Who wants to ratify another convention? Constitutional enforcement of Human Rights: A case for Constitutionalism.
1. Introduction and background
States are the primary entities protecting and enforcing the rights of the individual. In this context a question of critical importance is through which national mechanisms, institutions and procedures states actually enforce and internalise human rights norms? This is primarily done through legislative, executive and judicial procedures. Though most states are part of a uniform international system for human rights enforcement they still display great difference in their respective human rights records at the domestic level.
Of the many means adopted by states for rights implementation at state level constitutional enforcement or rights has gained great importance recently. In Post Communist Central and Eastern Europe over two dozen new constitutions with provisions for rights implementation have been drafted since the early 1990s. Constitutional development has also been feverish in Africa with new constitutions drafted for more than one dozen states in the past fifteen years.
As spelled out above many of the new constitutional projects, including those constitutions which have now been around for some time, have incorporated human rights norms packaged according to their interests and outlooks. The level of success that have been achieved so far in these constitutional projects are as varied ranging from utter failures to very inspirational cases1.
This difference in rights standards is most peculiar in the South Asian region where India, Pakistan and Bangladesh show varied standards of human rights records and increasingly divergent trends in their legal and constitutional practices. The South Asian region though having an overall common historical ethos is variegated with cultural, religious and social diversity. This diversity is also reflected to some extent in the political and constitutional systems which have evolved over the last hundred years in the eight states that comprise the region today.
1.2 Thesis Problem My original ideas on the thesis topic were revised after some discussions with my supervisor. From an original proposal which undertook to explore rights implementation at the national level primarily from a constitutional perspective at the same time enriched with political theory and further infused with perspectives from sociology it has now been trimmed down to a study in the constitutional implementation and protection of rights. Thus leaving me utterly confounded and nearly lost in an area of legal doctrine which is extremely vast and complex. At this stage in the research process I have been able to formulate my problem statement as under:
What should be the ideal constitutional structure required to ensure that rights are protected in a given state. In addition what other associated political principles are necessary as corollaries for the constitutional system to function effectively and ensure the maximum security for basic rights. Further why are some states with all the trappings of a well embellished constitutionl order unable to maintain good humanrights records. Though this formulation of my research problem might suffer for being some what descriptive, at this point in the research process I have not been able to reconceptualise my central idea inorder to produce a completely original work. I hope that that will happen as I progress.
I will assess the risks associated with this project of ‘importing’ a liberal constitutional model on to states whose populations are not culturally, religiously or ethnically homogeneous. I will also try to explain why some of the bills of rights that are incorporated into modern constitutions are not worth the paper they are written on. And of course I will conclude that the compatibility of human rights norms with alternate political systems such as a monarchy, military/benign dictatorship, single party rule or theocracy is very limited in scope and at the very best would yield compromising results
1.3 Assumptions/Suppositions My questions concerning enforcement of human rights at the national level and mainly through constitutional means which finds its basis in constitutional and political theories belonging to the Western liberal stream of thinking is based on a number of assumptions/supposition:
Human rights are best protected through constitutional means by way of entrenched bills of rights.
It is highly improbable that human rights can be secure in non democratic societies.
Constitutionalism holds great potential for securing rights in states and societies of various shades.
Constitutional models can be transplanted and expected to work effectively given that the right conditions are available for the transplant to take root.
Cultural relativism as an argument opposing constitutionalism is not valid since modern states can not operate without formal constitutions.
1.4 Research questions
Here I have a list of additional questions which, some of which I might need discard as I progress with my project, are at the moment crucial for laying the basis for the thesis and a core forming a skeletal structure for the project. These are:
Is there a real and significant difference between ‘constitutional rights’ as they are enshrined in bills of rights and international human rights as enumerated in various international conventions?
-Is the normative basis for the rights as packaged nationally and internationally the same?
-Do national courts construct constitutional rights2 differently in their adjudication than the construction offered by the international human rights system?
Considering that under international law states implement human rights on the basis of the principle of ‘subsidiary’ what could possibly be the effect of contradiction between judgments of national courts and interpretation of rights under international human rights system?
