Draft Asian Declaration on right to justice
- right to an effective remedy for violations of human rights -
- Part 3 -
Asian Human Rights Commission *
A Paper by the Asian Human Rights Commission
WORLD: Draft Asian Declaration on right to justice - right to an effective remedy for violations of human rights in terms of Article 2 of the ICCPR
A supplement to the Asian Human Rights Charter launched in Gwangju, South Korea on 17 May, 1998
This declaration is to be launched on the 20th anniversary of launching of the Asian Human Rights Charter (A People's Charter)
Elimination of torture and other forms of cruel, inhuman, and
degrading treatment or punishment:
Despite there being numerous signatories to the United Nations
Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, torture and ill treatment are widely used in
almost all Asian countries.
In terms of domestic legislation, only a few countries have abided by
the Convention to criminalize torture. Even in those countries,
despite the criminalization of torture, such laws are largely
unimplemented. When the criminalization of torture is not followed by
enforcement, it makes a mockery of the law and undermines the respect
for this vital UN convention.
At the level of local police stations, the widespread use of torture
during investigations into petty offences (for example, petty theft)
is widely reported. Listed below are some factors that influence the
widespread use of torture:
i) In terms of practical policy, certain states have sanctioned the
use of torture and ill treatment, although they may have made public
statements condemning such practices and even signed and ratified UN
Conventions.
ii) Some states do not provide adequate funding for criminal
investigation agencies to hire people who are competent, well
educated, and adequately trained in the art of modern criminal
investigation theory and practice. In modern systems, it is clearly
possible to carry out effective investigations against crime and
prosecute offenders without the use of torture and ill treatment.
iii) Most governments tacitly hold the view that the allocation of
adequate financial and human resources to build investigative capacity
within the state to combat crime is not a top priority.
iv) Many states appear to view the very existence of an effective
criminal investigation authority with modern capacities as a threat to
the nature of the political system, which may allow corruption and
abuse of power as an integral part of its operations.
v) In the case of authoritarian states, they naturally reject the laws
and rules relating to torture and ill treatment, as such means are
used to control their political opponents.
vi) In the context of broken down systems, the police have been known
to use torture to obtain money, either by torturing an individual for
pay, or by obtaining bribes from family members in order to protect
loved ones while they are detained.
These and other factors contribute to the widespread use of torture
and ill treatment in Asian countries. Despite strenuous efforts on the
part of UN human rights agencies - including the CAT Committee and the
Special Rapporteurs, who have dedicated a great deal of their time and
effort to this difficult task - it must be acknowledged that states
have demonstrated very little in the way of positive efforts to ensure
the implementation of this Convention. There has been little
similarity between the public statements made by states at UN forums
and their actual adherence to these statements.
Policing systems that are primitive, outdated and inherently
repressive in nature:
In many countries in Asia, the policing systems that exist were either
created by military regimes and shaped to serve military requirements,
or were created during colonial times to serve colonial interests,
which were basically militaristic in nature. Only a few places have
attempted to develop civilian policing, either based on the London
Metropolitan policing model or other democratised policing models.
Further, the developments within the last few decades, which have
negatively affected the democratic space within many countries in
favour of executive-heavy models of governance, have also led policing
systems to become instruments for the suppression of democratic
freedoms and enhancement of executive control. The violent conflicts,
insurgencies, and other forms of terrorism that have emerged in many
countries have created spaces for the displacement of normal laws.
These laws have been replaced with counter-insurgency, emergency, and
anti-terrorism laws.
The abandonment of justice has occurred through the non-enforcement of
laws that protect citizens, as well as weakened procedural laws. The
aim of all such laws is to curtail the liberties of the individual,
often for the alleged purpose of national security. The prevalence of
such laws has had a devastating effect on the normal legal systems of
these countries through the destruction of democratic norms,
traditions, and practices. Even after the end of the periods during
which anti-terrorism laws and emergency rule prevail, the devastating
effects they have on legal and political systems continue, and cause
ongoing damage and disruption to democratic processes.
