Asian Human Rights Commission, Hong Kong
From 20 to 24 April 2009 the Asian Human Rights Commission organized the fifth consultation on the Asian Charter for the Rule of Law in Hong Kong, on the theme of concerns about the legal profession in Asia. This special edition of article 2 (‘Concerns about the legal profession in Asia’, vol. 8, no. 2, June 2009) contains just a little of what was discussed and agreed upon among the 27 participants from Bangladesh, Burma, Cambodia, Canada, China, India, Indonesia, Japan, Korea, Mongolia, Nepal, Pakistan, Philippines, Sri Lanka and Thailand, as well as from Hong Kong itself.
The Asian Charter for the Rule of Law is a unique initiative of special importance. It is planned as a template for the rule of law that Asian states could use in the future. To formulate such a charter it is imperative to understand the real issues that adversely affect state institutions in the region and impede the rule of law, and to arrive at some consensus on certain basic issues that need to be identified and articulated in the charter. With this intent, prior consultations addressed themes of judicial corruption and executive control of the judiciary; delays in adjudication; and prosecution systems in Asia.
It is impossible to protect, promote and fulfill human rights without a properly functioning justice mechanism. One of the essential components of a justice mechanism is the legal profession. In most jurisdictions, legal practitioners assuming different roles—as lawyers, prosecutors and judges—make up around two thirds of the entire justice delivery system. In other words, the quality of the legal profession often determines the quality of the entire system. An active legal profession can play a critical role in shaping or altering the destiny of a country, and particularly the enjoyment or denial of human rights among its citizens. Human rights organisations, victims and perpetrators all equally depend upon the services of lawyers. Lawyers play a pivotal role, be it in safeguarding or contributing to abuses of fundamental human rights; however, the importance of this role is often overlooked.
Ideally, lawyers can where necessary criticise the law or the way in which it is practiced in order to make improvements. But ideals are often far from reality. In Asia, lawyers along with other citizens are often denied rights to free expression, even on strictly professional matters. In some jurisdictions, political allegiances take primacy over principles of law and justice. In jurisdictions where the development of jurisprudential theory is stunted, the role of the legal profession in social progress also becomes negligible.
Some issues put forward at the start of the consultation
1. Public perception of lawyers: In most countries the public has a negative perception of lawyers. In many parts of Asia the modern legal profession and laws have their origins in colonial governments and lawyers are sometimes identified as part of a heritage of collaboration with these regimes and with the colonial- style elites that emerged after independence. In some countries where lawyers were once respected for their role in leading independence movements, the profession has lost respect. In many countries lawyers are accused of causing delays in justice, which in countries like India can cause trials in ordinary cases to run for ten or more years. They are accused of adjourning cases with intention to claim more fees. Often adjournments are sought by lawyers and granted by courts where both the court as well as the lawyer is aware that the case will not be taken up on the date to which it has been adjourned.
2. Lack of accessibility and transparency: While in a few Asian countries professional habits have developed to ensure proper consultations between lawyers and clients, keeping of records and transparency, in most countries such concepts do not exist. Lawyers do not inform their clients about what is happening in court. There are few functioning professional bodies to maintain discipline in the legal profession or investigate complaints. In countries where professional bodies exist, they generally fail to do their jobs. There is a general view that lawyers will not conduct proper inquiries into allegations against one of their own.
3. Threats and attacks on the legal profession: In recent years the restrictions imposed on lawyers have increased. Governments commonly intimidate and threaten lawyers who appear in human rights cases, or those who represent their political opponents. Killings, physical attacks and publicity campaigns against lawyers have become commonplace in some countries. The need for strategies to deal with these types of threats has grown. Lawyers have been killed and some have to carry weapons for their defence or hire private guards. Professional bodies can do little if anything to defend their members. In some cases professional bodies even turn against their own where lawyers appear for suspected terrorists. The scale of threats and attacks on lawyers has not been properly discussed, documented or brought into focus.
