Jurisprudence

The High Court of Tuvalu cited the CRC in interpreting the Constitution, which failed to protect the legal rights of children in situations in which children defendants had not yet been interviewed by the police. Through the CRC, the Court held that children in police custody had the right to be informed by the police that they had a right to have a parent, guardian or legal adviser present. The Court also held that the police must take reasonable measures to ensure that such assistance was in place before the police could interview the child.

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A male was convicted of murder. The incident occurred when the male was sixteen years old. Following his conviction, he did not appeal, and had served over four years of his sentence when he petitioned the High Court of Tuvalu for a review of his case, given that he was a minor when the crime occurred. In deciding on the case, the Court cited the CRC and said that Tuvalu, as a signatory, was “required to review [its] laws in relation to children.” The Court then suggested that legislation be passed mandating greater review by the government of life imprisonment or sentences of many years, especially for children. However, the Court refused to alter the applicant’s sentence of life imprisonment, as he had not appealed and was essentially asking the Court to review one of its earlier decisions.

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R v Vola, [2005] TOSC 31

In a drunken incident, after being provoked, the defendant hit another person repeatedly with an iron bar, killing him. The jury found him guilty. The Supreme Court of Tonga had to consider whether to sentence the defendant to death or life imprisonment. It chose life imprisonment. In so doing, it made reference to Article 6(1) of the ICCPR, to which Tonga was not a party. Nevertheless, the Court allowed the ICCPR to influence its decision in this first verdict in a murder case in Tongatapu in over twenty years. This was a major departure from prior decisions by Tongan courts, which held the ICCPR to be non-enforcable. Thus, the ICCPR and international human rights standards were gaining influence in Tonga.

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In considering minimum penalties, the Supreme Court of Papua New Guinea discussed the U.S. cases of Weems v. United States, 217 US 349 (1910) 54 L. Ed. 793, Robinson v. California, 370 US 660 (1962) 8 L Ed 2d 758, and Furman v. Georgia, 408 US 238 (1972) 33 L Ed 2d 346, among others. The Court then rejected the approach taken by these U.S. courts, noting that U.S. decisions were not binding on the Papua New Guinea Supreme Court. Nevertheless, they were admitted to “have thrown much light” on its approach. The Court also cited the European Convention on Human Rights and Tanzanian and Australian law, among the law of other countries, and said that “torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person.” Nevertheless, the Court upheld the legality of minimum fines and penalties.

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The defendant was convicted on a charge of conspiracy to manufacture methamphetamine. He appealed to the Supreme Court of New Zealand, claiming there was undue delay in the interim between his arrest and trial (almost five years). The Court called the delay “plainly excessive” and cited the European Convention for the Protection of Fundamental Rights and Freedoms. It also cited multiple U.S. Supreme Court cases and held that the delay here could not be justified, and upheld the reduction of his sentence by eighteen months, or twenty-five percent. It hesitated to do, however, out of a concern for letting loose dangerous criminals. It called the reduction “generous” and hinted that only in situations in which the delay in trial reaches “peculiarly outrageous proportions” would the Court reduce prisoners’ sentences.

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In deciding the standards governing whether a judge should be removed from a case because of a fear of bias, the Supreme Court of New Zealand looked to decisions of the European Court of Human Rights and also to the European Convention. The Court held that a judge may be removed based on a reasonable apprehension of bias, even though this would sometimes lead to an unbiased judge being removed. In this case, the Court held that there was no bias by the relevant judge, and dismissed the appeal.

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The Supreme Court of New Zealand noted that neither the ICCPR nor the ECHR provide for a right to trial by jury, but that New Zealand law does.