As a consequence of the use of anti-terrorism laws and emergency rule,
serious damage is caused to the judiciary. The independence of the
judiciary is suppressed in favour of measures undertaken in the name
of security. When judicial systems are undermined using police laws in
this manner, the basic structural arrangements based on the separation
of powers principle is undermined. The judiciary is pushed back and
made a lesser power as compared to the executive and the legislature.
Once that happens, this becomes a permanent part of the political
landscape and what emerges is a new type of a political system within
which the liberties of the individual are permanently undermined.
In most Asian countries, a large proportion of the police force are
not educated, trained, or paid well. They do not have the necessary
competence to perform their role in the proper administration of
justice, particularly when it comes to criminal investigations. They
are also poorly trained in the forensic sciences, and their
understanding of collecting evidence mostly relates to obtaining oral
statements. This is often done by exerting pressure on accused people,
often meaning torture and other cruel, inhuman, and degrading forms of
treatment. In fact, torture and the use of cruel and inhuman treatment
becomes so normalized that the population identifies the police as a
physically violent institution.
Thus, a huge gap is created between the population and the police.
This itself is a grave problem for the administration of the criminal
justice process as no system of credible criminal justice can prevail
without the active cooperation of the population at large. Such trust
and cooperation does not exist in countries with dysfunctional
policing systems.
In these contexts, the population perceives the policing system as
corrupt. Surveys undertaken in Asian countries with dysfunctional
systems show that people regard the police as the most corrupt state
institution. A corrupt policing institution also contributes to
corruption in all other sections of the society.
Controlling the policing system so that it functions within the
framework of the rule of law requires a great deal of anti-corruption
work carried out by truly independent institutions. In the few places
where such institutions exist, the quality of policing has greatly
improved. However, in many Asian countries, such credibly independent
institutions that control corruption do not exist. For the protection
of individual liberties, preservation of democracy, enforcement of the
rule of law principle within countries, and the possibility of fair
trial, there must be radical reforms of the policing systems that
exist in most parts of Asia.
Elimination of extrajudicial executions and enforced disappearances:
Extrajudicial executions and enforced disappearances are constantly
carried out in many countries in Asia. Such extrajudicial executions
and enforced disappearances are grave crimes and cannot be allowed for
any reason. In any state in which extrajudicial executions and
enforced disappearances take place, the state must accept liability
for such crimes and ensure immediate action be taken to investigate.
On the basis of such investigations conducted by credible agencies,
the culprits should be prosecuted immediately. In deciding on
culprits, the issue of command responsibility should be pursued
strictly. Every officer who bears direct or indirect responsibility
for such grave crimes should be brought before the courts as soon as
possible.
The absence of specific domestic laws relating to extrajudicial
executions and enforced disappearances should not be used as an excuse
to stop the investigation and prosecution of such crimes. Where no
proper laws exist, the laws must be made and enforced with
retrospective effect. Where such laws do not exist, they should be
treated as though they do, on the basis that such acts are crimes
against humanity. Where extrajudicial executions and enforced
disappearances occur on a large scale, the state should bear the full
liability for such crimes. These crimes likewise amount to crimes
against humanity.
Both national and international laws should be applied when dealing
with such crimes. All those who bear direct or indirect responsibility
for such crimes, either through personal involvement or due to command
responsibility, should be held liable for such crimes. The courts must
dispense justice quickly for such grave crimes and, under the norms
and practices of international law, special tribunals can be set up
for this task.
In cases of custodial killings, some countries allow officers from the
same police station or place of detention where the death has occurred
to conduct investigations into the matter. This practice is a way of
covering up many of these crimes and of finding various ways to deny
justice to the victims. There should be special and credible units to
investigate such crimes and these units should be given the power,
authority, and resources required to conduct their inquiries without
bias.
In instances of extrajudicial executions and enforced disappearances,
the state bears responsibility for compensating the families of the
victims. Such compensation should be in proportion to the graveness of
the crimes committed and the loss caused to the families of victims.
To be continued.....
# # #
The Asian Human Rights Commission (AHRC) works towards the radical
rethinking and fundamental redesigning of justice institutions in
order to protect and promote human rights in Asia. Established in
1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.
* Asian Human Rights Commission wrote this article
The writer can be contacted at www.humanrights.asia
This article was posted on 17 March , 2018 .
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