FEATURES

Human Rights and the Rule of Law

Excerpts from the panel discussion convened by the Hong Kong Academy of Law on 24 October 2008 to celebrate the sixtieth anniversary of the Universal Declaration of Human Rights.

The Rule of Law

1 The Law is superior to the government, and it binds the government and all officials to its precepts.

2 The law must respect and preserve the dignity, equality and human rights of all persons. To these ends the Law must establish and guard the constitutional structures necessary to build a free society in which all citizens have a meaningful voice in shaping and enacting the rules that govern them.

3 The Law must devise and maintain systems to advise all persons of their rights, and it must empower them to fulfil just expectations and to seek redress of grievances without fear of penalty or retaliation.

Mr Justice Anthony M Kennedy

Associate Justice of the Supreme Court of the United States of America. Mr Justice Kennedy was appointed to the Supreme Court in 1988 and has a long list of distinguished achievements as a judge, a lecturer and a private practitioner.

It is part of our professional fulfilment, and it is our professional duty, to question at all times whether or not we have the capacity to see the injustice of our own times. When Brown v Board of Education, the landmark case which said that discrimination based on race engaged in by a state is unlawful, was decided by the Supreme Court in 1954, I thought we had seen what the injustice was. I thought we were now a completely free, open, honest, just society - forgetting about women, forgetting about the handicapped. The distinguishing mark of civilisations is that we are blind to the injustice of our own times.

When I came to the Supreme Court I wondered how I could possibly sit on the same court where Marshall, Holmes, Cardozo and Brandeis had sat before. Some time earlier I had been asked to speak at a gathering of Canadian judges to discuss the new Canadian Constitution that was adopted in 1982. We went through the Constitution and the Canadian judges asked me what I thought the provisions meant. Soon I said, 'Wait. How many of you were in the meetings and the conventions that drafted this Constitution?' About two-thirds of them raised their hands. I said to them, 'You wrote it, and you're asking me what it means?' It became clear to me at that point that I may not have the gifts or the talent or the erudition of those great judges, but I have an advantage over them. I have 200-plus years of history to see the folly of some ideas and the wisdom of others. To see how sometimes decent human impulses are really masks for protecting our own self interest.

When we look at new documents, at new formulations of rights and duties, we do so in order to try to gain a new perspective and to see whether or not we are indeed on the path to a truly just society. One of the things we do is search for words to help us see how well we are doing. Had the framers of the US Constitution in 1787 known all the specifics of a decent society they would have written them down. They didn't. So they talked about life, liberty and property. Jefferson in the Declaration of Independence said life, liberty and the pursuit of happiness; happiness meaning that sense of self respect that one gains from doing civic duty.
When we search for words we can look at the Universal Declaration of Human Rights, which now celebrates its sixtieth anniversary. The Declaration makes use of the word 'dignity', and we find that appellate courts around the world are beginning to use the word dignity more often. However, you won't find that word in the US Constitution, or in the Declaration of Independence, or in the European Convention on Human Rights. Part of the reason is that it had a class connotation in its earlier usage: you had dignity if you were a person of elevated status in a community. But the UDHR tried to reverse this by saying that everyone has dignity. This was a brilliant insight.

There are dynamics of constitutionalism at work in the UDHR. It begins, as legal documents often do, with Preambles, which are followed by specific rights. But it is interesting that in the Preface, in between those two sections, there is a statement that all persons have the duty to strive by teaching and education to secure freedom. This is an overarching duty of all citizens and states. In the American lexicon, constitutions apply only to governments; they do not apply to private persons. But the UDHR makes this a duty of all persons. And of course this must be true. Because law is preserved only by teaching. It is transmitted only by teaching. It is understood only by teaching.

Another dynamic is to grant rather few positive rights. The US Constitution is a series of negatives: you shall make no law in respect of free speech; there shall be no unreasonable search and seizures. Suppose I am going down the street in Washington DC on a cold winter day and I see a homeless person on a steam grate trying to keep warm. He says, 'I'm hungry and I'm cold. Does the Constitution give me any right if I'm hungry and cold?' The answer in my legal tradition is no. That man is right: there is no decent society that should not give adequate food, shelter, medical care, education to its people. But it is not in our tradition to put them in the Constitution for one reason: they are not judicially enforceable. If judges decided how much money should be spent on these services you would quickly find that the law provides no precedent, no basis, no source for neutral principles to do that. It is a political judgment.

