Draft Asian Declaration on right to justice
- right to an effective remedy for violations of human rights -
- Part 1 -

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)

The Asian Human Rights Commission (Hong Kong) and the May 18 Memorial Foundation (Gwangju, South Korea) are presenting herewith the working draft of the Asian declaration on the right to justice – right to an effective remedy for human rights violations in terms of Article 2 of the ICCPR with a view to encourage a wide discussion of the issues raised in this declaration. Together with this, we will also be presenting Asian declarations on the right to peace and the right to culture.

These documents are prepared on the occasion of the 20th Anniversary of the Asian Human Rights Charter that was launched at Gwangju, South Korea on May 17 1998. A large number of organisations including the AHRC has worked for the past 20 years to spread the message of the Asian Human Rights Charter and have also worked on the principles enunciated in the Asian Human Rights Charter to provide effective remedies to human rights violations in Asia.

In the course of this work, we have been able to gain extensive knowledge about the obstacles that exist in most of the Asian countries that obstructs the actual implementation of human rights. The result is that human rights covenants and conventions merely remain as documents without the possibility of its practical implementation. For the people living in Asia the possibilities of seeking an effective remedy through their national justice framework for the violations of human rights does not exist.

It is under these circumstances that the work for this declaration was undertaken with the view to identify all major obstacles that prevents the realisation of the human rights and therefore frustrates the efforts of the people to improve the achievement of their rights. This declaration is based on the belief that the protection and promotion of human rights as envisaged in the UN covenants and conventions will become possible only if the governments that are signatories to these documents comply with the requirements of Article 2 of the ICCPR that requires states should take measures to provide for legislative, judicial and administrative measures required for the realisation of universal human rights. Therefore, all efforts for the promotion and protection of human rights should be concentrated towards achieving this objective.

In developed countries when a state becomes the signatory to a UN convention, the implementation process automatically follows through the justice mechanisms that exists in these countries. However, this is not the case in Asia. In fact, the opposite is the case where the defects in the existing system of justice obstructs the possibilities of enjoyment of these rights.

It is with the view to bring about corrective action to the existing situation that this draft declaration is presented so that after extensive discussions an Asian declaration on the right to justice could be arrived at. We therefore urge everyone to take an active interest in this discussion.

The draft declaration that is presented here is not exhaustive. There could be many aspects that are to be added to this draft. We welcome all suggestions to improve this draft declaration. The AHRC and the May 18 Memorial Foundation draws inspiration for this work from the boundless attempts made by the people in Asia to have their rights improved.

Victims of violations of human rights are constantly struggling to find genuine solutions to their problems. We are also inspired by great struggles for freedom that has taken place in Asia among which the struggle by the citizens of Gwangju in 1980 stands out as one of the great inspirations. The realisation of the Gwangju spirit requires all people should be able to enjoy their rights through protective mechanisms provided by their justice systems.

A supplement to the Asian Human Rights Charter launched in 1998

This declaration is to be launched on the 20th anniversary of launching of the Asian Human Rights Charter (A People's Charter)

OUR COMMON HUMANITY

Asian Declaration on Right to Justice - Right to an effective remedy for violations of human rights in terms of Article 2 of the ICCPR

Article 2 to the International Covenant on Civil and Political Rights requires that all state parties who become signatories to the United Nations covenants should ensure that all those who suffer violations of such rights have access to an effective remedy. The absence of an effective remedy for the violation of a right makes that right virtually insignificant and lacking in any practical value.

However, in many Asian countries, as in many less developed countries around the world, the ratification of UN Conventions - including the International Covenant on Civil and Political Rights - has not been followed by steps to ensure that the rights enshrined therein can be practically realised within those jurisdictions.

The implementation of a right guaranteed under international and domestic law, by way of constitutional or statutory provisions, is negated in its practical impact when the actual machinery of implementation (the system of administration of justice in the country) does not provide the means by which to implement the right. The usual mechanisms through which rights are enforced are investigations into violations of rights through the policing system, the prosecutions of those responsible for the violation through the relevant justice department of the government (in some Asian countries, this is the Attorney General's Department), and the adjudication of the violation and granting of relief where the violation has been proven through the judicial branch. The denial of an effective remedy for human rights violations is largely a result of the defects of those three agencies: that is, the police as investigators; the prosecutors as those who file and pursue a prosecution in court; and the judicial system itself.

The defects in these systems with regards to investigations into violations of rights mean there are frequently improper investigations, or none at all and thereby denial of fair trial:

Failure to investigate:

The non-investigation of human rights violations could occur due to the following factors:

A common problem is that the police can refuse to or otherwise fail to register a person's complaint about the violation of his or her right. The initial step in investigating into the violation of a right is the proper recording of the complaint and of the evidence of relevant witnesses. Failure to record a victim or witness' statement may occur for many reasons. In many cases, police blatantly refuse to record victims' complaints and statements.

This often takes place in periods where serious violations such as enforced disappearances, other forms of extra-judicial killings, or torture are widespread. In such a climate, police authorities are reluctant to take down the statements of the complainants. The blatant denial of the right to make a complaint is itself a serious denial of the rights enshrined in the UN Conventions and (in particular) those in the International Covenant on Civil and Political Rights.

