Declaration of Delhi
Encyclopedia
The New Delhi Congress or Declaration of Delhi was an international gathering of over 185 judge
s, lawyer
s, and law professor
s from 53 countries all over the world, united as the International Commission of Jurists
that took place in New Delhi
, India
in 1959. The theme of the New Delhi
Congress was "The Rule of Law in a Free Society". The Congress further developed the principles and procedures underlying the Rule of Law
as well as defining and clarifying the concept itself.
tradition, the most influential version of the rule of law has been that popularized by British
jurist A.V. Dicey in 1885. Dicey's doctrine on the rule of law is a threefold one:
Modern lawyers would regard the rule of law as essentially a political or moral idea, although nonetheless important for that, since it affects the way the law is developed and applied. It concerns ideas of regularity, access to the courts, fair procedure and honoring expectations. The 'rule of law' in Dicey's sense was a political factor that led to the enactment of the Crown Proceedings Act 1947 in the United Kingdom
. Before that Act the Crown, that is, the central government, was immune from liability in the courts for breach of contract
or for injuries inflicted by its servants.
Since the Second World War there have been several attempts to draw up Internationally binding codes of basic human rights
. The Nurenberg Trials
of Nazi war criminals
that were organized by the victorious allies were based upon the assumption that some of the laws of Nazi Germany
were not valid as they were repugnant to the standards of morality accepted by all civilized nations. This approach to law raises profound philosophical problems, but the role of modern human rights treaties and declarations is a less dramatic one. These include the United Nations
Universal Declaration of Human Rights (1948), and the Declaration of Delhi or New Delhi Congress (1959).
In preparation of the Congress, the Commission held a preparatory meeting in The Hague
, Netherlands
on the 7 and 8 July 1958, where the drafting of the Congress Working Paper on the Rule of Law was mandated to former ICJ Secretary-General, Mr Norman Marsh. The 134 page paper was based on information gathered in an international survey of lawyers and legal institutions conducted by the ICJ Secretariat in the course of 1957. The information gathered was divided into the following sections:
The committees set up during the congress were each dedicated to one of the four themes with the Working Paper providing the basis of the discussions. The reports and conclusions of the committees were presented in two plenary sessions and the texts were subsequently referred to a Steering Committee, which issued the conclusions at the closing plenary session
.
The committee also stated that minimum standards and principles regulating the individual within society were essential for the Rule of Law. Such standards would, however, imply certain limitations on legislative power. The limitations on the legislative should be enshrined in a constitution and safeguarded by an independent judicial tribunal.
According to the conclusions of the committee, the legislative had the responsibility to: abstain from enacting retroactive penal legislation; not discriminate in its laws between one citizen and another; not interfere with freedom of religious belief; not deny members of society the right to responsible government; not place restrictions on the freedom of speech
, assembly or association; not impair the exercise of fundamental rights and freedoms of the individual; and provide the procedural mechanisms to protect the above-mentioned freedoms ("procedure of due process").
When the executive directly and adversely affected a person or the property rights
of an individual, he or she should have the right to present his or her case before a court as well as the right to an adequate remedy. In the absence of a judicial review
mechanism, antecedent procedures of hearing, inquiry and consultation should be established, through which parties whose rights or interests would be affected can have an adequate opportunity to make representation.
The committee also concluded that the Rule of Law would be strengthened if the executive were to be required to formulate its reasons when reaching its decisions, and at the request of a concerned party, to communicate them.
The committee made its conclusions regarding the prohibition of retrospective enactment of penal legislation (certainty of the law) as well as on the principle of presumption of innocence
, which in the committee's view required that the burden of proof should only be shifted once facts creating a contrary presumption had been established.
Concerning the arrest of an individual, the power to arrest should be regulated and the arrested person should be told at once the grounds of his or her arrest. He or she should be entitled to a legal adviser and be brought before a judicial authority within a short period of time.
In relation to pre-trial detention, the committee listed the rights of the arrested, including the right to apply for bail.
