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National Human Rights Institutions and the Administration of Justice Round Table Conference – Copenhagen, Denmark

Introductory Address: National Human Rights Institutions and the Judiciary by the Hon John von Doussa QC, President, Human Rights and Equal Opportunity Commission, 13-14 November 2003.

This session focuses primarily on relationships between National Human Rights Institutions (NHRI’s) and the Judiciary, but as well touches on their relationship with officers of the executive government such as the Attorney-General. One of the stated aims of this session is to assess how the independent institutions of the judiciary and NHRI’s can mutually and independently strengthen national protection systems for human rights.

In introducing the topic I thought it would be useful to look at the similarities and differences between the characteristics of the two types of institutions and then to seek to identify areas where one can complement the other.

I think it is the differences between the two institutions that must define their relationship.

At the outset I should make two points:

• I have limited experience as an officer of a NHRI, and the discussion which will follow this introduction will benefit from the input of your experience;
• I come from a jurisdiction where the judiciary is able to operate independently of government. My comments are made from that perspective. The relationship between NHRI’s and the judiciary could be very different if the independence of the judiciary was in question.

I have accepted the assumption which underlies the aims of this session, that both the judiciary and the NHRI’s have the degrees of independence from the executive arm of government which are internationally recognised as essential. In the case of the judiciary the recognised characteristics can be found in the 1995 Beijing Statement of Principles of the Independence of the Judiciary, and in the case of NHRI’s in the “Paris Principles” (The Principles Relating to the Status of National Institutions, General Assembly, 20 December 1993, A/Res/48/134).

The roles of the two institutions as set out in these instruments are quite different.

For the judiciary, clause 10 of the Beijing Statement says that the objects and function of the judiciary include:

(a) to ensure that all persons are able to live securely under the Rule of Law;

(b) to promote, within the proper limits of the judicial function, the observance and attainment of human rights; and

(c) to administer the law impartially among persons and between persons and the State.

For NHRI’s, under the Paris Principles, their objects and functions, generally speaking, are:

(a) to promote human rights;

(b) to advise governments on human rights protection;

(c) to review human rights legislation;

(d) to prepare human rights reports;

(e) to receive and investigate complaints from the public.

Whereas both instruments refer to human rights, the role of the courts is not one of broad promotion. I read again from the Beijing Statement, the function of the judiciary is “to promote within the proper limits of the judicial function, the observance and entertainment of human rights……...”

What are the proper limits of the judicial function?

The judicial function is to ensure the maintenance of the Rule of Law, and the unbiased and fair application of domestic law in the decisions on specific cases which are brought to court by litigants. This is a fundamental limitation on the power of courts. Save in some jurisdictions where the constitutional court has power to give advisory opinions on constitutional issues, courts can only decide specific cases brought to them. A court cannot be a self-starter. The court cannot search out and pursue perceived injustices on its own initiative.

And once a case is brought to it, a court is limited to the issues raised by the parties, and by domestic law. If a judge thinks a domestic law is out of date, or inconsistent with a human right recognised by international law, the proper limits of judicial function require nonetheless that the judge apply the domestic law, not depart from it.

Judges should not grandstand. They should not run public campaigns and agendas to change laws. A judge can point out possible shortcomings in existing law in measured terms in a judgement, but the judicial function stops there. Thereafter it is for the legislature to change the law. In a democracy, it is the function of elected politicians, not judges, to make or change the law.

Outside the courtroom, judges, like children in public, are best seen and not heard.

The judicial function is just to decide cases. Sometimes those cases lead to very important judgements on interpretation of the law and set very valuable benchmarks and precedent in the recognition of human rights. The judge may well recognise the potential of the judgement, but again, judicial function stops at the delivery of the judgement, and the reasons for it. Again, it is no part of the judge’s role to promote his or her judgement, however good the judge might think it to be. That is for others.

I make three more points arising from what I have just said, before turning to the role of NHRI’s:

1) As courts can only decide cases brought to them, there are real problems in the human rights area about access to justice, about people with legitimate grievances obtaining access to appropriate courts or tribunals. Many people who are suffering discriminatory treatment have no means of knowing whether the law offers any remedy, and most have no means of successfully pursuing a remedy without outside assistance.

2) In Australia, and in some other countries, now that anti-discrimination and other human rights laws are becoming better publicised, many people are seeking to pursue claims in courts and tribunals without legal representation. Besides being an enormous time-wasting burden on the decision-maker, usually the applicant makes a mess of running his or her case. The applicant does not lead evidence that should be led, and misses the real point in the case. So cases that could have led to a decision setting a useful precedent, fail to do so for these reasons.

