Endangered Legal Systems
- Part 2 -

Asian Human Rights Commission *

What could developed countries do to address this problem in less developed countries?

1) Undertake or support efforts that help people understand how dysfunctional systems work, so that interventions can be made in a well-informed manner to resolve these problems. This can be illustrated by the following example: The mandate for the UN Transitional Authority for Cambodia (UNTAC) included working towards the improvement of human rights in Cambodia.

In 1992, the first international conference on human rights in Cambodia took place under the auspices of the human rights component of UNTAC.

One of the recommendations of this conference was to help to develop the judicial system. When UNTAC ended, three months after the elections in May 1993, the UN Centre for Human Rights established an office for the continuation of this work. As a senior staff member, I proposed that if any effective work was to be done to improve human rights in Cambodia, the manner in which the Cambodian court system worked needed to be studied in detail.

The way to do that, it was proposed, was to get a small team of experts consisting of lawyers with considerable experience practicing in their jurisdiction, or retired judges, who would sit as observers in several courthouses and collect detailed information on the workings of the justice system. Then, these experts could lay out their findings and discuss the nature of the system they had observed.

On that basis, a detailed set of recommendations would be made to guide the work of the UN Centre, and the data would also be shared with all the countries that were willing to assist in the process of aiding the Cambodian government and civil society in ways that would gradually improve the system. This proposal was accepted and became a part of the Centre’s vision.

Through the intervention of the US ambassador at the time, a contribution of US$500,000 was made to the UN in Geneva to carry out this proposal. However, due to some bureaucratic delays, the proposal as it was envisaged was never put into effect.

Even up to now, despite many reports made by the UN Centre, which was later became an office under the UN High Commissioner for Human Rights, and also reports regularly being made UN Secretaries General, Special Representatives from 1994 up to now, no detailed work has been recorded about the actual routine practices of the Cambodian justice system.

For this reason, recommendations have been broadly of a very generalized nature, and, for that very reason, no significant contributions have been made for the improvement of the system. It can safely be said that, despite the long time that has passed from 1993 up to now, Cambodia does not have a competent and independent system of justice.

To various degrees, similar problems exist in most other countries in Asia, as well as other developing countries across the world. Broad generalisations that have not been informed by the ground realities relating to the justice system reduce the impact of the work of very competent people with good intentions.

A similar approach to what was proposed (with observers) is an essential component of any practical implementation of human rights.

2) Developing countries can also support civil society organisations that are gathering in-depth information of the work of local justice systems, which obstruct the work of implementing human rights. In particular, gathering detailed information regarding the functioning of public law and the criminal justice system can be the core of such monitoring and documentation work.

Competent work in these areas can contribute to the local conversation in each country and towards better international efforts to assist in this process. As an example, there is AHRC’s work on several countries, including Sri Lanka.

A considerable body of information has been gathered, analysed and been made available through publications that are shared directly to relevant bodies as well as through the internet to all persons. This body of information shows, for example, how Sri Lankan public and criminal law systems obstruct the implementation of the rule of law and protection of human rights.

3) At the United Nations level, the High Commissioner’s Office should be encouraged to make it a part of their mandate to find more effective ways to implement Article 2 of the ICCPR and Sustainable Development Goal 16 of the Agenda 2030.

Article 2 of the ICCPR requires all signatories to the convention to ensure that legislative, judicial and administrative measures are undertaken by the relevant states to ensure the enjoyment of human rights by the people. The UN efforts have mostly been confined to insistence on legislative developments.

However, when the operational system for the implementation of rights, particularly through the institutions of the police, prosecutors and judiciary, have a negative impact, even legislative measures remain merely achievements on paper. There is a need to find ways through which to assist and encourage governments to implement judicial and administrative measures.

To do this, the Office of the UN High Commissioner for Human Rights should find detailed observations on how the system works. This can be done by encouraging and supporting efforts by civil society organizations to undertake work in that direction.

As for administrative measures, the High Commissioner’s Office and treaty bodies should also inquire into the actual budgets that have been allocated for the proper functioning of the administration of justice. If such funding is not allocated, it is not possible to expect that any of the public institutions tasked with the implementation of the rule of law and human rights will be able to do any effective work.

4) UN treaty bodies and the Rapporteurs who make recommendations to governments should do so on the basis of their detailed observations on the serious defects of justice systems and advise on ways to address these matters.

5) The World Bank and United Nations Development Program, and other UN bodies, should assist governments and civil society on working in the direction proposed above.

6) At the Universal Periodic Review, the United Nations Human Rights Council should examine the nature of the justice systems of each country and how they function in practice, particularly in terms of the implementation of the rule of law and human rights. Again, very broad and generalized recommendations that does not manifest well-informed opinions about systemic problems have proved to have very little impact.

7) All poverty-alleviation programs should give a significant place to work relating to SDG 16 of Agenda2030, which requires improving access to justice and maintenance of public institutions that enable the poor to benefit in the assertion of their rights through their justice systems.

8) All Bar Associations and other bodies of lawyers that have an interest in supporting lawyers that face dangerous situations should also consider the ways of highlighting the problem of endangered legal systems, which disempower lawyers from carrying out their professional duties in the manner required of them. Bar Associations and other bodies of lawyers can help to create a global discourse on the matters raised in this paper.

9) All funding agencies engaged in the promotion of democracy, development, the rule of law and human rights should assist civil society organizations that undertake the work on the lines proposed above.