THE ROME CONVENTION
In 1950 most European countries west of die iron curtain signed the Rome Convention for the Protection of Human Rights. These are based on the U.N. Declaration of 1948 but are expanded and deliminated in the language of lawyers, not necessarily English lawyers.
Though, in general, no distinction is drawn between citizens and foreigners, the right of freedom of expression,4 of assembly2 and of freedom from discrimination* cannot be pleaded against laws1 Indian Constitution, Art. 19. 1 Ibid., Art. 358. 3 Ibid., Art. 359.
4 Convention for the Protection of Human Rights, Art. to.
3 Ibid., Art. it. * Ibid., Art. 14.
restricting political activities of aliens.1 The Convention primarily imposes a duty on the contracting states to secure the rights declared in it.11 will deal with remedies for infringement later.
The Rome Convention has been drawn upon by the draftsmen of the Bill of Rights in the Nigerian Constitution, though there are amendments and omissions. The Nigerian Constitution specifically provides that an Act of Parliament may derogate from the rights to life,3 personal liberty,4 the rights to a fair and speedy determination of rights and obligations,3 and the right to freedom from discrimination,4 in a period of emergency, to the extent reasonably justified for dealing with the situation.7 Any person complaining of a contravention has a right to move the High Court.8 Many of the rights are liable to be restricted, in prescribed interests, to the extent that is reasonably justifiable in a democratic society. For instance every person is entitled to respect for his private life; but a law, reasonably justifiable in a democratic society, may interfere with his private life in the interests of defence, public safety, public order, public morality, public health or the economic well-being of the community.’ One can imagine the difficulties facing a court asked to determine whether prohibition legislation contravenes this right.
In Europe the right to drink, if not formally declared, is generally recognized. In a Muslim country it is not. Whereas, in India, a reasonable restriction is determined by the opinion of our old friend in the law of negligence, the reasonable man, under the Rome Convention, as in Nigeria, the standard is different; is it majority world opinion, or majority national opinion, that decides the point?ENFORCEMENT OF THE RIGHTS
Let us consider for a moment means of enforcing the rights. Many constitutions contain no specific provisions for this purpose. If the rights are not effectively binding on the consciences of legislators or administrators, where there is effective representative government, governmental action repugnant to the rights can often be forestalled or condemned by a legislature sensitive to public opinion. Though we may think judicial review a characteristic feature of American constitutional law, this principle was not in fact accepted until after the War of Secession. In the early years of the American Republic, the
1 Convention for the Protection of Human Rights, Art. 16. 1 Ibid., hxt. i. 1 Nigerian Constitution s. 17. 4 Ibid., s. 20. 9 Ibid., s. 21.
‘ Ibid., s. 27. ’ Ibid., s. 28. 9 Ibid., s. 31. * Ibid., s. 22.
doctrine of the sovereignty of the legislature was so widely held that the device for preventing legislation repugnant to the Bill of Rights, in Pennsylvania and Vermont, was to establish representative bodies with power to draw the attention of the legislatures to such repugnancies; in New York, a council composed of the Governor and State judges had a power of veto, which could be overruled by a two-thirds majority of the legislature; even today in Ohio, North Dakota and Nebraska, a State law can only be struck down if all the judges save one find it unconstitutional.
If a law has been in force for some time and is then struck down, it may have created so many rights and liabilities that the consequences may be disastrous; so there is much to be said for a final revision of enacted laws before promulgation.
In Eire, the President may refer any Bill, within four days of its being passed by the legislature, to a council composed of ministers, ex-ministers, judges, ex-judges and not more than seven others appointed by himself, on whose advice he will exercise his power of veto. In Italy questions of constitutionality of legislation are referred to a constitutional court, composed of fifteen judges, all lawyers—one-third appointed by Parliament, one- third by the President and one-third by the higher magistrates and executives. If the law is found unconstitutional, it only becomes void as from the day following the delivery of judgment. The objection to relying exclusively on these methods is that it is impossible to foretell the effect of a law in action and, if Fundamental Rights are intended for the protection of individuals, the individual whom the shoe pindies should be entitled to be heard.There are, of course, devices to minimize the consequences of legislation being dedared repugnant to Fundamental Rights. In the United States, it is possible to hold that certain rights, particularly property rights, have been waived; but India has declined to accept the doctrine of waiver.
The fact is that India has taken the problem of enforcing Fundamental Rights more seriously than any other country and has provided the world with an object-lesson. Despite my admiration of the work the Indian judges have done, I fear that the results, over the past twelve years, do not suggest that it is advisable blindly to follow India’s example. The enormous body of legal literature dealing with the scope of the rights has been obtained at a heavy price. In the vast majority of writ petitions, the Union or a State is a respondent. A petitioner has the right to originate his case in the Supreme Court, and, if he starts in a High Court, he can appeal to the Supreme Court.
The Supreme Court usually gives notice, not only to the AttorneyGeneral but also to the Advocates-General of the fourteen States.
At the hearing there is often a galaxy of legal talent. The cost of these legal proceedings, if the petitioner succeeds, falls on the public; and very frequently when he does not. The Indian Founding Fathers could hardly have contemplated the spate of litigation which has resulted. Although the majority of the cases filed in the Supreme Court are civil appeals, in the first five months of 1961 pressure of other work prevented a single civil appeal from being heard, for the Indian Constitution requires a bench of five judges to hear any constitutional question. One result of this new jurisdiction is that the courts cannot cope with the volume of work which is put before them and the ordinary litigant, endeavouring to enforce a legal right, finds himself in the queue a long way behind the person claiming protection of a Fundamental Right. And it is noteworthy in this context that one of the rights guaranteed by Magna Carta was speedy justice, for justice delayed may be justice denied.In contrast to the Indian procedure, let us glance at the procedure in the two first cases of alleged breach of the Rome Convention. In the first a citizen of Eire complained of being detained without trial, in violation of the rights of personal security and to a fair trial,1 to the European Commission of Human Rights, a majority of which held that die detention was covered by the Article in the Convention which permits measures derogatory to a State’s obligations in emergencies.2 This was transmitted to the Committee of Ministers of those States which are parties to the Convention who, as this was the first case of its kind and the opinion was not unanimous, exercised their right to bring the matter before the European Court of Human Rights within three months of the transmission of the report to them. The court duly upheld the majority opinion, but it also decided that in no case can an individual set the court in motion; that can only be done by a State or the Committee of Ministers.
In the second case a Belgian journalist had been sentenced to life imprisonment, subsequently commuted to seventeen years, for collaboration with the German army of occupation. He was released in 1951 but, under the Belgian Penal Code, he was debarred for ever from following his occupation. He pleaded a violation of the right of freedom of expression.3 The Commission, having examined the claim, exercised its power to endeavour to achieve a settlement between the
1 Convention for the Protection of Human Rights, Arts. 5 & 6.
2 Ibid., Art. 15. 1 Ibid., Art. 10.
petitioner and the Belgian Government. As this failed, the matter was referred to the Court. But, before the hearing commenced, the Belgian Parliament amended the Penal Code so as to enable persons in the petitioner’s situation to practice journalism of a non-political character. The Belgian Government then pleaded that the petitioner had no further interest in the pursuit of the application but, on the motion of the Delegate for the Commission, the Court referred the matter back to it. Subsequently the petitioner withdrew his application, but this binds neither the Court nor the Commission; so whether the amended Penal Code offends against the Convention is still an open question.1