| by Ruwantissa Abeyratne
( September 4, 2014, Jakarta , Sri Lanka Guardian) Abraham Maslow, a distinguished philosopher opined that we all live within a hierarchy of needs. The primary need is to be able to breath, have food and drink and shelter. The secondary need is to be safe and secure and be free of personal danger and evil. Some of us take these needs for granted while others consider it futile even to dream of or aspire to these fundamental human needs.
This article is about the contemporary aspirations of people living in the 21st century. It is mostly about human kindness and empathy, which are the preeminent values of modern day life. These form the basis of a new list of overarching human rights which are more compelling than most traditional rights that have been considered to be the birthright and natural endowment of the citizen. It also takes a close look at human rights in today’s society, where the individual looks for one fundamental right - which is the right not to be wronged.
The true value of a nation lies not in its achievements but in its compassion for its people and those of other nations of the world. The spontaneity of generosity that flowed from nations and their people towards those affected by the current refugee crises in Syria and Iraq; the December 2004 tsunami disaster; and the three hurricanes Katrina, Rita and Wilma in 2005 is evidence enough. A nation’s compassion inevitably flows from its recognition of its people’s rights. An individual’s rights flow not from an arcane institution, nor from God, but from an instinctive recognition of the various needs of that person not to be wronged. Today’s world is full of wrongs and there is no reason to believe that tomorrow is going to get any better. For every citizen of the world, rights have never been so important as they are today, although we tend to take them for granted until they are endangered or eroded. Instinctively, we are inclined to appreciate our rights even more when they are in jeopardy of being infringed. In this sense, the time honored adage that human rights are “inalienable”purely because they flow from a supernatural force is misguided and baseless, not because there is no such force but because such a force does not speak to humans in a single voice and rights should exist even if there were no God. Alan Dershowitz, Felix Frankfurter Professor of Law at Harvard University, in his book “Rights from Wrongs”states that rights do not come from nature, as nature is value neutral, nor do they come from logic or law alone because, if rights emanated from law, there would be no basis to judge a given legal system. Dershowitz maintains that rights come from human experience, particularly experience with injustice. Our experience has taught us never again to tolerate a holocaust, never to curb freedom of expression and freedom of faith, and from that experience has stemmed the Universal Declaration of Human Rights and the United Nations Charter. These documents, which embody fundamental rights are just pieces of paper if experience is not joined by logic. The marriage of logic and experience in the wisdom of human relations is ingrained in ancient Jewish philosophy, which, according to Isaac Abravanal, recognized that experience is more forceful than logic but logic and experience are not mutually exclusive. Without being applied to experience, logic tends to be hollow and directionless, but without the focus of logic, experience becomes multi directional and out of focus. Good decisions come from experience and experience comes from bad decisions. In other words, rights emerge from wrongs and not from ancient parchments or tomes of wisdom hidden away in a forgotten memory that is subsequently revived.
The essence of a nation should be founded on human rights that are contrived from single instances of wrongs committed against the people. According to this principle, a right becomes something that is legitimately due to a person which he can justly claim as secured to him by law, and which ensures that some wrong committed in the past is effectively precluded by the right so secured. A right should not be confused with power, the former being based on moral justification and expectation and the latter being based on enforceability. Protection by the state of an individual, freedom to attend church or temple, and freedom to educate oneself are examples of a right where as sovereignty of State, authority to censor speech and enforce martial law are examples of power. A wise nation distinguishes between the two and maintains a balance.
An undeniable fact is that human rights certainly do not emanate from a God. Logic would dictate that if rights were written by the hand of divinity, they would sustain themselves over time. Experience shows that certain rights which were acknowledged and enjoyed by the people such as the right to enslave a person or even the right to be a slave, which were said to percolate through God’s Bible, are no longer considered consistent with persuasions of modern civilization. Perhaps the most sage observation on the subject was by Blackstone who said that the law was a truth to be discovered. The wisdom of this statement does not lie in its original interpretation given to it by legal scholars, that the law had already been entrenched in society as eternal and immutable principles of good and evil, and has to be unearthed from its dormancy, but is personified by the subsequent statement of Justice Oliver Wendell Holmes, that the life of the law has not been logic but has been experience. This dispels the belief among many that the law which secures rights of the subject has its genesis in natural law or the nature of the world.