4. Limitations imposed by different parts of the system:
a. Police: The police are a critical part of the complaint receiving and investigating system. When the police function badly, lawyers face serious impediments in discharging their professional obligations. For example, if the police refuse to take complaints or to investigate crimes, there is very little that lawyers can do to pursue their cases. Additionally, police may be eager to develop lawyers as collaborators, which is welcomed by some lawyers. When these lawyers are favoured, it creates problems for others in the profession. In many countries too lawyers do not have the right of representation at police stations. Confession statements are extracted from detainees in the absence of lawyers.
b. Prosecutors: In many countries, prosecuting agencies refuse to acknowledge lawyers and afford them their professional privileges. While some lawyers may have special access to prosecutors, others get shut out. Petitions by lawyers to prosecutors’ offices often go unanswered. Prosecutors fail to give reasons for not prosecuting or taking up appeals where warranted.
c. Judiciary: Arbitrary behavior among judges often intimidates lawyers. Contempt of court laws are misused. There are open and often proven accusations of corruption against some judges but it is extremely rare for any one of them to be punished for corruption. This has a heavy demoralising effect upon lawyers. Those issues of public importance that should be central to debate are among the least discussed in most jurisdictions.
Some issues that emerged during the consultation
It was agreed that lawyers across Asia are facing very serious problems arising from the low priority given to the administration of justice in the region. Although among ordinary citizens there is a visible growth of consciousness about their rights and a greater willingness to assert these rights that has accompanied educational and cultural change, this is coming into conflict with the low priority that states assign to their justice systems. As a result, authorities increasingly resort to violence to suppress people who demand justice, creating further social unrest and conflict. State policies placing top priority on improvements to the administration of justice could lead to greater social harmony and overall advancement of Asian societies, economically, socially and culturally. The backwardness of most states in the region when it comes to administration of justice needs to be challenged and addressed.
When the administration of justice is defective, lawyers themselves become victims of the system. They cannot play the role that they are supposed to play in protecting the rights of individuals and looking after the needs of their clients. When a justice system is in fact geared towards injustice it is not possible for lawyers to perform their functions as provided by law. Under these circumstances, some lawyers may participate in perpetrating the very injustices that have become characteristic of the system, while the majority of lawyers will feel helpless and compromised. Under these conditions, self-confidence falters and demoralisation sets in. At the same time, the notion in wider “society of the role of lawyers as protectors of individual rights is lost.
Some specific problems identified during the consultation included the following:
a. Police subverting justice
Police around Asia subvert justice in many ways. These include: failure to receive and investigate complaints; discouragement of persons from making complaints into crimes and violations of rights; incorrect recording of complaints or deliberate distorting of complaints to make it impossible for complainant to obtain justice; making of compromises with complainants to protect the perpetrators of crimes for various reasons; and, arrest, detention and investigation, if any, for profit.
Sometimes people with political or economic power and influence pressure the police to favour their interests; sometimes the police voluntarily favour those with monetary or other clout against ordinary citizens. Police also fail to investigate because of lack of training, or lack of money resulting in lack of equipment and transport. However, it should be noted with caution that this lack of training and money is often part of an overall strategy to keep the police corrupt, inept and badly paid. Inefficient policing is often used as a method of social control, by allowing officers to terrorize the population.
To deal with these types of problems, it is necessary to go into the social and political shape and expectations of a policing system and its milieu. Traditionally, most Asian societies used disproportionate and collective punishment as a means of social control. Many Asian societies are yet to see any significant transformation to more modern modes of thought and practice in their policing and punishment. Despite modern arrangements, there has been no displacement of old ideologies for social control, which have prevailed for thousands of years.
Ultimately, bad policing is a matter of social policy. As the development of a policing system based on the rule of law and democratic norms and standards may be perceived as disadvantaging those who benefit under present conditions, there is a tacit consensus to deny possibilities for change.
b. Lawyers also subverting the system for private gain
The legal profession can function effectively only where the rule of law is established to a minimal extent through laws and legal procedures. For the legal profession to function properly, it is essential that lawyers themselves as well as the society as a whole clearly identify the obstacles to the establishment of the rule of law. Yet, often lawyers instead of exposing and fighting against abuse adjust to and profit from an environment where abuse of the law is the norm. Such lawyers connive in the destruction of the legal profession itself.
In many countries lawyers have developed a subculture to take advantage of the defective legal process for personal gain. Real or perceived connections with members of the judiciary are used to get extra money from clients and sometimes even from the opposing side. For instance, the son-in-law of a superior court judge in one country gets exorbitant amounts of money by creating the impression that through his connections he can get cases favourably and promptly heard. This is one way in which equality before the law is denied to citizens. The concomitant effect is a general decline in public faith in the work of the judiciary and a perception that judges are corrupt and not impartial, which in turn fuels further wrongdoing.
These sorts of practices also go on among prosecutors. In some countries, prosecutors’ posts are auctioned, indicating that prosecutors believe that they can make more money with a higher position. Such prosecutors will easily compromise the rights of litigants.
