Draft Asian Declaration on right to justice
- right to an effective remedy for violations of human rights -
- Part 3 -

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)

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.

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.