10th Nelson Mandela World Human Rights Moot Court Competition Conference
Permanent Mission of Fiji to Geneva
Nazhat Shameem Khan, Ambassador of Fiji to the UNOG and to Switzerland
Fiji Mission to UNOG
19TH July, 2018
“ I have cherished the ideal of a democratic and free society in which all person live together in harmony and with equal opportunities. It is an ideal which I hope to live and to achieve. But if needs be, it is an ideal for which I am prepared to die.”
“Sometimes, it falls upon a generation to be great. You can be that great generation. Let your greatness blossom.” Nelson Mandela "
- The implementation of human rights nationally is invariably about translating international human rights laws and policies to the national agenda. To reduce the risk that we in International Geneva are lost in our own rhetoric about the significance of human rights, we must constantly remind ourselves, as Nelson Mandela did, that it is in the translating of a human rights ethos to the lives of people that rights have meaning at all. The rights of men, women, children, persons with disabilities, marginalised minorities, and indigenous communities, and those who have limited access to services, transport and infrastructure as a result of poverty and illiteracy. What does this mean to us working daily on the translation, here in Geneva and in New York? What are the mechanisms which help us in this translation? How do we know when we have succeeded and what should we do when we fail?
- The law is almost always the most effective way of translating and implementing human rights. The law has a transformative ability, as long as in the passing of laws we are aware of the significant changes international law has made to the reading of rights. We ignore these changes at our peril. If we do not mirror the changes in our laws, we put our countries at risk of judicial challenges, and of criticism through mechanisms such as the Universal Periodic Review. Judicial challenges are especially likely in countries which empower their judiciaries to interpret the Constitution in accordance with international law, and to strike down laws which are inconsistent with the Constitution. Thus every Attorney-General must have a human rights advisor and focal point, as we do in Fiji. This will help to prevent Governments from passing laws which contravene constitutional bills of rights.
- The judiciary then is a key institution for implementing rights. Putting aside for a minute the age old (and in my view outdated) argument about judges refraining from a dangerous activism when dealing with challenges against laws passed by parliament, a key question for all of us in Geneva, is how we can help judiciaries to read rights, how to help them use the considerable body of law which has developed as a result of the work of human rights courts such as the European Court of Human Rights and the Inter American Court of Human Rights. How do we ensure that the judges in our countries can use the General Recommendations and Observations of Treaty Bodies to help them to deliver justice? Recently at a dialogue amongst ambassadors. I heard one ambassador say that in his country, the judiciary had been far more effective in implementing rights than the executive. That has certainly been the experience of many countries and certainly of those countries with new constitutions which specifically empower judges to use international human rights law to interpret comparable rights in the constitution. In Fiji, this considerable power was used by judges to read down the sodomy law in the Penal Code, to strike down a law of mandatory imprisonment for drugs possession, and to declare Fiji’s remand facilities inhumane and degrading. Recently, the recommendations of treaty bodies of conventions which Fiji has not ratified yet, were used to interpret comparable rights in our Constitution, leading to a finding that police acts of remanding children in custody with their parents, were in breach of our Constitution. The Nelson Mandela Rules have been used to consider whether our prisons are inhumane and degrading, and the UNCAT Committee’s comments in deciding whether a confession should be excluded as evidence in a criminal trial. We should encourage our judges not just to use international human rights law to interpret rights nationally, but to interpret them in the spirit of an aspirational value. If all we do is interpret rights according to national and local values, we fail to acknowledge the universality of human rights. The judiciary is key to this aspirational journey. As is a Bar which is similarly knowledgeable about the development of human rights norms through the law.
- Very relevant to this day, is the important role of judges in implementing nationally, the Minimum Standard Rules for the Treatment of Prisoners, known by us all as the Nelson Mandela Rules. If conditions of custody are relevant to the question of bail, when should it be merely one of the factors, as opposed to the determining factor? In other words, if an applicant would otherwise be a bail risk on the ground of the evidence of escaping from custody previously or failing to adhere to bail conditions, if he or she can show that the remand facilities are inhumane and degrading and a breach of the Constitutional guarantee to protect from such conditions, and of UNCAT and of the Nelson Mandela Rules, should a judge grant bail in any event? I would argue that if the right not to be kept in conditions which are inhumane and degrading is truly non-derogable and without limitations and restrictions, then where a prisoner is held in conditions which the presiding judge decides on objective standards, are inhumane and degrading, the prisoner must be granted bail on this ground alone. That has been the law in Fiji now since 2002, with the judges applying the Nelson Mandela Rules to help them decide whether the prison conditions are indeed inhumane and degrading. In this way, the Nelson Mandela Rules have given real meaning, through the jurisprudence, to the lives and conditions of Fijian prisoners. They continue to be used routinely to assess prison conditions in the course of bail applications.
