The Human Rights Act 1998 - Essay Example

of the of the of the The Human Rights Act 1998 has made judges the ultimate arbiter of the balance to be struck between the individual and the society. This is a retrograde step. The modern constitutional State functions on the very important theory of the separation of powers. As per the provisions of this theory, the Executive, Legislature and Judiciary form three separate and distinct divisions of government. This promotes a system of counter checks and balances, which thwart the abuse of power. The consequence of this theory is that the Judiciary and its components, the individual judges, can discharge their professional responsibilities without being subjected to any inappropriate influence by the Executive, the Legislature or any other source. For justice to be rendered impartially, while at the same time ensuring the protection of human and fundamental rights of the individual, an independent Judiciary is required. The total confidence of the public in the capability of the Judiciary to function in this manner is essential. In order to protect the individual against the abuses of power, the principle of the independence of the Judiciary was formulated. Hence, it is the duty of the judges to apply the law without any bias, further, this entails applying the relevant domestic and international human rights law1. In addition to independent and impartial judges, a strong, impartial and just legal system requires independent and impartial prosecutors with an iron resolution to investigate and bring to justice individuals who have committed crimes against humanity, even if these perpetrators are persons acting in an official capacity. There is a very real danger of a culture of impunity taking hold, which will only serve to widen the gap between the general population and the authorities, if judges and prosecutors do not discharge their functions impartially. Whenever justice is not available, people will explore other avenues to secure the same for themselves and this leads to people taking the law into their own hands. Such a trend results in the promotion of violent outbreaks and deterioration of law and order2. The above discussion can be elaborated upon by considering that one of the basic principles of the English Legal System is the Rule of Law. The English Administrative Law is based entirely on this doctrine. The phrase Rule of Law was derived from the French phrase la principle de legalite, which means a Government based on principles of law and not of men. It was invoked against the authoritarian rule of the Crown. The Rule of Law was propounded by A.V. Dicey, the English Jurisprudent. He defined the Rule of Law as 'Rule of Law means the absolute supremacy of predominance of regular Law as opposed to the influence of arbitrary power and excludes the existence of arbitraryness or prerogative, or even wide discretionary authority on the part of the Government'. Dicey also said that 'English men are ruled by the Law, and by the Law alone, a man with us may be punishable for a breach of the Law, but can be punished for nothing else'. As such, the doctrine of rule of law was developed and brought into prominence in British Legal system by A.V. Dicey. Dicey's exposition of the Rule of Law can be described as the locus classicus conception of this contentious theory. Albeit, one hundred and eighteen years old, all the same it occupies a position central to formalist accounts, epitomizing a viewpoint that is both Whiggish in origin, yet thoroughly modern in application. His ubiquitous slogans are all too familiar: no man is punishable except for a distinct breach of the law; all men are equal before the law and The Constitution is a product of the ordinary law3. Right from the dawn of civilization Humanity had yearned for respect, tolerance and equality. Although societies have in many aspects made great strides in the technological, political, social and economic fields, contemporary grievances have remained unchanged from thousands of years. As a result of continuous efforts to establish human dignity, freedom and justice the Human Rights Act 1998, came into existence. Lord Falconer - The Lord Chancellor of the U.K, has initiated measures to get a new legislation ratified, which would instruct judges as to how they are to interpret the Human Rights Act, so that this interpretation is in consonance with the government's tough new deportation policy. This legislation would compel judges to give the same importance to the security of the state as to the rights of the deportee. It is anticipated that this would result in a discord between ministers and the UK courts which have been in disagreement with the government in respect of the protection of civil liberties. The Lord Chancellor stated that the amended law would take into account the requirements of national security, while upholding the provisions of article 3 of the European Convention on Human Rights. The provisions of this article are that the deportee should be free from the risk of torture or ill-treatment irrespective of whether he is deported or granted asylum4. The foregoing illustrates the Executive's penchant for interfering and restricting the functioning of the Judiciary. This has made the judge an arbiter to maintain the balance between an individual and the society in which that individual lives. In the words of the U.K Parliamentary Joint Committee on Human Rights: Parliament should take a long view, and resist the temptation to grant powers to governments which compromise the rights and liberties of individuals. The situations which may appear to justify the granting of such powers are temporary - the loss of freedom is often permanent5. The sequel is an example of this observation, on the 21st of September 2001, Lotfi Raissi, an Algerian man aged 27, was