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JUSTICE
IN THE WORLD |
No.3 |
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JUSTICE
IN THE WORLD |
No.3 |
OPINION
Human
Rights and Courts
By
CARDONA FERREIRA
President of the Portuguese Supreme Court of Justice
Préface Cardona
Ferreira a accomplit ce qu'on peut dire une "carrière classique
", en ascension continue, depuis 1961 jusqu'au moment présent: il
a été substitut procureur et procureur adjoint au Ministère Publique;
Juge de première instance; Sécretaire du Conseil Supérieur de la
Magistrature; Conseiller d'Appel; vice-président et puis Président
de la Cour d'Appel de Lisbonne (au Portugal, les Présidents des Cours
Superieures de Justice sont elus); Conseiller de Cassation; Président
de la Cassation et, par inherence, Président du Conseil Supérieur de
la Magistrature. A
côté de cette carrière professionnelle, une permanente activité
culturelle, scientifique et associative, complémentaire et
enrichissante de celle-là: membre de Commissions de Révision Législative
en matière d'Organisation Judiciaire et de Réforme du Code de Procédure
Civil; membre de la Direction de l'Association des Juges Portugais
pendant quelques années; membre fondateur de l'Association des Juristes
des sept Pays de Langue Officielle Portugaise; membre de la Direction de
"Direito a Justica",
organisation représentante de l'Association Internationale des Juristes,
au Portugal; diverse collaboration juridique disséminée par des livres
et revues de la spécialité; collaborateur de "Coletânea de
Jurisprudência "; etc. "le rêve commande la vie". Alvaro
Reis Figueira I
As
President of the Supreme Court of Justice of Portugal I can't help being
interested, in a magazine so important and meaningful as "Justice
in the world". It is my great pleasure to give my contribution to
such a significant magazine. Now,
it seems reasonable to present myself, as the representative of the
Institution I have the honour to preside. The
President of the Supreme Court of Justice of Portugal is a Judge-Counsellor
(name given to the Judges of this Supreme Court of Justice) elected by
the judges thereof, every three years, to preside to the Supreme Court
of Justice of Portugal and, by inherence, to the High Council of the
Bench and to other Institutions, being the representative of the
Judicial Branch, the fourth figure of the State, after the President of
the Portuguese Republic, President of the Parliament and the Prime
Minister. I
end this short presentation by saluting all the citizens of the several
States, to whom the Judges, (also citizens) perform their difficult, but
also, passionate task: "In
Administering justice, the courts shall safeguard the citizen's rights
and legally protected interests, punish violations of the democratic
legality and settle public as well as private conflicts of interests",
according to the article 202, n.° 2 of the Constitution of the
Portuguese Republic. II In
a few words, I would like to refer the meaning of this recent period,
and in particular, the year of 1998, concerning the International
Judicial area. In
1998 we can distinguish, an extremely important stage, that led us to
see the importance of justice, concerning the real life of people and
States with important antecedents. 1998,
was, indeed, the year of the Human Rights issue and among other
important events, stands out the 50th anniversary of the Universal
Declaration of the Human Rights, an inevitable boundary in the history
of mankind: December 1948/1998. Such
Universal Declaration, filled with dreams and sensibility, must be our
most realiable reference for the everyday solutions, according to the
article 16, n.2 of the Constitution of the Portuguese Republic. It is a
dream and a possible one depending on men's will. Let's recall the art.'
n.° 1 of the Universal Declaration of the Human Rights. "All
human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in
a spirit of brotherhood." In
truth, this rule is such a great example of civism that, if it was
universally and strictly accomplished, probably we wouldn't need any
other rule. The
Universal Declaration , already mentioned, has a long historic past of
proclamations, of fundamental rights and has been folowed by others.