Conclusions were also made in respect to the preparation and conduct of the defense and the minimum duties of the prosecution. These included the requirement that the prosecution not withhold favorable evidence from the accused.
Regarding the examination of the accused, the committee laid down minimum standards, such as respect for the right not to incriminate oneself and provisions that guarantee the physical and psychological integrity of the accused.
The committee also made conclusions regarding trial in public for criminal cases and the right to appeals and remedies.
Lastly, the committee concluded that the Rule of Law did not require any particular theory regarding punishment, but must necessarily condemn cruel, inhuman or excessive preventive measures or punishments and thus the committee supported the adoption of reformative measures wherever possible.
in upholding the Rule of Law. The independence of the judiciary would be safeguarded by certain measures, including co-operation between at least two branches of the state (i.e. judiciary and legislative) on the appointment of judges. Furthermore, the committee perceived the "irremovability" of the judiciary as an important safeguard of the Rule of Law.
Regarding the legal profession, the committee deemed an organized legal profession free to manage its own affairs to be essential. While a lawyer should be free to accept any case which is offered to him, he should also in some cases be obliged to defend persons with whom he does not sympathize.
The committee also addressed the issue of equal access to the justice. It was perceived to be the primary obligation of the legal profession to use its best efforts to ensure that adequate legal advice and representation were provided. The state and community would however have the obligation to assist the legal profession in carrying out this responsibility.
Now solemnly
Reaffirms the principles expressed in the Act of Athens adopted by the International Congress of Jurists in 1955, particularly that independent judiciary and legal profession are essential to the maintenance of the Rule of Law and to the proper administration of justice;
Recognizes that the Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized;
Calls on the jurists in all countries to give effect in their own communities to the principles expressed in the conclusions of the Congress; and finally
Requests the International Commission of Jurists
This Declaration shall be known as the Declaration of Delhi.
Done at Delhi this 10th day of January 1959
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s, lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s, and law professor
Professor
A professor is a scholarly teacher; the precise meaning of the term varies by country. Literally, professor derives from Latin as a "person who professes" being usually an expert in arts or sciences; a teacher of high rank...
s from 53 countries all over the world, united as the International Commission of Jurists
International Commission of Jurists
The International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...
that took place in New Delhi
New Delhi
New Delhi is the capital city of India. It serves as the centre of the Government of India and the Government of the National Capital Territory of Delhi. New Delhi is situated within the metropolis of Delhi. It is one of the nine districts of Delhi Union Territory. The total area of the city is...
, India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
in 1959. The theme of the New Delhi
New Delhi
New Delhi is the capital city of India. It serves as the centre of the Government of India and the Government of the National Capital Territory of Delhi. New Delhi is situated within the metropolis of Delhi. It is one of the nine districts of Delhi Union Territory. The total area of the city is...
Congress was "The Rule of Law in a Free Society". The Congress further developed the principles and procedures underlying the Rule of Law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
as well as defining and clarifying the concept itself.
History
In Anglo-AmericanEnglish American
English Americans are citizens or residents of the United States whose ancestry originates wholly or partly in England....
tradition, the most influential version of the rule of law has been that popularized by British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
jurist A.V. Dicey in 1885. Dicey's doctrine on the rule of law is a threefold one:
- (i) The absolute supremacy or predominance of 'regular' law as opposed to the influence of arbitrary power and the absence of discretionary authority on the part of the government. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.
- (ii) Equality before the law. All persons whether high official or ordinary citizen are subject to the same law administered by the ordinary courts.
- (iii) The constitution in the result of the ordinary law of the land developed by the judges on a case by case basis. It is thus woven into the very fabric of law and not superimposed from above. This is essentially a defense to the United Kingdom's unwritten constitution.