What could possibly be the ideal model for a constitutional system for rights enforcement considering that constitutional structures vary from state to state and a search for ‘the’ most superior constitutional system might prove to be futile one?
Can rights be secure under non democratic and non liberal political arrangements or in other words what is the relationship between democracy and human rights?
What scope do human rights have under a constitutional system based on liberal Constitutionalism?
Where civil society remains weak and repressed in many countries, should reformers put liberal constitutionalism low on their priorities?3
How effective is the practice of ‘constitutional borrowing’ or ‘copying’ or ‘transplanting’ particularly in the case of states where the conditions are at variance with the state from where it originates?
Is it possible to have constitutionalism without a written constitution?
What is the relationship between ‘democratic theory’4 and ‘constitutionalism’ and do they compliment each other and what is the nature of the strains and tensions between the two?
Could ‘constitutional democracy’ be an ideal form of system combining a participatory political process with institutional restraints?
What should be the system for authoritative interpretation of the basic law
1.5 Scope and purpose of this study As stated above the thesis statement tries to grapple with a fairly broad theme on the theoretical level, however to make the project manageable the research will focus mainly on the constitutional developments in the South Asian region and there in on Pakistan and Indian as two case studies. There are various reasons why have chosen the two countries and relegated for the time being two major constitutional development cases of Post Communist Russia and Post Colonial Africa. This choice has been motivated by three reasons. First, I have a fairly reasonable knowledge about the constitutional and legal systems of the two countries. Second, both the countries have a more or less common legal and political background with numerous similarities. Finally, both the cases countries have over the course of fifty years developed very distinct bodies of constitutional jurisprudence and practices especially concerning safeguarding constitutional rights.
The primary focus for the study will be on the constitutional theory while on the periphery I will consideration the over all social, economic and political environment in which both the constitutional systems developed and took root.
2. Background to the problem
2.1Constitutional and political legacies of the two states
India and Pakistan emerged as independent states in 1947 as a consequence of the portioning of India by the British. Prior to independence the British India was ruled from Westminster, through a Viceroy and his council who represented the Crown, with no or little consent of the subjects. However towards the years preceding the partition of India legislative reforms5 were introduced which allowed native Indians to participate, though in a limited way, in the legislative and executive affairs of the government.
The British Empire which was the supreme power ruling over India had been built on the vestiges of the once great muslim Mughal Empire. The population of the vast British Empire comprised of two major and distinct religious groups Hindus and Muslims. The British brought with them their Common law system however they allowed the different religious groups to practice their personal laws. Over the course of years the two groups had developed separate political and social aspirations and skills. These were also transmitted to the two independent states of India and Pakistan in 1947.
2.2 Constitution making experiences in the two states
The state of India was able to draft one of the longest constitutions6 in the world in 1949 in just two year after independence. A chapter with a list of basic rights called ‘Fundamental Rights’7 was added with a substantive content which one could find in most bills of rights. The fundamental rights are guaranteed against infringement through a right to under which an aggrieved person may petition the Supreme Court directly. 8
Over the years the Indian Supreme Court has developed a comprehensive body of jurisprudence which securing rights for people against an abusive government and upholding the spirit of the constitution. In one of its most well known judgements9 the Supreme Court placed the basic structure of the constitution beyond the power of amendment.10 The Indian Supreme Court has over the course of years given numerous judgements protecting the various fundamental rights that are available to under the constitutional provisions of fundamental rights.
But the court has done this in a creative way. Through its judgements it has preserved the supremacy of the constitution and ensured that in the rule of law is maintained under the Indian legal system. For instance judicial review of state legislation and action is a key of principle of an order based on constitutionalism. The Supreme Court has safeguarded this element of the constitutional mechanism from being amended and taken away.11 In addition in landmark cases like Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 there has been a concomitant expansion of the fundamental rights expectations so that the right to life and liberty includes amongst other, the right to livelihood, environment and education.12But over and above this the Indian polity was led under a strong commitment for democratic norms which were at no time in the history of the state disrupted.