In a modern era this has become something of a problem. Many countries have drafted new constitutions, and they have sometimes come to us for advice. When their drafts have included such rights, and when we have given the opinion that they are not judicially enforceable, they have replied that the people will not pass the constitution unless the rights are included. Our answer is to put them in a separate section, as an aspiration, as a precatory clause; as something that the legislatures and executive branches must strive for and must be accountable for, but not as something that is judicially enforceable. It is very important that a constitution not over-promise. If it over-promises, it loses the confidence of its people. The framers of the US Constitution were prepared to live that day by each and every promise they made. As I've indicated, they weren't quite sure of the consequences of words like life, liberty, property. But they didn't think they over-promised, and in my view they didn't.

People talk about the rule of law all the time, but they don't bother to define it. In the English language it is not really self-defining. I have suggested three definitions for the rule of law, with a thematic progression. First, the law is binding on the government. The government is bound by the law. Second, the law is just. The law is decent, the law is compassionate. Third, the law is enforceable. It has to be accessible, it has to mean something. Men and women in the community should be able to look at the law not as a threat or an order, but as a promise and as a hope, and as a system which will allow each person to have some role in planning his or her own destiny.

The Hon Mr Justice Stock JA
Justice of Appeal of the Court of Appeal of the High Court of Hong Kong. Mr Justice Stock was formerly Queen's Counsel in Hong Kong and Hong Kong Solicitor-General.

Those of us who live in societies where the common law is entrenched, where there is in fact an independent judiciary, and where basic courtesies and freedoms appear to be extended between man and man, take these things perhaps for granted. There is a need for us as judges and as practitioners and as students, as governmental authorities and as a community at large from time to time not to make assumptions but to stand back, go back to square one and to examine fundamentals; to understand the Ciceronian truism that we must all be slaves to the law in order to be free.

The value of a entrenched written constitution, as opposed to mere reliance on the common law, is that the written constitution, with all the wisdom that judicial determinations bring in construing it over a period of years, is a vehicle that takes one back time and again to these fundamentals and to basic principles. I have a recollection of a submission made before me some years ago when I sat at first instance on a criminal matter, shortly after the enactment of the 1991 Bill of Rights. An advocate said to me that now that we had a Bill of Rights the defendant had a right to a fair trial, which was an astonishing proposition as if somehow the right did not exist before. But it illustrated this fundamental and central point: how the fact of a written instrument like the Bill of Rights and then subsequently the Basic Law, which spelt out fundamental and justiciable human rights in a way that the common law did not do before, served in this jurisdiction to concentrate the mind not just of judges but of others on the importance of the rule of law.

It is as well to remind ourselves that before 1991 there was no legislative concentration upon human rights as a discrete issue, and no specific body of jurisprudence directed at that subject in the sense that has since developed. The assumption, both in terms of policymakers and judges, was that rights were sufficiently safeguarded by the common law and by the multitude of subject-specific statutes enacted by our legislature. That was the position taken by the United Kingdom Government - and Hong Kong - when it had periodically to make reports to the UN Human Rights Committee on its adherence to the International Covenant on Civil and Political Rights. In 1991 we enacted the Hong Kong Bill of Rights Ordinance, which embraced into domestic legislation that Covenant, because under our system of law international instruments are not self-enacting. But the Bill of Rights Ordinance, contrary to some perceptions, was an ordinary piece of domestic legislation. It had no constitutional status. The constitutional instrument that confers justiciable human rights protection in this jurisdiction is the Basic Law, which came into effect in July 1997.

