Tuesday, March 18, 2008
Human Rights and Governance
An article I contributed to the Bar Association Journal 2007 Vol X111 ISBN: 1391-1198
Various developing countries that are quite similar in terms of their natural resources and social structure have shown strikingly different performance in improving the welfare of their people. Why is this? Research suggests that some countries do better than others because they have 'good governance' and a good human rights record. Good governance and human rights are a vital part in ensuring country’s progress with justice & fair play.
140 years ago Daniel Webster had this to say at Justice Story’s funeral :
Justice sir, is the greatest interest of man on earth. It is the ligament which holds civilized beings and nations together. It is the end of civil society. Justice is truth in action and make the legal system in each country viable as an instrument of national fulfillment.
Justinian in the Institutes says:
Justice is the earnest and constant will to render to every man his due. The precepts of the law are these:
To live honourably ; To injure no other man ; To render to every man his due.
Governance is the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights. Good governance accomplishes this in a manner essentially free of abuse and corruption, and with due regard for the rule of law. The true test of "good" governance is the degree to which it delivers on the promise of human rights: civil, cultural, economic, political and social rights. The key question is: are the institutions of governance effectively guaranteeing the right to health, adequate housing, sufficient food, quality education, fair justice and personal security?
COMMISSION ON HUMAN RIGHTS
Concerning governance The Commission on Human Rights has emphasized the following:
Recognizing the need for a closer examination of the role of good governance for the promotion of human rights and the relationship between good governance practices and the promotion and protection of all human rights in all countries,
1. Recognizes that transparent, responsible, accountable and participatory government, responsive to the needs and aspirations of the people, is the foundation on which good governance rests, and that such a foundation is a sine qua non for the promotion of human rights;
2. Emphasizes, in this context, the need to promote partnership approaches to international development cooperation and to ensure that prescriptive approaches to good governance do not impede such cooperation;
3. Requests the United Nations High Commissioner for Human Rights to invite all States to provide practical examples of activities that have been effective in strengthening good governance practices for the promotion of human rights at the national level, including activities in the context of development cooperation between States, for inclusion in a compilation of indicative ideas and practices that could be consulted by the interested States when required;
The Commission also requested the High Commissioner to invite States to provide practical examples of activities that have been effective in promoting good governance, including through development cooperation.
Societies have located the beginnings of human rights in religious documents. The Vedas, the Bible, the Qur'an and the Analects of Confucius are some of the oldest written sources which address questions of people’s duties, rights, and responsibilities.
Several theoretical approaches have been advanced to explain how human rights become part of social expectations. The biological theory , natural law theories and an "interests theory" defense of human rights.
Ultimately, the term "human rights" is often itself an appeal to a transcendent principle, not based on existing legal concepts. The term "humanism" refers to the developing doctrine of such universally applicable values. The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.
VIOLATIONS OF HUMAN RIGHTS
Human rights Violation is abuse of people in a way that it abuses any fundamental human rights. It is a term used when a government violates national or international law related to the protection of human rights.
According to the Universal Declaration of Human Rights, fundamental human rights are violated when, among other things:
* A certain race, creed, or group is denied recognition as a "person". (Articles 2 & 6)
* Men and women are not treated as equal. (Article 2)
* Different racial or religious groups are not treated as equal. (Article 2)
* Life, liberty or security of person are threatened. (Article 3)
* A person is sold as or used as a slave. (Article 4)
* Cruel, inhuman or degrading punishment is used on a person (such as torture or execution). (Article 5) (See also Prisoners' rights)
* Victims of abuse are denied an effective judicial remedy. (Article 8)
* Punishments are dealt arbitrarily or unilaterally, without a proper and fair trial. (Article 11)
* Arbitrary interference into personal, or private lives by agents of the state. (Article 12)
* Citizens are forbidden to leave or return to their country. (Article 13)
* Freedom of speech or religion are denied. (Articles 18 & 19)
* The right to join a trade union is denied. (Article 23)
* Education is denied. (Article 26)
Human rights violations and abuses include those documented by non-governmental organizations such as Amnesty International, Human Rights Watch, World Organisation Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International.
Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their recent human rights reports the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only countries that did not violate at least some human rights significantly
In his Millennium Report, We the peoples, the Secretary-General emphasized that "better governance means greater participation, coupled with accountability. Therefore, the international public domain – including the United Nations – must be opened up further to the participation of the many actors whose contributions are essential to managing the path of globalization … For the United Nations, success in meeting the challenges of globalization ultimately comes down to meeting the needs of peoples. It is in their name that the Charter was written; realizing their aspirations remains our vision for the twenty-first century."
Ancient history is replete with examples of good governance and Kautilya says in his Arthashastra: "In the happiness of his subject likes the king's happiness, in their welfare his welfare. He shall not consider as good only that which pleases him but treat as beneficial to him whatever pleases his subject".
2000 years ago, Tiruvalluvar, in Tamilnadu spelt out in 1330 verses the three purusharthas of existence, dharma, artha and kama. In his chapter on artha, like Kautilya's Arthashastra, he also dealt with the characteristics of a well-run administration or shall we say the ethics of good administration.