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(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

(found in ''Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission'' by Amanda Whiting, Stanford Journal of International Law, Winter 2003, Volume 39, Number 1, pp. 84-88)

The Supreme Court of Japan, showcasing its tendency of extreme deference to the executive, overturned a lower court decision regarding criminal law. The lower court decision had held that, given the plaintiff's background in a political organization, it could not be said that the government manifestly lacked a reason to arrest him subsequent to his refusing five times to be interrogated voluntarily. The plaintiff had cited the ICCPR in its arguments, but the Court did not respond to this in its very short opinion. The Court did not even give a reason for failing to deal with the plaintiff's claims. Although this practice of failing to deal with a claim when rejecting it is not unusual in Japanese jurisprudence, the Supreme Court seemed to be sending a signal to lower courts, who had before then shown a tendency to broaden the scope of individuals' rights in Japan through recognition of rights provided in the ICCPR. The signal was that the Supreme Court would not necessarily be quick to broad such rights, even if the judiciary as a whole seemed to be, and that international law (here, the ICCPR) would not necessarily concern the Court if it wanted to rule a particular way.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 480)

Maneka Gandhi v. Union Of India, 25 January, 1978

The passport of the daughter-in-law of the former prime minister was impounded on the ground that her presence was likely to be required in connection with the proceedings of ca commission of inquiry. The Court held that an order impounding a passport must be made quasi-judicially. The audi alteram partem rule (no judgment without a fair hearing) must be regarded as incorporated in the passport law by necessary implication, since any procedure which dealt with the modalities of regulating, restricting, or even rejecting a fundamental right has to be fair, not "arbitrary, freakish or bizarre".

“Things have changed, global awareness has dawned. The European Convention on Human Rights and bilateral understandings have made headway to widen freedom of travel abroad as integral to liberty of the person. And the universal Declaration of Human Rights has proclaimed in Article 13, that every one has the right to leave any country including his own, and to return to his country. This human planet is our single home, though geographically variegated, culturally diverse, politically pluralist in science and technology competitive and co-operative in arts and life-styles a lovely mosaic and, above all, suffused with a cosmic unconsciousness of unity and inter- dependence.”

(p459, The Judicial Application of Human Rights Law, by Jayawickrama, Nihal)

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The Supreme Court of India overturned a conviction based on circumstantial evidence. It cited Articles 3 and 10 of the UDHR. Article 10 supports the principle that one's right to defense includes the right ''to effective and meaningful defence at the trial.''

(found in ''The Status of the Universal Declaration of Human Rights in National and International Law'' by Hurst Hannum, Georgia Journal of International and Comparative Law, Vol. 25, Nos. 1&2, Fall 1995/Winter 1996, p 299-300)

The Indian Supreme Court cited an Amnesty International report when it noted the arbitrary nature of death penalty application. The Court said that “extremely uneven application of [the ‘rarest of the rare’ formulation] . . . has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle.” The Court also noted the UN General Assembly moratorium resolution, as well as the general worldwide trend of avoidance of the death penalty, particularly in Nepal, Bhutan, the Philippines, and South Korea.

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Lau Cheong & Lau Wong v HKSAR, [2002]

The defendants had committed a robbery. In the process, they tied up and stabbed a person, who died from ligature strangulation. It was possible that the defendants did not intend to kill the victim. Nevertheless, they received mandatory life imprisonment sentences for murder. The defendants appealed the life imprisonment sentence, as they claimed they lacked the necessary culpability for murder. On appeal at the Court of Final Appeal, the Court rejected these claims and upheld the life imprisonment sentences. In so doing, the Court compared Hong Kong’s Bill of Rights with the European Convention on Human Rights (ECHR). Nevertheless, the life imprisonment sentences remained.

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The defendants were convicted of insider trading by the Insider Dealing Tribunal. The defendants argued that Tribunal rules were violative of the defendants’ right to be free from self-incrimination. They also argued that the Tribunal applied against them the incorrect standard of proof – the correct standard of proof should have been that of a criminal proceeding, not of a civil proceeding, as mandated in Articles 10 and 11 of the Bill of Rights (Article 14 of the ICCPR).

In reaching its decision, the Court of Final Appeal relied on the European Court of Human Rights (“the Strasbourg Court”) and the General Comments of the UN Human Rights Committee under the ICCPR. Justice Mason, the former Chief Justice of Australia, was a visiting judge. He said that decisions of the Strasbourg Court, though not binding on Hong Kong courts, were “of high persuasive authority”. He also noted the similarity of Article 10 of Hong Kong’s Bill of Rights to Article 6(1) of the European Convention. Justice Mason then applied the Strasbourg Court criteria for determining whether there is a “criminal charge” as per Article 6 of the Convention. He also referred to General Comment No. 32 of the Human Rights Committee , which related to Article 14 of the ICCPR.