3) The training of judges after their appointment to judicial office in common law countries is extremely limited, and rarely goes much beyond their own case specific research and the assistance of counsel. They are not kept up to date by formal training programs with international developments in human rights law. Their day to day experience with ad hoc factual situations that come up for decision, often years after the events took place, do not equip them to identify systemic problems in the community in the way that researchers, especially in human rights and discrimination law, sociologists and psychologists are able to.

I now turn to the NHRI's. Their independence does not limit them in the ways that a court is limited. Their proper functions:

• do permit them to seek out injustices that need righting;
• require them to identify, with self-initiated research if necessary, systemic human rights problems. Moreover as complaints come to them, and the true nature of human rights breaches can be identified by competent staff, systemic problems are likely to be identified early on by NHRI’s;
• advice and assistance can be given to ensure deserving cases, especially those with potential precedent value, can be properly prepared;
• the use of intervention and amicus curiae powers can help courts to understand human rights issues, and to decide cases on a proper basis. In Australia the amicus curiae power in discrimination cases has proved very useful where the parties are not represented by counsel. The Human Rights Commission is able to identify the real human rights issues and to assist the court with references to the appropriate law;
• NHRI’s can grandstand. They can promote important decisions. There can be enormous educational value in publicising court decisions. In Australia our Commission publishes newsletters and conducts seminars and lectures dealing with recent important court cases;
• NHRI’s can promote changes in the law. They can pick up and run with judicial comment about shortcomings; and
• NHRI’s can bridge the knowledge and awareness gap which judges suffer by offering, or assisting in the provision of, awareness programs for the judiciary.

The last item warrants expansion. Regrettably some judges and others, like journalists, who claim “independence”, see it as an attack upon their independence to be told they need training. We had an example in Australia some years ago where members of the judiciary were criticised in the media for the use of sexist language and a lack of awareness of gender issues. The media ran a campaign for compulsory judicial “training”. The issue was diffused by enlightened judges organising “awareness” programs for their colleagues. Outside experts were included as presenters. The programs were very successful. Now we hope to move on to seminars dealing with issues concerning race, culture and religion. A topical example was recently identified in a conference in which our Commission participated concerning the trafficking of women and children. An international expert at the conference stressed the need for judges to be informed about the horrors experienced by victims of trafficking, the likelihood that they suffer from a post-traumatic stress disorder, and that they are likely to encounter real difficulties in giving the type of coherent evidence about their experiences which a court might expect in a routine matter such as a traffic accident case.

To overcome the resistance of those who see programs of this type as an attack upon independence, it is desirable to conduct the programs specifically for the judiciary, and to promote them as awareness programs rather than by a description such as “training”.

To entice the judiciary to participate in awareness programs, and more broadly to value input from NHRI’s, good relations need to be nurtured between the two institutions. There is always a risk where bodies claiming independence operate in the same field that there will be friction and competition. To prevent this, I would suggest that engagements by NHRI’s with the judiciary should be pursued at every opportunity. I offer the following suggestions:

• periodic meetings between groups of senior members of both institutions, even if the meetings are initially only for tea and pleasant conversation;
• NHRI’s will earn respect (or disrespect as the case may warrant) from the quality of their work which comes before the courts. NHRI’s should ensure high grade investigation and preparation of cases in which they are involved. They should avoid running truly speculative, argumentative cases, especially on interventions where courts would be expecting very relevant and helpful guidance on issues that must be decided;
• courts will value publicity given by NHRI’s to important judgements;
• NHRI’s should be vocal in the support of the judiciary when good human rights decisions are attacked by the media and politicians. As courts cannot defend themselves, they will welcome informed support from an NHRI;
• awareness programs should be offered with due recognition to the sensitivities of some judges who misunderstand this kind of program and treat them as an attack on independence. Perhaps small beginnings are the way to go. If good awareness programs are provided to some judges the message will spread, and future programs are likely to be welcomed.

I do not propose to say much about the relationship between NHRI’s and the executive government. In principle, I think practical considerations dictate that NHRI’s should strive for good relationships with government. They are dependent upon the government for their funding. Some decisions will be unfavourable to government, and in the interests of promoting and protecting human rights it is important that adverse decisions be accepted by the government and acted on. This is more likely if the two organisations generally have a good relationship, and each respects the role and functions of the other. It is important that the NHRI establishes itself in the eyes of the government as a credible, objective body so that unfavourable decisions are less likely to be dismissed as biased.

The Attorney-General or Minister to whom an NHRI reports will be the real conduit between the NHRI and the legislature. It is through that channel that NHRI recommendations will be translated into law. Good relations are likely to enhance this prospect.

I have mentioned the possibility of awareness programs for the judiciary. I think that similar programs will often be needed by politicians and ministers. Similar issues are likely to arise in the design of awareness programs for them, and sometimes notions of political correctness will get politicians to attend, especially if the media is invited to take photographs and report on the program.

The matter is now for discussion.

Thank you.

Last updated 7 January 2004