15.04.2005
Willemijn-Van Haaften
Izmir, 15 April 2005
Human Rights Agenda Association,
Human Rights Training Course
Ladies and Gentlemen,
This is a training course about Human Rights. Rule of law is not a human right, it is a principle of government. I’m representing a Government here, so that explains why I’m interested. But why should you be?
Let’s take a look at the definition of Rule of Law: “principle of government that everybody and all institutions and the government itself are equal before and answerable to the law and that no person shall be punished without trial.”
No person shall be punished without a trial: this explains why you, lawyers, have a great and personal interest in the Rule of Law. Without trials for everybody who needs to be punished, you wouldn’t have a job. This is an important reason to pay attention to the rule of law, even if it’s not the only one.
It is important in the context of human rights, and therefore in this course, for two reasons:
first, because it has its roots in the same philosophical ideas that are the foundation of human rights so they are very closely related,
and second because it provides a system in which human rights have a better chance of being applied than many other systems.
FIRST: Rule of Law is based on the same principles that underlie the idea of human rights. These principles are that all human beings are basically equal to each other and that all human beings are basically free. Basically equal in the sense that nobody has, or at least should have, more or less rights because he or she is born in a different family. At birth, all babies are the same and they have the same potential to develop themselves. Or, at least, they should have the same potential to develop themselves.
Free in the sense that I cannot, as a human being, own another human being, like I can own a cat or a cow and do with them as I like. The era of slavery is definitely over in this sense.
These ideas have a long history. In Europe, they were developed, to a large extent, as an anti-thesis to the Catholic Church of the Middle Ages –but other people and other philosophers worked on the same ideas and they are not restricted to Europe!
According to the Catholic Church, the order of the world and the place of Man in it was all planned by God. That meant that you were born in a certain position (say: a farmer), and because you were born in that position you would stay there the rest of your life. In a similar way, the King was born to be the King and no matter how tyrannical he was, he remained the King. That was the way society was ordered, and the way authority was not only ordered, but legitimized.
At a certain point, people started to question this way of societal order and legitimising of authority. Out of that long debate came a couple of ideas which are fundamental for the understanding of Human Rights, of Rule of Law and of the way modern society is ordered. One of those ideas is that every human is born equal and with equal opportunities. This was not a new idea, it was the recycling of a notion which was already developed by the Classical Greek philosophers.
Humans are basically free and basically equal. This was a very radical idea at the time (16th and 17th century), and one that had profound consequences on the way societies were ordered and authority legitimised, or at least how people thought societies should be ordered and authority, or power, should be legitimised. They are really important notions that one should bear in mind. They also help in understanding the EU, because these two basic ideas really are very much embedded in the way European countries are run, and in the way the EU is run. If you pay a little attention, you can see them popping up everywhere in the things the EU says or does. Often, they’re not applied in a perfect manner. We will come back to that.
But they are not restricted to Europe. In fact, they are so important that they figure in for example the Universal Declaration on Human Rights –look at Article 1- and in many other instruments, national and international and whether they deal with human rights or not. The non-discrimination clause for example which you find in many Constitutions including the Turkish one and the European Union Treaties, is not much more than another way of saying the exact same thing. That is how important these principles are!
So the fact that everyone is born equal and is born free, where does that take us in terms of law and government?
With that question, we slowly get to the second half of my argument: the SYSTEM. Because all this is really nice in theory: everybody is free and equal. But how does that work in practise, when we get a big group of people together, say 70 million. Who is going to guarantee me that I have the same rights and the same opportunities to develop myself as the person next to me?
First this idea of “the same rights and opportunities”. How do I know what they are to begin with? The answer to that question is known to all of you here: they are in the Law. More specifically: they are in Human rights treaties, as we have just seen, and they are in other laws, national and international. Law is nothing more or less than an attempt to write down the rights and duties of everybody. Written down in order for everybody to know what the rules are. Some rules are so well known that they don’t need to be written down anymore and then we speak of customary law. The fact that the law is made for everybody also means that it is, or at least should be, as abstract as possible, and be applicable to as many people as possible –ideally all people. For the Rule of Law says that “everybody is equal before the law”. And this makes sense when we say that every baby starts it’s life with the same rights and the same opportunities. So one of the consequences of this ‘new’ idea that everybody is equal and free, was that the law should be applied to all people, and in the same way. That is what the Rule of law means when it says “everybody is equal before and answerable to the law”.