The CFA thus held that the standard of proof of a criminal proceeding was the proper standard of proof in this case, and thus the defendants should have had the benefit of such a standard. The CFA also held that the defendants’ right to freedom from self-incrimination had been violated. Regarding the standard of proof, the CFA noted that neither the ICCPR nor the European Convention were clear on the matter. Furthermore, the relevant law of the Strasbourg Court was not conclusive either. Accordingly, the Court relied heavily on the Human Rights Committee’s General Comment No. 13 and General Comment No. 32, which both suggested that proof beyond a reasonable doubt was the proper standard as per Article 14 of the ICCPR. Justice Mason said, “The General Comments [of the Human Rights Committee] are a valuable jurisprudential resource which is availed of by the Committee in its adjudicative role. While the General Comments are not binding on this Court, they provide influential guidance as to how the ICCPR is applied and will be applied by the Committee when sitting as a judicial body in making determinations.”

(found in "International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong" by Albert H.Y. Chen, pp. 27-30, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )

Lam v. Comm'r of Police, [2009] 4 H.K.L.R.D. 575, (C.F.A.)

A police officer was charged with a disciplinary offense regarding “financial imprudence” resulting in the impairment of an officer’s operational efficiency. He was given the penalty of compulsory retirement. The disciplinary proceedings did not allow him an attorney at the hearing. The officer then challenged the fairness of such proceedings.

The Court of Final Appeal needed to determine whether Article 10 of the Bill of Rights (Article 14 of the ICCPR) was applicable. Article 10 required a fair hearing by an independent and impartial tribunal in the determination of any “criminal charge” or a person’s “rights and obligations in a suit at law”. In making its decisions, the CFA looked to the case law of the European Court of Human Rights regarding article 6(1) of the European Convention on Human Rights (similar to Article 10 of the Hong Kong Bill of Rights) and General Comment No. 32 of the Human Rights Committee, which concerned article 14(1) of the ICCPR.

The CFA noted that recent European case law (for example, the then-latest decision of the Strasbourg Court in Eskelinen v. Finland, (2007) 45 Eur. H.R. Rep. 43) followed the trend of extending protection of Article 6(1) of the European Convention to civil servants. However, another international source, the Human Rights Committee, in its General Comment No. 32, had expressed essentially a contrary view. Thus the CFA had to negotiate two conflicting sources of international law. The CFA chose to favor the interpretation of the Strasbourg Court, and thus adopted the Eskelinen approach and ruled in favor of the defendant. The defendant was thus entitled to Article 10’s constitutional protection regarding a fair hearing.

This case further demonstrates the great influence on Hong Kong jurisprudence of the European Convention on Human Rights.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 32-34, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

The Supreme Court of the Philippines recognized the necessity to preserve the environment for future generations. Bangladeshi and Indian courts, as well as scholarly articles, have cited this case.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 251)

Prosecutor v. Kaing Guek Eav Alias Dutch (2009)

A person had been imprisoned for over ten years. He argued that this violated domestic and international law regarding provisional detention.

The Court noted that the Extraordinary Chambers in the Courts of Cambodia (ECCC) was meant to follow procedure in line with Cambodian law. However, the Court said, the ECCC was allowed to adopt its own Internal Rules that complied with international standards. “The ECCC law not only authorizes the ECCC to apply domestic criminal procedure, but also obligates it to interpret these rules and determine their conformity with international standards prescribed by human rights conventions and followed by international criminal courts. Moreover the ECCC must consider Article 31 of the Constitution of the Kingdom of Cambodia which states that ‘the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights.’ Even if a violation of the Accused’s right cannot be attributed to the ECCC, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention.”

The Court then held that the imprisoned person’s detention before the Military Court constituted a violation of Cambodian law. It also violated his internationally-recognized right to a fair and speedy trial.

However, the Court held that the ECCC did not violate domestic or international law by ordering the prisoner to provisional detention. However, the Court also held that if he were to be convicted, he would be entitled to not only credit for time already served, but also to a reduction in sentence, owing to “previous violations to his rights”. If he were to be acquitted, the Court held, international case law indicated that he could seek compensation for violations of his rights, here, those committed by the Cambodian Military Court.