Modern lawyers would regard the rule of law as essentially a political or moral idea, although nonetheless important for that, since it affects the way the law is developed and applied. It concerns ideas of regularity, access to the courts, fair procedure and honoring expectations. The 'rule of law' in Dicey's sense was a political factor that led to the enactment of the Crown Proceedings Act 1947 in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. Before that Act the Crown, that is, the central government, was immune from liability in the courts for breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
or for injuries inflicted by its servants.
Since the Second World War there have been several attempts to draw up Internationally binding codes of basic human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. The Nurenberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
of Nazi war criminals
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
that were organized by the victorious allies were based upon the assumption that some of the laws of Nazi Germany
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...
were not valid as they were repugnant to the standards of morality accepted by all civilized nations. This approach to law raises profound philosophical problems, but the role of modern human rights treaties and declarations is a less dramatic one. These include the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Universal Declaration of Human Rights (1948), and the Declaration of Delhi or New Delhi Congress (1959).
Introduction
The Delhi Congress gave rise to three important elements in the concept of the Rule of Law.- First, that the individual is possessed of certain rights and freedoms and that he is entitled to protection of these rights and freedoms by the State;
- Second, that there is an absolute need for an independent judiciary and bar as well as for effective machinery for the protection of fundamental rights and freedoms; and
- Third, that the establishment of social, economic and cultural conditions would permit men to live in dignity and to fulfill their legitimate aspirations.
In preparation of the Congress, the Commission held a preparatory meeting in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
, Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
on the 7 and 8 July 1958, where the drafting of the Congress Working Paper on the Rule of Law was mandated to former ICJ Secretary-General, Mr Norman Marsh. The 134 page paper was based on information gathered in an international survey of lawyers and legal institutions conducted by the ICJ Secretariat in the course of 1957. The information gathered was divided into the following sections:
- 1. The Legislative and the Rule of Law
- 2. The Executive and the Rule of Law
- 3. Criminal Process and the Rule of Law
- 4. The Judiciary and Legal Profession under the Rule of Law.
The committees set up during the congress were each dedicated to one of the four themes with the Working Paper providing the basis of the discussions. The reports and conclusions of the committees were presented in two plenary sessions and the texts were subsequently referred to a Steering Committee, which issued the conclusions at the closing plenary session
Plenary session
Plenary session is a term often used in conferences to define the part of the conference when all members of all parties are to attend.These sessions may contain a broad range of content from keynotes to panel discussions and are not necessarily related to a specific style of delivery.The term has...
.
The Legislative and the Rule of Law
In its conclusions, the committee on the legislative stated that under the Rule of Law, the legislature carried out the function of creating and maintaining conditions that would uphold the dignity of man. This would include recognition of civil and political rights as well as the establishment of the social, economic, educational and cultural conditions, which the committee deemed essential to the full development of the individual's personality.The committee also stated that minimum standards and principles regulating the individual within society were essential for the Rule of Law. Such standards would, however, imply certain limitations on legislative power. The limitations on the legislative should be enshrined in a constitution and safeguarded by an independent judicial tribunal.
According to the conclusions of the committee, the legislative had the responsibility to: abstain from enacting retroactive penal legislation; not discriminate in its laws between one citizen and another; not interfere with freedom of religious belief; not deny members of society the right to responsible government; not place restrictions on the freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, assembly or association; not impair the exercise of fundamental rights and freedoms of the individual; and provide the procedural mechanisms to protect the above-mentioned freedoms ("procedure of due process").
The Executive and the Rule of Law
The committee on the executive concluded that the granting of power by the legislative to the executive should be undertaken within the narrowest possible limits and that legislature should define the extent and purpose of such delegated powers, as well as the procedures by which such delegated power was to be brought into effect. An independent judicial body should be given the power to review the legislation passed by the executive (Judicial review).When the executive directly and adversely affected a person or the property rights
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
of an individual, he or she should have the right to present his or her case before a court as well as the right to an adequate remedy. In the absence of a judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
mechanism, antecedent procedures of hearing, inquiry and consultation should be established, through which parties whose rights or interests would be affected can have an adequate opportunity to make representation.
