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.
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.
Elimination of torture and other forms of cruel, inhuman, and degrading treatment or punishment:
Despite there being numerous signatories to the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, torture and ill treatment are widely used in almost all Asian countries.
In terms of domestic legislation, only a few countries have abided by the Convention to criminalize torture. Even in those countries, despite the criminalization of torture, such laws are largely unimplemented. When the criminalization of torture is not followed by enforcement, it makes a mockery of the law and undermines the respect for this vital UN convention.
At the level of local police stations, the widespread use of torture during investigations into petty offences (for example, petty theft) is widely reported. Listed below are some factors that influence the widespread use of torture:
i) In terms of practical policy, certain states have sanctioned the use of torture and ill treatment, although they may have made public statements condemning such practices and even signed and ratified UN Conventions.
ii) Some states do not provide adequate funding for criminal investigation agencies to hire people who are competent, well educated, and adequately trained in the art of modern criminal investigation theory and practice. In modern systems, it is clearly possible to carry out effective investigations against crime and prosecute offenders without the use of torture and ill treatment.
iii) Most governments tacitly hold the view that the allocation of adequate financial and human resources to build investigative capacity within the state to combat crime is not a top priority.
iv) Many states appear to view the very existence of an effective criminal investigation authority with modern capacities as a threat to the nature of the political system, which may allow corruption and abuse of power as an integral part of its operations.
v) In the case of authoritarian states, they naturally reject the laws and rules relating to torture and ill treatment, as such means are used to control their political opponents.
vi) In the context of broken down systems, the police have been known to use torture to obtain money, either by torturing an individual for pay, or by obtaining bribes from family members in order to protect loved ones while they are detained.
These and other factors contribute to the widespread use of torture and ill treatment in Asian countries. Despite strenuous efforts on the part of UN human rights agencies – including the CAT Committee and the Special Rapporteurs, who have dedicated a great deal of their time and effort to this difficult task – it must be acknowledged that states have demonstrated very little in the way of positive efforts to ensure the implementation of this Convention. There has been little similarity between the public statements made by states at UN forums and their actual adherence to these statements.
Policing systems that are primitive, outdated and inherently repressive in nature:
In many countries in Asia, the policing systems that exist were either created by military regimes and shaped to serve military requirements, or were created during colonial times to serve colonial interests, which were basically militaristic in nature. Only a few places have attempted to develop civilian policing, either based on the London Metropolitan policing model or other democratised policing models.
Further, the developments within the last few decades, which have negatively affected the democratic space within many countries in favour of executive-heavy models of governance, have also led policing systems to become instruments for the suppression of democratic freedoms and enhancement of executive control. The violent conflicts, insurgencies, and other forms of terrorism that have emerged in many countries have created spaces for the displacement of normal laws. These laws have been replaced with counter-insurgency, emergency, and anti-terrorism laws.
The abandonment of justice has occurred through the non-enforcement of laws that protect citizens, as well as weakened procedural laws. The aim of all such laws is to curtail the liberties of the individual, often for the alleged purpose of national security. The prevalence of such laws has had a devastating effect on the normal legal systems of these countries through the destruction of democratic norms, traditions, and practices. Even after the end of the periods during which anti-terrorism laws and emergency rule prevail, the devastating effects they have on legal and political systems continue, and cause ongoing damage and disruption to democratic processes.
As a consequence of the use of anti-terrorism laws and emergency rule, serious damage is caused to the judiciary. The independence of the judiciary is suppressed in favour of measures undertaken in the name of security. When judicial systems are undermined using police laws in this manner, the basic structural arrangements based on the separation of powers principle is undermined. The judiciary is pushed back and made a lesser power as compared to the executive and the legislature. Once that happens, this becomes a permanent part of the political landscape and what emerges is a new type of a political system within which the liberties of the individual are permanently undermined.
In most Asian countries, a large proportion of the police force are not educated, trained, or paid well. They do not have the necessary competence to perform their role in the proper administration of justice, particularly when it comes to criminal investigations. They are also poorly trained in the forensic sciences, and their understanding of collecting evidence mostly relates to obtaining oral statements. This is often done by exerting pressure on accused people, often meaning torture and other cruel, inhuman, and degrading forms of treatment. In fact, torture and the use of cruel and inhuman treatment becomes so normalized that the population identifies the police as a physically violent institution.
Thus, a huge gap is created between the population and the police. This itself is a grave problem for the administration of the criminal justice process as no system of credible criminal justice can prevail without the active cooperation of the population at large. Such trust and cooperation does not exist in countries with dysfunctional policing systems.
In these contexts, the population perceives the policing system as corrupt. Surveys undertaken in Asian countries with dysfunctional systems show that people regard the police as the most corrupt state institution. A corrupt policing institution also contributes to corruption in all other sections of the society.
Controlling the policing system so that it functions within the framework of the rule of law requires a great deal of anti-corruption work carried out by truly independent institutions. In the few places where such institutions exist, the quality of policing has greatly improved. However, in many Asian countries, such credibly independent institutions that control corruption do not exist. For the protection of individual liberties, preservation of democracy, enforcement of the rule of law principle within countries, and the possibility of fair trial, there must be radical reforms of the policing systems that exist in most parts of Asia.
Elimination of extrajudicial executions and enforced disappearances:
Extrajudicial executions and enforced disappearances are constantly carried out in many countries in Asia. Such extrajudicial executions and enforced disappearances are grave crimes and cannot be allowed for any reason. In any state in which extrajudicial executions and enforced disappearances take place, the state must accept liability for such crimes and ensure immediate action be taken to investigate. On the basis of such investigations conducted by credible agencies, the culprits should be prosecuted immediately. In deciding on culprits, the issue of command responsibility should be pursued strictly. Every officer who bears direct or indirect responsibility for such grave crimes should be brought before the courts as soon as possible.
The absence of specific domestic laws relating to extrajudicial executions and enforced disappearances should not be used as an excuse to stop the investigation and prosecution of such crimes. Where no proper laws exist, the laws must be made and enforced with retrospective effect. Where such laws do not exist, they should be treated as though they do, on the basis that such acts are crimes against humanity. Where extrajudicial executions and enforced disappearances occur on a large scale, the state should bear the full liability for such crimes. These crimes likewise amount to crimes against humanity.
Both national and international laws should be applied when dealing with such crimes. All those who bear direct or indirect responsibility for such crimes, either through personal involvement or due to command responsibility, should be held liable for such crimes. The courts must dispense justice quickly for such grave crimes and, under the norms and practices of international law, special tribunals can be set up for this task.
In cases of custodial killings, some countries allow officers from the same police station or place of detention where the death has occurred to conduct investigations into the matter. This practice is a way of covering up many of these crimes and of finding various ways to deny justice to the victims. There should be special and credible units to investigate such crimes and these units should be given the power, authority, and resources required to conduct their inquiries without bias.
In instances of extrajudicial executions and enforced disappearances, the state bears responsibility for compensating the families of the victims. Such compensation should be in proportion to the graveness of the crimes committed and the loss caused to the families of victims.
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.