This post is a summary of three articles. The first was published at http://unchronicle.un.org/article/rule-law-and-democracy-addressing-gap-between-policies. The second with the title, "the role of states" at http://www.humanrights.is/the-humarightsproject/humanrightscasesandmaterials. The third with the title above at
http://hrlc.org.au/files/ZKV8T4CNIH/Brennan%20%20Constitution%20Good%20Government%20and%20Human%20Rights.doc.
http://hrlc.org.au/files/ZKV8T4CNIH/Brennan%20%20Constitution%20Good%20Government%20and%20Human%20Rights.doc.
The Declaration adopted in 2012 by the U.N. General Assembly reaffirmed that "human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the U.N." The rule of law is fundamental in advancing democracy. One must emphasize its fundamental role in protecting rights and advancing inclusiveness, in this way framing the protecting of rights within the broader discourse on human development. When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between "rule of law", whereby law is an instrument of government and government is considered above the law, and "rule of law", which implies to everyone, including the government. Essentially, constitutional limits on power, a key feature of democracy, require adherence to constitutional law. The nexus is strong whenever the rule of law is conceived in its relationship with substantive outcomes, like justice and democratic governance. This distinction is often characterized by resorting to the opposition between "thin" and "thick" conceptions of the rule of law. A "thick" definition delineates positively the rule of law as incorporating such elements as a constitution, an effective electoral system, and a strong civil society. A principle of governance in which all persons, institutions and entities, public and private, including the state itself are accountable to international human rights norms and standards. A pratical example of the importance of the rule of law for democracy building is the fact that is a fundamental principle embraced in most modern democracies. Constitutions contain the fundamental supreme law of the state and dictates the enforcement of those principles above all other laws. Constitutions also preserve values by making the process of amendment burdensome. Thus, an independent and properly functioning judiciary is a prerequisite for a legal system, the right to a fair hearing. During negotiations on the General Assembly`s Declaration on the Rule of Law, some members states referred to the need for the international community to assist and support countries undergoing democratization as they face special challenges in addressing legacies of human rights violations during their transitions and in moving towards the democratic governance.
The promotion and protection of human rights by individual states has an internal as well as an external dimension. This chapter discusses the domestic and international actions states can carry out to enhance human rights protection. Internationally, states can raise their voices whenever human rights are violated. States are actively involved in the development of human rights standards, institutions and supervisory mechanisms. They are the first to bring violations to the attention and furthermore, have the capacity to stimulate positive developments with regards to compliance with human rights standards. At the national level, it is imperative that states comply with international standards. It is emphasised that effective domestic protection and the success of international standards ultimately lie in the power of state. The human rights supervisory mechanisms, particularly the European Court, have emphasised this point in establishing that their supervision should be subsidiary to that of domestic systems for the protections of human rights. Furthermore, to comply with human rights obligations, a state must establish foundations for the rule of law in which the following institutions must be guaranteed: 1-A legislative institution, which represents the will of the people, and is chosen by free elections under conditions which ensure free expression of the opinion of the electors in the choice of their representatives. The legislative body should legislate in compliance with human rights commitments. 2- A judiciary that protects the human rights of individuals and groups against arbitrary power and guarantees effective remedies. 3- An executive branch that does not abuse discretionary power and seeks to promote the enjoyment of human rights by all under its jurisdiction.
Constitution, the powers of government and the human rights recognized by the law identify the basic politic/legal structures affecting the wellbeing of the people. We need to consider these structures from time to time to ensure that they facilitate the realization of social aspirations. What are these aspirations? At base, personal freedom - freedom of conscience including freedom of religious, physical freedom, freedom to use and dispose of property, freedom to found a family, freedom of association, freedom of speech, freedom of arbitrary power. Then, so far as the resources of the community allow, each person should have reasonable access to education and an opportunity for employment, together with access to social services required to maintain health and personal dignity and to allow personal development. In recent times there has been a welcome interest in human rights and their legal recognition. Respect for human rights and freedoms stems from, and still largely depends on, the constitutional authority of the courts to vindicate those rights and protect those freedoms. The responsibility does not rest with the courts alone. Respect for human rights is a function of good government in the ordinary exercise of legislative and executive powers. Each of us individually and collectively have an interest in the distribution and control of these powers. The rapid growth of technology in fields that affect human existence (genome engineering, for example), the ecosystem (genetic modifications of plants) and privacy now call for a power to intervene, if necessary, by enacting uniform or co-ordinated laws. The appropriation provisions of the constitution need tightening or the drafting practices amended. The concept of the common good would guide all exercise of government power but in a democratic, materialist society which places on individual benefits, the interests of a majority may be preferred at the expenses of a minority. Policies which appeal to a majority may prevail to the prejudice of the common good. A brake on majoritarian tyranny is provided by raising public consciousness of the importance of human rights. Our common humanity can inspire us to seek a community in which, by respecting human rights, all may live in freedom and dignity. That has long been realized and it has played its part in the development fo some legal rules.