In contrast to the first constituent assembly of Pakistan right from the start got embroiled in a series of divisive disagreements over formulas of power sharing, ethnic and linguistic issues and religion. For nine years the state did not have a constitution and was provisionally being ruled under the Government of India Act, 1935 which was suitably modified. After a series of crises the first constitution was drafted in 1956. However it did not last for long and a military dictator abrogated it. Another one was drafted in 1962 that too was scrapped. Finally in 1973 the last and constitution was hammered out much on the lines of the Indian one with a more or less similar structure in terms of fundamental rights content, provisions for the supremacy of the constitution and provisions for judicial review. The Supreme Court in Pakistan has followed a careful and conservative course. When faced with cases concerning abrogation of the constitution and dismissal of democratically elected governments by military dictators it has in most instances legitimised military intervention.13 The court instead of upholding the supremacy of the constitution has undermined it in its jurisprudence and allowed for the usurpation of the supreme law of the land. In these circumstances protection of enshrined fundamental is imperilled and the court desists in many cases to check and nullify governmental action where the government has made it clear that it court rule in its favour.14 This trend caused severe damage to the democratic political process in the country. It does strike one as why and how two countries with more or less similar political and legal heritage could go on such divergent paths.
2.3 Constitutionalism as a tool for rights enforcement
In the case of India and Pakistan and India despite there being many similarities between the two systems the path that the two polities followed has very little in common. By this I do not mean that that India as a state has achieved its highest level of rights realisation.15The crucial difference is that they Indian state has adopted a particular constitutional system which sets apart from its neighbours and allows it to construct a state system sensitive to the rights of its people.
This system of Constitutionalism in my view is possibly the ideal system one can advocate for when we are confronted with questions of enforcing rights in states of various shades. The term Constitutionalism has been defined authoritatively any where, however a common understating in legal scholars does obtain about how the idea is understood. Louis Henkin has given a basic list for the contents of constitutionalism which are:
As a theory of constitutional systems it holds great value for securing rights in at the national level. It might appear that the this model is a straight lift from the liberal Western tradition and amounts to ‘borrowing’ and one criticism could be that it might be ‘culturally’ in appropriate. But instances of its success are numerous some of which are in the post World War II period in the case of Japan and Germany. Both of these states have over the years developed into functional constitutional states.
The real strength of the system of the ‘entrenched’ bills of rights and the associated concept of ‘judicial review’ of legislative and executive action. Entrenched or written bills of writes encoded into a constitution ensure that these are less prone to violation since they constitution is a robust and superior instrument on the legal landscape. These concepts will be explained in detail in the presentation based on this paper.
3. Some thoughts on Methodology The proposal will be put to the test against the arguments of the relativists such as Abdullah An-Na’im ‘….In essence, constitutions represent the legal expression of underlying principles and norms and values regarding the incidence, exercise, sharing and transfer of political power which are accepted and practiced by the population at large. For better or worse, constitutions and constitutionalism should therefore be the product of the culture of the particular society.’ He himself notes that the modern nation state now a political reality and it can not function without a constitution. As noted above of primary importance will be studies of the Indian and Pakistani constitutional history. On a secondary level for reasons of comparison I will also make very basic studies of the constitutional transformation experiences in post colonial Africa/Asia and post communist Central and Eastern Europe which will enable us to understand why some states have succeeded reasonably well in internalising and enforcing human rights norms where others have failed miserably. A comparative analysis will be made of the impact and effects of the various bills of rights, on many occasions inspired by international human rights conventions, which today form part of the liberal constitutions of a majority of these states and the role played by the state judicial machinery in their enforcement.
Critical to the research will the interpretations of the constitutional provisions made by the judicial machinery which will be researched in detail in relation to enforcement of human rights. The cases will be analysed through detailed study of the judicial decisions of the higher/constitutional courts of the countries while adjudicating cases involving infringements of basic human rights.
The role of the judiciary mainly the higher/constitutional courts will be assessed in relation to the enforcement of the fundamental rights guaranteed in rights bills. The research will explain how an effective judicial mechanism can secure rights in the face of infringements emanating from the state organs or the society in general. An interesting aspect of the research will be making sense of the fact that despite having common political and constitutional heritage the South Asian states are today on very different levels of rights enforcement. These realities take the air out of the arguments for ratification of human rights treaties with out giving a serious consideration to the associated notions of constitutionalism, democratic governance and rule of law without which rights enforcement have no hope.
