The Malaysian Bar - Judges are guardians of individual rights, says Cherie Booth QC

Home

News

Bar News/Berita Badan Peguam

Judges are guardians of individual rights, says Cherie Booth QC

Tuesday, 26 July 2005 11:01pm

KUALA LUMPUR, Tues.: In a human rights world, the responsibility for a value-based substantive commitment to democracy rests largely on judges, and the importance of the judiciary in this context is that judges in constitutional democracies are set aside as guardians of individual rights.

Cherie Booth QC said this when delivering her lecture entitled "The Role of the Judge in a Human Rights World" at the 19th Sultan Azlan Shah Law Lecture at Shangri-La Hotel here this afternoon. More than 1,000 people attended the Lecture organised by the Law Faculty of the University of Malaya and among them were the University's Chancellor, HRH Sultan of Perak Sultan Azlan Shah and HRH Sultan of Selangor Sultan Sharafuddin Idris Shah. (Please click here to read the full text of her lecture.)

Cherie added that it is an inherent aspect of the judiciary's institutional role in a constitutional democracy to do justice for all individuals - including the worst and weakest in a society. "In an age of human rights, the difference of course is that judges are afforded the opportunity and duty to do justice for all citizens by reliance on universal standards of decency and humaneness", said Cherie.

For those states that have their own human rights bills or that allow regard to be had in judicial decision-making to international or regional human rights standards, Cherie said there is a potential for judges to look beyond the remit of the common law to universal notions of justice embodied in the idea of fundamental rights. This potential is of undoubted importance for the citizens who are the direct beneficiaries of these rights.

"I can speak from my own experience here. As you may know the United Kingdom has recently taken steps to 'bring human rights home' through its Human Rights Act. These fundamental rights extend from the right to life to the right to marry; from the right not to be subjected to inhuman or degrading treatment to the right to a fair trial; from the right to free speech to the right of privacy: to name but a few. While Britain was very much involved in the drafting of the European Convention on Human Rights and was one of the first countries to sign it, up until five years ago, a British citizen could not stand before a British court and assert that his or her fundamental rights under the Convention had been violated. That was not an available option, for although Britain had signed the Convention, it had no direct force of law. The only use that could be made of the Convention in Britain was to refer to it as an aid in deciding the meaning of British legislation. Quite incredibly, we had to leave our shores and travel to Strasbourg to the European Court to seek protection of our Convention rights. And even if then, after that long and expensive road, the European Court agreed that British laws were incompatible with fundamental rights and freedoms, there was no legal obligation on our government to change them...

"Under the UK's Human Rights Act this historical justice deficit has been corrected by an invigorated potential for judges to do right by reference, domestically, to standards respected globally. Now, because of the Human Rights Act, British citizens, like citizens in almost every European country, can rely in their Convention rights in their own Courts, before their own judges, and with the knowledge that their country has committed itself to the fulfilment of the highest ideals of human rights."

Cherie also touched on the conflict that arises between the need for national security and human rights. She said in the recent decision of the House of Lords in A v Secretary of State for the Home Department [2004] UKHL 56, 16 December 2004, the House had to grapple with this conflict when faced with a challenge to indefinite detention of foreigners at Belmarsh prison, but not nationals, under the UK's Anti-terrorism, Crime and Security Act of 2001. In that case, the House ruled that such detention was a breach of the European Convention on Human Rights. She added that what this landmark decision makes clear is that the government, even in times when there is a threat to national security, must act strictly in accordance with the law.

She said: "To my mind what the A case further demonstrates is the potential for judges to educate the public about the real meaning of democracy. In this age of human rights, constitutional courts the world over have found themselves cast as educators in a national forum. With each and every contentious matter that these courts hear, judges are forced to grapple with opinions held by the public, often exemplified in parliamentary legislation subject to constitutional challenge. Judges are forced in their judgments to respond in a way that teaches citizens and government about the ethical responsibilities of being participants in a true democracy committed to universal human rights standards. This is so even when - one might say particularly when - a nation is confronted by the threat of terrorism. A judge's decision becomes then the vehicle by which one arm of the government reminds citizens of what it means to live in a democratic society. In the A case Lord Bingham powerfully addressed this issue in the following passage:

'I do not accept the distinction which (the Attorney General) drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true... that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is finally entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic...'"

In our troubled times, where terrorism, division, and suspicion of others are order of the day, Cherie stressed that this role for judges is perhaps more vital than ever before. It is also a chance for judges to play a vital role as teachers in a national seminar on the topic of meaningful, inclusive democracy in the twenty-first century. In this role, the rhetorical possibility exists for judgments to draw upon relevant comparative and international rights experience to paint enriched and enriching tapestries of our common human rights and international law commitments.

In her ending note, she said: "We live in challenging times. Our institutions are under threat; our commitments to our deepest values are under pressure; our acceptance of difference and others is at a low point. It is at this time that our understanding of the importance of judges in a human rights age should be at its clearest. And it is at this time that our support for the difficult task that judges have to perform must be at its highest."

Cherie who is also the wife of the British Prime Minister, Tony Blair was born in Bury in 1954. She read law at the London School of Economics and Political Science (LSE) and created history when she became the first and only person to obtain an LSE degree with a first class in all her subjects. She then excelled in her Bar examinations and was called to the Bar in 1976. In 1995, she became Queen's Counsel, and was appointed as a Recorder in the County Court and Crown Court in 1999. She is also a Bencher of Lincoln's Inn and an Honorary Bencher of King's Inn, Dublin. She is a practising barrister and her areas of specialisation include public law, human rights, media and information law, employment law and European Community law. Recently, in R (Shabina Begum) v Head Teacher and Governors of Denbigh High School [2005] EWCA Civ 199 (Court of Appeal Civil Division), Cherie successfully represented a girl who was expelled from school for wearing a hijab, a case which raised the important issue of the right to manifest religious beliefs.