Corruption among the police and judiciary is common in many Asian jurisdictions. In these places lawyers are called upon to act as intermediaries between clients and police or clients and judges. When lawyers stop representing clients and instead generally act as brokers for bribes, the very nature of the administration of justice is altered. Instead of an open process, it becomes a secret one in which vested interests take over and in which there is hardly any room for the proper practice of law.
Systemic delays indicate the absence of proper regulations and mentalities for the improvement of adjudication. Delays in hearings benefit not only the police: lawyers, judges and prosecutors may all benefit from delays in various ways. Many lawyers treat delays as a means of receiving fees from clients for long periods. As such, the lawyers of opposing parties may compromise to postpone cases.
In common law countries one of the major factors that contributes to delays is abuse of the adversarial process. An underlying impression built into legal practice and adjudication is that it is possible to succeed in cases on behalf of one party by subverting the legal process in one way or the other. There is a triumphant attitude about the beating of the system. Lawyers unscrupulously use the competition between parties to outdo each other in order to score a victory by any means. For example, in the course of long delays vital witnesses may pass away, disappear, lose interest or be unable to stay involved. Witnesses’ memories may fail, judges may be transferred several times, and evidence may be distorted or lost, all contributing to further delays. When these sorts of things become part of the fabric of judicial process, it is impossible even for an honest lawyer or judge to influence the course of trial in the interests of justice.
The development of regulatory frameworks for trial processes with adequate resources for their enforcement is essential to the ensuring of justice and the proper working of lawyers within acceptable norms and standards of their profession. Such a regulatory framework needs to be accompanied by proper ethical standards cultivated on the part of all those involved in the administration of justice. However, an ethical framework detached from a proper regulatory framework, lacking sanctions for those who abuse the process, is of little use. Where a system is geared to the rewarding of the unscrupulous there is no point in educating for ethics alone. Once again, the matter comes back to the providing of adequate funds for the administration of justice. Study of budgetary allocations for justice systems and the making of recommendations for the improvement of funding is important in working towards the elimination of delays and the corresponding improvement of the legal profession.
d. Interpretation of jurisprudence to justify impunity
Often judges and lawyers rely on backward interpretations of legal principles to justify impunity and the abuse of judicial process. There is justification for use of torture as necessary to discourage criminals. The abuse of emergency and anti-terrorist legislation is also often justified as necessary for national interests and security. Courts have refused to allow legal challenges to this sort of legislation. International law is criticised as infringing on national sovereignty. Serious opposition is expressed directly and indirectly in many Asian countries to the inclusion of international norms and standards in domestic legal affairs. The abuse of arrest and detention is used to silence political opposition on various pretexts. Actions against state agents who have violated the law or infringed on human rights are discouraged as threatening national security and are even characterised as a form of ingratitude towards officers who have difficult jobs to do. Complaint against powerful persons is discouraged lest it open floodgates for many more complaints. Freedom of expression itself is also often treated as a subversive notion.
e. Threats to lawyers
There are increasing threats to lawyers who practice with integrity, particularly when they are opposed to state agencies and abuses of power. In the Philippines, for instance, 22 lawyers have been killed as a result of their work since 2001. The house of a Sri Lankan lawyer who appeared in human rights and corruption cases was recently attacked with grenades. A defence ministry website described such lawyers as traitors for defending persons accused of terrorism. Faced with such threats, lawyers like other citizens lack avenues for legal complaint and self- protection. Their professional associations also often prove ineffective in defending their members and may even distance themselves from them in order to avoid negative repercussions.
One of the rare examples of a legal community that has fought hard at great risk to preserve the independence of the judiciary and the integrity of the legal profession is that of Pakistan, which struggled under the banner of the Supreme Court Bar Association for over two years around the issue of the dismissal of the Chief Justice Iftekhar Choudry, who has now once again been reinstated in his office due to the massive protest movement that the lawyers spearheaded. The lawyers’ movement of Pakistan needs to be studied closely for the purpose of developing proper strategies with which to fight for the rights of the lawyers.
f. Parallel systems of dispute settlement
In several countries, dysfunctional legal systems have encouraged the emergence or strengthening of parallel systems for settling disputes. Sometimes they have taken the form of so- called traditional systems, such as village courts. Many “traditional” methods for dispute settlement are in reality feudal systems that were for centuries organised to preserve the authority of ancient elites against the rural poor. Landlords and their advocates were the beneficiaries of these systems. The reintroduction of their practices runs contrary to the basic freedoms of all, women in particular.
