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DownLoad - Responses to Initial Answers 339kB |
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RESPONSES TO THE INITIAL ANSWERS given by the Northern Ireland Human Rights Commission (NIHRC) to questions from the Ulster Human Rights Watch (UHRW) about the Consultation document "Making a Bill of Rights for Northern Ireland"
Answer NIHRC: The Commission thinks that the commitments in question enshrine certain principles, of which we approve. Comment UHRW: The NIHRC clearly indicates in paragraph 4 of the Preamble: "building on the principles enshrined in the Belfast (Good Friday) Agreement, namely: a commitment to … a total and absolute commitment to … … a commitment to … the better protection of …" In its Preamble the Commission does not indicate that it is building on the principles enshrined in the commitments of the Belfast (Good Friday) Agreement, nor have any of those principles been enumerated. The answer from the NIHRC is confused and confusing. If the commitments are not the principles and if the principles are "enshrined" in the commitments, then what are those principles ? Key criticism: It appears that from the beginning of its work the NIHRC did not have a clear idea of which principles it should build the Bill of Rights on. This issue is fundamental and requires a lot of work which has yet to be carried out.
Answer NIHRC: While the Commission recognises that terrorism was a major issue in Northern Ireland (and is still an issue), we believe that the troubles were about much more than terrorism. In essence, the troubles have been about a conflict of national identities – between those wishing to be Irish and those wishing to be British. We therefore think that the word "conflict" best sums up the situation. It is not meant to be a value-laden term. Comment UHRW: The definition of the conflict given above is not provided anywhere in the Consultation document. The meaning of the word "conflict" taken in the context of the proposed Bill of Rights, for example in paragraph 5 of the Preamble, or in clause 8 (a)(1) is clearly related to violent conflict in the sense of war. Moreover, no reference is being made about a conflict of national identities. The use of the word "conflict" is misleading and does not reflect the reality of the situation in Northern Ireland. In a democratic society the right to freedom of opinion and expression does not justify any member of the community using violence to achieve his/her own ends. Therefore the use of terror is illegitimate and illegal and when it becomes the source of sustained violent troubles, as is the case in Northern Ireland, it is the major issue which needs to be addressed. Key criticism: It appears that the NIHRC has not yet analysed in depth the reality and the gravity of the situation in Northern Ireland, although this analysis is vitally necessary.
Answer NIHRC: The Preamble begins with the phrase "The people of Northern Ireland…" and it refers to "main communities" only in the phrase "the rights of both main communities and all other communities in Northern Ireland". The Commission does not therefore believe that it has singled out "two" main communities. Comment UHRW: Although the Preamble refers to "other communities" NIHRC has certainly distinguished between "both main communities" and "all other communities". The emphasis on the two main communities, which appears in the Preamble, is later reflected in clause 3(b)(2)(b) of the Bill of Rights. Dividing the people of Northern Ireland into two main communities and other communities is a way of institutionalising division among the people which has the potential to create uncontrollable problems for the whole of society. Key criticism: The Commission should have given much more consideration to the consequences of its approach in the context of Northern Ireland and of the UK as a whole.
Answer NIHRC: Our answer to question 2 above is applicable here. Comment UHRW: Despite the fact that the NIHRC acknowledges "that terrorism is a major issue in Northern Ireland", it does not deal with it anywhere in its documents and therefore does not offer any means of resolving this problem. Terrorism is the true cause of the problems in Northern Ireland because it is an attack on democracy and therefore an attack on human rights and fundamental freedoms. Key criticism: Anyone involved in the preparation of a Bill of Rights, especially for Northern Ireland, cannot sideline this major issue, as unfortunately the NIHRC has done so far.
Answer NIHRC: Clause 15 of our proposed Bill of Rights requires a court, tribunal or other body, when interpreting the Bill of Rights, to "promote the values that underlie an open and democratic society based on human dignity, equality and freedom". Comment UHRW: In its proposed Bill of Rights, the NIHRC only made reference to a "democratic society" for the first time in clause 15 (1), which is a reproduction of Article 39(1) of the Bill of Rights of South Africa. However, the Commission does not emphasize the importance of democracy and a democratic society as a foundation stone on which to build the Bill of Rights. This should have been done in the Preamble. Since the NIHRC is so keen on replicating the South African Bill of Rights, why have they not made mention of democracy in the Preamble of the Bill of Rights as was done in the case of South Africa ? Key criticism: It appears that the NIHRC has not fully appreciated the importance of situating the Bill of Rights within the framework of a democratic society.
