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Turack, Daniel C --- "Promoting Human Rights Through Bills Of Rights: Comparative Perspectives" [2002] DeakinLawRw 11; (2002) 7(1) Deakin Law Review 223

Book Review

Promoting Human Rights Through Bills Of Rights: Comparative Perspectives
by Philip Alston (ed) (Oxford University Press. New York, 1999) 569pp + xiii, Price $95.00. ISBN 0 19 825822 4.

DANIEL C. TURACK [*]

Thirteen essays, plus the editor’s introduction, comprise the book’s contents. The introduction sets out the framework for the comparative approach, while in the volume’s final essay, attention is drawn to key themes that have emerged in the individual essays, and are skilfully drawn together by reiterating comparative perspectives. In the final essay, co-authored by the editor, all of the viewpoints on bills of rights encountered in the volume are summarised. The editor suggests that there is a need for in-depth historical analysis behind bills of rights, and acknowledges that more sophisticated comparative research of the jurisprudence emerging from decisions by constitutional and other courts around the world is required. Furthermore, factors that facilitate or impede the success of bills of rights also await additional study.

Readers will generally find that the essays follow two main themes. One provides a survey of the type of approaches that have been adopted in different countries. For example, in Central and Eastern Europe more than 25 new or revised constitutions have been drafted since the end of the Cold War. A major set of core human rights provisions is reflected in all of them. The second theme centres on the impact of the international human rights regime on the conception and functioning of bills of rights to the extent that these bills are applied by the judiciary with implications for the separation of powers as well as limitations upon the powers of executive and legislative branches of government.

The book is structured in four parts. Part one, entitled ‘National Level Protection of Human Rights Without a Bill of Rights’, contains two essays. In the first, the subject is the Australian legal system, and demonstrates that in the absence of a bill of rights the common law has been used to protect human rights. The second essay concentrates on Israel which operated without a basic law on human rights between 1948 and 1992, but shows how the Supreme Court created a ‘judicial bill of rights’ thereby providing the necessary protections through its jurisprudence. When two basic laws were adopted by Israel’s Knesset, namely, Freedom of Occupation, and Human Dignity and Liberty, a mini-revolution was brought to Israel’s constitutional system, however, a general balancing test for examining the legitimacy of restrictions on protected rights, and judicial review of parliamentary legislation reduced the vulnerability of fundamental rights.

Part two, which bears the title ‘The Role of International Norms in the Absence of a Bill of Rights’ contains two essays. In the first, the reader gains an insight into how the provisions of the European Convention on Human Rights have been used by the courts of the United Kingdom prior to the entry into force of the Human Rights Act of 1998. Emphasis shows that the Convention was utilised for three purposes: as an aid to statutory interpretation; to buttress principles already contained in the common law; and, as a factor considered by administrative bodies when exercising their discretion. Most interesting are some of the pitfalls that non-European countries might encounter by incorporating the 1966 International Covenant on Civil and Political Rights into a domestic bill of rights.

The focus in the second essay, based on the writer’s Australian experience, is to make legislators in Parliament aware of what undertakings are required of them, and the executive, for a state to respect and ensure to all individuals within its territory receive effective protection of human rights. Account is taken of the Federal dimension of parliamentary scrutiny of human rights, and that there are constitutional preserves on some of these rights that lie exclusively in the States’ domain, or concomitantly with the Commonwealth. Put forward are the reasons why an effective system of parliamentary scrutiny of legislation for human rights compliance is necessary, with analogues drawn from Australia’s close constitutional neighbours, Canada and the United Kingdom, and, the mechanics of how such a scheme might be instituted.

The third part of the book contains five essays which easily provide for comparative assessment of bills of human rights because of their diversity, given the particular political entities and their cultural makeup. These include Kenya, Canada, New Zealand, Hong Kong and South Africa. The Canadian contributor adds the additional dimension of providing a feminist’s perspective, while the South African essay takes into account the sides and philosophical differences in the bill of rights debate which are represented by historical narratives that lie behind the bill. In the fourth and final part of the book, the subject embraces the impact that the bill of rights has on the role of the judiciary. A unique perspective is presented on the Australian and Canadian experiences in that the contributors are sitting judges. The final essay co-authored by the editor has already been alluded to at the outset of this review.

All of the contributors to this volume have a background in either legal practice or academia, or both, and long exposure in respect of their topics. They all have an abundance of writing experience that becomes immediately apparent. All the essays are supported by thorough research and are amply referenced in the footnotes. I found the bibliography to be excellent, and the index will easily help to retrace one’s steps. The concept behind this work makes it a valuable addition to anyone with an interest in human rights.


[*] Professor of Law, Capital University Law School.


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