Besides these methods alternative dispute systems are also being pressed into use in dealing with criminal cases. These are not based on legally accepted principles, but in Asia are mostly used to enforce the will of the powerful against the weak and poor in order to make compromises and strike deals so that perpetrators escape punishment. On the other hand, alleged offenders coming from that same part of society find themselves subject to punishment in the form of faked encounter killings or cross firing, and vigilante killings, where the accuser, judge and executioner are one and the same: the police, military or paramilitary forces.
g. Undermined judicial independence
The rights of lawyers depend upon the acceptance and perception of independence of the judiciary. In many countries this independence has been undermined or totally rejected. In some countries the judiciary is subordinate to the executive and is in no way allowed to make any judgment against the interests of the executive.
In other countries the constitution or subordinate laws strictly delimit judicial power. Judicial review of executive actions is often very limited. By interference in the appointment, promotion and transfer of judges the independence of the judiciary is not only undermined, but also the perception of the judiciary as independent and concerned with public interests is greatly diminished. Interference also comes through various forms of politicisation. On issues in which the state has an interest, the judiciary is often expected to favour the state and where a judge refuses he or she may be punished, either directly or indirectly.
Under these circumstances, judges can become antagonistic towards lawyers who insist upon proper exercise of legal process and may target these lawyers for reprisals. Judges may disregard the procedural rights of litigants and lawyers. When procedures are abandoned it is virtually impossible for a lawyer to pursue a case before court. The outcome of a case no longer depends on procedure. The lawyer may feel confused about what advice to give to clients.
h. Censorship of discussion about professional integrity
Lawyers exercise self-censorship about their professional obligations as well as their difficulties. Their professional associations rarely engage in open and honest discussions about the scale and type of systemic obstacles they face in the course of their ordinary work. Lawyers have not among themselves publicly acknowledged the scale of corruption, delays, loss of judicial independence, procedural defects, and other problems affecting their practices.
Sometimes threat of contempt of court is also used to discourage such discussions. Unscrupulous use of contempt of court powers obstructs discussions on the judiciary. Some judges use contempt of court to prevent the discovery of their own defects. When contempt of court is used as a form of censorship rather than as intended, to protect the administration of justice, the beneficiary is the executive, which wants to curtail individual freedoms through misuse of the judiciary. The judiciary alienates itself from the public and also from lawyers. Other methods to stifle public discussion are used too. The media also very rarely takes up such problems relating to the administration of justice in a sustained and serious way, both out of fear of the consequences and lack of understanding of the issues.
In some countries of Asia, there have been military regimes in power for long periods. In others although the military has not become the front political authority, it has obtained extraordinary influence over the political process from behind the scenes. In some countries, civilian political regimes are removed on the basis of military interests and objections.
A common excuse for military dominance is the need for the army to address internal conflict. In fact, the effect of military dominance is to ensure the continuance of violent internal conflict, by denying alternative means for solving important national problems. Disputes that emerge in the normal course of political life, which could be resolved via dialogue, instead turn into bloody conflicts for want of serious and genuine attempts to resolve them. In many countries, small disputes have been intentionally used to inflame larger ones. In others, prolonged neglect of internal discontent has resulted in armed resistance.
Instead of attempting to resolve these conflicts, states have resorted to the use of emergency laws and anti-terrorism laws in order to suppress them. In recent years, powers under antiterrorism laws have enlarged to an extent that today they can be used to deny all basic rights to citizens. In addition to the legal expansion of powers granted under national security laws, there are also extralegal powers that the armed forces, the police and paramilitaries develop on their own in the course of national security operations. For example, no antiterrorism law may directly authorize disappearances; however, by utilizing provisions for prolonged detention in places that are not usually authorized for the purpose, the possibilities for disappearances are greatly expanded. Records allowing judicial authorities to examine what has happened after the fact also are less likely to be kept.
The increased militarisation of ordinary legal and criminal process displaces and diminishes civilian policing, which is that part of the system over which the judicial agencies are supposed to have greatest control. When civilian policing is marginalised, the power of the courts and of lawyers also is significantly reduced. The judiciary may end up as nothing more than an onlooker to the gross violation of human rights, in which event lawyers are also helpless to perform their task of safeguarding individuals’ interests.
j. Extremist groups
In Asia, there are ruthless groups acting without any regard to the rule of law or democratic institutions in the pursuit of their aims. In fact, these organizations view the legal and the judicial processes as things that must be undone in order to obtain their objectives. They also consider all independent agents of civil society as their enemies. They try to control public expression and opinion to create the impression that their extremist views are popular. They transform cultural and religious discourse into pseudo-ideological forms that favour them. The control of public opinion, knowledge and information becomes the target of both the state as well as these non-state actors, either under the rubric of terrorism or counter-terrorism. Attacks on the law and courts come from both sides.
