Draft Asian Declaration on right to justice
- right to an effective remedy for violations of human rights -
- Part 4 -

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 confessions made in custody being admitted as evidence of guilt:

The principle of fair trial is not part of the way the law is practiced in many Asian countries, even in some that have signed and ratified the International Covenant on Civil and Political Rights. Despite the principle being abstractly accepted, there are serious obstacles to its application.

It is a common practice in many jurisdictions to deny the principle of non-self-incrimination by the suspect in the investigative process. This is to make the suspect the main source of information against him or herself. The investigators demand that the suspect provides all the information they request. The right to silence commands little respect. Based on the source material provided by the suspect, the investigators conduct any further inquiries. For this purpose, when a complaint is registered, a suspect is immediately arrested and interrogated in detention. The suspect is commanded to reveal all the information in his possession to the investigators. Often, false promises of quick release or lenient sentences are made to deceive the suspect to give such information. The investigators fail to caution the suspect about his or her right not to self-incriminate. In addition, the threat or use of torture and ill treatment is employed to obtain such information.

It is also a common practice to attribute statements to suspects with the intention to falsely incriminate them. For this purpose, signatures or fingerprints are taken on blank sheets of paper and later attached to statements that the investigators themselves have fabricated. These statements are often used at the 'trials'. The purpose of such 'evidence' is to create the illusion of a trial when, in fact, what takes place is not really a trial at all.

In some countries, trials are routinely conducted through the process of self-incrimination. At the very start of the trial, even before the prosecution leads any evidence, the accused is required to give his evidence first. Thereafter, the court and the prosecution examine the veracity of the statement made by the accused. This process is sometimes called 'seeking truth from facts'. This formula is the pretext used to allow self-incrimination.

It is a right of the accused to be represented by a lawyer of his choice. However, in many countries, this right is not observed and, in some contexts, it is even objected to. This is to maintain a lack of proper oversight over the investigation and to cover up the flouting of the basic principles against such manipulations of the criminal investigation process.

Even in countries where the law recognizes the inadmissibility of confessions, torture is used to obtain guilty pleas. Methods of obtaining self-incriminating statements are used to 'gather evidence', which means finding other witnesses to give the evidence taken from the accused by the investigators. Thus, even though a statement of confession by the accused is not formally used during trial, it is used indirectly. Thus, the various manipulations through which self-incriminatory statements are obtained from the accused vitiate trial processes.

The elimination of undue delays:

One of the major obstacles to the development of legal and judicial processes in many Asian countries is the problem of undue delays in the adjudication of cases. In several of these countries, such undue delays have reached scandalous proportions and become a major cause for a loss of faith in the administration of justice itself.

The Optional Protocol to the International Covenant on Civil and Political Rights under Article 5(2) obligates all states to prevent undue delay in the administration of justice. The UN Human Rights Committee, through several of its views on the communications it has examined, has dealt with the issue of undue delay and has declared it to be a human rights violation. In one of its views, given in relation to the communication by Mr. Lalith Rajapakse from Sri Lanka, the UN Human Rights Committee condemned the undue delay in the enquiry into the violation of his rights. The problem of undue delay in investigations, preparing prosecutions, and during adjudication was examined and the Committee stated that even in the context of a less developed country, three years' delay in the final adjudication of a case should be considered undue delay.

However, there are many countries in which such delays are rampant and, accounting for appeals, criminal cases can take 15 years or more. In civil cases, such undue delays could extend the adjudication of a case to 30 or more years. There are many instances in which the cases have extended beyond the lifetime of litigants and continued even after their death.

Such undue delays not only demoralise litigants but can also intimidate governments because certain pieces of legislation they wish to pursue cannot not be implemented during the period in which the government bringing it forward is in power. Such a situation frustrates the process of governance and creates dissatisfaction among the population. When some governments are faced with this problem they retaliate by placing restrictions on judicial review and otherwise attempting to restrict access to courts. The result of this is the further deterioration of the legal system, which deprives citizens of the right to seek judicial remedies for perceived wrongs.

Undue delays have also led to an increase of corruption within the litigation processes. Faced with the problem of undue delay, a litigant tends to find a shortcut by resorting to various forms of corruption, which can include attempts to bribe the judges. Further, there are many instances when litigants or witnesses have been assassinated or otherwise harmed during the long periods in which cases are kept pending. The result is that litigants and witnesses are discouraged from the pursuit of their rights through legal means. All this adds to public scepticism about the judicial process.

A further result of delay is to distort the litigation process, which is particularly severe in criminal cases. Judges and prosecutors in such contexts have been known to agree to unprincipled 'settlements' of cases, which is done to avoid additional burdens where there is already a large backlog of cases. In some instances, even serious crimes like murder or rape are 'settled' with minor punishments, such as the payment of small fines. In short, undue delay negates access to fair trial and the just adjudication of cases. Without drastic measures being taken to end undue delays, judicial processes cannot provide effective remedies.

Denial of the rights of women:

In the Asian context there are manifold forms of denial of rights of women. Women face acute forms of discrimination in public as well as private life. Use of brutal forms of punishments to force marriages or to oppose freely arrived decisions on marriage and other personal matters is common in Asia.

Women also face other forms of denial of their rights, including but not limited to their right to education, rights to and in employment and against women who chose to exercise their freedom as individuals. Improvements of circumstances in Asia for women to fully participate in public life is minimal even today.

Physical threats against women, to their person and property, and sexual violence against women, does not have the possibility of effective remedy due to the problems iterated above of the justice framework in Asia. Lack of sensitisation of the law enforcement agencies and even the judiciary in Asia regarding the unique challenges faced by women renders complaining about sexual violence and pursuing justice and remedies a traumatic experience in Asia.

Discrimination against women in the name of menstruation, or murder of women in the name of family honour, and trafficking in women cannot be effectively addressed without changes brought into the prevailing nature of justice dispensation in Asia.

Denial of the rights of children:

Children, particularly from discriminated social groups like the Dalits, and belonging to the low-income families face acute challenges in Asia. Prevailing practices of bonded labour facilitates modern forms of child slavery and the sale of children. In many parts of rural Asia, there are no schools or there are no adequate facilities in schools to ensure children from rural areas receive education. Besides, children from the Dalit communities in Asia are systematically discriminated by their teachers, often from privileged castes and communities and therefore denied education.

In some countries there are various forms of imprisonment practiced against children even if they are of tender age, for offences like loitering in public roads. Child sexual abuse and trafficking in children cannot be addressed without adequate and immediate changes brought into the justice delivery framework. Children who are victims of child trafficking are often either re-trafficked or sexually abused even while they are in 'protective custody' of state agencies. One of the biggest impediments in dealing with child trafficking is the prevailing extent of criminal nexus that exists within crime syndicates and law-enforcement agencies.

Concluded....

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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.