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FOCUS June 2010 Volume 60

Law, Jurisprudence and Human Rights in Asia

HURIGHTS OSAKA

Decades of human rights standard-setting in the United Nations (UN) have not countered the misconception of human rights as “alien” or abstract” ideas. A three-country survey of human rights awareness of Asian students found that teen-age students had a sense of what human rights meant but could not say exactly what they were.1 Some Asian governments portray the idea of human rights as in conflict with the cultures in the region, or at least a luxury to be enjoyed under conditions that do not yet exist. A debate on whether the realization of human rights depended on a particular set of conditions (such as a certain “standard of living and level of economic development,” or a “stable system of government and a body of public officials discharging their duties with fairness and impartiality”) had already existed in the 1960s.2

This issue should have been settled with the 1993 Vienna Declaration and Programme of Action, which provided that

[D]emocracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. (Article 8)

There is also another related provision in the VDPA that should apply to this issue:

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. (Article 5)

And yet the debate has persisted.

Continuing Need for Human Rights Promotion

The debate largely ignores the laws and court decisions in various countries in Asia that uphold human rights.3 The varied histories of Asian law and jurisprudence provide a rich resource in determining the extent of development of legal principles and jurisprudence that support human rights or directly invoke them. Many Asian Constitutions contain human rights principles that should guide laws and jurisprudence.4

But which laws and court decisions support human rights? How did they come about? What role did the people affected by human rights violations play in the enactment and implementation of these laws? What are the challenges in bolstering this nascent compliance with international human rights standards in Asia?

Closer scrutiny of laws and jurisprudence and their application of international human rights standards should help clarify issues in this debate. This exercise should also contribute to the promotion of human rights in the region. A research project5 involving eight Asian countries6 is probing the extent of subscription to international human rights standards by domestic laws and jurisprudence. The research project considers the distinct legal contexts in each country involved, as described below.7

South Asia

India ratified the International Covenant on Civil and Political Rights in 19798 with several declarations.9 It also enacted anti-terrorism laws that were repealed after public protests, starting with the 1985 Terrorist and Disruptive Activities Act and then the 2002 Prevention of Terrorism Act. The 2008 Unlawful Activities [Prevention] Act, however, has remained in effect with provisions that were harsher than the two previous anti-terrorism laws. The task of ensuring respect for human rights in light of the anti- terrorism law lies with the police, central and state governments, the courts, and the National Human Rights Commission of India. Private citizens, meanwhile, pressure the government to act. Judicial colloquiums are organized for people and jurists to express their opinions and demands.

Nepal has ratified numerous human rights instruments and enacted laws to support them.10 Nepali courts applied international human rights standards on cases involving personal liberty (petition for issuance of a writ of habeas corpus), women's rights, economic social and cultural rights, protection of minority rights, and child rights. Some court decisions, however, did not apply international human rights standards, particularly the case of Mahesh Chamar v. HMG, Home Affairs and others. The court there upheld the imprisonment of a juvenile who had turned sixteen. This decision ran contrary to reformative approach in dealing with children in conflict with the law.

Southeast Asia

The human rights situation in Indonesia has improved through legislation,11 ratification of human rights instruments, and the adoption of policies12 that refer to international human rights standards. The democratic political system has also played a part. Obstacles remain, however, particularly regarding the country’s forty to sixty million Indigenous Peoples. While there is a constitutional recognition of Indigenous Peoples’ rights, several laws negate these rights. Laws on natural resources and agriculture13 contradict the human rights law and also the Constitution. As a result, the existence of Indigenous Peoples communities has become dependent upon formal recognition under local ordinances. Moreover, traditional access and use of the forests and other natural resources by Indigenous Peoples have become criminal acts.

The Philippines has ratified numerous human rights instruments. Its Supreme Court has ruled in favor of domestic application of international human rights standards.14 The 1987 Philippine Constitution has provisions recognizing human rights, including the right to health. Specific constitutional provisions define the elements of this right15 while several laws implement it. One Supreme Court decision declared this right (as well as the right to a healthy environment) a basic right, assumed to have existed since the inception of humankind, that would not even require constitutional recognition.16 However, questions remain regarding the reliability of government indicators and statistics (e.g., sufficiency of health sector expenditure levels), devolution of health services, disparate implementation of laws, privatization, cuts in subsidies for medical facilities, high cost of medicines, and patients’ rights vis-à-vis the right to engage in health service business.