It is also a violation of human rights to file false charges, which is often done with the intention of detaining a person arbitrarily. Such persons are also denied bail for long periods of time. This practice amounts to false imprisonment. Fake charges are often filed against persons who are treated as politically unacceptable or when law enforcement agencies want to arbitrarily punish someone for various reasons.

The filing of such fake charges is the result of manipulation of the criminal justice system for unlawful and immoral purposes. Such practices become possible only when the superior officers in charge of the law enforcement agencies do not carry out their supervisory functions with due diligence, and/or on occasions when such superior officers themselves are abusing the systems of arrests and prosecutions. The lower judiciary also often fail in their duty to oversee such cases and ensure that powers of arrest and detention are not misused.

Illegal arrest and detention:

Illegal arrest and detention are fundamental violations of basic human rights. An arrest should only take place on reasonable grounds, which requires a thorough investigation and adequate evidence to produce a person before the relevant court pending trial. Every other form of arrest is illegal. Where illegal arrests have been conducted, it is the duty of the Magistrates to punish the officers who have done so, as well as to order compensation for the victim. Likewise, when a magistrate notices that someone has been arrested and detained illegally, it is their duty to act immediately to ensure that the person is released from detention.

Law enforcement agencies must maintain proper written records of all complaints and actions taken during investigations. Tampering with or fabricating official records of complaints and investigations with the purpose of illegally imprisoning a person is also a violation of human rights. It is the duty of the superior officers of law enforcement agencies to ensure that the records relating to complaints and investigations are safely and securely maintained and protected.

Fabrication of charges:

The criminal justice process is severely undermined when charges are deliberately fabricated. The process of investigation and trial are used against individuals in order to settle personal or political grudges. In some cases, people are psychologically harassed by being told that there are pending criminal investigations against them. These alleged investigations go on for long periods, until the victims themselves approach the courts so that they can defend themselves and seek redress. Thereafter, false charges are officially filed against those individuals.

Trials are delayed for a long period of time, often for many years, with the view to deny the accused a fair trial. Such manipulations of the criminal justice process represent a gross violation of a nation state's obligation to protect its citizens' rights. The damage done by such actions affects not only the individuals concerned and their families, but also society as a whole, as people lose confidence in the criminal justice process in face of such serious corruption.

There should be a remedy in the criminal procedure law and practice guidelines for when the criminal justice process is manipulated in this manner. Avenues must be available for such types of concerns to be brought to judicial notice as soon as possible. Subsequently, the judiciary should act promptly to remedy the manipulation of the criminal justice process itself.

Statutory provisions should be created to make violations of individual rights in this manner easily reportable to independent authorities. This is necessary so that all perpetrators, including superior officers who failed in their supervisory functions relating to the proper administration of the criminal justice process, can be brought to trial for hindering or corrupting the very process the administration of justice.

Access to effective remedies for violations of human rights is blocked when the principle of the separation of powers is undermined:

In many countries in Asia, the principle of the separation of powers has been undermined over recent decades. This has happened for a variety of reasons. Some countries do not accept the principle of separation of powers and, as a result, the judiciary is not capable of ensuring an effective remedy for human rights violations. In these countries, the only legitimised power is that of the executive. If the actions of the executive lead to violations of the rights of the individual, only the executive can take corrective action. However, the undermining or rejection of the principle of separation of powers implies that the executive does not recognize the existence of individual rights. Even if the executive makes declarations about the recognition of such human rights and signs and ratifies the UN Conventions to that effect, these declarations and laws do not have any practical value in that system for protecting people when the executive violates their rights.

Therefore, in any discourse on ensuring the effective implementation of human rights, it is essential to identify the rejection or undermining of the separation of powers as a central issue. Where the judiciary does not have the actual power and capacity to override the actions of the executive when the law is broken, it means that the basic structure of that particular state does not allow the judiciary to protect basic human rights.

In fact, the very idea individuals having rights requires that those rights are recognized when power is exercised by all the organs of the state, which requires that the judiciary is the final arbiter on matters relating to the protection of the rights of the people. Therefore, the actual and practical existence of the separation of powers principle is a core element of the basic structure of any state capable of protecting individual rights.

Unchecked executive actions, as well as restrictions on the judiciary's capacity to protect individual rights through the judicial review of legislation and executive actions, should be treated as key obstacles to human rights. All such restrictions must be removed if human rights are to be practically realized within the framework of the state.

It is not enough for the constitution of a country to mention that the separation of powers principle is part of the constitutional structure. Rather, a constitution must clearly state how such a separation will be enforced and maintained. This includes outlining how the judiciary will act as an effective, independent, and impartial body both in its capacity as a check on executive powers, as well as in its role as a protector of individual human rights.

There must be provisions that articulate how the principle of the separation of powers is entrenched, and in particular how the independent and impartial exercise of judicial power is ensured protected from any kind of displacement. These aspects of a constitutional structure should be regarded as a part of the basic structure of the state and therefore considered immune to executive and legislative interference.

The law should ensure that there is no room for interference with the independence and impartiality of judicial officers, nor with the processes of appointments, promotions, disciplinary control, and dismissal of judicial officers. It is of paramount importance that people view judges of the superior courts as not being subjected to undue restraints relating to their judicial powers to protect and maintain individual citizen rights. An independent and impartial judicial system must always be safeguarded.

To be continued.....

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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.