This is an edited version of a talk given by Dr Arif Bulkan at a Public Commemorative Lecture held on November 21, 2018 by the Ministry of Foreign Affairs in collaboration with the University of Guyana, in commemoration of the 70th anniversary of the Universal Declaration of Human Rights. Dr, Bulkan teaches Constitutional Law, Commonwealth Caribbean Human Rights Law, International Human Rights Law and Law and Legal Systems in the LLB programme at UWI, St. Augustine Campus. In June 2018, he was elected as the first Guyanese to sit on the United Nations Human Rights Committee.
Today is Human Rights Day, marking the date, 70 years ago on December 10, 1948, that The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly. Human Rights have not always had the same legal and normative force as they do today, but the values and standards espoused by this concept have deep roots in the philosophy, culture and religion of almost every major society. Within the last century, however, and in the immediate aftermath of the apocalyptic horrors of the Second World War, human rights protection came to assume a hitherto unprecedented role in the moral and political order of the international community. And the centrepiece of that movement lay in the UDHR.
Although a non-binding declaration, its significance should not be underestimated. It was revolutionary for its time, when states conducted both internal and external relations on the premise of their sovereignty. This is evidenced by such atrocities as trafficking in humans or piracy which flourished openly, and without legal consequences. Now for the first time was an acknowledgement agreed upon that within their borders there were standards which they could not violate – standards which were conceptualised and predicated on the basis of human dignity. This concept of human rights as imposing obligations, which was subscribed to by 48 nations then and now by the majority of the globe, ushered in the end of claims by states that they could do as they pleased to their own citizens.
The UDHR consists of a preamble and 30 articles. Articles 1 and 2 state that all human beings ‘are born equal in dignity and rights’ and are “entitled to enjoy all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. It sets out a wide range of human rights and freedoms to be protected, covering both civil and political rights and freedoms as well as economic, social and cultural rights. The UDHR stipulates that rights may only be limited by law and for the purposes either of respecting the rights and freedoms of others or “meeting the just requirements of morality, public order and the general welfare in a democratic society.”
The UDHR paved the way for two binding covenants, which altogether make up what is sometimes referred to as the ‘International Bill of Rights’ – these are the International Covenants of Civil and Political Rights and of Economic, Social and Cultural Rights in 1966; and all three instruments endorse the entitlement of everyone to these rights and freedoms without distinction of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Since then, a number of other major multilateral treaties have been negotiated under the auspices of the UN to protect certain specific groups such as women, children, migrant workers and persons with disabilities, as well as to lay down prohibitions against racial discrimination, torture and the appalling practice of enforced disappearances. Altogether, this network of conventions represents a significant limitation on the powers of states – they are not simply aspirational documents, but agreements which impose binding obligations. More radically, they confer upon individuals – historically never the subject of international law – rights against the state, in some cases backed by processes and procedures to make claims and seek redress.
The criticism often raised at this point is that all this seems completely at odds at with modern realities. Jeremy Bentham, who is considered to be the father of utilitarianism, famously described the French Declara-tion of the Rights of the Man as ‘nonsense upon stilts.’ That was the same Declaration which influenced numerous other charters, including the UDHR and its successors. Bentham’s critique has been equally enduring. Essentially, Bentham’s argument was that in the absence of a positive framework, rights talk is just that – talk, imaginary rights, poetry perhaps, but certainly not law. Yet, given the brutality and inhumanity of our history (indigenous slaughter, African slavery and Indian indentureship), we in Guyana (and the Caribbean) especially should never underestimate or dismiss the importance of an enforceable regime of rights and freedoms. Indeed, principles of human rights – such as the right to self-determination – lent support to the decolonization movement. And since independence, when bills of rights were included in all Caribbean constitutions, their importance has been steadily growing. A rich body of public law jurisprudence has emerged, demonstrating the potential of fundamental rights not only to protect the rights of individuals but also to hold governments to account and promote democracy. Constitutions have promoted equality (of children born out of wedlock, women, and various marginalised groups), rights of political participation (especially those of assembly and to free speech), liberty rights, rights of the criminally accused, and even protections of private property rights. Thus, whatever the posture of governments or even private citizens, it is far too late in the day for us, as citizens of the world, not to continue our engagement in this regard. Indeed, as pointed out by Godfrey Smith, former Attorney General of Belize and now High Court judge in the Eastern Caribbean Supreme Court, human rights are now the ‘new theology of the modern world’.