For
instance: The Magna Carta (1215), the "Bill of Rihts",the
"Declaration of the State of Virginia" and the "Declaration
of Independence of the United States of America"(1776) and the
"Declaration of the Human Rights and of the
Citizen"
(1789). And, subsequently, among others, the "European Convention
of Human Rights" (1950) and the "African Commision on Human
and People's Rights. To speak to the purpose, I believe that in 2000, we
must commemorate the 50th anniversary of the European Convention. As a
matter of fact, it is a remarkable turn of millenium for Portugal, with
the 500 th anniversary of our arrival in Brasil, and after the
commemoration of the achievement of Vasco da Gama (1998) and still the
25 th anniversary of the re-establishment of the democracy (1999). Men
understood that the defense of Human Rights, would need courts, and
independent and impartial judges to guarantee them. And
then, the way for the "globalization" of justice, remained
opened, being 1998 a remarkable boundary. Nowadays,
we find several International Courts, namely, concerning the space in
which Portugal is inserted. And
without making futurology, I wouldn't be surprised, if in a near future,
an incorporated system of an International Judicial Organization would
become real. At
once, according to the article 92.° of the United Nations Charter, it
was installed the International Court of Justice, in Haia, aiming to
decide all the questions and issues foreseen in the United Nations
Charter. In
what concerns the European Convention of the Human Rights and of the
Council of Europe, it was installed the European Court of the Human
Rights, in Strasbourg, whose jurisprudence has influenced the countries
in connection with the Council of Europe and others. And,
in 1998, following the renowned Protocol 11, was modified the
functioning of the European Court of Human Rights, that was recreated,
and whose Jurisdictional powers were increased. Such was accomplished in
November 2, 1998 during a ceremony in Strasbourg where I've been pleased
to hear the speach of His Excellency the President of the Portuguese
Republic. Meanwhile
and concerning the European Union, the Court of Justice and the Court of
1st Instance, both settled in Luxembourg, continued their activity,
keeping up with the growth of influence of the Communitarian Law. The
influence of jurisprudence is so significant that many people know by
"Bosman Law", followed without discussion, what is only a
decision of the Court of Justice, concerning a person called Bosnian. And
besides everything else, that could be said, I call your attention to
the fact that in 1998, in Rome, it was signed an official report that
founded the International Criminal Court, to be installed in Haia,
subscribed by Portugal. This Court will have the legal capacity to judge
crimes of genocide, crimes against mankind, crimes of war and crimes of
aggression.
I think it is indispensable the effective installation of this Court with character of permanency, avoiding, this way, the proliferation of Courts "ad hoc". In
my opinion, the tendency, that seems obvious to the "globalization"
of Justice or to the rise of a justice beyond frontiers, brings along
the appearing of a public opinion of the same dimension; and, with it,
the confrontation of several national points of view, thoughts and
emotions and, at the end, a big possibility of the appearance of the
legal and judicial values which will be the values of the 3rd millenium,
with the tendency of exceeding the most restricted sensibilities and, in
fact, to make universal the values of the future to come. I
don't think that this tendency involves risks of any kind for the
sovereignty of the States, not only because the traditional concept of
sovereignty tends, more and more, to be in harmony with their own
culture, on the other hand, such concept could, eventually, project
itself for a second meaning, familiar with the first, with a justice
beyond frontiers reach tendency. It is the effervescence of the concept
of State-Nation, because concepts have also their own lifes. We
are truly going through an historical moment, which isn't yet, the
reaching of new safe values, but the turbulence of some traditional
values. Also,
besides other events of general impact, it was relevant, in 1998, the
appeal of the Pope to the respect of the Human Rights, and especially,
that the death penalty would end everywhere, being Portugal an example,
for a long time, based on our own culture. IIII'll
try to give a more concrete form to the ideas mentioned before: I
think that the Universal Declaration of the Human Rights (or Human
Rights) had, as a matter of fact, a fundamental importance in the
International Law and, more than that, in the understanding of the
humanist sense of life, concerning the individual and social levels. Not
only, by any profound innovation, because the right and wrong, the
universal judgement of values, are things that we apprehend or are at
least intuitive; but because the explanation, the textual formalization
emanated from the most representative International Organization of
States, ever known, gave such a special force to such a list of values. The
text of the Constitution of the Portuguese Republic, valid since the
beginning of the re-establishment of Democracy is, a doubtless
example of it, according to the article 16, n°2: " The provisions
of the Constitution and laws relating to fundamental rights, shall be
real, and interpreted in harmony with the Universal Declarations of
Human Rights". As
I said before, I recognize much of a dream in the Universal Declaration.
But it is important not to confound dream with unachievable utopia. The
dream can be accomplished and even if we won't be able to fulfill it in
its whole, all the steps given towards its direction are positifs.