In addition the research will also rely on constitutional theories about the basic concepts of bills of rights, judicial review and constitutional transplantation.
4. Applicable Human Rights Standards I will also make an appraisal of the international human rights standards as enshrined in the UDHR, ICCPR and CESCR. A comparative study of the norms as they are understood in the constitutions of the study cases and as they are understood on the international level will also be made. The relevant provision such as the right to life, liberty and various freedoms under the international system will be studied in juxtaposition with the relevant constitutional provisions in the national systems.
5. Preliminary Conclusions At this point in time I can not make a conclusion as to what will be the real outcome of the study. At this point I can only expect some problems in grappling with the rather broad scope of the theoretical breadth of the thesis which is at the same time essential for dealing with my thesis. This issue will of course be resolved in the next six months which will be an opportunity in which to clearly specify my problem and make a more comprehensive plan of research.
Literature review and preliminary Bibliography Books: SUNSTEIN, CASS R. Designing Democracy: What Constitutions Do? Oxford: Oxford University Press (first edition 2001).
LOVELAND, IAN.Constitutional Law: A Critical Introduction. London: Butterworths (second edition 2000).
HENKIN & ROSENTHAL (eds.). Constitutionalism and Rights: The influence of the United States Constitution Abroad. New York: Columbia University Press (first edition 1990).
SMITH, EIVIND (ed.). Constitutional Justice under Old Constitutions. Hague: Kluwer Law International (first edition 1995).
GREENBERG, KATZ, OLIVIERO, WHEATLEY (eds.). Constitutionalism and Democracy: Transitions in the Contemporary World. Oxford: Oxford University Press (first edition 1993).
GONENG, LEVENT. Prospects for Constitutionalism in Post Communist Countries. Hague: Martinus Nijhoff Publishers (first edition 2002).
MARKS, DIAMOND, Reexamining Democracy: Essays in Honour of Seymour Martin Lipset. London: Sage Publications, 1992.
COPP, HAMPTON & ROEMER. The Idea of Democracy. Cambridge: Cambridge University Press,
RAWLS, JOHN. Political Liberalism, New York: Columbia University Press 2005.
HUNTINGTON, SAMUEL P. The Third Wave: Democratization in the Late Twentieth Century. London: University of Oklahoma Press 1991.
HELD, DAVID. Models of Democracy. California: Stanford University Press 1987.
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ORUCU, ESIN. Judicial Comparativism in Human Rights Cases. London: The U.K. Committee of Comparative Law 2003.
GIBNEY & FRANKOWSKI (eds.). Judicial Protection of Human Rights: Myth or Reality. London: Praeger 1999.
HUSCROFT & RISHWORTH. Litigating Rights: Perspective from Domestic and International Law. Oxford: Hart Publishing 2002.
SMITH, PENNY. Making Rights Work. Aldershot: Ashgate, Dartmouth 1999.
O’DONNELL, SCHMITTER & WHITEHEAD. Transitions from Authoritarian Rule. Baltimore: John Hopkins University Press 1988.
THE NORWEGIAN ACADEMY OF SCIENCE AND LETTERS. The Role of the Constititution in a Changing Society, 1991.
BAILYN, BERNARD. To Begin the World Anew: The Genius and Ambiguities of the American Founders. New York: Alfred K. Knopf (2003).
ALSTON, PHILIP. Promoting Human Rights Through Bills of Tights: Comparative Perspectives. Oxford: Oxford University Press 1999.
FEREJOHN, JOHN (et al., eds). Constitutional Culture and Democratic Rule.
Cambridge; New York: Cambridge University Press, 2001.
ALEXY, ROBERT. A Theory of Constitutional Rights. Oxford: Oxford University Press, 2002.
BELZ, HERMAN. A Living Constitution or Fundamental Law? AmericanConstitutionalism in Historic Perspective. Lanham, Maryland: Rowman & Littlefield (1998).
CHEMERINSKY, ERWIN. Constitutional Law: Principles and Policies. New York: Aspen Law & Business, 2002.