Further, since independence we in Guyana have gone even further by extending the existing regime of rights to include key socio-economic rights, establishing a plethora of rights commissions covering women, Indigenous peoples, children and human rights in general, and uniquely by directly incorporating the most important international human rights treaties into our law (article 154A) and mandating courts to have due regard to them (art 39). Increasingly, local and regional courts have been paying attention to these reforms, and in enforcing fundamental rights against unlawful state action have looked to international human rights law. For example, in 2006 Justices de la Bastide and Saunders, one the former and the other the current President of the Caribbean Court of Justice (CCJ), in a joint judgment adverted to the development of processes under international law by which the small person could hold his government to account by bringing a petition before an international body. They noted that with the proliferation of universal standards of human rights, there is ‘a distinct, irreversible tendency towards confluence of domestic and international jurisprudence.’ Closer home, in 2012 in finding that the constitutional rights of a 14-year-old child were violated by the state when police officers burnt his genitals and otherwise tortured him in the course of an investigation, Justice Roxane George (as she then was) had recourse to international standards in determining both procedural and substantive issues. Commenting on articles 39(2) and 154A, Justice George opined that they have ushered in a ‘new dispensation’ in how human rights claims have to be addressed in Guyana. The reality therefore is that the clock cannot be turned back. Having gone through the elaborate processes of enshrining and extending rights, the state is bound to respect and protect them, and in doing so will be held to evolving international standards in their interpretation. In other words, we are more firmly than ever bound up in this movement and cannot close ourselves off to developments elsewhere.
Still, there are obviously many areas where human rights’ enforcement is sorely lacking. A short list would include protections for women, especially against intimate partner violence; rights of political participation in the broadest sense; and the availability of socio-economic rights such as health, education and income security. Further, there are several institutional and systemic failings that are long overdue for correction. The first relates to our domestic textual framework. All the important rights described in our constitution are foreclosed by a drastic savings clause, which excludes them from applying to existing laws. While the CCJ has begun in earnest to limit its scope, these clauses need to be legislatively repealed, for as long as they exist they completely emasculate the fundamental rights guarantees.
The other major institutional reform required is related to implementation and enforcement at all levels of the bureaucracy. This requires a host of interventions, a brief list of which would include strengthening key institutions like the police force, which would not only protect the rights of the criminally accused but would also ensure that victims’ rights are sufficiently and properly vindicated; the operationalisation of the Human Rights Commission set up as part of the 2001 constitutional reforms; and most importantly the strengthening of the judiciary to ensure that all persons have access to justice. It is the most basic truism that rights are meaningless without a remedy, and in this the role of the courts is pre-eminent. Individuals must be able to access the courts and should not have to wait years for their cases to be resolved.
Hand in hand with the institutional framework is that the State needs to invest in the development of a culture across the bureaucracy and state institutions in which respect for human rights is normalised. One way of achieving this is by moving beyond the reactive (through police & judges) and focusing on education, information, and the strengthening of community structures – in other words, initiatives designed to produce shifts in behaviour. The most potent example of this exists in relation to domestic violence, where despite a plethora of laws women of every race, location and economic group in Guyana are in the most precarious and vulnerable position when it comes to safety and security, liable to the most horrific and brutal violence at the hands of men closest to them. This reinforces the point that what is needed are not more laws but initiatives designed to shift cultural attitudes.
Simeon McIntosh, one of the Caribbean’s foremost constitutional scholars, described the bill of rights as the moral core of our constitutions, whose aim he said was to promote ‘the good life’. In many senses he was right. The theory and practice of justiciable human rights can and have provided the tools for holding governments to account and in this way promote more just and equitable societies. Still, protecting human rights is not the work of governments or lawyers alone, but is an ongoing project that imposes obligations on every person. It entails not just treating each other fairly, but encouraging a culture of rejecting silence and complacency in the face of injustice. Through the totalizing efforts of state and individuals the protection of human rights – and through that promoting respect for human dignity and the good life – can indeed become a reality.