This principle also works in the reverse way: the more limited the groups is to which the law is applied, the better it should be explained why this groups needs it’s own law instead of falling under the same law as everybody else. The same applies to exceptions to a law: if a law is meant for everybody then why are the exceptions necessary? There should be extremely good reasons for this, which need to be explained properly and which in almost all cases should be based on the law itself. You will come across these principles more often further down in this course, because this is exactly the way Human Rights treaties are worded, and how the European Court of Human Rights explains it’s decisions. Rules are meant to be applied to everybody. This means that exceptions can only be made for very specific purposes, and if they are made they need to be explained very carefully and in a convincing way.
If you apply this principle thoroughly, you can see that a number of laws in various countries fail this test of Rule of Law because they only apply to a small group, or they make distinctions between groups, without a convincing explanation why this should be the case. In other cases, either the text of the law itself or its application in practise shows that a lot of exceptions are made without a basis in the law itself, or with a basis that it is so broad that you wonder why the law was made in the first place if so many exceptions are needed.
Very often, the broad explanations for exceptions or the applications to small numbers of people instead of to everybody, turn out to be political arguments. These are by their very nature debatable and don’t belong in laws. By making these kinds of laws, the rights and opportunities for certain people or certain groups in society are limited. These limitations, like I said, may sometimes be absolutely necessary. The Rule of Law however, requires that everybody is equal before the law. Therefore the necessity of exceptions should be constantly challenged and very well controlled. This challenge and control is, in my opinion, one of the most important jobs for lawyers in a society where the Rule of Law is applied –and a very important reason why lawyers have a great interest in the Rule of Law. Without constant challenges and control-mechanisms, we are no longer assured that the law is applied to everybody in the same way. When that happens it means that no longer is everybody equal but some become “more equal than others” as George Orwell put it.
So how is the control system set up? This is just another way of phrasing the question I had already asked earlier: who will guarantee that my rights and my opportunities for development are secured?
This is where the State comes in, as a system of organisation. Now I immediately agree that this is not a given, it’s a choice. There are other possible choices of organisation of large groups of people. In Europe, including Turkey, the State has emerged as the way of organisation of a large number of individuals who needed a system which would guarantee and protect their rights and possibilities for development. Mind you: this is a completely different concept than the State as a God-given system that we used to have in Europe and that still exists today in some parts of the world! Like I said earlier, it’s very important to see this difference because it has important consequences!
It basically means that people voluntarily give up some methods by making sure themselves that others respect their rights, for example by killing those that don’t. Instead, they transfer this power to a limited group of people. In return, they expect this limited group of people to exercise their power in a certain way: equally and fairly –based on the idea that everybody is basically equal. Along these lines of thinking, in modern states the legitimisation of power no longer comes from ‘above’, but it comes from below, from the people.
Let me try to explain this in another way:
If the State claims to be a dictatorship which knows what is good for me as an individual, or for my family as a group, or for a larger group of people that I feel connected to, I have to make a conscious choice about whether I agree with the State’s ideas or not. If I don’t agree, I have two choices: either I leave, or I try to destroy the dictatorship.
If, on the other hand, the State tells me it’s not a dictatorship but an organised way of defending my rights and promoting my opportunities, it should make that clear by giving me some kind of influence over how the State is run. If I have no influence whatsoever, and if I don’t see how my rights are defended and my opportunities are promoted, then why should I not conclude that I’m in fact living in a dictatorship? So if any given State has an interest in defending the idea that it is not a dictatorship, then that State better make sure that pretty much everybody feels that they have equal protection and equal opportunities and a say in how things are run. Otherwise, people may start to conclude that they’re in a dictatorship and then some of them either start to run away or start to think about overthrowing the system.
So if the State wants to make clear that it’s not a dictatorship, and that it’s there to protect my interests, how does it make that clear in a convincing way? In other words, in fact this is the same question again that we saw before: how do we organise the State in such a way that everybody’s freedom is not only respected, but guaranteed. And in such a way that everybody has equal opportunities to develop themselves?
Turkey, as well as other European countries, tried to find the first part of the answer to this difficult question in the ideas of the French philosopher Montesquieu. Montesquieu argued that the only morally correct way to organise power in a State-structure was by dividing it among different groups of people within the State. If you give a large amount of power to one group, they are very likely to abuse it. If you give power to two groups, they may join forces and still misuse it. So you need a system where a minimum of three groups share power on an equal basis. Three groups, when given more or less equal power, can hold eachother in balance. Why do we need balance? Because otherwise the power will quickly flow to only one group and then we get abuses. How do we achieve balance? By making sure that each group is controlled by the other two. This all sounds very simple in theory, but in practise it’s difficult! What we constantly try to do is to create balance, to keep the balance and to improve the balance.
