Individual Rights and the Law - Scots Law - Essay Example

Topic: Individual Rights and the Law - Scots Law The Human Rights Act 1998 will lead to politicisation of the judiciary. Discuss. Introduction This paper seeks to prove the truth or falsity of the proposition that the Human Rights Act 1998 will lead to politicisation of the judiciary. The proposition is addressed basically to the members of the judiciary. It sounds like a criticism against the judges that a law that they will interpret will determine the nature of their work. It us just like saying the song that a singer sings determines the performance of a singer. Terms are defined first and relevant current writings on the matters are analysed to therefore confirm the truth or falsity of the statement. Definitions The Human Rights Act of 1998, as the name suggest addresses a range of issues involving human rights on the lives of the citizens of a certain political community like the United Kingdom. It has therefore its core topic human rights. It necessitates us therefore to define as well human rights. Stanford Encyclopedia of Philosophy defines human rights as international moral and legal norms that aspire to protect all people everywhere from severe political, legal, and social abuses. They are inherently universal and therefore they transcend citizenships or nationalities. Famous of these rights are the right to life, liberty and happiness and their deprivation could not be permitted without due process of law. Unlike other laws human right focuses on the rights rather than on duties of the individuals. Other laws like criminal statutes or civil law legislations do also enumerate certain rights but the tenor of these obligations normally discusses duties, responsibilities and obligation and the consequences of their violations. Human right laws therefore focuses on the individuals as the subject of major consideration in deciding issues. In terms of criminal prosecution, for example, the law seems to treat more favourably the accused rather than the prosecution because it recognizes the rights of the accused to presumption of innocence while not mentioning more emphatically the right of the state to implement its laws. Politicisation of the judiciary seems to imply a judiciary that does not perform its function according to original design. It would give the connotation that judges will not interpret the law on the basis on what is the law but rather on what is popular or how they want it. It could also mean judges acting not as judges but politicians. It could further mean judges lacking judicial independence and holding some unholy alliance with the other branch of government which could be either the executive or the legislative. We could therefore restate the proposition into some like this: The nature of deliberating cases involving rights of the individuals for purposes of passing judgment will cause the judges not to apply the law uniformly and fairly. To validate such assertions let us look into some of the expressions made by various legal writing on the matter. Let us take the case of lecture made by a Canadian judge about human rights and which is a tribute to the 50th anniversary of the Universal Declaration of Human Rights and of the Genocide Convention. (Abella, 1998) Denial of the of the truth of the proposition by a member of a judiciary Justice Abella denies the truthfulness of the proposition by saying: “The courts are not becoming politicised. They are becoming nothing they have not always been, namely, reviewers and interpreters of the rules to which society has proclaimed itself subject—through the legislature. Charters of Rights are flashlights that expose this judicial reality; they are not the instruments of a new judicial norm. The relationship between courts and legislatures in the interpretation of public values has never changed; only the publics interest has. Nothing about the institutional role of the courts has changed with the introduction of charters of rights except the extent to which people notice what it is that courts do. Yet we never called it a "politicised" judiciary in Canada until the advent of the Charter. But all the Charter did was to allow public policy to participate more openly in the policy partnership which courts and legislatures have, in reality, been parties to for centuries.” The experience of what at present called "politicised" judiciary according to Justice Abella has existed even in the 19th century. She used as an example what then British Prime Minister, Lord Salisbury, felt sufficiently moved to rebuke Lord Halsbury as follows for the House of Lords routine declawing of social welfare and labour legislation: "The Judicial Salad requires both legal oil and political vinegar, but disastrous effects will follow if due proportion is not observed." (Abella, 1998) Counter argument: Human Right laws do not politicize but allows court to interpret rights expansively. Disagreeing with use of "politicised" judiciary, she argues instead that the courts just interpret the interpret rights expansively in case of human right laws. She supports her theory saying: “The interpretive judicial function, whether of statute or common law, has always necessarily involved the sifting of normative considerations, not only because laws derive from and operate in a social system and culture of values, but because judges do