A/HRC/4/25
page 21
72.
Bearing in mind that the administration of justice is one of the pillars of the rule of
law and the democratic system, the defence of justice must be accorded priority when
analysing the institutional aspects encompassed by the activities of the United Nations as a
whole.
73.
Considering the dynamic and leading role now played by national and international
associations of jurists to promote an independent judiciary, it would be appropriate for the
United Nations to take account of their input and experience in its technical cooperation
and other activities relating to the promotion and protection of human rights. Accordingly,
the Special Rapporteur intends to work to bring about this rapprochement between the
United Nations and judicial circles.
74.
Concerning states of emergency, it is imperative that States should bring their
domestic legislation and practices into line with international principles, judicial practice
and standards relating to the application of states of emergency.21
75.
As far as the administration of justice is concerned, it is imperative that legislation
relating to states of emergency should in all cases prevent:
(a)
Measures which invalidate the provisions of the Constitution or basic law
and legislation relating to the appointment, mandate and privileges and immunities of
members of the judiciary, and their independence and impartiality;
(b)
Measures which limit the jurisdiction of the courts: (i) to consider whether
the declaration of a state of emergency is compatible with the laws, Constitution and
obligations under international law, and whether it is unlawful or unconstitutional, in the
event of incompatibility; (ii) to consider whether any measure adopted by a public
authority is compatible with the declaration of the state of emergency; (iii) to take legal
action to ensure the observance and protection of any right enshrined in the Constitution
or basic law and in national or international law that is not affected by the declaration of
the state of emergency; (iv) to try criminal cases, including offences relating to the state of
emergency.
76.
Bearing in mind that states of emergency continue to give rise to serious human
rights violations, the Special Rapporteur recommends that an international declaration
should be drafted which incorporates existing practices and principles and whose purpose
is to ensure the observance of human rights and fundamental freedoms during states of
emergency. A single text would provide clear guidance for States on how to bring their
conduct into line with international law during crisis periods. In this connection, it is
recommended that the Human Rights Council should establish a mechanism to draft
21
This refers in particular to the principles set forth in the Special Rapporteur’s 1997 report, and
the case law and general comments of the Human Rights Committee, as well as the wealth of
case law produced by the regional human rights monitoring bodies.
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