arrested in England. He was arrested as it was suspected that he was having links with the terrorists who perpetrated the 9/11 US attacks. He was released after a week but rearrested as the US authorities wanted to question him. The contention of the US was that he, as a flight trainer, had trained the September 11 hijackers. The extradition proceedings failed and the presiding judge categorically stated that there was not even a shred of evidence that incriminated Lotfi. However, the Crown Prosecution Service refused to accept this and has kept on insisting that Lotfi was not above suspicion. Lotfi's misfortune was that he fitted a certain profile that the FBI was suspicious about and which it associated with the 9/11 attackers. Even today Lotfi is still suspect and the FBI would like to have him deported so that he could be interrogated and then if found guilty, executed6. This case is a classic example of transgression of Human Rights on the flimsiest of grounds. Though the presiding judge exonerated Lotfi, the prosecution has been insistent that he is guilty. This shows how the Executive is making various efforts to undermine and reduce the authority of the Judiciary. Judicial activism is used to describe the inclination of judges to nullify the work of elected or appointed officials. Judges of this category do not concur with legislators, presidents or governors whilst determining the boundaries of legislative or executive power and instead, believe that they should be allowed to have the final say in what is constitutionally permissible and what is not. If the area of experimentation is the Constitution then such activism is all the more dangerous. To fulfil policy requirements Lawmakers can re enact a statute, which has been misinterpreted by a judge. In order to correct distortions of the constitutional provisions by judges for personal reasons of dislike, recourse has to be taken to either a constitutional amendment or by appointing sufficient numbers of judges who have no qualms about ignoring precedent7. It would be highly inappropriate for Judges to give decisions which stray into the political arena, when the new Human Rights Act comes into effect. Cherie Blair the Prime Minister's wife said that "We don't have elected judges here, for which I am grateful, But that does place a special responsibility on judges not to stray too readily into politics." The Human Rights Act, 1998 enshrines the European Convention on Human Rights in British law and judges will be forced to take increasingly larger decisions in respect of socially and politically sensitive and relevant issues. Ms Booth, a part-time judge, sounded a note of caution when she held that the Judiciary had to realize that the elimination of social injustice was not its prerogative, but that it was the duty of the Legislature. Policy matters with regard to vital issues such as crime, social welfare and tax were the primary responsibility of the legislature. For example it can be stated that the Judiciary is not the right authority to decide what taxes there should be or not be in the Chancellor's Budget. One of the most interesting tests that Judges will have to face will be the necessity to develop a doctrine of judicial restraint, which although, it recognises the role of judges in applying the principles of the convention will all the same give due esteem to those organs of state which are accountable to the people. This new Act would make the task of judges clearer and more proactive as they would have to be explicit about their role in protecting the rights of individuals. Lord Lester of Herne Hill, the Liberal Democrat peer who is regarded as the architect of the Act, contented that judges were the least dangerous part of the Government when the question of protecting individuals and minorities against tyranny and abuse arose. All the same if judges indulged in usurping the role of Parliament or government, "it would be a very dangerous breach since judges are neither elected by the people nor directly accountable to Parliament". Courts though well placed to dispense justice in the cases coming up before them were not competent to create generalised remedies for problems requiring executive or legislative solutions. In such cases, judges should serve to provide a "vital spur to action by government or Parliament, rather than taking over the role of government or Parliament.8" On the basis of the foregoing discussion, it can be concluded that 'It is for Parliament to pass laws, not the judges. It is for the judges to interpret these laws and to develop the common law, not for parliament or the executive and it is also for the courts to ensure that the powers conferred by parliament on the executive and other bodies are neither exceeded nor abused but exercised lawfully9.' Judges should not be subjected to any restrictions or arbitrary controls by the executive. The work environment of judges should be such that they are allowed to work without any coercion or restrictions in respect of the interpretation of the law. Bibliography. Carol Devine, Carol Rae Hansen, Ralph Wilde, Hilary Poole. Human Rights: The Essential Reference. Oryx Press. 1999. H. Victor Cond. A Handbook of International Human Rights Terminology. University of Nebraska Press. 1999. Irwin P. Stotzky. Transition to Democracy in Latin America: The Role of the Judiciary. Westview Press. 1993. Jack Donnely, Universal Human Rights in Theory and Practice. Cornell University Press. Jean - Marc Coicaud, Michael W. Doyle, Anne-Marie Gardner. The Globalization of Human Rights. United Nations University Press. 2003. Jordan J Paust. Human Rights Responsibilities of Private Corporations. Vanderbilt Journal of Transnational Law, Vol. 35, 2002. Richard Gordon, Richard Wilmot - Smith. Human Rights in the United Kingdom. Oxford University Press. 1996. Read More