You all know which three groups there are: the legislative, people who make the law. The executive, the people who enforce the law. The judiciary, people who interpret the law. In the ideal system as Montesquieu saw it, these groups need to be as far away from eachother as possible in order to achieve maximum balance. This is what he meant by ‘separation of powers’. Not only the creation of three different groups –that’s the easy part. There are other aspects which are more important, but also more difficult to achieve.
A much harder part for example is to keep the different functions apart from eachother once you’ve created them. We can see that in daily practises of the system in different countries, including Turkey and including Europe: the legislative, the lawmakers not only make general and abstract rules of law which are supposed to apply to everybody on an equal basis, but they also start to explain how they are meant to be applied –which is actually the role of the executive, and how they should be interpreted –which is the job of the judiciary. The executive (police, public prosecutors, different kinds of officials whose real job it is to execute the law) meddle in which rules to make –which is the job of the legislative. Or they influence –or at least try to influence- how the law should be interpreted –which again is the job of the judge.
Judges in their turn do the same sometimes: they cross the line where interpretation ends and the making of rules begins. By doing so, they put themselves in the position of the lawmakers.
But there is also a third vital element in this system of balance of power, which is necessary to make it function in the best way possible, and that element is control. Control is closely linked to separation, because the separation is one of the very things that need to be controlled. And because the system was created in a time when there was no external control, no higher authority than the three groups, it is supposed to work by mutual control. Each group controls the other two, and this is how we achieve a balance.
If there is no separation, if two groups get too close to eachother, it is too easy to stop that control function, and then the next step is also easy: to start mixing up the functions of the two groups. And then what do we have? We have only two groups left out of the system of three, and very quickly only one and then we’re back at authoritarian rule where the dictator decides what is good for me.
The control part is the most difficult part of the system. The legislative is supposed to control what the executive is doing and what the judges are doing, and when they don’t like what either of those two groups does, they should respond to it by making new or better laws. In quite the same way, judges are supposed to control what the police and the public prosecutors do. When they don’t like what the other two groups are doing, it should show in their verdicts. They are supposed to control what the legislative is doing. It’s their job. That is what is called ‘independence’. Independence does not mean “closed to influences from the outside”, it means closed to influences from the other two groups in the system. I sometimes have the impression that this interpretation of independence, and this idea of control, needs a bit more development among the Turkish judiciary.
Let me continue with a few other notes on the balance of power and the Rule of Law and the judiciary in particular. How does, or how should the judiciary for example exercise it’s control function in an ideal world? It needs tools, because how is the Judiciary going to make sure that the executive –the police, civil servants and the public prosecutor for example- and the legislative –Parliament for example, don’t abuse their share of the power? Again, the Rule of Law gives the answer.
Let’s go back to the definition of Rule of Law: principle of government that everybody and all institutions and the government itself are equal before and answerable to the law. In other words: the law applies to everybody, and to everybody in the same way.
What does this mean: first of all it makes the law the most important, in fact the highest, instrument of government. Because the law applies to everybody and everybody can know the law, we’ve seen that earlier, it gives security and predictability to society. It also legitimises those who are in power. Why are they in power and not other people? Because the law says so. At the same time it restricts their power because they also have to abide by it. That is a very important consequence of the Rule of Law, and also one that is often misunderstood (one could sometimes say: misused). If the law has given you power, it also tells you exactly where this power begins and where it ends! But beginning is usually easy, somebody has to watch that it end also. So this is another aspect that needs to be controlled, and the system which gives the best opportunities for control is the system of the balance of powers that we have discussed earlier. In other words: when we apply the Rule of Law, what we do is that we make the Law the yardstick by which everybody and all institutions are measured. This way, we ensure that everybody remains equal and that nobody misuses their power. By saying “everybody is equal before and answerable to the law” we make no exception for those people who happen to have power because of their function within one of the three power-groups. For example: the legislative can make new laws as much as it likes, but it cannot make a law that says that the legislative itself does not have to abide by the law. This is a very firm boundary that they cannot cross under the Rule of Law.
But is this ‘balance of powers’ enough as a system that ensures that everybody’s rights are equally protected and promoted? In fact, it almost is, but not completely. And that brings me back to the subject of Human Rights.
Human Rights Law does two things: First, it provides a standard way of writing down the most important rules about the treatment of human beings. If we say that everybody is born equal and free, then human rights are a more precise definition of what that means: “equal and free”. In this sense, human rights explain exactly those things that everybody would like for themselves: nobody would like to be tortured, everybody would like to be free to think what they want and say what they want. If I want this for myself and if we are all equal, it means that this is the standard that everybody wants for themselves.
