UN Minorities Forum: What about Judges?

The final session of the Forum was Session VII on “Concrete steps to advance minority political participation and to build capacity of minorities to participate effectively”. Andrew Khoo and I had decided to do a joint intervention during this Session, dealing with two points.

The first was a small amendment suggesting that the Draft Recommendations go further than just calling for Governments to not only take “special measures” to end discrimination but “actually ratify the relevant international conventions prohibiting discrimination” and enact “implementing legislation”.

The main thrust of our intervention, however, was perhaps unsurprising given we are both lawyers.

We pointed out that the Draft Recommendations did not contain much dealing with the Judiciary. We said that greater emphasis had to be placed “on the role of the Judiciary in serving its constitutional role as a check and balance to the Legislature and the Executive in their treatment of minorities”.

We pointed out that much of the success of the Voting Rights Act (which we said had been described by a participant from the US as “the single most effective tool against racism in the electoral process”) was achieved by “progressive and enlightened judges who saw the injustice caused to the minority community” and thus interpreted and implemented the Act judiciously. (I think that participant was probably John Payton, President and Director-Counsel of the NAACP Legal Defense and Educational Fund from the United States.)

Andrew and I thus proposed that a section on the Judiciary ought to be included in the recommendations. We suggested 3 main limbs, seeking to ensure that

• Judges are given adequate training on the scope and ambit of minority rights
• Minorities were given equal opportunities for appointment as Judges and
• In highly contentious matters involving minority rights, multiple panels of Judges should be reflective of the diversity of the population so that justice was not only done but seen to be done.

Our joint oral intervention, in full, is set out here as well as reproduced below.

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VII. Concrete steps to advance minority political participation and to build capacity of minorities to participate effectively

Joint Oral Intervention

1. Andrew Chin Hock KHOO, Chair, Human Rights Committee, Malaysian Bar Council
2. Shanmuga KANESALINGAM, Legal Adviser, Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism & Taoism.

Recommendation 19: We would suggest that this recommendation be amended so that Governments are urged not only to take special measures to end discrimination but to actually ratify the relevant international conventions prohibiting discrimination, and to enact implementing legislation to that end.

Judiciary:

Paragraph 32 of the Background document identifies the need for independent monitoring bodies to ensure that constitutional and legislative measures designed to increase political participation are put in place. Paragraph 53 of the Background document, and paragraph 10 of the draft Recommendations, sets out the need for minority participation within the Judiciary.

We feel that greater emphasis must be placed on the role of the Judiciary in serving its constitutional role as a check and balance to the Legislature and the Executive in their treatment of minorities. A commentator from the United States mentioned the Voting Rights Act to be the single most effective tool against racism in the electoral process – it must be recognized that much of that was achieved by progressive and enlightened judges who saw the injustice caused to the minority community and interpreted and implemented the Voting Rights Act judiciously.

To that end, we suggest that a separate section be inserted into the Recommendation document and the following measures be included:-

1. The Judiciary must be made aware of the crucial role they can play in ensuring that the participation of minorities in public life is not rendered illusory. Training should thus be provided to Judges and judicial officers on the rights of minority communities, and the special care that must be taken to ensure that when interpreting the constitutionality of laws and administrative practices, the rights of minority communities are given due regard.
2. Adequate opportunities be given to members of minority communities to participate in the Judiciary, with Judicial Appointments Commissions established in a manner that ensures that they are reflective of the wider community and ensures that deserving minority candidates for judicial office are not discriminated against in their appointment, terms of service and promotions.
3. In issues affecting the rights of minorities, care should be taken to ensure that the composition of a judicial panel (where more than one Judge is involved) reflects the diversity of the population. This is to ensure that justice is not only done, but seen to be done.

Tags: International human rights norms, John Payton, Judicial appointments, Judiciary, Minorities Declaration, NAACP, United Nations Minorities Forum, Voting Rights Act, ratification

Posts by Shanmuga K

Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 10 February 2010. You can follow any responses to this entry through the RSS 2.0.

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