A. A dministration
of justice and the rule of law
National human rights institutions are part of the rule of law and support the administration of justice. Like NHRIs, the judiciary has an independent status. It also has a
defined and well-understood area of competence. An attack on that independence or
that competence is an attack on the rule of law.
It may be that the judiciary is weak and not as independent as one would wish in some
countries. Where this is so, efforts should be made to strengthen it and its independence as a separate issue. It is not appropriate to give an NHRI an oversight role over
the courts as a means to these ends. Some countries have established mechanisms such
as judicial oversight bodies, usually themselves formed of judges, to deal with problems
relating to the conduct of judges, including bias. Judicial oversight is not an NHRI function.
To avoid confusion, it is important to clearly lay out in legislation the precise roles and
responsibilities of an NHRI and to sharply contrast its jurisdiction with that of the courts.
Their different spheres of responsibility should also be consistently and clearly publicized.
The rule of law is a State responsibility. It informs and structures the effectiveness and
integrity of the entire justice system, including the work of NHRIs. States are obliged to
respect, protect (or ensure) and fulfil human rights.65 Mechanisms must be established
to give effect to these rights and NHRIs are among those mechanisms. National human
rights institutions have a strong voice and role in promoting respect for the rule of law in
the following areas, all of which are central to promoting and protecting human rights:
(a) Ensuring that the State complies with its own laws and other legal instruments,
as well as with relevant international norms;
(b) Promoting the development of administrative accountability systems;
(c) Ensuring that the administration of justice conforms to human rights standards
and provides effective remedies, particularly to minorities and to the most vulnerable
groups in society;
(d) Proposing and commenting on legislative reform so that national laws are
brought into line with the international human rights instruments that the State has
ratified or acceded to.
This role is especially critical for the ability of the NHRI to address administration of justice and core protection issues:
65
Asbjørn Eide, “Economic, social and cultural rights as human rights” in Economic, Social and Cultural
Rights: A Textbook, 2nd rev. ed., Asbjørn Eide, Catarina Krause and Allan Rosas, eds. (Dordrecht, Martinus
Nijhoff Publishers, 2001); as regards the International Covenant on Civil and Political Rights, see Manfred
Nowak, “The International Covenant on Civil and Political Rights” in An Introduction to the International
Protection of Human Rights: A Textbook, 2nd rev. ed., Raija Hanski and Markku Suksi, eds. (Turku, Åbo
Academi University, Institute for Human Rights, 1999).
127
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