too. Insofar as the sifting of legal choices is the sifting of policy values, judges, in interpreting law, do consider and always have considered, in addition to logic and precedent, the values or policy implications their legal conclusions represent. All the Charter did was to allow public policy to come out of the judicial closet and participate more openly in the policy partnership which courts and legislatures have, in reality, been parties to for centuries.” (Abella, 1998) Judiciary function different from political function In her defence of the Judiciary and believing that the judiciary has a different function from that of the legislative, she argues that judiciary could protect minority rights because they need not go for what is popular saying: And in response to the argument that it is anti-democratic for unaccountable persons to impose their will on the majority, there is the belief that there should be an institution in society which can independently and fairly, and without fear of consequences, safeguard against what Lord Scarman called the "modern menace of unbridled majority power." Human rights essentially concern the protection of minority rights from arbitrary erosion or violation by the majority. The Legislature, which relies on majority support, cannot be expected routinely to risk political self-destruction by promulgating minority causes; on the other hand, the courts, who do not rely on any constituency, risk nothing in protecting them. What body can better attenuate the impact of majoritarian expectations when they may unfairly circumscribe minority ones, than a body which does not depend for its survival on popularity with the majority? (Abella, 1998) Price of being part of Judiciary She accepts the reality of the challenge because of the unique roll and that is the price of being in the judiciary saying: “This exposes the judiciarys role to controversy—inevitably and unavoidably. Controversy attracts attention. Attention attracts criticism, and the favourite criticism of courts in the enforcement of rights is the suggestion that they have become politicised, when in fact all they have done is their interpretive duty, thereby drawing attention to their assigned power.” She also said: Part of the risk, in fact, may be to reach a conclusion despite the perceived, prevailing public opinions. When we speak of an independent judiciary, we are talking about a judiciary free from precisely this kind of influence. As Lillian Hellman once said: "I will not cut my conscience to fit this years fashions." Whatever evidentiary tool the legislatures use to gauge public acceptance, judges use a totally different measurement of evidentiary relevance and reliability, because the object of their task is totally different. In framing its opinions, the public is not expected to weigh all relevant information, or to be impartial, or to listen to both sides. The same cannot be said of judges. (Abella, 1998) Accountability Remains She also believes that despite the criticism, she still explains of presence of accountability in cases of expansive explanation of rights which was being termed “politicized”. (Abella, 1998) She explains the distinctions as to accountability with the elected officials as follows: “But although judges are not accountable to the public in the same way as are elected officials, this does not mean that they are not accountable. While they may not be accountable to public opinion, they are nonetheless accountable to the public interest for independent decision-making based on discernible principles rooted in integrity. Interpreting justice involves a complex balancing of legal principle and public interest. Performing the task properly may mean controversy and criticism. But better to court controversy than to court irrelevance, and better to court criticism than to court injustice.” (Abella, 1998) Making of law by judges, admitted Justice Abella admitted that judges do make law when she said that it is, with respect, unrealistic to say that judges should not make law, they should only interpret it. She admits that almost every time judges interpret, they make law and, implicitly, weigh competing values. Arguing she said: “Long before we constitutionalised rights in 1981, we had judges saying they were not making law or trespassing on legislative territory or taking values into account when they interpreted statutes or phrases or legal entitlements. But when we consider the following examples, we see how difficult it is to say that those judges were not reaching legal conclusions based on their understanding of, or sympathy or antipathy for, current social values: The judge who in 1873 said "the paramount destiny and mission of women are to fulfil the noble and benign office of wife and mother";… the courts that said in 1949 that sanctity of the contract and restrictive covenants took precedence over the rights of Jews to purchase property; and the court that said in 1939 that freedom of commerce took precedence over the rights of Blacks to be served beer; not to mention the entire history of common law. This was all lawmaking, it was all weighing and applying values and policy, and it was all before we entrenched rights in the constitution.” (Abella, 1998) Justification for making of laws Justice Abella, however, justified “law making” by judges saying that weighing values and taking public policy into