Not for judges alone

Essentially, her argument, which is one I have argued myself, is that human rights are meaningless if not treated as indivisible. In other words, citizens should have as equal an expectation that the law protects their freedoms, as it provides for their ability to demand fair and equitable treatment in the distribution of the resources of the State.

For example, the Government ought not to be reintroducing hangings as a means of protecting the public from criminality, without also examining its performance on providing viable education alternatives for those whose life opportunities lead them down the path of criminality, often ending up on death row. In this context, has anyone examined the socio-economic profile of the prison population in Trinidad and Tobago? Clearly, the analysis that Prof Antoine presented provided far greater depth on how and why judges could define their role as going beyond the traditional focus of defending the rule of law to address inequality.

From a layman’s point of view, it sounds simple enough, but in fact the relationship between human rights and the rule of law is complex, particularly when equating civil and political rights with economic, social and cultural rights.

But what can a judge rely on to determine whether the Government has taken a fair decision in allocating resources to providing all its citizens with equal access to quality education or healthcare or to promote their identities and wellbeing? Judges need evidence. This is the conundrum of economic, social and cultural rights.

Although critics may not recognise some economic, social and cultural rights as important legal rights, there is agreement on the responsibility of the State in defending the right to work and the right to property. Also, the right to food is considered an economic right, nevertheless it’s also a fundamental right for the protection of an individual’s life.

There is also general agreement on the right to special protection for children. To enforce this right, the Government has to provide and assure health, food, education and property. Furthermore, the protection and promotion of these minimum standards of education, health and wellbeing are closely related with the development of the nation. If that is so, the responsibility of addressing inequality should not fall to judges alone. Where are our economists and politicians on this issue? Many years ago, I worked with the United Nations Special Rapporteur on the Right to Health. He was a lawyer by training, but argued for two ways of advancing human rights. One way is via the courts and the other, by bringing human rights to bear upon policymaking processes. The two approaches are intimately related and mutually reinforcing.

The policy approach demands close cooperation among a range of disciplines and experts and demands vigilant monitoring and accountability, which should take the form of publicly available rigorous human rights impact assessments that check whether the relevant policy has delivered positive human rights outcomes consistent with the State’s legal commitments.

If we are serious about human rights it cannot be left to judges and lawyers alone.

If we are serious about addressing the protection of civil and political rights and the progressive promotion of economic, social and cultural rights, then economists and social scientists must also engage. Human rights must be integrated into policymaking and experts from all disciplines must take responsibility to enable and monitor the Government in its performance against the benchmark of equality.