I am writing this to convey some basic concerns of a group of lawyers, judges and human rights defenders who met at Hong Kong from the 17th to the 21st September to discuss the impact of delays in the administration of justice on the lives of people and on the protection and promotion of human rights. The participants were from India, Sri Lanka, Bangladesh, Pakistan, Cambodia, China, the Philippines, Thailand, Indonesia, the Hong Kong SAR and South Korea.
The group is of the view that there are many alarming developments within the countries of the Asian region in this regard, except perhaps for South Korea and the Hong Kong SAR. The participants are also of the view that you, as the United Nations Rapporteur on the independence of judges and lawyers, should be made aware of such developments.
The participants of this consultation noted that the nature of delays that exist within many countries of the Asian region would be far beyond what would be considered a reasonable delay under Article 9 (3) and undue delay under Article 14 (3) of the International Covenant on Civil and Political Rights. It can be safely stated that the average time that is taken for the final disposal of a case may be anywhere between five to twenty years and on civil matters it may take even longer. The concerns we are expressing in this letter are mainly related to criminal justice administration and the impact of such delays in negating due process itself, thereby frustrating attempts to protect and promote human rights.
When unreasonable and undue delays become a structural and systemic reality it affects the independence of the judiciary and lawyers in a substantial manner. As such, widespread delays need to be identified and recorded. Concrete recommendations including provisions of advisory services or technical assistance may be recommended and provided to states to deal with this fundamental problem. This problem of delays needs also to be studied as an important and a topical question of principle with a view to protecting and enhancing the independence of judiciary and lawyers.
The delays in the administration of justice have the effect of subverting the entire process of justice and undermining or displacing the independence of the judiciary itself. Clear manipulations of the factors that give rise to such delays are utilised, not only by unscrupulous litigants, but also by the executive, the legislature and even some members of the judiciary, for petty ends. This in turn results in the routine denial of justice. Such denial of justice alienates the people and as a result a colossal loss of faith in the administration of justice exists in the countries mentioned above.
This alienation is often manipulated by the executive to displace the due process of law and to introduce ideas of mediation and alternative dispute resolution into the criminal justice process itself. This leads to an enormous increase in corruption that affects all the elements of the criminal justice system including the police, the prosecutors, judges, lawyers and everyone else involved in playing some role in this process. A citizen that seeks justice with a just grievance has to face all the nightmares of a completely subverted system and suffers the consequences of such subversion.
Among the worst sufferers of this system are the people who languish in jails for no justifiable reason, but who are unable to extricate themselves from their plight due, mostly, to their inability to protect themselves from the corrupted process. They often belong to the marginalized, oppressed and the poorer sections of society as the more affluent and powerful may find ways to manipulate the situation for their benefit. The victims of crime and human rights abuses who come to court as complainants to seek justice often end up frustrated and desperate due to such delays. Another section that suffers gravely is those persons who seek justice against the state officers, such as the police and military, who have abused their rights. The corrupted process guarantees immunity to such officers. While this denies the rights of the victims this also results in many who should be charged with criminal offences remaining part of the law enforcement agencies. Naturally the very struggle to fight the delayed justice process contributes to strengthening the very same process and demoralising those who wish to fight against it.
Unreasonable and undue delays also make witness protection for such lengths of time a practically unachievable goal. The result is acquittals of the accused due to the absence of witnesses.
Failure to obtain justice leads to many taking the law into their own hands and seeking the assistance of criminal elements to settle private disputes. Within the law enforcement agencies themselves, the tendency to use extra judicial punishments has seen an alarming increase in recent years. The killings of persons after arrest has increased and different explanations are being offered for such killings. In some places these are called encounter killings or cross fire killings and in others, killings in self defense.
We find that the criminal investigation process can be completely undermined due to such delays. The officers that fail to investigate crimes and human rights abuses, as they are required to under the law, exploit the various delays and it becomes almost impossible to hold them accountable for their failures. We also note that the prosecutors and often judges themselves engage in practices leading to delays and thereby displace the attempts by the citizens to hold the system accountable to international norms and standards. Unfortunately, there are lawyers who also become clever manipulators of this process to achieve their own ends.