There are various specific articles which provide protection for particular fundamental rights, but the all-embracing provision is Article 39, which in effect provides that any restrictions upon rights and freedoms enjoyed in this jurisdiction shall not contravene the International Covenant as applied to Hong Kong, and importantly that those rights and freedoms shall not be restricted unless 'prescribed by law'. People know that the rule of law is a good thing, and one hears speeches in which the phrase is espoused, but we do not often, and certainly not often enough, pause to ask ourselves what it truly means and what is its true import. It is that phrase, 'prescribed by law', that has engaged our courts with some regularity and has revived, I suggest, in the minds of judges and practitioners and hopefully others, consideration of the true meaning of the rule of law. That is not to suggest that its meaning had eluded the courts before, but I do suggest that since the enactment of the Bill of Rights and the promulgation of the Basic Law those instruments have triggered judicial review in areas and on a scale quite different from the pre-1991 period, and that their promulgation has served also to educate the public at large in the law and about the meaning and the import of the rule of law.

The rule of law is understood in a number of ways, some of them incorrectly. Jennings suggested that some might understand it as a mere synonym for law and order, and that if so understood it is a fundamental misunderstanding. But, more commonly, it is understood as meaning first that no man is above the law; but that is only but one limb. An equally important limb is the limb to which Article 39 expressly directs itself, which is a concentration upon the quality of law, a concentration on legality in the sense of formal detailed laws fixed beforehand and drawn with such a degree of precision as the context reasonably permits, so that, first, the citizen can plan his actions and appreciate his rights with some degree of certainty, but as importantly, so that the people who wield powers and to whom powers are entrusted know the limits of their powers.

The rule of law is the opposite of the rule of discretion or of arbitrariness, and it is most particularly when we come to indentation upon human rights by legislative or administrative action that we necessarily have to address these rule of law fundamentals. In practice, the ultimate question tends not to be whether there is a statute in place which permits an infringement of a right, because almost invariably there is, and in practice the question tends not to be whether there is a permissible societal objective for that infringement, but whether the restriction goes further than is necessary to achieve that objective. It is in this context that the court is most frequently required to address the width of discretion given to the decision maker, which is itself an examination of the quality of the law.

I conclude with this observation: that a proper understanding and application of the rule of law is the bedrock for the effective preservation of rights. It is no good, as one sometimes sees in other, less free societies, to point to the trust that might be placed in the decision maker to have regard generally to the rights of citizens. As was said in a Hong Kong judgment not long ago, it is the law conferring the power, rather than the beneficence or wisdom of the power's donee, which must itself be the guarantor of rights. That is the essence of the rule of law.

Mr Jeffrey Lehman

Chancellor and Founding Dean of the Peking School of Transnational Law. Mr Lehman has been a US Supreme Court clerk, Dean of the University of Michigan Law School, and President of Cornell University.

Justice Kennedy gave a speech in the United States two years ago in which he developed the point that the rule of law embodies substantive as well as procedural requirements. Today I will address how tension between those substantive and procedural dimensions can create a perceived tension between the idea of universal human rights and the rule of law.

It is natural to see the Universal Declaration of Human Rights as an expression of the substantive dimensions of the rule of law. Justice Kennedy has summarised those dimensions as an expectation that law be binding, justice, and accessible. The UDHR might be thought to exemplify an understanding of what it means for laws to be just.
When one looks closely at specific provisions of the UDHR, however, one might wonder about some of its details. For example, Article 24 of the UDHR provides that everyone must have the right to periodic holidays from work with pay. One might legitimately argue that this is a mistake. Suppose a society empowers employers and employees to agree that the employee will receive a higher hourly wage than would be required under law together with the right to take as much unpaid vacation leave as he or she likes. Could not one legitimately claim that such a society is respecting the rule of law's substantive expectations for dignity and human rights?

Such a question might in turn lead one to take note of the rule of law's procedural dimensions - the requirements that laws be of general application, that they reflect the general will of the citizens and that they be explicit. These requirements entail strong expectations about how laws are created. And one cannot help noting that documents such as the UDHR itself fall short of our expectations for how legal rules are created. Such documents are often criticised as being the product of elites rather than of the general will of the people. Sometimes they are even suggested to be imperialist: an attempt to impose one culture's views of the relationship between work and leisure, for example, upon societies that might legitimately make another choice.

How does one respond to the critique that there might be tension between the substantive ambitions for justice reflected in a document such as the UDHR and procedural principles of the rule of law?

