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The May 18 Spirit

I. The Right to Justice

I-1. 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, 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.

I-2. The non-investigation of human rights violations could occur due to the following factors: the refusal of police to register complaints and record evidence of relevant witnesses. This often takes place in periods where serious violations such as enforced disappearances, other forms of extra-judicial killings, or torture are widespread.

I-3. 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 require that a person appear before the relevant court pending trial.

I-4. It is also a violation of human rights to file false charges, something which is often done with the intention of detaining a person arbitrarily, and to deny bail for long periods of time. This practice amounts to false imprisonment. Fake charges are often filed against persons who are treated as politically unacceptable or when law enforcement agencies want to arbitrarily punish someone for various reasons.

I-5. 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. 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 the face of such serious corruption.

I-6. 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:

After illegal arrest (arrest without grounds), such arrestees are charged under anti-terrorism laws, drug-related laws, national security laws, cyber laws, Sharia, or lèse-majesté, and other similar laws. 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.

Probation act: 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.

Random questioning: It is also a practice 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.

Long detention without warrant: Such practices violate the rights held by citizens to be protected from illegal arrest and detention. These practices are usually allowed during military rule.

I-7. 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 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. All states should demonstrate positive efforts to ensure the implementation of this Convention (CAT).

I-8. Extrajudicial executions and enforced disappearances are constantly carried out in many countries in Asia. The state must accept liability for such crimes and ensure immediate action be taken to investigate. 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. In instances of extrajudicial executions and enforced disappearances, the state bears responsibility for compensating the families of the victims.

I-9. 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. Often, false promises of quick release or lenient sentences are made to deceive the suspect to give such information. It is a right of the accused to be represented by a lawyer of his choice. However, there exists a lack of proper oversight over the investigation and cover ups that flout the basic principles against such manipulations of the criminal investigation process. Thus, a statement of confession by the accused should not be formally used during trial.

I-10. The Optional Protocol to the ICCPR 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. However, in Asia criminal cases can take 15 years and civil cases can take up to 30 years. The result is that litigants and witnesses are discouraged from the pursuit of their rights through legal means. All this adds to public skepticism about the judicial process.

I-11. There should be a remedy in the criminal procedure law and practice guidelines for when the criminal justice process is manipulated. 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.

I-12. Access to effective remedies for violations of human rights is blocked when the principle of the separation of powers is undermined. To ensure 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, the basic structure of that particular state does not allow the judiciary to protect basic human rights.

There must be provisions that articulate how the principle of separation of powers is entrenched and, in particular how the independent and impartial exercise of judicial power is protected from any kind of displacement.

I-13. 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. The court should be a court of law bound only by principles of law.

I-14. It is the duty of the judges themselves to be the ultimate guardians for the protection of the independence of the judiciary in their respective countries. Where the judiciary does not have the power and ability to decide on questions of law, the ability of courts to make fair decisions relating to the liberties of the individual is highly questionable. 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.

I-15. The independence of the judiciary can only exist in a cultural context that accepts the freedom of expression. The independence of judges and lawyers depends on the capacity of members of these professions to exercise their critical faculties and give expression to all the legal and philosophical notions within which legal rights have their foundation. Therefore, all restrictions on the use of the critical faculties of judges and lawyers cripple and gradually destroy the very existence of an independent legal and judicial system. These restrictions on the freedom of expression seriously hamper the functioning and development of the legal system as a whole, including the judicial process.

I-16. A serious problem is corruption in the judiciary itself. The result of this corruption is a loss of confidence in the judicial system which contributes to the spread of corruption and the undermining of judicial institutions.

I-17. 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 most countries in Asia an independent legal profession has not emerged. 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 with the free and fair practice of law by lawyers directly affects the quality of the judicial officers, who are chosen from this pool of law practitioners.

I-18. In many countries in Asia, the policing systems 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. 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. 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.

Throughout Asia, many people regard the police as the most corrupt state institution. Controlling the policing system within the framework of the rule of law requires a great deal of anti-corruption work carried out by truly independent institutions. 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.