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Humane Governance: Imperative for Human Rights

By: Chief Justice (Retd.) J.S.Verma
Venue: Bar Council of Malaysia, Kuala Lumpur, Malaysia
Saturday, 29 Oct, 2011
“Humane Governance: Imperative for Human Rights”: Inaugural Raja Aziz Addruse Memorial Lecture by Chief Justice (Retd) J S Verma (29 Oct 2011)      
Tuesday, 01 November 2011 03:43pm

Introduction

Raja Abdul Aziz bin Raja Addruse was one of the most respected eminent lawyers, a champion of human rights and advocate for humane governance. He was a member of the Malaysian Society of Human Rights (HAKAM) and was recipient of the Lifetime Professional Integrity Award in 2010.  He was a great human rights defender and appeared in many high-profile human rights and rule of law cases. He passed away in July 2011 after an illustrious career at the Bar at age 75.  The Malaysian Bar Council, which he chaired thrice in three decades, paying tribute to his memory described him as the ‘eminence grise’ or the ‘grey eminence’ of the Bar for his sterling role as its adviser.  In recognition of his international reputation he was made a Commissioner of the International Commission of Jurists.

Raja Aziz believed in the true meaning of the ‘rule of law’ and subscribed to it in a joint statement dated 15 September 1998 issued with other human rights activists at a critical juncture, which said:
The rule of law and the principles of natural justice are the mainstay of a progressive and civilized society. These two elements together ensure that the people’s rights are not trampled upon and that everyone shall be treated equally before the law. The principles of natural justice dictate that everyone shall be entitled to due process of the law, that is, no person shall be deprived of his rights and privileges nor be subject to condemnation or punishment until and unless he has been given an opportunity to defend himself to the full extent of the law and to be heard by a fair and impartial tribunal. …The rule of law has been contrasted with arbitrariness. Underlying the rule of law is an assumption of justice and fairness that should accompany its application….There is need for all freedom-loving Malaysians to understand and appreciate the importance of the rule of law and to be vigilant that it prevails in this country. Without the rule of law there can be no justice.

The emphasis was that respect for the basic human rights is the essence of the rule of law which is an essential component of good governance.

The Malaysian judicial crisis of 1988 occurred during the second term of Raja Aziz as the chair of the Bar Council when the Lord President Tun Salleh Abas and two Supreme Court judges were dismissed. Raja Aziz perceived the action to be contrary to the rule of law and unjust, and, therefore, he represented the Lord President before the Inquiry Tribunal.  The restoration of the honour of the Lord President and the other two judges during his lifetime must have vindicated Raja Aziz’s firm belief in governance by the rule of law.  I, having chaired the Panel constituted in 2008 by the Malaysian Bar Council to review the adverse findings of the two Inquiry Tribunals against the judges, which held the Tribunal’s findings untenable, deem it a privilege to be invited to deliver this lecture in his memory.

I am sure, the Malaysian Bar, as also the Bar in all democratic polities would continue to draw inspiration from the life and contribution of Raja Aziz to the strengthening of the rule of law and judicial independence that are of essence for the protection of human rights through humane governance.

Human Rights

The concept of human rights is based on the dignity of the individual as equal member of the human family eschewing discrimination on any ground.  The UN Charter links protection of human rights to world peace and follows it with the UDHR and its elaboration in the various international Covenants.  In short, human dignity is the quintessence of human rights.  The basic concept of equality is ingrained in human dignity, which encapsulates not merely the civil and political rights but also the economic, social and cultural rights. It is well recognized that human rights are universal, interdependent, indivisible and inalienable (Vienna Declaration, 1993).  It is also settled that certain rights e.g. ‘right to life’ are non-derogable in all circumstances. Suspension of even the derogable rights is governed by the principle of ‘necessity’ and ‘proportionality’.

Humane Governance: Meaning

The essence of governance is the ability to operate under the ‘rule of law’.  The characteristics of ‘good governance’ are: ‘Inclusive democracy’ governed by the ‘rule of law’ controlling ‘corruption’; and it being ‘transparent’ and ‘accountable’ to the people from whom it derives the authority to govern.  Democracy to be ‘inclusive’ requires participation of all the sectors in governance.

Rule of law is the modality which synthesizes ‘law’ and ‘liberty’ in a manner that the ‘law’ does not become tyranny and the ‘liberty’ does not become ‘licence’: Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.  The core values of the Indian Constitution indicated in its Preamble are: ‘dignity of the individual’ and ‘unity and integrity of the Nation’.  The stated objectives of Justice, Liberty, Equality and Fraternity are to be achieved assuring these core constitutional values.

