A Paper by the Asian Human
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,
March 5, 2018
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
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
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.
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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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.