The Exchange

Human rights have traditionally been protected in Western “liberal democracies” through legally binding mechanisms, such as Bills of Human Rights, which in turn are interpreted by judges. This short piece examines whether this practice is theoretically or practically justifiable.

Firstly, let us question whether human rights protection, as traditionally conceived, is undemocratic and “constitutionally illegitimate”.

Human rights engage and purportedly conclude societal debates, including the legality of abortion, stem cell research, political advertising, even the outcome of the 2000 US election. These are highly contestable political issues. It can therefore be suggested that human rights are exposed as mere political claims disguised by moral rhetoric expounding the categorical imperative. A positivist solution may be provided through pure political decision-making, whereby all political claims compete on a level playing field to be determined by any range of possible transparent criteria, whether it be efficacy, utility, cost benefit analysis or game theory.

Yet is this conclusion argued on an impoverished conception of democracy and human rights?  An alternate interpretation is plausible. Democracy is not simply raw majoritarianism but is instead a system of governance which is valuable to the extent that it secures democratic values of dignity, equality, solidarity, autonomy and liberty, and is unjustifiable when these values are transgressed.  Human rights embody, and perform the function of protecting, these values in society and thus may legitimately limit majoritarian decision-making.  Procedural democracy (the process of election and political representation) must be distinguished from a deeper substantive democracy. Human rights ensure procedural democracy simpliciter is fused with substantive democratic values.

According to this reasoning when human rights are violated through procedural ‘democratic’ decision-making, human rights must triumph in order to uphold the substantive foundations of democracy itself.

Secondly, even if we accept this highly contested vision of democracy, which organ of state should police human rights and democracy: the courts or Parliament?

Legal constitutionalists regularly cite one of two justifications. The first, focuses on the institutional design of the judiciary, the second upon their expertise and capacity.

Dealing with judicial design first, the courts are described as politically independent due to their a-political appointment procedure, in addition to their security of tenure and salary. This insulates them from the barrage of political pressures faced by Parliament. The courts are therefore seen to uphold human rights against the “tyranny of the majority”, a role which is especially important in public emergency contexts, such as “The War on Terror”, when unpopular, vulnerable minorities are in danger of being sacrificed at the altar of political expediency. Thus far from undermining the courts, their unelected nature makes them prime candidates for rights decision makers.

The second argument has developed largely as a result of the first. Judges are depicted as human rights experts: the connoisseurs of civil liberty. In support of this claim many rights can be historically sourced through examination of judicial precedence, whether this is the development of habeas corpus in guaranteeing liberty, breach of confidence in conceptualizing privacy or fair trial safeguards to prevent miscarriages of justice.

However, does vesting decision making power in the judiciary, not entail a direct power transfer away from the people, which violates the very democratic values we intend to promote? Realizing the goal of equal respect and concern is unjustifiable, argue political constitutionalists, if in the process we forsake democratic values of autonomy and self-governance. Division of democratic substance and process is, resultantly, unsuccessful.

Yet are judges themselves capable protecting rights? They provided legal legitimacy to the internment of the US-Japanese population in Korematsu during WW2, and validated the Northern Ireland internment framework in Lawless v. Ireland. Sadly, this phenomenon is not purely historical and in recent Human Rights Act judgments the courts have denigrated the extra-territorial scope of the HRA in Al-Skeini, ignored the dispossession of the Chagos islanders in Bancoult, and permitted the impostion of house arrest as a civil offense in AF.

This piece does not seek to provide a conclusion and just like a bad trilogy I will leave with the question to be examined in my next note - Are Parliament capable of protecting rights?

In the meantime you are invited to have your say and add a comment below, following the panel debate on Why can’t Parliament protect our liberties against the Executive that was recorded on Saturday 28th February 2009 at The Convention on Modern Liberty , which will be available online soon.