The most alarming thing about such manipulations is when some sections of the higher judiciary itself manipulate such delays for unscrupulous purposes. It is at this point the citizens cannot find any sort of redress against such abuses. Often, even at the level of the higher judiciary there are unscrupulous practices have evolved which are incompatible with the due process of law. Such judges can dispose of cases without making orders at all or without making orders on the merits of the case. The appeal process itself can be subverted in this way, when for example appeals are disposed of even without a hearing. The worst of such manipulations is the abuse of the contempt of court proceedings, which does not leave any possibility of an appeal. Such proceedings are often used against lawyers and litigants who complain of the abuse of the process.
The ultimate result of such delays is to make human rights an objective that people cannot achieve in practical terms. Despite of acceding to, and ratifying UN conventions and even bringing about constitutional and legal provisions in terms of human rights obligations of the state, in actual practice the implementation of these rights become almost a practical impossibility.
What we would like to draw your attention to is the fact that even within the United Nations discourse on the implementation of human rights, the issue of the delays of the administration of justice and its impact in negating basic human rights has not received adequate attention. We are not aware of any attempts by any of the UN agencies to deal with the issues mentioned above with the any of the state parties with a view to ensuring that they honour their obligations to ensure adequate remedies for violations of rights. Thus, the states have not been held accountable for not taking steps to eliminate delays in the administration of justice.
We urge you to take up the issue of the fundamental importance of ending delays in the administration of justice as a core issue relating to ensuring independence of the judiciary and lawyers. We are hopeful that with your intervention the issue of eliminating delays in the administration of justice can be made into a visible issue present in all discourses on human rights. When that happens we are sure that the people that live in these countries will begin to treat human rights as a realistic objective and a treasured part of their actual existence.
The participants of this seminar assure you of their highest cooperation in dealing with this issue.
Thank you
Yours sincerely,
Basil Fernando
Executive Director
Asian Human Rights Commission
A full list of the participants is as follows:
1. Dr. JAYANTHA Pandukabaya de Almeida Guneratne Presidents Counsel, Sri Lanka
2. Ms. KISHALI Ester Pinto-Jayawardena Lawyer, Sri Lanka
3. Mr. RANDOLPH Parcasio Lawyer, Philippines
4. Mr. CARLOS Isagani Zarate — Lawyer, Philippines
5. Justice KHILJI Arif Hussain Judge, Sindh High Court, Pakistan
6. Ms. Atiwan Lawyer, Thailand
7. Ms. Nittaya WANGPAIBOON — Lawyer, Thailand
8. Ms. SOR Rattanamanee Polkla — Lawyer, Thailand
9. Mr. MEAS Chanpyseth Prosecutor, Cambodia
10. Mr. Phann VANRATH Judge, Cambodia
11. Mr. MD. Tariqul ISLAM Lawyer, Bangladesh
12. Mr. Mohammod HOSSAIN — Lawyer, Bangladesh
13. Md. Ashrafuzzaman ZAMAN Human Rights Activist, Bangladesh
14. Dr. P. J. ALEXANDER Lawyer, India
15. Mr. MITHERA Paul James — Lawyer, India
16. Mr. SHIJU M. V Lecturer in Law, India
17. Mr. SALAR M. Ghan — Lawyer, India
18. Mr. BABLOO Loitongbom — Lawyer, India
19. Mr. KONG Wei Zhao Lawyer, China
20. Mr. YANG Chongxue — Lawyer, China
21. Mr. CHUNG Mi Hwa Lawyer, South Korea
22. Mr. Rickey GUNAWAN Lawyer, Indonesia
23. Mr. TM Lutfie YAZID Lawyer, Indonesia
24. Mr. Y. L. CHUNG Barrister, Hong Kong
25. Mr. John Joseph Clancey Solicitor, Hong Kong
26. Basil Fernando Lawyer, Sri Lanka Executive Director, the Asian Human Rights Commission
27. Bijo Francis Lawyer, India Programme Officer, the Asian Human Rights Commission