The rights of the individual, when taken collectively, act as the fundamental postulate of any constitutional democracy. Not only must a right remedy a wrong that has been committed or obviate a wrong that ought to be prevented, but a right must be contrived according to circumstance and formally recognized. There are two basic tools that a State uses to recognize and secure the rights of the individual. They repose in the constitutional and administrative arms of the State. Both are governed by separate sets of laws called Constitutional Law and Administrative Law separately where the former represents the law of the constitution or the charter of the State and the latter represents the law relating to the manner in which public authorities administer the policies of government, which are largely derived from the constitution. Universities teach the two subjects separately and largely recognize these two disciplines as autonomous entities, the only known exception being the German system of “offentliche recht” which is public law which has the two limbs constitutional and administrative law.
Although the Constitution may be recognized by many as the fundamental postulate of State policy and the policy of its people, public administration existed much before established constitutions. Ancient history records that early societies, represented by the Egyptian, Greek and Roman civilizations, had set up an administration which were mostly developed and run smoothly according to the needs of the day. A set of rules for the administration, in the form of a constitution, was seen only in 1787 in the United States and in 1791 in some countries of the European continent. The trend spread to the rest of the world in the 19th and 20th centuries. One distinguishing feature of both arms of the law is that the administration, and laws pertaining to public administration, is fairly constant, while the Constitution may change regularly. In some instances, such as in the United Kingdom, there is no written constitution but there has always been an established and efficient administration. The European Community, which is in the same position, boasts of an exceptionally expedient and efficient administration, including a compelling and effective economic administrative legal system.
The concept of "governance" is as old as human civilization. The most simplistic definition of "governance" would be that it is the process of decision-making and the process by which decisions are implemented (or not implemented as the case may be). Governance can be categorized into several institutional bases and used in several contexts such as corporate governance, international governance, national governance and local governance.
Essentially, since governance represents the process of decision-making which ineluctably involves a process by which decisions are implemented, it becomes necessary for an analysis of governance to focus on the formal and informal actors involved in decision-making and implementing the decisions taken, along with the nature of formal and informal structures that have been set in place to arrive at and implement the decision.
Government is one of the key players in the game of governance. Other players involved in governance vary depending on the level of government that is under consideration. Whilst in urban areas other actors could include provincial councils, municipal councils and urban councils, in rural areas, they may include influential land lords, associations of peasant farmers, cooperatives, NGOs, research institutes, religious leaders, finance institutions political parties, the military etc. The situation in urban areas is of course much more complex than in the rural environment. In the urban equation, all actors other than those in government service and the military are grouped together as part of the "civil society." In some countries in addition to the civil society, organized crime syndicates also influence decision-making, particularly in urban areas and at the national level.
Formal government structures are one means by which decisions are arrived at and implemented. Good governance has 8 major characteristics. They relate to participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive functions and are carried out strictly according to the rule of law. These major characteristics ensure that the public is safe from corruption or that corruption is minimized to to an irreducible minimum and the views of minorities are taken into account. Above all, overall good governance ensures that the voices of the most vulnerable in society are not only heard but are also taken into consideration in decision-making. It is also responsive to the present and future needs of society.
Participation by both men and women is an integral element of good governance. Participation, which needs to be informed and organized, may be either direct or through legitimate intermediate institutions or representatives. Whilst representative democracy does not necessarily mean that the concerns of the most vulnerable in society would be taken into consideration in decision making. Nonetheless a participatory governance most often ensures a balanced existence between freedom of association and expression on the one hand and an organized civil society on the other hand.
