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.....
# # #
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 12 March , 2018 .
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