Draft Asian Declaration on right to justice
- right to an effective remedy for violations of human rights -
- Part 2 -

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)

Only courts of justice should administer justice:

In many Asian countries, there are institutions which bear the title of "courts" that are not really courts of justice as understood within the framework of the rule of law. In some countries, "military tribunals" or "military courts" have been set up and people are denied access to actual courts of law. This practice should be abolished immediately and all actions taken by such military tribunals relating to the administration of justice should be treated as null and void.

Some such "courts" are merely political institutions and are not courts of law. All actions taken by such political tribunals should be treated as null and void, having no legal effect whatsoever. Only courts vested with judicial power understood within the meaning of separation of powers should be allowed to engage in the administration of justice. Such courts should be courts of law bound only by principles of the rule of law, and should be able to function as impartial institutions dealing with administration of justice.

When administering justice, courts must be bound to follow the law strictly, both in terms of substantial and procedural law. The discretion exercised by these courts should be strictly confined to what is universally accepted within the framework of the administration of justice. The creation and use of any "fake courts" should be considered a grave crime, and any official that sets up such courts should be prosecuted.

The duty of judges to protect the independence of the judiciary:

It is the duty of the judges themselves (particularly the judges of the superior courts) to be the ultimate guardians of the protection of the independence of judiciary in their respective countries. Under no circumstances should judges compromise with the executive and/or the legislature on the issue of judicial independence.

In many Asian countries, there have been myriad instances where judicial officers have allowed their position as judges - as well as the independence of the judiciary as a whole - to be undermined by the executive. In some instances, the judiciary has accepted limitations of judicial review powers (such as the confinement of judicial review applications to the short period during the discussion of a bill in parliament before it becomes law) or even the removal of the power of judicial review altogether. Once the judicial power to review the law and executive actions is undermined or removed altogether, the judicial branch is lowered in status compared to the executive and the legislature.

When this undermining process continues over a period of time, the judiciary is demoted in the context of the separation of powers. Through this process, the operation of the constitutional principle of the separation of powers gradually loses its power and relevance. Judicial officers are thereby reduced to mere government servants and are expected to carry out the orders of the government. The ominous result of such a situation is the loss of judicial protection for the individual liberties of citizens. Under these circumstances, fundamental liberties and freedoms can be seriously eroded and even lost altogether; the judiciary becomes incapable of ensuring an effective remedy for the protection of citizens from violations of human rights.

As previously discussed, there are also countries that reject the separation of powers principle altogether. In such countries, the executive has a superior status to the judiciary within the power structure. Under these circumstances, judicial officers are not really judicial officers as understood within the framework of the separation of powers. The executive grants the powers to these judicial officers and they are bound to obey the executive under all circumstances.

They lack the capacity to declare that any actions of the executive are illegal and therefore null and void. In fact, under such circumstances, the judiciary does not have the power and ability to decide on questions of law, especially when it contrasts with executive actions. Therefore, in such countries, the ability of courts to make fair decisions relating to the liberties of the individual is highly questionable. In any case, the decisions made by such "judges" are not of a judicial nature.

There are also circumstances in which the entire judicial branch comes under the control of military dictatorships. The courts transform and become mere instruments for carrying out military objectives and military orders. In those circumstances, the tenets of rule of law and of human rights lose all validity and relevance.

There have also been instances in which some judges of the superior courts, particularly chief justices, have collaborated with the executive branch to commit illegal actions. Through various manipulations, such a compromised judiciary makes the illegal actions of the executive appear to be legitimate and judicially sanctioned. The overall impact of the undermining of the "judicial nature" of the judiciary is to render the courts incapable of protecting individual liberties.

There have also been many instances in which the executive, with the aim of undermining the judiciary, has humiliated judges of the higher courts (particularly chief justices). One method is the illegal impeachment of chief justices or other superior court judges. Such illegal impeachments diminish the overall legitimacy of the judiciary. This results in the gradual degeneration of judicial institutions, which subordinates them to the executive branch and thereby renders them incapable of protecting individual rights. Such methods of undermining the judiciary erode democratic processes and bring about authoritarian forms of governance.

A further serious problem is corruption in the judiciary itself. When people perceive that judicial corruption has become widespread, the result is a loss of confidence in the judicial system. This further contributes to the spread of corruption and the undermining of judicial institutions. Judicial corruption also results in the entrenchment of authoritarian power due to the displacement of democratic structures based on the principle of the separation of powers.

Freedom of expression and the independence of the judiciary:

The independence of the judiciary can only exist in a cultural context that accepts the freedom of expression. The independence of judges and lawyers depends on the capacity of members of these professions to exercise their critical faculties and give expression to all the legal and philosophical notions within which legal rights have their foundation. Therefore, all restrictions on the use of the critical faculties of judges and lawyers cripple and gradually destroy the very existence of an independent legal and judicial system.

In many countries, the executive attempts to control the capacity of judges and lawyers to express themselves freely. This represents an attack on the very existence of legal and judicial processes. Such restrictions include inferring with the critical examination of laws and court judgments.