According to the saying of a Portuguese Poet: "...dream commands
life, and whenever a Man dreams, the world jumps and advances, like a
colourful ball in the hands of a child". If
we stop dreaming, life would be meaningless. We
mustn't forget that, all around the world, even in Europe, there are
focus of quarells, martialism, xenophoby, racism, that must keep us in
permanent alert and always based on the International ruling. Please
note that the Universal Declaration of the Human Rights (1948) was very
much influenced, mainly, by the horrors occured during the World War
1939‑1945 and the inhuman orientation that caused them. As Guy
Harcher said ("Philosophie des Droits de 1'Homme"), "...stuffed
in fundamental freedoms, we keep forgetting that similar conquests must
sometimes be defended". The
Universal Declaration of Human Rights formalized the awakening of the
international conscience for the need of a formal support to the defense
of the Human Rights. Without
getting into extensive explanations, I can still refer that "Human
Rights" is a concept that can be sometimes confounded with
"Fundamental Rights", but in my oppinion, and to be exact, it
exceeds them. Human
Rights are of different kinds, as the ones of first generation,
concerning life, freedom, safety but also, namely, those of economic,
social, and cultural nature. In
addition, fundamental Rights (basic) hardly have real meaning without
the rights that are the result and concreteness of those. As
an example, I think that nowadays the right to life can't be appart from
the right to the quality of life. This
makes us think, whether or not, should be any hierarchy among Human
Rights. In a strict humanist point of view everything concerning the
right of personality doesn't allow hierarchy. But, the truth is that we
can't deny an over valuation of some rights comparatively to others. How
can we ignore that the right to life is the right of rights, although
unmistakable, with a no less important right to culture and education? IVA
special word about Courts and therefore about Judges. Wherever
men exist, differences, discussions and disputes will always be
unavoidable. It
is a sociological indication that really doesn't allow any doubt. Therefore,
it becomes also unavoidable that those differences must be and will be
decided so sociability may exist. Step
by step, we can reach these basic conclusions: The
controversies among citizens or among these and the State or any other
Institutions, are decided by the strongest contender, or it will be
decided for someone aside. This
means that we grant the privilege to "reason" of the force or
to the force of reason. Obviously,
the correct solution is the second one.
This
is what explains and justifies the existence of Courts, as organs with
the power to decide the conflicts that appear in each society of men. Only,
in order that the Courts could accomplish their purpose - with
impartiality and correction, the disputes - it is a "sine qua
non" condition that they have independence. It
has always been a natural feeling of the common citizen that the Court
and specially the judge, visible face of the Court, should be
independent, to accomplish their duty and guarantee the trust and
security of the citizens. For
sure, the independence is more a state of mind than a legislative "weapon".
But it is obvious that legislative framing is important. The
institutional way of respecting this aim, is in recognizing the activity
of the Courts, the image of a Branch, the Judicial Branch of the State,
as Montesquieu said, "Esprit des Lois", during the beginning
of the French Revolution that with all it's course's incidents would
become a final and important link in the recognition of the Citizens'
Rights, as shown, namely by Marcel Storm, "Raprochement du Droit
Judiciaire de l'Union Européene". Following
the same idea, with its popular nature, also with all the wisdom
inherent to everything genuinely popular, there is an old story about an
old German miller to whom Frederic of Prussia asked if he was aware that
he could confiscate his mill, without a compensation, the poor miller
had the courage to answer: Yes, I do, but I also know that in Berlin
there are still judges! The
task of these organs called Courts, is to decide all the differences,
with independence, exemption and correction. But,
following the same perspective, that Courts must performe their duties,
with independence, this can't correspond to an acting without
restrictions and limits, otherwise it would be a paradox concerning the
values of safety and confidence they must pass on. Therefore, it is
perfectly justified that the Courts have the competence to decide
concrete differences; but within a wish of no one's prepotence, as well
as, the Courts, that must reproduce an image of mutual interconnection
of the State Branch. And
the way to conjugate simultaneously the interconnection of the State
Branch with the imperative value of the judicial or jurisdictional
independence, is in the circumstance of the Courts being the first ones
to be subjected to the law, derived from the legislative branch of the
State or international and simultaneously due to the fact of being far
away from any kind of pressures in their concrete solutions ( Gomes
Canotilho and Vital Moreira, "Constituiyao da Repablica Portuguesa
Anotada", 3rd edition, 794). But,
the obedience to law, in a generic sense, means respect for the global
rules of each country, in the bottom of the hierarchy of law, starting
from the fundamental law - the Constitution. This
means, as corolary, that any Court shouldn't and can't apply, in each
concrete case, unconstitutional rules assumed by the representative of
the people in whose name, exercises his authority - this is the
Constitutional orientation of Portugal. As we just considered, the centre part of these problems consists in giving relative restrictions to the action of each Organ of Sovereignty, and also to the Courts, without prejudice of their independence in the resolution of each concrete case, considering the interpretation of laws according inclusively with the evolution of values, as Prof. Cabral Moncada teached, "they also have something of a living being, they live and palpitate" ("Filosofia do Direito a do Estado",II, 19). On