- I now turn to the important role of human rights institutions, or NHRI’s as we call them in Geneva speak. The most valuable role in the translation process, is that NHRI’s have the capacity of working closely with the local population and with civil society. Their work is enormously significant. They can work to change attitudes, through PR work, through the school curricula, through partnerships with faith based groups, and with government ministries. The NHRI has an interesting relationship with the government. On the one hand, their work often brings them up against government policies and laws, and they often have to make a stand in the media about a law which was ill advised or contrary to human rights norms and values. On the other hand, most NHRI’s have an advisory role in relation to the government. They are expected to write to Government to tell its Ministers when they have either done something which is inevitably going to result in a crash course with human rights, or are about to do so, for instance in parliament. Yet both roles are crucial if human rights are not to be seen as a foreign flower, but as a pattern woven into a national fabric of respectful and progressive development. One moment, expected to be the prosecutor, and the other a trusted advisor, NHRI’s walk a delicate path intended at substantive transformation of societies, either with the cooperation of those in power, or when necessary, without it. In doing so successfully, they provide a most important mechanism for the implementation of rights nationally. And this is even more effectively done where the Commission has powers to investigate and bring litigation either on its own motion, or as amicus curiae.
- My next point on methods of implementation which work, is the effective and inclusive participation of civil society. Relations between governments and civil society have not always been comfortable. And indeed, this is natural. If civil society has a role of relaying messages to government and beyond, of breaches of rights, or of legislation which may create risks to substantive equality, then necessarily this is not a relationship of great affection. Yet there is a role for civil society of constructive engagement, and of advising governments, when breaches can be the subject of redress, or potential breaches avoided. Thus space for civil society to have this role is crucial, and in this role, UN agencies such as the OHCHR, UNDP, UN Women, and the UN Resident Coordinators, can have a key facilitative role. We saw this most effectively done when Fiji prepared its Report to the Committee on the Rights of the Child, and used the Universal Periodic Review in our Second Cycle to meet with civil society representatives who had travelled to Geneva from Fiji to engage in a constructive conversation about the developing role of civil society in Fiji. The Universal Periodic Review process on its own is a powerful tool for implementing rights. The involvement of civil society in the UPR process makes it even more effective process, providing a barometer for national progress through its cycles. We do not make commitments here in Geneva which we have no intention of implementing at home. Civil society is the mechanism which prevents the UPR becoming a process of hypocritical self-congratulation. But, this is still work in progress. We in Fiji, will of course continue to differ with civil society on the reports written about Government policies, and their factual basis. But we accept the important role of civil society in the implementation of international human rights norms, and the reach of civil society to all sections of our society to change the hearts and minds of our people in a progressive and equal trajectory.
- This brings me to the importance of local leadership. We will never defeat the fear that human rights are a Western ideology with no relevance to traditional developing societies, unless the leaders who are respected in these societies believe in equality and rights from the depths of their hearts. In Fiji and in most Pacific Island countries, this means the faith based leaders. When we passed new laws on HIV/AIDS based on the human rights of those with HIV/AIDS and based on the UN Declaration of the Rights of Persons with HIV/AIDS, there was a real fear that our traditional religious communities would see it as a licence for free sex, and for unrestricted same sex relationships. UNICEF Pacific organised a workshop with faith based leaders as soon as the law was passed, to help them understand how a human rights approach to dealing with HIV/AIDS was in fact the only way to effectively end the disease in Fiji. As a result, there was no resistance nor any misunderstanding from the religious leaders and communities about the impact of the new law. This is also the case with domestic violence. Where domestic violence is tolerated by the church groups and religious organisations, we will never change the role of violence in homes and families. Ultimately domestic violence is perpetuated by social attitudes and patriarchy. The most effective way to change attitudes in the home is through religious leadership. Whilst this may not work in all countries especially those where religion has a limited role in the lives of the majority of its people, it does work in the Pacific. Religious leadership must be involved in this journey we are all on, to incorporate humanity and dignity in the lives and values of our people.
- Lastly, forgiveness. With a fractured past, and a history of political instability, how do we create the space to talk to each other in order to agree that we want a future which is inclusive and progressive? Confrontation, and hostility has never achieved anything except violence. We learn from Nelson Mandela that after 27 years of incarceration, we can still forge a future based on progress and inclusion. It is not easy, but the creation of spaces to talk to each other, to understand the differing views of others, yes, even those we believe are racist and devious, is an important step towards creating an environment where all agree that human dignity is the only foundation for a nation’s success. We have found in Fiji, that the role of Special Mandate Holders such as the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, the Independent Expert on the rights of persons with Albinism, and the Special Rapporteur on the Rights of Persons to Education, has helped us to begin that conversation.
- In using these mechanisms, our presence in Geneva is essential. One of the most important steps taken by Fiji, a country with limited resources, but with a progressive Constitution, and a judiciary determined to enforce and implement rights, was to open a Mission in Geneva. I look forward to the day when every country has a Mission here in Geneva, using the Human Rights Council, the OHCHR, the WHO, the ILO and the many international organisations with a rights based approach to development, to translate those rights to the people in their countries whom ultimately, the diplomats as civil servants, serve. Until that day, the SIDS/LDC’s Trust Fund has a crucial role to play to ensure a better representation of the world at the Human Rights Council. In working to translate rights nationally, we diplomats will not always succeed. I am sure that in the dispatches we send to our Capitals, there is a heap which should be labelled “No Progress” or “Not Implemented”. Yet we must still persevere. The path to progress is littered with barriers. For every 10 failures, there is one success. And already, with that one success, there is progress. As Nelson Mandela famously said, “Part of being optimistic is keeping one’s head pointed toward the sun, one’s feet moving forward.”
Nazhat Shameem Khan
Geneva July 19th 2018