Good governance requires protection of the civil and political rights of each individual; and the rule of law is the machinery to protect the people’s rights.  In the context of the communal disturbances in Gujarat (2002), the National Human Rights Commission of India spelled out the State responsibility in this behalf, thus:
It is the primary and inescapable responsibility of the State to protect the right to life, liberty, equality and dignity of all of those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence. It is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-State players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights.
(See orders d/- April 01 and May 31, 2002-Annexures in NHRC’s Annual Report of 2002-03).

Thus, the State responsibility is not only to cure but also to prevent violation of human rights threatened from any source within its jurisdiction.

Humane governance is people centric and also owned by the people. It is good governance related with human rights that fulfill all the needs and aspirations of the people.  Mahbub ul Haq introduced the concept of Humane Governance with three components: economic, political and civic having equal importance.  He also wrote ‘gender’ into human development indicators; and he emphasized that gender equality should be an important item in the human rights agenda for the 21st century. The Millennium Development Goals (MDGs) include this aim.

However, the question is: how to transcend to the level of humane governance; and is there one formula of universal application with citizens in different countries having different needs living in different regimes? 

In my view, the answer can be the acceptance of the basic tenets of humane governance according to the international norms derived from the UDHR and the International Covenants.  This is the legitimate demand of the obligation flowing from the membership of the international community in the global village. The stakes are too high in not treating human rights as an indispensable way of life.  A social order accountable to human rights is the same as humane governance.  This is the essence of humane governance.

It is, no doubt, a tall order, but in effect it is the only assurance for a better future of the coming generations.

The MDGs

The Millennium Development Goals spelled out by the world leaders at the World Summit (2000) are: poverty alleviation; universal primary education; gender justice; reduction of child mortality; improvement of maternal health; combating HIV/AIDS and other critical diseases; environmental sustainable development; and a global partnership for development.  Accordingly, targets were set to be achieved by the year 2015, which is near at hand to require scrutiny of the results achieved till now.

The UN Secretary General, Kofi Annan in his UN Day Message (24 Oct 2000) referred to the Millennium Declaration of the world leaders and said:
…They pledged themselves to free their peoples—from the scourge of war, from abject and dehumanizing poverty, and from the threat of living on a polluted planet with few natural resources left. They undertook to promote democracy and the rule of law; to protect children and other vulnerable people; and meet the special needs…And they promised to make the United Nations itself more effective, as an instrument for pursuing all those aims.
These pledges give us hope. But they will change nothing if they are not followed by action…

The agenda for the 21st century is clear, though onerous.  The need is to empower the people and to develop strategies, which aim at development of capabilities of every individual.  The HDI is the modern measure of a nation’s progress and ranking in the global village.  ‘A nation’s ability to convert knowledge into wealth and social good through the process of innovation is going to determine its future’.  ‘Economics of knowledge’, according to R A Mashelkar is the methodology for improving the quality of governance through human development.

Amartya Sen’s welfare economics is a combination of economic theory with philosophy and ethics. He speaks of ‘Development as Freedom’.  To these must be added science and technology in a creative and innovative way to make it ‘economics of knowledge’.  This is the age of nanotechnology.  Humane governance must have this objective.

Gender equality and empowerment of women is a target of the MDGs.  The Human Development Report, 1995 engineered a shift in the debate of gender inequality in the world wherein Mahbub ul Haq was quoted as saying ‘human development, if not engendered, is fatally endangered’.  The women in the State of Kerala in India and those in Sri Lanka provide two of the success stories.

Public health is another essential item of the human development agenda.  The World Health Organization (WHO) declares that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being’, and ‘health is a state of complete physical, mental and social well-being and not merely absence of disease or infirmity’.  The International Covenant on Economic, social and Cultural Rights (ICESCR) also recognizes that ‘the enjoyment of highest attainable standard of health’ is the right of every human being.

The spread of HIV/AIDS is posing a serious threat in the region of South Asia.  Access to critical drugs at affordable cost to every infected person must be assured by the State. International trade and patent regime have to be controlled by global cooperation to achieve the result.  In South Asian countries there is a positive move in this direction.  Poverty, which has to be eradicated, has contributed more to the spread of critical diseases in the region.  Women and the youth are the most vulnerable groups.

