Freedom from Arbitrary Arrest / Detention / Exile

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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(Papua New Guinea ratified the ICCPR on July 21, 2008. (⟨=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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(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)

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.”

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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The Supreme Court of Bangladesh ruled in favor of sex workers and ordered the government to clean up its police force, which had problems with corruption. The police had violently evicted sex workers from their homes in the middle of the night, raising issues of unreasonable search and seizure. The Court encouraged the government to adopt a Code of Conduct for the police immediately, modeled on the Code of Conduct for Law Enforcement Agencies, which had been adopted by the General Assembly of the United Nations.

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