Human Rights, the Rule of Law, and Independence of

Lung-chu Chen

I just returned from a four-day conference in Jakarta, Indonesia, convened by Asian Council of Liberals and Democrats. The theme was “Democratic Transitions in Asia: An Agenda for Action." Among the subjects was “Human Rights, the Rule of Law, and Independence of the Judiciary," for which I was a principal speaker.

The peoples of the world, whatever their differences in cultural traditions and institutional practices, are today intensifying their demands to participate in shaping and sharing all basic values of human dignity. From the United Nations Charter, through the Universal Declaration of Human Rights, to the two International Covenants on Human Rights and associated instruments, a global bill of human rights has emerged and is developing. Human rights and peace are indivisible, and human rights are no longer a matter of domestic jurisdiction. Internationally recognized human rights, as embodied in the international bill of human rights, extend from civil and political rights to economic, social, and cultural rights. These human rights are interdependent and express universal values. International human rights standards have become the yardstick by which to judge the legitimacy of a government.

The crucial question is: when human rights norms are violated, can victims receive appropriate legal protection and remedy. In the context of human rights, the rule of law entails at least the following four elements:

1. Law designed to protect human rights is properly communicated to the target audience.

2. Everyone is equal before the law. No one is above the law.

3. Provision is made to allow complaints against human rights violations by invoking relevant norms.

4. Appropriate structures of authority and procedures are established to facilitate application of human rights law in concrete cases.

While some modest steps toward invocation and application are taken at the transnational level, human rights protection still relies largely on efforts at the national and local levels at today's state-centered world. Hence the importance of the rule of law within a national community.

Central to the rule of law is independence of the judiciary, as sustained under a system of separation of powers and checks and balances. In 1985, U.N. General Assembly adopted a resolution, emphasizing the following “basic principles on the independence of the judiciary": constitutional or legal guarantee of judicial independence; impartial adjudication; general judicial jurisdiction; freedom from interference; the individual's right to due process of law; fair judicial proceedings; and effective performance of judicial functions.

In conclusion, effective realization of human rights, the rule of law, and judicial independence requires the government and the people to work together.