What then are rights that the citizen would seek? Firstly, it is to have equal citizenship, no matter who a person is or where she lives. This cannot be answered by the simplistic argument that all citizens are equal before the law. It goes deeper to the roots of livelihood and lifestyle and the right not to be poor. A fundamental restructuring of urban and rural areas is the first step toward attaining equality among people. The popular misconception that a State which provides high level educational services provides good governance no longer holds sway, as it is the awareness and understanding of the people of world and domestic issues and their level of competence at work are what count as results of good governance. Another determinant is the comfort that people enjoy in their homes rather than the sophistication achieved in house building and repair services. Finally, on the issue of recreation and social interaction, it is not the recreational and social services available that are considered as important but the quality of leisure and cultural experiences people enjoy.
A step toward ensuring human rights is to root out any man made dual citizenship aimed at ensuring equal civil, political and social rights with no racial or religious discrimination. The first step - elimination of dual citizenship - is a task for public administration whereas the other issues largely lies within society itself, calling for a change of ideas as well as the need to abolish obsolete institutions and insidious traditions. While urbanization should be left to the government, localized governance should be left to the citizenry with some autonomy.
Equal employment is yet another right that should be restored if a society were to have lost it through mismanagement of government over the years. This has to do with the creation of employment opportunities through expansion of commerce and trade. In this context, and indeed with regard to other rights mentioned above, an effective analogy is the new public management (NPM) which embraces private sector norms and values, including a focus on customers and an abiding dependance on market mechanisms, the fragmentation and decentralization of public services and the revision of working practices within such institutions which would all go towards achieving more efficient services ad facilities for the people. A government committed to such an approach (which has enjoyed immense success in the European Community) would have to ensure a sustained commitment by the top leadership in government; acceptance of the need for change by the stakeholders; the presence of a coherent vision and opportunities for wide participation in analyzing and diagnosing problems and finding solutions.
Human rights should be viewed as something more than a concept which acts as a cultural artifact. They transcend fundamental rights, which are essentially political and civil rights, and expand to more basic rights such as the right to be equal to anyone with regard to the basic universal need for nourishment, shelter, clothing and education. In order to make sure that they are enjoyed by all of humanity, any community will have to make sure that human rights are a matter of course and are ensured by a guaranteed and contrived effort by all. Human rights and their worth cannot strictly be evaluated. Traditional modes of evaluation, with which the voter usually goes to the polls in a democratic environment to select the government, are “value for money”, efficiency of service delivery and customer satisfaction. At best, these yardsticks have largely been political and economic abstractions which have prompted some academics and practitioners to consider the subject of governance-evaluation as being immeasurable or too much trouble. The issue is further aggravated by the fact that there is no scientifically approved or accepted model to assess the quality of public governance.
The bottom line is that human rights are enjoyed by the citizen through good governance.The first conclusion that one can reach is that good governance is no longer assessed by the provision of services by a government or other governing body but rather by the extent to which improvements were made possible to the quality of life of the individual. The second is that good governance has an international connotation, in that it should be assessed with the assistance and application of international standards. Also, good governance must be rewarded, for example through rewards along the lines of the Nobel Peace Price for “best practices”in good governance. Recognition should be given through “satisfaction surveys” where a direct causal nexus could be drawn between the manner in which the governed was enabled to reach a level of satisfaction with governance provided.. Positive changes in expectation and results obtained should be weighed against perceived adequacies of government in the provision of services. Trust in government, through increased levels of health and well being ( which must necessarily include a sense of security of life, habitation and movement) both from cultural and religious perspectives should be a primary indicator. The elimination of corruption is a key to good governance, and civil society, which has been overwhelmingly proactive in building awareness on human rights issues, has succeeded in persuading the international community of the value for transparency and honesty in public transactions. Arguably, the most important key to good governance is benevolence and understanding. A good government must assure its people that it has their well being at heart and pro actively move towards achieving that goal.