Of Human Rights and Good Governance

The International Human Rights Day falls today. We reproduce here excerpts of an article by Dr. Ruwantissa Abeyratne to mark the occasion.

This article does not focus on a single State but applies to the world in general. It is about the contemporary aspirations of the people living in the 21st century. It is mostly about human kindness and empathy, which are the preeminent values of modern day life.

These form the basis of a new list of overarching human rights which are more compelling than most traditional rights that have been considered to be the birthright and natural endowment of the citizen. It also takes a close look at human rights in today's society, where the individual looks for one fundamental right - which is the right not to be wronged.

The true value of a nation lies not in its achievements but in its compassion for its people and those of other nations of the world. The spontaneity of generosity that flowed from nations and their people towards those affected by the December 2004 tsunami disaster is evidence enough. A nations compassion inevitably flows from its recognition of its peoples rights.

An individual's rights flow not from an arcane institution, nor from God, but from an instinctive recognition of the various needs of that person not to be wronged. Today's world is full of wrongs and there is no reason to believe that tomorrow is going to get any better.

For every citizen of the world, rights have never been so important as they are today, although we tend to take them for granted until they are endangered or eroded. Instinctively, we are inclined to appreciate our rights even more when they are in jeopardy of being infringed.

In this sense, the time honoured adage that human rights are inalienable purely because they flow from a supernatural force is misguided and baseless, not because there is no such force but because such a force does not speak to humans in a single voice and rights should exist even if there were no God.

An undeniable fact is that human rights certainly do not emanate from a God. Logic would dictate that if rights were written by the hand of divinity, they would sustain themselves over time.

Experience shows that certain rights which were acknowledged and enjoyed by the people such as the right to enslave a person or even the right to be a slave, are no longer considered consistent with persuasions of modern civilization.

Perhaps the most sage observation on the subject was by Blackstone who said that the law was a truth to be discovered.

The wisdom of this statement does not lie in its original interpretation given to it by legal scholars, that the law had already been entrenched in society as eternal and immutable principles of good and evil, and has to be unearthed from its dormancy, but is personified by the subsequent statement of Justice Oliver Wendell Holmes, that the life of the law has not been logic but has been experience.

This dispels the belief among many that the law which secures rights of the subject has its genesis in natural law or the nature of the world.

The rights of the individual, when taken collectively, act as the fundamental postulate of any constitutional democracy. Not only must a right remedy a wrong that has been committed or obviate a wrong that ought to be prevented, but a right must be contrived according to circumstance and formally recognized. There are two basic tools that a State uses to recognize and secure the rights of the individual.

They repose in the constitutional and administrative arms of the State. Both are governed by separate sets of laws called Constitutional Law and Administrative Law separately where the former represents the law of the constitution or the charter of the State and the latter represents the law relating to the manner in which public authorities administer the policies of government, which are largely derived from the constitution.

Universities teach the two subjects separately and largely recognize these two disciplines as autonomous entities, the only known exception being the German system of offentliche recht which is public law which has the two limbs constitutional and administrative law.

Although the Constitution may be recognized by many as the fundamental postulate of State policy and the policy of its people, public administration existed much before established constitutions.

Ancient history records that early societies, represented by the Egyptian, Greek and Roman civilizations, had set up an administration which were mostly developed and run smoothly according to the needs of the day.

A set of rules for the administration, in the form of a constitution, was seen only in 1787 in the United States and in 1791 in some countries of the European continent.

The trend spread to the rest of the world in the 19th and 20th centuries. One distinguishing feature of both arms of the law is that the administration, and laws pertaining to public administration, is fairly constant, while the Constitution may change regularly.

In some instances, such as in the United Kingdom, there is no written constitution but there has always been an established and efficient administration. The European Community, which is in the same position, boasts of an exceptionally expedient and efficient administration, including a compelling and effective economic administrative legal system.

