The third "Whereas clause" in the declaration proclaims:
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
Article 8 of the Declaration provides that:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
These provisions underscore what we lawyers know, that human rights only have meaning when protected by an independent judiciary, whose role is respected by the other branches of government. Courts have no power to enforce their decisions, and depend upon a supportive and respectful legislature, and particularly executive, to give their decisions force. Indeed, courts have little power even to control their composition, and rely on the other branches to place jurists on the bench who will apply the law to the facts of a case in an independent manner.
The failure of both of these prongs is on display in Pakistan. President Pervez Musharraf, fearing a Supreme Court decision undoing his election to a new term, removed and detained the entire Supreme Court. Protests by lawyers and judges led to thousands more being detained. He then appointed his own Supreme Court which, not surprisingly, validated the election. That court remains seated in Pakistan, providing little comfort to Pakistanis that their human rights will be preserved.
In the United States, our executive and legislative branches have largely accepted the bargain struck in Philadelphia in 1787, understanding the importance of both maintaining the composition of the bench and following the courts' judgments. There is a third aspect to maintaining the judicial branch as a co-equal branch of government, and that is maintaining respect for the judiciary, so that it retains that respect in the eyes of the public it serves. If that respect is undermined, the public will challenge the basis of the judiciary's authority and the credibility of its decisions, and support for the rule of law can be undermined.
It is this third underpinning of the judicial branch, basic respect for its authority and its actions, that has been eroded in recent years. The erosion can be seen on a number of fronts. Efforts in Congress continue to strip the courts of jurisdiction to hear cases. Two recently passed laws, the Detainee Treatment Act and the Military Commissions Act, purport to remove the authority of judges to hear habeas challenges brought by foreigners labeled by the president as "enemy combatants."
The ability to obtain habeas corpus relief is a bulwark in the defense of human rights, and thus the elimination of this remedy forcefully shows how limiting the judicial branch can in turn curb the availability of human rights. In a similar vein, the federal sentencing guidelines, a creature of the other branches of government, sharply reduced the discretion of judges in sentencing. The U.S. Supreme Court recently found these guidelines not mandatory (United States v. Booker, 543 U.S. 220 (2005)); it remains to be seen whether Congress and the executive will move to reimpose them.
Beyond the institutional constraints being imposed, individual judges are being vilified regarding decisions they make. And strong efforts were made in South Dakota, fortunately beaten back, to subject judges to removal and possible jail time for making decisions considered invalid by a non-judicial commission (the so-called "Jail for Judges" initiative). The threat remains of similar campaigns in other states.
But disrespect for the judiciary can also take subtler forms. Both the federal and state judiciary have seen their salaries erode in recent years as compared with the general cost of living and what is earned by others in the legal profession.
In New York State, nine years have passed since judges received their last increase. A judicial pay increase seems to be a pawn in an intricate game being played by the Legislature and governor. In this game, those branches hold all the game pieces; judges have no leverage. As a result of the wait, and the mounting frustration, morale among New York's judges is low, and the public can see both the lack of respect in which these branches hold the judiciary, and the level of dependence that judges have on the other branches for their livelihood. We risk losing good judges and having potentially excellent jurists turn away from a judicial career.
It often happens that Human Rights Day occurs each year right about the time the Legislature convenes in an end-of-year session, generally to take care of unfinished business. So it is that later this week the Senate and Assembly are due to return to Albany. This is an excellent time to provide the long-past-due salary increase that our state's judges deserve. This action would convey respect for a deserving judiciary that we count upon to preserve our rights and to do justice. In a turbulent world, we must bolster our judiciary to encourage it to remain the firm protector of human rights and the rule of law that it must be in a civilized society.
Barry Kamins is president of the New York City Bar Association and a member of Flamhaft Levy Kamins Hirsch & Rendeiro.