Sustainable Development

Global warming and climate change are posing imminent threat to planet Earth and this region is more vulnerable.  The Reports based on studies by the Stern Committee and the UN International Panel on Climate Change (IPCC) warn of the impending danger, but also indicate that the danger can be averted by timely measures.  The preventive action requires stringent policies of good governance and their faithful implementation.

Environment is faced with the twin pressure of population and development.  The need is of sustainable development – a MDG.

Amartya Sen in his ‘The Idea of Justice’ (at pages 249-252) refers to Brundtland’s definition of sustainable development as meeting ‘the needs of the present without compromising the ability of future generations to meet their needs’, and Robert Solow’s formulation of ‘sustainability as the requirement that the next generation must be left with whatever it takes to achieve a standard of living at least as good as our own and to look after their next generation similarly’.  He says:
Development is fundamentally an empowering process, and this power can be used to preserve and enrich the environment, and not only to decimate it. We must not, therefore, think of the environment exclusively in terms of conserving pre-existing natural conditions, since the environment can also include the results of human creation.

He then summarises:
Thus recharacterised, sustainable freedom can be broadened from the formulations proposed by Brundtland and Solow to encompass the preservation, and (when possible) expansion, of substantive freedoms and capabilities of people today ‘without compromising the capability of future generations’ to have similar – or more – freedom.

This meaning of sustainable development by an economist of Asian descent more conversant with the needs of developing nations of our region is more appropriate for us.

The meeting of Experts on Human Rights and the Environment (14-15 Jan 2002) preparatory to the Seminar (16 Jan 2002) at Geneva to assess the progress since the Rio Earth Summit (1992) concluded that the developments indicate close linkage between the protection of human rights and environment in the context of sustainable development, and the synergies developed between these previously considered distinct fields.  The Convention on the Rights of the Child, 1989 (CRC) and the ILO Convention 169 relating to the indigenous and tribal people, include the value of environment in their systems of protection.  The experts recognized the respect for human rights as a pre-condition for sustainable development.

Poverty was identified as a major obstacle to achieving sustainable development.  For this reason, eradication of poverty predominant in the developing countries is the foremost MDG.

In the preparation for the World Summit on Sustainable Development (WSSD), on 6 Feb 2002 Shashi Tharoor (then in the UN) said in a panel discussion that sustainable development was at the very core of humanity’s value system – “how to balance the need for world economic growth with concerns of social justice and environmental protection…its agenda is vast, and covers issues as diverse as ozone depletion, child labour and socially responsible investing. The new catch-all term ‘globalization’ is also a part of sustainable equation”.

This reflects the magnitude of the task of achieving the MDGs aimed at by the world leaders.  In the 21st century the economic challenge on the environmental issue is: how long can the State sustain in meeting the growing expectations of the growing numbers within the limited and diminishing natural resources in a sustainable manner? 

The balanced objective of humane governance appears to be the feasible answer!

A safe and conducive environment is undoubtedly human rights imperative.  The environmental issues are mainly two: negative impact of the development process; and the impact of poverty and under-development.  Improperly planned development causes greater deprivation to those directly affected by the project.  The need is to assess the social realities and to protect their interests.  These are issues of governance.

We have to realize that the modern lifestyle with growing consumerism is contributing largely to global warming and climate change.  The developing nations are the most adversely affected.  It is affecting agriculture and the crops.  Tsunamis and other natural disasters are evidence of the adverse impact.

A significant warning given by professionals including Nobel Laureates to the citizens of the world, of the potential global catastrophe, can be ignored only at our own peril.  They said:
The time has come for the nations of the world to act. The science is credible and the potential impacts are profound. Prudence and commitment to act responsibly on behalf of the world’s children and all the future generations dictate a prompt and effective response to climate change.

This appeal is a reiteration of the need to respect the ‘doctrine of trust’ and the ‘principle of intergenerational equity’.

Poverty Eradication

Mahatma Gandhi had said: “Poverty is the worst form of violence”. Disparities are more pronounced in South Asia than elsewhere.  The need is of policy interventions by investing in human infrastructure for alleviation of poverty.  While economic growth is necessary, distributive justice is needed to reduce inequalities.  This is the requirement of humane governance.