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Pakistan: Zia v. WAPDA, P L D 1994 Sup. Ct. 693

(though international documents like the Rio Declaration are not binding, the Court observed, ''the fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating transboundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence.'')

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

The Supreme Court of India declined to get involved in a petition against damming the Narmada River. In so doing, the Court noted that a lengthy decision-making process had been behind the damming, and that the Court should not try to second-guess something which had been given such great consideration already. Thus, the Court essentially gave the go-ahead for the displacement of indigenous and tribal populations which were in the path of the damming. In its decision, the Court took into consideration the Indigenous and Tribal Peoples Convention of 1957, the ILO Convention No. 107, and principles of international environmental law.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

Secretary of State for Justice v Chan Wah & Ors, [2000]

Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 261)

Several chemical industrial plants established in a major industrial complex were producing substances such as oleum (concentrated sulphuric acid), single super phosphate (SSP), and 'H' acid which gave rise to highly toxic effluents. The court held that it had the power to intervene to protect the constitutionally guaranteed right to life by ordering the closure of the plants and by directing the government to determine and recover the cost of remedial measures from the owners of the plants. The court also recommended the strengthening of environmental protection machinery. In effecting the polluter pays principle, the Court looked to the European Community’s methods regarding polluting entities, in particular the European Community Treaty.

(p270, The Judicial Application of Human Rights Law, by Jayawickrama, Nihal)

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(the Court in this case referred to the 1992 Rio Declaration on Environment and Development and other nonbinding agreements as having been transformed into ''Custoary International Law though [their] salient feature[s] have yet to be finalised by the International law Jurists.''

The Supreme Court of India declined to get involved in a petition against damming the Narmada River. In so doing, the Court noted that a lengthy decision-making process had been behind the damming, and that the Court should not try to second-guess something which had been given such great consideration already. Thus, the Court essentially gave the go-ahead for the displacement of indigenous and tribal populations which were in the path of the damming. In its decision, the Court took into consideration the Indigenous and Tribal Peoples Convention of 1957, the ILO Convention No. 107, and principles of international environmental law.

“The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights . . . brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.”

(found in Toward Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, ed. Nisuke Ando, p 253)

For further cases, see Shane S. Monks, In Defence of the Use of Public International Law by Australian Courts, 22 Australian Yearbook of International Law pp. 201-226 (2003).

The defendant had made moves to install industry near a lake. The Indian Supreme Court ruled against the defendant. It referred to various courts around the world, and to a decision of the Inter-American Commission on Human Rights, when it said that ''the concept of a healthy environment as a part of the fundamental right to life, developed by our Supreme Court, is finding acceptance in various countries side by side with the right to development.''

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 260)

Fa'aoso v Paongo & Ors, [2006] TOSC 37

A 12-year-old was arrested by the police after being falsely accused of theft. He was in police custody for 20 hours before being released. In police custody, he was beaten. The officer pled guilty. In awarding the minor monetary compensation, the Supreme Court of Tonga had to consider whether the CRC came into play when minors were possibly being tortured. The Court hinted that courts in Tonga should be willing to be bound by its terms. The Court also cautioned that, considering the average Tongan’s income, future money damages should be kept in proportion to reality. This was the first application of the CRC in Tongan courts (but not the first application of a human rights convention, as seen in 2005 in R v Vola). Both cases show a departure from traditional Tongan courts’ reluctance to apply international human rights standards.

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A man was allegedly tortured by the police while in their custody. The man died in custody. The man’s widow petitioned the Supreme Court of Sri Lanka on behalf of her deceased husband. The Supreme Court cited the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment and held that the widow not only had the right to file suit on behalf of her deceased husband, but also that there existed in Sri Lanka a constitutionally protected right not to deprive of life, as well as a right to life. The Court said, “The interpretation that the right to compensation accrues to or devolves on the deceased's lawful heirs and/or dependants brings our law into conformity with international obligations and standards, and must be preferred.” The Court then ordered a total compensation of 800,000 rupees to the wife and child of the deceased.