The committee also concluded that the Rule of Law would be strengthened if the executive were to be required to formulate its reasons when reaching its decisions, and at the request of a concerned party, to communicate them.
Criminal Process and the Rule of Law
The committee considered the practical application of the Rule of Law in the field of criminal process. The committee clarified rules which it regarded as the minimum necessary to ensure the observance of the Rule of Law.The committee made its conclusions regarding the prohibition of retrospective enactment of penal legislation (certainty of the law) as well as on the principle of presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
, which in the committee's view required that the burden of proof should only be shifted once facts creating a contrary presumption had been established.
Concerning the arrest of an individual, the power to arrest should be regulated and the arrested person should be told at once the grounds of his or her arrest. He or she should be entitled to a legal adviser and be brought before a judicial authority within a short period of time.
In relation to pre-trial detention, the committee listed the rights of the arrested, including the right to apply for bail.
Conclusions were also made in respect to the preparation and conduct of the defense and the minimum duties of the prosecution. These included the requirement that the prosecution not withhold favorable evidence from the accused.
Regarding the examination of the accused, the committee laid down minimum standards, such as respect for the right not to incriminate oneself and provisions that guarantee the physical and psychological integrity of the accused.
The committee also made conclusions regarding trial in public for criminal cases and the right to appeals and remedies.
Lastly, the committee concluded that the Rule of Law did not require any particular theory regarding punishment, but must necessarily condemn cruel, inhuman or excessive preventive measures or punishments and thus the committee supported the adoption of reformative measures wherever possible.
The Judiciary and the Legal Professions under the Rule of Law
The committee on the Judiciary and the Legal Profession emphasized the importance of an independent judiciaryJudicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
in upholding the Rule of Law. The independence of the judiciary would be safeguarded by certain measures, including co-operation between at least two branches of the state (i.e. judiciary and legislative) on the appointment of judges. Furthermore, the committee perceived the "irremovability" of the judiciary as an important safeguard of the Rule of Law.
Regarding the legal profession, the committee deemed an organized legal profession free to manage its own affairs to be essential. While a lawyer should be free to accept any case which is offered to him, he should also in some cases be obliged to defend persons with whom he does not sympathize.
The committee also addressed the issue of equal access to the justice. It was perceived to be the primary obligation of the legal profession to use its best efforts to ensure that adequate legal advice and representation were provided. The state and community would however have the obligation to assist the legal profession in carrying out this responsibility.
The Declaration of Delhi
This International Congress of Jurists, consisting of 185 judges, practicing lawyers and teachers of law from 53 countries, assembled in New Delhi in January 1959 under the aegis of the International Commission of Jurists, having discussed freely and frankly the Rule of Law and the administration of justice throughout the world, and having reached conclusions regarding the legislative, the executive, the criminal process, the judiciary and the legal profession, (which conclusions are annexed to this Declaration),Now solemnly
Reaffirms the principles expressed in the Act of Athens adopted by the International Congress of Jurists in 1955, particularly that independent judiciary and legal profession are essential to the maintenance of the Rule of Law and to the proper administration of justice;
Recognizes that the Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized;
Calls on the jurists in all countries to give effect in their own communities to the principles expressed in the conclusions of the Congress; and finally
Requests the International Commission of Jurists
- 1. To employ its full resources to give practical effect throughout the world to the principles expressed in the conclusions of the Congress.
- 2. To give special attention and assistance to countries now in the process of establishing, reorganizing or consolidating their political and legal institutions.
- 3. To encourage law students and the junior members of the legal profession to support the Rule of Law.
- 4. To communicate this Declaration and the annexed conclusions to governments, to interested international organizations, and to associations of lawyers throughout the world.
This Declaration shall be known as the Declaration of Delhi.
Done at Delhi this 10th day of January 1959
External links
- Declaration of Delhi at International Commission of JuristsInternational Commission of JuristsThe International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...
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