When it comes to recognizing and giving effect to the right of the subject, often, administrative law is applied and administered on a constitutional basis while constitutional law owes its sustenance and credibility to the institutions of public administration. Constitutional law is a rigorous discipline and its applicability is juridicalized to exclude political influence and nuances.

In developing the best formula for the judicial recognition of individual rights, many jurisdictions of democratic persuasions have embraced the German approached of unifying public law and considering that constitutional law and administrative law belong to the same family and that administrative law is constitutional law specified. In reality and truth, however, the marriage of the two must be cautiously solemnized and well reasoned.

The constitution must provide the administration with rules of public conduct by the civil service, ideally by devoting a substantial part incorporating rules of finances, services and administration. In other words, a typical Westminster model would not be desirable if it were to merely recognize the separation of powers between the legislature (parliament) executive (government) and Judiciary (courts) unless there are specific guidelines for action by these institutions.

A good example of a harmonious blend between constitutional legitimacy and administrative governance is the American Constitution which regulates administrative issues in Article II which addresses in its entirety executive power, among which arze contained provisions for the appointment and dismissal of public servants through impeachment.

Another example is the more recently adopted Swiss Constitution which in Article 178 empowers the Federal Council (the Government) to steer the federal administration and monitor activity of public administration.

The question therefore is, can the constitution go as far as it should, in not only setting out rules of organization but also stipulating rules pertaining to the conduct of the administration? Can the citizen be defended against action by the administration through explicit rules entrenched in the constitution ?

Some constitutions in this respect are couched in a protective perspective, defensively recognizing that, while the administration should be held reprehensible for abuse of the citizen, public administrative authority is positive and has the stamp of legislative legitimacy.

The problem with some constitutions is that they do not protect the citizen against the arbitrariness of constituent authority or power even if such power were to erode the liberty and equality of citizens and disregard basic principles of freedom and equality.

In this sense the constitution usually affords the citizen more protection against public administration as compared to the legislature.

An autochthonous constitution (a constitution rooted entirely in the country's native soil) should be empathetic to the needs of the people and should lay down principles of a public administration calculated to serve the needs of the people and ensure their rights.

Although a universally accepted definition of public administration has not yet been accepted, it remains that public administration must essentially be a tool of the government and answer all the what questions of governmental activity unambiguously. This would be the start of diligently addressing citizens rights.

Public administration, which should be nurtured in a dynamic environment, must change with the exigencies of time and develop new answers to new issues that may emerge. Public administration must primarily be the instrumentality that achieves the aims of the government through the effective mobilization and management of resources.

In other words it is the art and science of management when it comes to affairs of the State. The politics of wisdom should not be invested in only winning an election but rather in continuing to win elections by offering the people an efficient public management which ensures their well-being through the proper administration of their rights.

These rights should be determined with the sole view of correcting deficiencies and wrongs and not with the aim of maintaining basic values enshrined in ancient political philosophy.

The concept of "governance" is as old as human civilization. The most simplistic definition of "governance" would be that it is the process of decision-making and the process by which decisions are implemented (or not implemented as the case may be).

Governance can be categorized into several institutional bases and used in several contexts such as corporate governance, international governance, national governance and local governance.

Essentially, since governance represents the process of decision-making which ineluctably involves a process by which decisions are implemented, it becomes necessary for an analysis of governance to focus on the formal and informal actors involved in decision-making and implementing the decisions taken, along with the nature of formal and informal structures that have been set in place to arrive at and implement the decision.

Government is one of the key players in the game of governance. Other players involved in governance vary depending on the level of government that is under consideration.

Whilst in urban areas other actors could include provincial councils, municipal councils and urban councils, in rural areas, they may include influential land lords, associations of peasant farmers, cooperatives, NGOs, research institutes, religious leaders, finance institutions political parties, the military etc. The situation in urban areas is of course much more complex than in the rural environment.