I would suggest that the UDHR and similar documents serve several important purposes. First, efforts like the UDHR promote the overall rule of law enterprise because they call for a response. Nations that choose to ignore their dictates must defend their decision. They must say that they have made a choice through a process that is more legitimate, more representative than that which generated the document in the first place, and equally just. Moreover, to the extent that a nation can plausibly claim that its procedures are legitimate, documents such as the UDHR provide a healthy input into that lawmaking process.

In other words, the notion of the rule of law and the notion of universal human rights converge on a test for how lawmakers within a sovereign should behave. The test, I would submit, is the standard set forth by Thomas Jefferson in the American Declaration of Independence, when he referred to 'a decent respect for the opinions of mankind', or humankind as we would say today.

I would further submit that in an age of globalisation, in an age of transnational interdependence, the idea of the nation state remains vital and important, and it must also evolve. It remains vital and important because it is important that there be variation from nation to nation in the interpretation of how universal human rights should be respected. But, at the same time, to be accepted within the twenty-first century community of nations, the legislature or lawmaking body for a country must demonstrate the commitment to the rule of law understood as a combination of procedural and substantive dimensions, and this should also entail the duty and acceptance of the duty to show a decent respect for the opinion of people who live outside the nation in question. That, in turn, should give rise to a duty inside the country to give serious, genuine, open-minded and respectful consideration to the work byproduct of international deliberative communities such as the one that drafted the UDHR.

And so, I would finally submit that this document, which is the object of our discussion and reverence today in celebrating its sixtieth anniversary, is an enormously valuable object lesson, not as a binding document or as a binding expression of what human rights should be, but as an example of the kind of document that should be accepted as input into the legitimate process for implementing the rule of law within a nation.

Mr William S Clarke

Solicitor, member of the Constitutional Affairs Committee of the Law Society of Hong Kong. Mr Clarke is General Editor of Hong Kong Cases and Hong Kong Civil Court Practice, and Honorary Lecturer in the Department of Professional Legal Education, the Faculty of Law, the University of Hong Kong.

The Universal Declaration of Human Rights began as a resolution of the General Assembly of the United Nations, at a time in 1948 when the United Nations consisted of only around four dozen nations as opposed to nearly 200 now. It was not intended to be a legally binding instrument. It was not intended to take effect directly in domestic legal systems. It was an aspirational document setting out what the United Nations hoped humankind would one day achieve.

Over the course of the ensuing decades, however, it became somewhat accepted that state practice in the international scene was treating the UDHR, or at least parts of it, as if they reflected a kind of binding obligation upon countries. We found that in countries as far afield as India, the United States and Canada there were court judgments which referred to the UDHR and considered whether it had any legal effect in the domestic law of their jurisdictions; whether it had somehow transformed from being a merely aspirational document to something which took effect through the means of customary international law, which in common law jurisdictions like Hong Kong can automatically be incorporated into an enforceable rule or right of common law.

As the sixtieth anniversary of the UDHR approached, I reviewed the document to see how relevant it is today and what use it could have in our legal system when we have those other instruments available.

A close look at the UDHR shows that it is in some ways broader and confers in some respects greater rights than the International Covenant on Civil and Political Rights ('ICCPR'). For example, Article 3 of the UDHR declares that 'everyone has the right to life'. This has been interpreted in some places as meaning that capital punishment is an infringement of the UDHR. If you turn to the ICCPR, on the other hand, you will find that it contemplates continuation of the death penalty, and I am sad to say that Paragraph 5, Article 6 of that document says that capital punishment is only prohibited for persons under 18 years of age and pregnant women.

There could, therefore, be some continuing use to the UDHR and the debate on whether it has become wholly or partly part of the customary international law, which can become part of the common law and be recognised in common law jurisdictions, and which moreover on the international level is binding on all states and all countries, so that there could be arguments that those jurisdictions which still carry out the death penalty will perhaps have to look at their situations once again.

Brendan Clift
LexisNexis
E-mail: Brendan.clift@lexisnexis.com

This article was published in the December 2008 issue of Hong Kong Lawyer, the official publication of the Law Society of Hong Kong. It has been adapted for publication in the Singapore Law Gazette with permission.