Justice M Rama Jois in his Shri Bhau Lecture Series gave a talk entitled
"Reforming our polity on the basis of Dharma". In this talk he has provided valuable insights into the concept of Dharma. This is what he says:
From most ancient times, as a part of Dharma, one of the ideals placed before individuals was that for a higher or greater interest, lower or personal interest should be subordinated.
Idealism is incorporated in a verse in Hitopadesha; It reads "Sub ordinate the interest of an individual for the sake of the family, of the family to sub-serve the interest of the village, of the village in the interest of the state, of all wordly interest in order to attain eternal bliss".
The Arthashastra talks about the principles of governance and lays down rules of administration. It also discusses in detail the role of the king, his duties, rate of taxation, use of espionage, and laws for governing the society. The Indica of Megasthenes, on the other hand, gives a vivid description of the Mauryan society under the rule of Chandragupta. Megasthenes described the glory of the Mauryan capital of Pataliputra. He also talked of the lifestyle in the cities and villages and the prosperity of the Mauryan cities.
Ashoka believed in high ideals, which, according to him, could lead people to be virtuous, and peace loving. This he called Dhamma .His rock edicts and pillar inscriptions propagated the true essence of Dhamma. Ashoka asked the different religious groups (Brahmins, Buddhist and Jain) to live in peace. His lofty ideals also included shunning violence and war, stopping animal sacrifice, respect for elders, respect of slaves by their masters, vegetarianism, etc. Above all, Ashoka wanted peace in his empire.
Ashoka believed that the King should look upon his subjects as a father treats his children. He took care of his subjects in various ways and was responsible for carrying out a lot of welfare activities during his reign like building of roads, planting of trees along these roads, wells, rest houses for travelers, hospitals for the sick, etc. The Dhamma Mahamattas (officers responsible for promoting the policy of Dhamma) looked after these welfare activities across the empire. Ashoka had a friendly relation with his neighbors and sent and received envoys to/from them.
Many United Nations documents have this to say about governance:
The concept of "governance" is not new. It is as old as human civilization. Simply put "governance" means: the process of decision-making and the process by which decisions are implemented (or not implemented). Governance can be used in several contexts such as corporate governance, international governance, national governance and local governance.
Since governance is the process of decision-making and the process by which decisions are implemented, an analysis of governance focuses on the formal and informal actors involved in decision-making and implementing the decisions made and the formal and informal structures that have been set in place to arrive at and implement the decision.
Good governance is achieved under a democratic political system in which the actions of all sectors contribute to the good of society. It is most likely to occur when the government sector has high quality public sector institutions and when the nation has a strong civil society.
Good governance means an institution's activities are transparent and open to public examination.
Good governance has 8 major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.
Participation by both men and women is a key cornerstone of good governance. Participation could be either direct or through legitimate intermediate institutions or representatives.
Rule of law
Good governance requires fair legal frameworks that are enforced impartially. It also requires full protection of human rights, particularly those of minorities. Impartial enforcement of laws requires an independent judiciary and an impartial and incorruptible police force.
Transparency means that decisions taken and their enforcement are done in a manner that follows rules and regulations. It also means that information is freely available and directly accessible to those who will be affected by such .
Good governance requires that institutions and processes try to serve all stakeholders within a reasonable timeframe.
There are several actors and as many view points in a given society. Good governance requires mediation of the different interests in society to reach a broad consensus in society on what is in the best interest of the whole community and how this can be achieved..
Equity and inclusiveness
A society’s well being depends on ensuring that all its members feel that they have a stake in it and do not feel excluded from the mainstream of society.
Effectiveness and efficiency
Good governance means that processes and institutions produce results that meet the needs of society while making the best use of resources at their disposal.
Accountability is a key requirement of good governance. Not only governmental institutions but also the private sector and civil society organizations must be accountable to the public and to their institutional stakeholders. Accountability cannot be enforced without transparency and the rule of law.
GOOD GOVERNANCE AND HUMAN RIGHTS
Good governance and human rights develop together. Outlined below are some key principles of good governance and their link to human rights.
Democratic government and processes
A truly democratic government cannot occur unless individuals have guaranteed civil and political rights.
The primacy of the rule of law
The primacy of the rule of law and an impartial legal system protects the civil rights of all people in relation to their property, personal security and liberty. The legal and judicial system should be independent of the government so that it can serve the interests of its citizens rather than a particular political party.
A strong civil society
Civil society is about people contributing to the governing of their country through their participation in the community. It is difficult to participate if you are poor, unemployed, hungry, homeless and uneducated. People who live under these conditions are being denied their economic, social and cultural rights.
Careful management of the national economy
A government which does not manage its economy well will not have enough resources to guarantee basic human rights. However, if these rights are not met it is difficult to create the accountable and transparent institutions so vital to good governance and to sustainable development.
Good governance is an ideal which is difficult to achieve in its totality. Very few countries and societies have come close to achieving good governance in its totality. However, to ensure sustainable human development, actions must be taken to work towards this ideal with the aim of making it a reality.