FOR THE RECORD: Wickham’s complaint
Last week, Peter Wickham in his column People & Things delivered a broadside on human rights as practised in these parts which must not go unanswered.
His general thesis was that when we got our 1966 Constitution, it reflected the prevailing views and conceptual thinking of the founding fathers of that document.
His beef is that since that time it has “become clear that we do not understand that human rights cannot be guaranteed if our concept is fossilized like the dinosaur”.
According to him, all laws need to be revised as time passes, and in particular the laws relating to human rights and the dignity of the individual should be reviewed and brought up to date because as he puts it, “they powerfully shape the type of nation that we are”.
He then makes the remarkable but, in my opinion, incorrect claim that our record reflects poorly on us as a nation since we appear to believe that human rights is almost exclusively related to the “right to life”.
He is saying that except in the case of right to life, our national human rights record is poor.
Where does Wickham get this idea? Is he saying that, except for right to life cases, successive Governments have not respected the human rights provisions in the Constitution? Sweeping generalizations of this kind do nothing for the enhancement of public debate.
Wickham, who often reminds us that he has had some exposure to the discipline of law, and who once lectured on political science at our university campus, must give us chapter and verse of his allegations, because if he is correct, then we have a major problem in this country which would affect every one living or visiting here.
But there is more.
He goes on to say that the Europeans and Americans have been anxious to modernize their conceptions of human rights and that their courts have become their allies in this regard.
And then he makes this colossal non-point.
Hear him: “This is an enviable role that our local courts appear to have been disinterested in assuming.”
Where does Wickham get this idea?
Has he studied the record of the local courts as they have interpreted the human rights chapter of the Constitution? Are we a constitutionally backward nation?
Briefly, he refers to the savings law clause, lynching and corporal punishment, but reserves major comment for the issue of discrimination on the grounds of sexual orientation.
He says that the European Human Rights Commissioner has identified elimination of discrimination against homosexuals as a core issue and that the United Nations Human Rights Committee since 2007 has “expressed concern over discrimination against homosexuals” in this country.
Wickham points out that then Minister of Foreign Affairs Chris Sinckler said that Government did not intend to consider recommendations to legalize homosexuality.
Two points matter. What does Wickham’s complaint have to do with any court, and how does his complaint support his view that there is some role which “our local courts are disinterested in assuming”?
If Wickham has a complaint, at all, it is against executive action, or non-action, as the case may be. It is only if a court is seized of the issues in a case brought before it, that it can rule.
The second and related point is that sexual orientation is not a protected human right in our Constitution, so that even if a case were brought, there might be some considerable difficulty in so framing the matter that the alleged “discrimination” could become justiciable on constitutional grounds.
If Wickham wants to do anything, he should try to promote serious analytical debate about human rights issues which are dear to his heart.
He cannot hope for serious debate when he makes wild swipes like blind Allder about complex issues that lie at the intersection of law, the role of the judiciary in constitutional interpretation, the special place of the Constitution, and the plenipotentiary political role of the people in declaring a Constitution. He has to wheel and come again!