then that the assumptions which inform America's legal philosophies are far from present in those other societies. For example, how many persons ever pause to consider why the right to privacy and the right to vote are so dear to America and yet were relatively meaningless to Latin America untilrecently? One wonders again, how many ever pause to consider why African governments have been able to put across the seemingly contradictory notion that there is more democracy in a one party system than there is in the multi-party systems? Again, one wonders how many recognise that "without bread there can be no stable democracy"? By the end of 1989, Africa's foreign debt totalled $143 billion, or rougly 115% of the region's gross domestic product, and 369% of its foreign exchange export earnings! In those set of circumstances, even for the coming generations of unborn children, the talk of universal human rights is a cruel mirage. The basic thesis of this paper then is two-fold. First1y, this paper argues that for las long as society's basic national goals remain unsettled, a comparative lawyer cannot talk of a settled, unified and homogenous system of law. A talk of Human Rights and Comparative Constitutions in a global context without reference to the basic assumptions and values in the developing societies is to adopt a misleading posture. ( seobhaty,|this paper argues that the euphoria on Human Rights is not, in fact, matched by reality in many cases with the result that the gulf between ethos and literalism is wider than is apparent. / J ; > This paper will examine 5 main issues: ‘Firstly, ought Human Rights to be based on Constitutions at all? Q Secondly, what ought to be the proper content of the law onHuman Rights? 4) Thirdly, how can one secure Human Rights in small jurisdictions? Fourthly, how can one secure the enjoyment of Human Rights during violent changes of government? and ©) Fifthly, how does one begin to talk of the human ‘rightness! of the law in societies where the indigenous legal system was forcibly supplanted by the laws of a foreign colonising power? OUGHT HUMAN RIGHTS TO BE BASED ON THE CONSTITUTION: The first heresy which one wishes to scotch is implicit in the theme that the enforcement and protection of human rights must be anchored on a constitution. This is essentially a Euro-Centric and ethnocentric view. /This assumption is patently false when one has regard to the several countries of the developing world that neither have constitutions in place in the conventional sense nor representative regimes. | Indeed, ought the enjoyment of human rights be premised on constitutional guarantees at all? (The united Kingdom, which bestowed a Westminster style constitution on its former English speaking colonies throughout the world, itself has neither a constitution in the conventional sense of the term nor @ constitutionally guaranteed bill of rights./ (This follows logically from the quaint doctrine that the U.K. Parliament - and not its constitution - is supreme and that no Parliament can bind(fhis position is simply anachronistic today especially in the face of binding treaty obligations undertaken voluntarily by ipritain’ and the impact of international Human Rights Conventions. \ jsut British constitutional lawyers still clamour and hanker after the past. (Just as the U.K. has no constitutionally guaranteed Bill lof Righté3, so the present constitution of Ghana promulgated in lg81 by the Provisional National Defence Council (PNDC)® also contains no guaranteed Bill of Rights, but that for entirely different reasons / Ghana today has no guaranteed Bill of Rights despite the fact that the previous constitution of Ghana had very Pickin v. British Railways Board. [1974] AC 765 Ellen Street Estates v. Min. of Health [1934] 1KB 590 For criticism of the doctrine, see Simeon McIntosh, , "Rethinking West Indian Constitution Law", (1987) West\y. Indian Law Journal 69. As applied to West Indian Constitutional Law, Prof. McIntosh says as follows; "The fact remains that, in respect of Commonwealth Caribbean constitutional theory, the question of the United Kingdom Parliament's incapability of abdicating its supremacy; or of Parliament's legal incapability to bind its successors; or of the theoretical impossibility of sovereignty destroying itself, is largely misplaced. (at pp. 72 -73) Later in the article, he writes: "This seeming obsession with preserving the doctrine of parliamentary sovereignty as a central principle of Commonwealth constitutional law practice goes against the grain of logic." (at pp. 93). Eg. EEC Treaty 1957 (cmnd 5179 ~ II, 1972). On the practical difficulties arising from the doctrine of Parliamentary Supremacy, see Wade and Phillips, Constitutional and Administrative Law, 9th Ed., Longman, 1980 at pp 76 -77. Provisional National Defence Council (Establishment) Proclamation, 1981.elaborate provisions on the subject.’ curiously then, (the U.K. and ichana remain unique bedfellows in this context. | But that similarity belies deeply fundamental and differing political and egal philosophies. v |For the U.K., a country of great wealth and long - standing traditions, it is argued that the systen of the common law whereby the judges develop the law on a case by case basis carries within it the seeds of protection for the citizenry in accordance with the tenets of the Rule of taw,.é] (in the case of Ghana, however, a country suffering from some economic malaise and @ fair measure of political instability, it is argued that the fenphasis should be, not so much on Human Rights, as first on economic recovery | (Zhe philosophy of the constitution, therefore, is to speak essentially to economic matters and not directly to ay human rights This latter view stems out of another(philosophy which sees the enjoyment of human rights as something distinct from matters purely economic®, But is that proposition valid in today's world? The answer is obviously "No".-[in today's world, recognition isl given to the fact that the enjoyment of human rights goes beyond the franchise at election time. It encompasses the dignity of man. } And that dignity can only be founded on economic and social The Constitution of the Republic of Ghana, 1979, Ghana Publishing Corporation, Accra, Chapter 6. See A. V. Dicey, Intro: To The sti the Law of the Constitution,10th ED., London: Macmillan. P. N. Bhagwati, "Fundamental Rights In Their Economic, Social and Cultural Context". 7independence. ( In this regard, the Republic of Guyana makes an interesting ase study. Like Ghana in many ways, Guyana is also facing acute conomic malaise and has an electoral system which many would egard as unrepresentative. Be that as it may, Guyana, unlike ichana, not only reproduces the standard text on human rights in its constitution borrowing from countries as diverse as Yugoslavia, igeria and Cuba™ but goes further by providing a separate chapter ff non - justiciable rights, some of which cannot fail to amuse. " For example, S18 provides that land is for social use and must go to the tiller. But one cannot conceive of that clause as sonferring rights of ownership upon even one most diligent Eriler, nor could it excuse or justify a trespass. ee he o — Again 8. 22(1) provides that everyone has a right to work. put that section is certainly not a panacea for Guyana's acute employment problems. Nigeria, also in the throes and clutches lof a military regime, issued forth a constitution in 1979 which ontained standard provisions on human rights.” obviously then, ne has to go beyond economic theory and differences in political nilosophy to explain the absence or otherwise of the Bill of. "See on this, Sir Fred Phillips, West Indian Constitutions: Post-Independence Reform, New York: Oceana Publications, Inc., 1985 A The Constitution of the Co-Operative Republic of Guyana, 1980. He See SS. 30-42 of the Constitution of the Federal Republic of Nigeria, 1979. }ignts in Constitutions. (The mere re-statement or absence of human right's provisions is not really he enjoyment adequate index or a fair measure « ¢ human rights.) It is respectfully submitted that the ethos and jalues of the society have a great deal more to do with it than the ure letter of the law. (But one is prepared to concede that there is some positive advantage in affirming the belief in human rights na constitutional context. It is a telling statement to the , orld about the arrival of the state within the portals of the lobal village which was alluded to earlier. | [a statement in the constitution not only creates the necessary onditions for the realisation of those goals but also provides a jormative basis, sound theoretical ground and an obvious moral laim to moving on to the implementation of those rights.\ The hesis that one is putting across therefore is that wherea: eference to constitutions is valuable, their importance must not ave been used to accommodate a cretinous concubinage of ambition nd_partialities! From Magna Carta through the Universal Declaration of Human ‘ights to the standard bill of rights in most Westminster type onstitutions,[the humanity of the law is meant to stand out and ine.) (Ditterent formulae prevail in constitutions and universal leclarations respecting the bill of rights but their aim is asically the same. |But as Sir Roy Marshall observed in a lecture on the Rule of "Phere is a danger of excessive legalism and of blurred perception. It is not much consolation to tell a poor, hungry, unemployed and homeless man that he has the same rights under the law as the wealthy, well-fed, no need to work, well-housed section of the population. —The scope of the Rule of Law must be wider than the purely legal.and its content should be the subject of searching ye-examination in the context of increasing social awareness and sharpening perceptions of current and prospective