Thailand enacted the Protection of Domestic Violence Victims Act, 200717 to protect victims of domestic violence, to create a reconciliation mechanism for the sake of harmony and stability of the family institution, and to provide non-criminal penalties (community service, etc.) for and rehabilitation of offenders. It also requires witnesses of domestic violence to report to the authorities and provides for an immediate police response. Its expedient enactment after the 2006 military coup, however, led to an inadequate focus on the rights of victims while emphasizing reconciliation between conflicting parties. The views of the women’s rights movement were not included in the law. Furthermore, the law has not properly clarified the jurisdiction of courts over domestic violence cases. As a result, the criminal courts might not apply the anti-domestic violence law on serious domestic violence cases. Meanwhile, while domestic violence is still a family matter to most people, the police and public prosecutors use criminal laws rather than the domestic violence law in domestic violence cases. Nevertheless, the domestic violence law provides a resource to local communities in dealing with their own domestic violence problems.

Northeast Asia

Under the South Korean Constitution treaties have the same effect as domestic laws. If there is a conflict between domestic law and international instruments, the domestic law is amended. Though South Korea has no comprehensive human rights laws, the Constitution emphasizes basic rights and freedoms. The Supreme Court and Constitutional Court have not yet settled the question of application of international human rights instruments. They have cited international human rights instruments in some cases, but refused to apply them in others. Yet there have been changes in domestic laws that support human rights, such as the removal of capital punishment for some crimes (but not including political offenses). While the National Human Rights Commission of South Korea has an important role in human rights protection, a recent budget cut is likely to affect its independent status.18

In China, there is a prevailing notion that international law cannot be directly cited in court cases. Some Chinese lawyers, however, have begun using international human rights instruments in arguing their cases in court. A non- governmental “Roadmap to Participation of Civil Society in the Universal Periodic Review,” and the training of paralegals to address legal needs in rural areas where lawyers are lacking provide opportunities for people to be involved in human rights concerns. The first National Human Rights Action Plan, adopted by the Chinese government in 2009, provides a basis for government-supported human rights programs. The rise of the middle-class, meanwhile, has led to protests against pollution and other issues. Issues regarding persons with disabilities and migrant workers are also becoming major concerns. Inone instance, a court case was filed against the Ministry of Railways demanding train station facilities equipped to serve persons with disabilities. Yet, migrant workers, constituting around a hundred million people, still face many problems that havenot been addressed.

Japan has ratified numerous international human rights instruments as domestic law. However, its criminal justice system is inconsistent with Japan’s obligations under the International Covenant on Civil and Political Rights. UN recommendations to reform the Japanese criminal justice system have been ignored. The Japanese courts likewise tend to refuse to recognize treaty body recommendations as bases for adjudication. The criminal justice system’s tendency to assume guilt rather than presume innocence leads to problems at the investigation stage (under the system of
substitute detention system” known as Daiyo Kangoku, suspects can be detained for up to twenty-three days in police detention facilities for investigation purposes with limited access to counsel19). This results in forced confessions, often with concomitant allegations of the use of force in securing them or their subsequent denial during court hearings. Moreover, defendants can be denied the opportunity to examine the evidence against them. However, there have been recent changes in the Japanese criminal procedure, such as the videotaping of police interrogations and the introduction of the jury system.

Some Trends

From the perspective of human rights practitioners, laws and jurisprudence that apply international human rights standards should be utilized to address the concerns of affected populations. But considering the fluidity of the situation, with laws being enacted in violation of human rights or court decisions rejecting human rights principles, there is a need for continued advocacy regarding the realization of state obligations under ratified or acceded international human rights instruments. A major area of concern is the human rights consciousness of legislators and judges who have the power to repeal laws or reverse judicial doctrines that apply human rights standards. To some extent, such advocacy depends on the insistence of affected populations on the application of these standards in the public domain.



For further information, please contact HURIGHTS OSAKA.