account do not impair judicial neutrality or impartiality. She said that pretending we do not take them into account, and refusing to confront our personal views and be open in spite of them, may be the bigger risk to impartiality. (Abella, 1998) Reconciliation between independence of mind with the “law making”. She reconciled independence of mind as judges with judiciary’s “law making” but which she calls weighing values and taking public policy into account saying it is fundamental that judges be free from inappropriate or undue influence, independent in fact and appearance, and intellectually willing and able to hear the evidence and arguments with an open mind. “But neutrality and impartiality” according to Abella, “do not and cannot mean that the judge has no prior conceptions, opinions or sensibilities about societys values. It means only that those preconceptions ought not to close his or her mind to the evidence and arguments presented.” (Abella, 1998) Another Proof of falsity of the proposition In a similar issue involving the adoption of a human right act in Australia, Harley said that the ACT Human Rights Act is known as an interpretative model as it requires courts, as far as it is possible, to read and give effect to legislation in a way which is compatible with convention rights. … It further said that it is not a constitutionally entrenched model as in the USA. Harley said: If the Supreme Court determines that there is an incompatibility between the Human Rights Act and legislation under consideration by it, it can make a declaration of incompatibility. However, such determination is not binding on the parties and has no effect on the validity or operation of the legislation. There is a provision that if human rights principles are raised in argument in a local court such court shall be informed by international human rights standards (s.31). The Act encourages reference to judgments of other national courts and decisions of the UN Human Rights Committee and the European Court of Human Rights. (Harley, 2004) The Act does not create an independent cause of action against a public authority on the ground that conduct is inconsistent with human rights. It also does not create a separate right of action or a new remedy. It merely embeds human rights principles into all existing and future laws and travels with the remedies available. On the other hand, Harley said that the introduction of such human rights legislation would cause parliaments and governments to reassess their approach in areas such as mandatory sentencing, refugee detention and even legislation directed at terrorism. It even said that it could be a way forward for both State and Commonwealth governments to breathe “new life into the relationship between Parliament, government and the judiciary, so that all three are working together to ensure that a culture of respect for human rights becomes embedded across the whole of society.” (Harley, 2004) Confirmation by Lord Woolf, Chief Justice of England and Wales and Lord Phillips, Master of the Rolls John Harley said that in 2003 heard Lord Woolf, Chief Justice of England and Wales and Lord Phillips, Master of the Rolls, speak about the UK Human Rights Act and these men of the judiciary attested to the success of the impact of the legislation and the fact that all of the predictions that it would bog the courts down lead to “chaos, a politicised judiciary, and the inauguration of the rule of lawyers”, according to Lord Chancellor Irvine, have not occurred. (Harley, 2004) Conclusion That the Human Rights Act of 1998 will politicized the judiciary is not true based on testimonies of the member of the judiciary. In one case, Justice Abella explains the statement as labeling and part of the judicial myths. The admission of law making is not necessarily a ‘politicized’ judiciary but a valid exercise of the power of judiciary to protect minority rights and is therefore to shield the minority from the “tyranny of the majority”. Accountability remains with the alleged politicisation but considered value weighing. In another part, at least two Lords confirmed the falsity of labeling and cited reasons for not having seen the truthfulness of the proposition. Part of the reasons includes the fact that the act is not a constitutionally entrenched model as in the USA. If there is determination by Supreme Court as to incompatibility between the Human Rights Act and legislation under consideration by it, such determination is not binding on the parties and has no effect on the validity or operation of the legislation. Could it be thought that the members of the judiciary normally would have to defend their turf? If indeed yes, who would say they are not correct? If they are not correct who do we think should tilt the balance? The other branches of government could always do so by acting not just be mere talking. Bibliography: 1. Abella, Rosalie Silberman, 1998, Annual Oration in Judicial Administration, HUMAN RIGHTS AND THE JUDICIAL ROLE, [www document] URL http://www.aija.org.au/RABELLA.htm 2. Harley, John, 2004, Protecting Human Rights In An Age Of Fear, National Association of Community Legal Centres National Conference, [www document] URL www.naclc.org.au/docs/ Aust%20First%20Bill%20of%20Rights.pdf 3. Stanford Encyclopedia of Philosophy, 2003, [www document] URL http://plato.stanford.edu/entries/rights-human/ Read More