the other hand, is indispensable that justice should always be punctual. Already,
in the beginning of the XV century, a portuguese prince wrote that:
"...those who win late become defeated" (Oliveira Martins,
"Os filhos de D. Joao I", 6th edition, 396) It
is urgent that law, namely, Procedure Law and Organic Law, have as
stipulated position that the celerity of these times, end of the century
and millenium have no compassion with delays of years, of the judicial
proceedings. The terms have to be reasonable,as short as possible,
according to the article 6 of the European Convention of the Human
Rights. The
slowness of Justice, that nowadays is a regrettable reality, has several
causes, including behavioural and cultural, but above all, it is the
result of interests in delaying and in some deficient preparation, as
well as, in the common non‑existance of the appropriate human and
material means. VBut
in the bottom of all this, are the laws that should result of the
prevision of their utilization. The
slowness is like a disease. The
causes must be found, and than we must use the correct therapy. We
must have laws that confer guarantees, but not an excess of guarantees;
introduced in an articulated system; we must dispose of a correct
judiciary organization, concerning the populations and the conflicts; it
is important to have the definition of numbers not absolutely severe
with a small floating limitline in the number of proceedings, annually
distributed to the Judge (Judges must have time to think!) having a real
availability to reinforce with new Judges everytime the High Council of
the Bench finds it necessary; the delay of the proceedings must be
punished; it is important to give all Courts enough human and logistics
means. More
than a crisis of the Justice, there is a crisis in the Justice. It
isn't a question of words. There
is, however, endogenous elements, concerning the slowness mentioned
above. What
concerns the rest, it is, essentially, a crisis of society, as a result
of a general crisis of values, of the own crisis of the
State-Nation, perhaps, on the way to a new world wide perspective. The
slowness of justice is an endemic phenomenon, in space and in time, that
has suffered the reflection of the general crisis of the social values. This
is a time of changes, without new definitif values, it is still the time
of the traditional values in crisis. VIThe
global action of the International Union of Magistrates seems highly
positive. I
was in the opening session of the Conference in Porto, Portugal and that
was very important to me. I
wish that the UIM helps with the implant of the International Criminal
Court, already mentioned, that I entirely approve and if it has concrete
means for an efficient functioning, it may and must be an important
factor of peace and dissuades of facts of martial action and similars. The
International Justice, with all the difficulties that may bring, has a
final cause, clearly positive and desirable, which brings more safety
and interconnection among States. The
evident globalization of life, in all levels, witnessed by all, would be
without an important, fundamental pillar, if wouldn't also ,include the
Judicial Branch. In
my opinion it may take time, but it is inevitable and ...desirable VIITo
end these written words I express my vote of confidence injustice,
looking forward for better improvements, as it is vital. The
confidence it is indispensable to safety and serenity and consequently
to life in society and also to the correct search of solutions for the
existant problems. There
are moments when, in the middle of our overwhelming anxieties, it is
good to recall the message of Bertrand Russel concerning his conception
of the future world to come: "A
world of beings, deeply convinced, that their common interests exceed
those of competition, concerned with the accomplishment of the really
extraordinary possibilities that the human inteligence and imagination
can make it real. This world can exist if men want to". I
don't mean that everything is or will be, like Heaven. In
presence of the dialectics that I would call sceptical hope or
scepticism hopeful, of Bertrand Russel, allow me the vote that 1999,
will be an entirely New Year, end of the line of this millenium; and I
hope that all of us who are at the service of Justice, will be worth of
the people we have the obligation to serve and that , if 1999 wouldn't
bring us what I’ve been calling the re‑foundation of Justice,
will at last bring the revival of an image, more positive of Justice,
pillar "sine qua non"of Democracy, that will become fruitful,
renewed, to the approaching of the dawn of the XXI century. Lisbon,
February 17,1999 "Droits
humains et tours the justice" En
1998, un rapport officiel a été signè à Rome: il fonda le Tribunal
Criminel International, qui doit siéger à Haye et qui fut approuvé
par plusieurs pays. Ce tribunal a le droit légal de juger les crimes de
génocide, crimes contre l’Humanite, crimes de guerre et d'agression. L'installation,
à caractère permanent, de cette Cour est indispensable pour éviter la
prolifération de tribunaux "ad hoc". La
Déclaration des Droits de l'Homme a eu effectivement une importance
fondamentale en ce qui concerne le Droit International et, plus que
cela, en ce qui concerne la perception humaniste de la vie au niveau
individuel et social. On
vois bien le rêve dans la Déclaration Universelle des Droits de
l’Homme. Mais ce qu'on ne doit pas faire, c'est confondre le rêve et
l'utopie. Le rêve peut devenir réalité, ou presque. Selon la maxime
d'un poete portugais: "Le rêve commande la vie". D'un
point de vue humaniste, tout ce qui concerne le droit a la personnalité
ne laisse pas de place à la hierarchie. Mais la verité c'est qu'on ne
peut pas nier la survalorisation de quelques droits par rapport à
d'autres. Comment peut-on ignorer que le droit à la vie c'est le
droit par excellence, sans oublier, bien sur, le droit à la culture et
à l'éducation? |