In the Preface by Ejaz Ghani to ‘The Poor Half Billion in South Asia’ (Oxford University Press, New Delhi, 2010) he says:
Policymakers should primarily invest in people when it comes to lagging regions, and invest in places when it comes to leading regions…The escape from poverty and human misery need not be slow. Not so long ago, Bihar, the poorest state in India, was known for its law and order problems…and low growth. However, with the restoration of law and order, improved governance, increased use of fiscal transfers, and greater market integration and human mobility, Bihar has now started to turn a corner. So can others.
South Asia is at a critical stage of historical transformation and time is of essence. There is no room for complacency. Growing disparities could stifle growth itself, and if not handled well, could undermine the security of development.

This is the foremost MDG.

Economic Policy

The recent global fiscal crisis provided challenges as well as opportunities.  Unless met with the vision of promoting distributive justice by good governance, it is bound to widen the gulf between the rich and the poor.  This may be the opportunity to bridge the gap by policies that reduce global inequities having adverse impact on the already impoverished.

The seeds of global recovery appear to be sprouting with a sense of relief that the worst appears to be over.  Almost a quarter of the global GDP was garnered internationally to rescue the financial institutions.  The target of reducing extreme poverty now appears feasible.  The need for government and regulation to remain consistent has been resuscitated. Innovative economic policies need to be developed and faithfully implemented.  It is a matter of some satisfaction that the South Asian countries have fared better in this respect.

The realization of the above targets depends on good governance transcending to the level of humane governance.

Indian Scene

A brief reference to the Indian polity is apposite in this context.

The Constitution of India envisages a polity which guarantees the ‘fundamental rights’ of the individual in Part III, mandates the principles fundamental in governance as ‘directive principles’ in Part IV to constitute a welfare State, and prescribes the corresponding ‘fundamental duties’ of every citizen in Part IVA, to achieve the objectives of a ‘Sovereign Socialist Secular Democratic Republic’.  The essentials of humane governance are encapsulated in the Indian Constitution.

The directive principle of State policy in Article 48A and the fundamental duty of the citizens in Article 51A(g) are enacted after the Stockholm Conference, 1972 to protect and improve the environment.  These provisions have been judicially interpreted to enlarge the scope of the fundamental right to life under Article 21 to apply the ‘doctrine of trust’ and the ‘principle of intergenerational equity’, and to develop the ‘precautionary principle’ to ‘anticipate, prevent and attack’ the causes of environmental degradation, as well as the ‘polluter pays’ principle based on the doctrine of strict liability in Torts.

The right to life in Article 21 has been judicially interpreted to mean ‘right to life with dignity’ and not mere animal existence.  The right to equality in Article 14 includes the rule of non-arbitrariness.  The mandate to secure a social order for the promotion of welfare of the people, in particular to minimize the inequalities in Article 38; and of distributive justice in Article 39, is fundamental in governance.  This is the core of the constitutional philosophy reflected in the objectives enumerated in the Indian Constitution.

These are some methods to make ‘good governance’ transcend to the level of ‘humane governance’ focusing on human rights and human development which share a common goal.

Conclusion  

Distributive justice is ‘inclusive’ in character and at the core of human development. Humane governance is the vehicle to reach the goal.

Amartya Sen in his ‘The Idea of Justice’ elaborates the concept.  He writes:
It is hard to escape the general conclusion that economic performance, social opportunity, political voice and public reasoning are all deeply interrelated. In those fields in which there has recently been a more determined use of political and social voice, there are considerable signs of change…The issue of gender inequality has produced much more political engagement in recent years, and this has added to political efforts at reducing gender asymmetry in social and economic fields. (at page 350) …There is no automatic guarantee of success by the mere existence of democratic institutions…The success of democracy is not merely a matter of having the most perfect institutional structure that we can think of. It depends inescapably on our actual behaviour patterns and the working of political and social interactions. There is no chance of resting the matter in the ‘safe’ hands of purely institutional virtuosity. The working of democratic institutions, like all other institutions, depends on the activities of human agents in utilizing the opportunities for reasonable realization…  (at page 354)

Amartya Sen has echoed the sentiment of Dr. Rajendra Prasad, Chairman of the Constituent Assembly voiced in the concluding session, thus:
Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend on the men who administer it…

Thus, the form of government in the countries of the region is not decisive of the welfare of its people; it is the quality of the men who administer the country and their vision that would determine its present and the future. A polity governed by the rule of law is the instrument to ensure the desired result. The results achieved so far, and the prospects inspire hope for a bright future. However, the dedicated effort must continue, in spite of a few periodic aberrations.