Answer NIHRC: If a person convicted of terrorist offences had served his or her time in prison as determined by law, he or she would be available to have access to the Executive, subject to whatever rules the Executive or Assembly themselves were to impose on such access. While in prison such a person would presumably not have such access. Comment UHRW: Under the Northern Ireland Act 1998, elected terrorists can have access to the Executive. No rules have ever been imposed by the Executive or the Assembly in order to control such access. The Bill of Rights in clause 2(1) makes clear that "elected representatives shall be entitled to fair, full and effective participation in the Governance of Northern Ireland". On the basis of this provision elected terrorists will therefore be given unrestricted access to the Executive if the proposed Bill of Rights is enforced. From then on, the Executive or Assembly will not be allowed to introduce any restrictions against elected terrorists. Key criticism: The NIHRC has obviously not envisaged how clause 2(1) will be used by terrorists in order to access the governance of Northern Ireland.
Answer NIHRC: There is nothing in international human rights law to say that people elected to the same legislature have to be elected under the same electoral system. Countries in the European Union use different electoral systems when electing Members of the European Parliament. Comment UHRW: It should be recalled that the initial idea was that the people of Europe in the different countries of Europe would elect their representatives to the European Parliament under the same electoral system. For political reasons the states of Europe did not agree to that and organised elections to the European Parliament according to the electoral system of their choosing. This is one of the causes, among others, of the democratic deficit in Europe which has been so often denounced. However elections to the European Parliament, made up of elected representatives from 15 different countries, cannot be compared with elections to Westminster, the Parliament of the United Kingdom. These are two separate cases, which cannot be compared. People belonging to the same country should have the democratic right to elect their representatives to their national parliament on the basis of the same electoral system. This is undeniably the best way to preserve and promote democracy within a state and as a result to guarantee the protection of human rights.
Key criticism: The NIHRC apparently has not realised that the electoral system used for electing representatives to the national parliament is a means of preserving democracy so as to protect human rights.
Answer NIHRC: The Commission believes that people convicted of a crime should be sentenced in accordance with the law. Once they have served that sentence they should not be discriminated against unless there are objectively valid justifications for that discrimination. For example, it would be justifiable to discriminate against a convicted paedophile if he or she were to apply to work in a children’s home. Comment UHRW: The NIHRC misuses the word ‘discrimination’. Discrimination means "unfair treatment of a person". Therefore, those who "possess a criminal conviction" and because of this conviction are denied access to a work or a function, cannot be discriminated against. The treatment they receive is fair and is recognised as such in a democratic society. Key criticism: The NIHRC has obviously not given enough thought to the question of discrimination and is misled in its reasoning.
Answer NIHRC: Groups which are unlawful under the law would not be recognised for the purposes of clause 4.8. Groups which are lawful, and which can make a case for saying that they are treated unequally, could request laws, policies and programmes aimed at achieving and sustaining full and effective equality. Comment UHRW: Groups can appear lawful under the law and at the same time pursue aims which are not lawful. This is a reality in Northern Ireland, particularly with terrorist-led residents’ groups. Given the response of the NIHRC, it appears very likely that terrorist-led residents groups can use clause 4.8 to request the adoption of laws, policies, programmes and activities aimed at strengthening their position under the pretense of a right to equality. Key criticism: Instead of solving a problem, the clauses proposed by the NIHRC have the potential to seriously aggravate the situation on the ground.
Answer NIHRC: The Commission felt that Article 2 of the European Convention was, on its face, weak in its protection of the right to life and that adding a provision already approved by members states of the United Nations (including the United Kingdom) would strengthen that protection. The added provision would not advantage terrorists any more than it would advantage anyone else. Comment UHRW: As mentioned earlier, the major issue in Northern Ireland is terrorism and the on-going threat it poses to the people of the province. The right to life guaranteed by Article 2 of the European Convention of Human Rights is regarded as a fundamental right by the European Court, although not absolute. Moreover, the European Court gives a restrictive interpretation to the limits set to the right to life mentioned in Article 2.2. Therefore, this right is already well protected under the European Convention. Increased restrictions against law enforcement officials like those suggested in clause 6(a)(3) would undoubtedly play especially to the benefit of terrorists, further endangering the law-abiding people of Northern Ireland. Key criticism: The NIHRC has apparently not realised that clause 6(a)(3) would deprive law enforcement officials of the means of exercising their duty in the context of Northern Ireland.
Answer NIHRC: The Commission felt that the right not to have inferences drawn from silence is a basic human right for someone charged with a crime. The principle recognised throughout the world is that a person accused of crime should be treated as innocent until proven guilty by the prosecution. The European Court of Human Rights and other international human rights bodies have stressed the importance of courts not drawing inferences from an accused’s silence. Comment UHRW: The principle of the presumption of innocence is essential, particularly in criminal cases, and must certainly be protected. The right to remain silent and not to be constrained to incriminate oneself has been acknowledged by the European Court, and we approve this. However, the right for a person charged not to have adverse inferences drawn from his/her silence is a different right. Although the European Court may have stressed, in some cases, the importance of not drawing inferences from the accused’s silence, this right has not yet been included in an international convention. This matter is not of such importance as to necessitate being mentioned in the Bill of Rights and should be dealt with in subordinate legislation if necessary. Key criticism: The NIHRC has not made a clear distinction between rights which must be mentioned in the Bill of Rights and those which are of secondary importance.
