Thursday, October 07, 2004

Real Human Rights

I have long felt uneasy about the name we give the Human Rights Act and the Human Rights Commission. It's not that I disagree with the act or institution per se. I'm just not sure that the issue they deal with (unlawful discrimination) is really a "Human Rights" issue. Not at least compared to the rights to life, liberty, due process, freedom of expression, etc. Are we devaluing the currency in applying this term too liberally? At least, I used to think, real Human Rights are not an issue in NZ so maybe it's OK to use the term more broadly. It was a wake-up call to read Dave's post at BigNews on Positive Human Rights Culture. Dave points out that the Government's treatment of Ahmed Zaoui is a serious breach of real Human Rights and takes issue with the Government calling the CUB evidence of a "positive human rights culture".

Now, I don't know to what extent my views differ from Dave's on the background issues. I support the CUB (and gay marriage), I believe prisoners should have recourse to due process when mistreated (but much better not be mistreated in the first place) and should not be subject to retrospective legislation (see previous post). Subject to certain reservations about free speech, I support the Human Rights and Race Relations Acts. But I agree with Dave that we should reserve the term Human Rights to real Human Rights issues. To do otherwise makes abuses less visible and eternal vigilance more difficult and less certain of success.

Our anti-discrimination legislation prohibits certain forms of discrimination on the basis that (in New Zealand today) the legal limitation of the discriminator's rights by this legislation is more than balanced by the practical limitation to the victim's ability to exercise their rights which would occur in the absence of the legislation. This is a pragmatic decision and in another society or at another time we might choose to outlaw quite different forms of discrimination. Under the present law we may not discriminate against employees, residential tenants or in the provision of essential services on the basis of race, gender, sexual orientation, religion, political views or age but we may discriminate on the basis of star sign, hobbies, hair colour, height, weight or breast size unless these are held to be surrogates for race, gender etc. The law presumably considers that systematic discrimination on these grounds is unlikely and that for every boss who would seek to hire a personal secretary with a 38C bust there is another whose wife would hire him a 30A. The rules apply in only one direction. A person averse to working for Jews, renting a house from an ACT supporter or shopping at an Indian grocery may indulge their prejudices with impunity.

Real human rights are based on fundamental principles and apply universally to all times and societies. We rarely have difficulty in agreeing on these principles. Sometimes we may not like the result when these principles are applied to specific cases but that is because our gut reactions are not thought through. Mature reflection will show us that a compensation award to criminals is a consequence not of a bad law or an activist judge, but of prison officers behaving badly. And that's why we need to uphold human rights and the rule of law - unless we would have our own rights conditional on the gut reactions of others. It's why we should enshrine them in a stengthened and entrenched Bill of Rights. And it's why we should stop confusing it with perfectly good but non-universal legislation.

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