social needs". o it is with these universal rights. (These basics rights seem to have sprung from governmental ystems founded in a certain economic, social and cultural context. the Universal Declaration of Human rights, for example, arose out + f the "nightmarish experiences" of Nazism and fascism] The lestern countries that framed the Declaration had ‘developed aterially and economically and there was no need to focus on cial and economic rights, That focus had to await the colonisation process in the 3rd world. As former chief Justice’ hagwati of India observed, /the large masses of people in the/ leveloping countries, suffering from poverty, want and destitution, | lemand "not only freedom to vote but also freedom from hunger and tarvation. It is only if social and economic rights are ensured 13 Sir Roy Marshall, "The Role of the Law in the process of Change" 9th Sir Winston Scott Memorial Lecture delivered in Barbados on 26th November, 1984. as Inaugural Address at the Judiciary Colloquium in Bangalore, 24 - 26 February, 1989 published by the Commonwealth Secretariat, London at p XX11. 10these large masses of people that they will be able to envoy vil and political rights and become equal participants in the jemocratic process", / what realisation spurred on the quest for the evolution of uman rights from a declaration of essentially civil and political ights to one of social and economic rights. Again, former Chief justice Bhagwati says: "There is now greater emphasis in developing countries on social and economic rights than on civil and political | rights. There is unfortunately, today, a misguided controversy in regard to the question,9f choice between civil and political rights on the othér hand and social | and economic rights on the other. I am of the view that | the problem of choice is actually more apparent than real | because in fact the two sets of human rights are so inter-related as to form one single pattern of human rights". The relationship between these categories of rights is o obvious that the International Human Rights Conference in / hran declared in its final proclamation that: { \ "Since human rights and fundamental freedoms are f indivisible the full realisation of civil and { political rights without the enjoyment of economic } social and cultural rights is impossible." oy [Tt is indeed questionable how human freedom and dignity can e promoted and protected at all without realisation of both ategories of human rights./ Whether there is conflict or ntithesis between these two categories of human rights has been nd still remains a matter of international debate but there is no "Fundamental Rights in their Economic, Social and Cultural context," p.62 in ‘Developing Human Rights Jurisprudence’ (The Domestic Application of International Human Rights Norms), Human Rights Unit, Commonwealth Secretariat, Marlborough House, Pall Mall. London SWIY 5HX. a4,ical xeason to perceive this debate as indicating any ncompatibility between these two sets of rights. The apparent ifference stems from two different ideologies, one being the deology of the Western liberal tradition and the.other-being the onmunist ideology. Tt is not necessary to enter into any Recueshen tn coped ta thie eenkcovemer heemaee Jk bee mer been ecognised in the International Covenants that both categories of man rights are extremely important and valuable. / [fhe Western liberal tradition, of course, emphasises the ndividual rights which are largely civil and political rights but he validity and practicability of the Western conception of human ‘ights has been doubted in its application to the developing ountries.| (Fouad Ajami of Princeton University has questioned the completeness of the liberal concept of human rights, | its 1 tulnerability to charges of particularism and self righteousness, nd its incapacities. He argues that there are far too many forns ff deprivations of human rights which are embedded in the ontemporary global context. | It is natural, therefore, that fin view of the chronic and idespread poverty and disparities in the Third World, social and conomic rights should be thought of as being of priority. By ontrast, civil and political rights often seem a luxury and an Yrelevance in the face of stark inequality and starvation. | Yenis explains, for example, why in Latin America where death dtiads used to operate freely, the first and most important right or the common man was the right to life and not so much the right 12Te ee et [his leads one to refer briefly to perhaps the most important jght for developing countries recognised by the General Assembly n 1986 - (ane Right to evetopacnt. [/ * Tag CG is now realised that the right to development is a basic man right without the realisation of which it is not possible to njoy any other human right. | This point was recently emphasised na final report of a conference organised by the Special NGO ommittee on Development in Geneva.'