These restrictions on the freedom of expression seriously hamper the functioning and development of the legal system as a whole, including the judicial processes. Often, the doctrine of contempt of court is unjustifiably invoked to restrict the critics of judicial decisions and unjust judicial practices. Such restrictions are unwise because the ultimate result is to undermine the judiciary itself. Therefore, all such attempts to restrict just criticism of laws, judgments and other related judicial and legal practices should be resisted in order to preserve the independence of the judiciary.

The role of an independent legal profession:

A vibrant and independent legal profession is an essential precondition for the existence and preservation of the independence of the judiciary and the protection of individual liberties. However, in Asia in most countries an independent legal profession has not emerged. This is due to the structural non-recognition of the foundational separation of powers principle in the system for the administration of justice. The result is that, as a genuine judicial process cannot exist in these countries, it is also not possible for a genuine legal profession to take root and become functional.

There must be fundamental reforms made to the power structures of these countries before there can be a genuine judicial process to which lawyers can contribute. Many countries that used to have genuine structural preconditions for the functional independence of the judiciary and legal profession have seen significant upheavals in the recent decades. The limitations placed on the legal system have undermined the rights of individuals and weakened the role of lawyers.

In such countries, executive interference in the judicial process paves the way for many forms of corruption, which also affects the legal profession. Many lawyers become involved in corrupt practices and, as a result, the legal profession is unable to play its intended independent and professional role.

Serious interferences into the judicial processes by the executive result in the undermining of judicial remedies against legal wrongs, including human rights violations. This also has a direct bearing upon the capacity of the legal profession to function as an effective agent to assist people to obtain justice for the wrongs they have suffered.

Under these circumstances, society loses trust in the legal system. This leads ordinary people to look for other ways of solving their problems rather than resorting to legal processes. This, again, has its direct bearing upon the legal profession, as lawyers are left either to participate in such illegal actions or risk becoming irrelevant altogether. Lawyers and the professional bodies that represent them are undermined and become targets just for practicing their profession and standing up for the principles of justice. These attacks create an atmosphere of intimidation within the legal profession.

There have even been reports of extrajudicial executions, various forms of imprisonment, and other forms of reprisal, including the enforced disappearances of lawyers and their families. Allowing such forms of violence against lawyers endangers the existence of any independent legal profession. Every form of interference into the free and fair practice of law by lawyers directly affects the quality of the judicial officers, who are chosen from this pool of law practitioners.

Elimination of illegal and unfair detention:

In many Asian countries, the power of the government to detain individuals is abused in various ways and for myriad reasons. Instances of such violations are as follows:

(i) As mentioned above, illegal arrests can take place for political reasons or for the satisfaction of personal grudges held by officials or by others who bribe these officials. After illegal arrest (arrest without grounds), such arrestees are produced before courts with allegations that restrict the powers of Magistrates to discharge the detainee or to grant bail. These corrupt officials choose some of the alleged crimes because they create prolonged pre-trial detentions such as charges under terrorism laws, drug-related laws, national security laws, cyber laws, Sharia, or lèse-majesté, and other similar laws. For some of these offenses bail is completely denied and for others bail can only be obtained from higher courts, which results in prolonged detention until such higher courts decide on these cases. Where bail is technically available, false objections are submitted to the courts, which tend to be biased in favour of government officers.

In some of these offences, a mere allegation is adequate to keep the person under detention, and the Magistrates do not have the power to examine whether the arrest and detention is indeed justifiable. In some instances, these detentions take place on the orders of a politician, such as a minister. The actual reason for the detention is often not criminal but is instead political or personal. Magistrates should be assigned the power to scrutinise the factual basis of such detentions and be allowed to exercise their independent oversight. This should eliminate the possibility for such abuses of the power of detention; where Magistrates are not satisfied with the justifiability of the detention, they should have the power to release the detainees. The burden of justifying the detention and denial of bail should be strictly on the state.

(ii) Some states practice 'preventive detention', ordered on the basis of state allegations that a person is a threat to peace or social harmony. The reason for detention is often to prevent people from participating in peaceful protests or gatherings. When such demands for detention are made, the state should be strictly required to justify it. People's rights to participate in peaceful protest should not be violated through such detentions. There should be quick access to a superior court in all instances where orders for preventive detention are granted.

(iii) It is also a practice followed in some countries to hold people incommunicado without any court order for the purposes of questioning. Such a practice violates the basic right of a person to be protected from illegal arrest and detention, and stands in opposition to the principle that a person can be arrested only as part of an investigation into an offence that the person has allegedly committed with the view to produce them before a court.

(iv) In some countries, there are laws that allow people to be detained for periods of three months or other longer without their needing to be produced before a Magistrate. Such practices violate the rights held by citizens to be protected from illegal arrest and detention. These practices are usually allowed during military rule. Organs of the state, including the police and military, become accustomed to them. Even after the military is removed from power, such practices continue. All laws allowing prolonged detention of people under police or military custody without orders from a Magistrate should be abolished forthwith, and law enforcement agencies that have adjusted to such practices must be reformed.

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.