News | Sunday, 14 December 2008

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The Human League

Today, human rights are so widely accepted that we have even started dishing them out to monkeys. And yet, it was only 60 years ago that the Universal Declaration was signed. Raphael Vassallo explores the significance of this landmark anniversary for Malta

With the UN Declaration of Human Rights now safely entrenched in the Constitution of Malta, and citizens’ freedoms guaranteed by an ever-growing number of landmark rulings by the European Court of Human Rights, it is difficult to comprehend how ground-breaking the entire “human rights” concept actually was when first put forward in New York in 1946.
Back then, the horrors of Auschwitz and Dachau were only just being discovered; and decades before the advent of TV in every home – and with it, mass exposure to visions of famine in places like Somalia and Ethiopia – the sudden sight of so many emaciated corpses must have marked a radical shift in human self-perception.
Paradoxically, it was against this backdrop of untold violence and unthinkable injustices that a handful of people somehow managed to agree upon an astonishing idea: i.e., that for all the visible suggestions to the contrary, human beings were actually born equal, and that each was entitled to an equal measure of dignity and respect.
Today these concepts are taken for granted - so much so, that a few of these basic fundamental rights have even been extended to non-human primates such as the gorilla. And yet, there was a time when “human rights” were deemed too unrealistic to ever really work.
Stephane Hessel, a concentration camp survivor who helped draft the original declaration in 1948, recalls the intrinsic difficulties he had encountered in getting people to actually value themselves.
“The League of Nations (forerunner of the UN) had peacekeeping as its goal, but it did not concern itself with individuals,” he said in an interview with the United Nations’ Human Rights Tribune this week. “As for the 1789 Declaration of the Rights of Man and of the Citizen, its purpose was to protect the citizen against the arbitrariness of royal power. The whole ideology of human rights was thus positioned between power and those it dominated. But to extend this protection to an international, and even universal level, that was very bold...”
Hessel argues that, whether by accident or design, the effect was to create a universal framework – arguably for the first time in history – which would delineate the limits of governments’ power vis-a-vis its citizens.
“This was the innovation: we are responsible for human dignity and the rights of the person,” he asserts. “It was democracy’s catechism. In other words, we do not govern for the pleasure of power, but to guarantee the exercise of a democratic society. We were able to declare that governments could be held responsible for the rights of their citizens.”
So much for the theory. In practice, it is debatable whether the experiment has actually succeeded. The resulting Declaration itself has variously been criticized for setting fundamentally Western values as the benchmark for worldwide legislation. And divisive social and scientific issues -– among them, abortion, embryonic research and same sex unions – continue to test the precise definitions of such concepts such as “human” and “right” to begin with. So has the experiment been a failure?
Theresa Comodini Cachia, a lecturer in European Human Rights law at the University of Malta, thinks not.
“The Universal Declaration of Human Rights enshrines the most basic fundamentals of every person’s dignity, without which the human being would be no more than a mere living entity,” she points out. “No, this project has not failed; however, we may have failed its test.”
Acknowledging that various States – democratic or otherwise – continue to commit human rights violations every single day, Dr Comodini Cachia argues that the worst offence to our own dignity remains ignorance, and our own indifference towards human rights issues.
“In my opinion, the Declaration obliges us all to protect not only ourselves, but also others from disrespect. However, we may have failed in our society to develop an inbuilt desire to struggle against injustice and to ensure that at least our fundamental rights are respected, not only by States, but also by ourselves.”
The Universal Declaration of Human Rights is today firmly anchored in Maltese law; but while we may not have the equivalent of a local Abu Ghraib, only the very seriously naive would deny that human rights violations do occasionally take place.
Fingers are often pointed at government for depriving citizens of various rights; but according to Dr Comodini cachia, the notion that human rights violations may also be perpetuated by individuals remains an almost alien concept.
“Our society speaks a lot of human rights, but we very often speak of the violations committed by other countries and not our own; failing to realize that even we as individuals may be lacking towards others,” she explains. “To mention one example, our increased intolerance of others who may be of a different colour, culture or orientation...”
Considering that discrimination concerning race, religion and sexual orientation formed the inspiration for the Universal Declaration to begin with, it is ironic that similar issues would now test its applicability to Malta.