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The Indian Supreme Court allowed the laying of pipes as it found that the plan to do so was thought out and would not unduly damage the enrivonment. The Court referred to the Declaration of the 1972 Stockholm Conference on the Human Environment as the ''Magna-Carta of our environment''. The laying of such pipes would be in line with the Declaration, and thus the Court allowed it. In other cases, the Court imported into domestic law the principles or concepts of sustainable development, the ''polluter pays'' principle, and the precautionary principle.

India: Nilabatibehera v State of Orissa, 1993 SCC 746

A mother wrote a letter to the Supreme Court of India, requesting monetary compensation for the death of her 22-year-old son, who died in police custody. She claimed that her son was beaten to death. The Supreme Court took up her case.

“Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 lays down that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.. This Covenant has been ratified by India,56 which means that the State has undertaken to abide by its terms . . . The State has a .duty of care. to ensure that the guarantee of Article 21 is not denied to anyone. This .duty of care. is strict and admits no exceptions the Court said. The State must take responsibility by paying compensation to the near and dear ones of a person, who has been deprived of her/ his life by the wrongful acts of its agents. However, the Court affirmed that the State has a right to recover the compensation amount from the wrongdoers.”

Sanjeewa v Suraweera and Others, SC No. 328/2002, 2003

A man was arrested. While in police custody, he was subject to mistreatment by the police, for which he went to the hospital. Before the Supreme Court, he sought compensation for his medical bills beyond any compensation for the mistreatment he endured. The Supreme Court of Sri Lanka allowed this medical bill compensation, citing Article 12 of the ICCPR. The Court said, “Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner's wife's choice of the latter was not unreasonable -and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural Rights recognizes the right of everyone "to the enjoyment of the highest attainable standard of physical and mental health"”.

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A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article 21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus, Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article 21's fundamental right to life, the victim was entitled to compensation.

Fa'aoso v Paongo & Ors, [2006] TOSC 37

A 12-year-old was arrested by the police after being falsely accused of theft. He was in police custody for 20 hours before being released. In police custody, he was beaten. The officer pled guilty. In awarding the minor monetary compensation, the Supreme Court of Tonga had to consider whether the CRC came into play when minors were possibly being tortured. The Court hinted that courts in Tonga should be willing to be bound by its terms. The Court also cautioned that, considering the average Tongan’s income, future money damages should be kept in proportion to reality. This was the first application of the CRC in Tongan courts (but not the first application of a human rights convention, as seen in 2005 in R v Vola). Both cases show a departure from traditional Tongan courts’ reluctance to apply international human rights standards.

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Fourteen defendants were awaiting trial and all but one had been released on bail. The respective court had ordered them all to be remanded back into custody on the sole ground that the trial was being held on four days of the week. The defendants appealed this remand, arguing that it was an arbitrary refusal of bail in violation of the Sri Lankan constitution. However, the court rejected their appeal, saying that the remand was an “interim order” against which there was no right of appeal. The Supreme Court of Sri Lanka held that the defendants had been denied bail arbitrarily. In so holding, the Court cited Article 9 of the UDHR and also Article 9 of the ICCPR when it said that “[t]he right to liberty and security of person is a basic tenet of our public law and is universally recognized as a human right guaranteed to every person”. The Court held that granting bail was the rule, not the exception, and that a court could only refuse bail for certain reasons laid out in Sri Lankan law. The Court then quashed the previous order refusing the defendants bail.

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The UDHR was cited in an attempt to convince the Supreme Court of Nauru that a right to marry a non-Nauruan woman should be incorporated into the Nauru Constitutional Bill of Rights. The Supreme Court rejected this attempt, however.

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(Papua New Guinea ratified the ICCPR on July 21, 2008. (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4⟨=en) Since then, it has been cited at least once by the Supreme Court, in July 2010. Though the Papua New Guinea Supreme Court citation of international human rights norms as a whole is limited compared to countries in the region such as New Zealand and Fiji, it will be interesting to see if the recent ratification of the ICCPR leads to more ICCPR and human rights norms citations, as the July 2010 case would suggest.)