SCHWARTZ, HERMAN. The Struggle for Constitutional Justice in Post-Communist Europe.
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FRIEDRICH, CARL J. Constitutional Government and Democracy: Theory and Practice in Europe and America. London: Blaisdell Publishing Company (1968).
JACKSON, VICKI C., (et al. eds). Defining the Field of Comparative Constitutional Law.
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BERGGREN, NICLAS, (et. al., eds). Why Constitutions Matter. New Brunswick, New Jersey: Transaction Publishers (2002).
Journals and law reviews: Electronic Journal of Comparative Law
International Journal of Constitutional Law
Pakistan Legal Decisions
Supreme Court of Pakistan Monthly Review
All India Review
All India Reporter
Civil Law Cases
National Laws: Constitution of India 1949
Constitution of Pakistan 1956
Constitution of Pakistan 1962
Constitution of Pakistan 1973
Provisional Constitution Order No 1 of 1999, Pakistan
Legal framework Order 2001
National Accountability Ordinance 2000
Government of India Act 1935
Government of India Act 1919
Cases: India Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789 Wamam Rao v. Union of India AIR 1981 SC 271 Subhash Sharma v. Union of India AIR 1991 SC 631 S.P. Sampat Kumar v. Union of India AIR 1987 SC 663.
Unnikrishanan v. State of Bihar (1993) 1 SCC 645
Som Prakash v. Union of India AIR (1981) SC 212
Ram Jawayya kapur v. State of Punjab AIR (1955) SC 549
Shehla Zia v. Water and Power Development Authority PLD (1994) SC 693.
Zaheeruddin, 1993 S.C.M.R. at 1758, 1778
Benazir Bhutto v. Federation of Pakistan (1988), Mohammad Nawaz Sharif v. President of Pakistan (1993). Abdul Ghani Khan v. Government of West Pakistan PLD (1986) Asma Jillani v. Government of the Punjab PLD (1972) SC 139 Ardsher Cowsjeejee v. Multiline Associates PLD (1993) Kar 237
1 For instance in Central Europe Poland, Bulgaria and Hungary have had sucessful constitutional transition experieneces.
2 For an exhaustive and completely original discussion on constitutional rights see Robert Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (Oxford, 2002).
3 Alston & Steiner (eds.) International Human Rights in Context: Law, Politics, Morals. (Oxford, 2000).
4 For a detailed discussion see Walter F. Murphy, Constitutions, Constitutionalism and Democracy, in CONSTITUTIONALISMA AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD. Greenberg (et al.) Oxford, 1993.
5 In 1935 the British government gave in to the long standing demands of the Indian people for political and promulgated the Government of India Act, 1935. The act was prepared pursuant to a arduous process of consultations with the Indian people and long debates in the British parliament. It was an exhaustive law which allowed for political rights for the local population.
6 This constitution borrowed heavily from the Government of India Act, 1935 which was in a way repackaged to suit the needs of independent India.
7 Constitution of India, 1949 Article 13-30.
8 Constitution of India 1949, Article 32.
9 Kesavananda v. State of Kerala AIR 1973 SC 1461.
10 Reddy & Dhavan, The Jurisprudence of Human Rights, in Human Rights And Judicial Review: A Comparative Perspective, Beatty, David (ed.) (Martinus Nijhoff, 1994)
11 Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, Wamam Rao v. Union of India AIR 1981 SC 271, Subhash Sharma v. Union of India AIR 1991 SC 631, S.P. Sampat Kumar v. Union of India AIR 1987 SC 663.
12 Supra note 10.
13 Strangely the Supreme Court has given contradictory judgments in cases concerning dismissal of governments by military dictators.Benazir Bhutto v. Federation of Pakistan (1988), Mohammad Nawaz Sharif v. President of Pakistan (1993).
14 Recent cases concern the National Accountability Ordinance, 2000 under which persons suspected of having engaged in corruption can be held for a period of 90 days clearly violating the constitutional norms. The court has not nullified this law yet.
15 Despite all the efforts of the state people in India still suffer discrimination on caste, sex, religion, poverty ruins millions of lives and human rights abuses by state agents are still very common.