In the urban equation, all actors other than those in government service and the military are grouped together as part of the "civil society." In some countries in addition to the civil society, organized crime syndicates also influence decision-making, particularly in urban areas and at the national level.

Formal government structures are one means by which decisions are arrived at and implemented. Good governance has eight major characteristics.

They relate to participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive functions and are carried out strictly according to the rule of law.

These major characteristics ensure that the public is safe from corruption or that corruption is minimized to an irreducible minimum and the views of minorities are taken into account.

Above all, overall good governance ensures that the voices of the most vulnerable in society are not only heard but are also taken into consideration in decision-making. It is also responsive to the present and future needs of society.

Participation by both men and women is an integral element of good governance. Participation, which needs to be informed and organized, may be either direct or through legitimate intermediate institutions or representatives.

Whilst representative democracy does not necessarily mean that the concerns of the most vulnerable in society would be taken into consideration in decision making. Nonetheless a participatory governance most often ensures a balanced existence between freedom of association and expression on the one hand and an organized civil society on the other hand.

What then are rights that the citizen would seek? Firstly, it is to have equal citizenship, no matter who a person is or where she lives. This cannot be answered by the simplistic argument that all citizens are equal before the law. It goes deeper to the roots of livelihood and lifestyle and the right not to be poor. A fundamental restructuring of urban and rural areas is the first step toward attaining equality among people.

As for measurement of the quality of life improvements, it would not be difficult for a government to determine the overall holistic quality of life of its subjects by conducting a survey as to how many are happy or content with their quality of their lives and what they lack.

The Human Development Index (HDI) of The United Nations, launched in 1990, the latest of which came out in 2003, aims at reinstating people in the epicentre of the development process.

Equal employment is yet another right that should be restored if a society were to have lost it through mismanagement of government over the years. This has to do with the creation of employment opportunities through expansion of commerce and trade.

In this context, and indeed with regard to other rights mentioned above, an effective analogy is the new public management (NPM) which embraces private sector norms and values, including a focus on customers and an abiding dependence on market mechanisms, the fragmentation and decentralization of public services and the revision of working practices within such institutions which would all go towards achieving more efficient services ad facilities for the people.

In order to make sure that they are enjoyed by all of humanity, any community will have to make sure that human rights are a matter of course and are ensured by a guaranteed and contrived effort by all.

Human rights and their worth cannot strictly be evaluated. Traditional modes of evaluation, with which the voter usually goes to the polls in a democratic environment to select the government, are value for money, efficiency of service delivery and customer satisfaction.

At best, these yardsticks have largely been political and economic abstractions which have prompted some academics and practitioners to consider the subject of governance-evaluation as being immeasurable or too much trouble. The issue is further aggravated by the fact that there is no scientifically approved or accepted model to assess the quality of public governance.

The bottom line is that human rights are enjoyed by the citizen through good governance. The first conclusion that one can reach is that good governance is no longer assessed by the provision of services by a government or other governing body but rather by the extent to which improvements were made possible to the quality of life of the individual.

The second is that good governance has an international connotation, in that it should be assessed with the assistance and application of international standards. Also, good governance must be rewarded, for example through rewards along the lines of the Nobel Peace Price for best practices in good governance.

Recognition should be given through satisfaction surveys where a direct causal nexus could be drawn between the manner in which the governed was enabled to reach a level of satisfaction with governance provided.

Positive changes in expectation and results obtained should be weighed against perceived adequacies of government in the provision of services. Trust in government, through increased levels of health and well being ( which must necessarily include a sense of security of life, habitation and movement) both from cultural and religious perspectives should be a primary indicator.

The elimination of corruption is a key to good governance, and civil society, which has been overwhelmingly proactive in building awareness on human rights issues, has succeeded in persuading the international community of the value for transparency and honesty in public transactions.

Arguably, the most important key to good governance is benevolence and understanding. A good government must assure its people that it has their well being at heart and pro actively move towards achieving that goal.