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....
# # #
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 14 March , 2018 .
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