Political Repression
PENNSYLVANIA STUDIES IN HUMAN RIGHTS
Bert B. Lockwood, Jr., Series Editor
A complete list of books in the series is available from the publisher.
Political Repression
Courts and the Law
Linda Camp Keith
UNIVERSITY OF PENNSYLVANIA PRESS
PHILADELPHIA
Copyright © 2012 University of Pennsylvania Press
All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.
Published by
University of Pennsylvania Press
Philadelphia, Pennsylvania 19104-4112
Printed in the United States of America on acid-free paper
10 9 8 7 6 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Keith, Linda Camp
Political repression : courts and the law / Linda Camp Keith.—1st ed.
p. cm.—(Pennsylvania studies in human rights)
Includes bibliographical references and index.
ISBN 978-0-8122-4381-9 (hardcover : alk. paper)
1. Political persecution. 2. Human rights. 3. Civil rights. 4. Constitutional law. 5. Judicial independence. I. Title. II. Series: Pennsylvania studies in human rights.
JC585.K37 2011
323'.044—dc23
2011030589
In memory of Neal and Steve for their enduring guidance
Contents
2. Empirical Theories and Studies of Political Repression
3. The Standard Model of Human Rights
4. Political Repression and the Role of the Judiciary
5. Constitutional Provisions for Human Rights as Protection Against Political Repression
6. Constitutional Protections and Repression When Regimes Are Threatened
7. Protecting Human Rights: Conclusions, Implications, and Where We Go from Here
Chapter 1
Introduction
The constitution [of Jordan] provides for freedom of speech and press; however, the government imposed significant restrictions on these rights in practice. Citizens generally were able to criticize the government openly, although journalists exercised caution in regard to the king, the royal family, the GID [General Intelligence Directorate], and sensitive topics such as religion. Government intimidation and the threat of fines and detention led to self-censorship of journalists during the year. (U.S. Department of State 2007)
The constitution [of Egypt] prohibits arbitrary arrest and detention; however, during [2007], police and security forces conducted large-scale arrests and detained hundreds of individuals without charge under the Emergency Law. Continuing a trend begun in 2005, the government arrested and detained hundreds of activists affiliated with the banned-but-tolerated Muslim Brotherhood (MB), generally for periods lasting several weeks. (Ibid.)
The constitution [of Zimbabwe] provides for an independent judiciary; however the judiciary was under intense pressure to conform to government policies and the government repeatedly refused to abide by judicial decisions. (Ibid.)
On a documentary level the world seems to have converged upon a set of ideals regarding states’ human rights behavior and the appropriate institutions to promote and protect those ideals. At the turn of the new century the global script for state legitimacy calls for a written constitution or the equivalent, with an embedded bill of rights, democratic processes and institutions, and, increasingly, a judicial check on state power to protect an internationally recognized set of human rights. Evidence of formal acceptance of these norms is overwhelming. The formal commitment to international human rights norms approaches near universality as each of the core conventions composing the international human rights regime claims state parties representing from 75 to 99 percent of the global set of states: 173 states are parties to the International Convention on the Elimination of All Forms of Racial Discrimination (89 percent),1 164 have ratified or acceded to the International Covenant on Civil and Political Rights (84 percent),2 160 are parties to the International Covenant on Economic, Social and Cultural Rights (83 percent),3 186 have ratified or acceded to the Convention on the Elimination of All Forms of Discrimination Against Women (96 percent),4 146 are parties to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (75 percent),5 and 193 are parties to the Convention on the Rights of the Child (99 percent), making it the most universally accepted of these core human rights instruments6 (UN Treaty Collection, accessed December 2009). Currently, around 90 percent of nation-states have a written constitution or set of basic laws that constitute paramount domestic law (Elkins, Ginsburg, and Melton 2009, 49), 65 percent of which contain “an explicit declaration regarding the independence of the central judicial organs” (Constitutional Design Group 2008, 1). Much of the constitution writing in the last half of the twentieth century has resulted from the post-colonial emergence to independence of almost 100 countries, and, as Go (2003) notes, most of these states have rewritten their original post independence constitutions at least once. Beer (1992) calls the latter decades of the twentieth century “an era of unprecedented experimentation in forms of government and law under written constitutions, as colonialism ended and each newly independent state sought its constitutional identity while other countries responded to challenge by revising or amending basic laws” (1). Postcolonial constitutions accounted for roughly two-thirds of all the world’s constitutions by the 1970s, and by the 1990s, postcolonial constitutions, combined with those of the ex-Soviet countries and other secessionist countries, made up more than four-fifths of the constitutions of the world (Beer 1992). All but 10 percent of current postcolonial constitutions