But shadow justice minister Jose Herrera is not surprised, arguing that Malta still appears to suffer from a colonialist hangover whereby citizens fail to value their own rights – still less the rights of others – within the framework of a democratic state.
“I must remark on how slow our Courts in Malta have been in sanctioning human rights in Malta,” he comments. “This may be due to our past colonial mentality, former overbearing governments and servility by former members of the bench. It is interesting to note that between 1964 and 1985 you could count the number of human rights cases decided against the Government on the palm of one hand, and this is disgraceful.”
Herrera however ackowledges that “a few prominent judges” went against the grain by holding the government accountable in a number of landmark cases.
“Their justice, in my opinion, was monumental,” he says. “They surely deserve a commemorative plaque, more so than the one commemorating our former Chief Justices. If ever appointed Minister of Justice it is something I will surely do.”
However, local courts do not represent the last line of defence against the State; and if anyone still doubted the power of the Human Rights Convention to bring about real and lasting change, they need look no further than judgements delivered by the European Court of Human Rights in Strasbourg, in three separate cases filed by landlords against the government of Malta over the rent law regime.
In Edwards vs Malta (17647/04) Fleri Soler and Camilleri vs Malta (no. 35349/05) and Ghigo vs Malta (no. 31122/05), the Court held that there had been a violation of Article 1 of Protocol No. 1 (protection of property), resulting in a landlord-tenant relationship being imposed on the applicants, in return for only a small amount of rent and a minimal profit.
The Court ordered financial remuneration to be paid out in all cases; but of greater significance to others in similar or identical predicaments, Malta also had to set up remedial procedures to balance the interests of the landlords, including their entitlement to derive profit from their property, and those of the community.
The net result is the belated realisation that the 1939 rent laws could only be retained at enormous cost to government; hence the Rent Reform White Paper presented earlier this year by Social Policy Minister John Dalli.
Elsewhere, there have been cases whose implications have yet to sink in. In an interview with this newspaper, EHCR Judge Giovanni Bonello expressed surprise that the Maltese government has so far resisted a reform to ensure that persons under arrest have recourse to legal assistance during interrogation.
“Access to a lawyer while in detention is generally considered the very minimum of detainees’ rights, so much so that it is taken for granted in the rest of Europe,” he said. “Malta is probably the only European country where this right has not been properly translated into law.”
No case has yet been instituted against Malta, but earlier this year the ECHR delivered a ruling which may – as in the rent laws issue – force government to finally enact this long overdue reform.
In a case brought against Turkey (36391/02), the European Court of Human Rights observed that “the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the state security courts”.
It could have said the same about Malta; and very likely one day will, unless the issue is finally redressed.
Attempts to reach Justice Minister Carm Mifsud Bonnici this week proved futile, as he was in Brussels for the EU summit. But his opposite number, Dr Herrera, echoed concerns of human rights watchdogs about local arrest and prosecution procedures.
“I feel that over the last few years the scales of criminal procedure have been levelled far too much in favour of the prosecution, and this is dangerous,” he says. “Definitely the concept of bail pending trial in Malta has to be revisited. There are far too many people, especially foreigners, in prison awaiting trial, or who have lost bail for minor infringements. In theory, the right to bail is guaranteed by law. In practice however, this seems not to be the case. I feel that it is no longer justified to detain an accused persistently for an unreasonable length of time. Our Constitution and the European Convention of Human Rights guarantee a speedy trial, which is hardly ever the case. In fact in a number of cases the Government has been condemned to pay compensation in this regard.”
But before convincing government of its obligations towards citizens, Dr Comodini Cachia argues that citizens have to be made aware of their rights.
“This 60th Anniversary is our opportunity to raise awareness of the importance of human rights and to help us come out of our apathy towards violations,” she comments. “It is time to stop praising ourselves for having a legal framework that protects human rights, and to find a way of living the culture of human rights in our daily life enabling us to wake up from our indifference. In this respect I feel that we should start by knowing what human rights are, then move on to realise that we, as individuals, legally have the power to stop violations.”

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