A secular discourse based on legal principles, norms and standards is a type of human discourse, rational and consensus- based, which is contrary to the interests both of militarised states and their extremist enemies. Therefore, understanding of the threat that this conflict between the forces of militarism and terrorism poses to humanity as a whole needs to be brought out more forcefully if we are to be protected from its possible consequences.
Some recommendations that emerged from the discussions
a. Governments must provide adequate funding for administration of justice
If there is no proper allocation of funds for the administration of justice, much of the talk about the problems faced, including those of lawyers, cannot be resolved. Work needs to begin to make this issue a top political and social priority. Human rights organisations together with lawyers’ groups should carry out studies on budgetary allocations and contribute to the building of a public debate on this matter. If these groups initiate discussion it is very likely to attract public attention, as the public is the victim of the bad administration of justice that exists now. If public interest is developed and sustained, it will not be easy for political parties to ignore.
b. Effective mechanisms to eliminate corruption are essential
While there are corruption control agencies in many countries, they are mostly showpieces and have not been designed to be effective. On the contrary, most efforts are directed towards subverting their objectives. Again, we need to begin sustained advocacy on the building of effective mechanisms to eliminate corruption, beginning with studies and analyses of how useless institutions have been created across Asia instead of ones actually intended to succeed. This requires lawyers and human rights groups to do research, opinion making, lobbying and creating of opportunities for public debate. And again, where the advocacy is done seriously it is likely to attract media and public support from which pressure can be built for action.
c. Lawyers’ right to represent their clients during investigation must be recognised
There are several countries in Asia where lawyers’ right to represent their clients during arrest and detention has been established in law and in some it is even recognized as a constitutional right; however, in many others there are no laws to that effect. In some countries, there is a claim that this right has been established through practice, although there are no legal provisions to that effect.
This situation is not satisfactory, as there is hardly anything that a lawyer can do if refused access to a client or if subjected to police harassment. Uniform practice of ensuring that lawyers have access to clients when in detention is essential. Yet lawyers’ associations and human rights groups have not taken up this issue as a matter of great importance. Therefore, studies, publications, and public education are again needed to draw attention to the problem and to make it a priority for local and international lobbying.
d. Exposure of the extent of threats to lawyers
Threats to lawyers engaged in human rights and other sensitive cases in Asia need to also come into the centre of public debate in the region and internationally if further incidents are to be prevented. Work in this regard should include thorough documentation on specific cases and its dissemination. Campaigns on this issue must be persistent and especially be aimed at breaking the apathy among lawyers themselves when colleagues are exposed to danger because of merely engaging in their professional activities in accordance with the law.
e. How to stop lawyers being reduced to the role of brokers for bribery
One of the recurring themes of the discussion was how lawyers are in many places reduced to the role of brokers in negotiating and carrying bribes to judges and lawyers. To rescue the administration of justice from degeneration into dealings that betray all the principles of justice and fair play, and also to save the dignity of the legal profession, it is essential to work towards elimination of this practice. Some of the things that could be done, apart from putting judicial corruption into the public spotlight, include: documenting cases of bribe negotiating, carrying and taking, and putting these on the public record; encouraging lawyers’ groups, the media and civil society organizations to develop their strategies to expose and report on such practices; and, better educate judges and lawyers on the problem and its consequences.
f. Education on international law concerning anti- terrorism and emergency regulations
There have been enormous developments in international law on the limits to which emergency and anti-terrorism laws can suspend ordinary legal process. This jurisprudence has not yet received much attention in the region. Therefore, effort needs to be taken to promote greater understanding of it and how it can be used domestically, including through publications and websites, and translations into local languages; incorporation into legal and civic education; popularising of this jurisprudence so that there is wider public awareness of it and its importance; and, the undertaking of legal actions for the purpose of making such jurisprudence part of the domestic law.
g. Struggles for judicial independence should be based on understanding of the complex problems facing countries in Asia
The traditional concepts of ensuring judicial independence through security of tenure, adequate salaries and the like are valid in circumstances where systems for the administration of justice are basically working. Where systems are thoroughly defective, it is essential to emphasise several other prerequisites for independence of the judiciary, including that there cannot be complacency about the role of the judiciary; that the judiciary is too precious to be left to judges; that the behaviour of a chief justice in a given jurisdiction reflects the behaviour of his or her institution; and that accountability is as important as independence.
