18 November 2009
Mr President, Honourable Chief Justice, your Honours, Dear Friends:
I warmly greet all of you, albeit from afar. I look forward to the outcome of your discussion which, undoubtedly, will enrich the human rights debate in the South Asian region and beyond. I wish to thank the Government of the Maldives for their generous support to this Colloquium, which is a further testament to the important reforms that the country has achieved and to its strong cooperation with OHCHR.
The principles of equality and non-discrimination are the focus of this Judicial Colloquium. These principles lie at the core of international human rights law, and of constitutional frameworks across the South Asian region. The Universal Declaration of Human Rights reminds us that all human beings are born free and equal in dignity and rights, and that everyone has the right to enjoy their rights without distinction of any kind.
However inequality and discrimination remain an enormous challenge across the world. The recent review of the 2001 Durban Conference against racism, racial discrimination, xenophobia, and related intolerance underlined many of these challenges. Of particular concern is the burden of multiple discrimination endured by individuals worldwide. These include women, the poor and indigenous peoples. This web of inequality and discrimination produces swathes of social exclusion and disadvantage in our societies.
The judiciary can and must play a critical role in fighting the scourges of inequality and discrimination. In guaranteeing equality of all before the law, international human rights law recognizes that it is through the law and its application that equality is enforced as well as jeopardized.
Judges, as guardians of justice, have a duty to ensure that States are not in breach of human rights obligations. In doing so, judges must consider the impact of their decisions on States’ human rights obligations arising under national law - usually the constitution - as well as relevant international human rights law.
When construing national human rights guarantees, it is entirely appropriate for the judiciary to refer for guidance to international human rights treaties ratified voluntarily by the State, and to norms of customary international law. This is particularly important in the case of equality and non-discrimination which are solidly framed and defined in legally binding treaties, as well as in various guidelines, basic principles and other widely accepted standards.
In national courts, issues of equality and non-discrimination arise in two broad categories of situation. The first is in the substance of suits brought before the court by litigants, for example a challenge to a piece of legislation or an administrative suit against a decision of the executive. This provides judges with an opportunity to ensure, as a matter of law, that the substantive provisions of domestic law are applied in a non-discriminatory fashion, or that in adopting legislation Parliament is respecting constitutional guarantees of equality. A number of truly innovative - even path-breaking – examples are provided in the jurisprudence of the South Asian region, some of which will be discussed at this meeting.
A second avenue for judges to give force to guarantees of equality and non-discrimination is in facilitating access to justice. Regardless of the substance of a complaint, some individuals’ claims will never be heard because of barriers to justice that discriminate against them. These individuals may be indigent and unable to afford mandatory legal representation or court filing fees. They may be deemed by court rules or jurisprudence as not having the necessary locus standi to bring a suit. They may not have physical access to the Court room, for example because of distance and transport costs, or because the building will not accommodate their physical disability. Many will not even know that they have the right to complain. Some may be held in detention and denied access to the courts.
This is an area in which judges may have even more power to counter discrimination and exclusion by, for example, reading standing rules in a way consistent with maximizing access to justice for those suffering discrimination, or in ensuring the provision of counsel for poor litigants in accordance with article 14 of the International Covenant on Civil and Political Rights. South Asian courts - together with civil society - have developed cutting-edge mechanisms for opening up justice to all.
The Office of the High Commissioner for Human Rights works closely with judges from around the world, all of whom face the same or similar challenges as those present in South Asia. Our aim is to support the judiciary, through the dissemination of good practices and comparative jurisprudence, and to facilitate the sharing of experience and insights among peers.
I hope this colloquium will encourage further interaction among South Asian judiciaries on ways and means to enhance human rights protection in the region.