From this first thing, the second one follows: because human rights provide a standard –minimum standard if you like, they are also another boundary for those in power. If we say that Human Rights Law gives the very basic rules for the treatment of human beings, and we say that those in power also have to abide by the same rules as everybody else, then it follows that they have to abide by those very basic rules and they have to respect the boundaries of human rights and human rights law.
But there is more: most modern States say they want to do this! They include references to human rights in their Constitutions, for example, or in other laws. They insert non-discrimination clauses, they make Penal Codes that explicitly state that nobody may receive punishment without a trial –an important element of Rule of Law that shows the willingness in principle of a State to abide by human rights standards and by the Rule of Law. If they want, they may go even further and do what the Turkish government has done by inserting this new article 90 into the Constitution that is the basis for this training-course: they allow their citizens to ask judges to implement international treaties directly in specific court cases. What the Government does in that case is not to expand the rights of their citizens, as is sometimes thought. Human Rights are not rights which are given to people by their government, they are rights which everybody automatically possess when they are born. By doing this, the Government expands the tool-box of the judges to effectively exercise their control function. In that way, human rights become something that a person not only possesses, but something that he/she can effectively defend if need be.
It is very possible to create a system of balance of power and of Rule of Law without human rights. If we do that, we end up in a situation where the legislative makes laws that cross the boundaries of human rights and say, for example, that torture is permitted under certain circumstances or that freedom of expression is limited to certain ideas. Very quickly though, as we have seen above, it would become questionable why these exceptions exists, and whether it is a true system of Rule of Law where the law applies in an equal manner to everybody including the government and others in power. A striking historical example of this, is Hitler’s Third Reich which led to the Second World War. After all, Hitler came to power through the ‘normal’ system of Rule of Law and checks and balances. This example has played a big role in the thinking about Human Rights as an ‘extra boundary’, or an ‘extra safeguard’ against the abuse of power.
Trying to think of a system that abides by Human Rights without Rule of Law is more difficult: in that case one could almost be sure that some group or groups would start abusing their powers –because there is no system of checks and balances and no control. Without control, why should the people in power abide by the standards of human rights? Human rights are a limitation to their power so for them it is much easier or nicer not to apply them.
This explains why Rule of Law and Human Rights go hand in hand: both are limitations of the kind of power that was –and is- exercised by absolute rulers, and the kind of power that we trust nobody to have anymore in the 21st century. They mutually reinforce each other as a system: human rights are a basic standard, and the system of balance and control that is enshrined in the Rule of Law ensures that this basic standard is applied to everybody in the same way.
This also explains why human rights are for everybody. Not just for the protection of specific people or groups of people. That is very important. We can also explain that in another way: it often appears as if Human Rights only apply to very marginal groups in society. In the press, they are related to criminals, terrorists, homosexuals, gypsies and other vague groups. This does not mean that those are the only people Human Rights apply to, it does mean that those are the people whose rights are most often denied and therefore discussed.
The true challenge for modern societies, and especially in the post-9/11 era, lies in the inclusion of as many people as possible in this system of human rights and Rule of Law. If we depict society as a triangle, with the powerful and the rich at the top, and the poor and otherwise marginal people at the bottom, than we can explain this. Any system that tries to be inclusive for as many people as possible –and we have seen that a State that wants to be a system where everybody’s rights are equally protected wants to be inclusive in that way, should be judged by how it operates at the fringes. If it manages to include the fringes, not only the marginal people at the bottom but also the powerful people at the top!, then it is a truly good system. So a State where the Rule of Law is really applies makes sure that its top people abide by the same laws that are applied to the poorest and least powerful.
Now for sure no system is perfect in this sense. The Universal Declaratio on Human Rights even recognises this [look up exact text]! But it is a standard that we all are working to achieve!
And that brings me to the end, and back to you as lawyers: because in Montesquieu’s idea there were only three groups in his system of checks and balances –he thought that would be enough. Nowadays, one can easily argue that there are many more groups involved in the power balance –and that many more groups should be involved in the power balance. Because that strengthens the system, as you can understand.
Nowadays, the system includes lawyers, intellectuals, press, ngo’s. And for the system to work properly, these groups should not only exists, as we have seen they should also control the other power-groups. That is why being critical, and asking questions, is not a bad thing, contrary to what some people think. And that is exactly what you should do, as lawyers with an interest in the Rule of Law.