® (ane Declaration establishes he right to development as an inalienable human right with the man person as the central subject of the right.| This is a clear onceptual evolution from the previous instruments. Furthermore, he Declaration provides that all the aspects of the right to levelopmeat set forth in the Declaration are indivisible and endent and this includes expressly civil, political, economic, ‘social and cultural rights. and finally [the text eaffirns the duty of states to cooperate in ensuring development ind in eliminating obstacles to developnent. | : Indeed, this right to development was founded upon the ethos ff want and deprivation in the developing world. But (the ecognition of that right is only the beginning of the road to a tution. For, the cavernous reality today is neatly captured by a g aty / People and the Debt crisis - Challenge for NGOS, (Final Report of a conference organised by the special NGO Committee on Development (Geneva) 27-29 November, 1989) published by the special NGO Committee on Development, Geneva. 13jliam Pfaff" writing in the International Herald Tribune. He ys: (using Sub-Saharan Africa as his example) "sub-Saharan Africa is in terrible condition. The causes are complex, but the result is that most of sub-Saharan Africa has lost control of its own future". William Pfaff concludes, "in fact, if not in name, a new moday, lonialism exists. The World Bank, the IMF, ...and the aid gencies.of the other developed countries, together with the rivate lending institutions, set the terms on which Africa! conomies function, or malfuncti ~/Prime Minister, Michael Manley of Jamaica is equally scathing t n his remarks about the World Bank and the IMF." anley argues that the IMF and World Bank exist to help developing ritten into their respective charter and by-laws, is pushing ountries like his and its CARICOM neighbors further into the debt rap./ With six per cent of all of the foreign currency flowing ey nto Jamaica going to pay those two institutions for loans, the rime Minister quite rightly believes the time has come for some eview of the legal barriers to rescheduling. He argues: "Six per cent of our foreign exchange inflows is a huge slice to take off the top of my (country's) foreign exchange inflows to finance the two most powerful institutions in the world and the two institutions which are supposed to be the ke! development. If you really stop to think abottit, it is really coming close to © Reproduced in the Daily Nation, Barbados of April 30th, 1990, Barbados Sunday Sun, May 13,1990 at p. 12. 14collective insanity for that to be happening." wit how does one get out of this bind? gambia is an interesting case study. Zambia's economy is eavily dependent on copper. As copper prices fell on the world arket and production dropped, Zambia had no choice but to pile up normous international debts. Now some $1.2 billion in arrears to ne World Bank and the IMF and with only 8m people, Zambia has one ff the highest debt per population ratios in the world. But rincipally because of the arrears, the country is not eligible for adly needed capital from either institution. William Pfaff supports his case with a reference to a comment y United Nations Secretary-General Javier Perez de Cuellar to the ffect that there is a right of international interference when "A unique opportunity exists. The Cold war struggle over Africa's ideological orientation is finished. The Soviet Union is. ready to co-operate. "The United Nations needs a serious role to play in today's world". ut is that not wishful thinking? The problem with that expediency is that the United Nations tself needs support. Two of its major development agencies, the forld Health Organisation and UNESCO, are denied the full co- peration of the United States and the United Kingdom, and the ‘oviet Union is a very reluctant participant in aid projects of the nited Nations Development Project. \~ 15what is more, officials of the host country of the anisation, the United states, have been known to express very ospitable statements about the world body. so,/onee again, the gap between theory and practice, between thos and reality remains wide: ] s [But a recent United Nations Development Program (UNDP) Report” gues contrarily that "higher incones do not assure a better life" nd that there is no automatic link between a country's per capita ncome and the well-being and prospects of its people. elicitously put, the Report says that "people cannot be reduced © a single dimension as economic creatures" and that in an age of lemocratic urge, factors like longevity, education, human rights nd political freedoms must be a part of that growth. || The only xample offered in justification of the above in the entire region f South Asia was Sri Lanka which was able to manage a life xpectancy of 71 years and an adult literacy rate of 87% with a per oan pita income of $400. | , — —