Endnotes

1. See Educational Policies and Human Rights Awareness – Japan, India, the Philippines and Sri Lanka (Delhi: Academic Excellence, 2008).
2. See Seminar on Human Rights in Developing Countries (12-25 May 1964, Kabul) discussed in Hiroko Yamane, “Asia and Human Rights,” in Karel Vasak, general editor, The International Dimensions of Human Rights
, volume 2 (Westport: Greenwood Press, 1982) pages 653-654.
3. See for example Yuji Iwasawa, International Law, Human Rights, and Japanese Law: The Impact of International Law on Japanese Law
(Oxford: Clarendon Press, 1998); Alberto T. Muyot, editor, Philippine Law and Jurisprudence on Human Rights (Quezon City: Institute of Human Rights, UP Law Center, 1999); Nihal Jayawickrama, The Judicial Application of Human Rights Law - National, Regional and International Jurisprudence (Cambridge: Cambridge University Press, 2002). There are also some online resources such as the following: Asian Legal Resource Centre, Human Rights Case Law - Sri Lanka in www.ruleoflawsrilanka.org/cases/human-rights-case-law-sri-lanka, Commonwealth and International Human Rights Case Law Databases in http://www.interights.org/database-s earch/ index.htm?keywords=Asia&start=1&finish=10&dir=databases&int1=&int2=on &match=any&orderby=rank&direction=DESC
4. See Lawrence W. Beer, editor, Constitutional Systems in late Twentieth Century Asia
, (Seattle: University of Washington Press, 1992) for discussions on this issue.
5. This project is supported by the United Nations Office of the High Commissioner for Human Rights under Project No: GLO/ 09/HC/25 B459 FOTCD Asia Pacific Unit, Human Rights and Practical Needs: International Human Rights Standards in Domestic Laws and Jurisprudence in Asia (December 2009- December 2010).
6. The following human rights centers are involved in the project: Human Rights Law Network (India), Center for Legal Research and Resource Development (Nepal), Association for Community and Ecologically Based Law Reform (Indonesia), Institute of Human Rights, University of the Philippines’ Law Center, Center for Human Rights Studies and Social Development, Mahidol University (Thailand), MINBYUN-Lawyers for a Democratic Society (South Korea), The Public Interest and Development Law Institute in Wuhan University School of Law (Hubei, China), and Human Rights Now (Japan).
7. The discussion on national contexts is based on the proceedings of the meeting of the project research partners held in Bangkok on 25-26 March 2010.
8. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en
9. One declaration relating to Article 9 of the ICCPR states that
[F]urther under the Indian Legal System, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State.” United Nations Treaty Collection, http:// treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en#EndDec.
10. These instruments cover rights relating to the following issues: anti-slavery, genocide, trafficking, women, apartheid, torture, racial discrimination, children, civil and political rights, and economic, social and cultural rights.
11. E.g., Republic of Indonesia Act No. 39/1999 Concerning Human Rights.
12 . E.g., National Human Rights Action Plan, better known as RANHAM, and the access to justice policy.
13. E.g., Basic Agrarian Law No. 5/1960, Forestry Law No. 41/1999, Water Resources Law No. 7/2004 , Plantation Act No. 18/2004, Coastal and Small Islands Act No. 27/2007.
14. E.g., the Universal Declaration of Human Rights.
15. These provisions are found mainly under the “Social Justice and Human Rights” chapter.
16. Oposa v Factoran, G.R. No. 101083 July 30, 1993.
17. Domestic Violence Victim Protection Act, B.E. 2550 (2007).
18. The National Human Rights Commission of Korea was reorganized in 2009 that led to the reduction of staff by 21 percent. See “NHRCK at a Crossroads” in National Human Rights Commission of Korea e-Newsletter (www.humanrights.go.kr/english/data/e-Newsletter/mail_090430.htm) accessed on 26 May 2010.
19. See paragraph 18 of the Concluding Observations of the Human Rights Committee, CCPR/ C/JPN/CO/5, 18 December 2008. The United Nations Committee against Torture observed that the Daiyo Kangoku has been used for prolonged detention, see paragraph 15 of the 2007 Conclusions and recommendations of the United Nations Committee against Torture (CAT/C/JPN/CO/1, 7 August 2007).


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