The government of Papua New Guinea had declared a state of emergency in the resource-rich province of Southern Highlands. The Supreme Court had to consider whether the declaration of the state of emergency was valid. The Court looked for guidance to the ECHR, the Inter-American Convention on Human Rights, and especially to the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, which gave guidelines for when states could derogate from their ICCPR obligations so as to protect the state or populace. The Court noted that though Papua New Guinea had not ratified the ICCPR, it could provide assistance.

The Court ultimately ruled that the incidents in this case did not allow for the declaration of a state of emergency. Rather, they were “ordinary problems” which could be dealt with by ordinary criminal laws. The Court then declared the declaration of the state of emergency invalid.

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The appellant went to a police officer’s home on a weekday morning while the police officer was sleeping after coming off of a night shift. The appellant knocked on the police officer’s door and the police officer answered. The appellant then stood in the street playing a guitar and protesting the police officer’s role in an earlier search warrant incident. After he refused to cease, he was arrested after the arrival of other officers. The appellant challenged this, and thus the issue was whether the appellant’s fundamental right to freedom of expression afforded him greater legal weight in court than the police officer’s right to privacy.

In determining whether privacy is a “right” or a “value”, the Supreme Court of New Zealand noted that New Zealand was committed to the ICCPR. The ICCPR allows for restrictions on the freedom of expression if they are reasonable, and if the Court were to follow the ICCPR here, the appellant’s appeal could have been denied. However, the Court ruled in favor of the appellant by favoring the NZ Bill of Rights, which does not allow for such restrictions on the right to freedom of expression. Thus, the Court went above and beyond the ICCPR in providing for freedom of expression, though by doing so the right to privacy was somewhat infringed. The Court also cited the UDHR, the ECHR, the CRC, the Charter of Fundamental Rights of the European Union, the American Convention on Human Rights, the Cairo Declaration on Human Rights in Islam. The Court also affirmed that there is a right to privacy in New Zealand.

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The Supreme Court of Vanuatu cited CEDAW and used it as a guide in formulating a principle for distribution of matrimonial assets. The Court held that there is a presumption of joint or equal ownership of all matrimonial assets.

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A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

The Supreme Court of New Zealand allowed for an appeal of a case regarding whether the Convention Relating to the Status of Refugees (a UN document) was properly applied.

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(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

(found in ''Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission'' by Amanda Whiting, Stanford Journal of International Law, Winter 2003, Volume 39, Number 1, pp. 84-88)

An election was held. After the election, it was contended that there had been irregularities in the voting process at various polling places, including ballot stuffing, early closure of polling stations, and intimidation. The Supreme Court of Sri Lanka held that the irregularities would have affected the result of the election and that there therefore should have been a re-poll at those polling stations. It said, “The right to a free, equal and secret ballot is an integral part of the citizen's freedom of expression, when he exercises that freedom through his right to vote . . . That right is an essential part of the freedom of expression recognized by Article 14(1)(a) of the Constitution, especially in view of Sri Lanka's obligations under Article 25 of the International Covenant on Civil and Political Rights and Article 27(15) of the Constitution . . . The citizen's right to vote includes the right to freely choose his representatives, through a genuine election which guarantees the free expression of the will of the electors: not just his own. Therefore not only is a citizen entitled himself to vote at a free, equal and secret poll, but he also has a right to a genuine election guaranteeing the free expression of the will of the entire electorate to which he belongs." The Court then held that because the respondent had not ensured a fair election process, and subsequently had not annulled the polling at stations with irregularities, the right of the petitioners under the Sri Lankan constitution had been infringed. However, as nearly two years had passed in the interim, the Court held that it would not be feasible to declare the results of the respective polling stations invalid nor to order a re-poll. It did, however, award the petitioners their costs, even though they had not asked for compensation.

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The person elected by resident voters to the Provincial Council subsequently resigned, creating a vacant seat on the Council. The government then selected a person who was not on the ballot at election time to fill the seat. This was challenged in the Sri Lankan Supreme Court, which ruled that such action was invalid. It also held that only people who had been on the ballot at election time could be selected to fill a vacant seat on the Provincial Council. The Court said, “What is involved is the right of the electorate to be represented by persons who have faced the voters and obtained their support . . . That is wholly consistent with Article 25 of the International Covenant on Economic, Social and Cultural Rights, which recognizes that every citizen shall have the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representative.” (emphasis in original).