Answer NIHRC: The omission of the word "identified" was entirely unintentional. We had not noticed it until you pointed it out to us. Thank you for drawing this to our attention.
Answer NIHRC: The phrase "victims of the conflict" is drawn from the Northern Ireland Executive’s Programme for Government 2002-2004, as explained on page 55 of our consultation document. At no point does the Commission suggest that a terrorist is a victim. Comment UHRW: A programme for Government for two years, emanating from the Northern Ireland Executive, can hardly constitute a basis of reference for elaborating a Bill of Rights which is supposed to conform to principles of international law of the highest standard. Any clause of the proposed Bill of Rights should have been analysed in the context of Northern Ireland, taking into account how it can be used particularly by terrorists. Unfortunately, it is most likely that clause 8(a)(1) and 8(a)(2), which refer to the "victims of the conflict" will be used by terrorists and to their benefit. Key criticism: The NIHRC does not appear to have undertaken the vital task of analysing clause 8(a)(1) and 8(a)(2) in the context of Northern Ireland.
Answer NIHRC: The Commission felt, as explained on page 78 of our consultation document, that Article 11 of the European Convention on Human Rights, as interpreted and applied in Northern Ireland, was adequate to deal with the issue of parades. Comment UHRW: Although Article 11 may be adequate to deal with the issue of parades, the problem has persisted for many years and is still not resolved. Appropriate clauses, opening a way of resolution to this problem could have been introduced to the benefit of all the people of Northern Ireland. Key criticism: It is highly regrettable that the NIHRC has not made any proposition aiming at defending the right to freedom of peaceful assembly.
Answer NIHRC: The phrase "all necessary means" does not appear in clause 13.5 and members of linguistic communities – whether wanting to use Irish, Ulster Scots or some other language – will have the right to use it in dealings with public bodies only "where there is sufficient demand". Comment UHRW: On page 83 of its document, the NIHRC has indicated that there is already "sufficient demand" for the Irish language. According to clause 13.5, people who want to speak Irish in dealing with public bodies will have the right to do so. Consequently, it is only logical to conclude that the state will have to provide all necessary means for public bodies to be able to deal with those who want to speak Irish. Key criticism: The NIHRC has not given a clear answer to the question asked.
Answer NIHRC: The Commission’s intention was not to make the declaration of a state of emergency overly difficult but simply to ensure that when one is declared it has the support of the democratically elected legislature. This is in line with international best practice. Comment UHRW: The NIHRC has introduced a set of provisions which make the declaration of a state of emergency extremely difficult. At first, a state of emergency can only be declared by the relevant legislative authority for only 21 days, provided that specific restrictive conditions are met. Any extension of a state of emergency has to be "supported by a cross-community vote of at least 60 % of the members of the legislative body in Northern Ireland". Under the present constitution of the Northern Ireland Act 1998, the extension will as a result have to be approved by terrorist-related politicians, which is most unlikely to happen. In case of an upsurge of terrorist violence, it would become practically impossible to deal with the situation, once emergency powers have been devolved to the Assembly. Key criticism: The NIHRC does not appear to have envisaged that the effect of clause 17 would be to deprive the competent authorities of the possibility of dealing efficiently with a state of emergency.
Answer NIHRC: Terrorism could qualify as an "other public emergency". This is the way the European Convention on Human Rights and relevant United Nations treaties deal with the issue. Comment UHRW: Because terrorism is the major issue in Northern Ireland, it would have been logical to make mention of it in clause 17(b)(2). Key criticism: Because the NIHRC has sidelined the major issue of terrorism, the Bill of Rights does not reflect the reality of the situation in Northern Ireland.
CONCLUSION The principles on which the NIHRC has built its Bill of Rights are not yet clearly defined, nor are there clear references to a democratic society as one of the foundation stones of the Bill. The NIHRC has unfortunately sidelined the major issue at stake in Northern Ireland, which is terrorism. Important issues, such as parades, have been overlooked, and the scope of application of many clauses such as that referring to "victims of the past" have not been envisaged nor assessed. The answers provided by the NIHRC are clear evidence that there is still a tremendous amount of work to be done in order to draw up a proper Bill of Rights for Northern Ireland. Many clauses of the proposed Bill of Rights will provide terrorist organisations with the means of furthering their aims. Instead of solving problems, the Bill of Rights will increase terrorist activity and civil unrest in Northern Ireland and in the whole of the UK. |
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