Sun, Nov 16, 2003 - Page 8 News List


Draft rights law with care

In recent weeks your paper has noted certain features of the draft human rights law, in particular the issues of the death penalty, referendums and same-sex marriages. As a contribution to the debate I would like to suggest that the law should aim at stating current widely-accepted international norms and avoid creating new rights.

I fully support your paper in its call for total abolition of the death penalty. The draft law does not go that far. It simply states the norms of the basic rights treaty (the International Covenant on Civil and Political Rights) signed by the Republic of China, restricting the use of the death penalty to the most serious crimes and forbidding its use on minors and pregnant mothers. Here the law gives the basic minimum, leaving total replacement of the death penalty by other forms of punishment to subsequent legislation.

This model should be applied to the other two cases. Every citizen has a right to participate in government and make their views known. This can be done directly, via the media or demonstrations, via elected representatives or by referendum. The means can vary and some are more suitable for certain purposes than others. Referendums work well only in clear black and white issues when the general public can be easily educated about what the choice entails.

More complex issues are better left to elected representatives. Hence I suggest that the law enshrine the right of expression and participation but leave the choice of means open. It may state that referendums can be held on any subject but should not make referendums obligatory under any circumstance. This allows the legislature or executive leeway to decide which issues require a referendum.

On same-sex marriages and in particular on the right of adoption, there are two rights which should be upheld. First, the basic principle of non-discrimination should be explicitly stated as applying to sexual orientation. Second, in cases of adoption and any matter dealing with children, the basic international right is that the interests of the child come first. No couple has a "right" to have children.

A couple may apply to an adoption agency to adopt a child. The agency will consider if the couple are suitable parents, according to norms set by the agency. It would not seem unreasonable for an agency to require that an adopting couple be of different sexes so as provide the child with father and mother. To deny a child parents of both sexes by claiming a "right" of the parents to adopt is contrary to international norms for children's rights.

On the question of non-discrimination of sexual orientation, more debate may be needed in society to see what this could imply. It could, for instance, imply tax breaks, rules of inheritance and ownership, without necessarily invoking the notion of marriage as such. As in the above two cases, I would suggest that the law states the basic principle leaving subsequent jurisprudence to work out the concrete implications.

Edmund Ryden


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