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The Supreme Court of Japan, showcasing its tendency of extreme deference to the executive, overturned a lower court decision regarding criminal law. The lower court decision had held that, given the plaintiff's background in a political organization, it could not be said that the government manifestly lacked a reason to arrest him subsequent to his refusing five times to be interrogated voluntarily. The plaintiff had cited the ICCPR in its arguments, but the Court did not respond to this in its very short opinion. The Court did not even give a reason for failing to deal with the plaintiff's claims. Although this practice of failing to deal with a claim when rejecting it is not unusual in Japanese jurisprudence, the Supreme Court seemed to be sending a signal to lower courts, who had before then shown a tendency to broaden the scope of individuals' rights in Japan through recognition of rights provided in the ICCPR. The signal was that the Supreme Court would not necessarily be quick to broad such rights, even if the judiciary as a whole seemed to be, and that international law (here, the ICCPR) would not necessarily concern the Court if it wanted to rule a particular way.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 480)

The Supreme Court ruled in favor of allowing the participation of Ang Ladlad as a party list group representing the LGBT community in elections.

"Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Court’s analysis . . .

In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR . . .

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines’ international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity), which petitioner declares to reflect binding principles of international law.At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status. We also hasten to add that not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if “wants” are couched in “rights” language, then they are no longer controversial. Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are – at best –de lege ferenda – and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the “soft law” nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris. As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate."

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(Papua New Guinea ratified the ICCPR on July 21, 2008. (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en) Since then, it has been cited at least once by the Supreme Court, in July 2010. Though the Papua New Guinea Supreme Court citation of international human rights norms as a whole is limited compared to countries in the region such as New Zealand and Fiji, it will be interesting to see if the recent ratification of the ICCPR leads to more ICCPR and human rights norms citations, as the July 2010 case would suggest.)

The Supreme Court of Papua New Guinea decided on an issue concerning the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC), a law which put restrictions on elected officials switching parties, ostensibly to avoid a “musical chairs” of political party membership. Under OLIPPAC, a candidate could not be endorsed by more than one political party, and after the election, the elected official had to remain a member of his or her chosen political party for a given amount of time. He or she would then be subject to investigation if he or she did switch. Thus, there was concern that this would force elected officials to go along with the party and become yes men or women, lacking freedom to vote their conscience rather than with their party, and also the freedom to switch parties when they felt that their own views had become convergent with those of the party.

The Supreme Court of Papua New Guinea called this a “draconian” law. “A person’s right to hold political beliefs and to enjoy that right individually or in association with likeminded persons, ought not be restricted or prohibited in any democracy. This right, amongst other human rights, is recognised as an inherent and unalienable right under the International Bill of Human Rights (1978) and the United Nations International Covenant on Civil and Political Rights (1966), both of which PNG has ratified.” The Court then struck down the relevant provisions of OLIPPAC. The Court seemed to do so mostly on grounds that OLIPPAC was unconstitutional, but nevertheless, the ICCPR was cited for support.

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Nilabatibehera v State of Orissa, 1993 SCC 746

A mother wrote a letter to the Supreme Court of India, requesting monetary compensation for the death of her 22-year-old son, who died in police custody. She claimed that her son was beaten to death. The Supreme Court took up her case.

“Article 9 (5) of the International Covenant on Civil and Political Rights, 1966 lays down that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.. This Covenant has been ratified by India,56 which means that the State has undertaken to abide by its terms . . . The State has a .duty of care. to ensure that the guarantee of Article 21 is not denied to anyone. This .duty of care. is strict and admits no exceptions the Court said. The State must take responsibility by paying compensation to the near and dear ones of a person, who has been deprived of her/ his life by the wrongful acts of its agents. However, the Court affirmed that the State has a right to recover the compensation amount from the wrongdoers.”

(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

(found in ''Situating Suhakam: Human Rights Debates and Malaysia's National Human Rights Commission'' by Amanda Whiting, Stanford Journal of International Law, Winter 2003, Volume 39, Number 1, pp. 84-88)

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