When the judiciary falls prey to a political system under an overwhelmingly powerful executive branch, the bravery of individual judges in isolated cases will do nothing to ensure justice overall. Judges must therefore also contribute to the social discourse on this matter by frankly and openly stating the problems that they face in the discharge of their duties. To be knowingly compromised under these circumstances is itself a betrayal of the judicial function. To this end, freedom of expression is critical for judicial independence, as no progress on this matter can be achieved without free and frank discussion of all the problems involved.
h. Contempt of court laws must be tightly delimited through statutory provisions
To prevent abuse of contempt of court, the powers granted to judges to sanction persons for contempt must be strictly defined and delimited and above all must be monitored through ever- vigilant public interest groups and the media. Modern communications can provide opportunities for alternative ways of exercising freedom of expression to undermine the abusive use of contempt, as the power of contempt only extends to the boundaries of a particular territory, which are overcome through modern communication techniques.
i. Some specific recommendations from Sri Lankan participants
The failure of the Sri Lankan president to constitute the Constitutional Council amounts to a serious violation of Sri Lanka’s constitution. This failure directly impacts on judicial independence as it removes the constitutional safeguards against abuse of discretion. Therefore the president is urged to appoint the Constitutional Council, and to this end, donors should tie aid given to Sri Lanka to the appointment of the council and independent commissions. There must also be a widespread public awareness campaign on the importance of the Constitutional Council and independent commissions.
The failure of the government to arrest the attackers of members of the legal profession and to investigate effectively the attack on the residence of J C Weliamuna, attorney-at-law, and on the office of Amitha Ariyaratne, attorney-at-law, have been compounded by the publication on the defence ministry website of inaccurate information about the cases and names of lawyers appearing for detainees under the Prevention of Terrorism Act and the Emergency Regulations. Therefore, representations on these issues need to be made to the president and attorney general, such that the government of Sri Lanka promulgates amendments to the Judicature Act to protect the rights of the legal profession. The Bar Association of Sri Lanka must make representations on behalf of its membership in this respect, and a sustained awareness programme must be carried out nationally and internationally on the oppression of the legal profession in Sri Lanka, as well as building of awareness among the members of the Sri Lankan Bar on the need for a collective effort in protecting their professional rights. Finally, international groups should send a fact-finding mission to Sri Lanka to interview relevant parties and to document attacks on its legal profession.
j. Specific clauses to include in the Asian Charter for the Rule of Law
i. Define and protect the right and duty of lawyers to advocate for their clients free from harassment, interference or punishment. The UN Basic Principles on the Role of Lawyers and Basic Principles on the Role of Prosecutors can be used as references for this purpose.
ii. Provide for effective measures to protect lawyers threatened with danger as a result of their work through government intervention, backed with regional and international monitoring and guaranteed by the right of immediate access to a regional monitoring body when a serious threat to an advocate or professional body is identified. An international response model involving rights and professional groups as the first responders to attacks on lawyers or groups should also be incorporated.
iii. The right of access to an independent and impartial tribunal or judiciary must be a non-derogable right that cannot be displaced under any circumstances, including at times of emergency measures or armed conflict.
iv. Define, ensure and protect judicial independence by moving past constitutional references that fail to develop judicial independence beyond the mere idea. The UN Basic Principles on the Independence of the Judiciary and regional instruments from around the world on independent judiciaries can be used as a reference for this purpose.
v. Violations of the abovementioned rights must be addressed through provisions aimed at ensuring investigations that are timely, professional, impartial, transparent and accountable. The UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions could be used as a guide, but these principles alone are insufficient.
vi. Provide for a regional investigation body and court with power to monitor investigations and conduct prosecutions. Access to extra-territorial investigations and prosecutions could be available to individuals and groups, upon establishing that a state is either unable or unwilling to conduct these. The onus to establish ability and willingness should be on the state once the petitioner has established reasonable grounds.
vii. Give substance to rights to equality before the law and equal access to the protection of the law as per the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
viii. On the cessation of emergency measures, all provisions created during the period of emergency must be declared null and void and the law existing prior to the imposition of emergency be revived automatically.