Civil and Political Rights
Independence of Judiciary Administration of Justice, Impunity

The International Covenant on Civil and Political Rights (ICCPR) guarantees fair trial. The provisions on due process contained in this convention are an integral part in the safeguarding of fair trial. However, in several countries in Asia there are considerable threats to the right to a fair trial.

In Cambodia, the limitations on fair trial arise from several factors. Cambodia as yet does not have a comprehensive penal code or criminal procedure code. What is used as the penal code is a document produced during the period of United Nations Transitional Authority for Cambodia (UNTAC) entitled, Guidelines for a Criminal Procedure in Cambodia. This short document of about 44 pages was designed to be a guideline for drafting a comprehensive criminal law and procedure. This document mentions about 40 criminal offenses. Due to the limited number of offenses many acts which constitute crimes in most of the countries are not considered as crimes.

For several years there had been many attempts to complete a penal code and a criminal procedure code also with the assistance of several international agencies. However, still no legal document has been passed by the legislature. This absence of a penal code and a criminal procedure code remains a great impediment to guaranteeing the right to fair trial in Cambodia.

Besides this, the majority of the poorly paid judges (with monthly official salary of about 20 US dollars) are not qualified legal professionals. As a result, without comprehensive legal and judicial reform, the right to fair trial cannot be guaranteed in Cambodia.

Though the constitution of Cambodia recognises the presumption of innocence of the accused, in actual practice a person is presumed guilty by the time the person is produced in court. The guilt or innocence is determined during the pre-trial state, which takes place before prosecutors. The prosecutor's inquiries are private and are not open to the public. This procedure is very much open to suspicion.

The international community can contribute a great deal towards such reforms by way of technical assistance, to which the government of Cambodia has remained open.

There have been considerable obstacles to fair trial in Sri Lanka. Sri Lanka has very comprehensive legislative provisions to guarantee a fair trial. However, these provisions are often suspended under the emergency regulations and special laws such as the Prevention of Terrorism Act. During the operation of such laws what are usually considered offenses under the normal law cease to be offenses.

For example, when the special legal provisions allow a police officer not below the rank of an assistant superintendent of police to authorise disposal of dead bodies the result is that the provisions of the criminal procedure relating to investigations into crimes, including murder, gets suspended. As a result even grave crimes such as murder are left uninvestigated.

As criminal investigation is the first step to ensure a fair trial, when no criminal investigation is conducted many crimes are simply not brought before a court. The number of cases, which are left uninvestigated, is on the increase. In the case of disappearances, the number of cases, which have not been investigated according to the provisions of the criminal procedure code of Sri Lanka, is over 30,000.

As a result of the failure to investigate serious crimes such as murder, a general attitude has developed in the police to be selective in investigation of crimes. This has led to the loss of faith in the judicial system among the people, and discourages people from reporting crimes. This was illustrated in a well-known case called Hokandara Murder Case where, over a land dispute, all the members of the family were killed one by one as they returned home over a period of about eight hours. No neighbour went to complain to the police during all that time. This incident shook the whole nation, demonstrating the extremely low level of faith in the criminal justice system among the people.

The police have often complained that they are unable to act independently as the politicians interfere constantly. In the criminal justice system in Sri Lanka the prosecution of serious crimes is done on the basis of files of criminal investigations submitted to the Attorney General's Department by the police. The result is when a crime is not investigated no criminal file is submitted and therefore no case is filed before court.

The present impasse on criminal investigations can be overcome if an independent prosecutor's office is created and the responsibility of supervising the criminal investigations into crimes is vested in the independent prosecutor. The present legal arrangement for the Attorney General to act as the prosecutor is inadequate as the Attorney General is officially the legal advisor for the government and is publicly perceived as directly under the influence of the government in power. Thus if fair trial is to be ensured for all victims of crimes a drastic change in the system of prosecution in Sri Lanka is unavoidable.

Recently some cases involving prominent political personalities in Malaysia have caught the attention of the world. The procedures in these cases raise questions relating to fair trial. The threats to the lawyers appearing in cases on behalf of the accused, restrictions placed on the accused to call for evidence to counteract the evidence placed by the prosecution, special restrictions placed on the media in reporting cases and police abuse of the powers have raised serious doubts on the operation of the right to fair trial of the accused in politically sensitive cases.

Under the military rule in Burma/Myanmar it can be said without exaggeration that there is no right of fair trial for persons who have been placed in the position of the 'accused' due to political reasons. The cases relating to them are not heard in open courts but often in military camps and prisons. The verdicts are predetermined and there is no possibility of proving one's innocence.

In Vietnam and China there have been attempts at legal reforms. However, the stress of such reforms are more on aspects of commercial law and not on the basic criminal law and criminal procedure. The trial procedures in criminal cases have not seen any considerable change. The trial procedure still remains within the framework of the former socialist legal framework in which the rights of the accused are subordinated to the prerogatives of the state. The execution of judgements within a very short time after the trial does not allow much room for an independent and impartial appeal process.

Over a century old Criminal Laws, an equally old but virile and well-developed judicial system and the provisions of the Constitution ensure the essentials of Fair Trial in India. Independent and strong Bench and Bar, a free Press and effective fora for agitating against abuse/ misuse of authority, and denial of rights through Writ . Jurisdiction of the Courts and Public Interest Litigation (PIL) have made Fair Trial part and parcel of the liberal democratic institutions for good governance in India. Even the rigours of ad hoc Special laws have been toned down by public opinion and intervention of the Judiciary.

Recently the Supreme Court laid down a procedure for the Police when arrests are made, including an effective charter of rights for accused and suspects. However years of neglect and low priority for modernisation and reform have rendered certain areas of the criminal justice system dysfunctional, affecting adversely the quality of the service delivered.

Arbitrary arrests as preventive action by police, delay in production before Courts within the statutory minimum time frame, refusal of bail, delay at the stages of investigation and trial, with 'under-trials' languishing in custody for long, the lower judiciary steadily becoming suspect, the deteriorating standards of the legal profession, the very unsatisfactory conditions of jails, prisons and half-way houses and more importantly the failure to reform the police and the prison sub-systems are the weak links in the generally strong and vibrant criminal justice system of India.

Political appointment of Public Prosecutors and Government Pleaders, Director of Prosecution, Advocate General etc., as in a 'Spoils system,' has introduced an element of bias in their functioning. The arrangement for legal assistance to indigent accused in trials has yet to develop into an effective institution. The poor and illiterate accused generally receive low quality defence. An element of gender disadvantage is noticed in respect of women in the application of criminal laws. This is evident from the massive response to the Women Commissions instituted by certain states for attending to crimes against women, domestic violence, and crimes related to dowry/inheritance.

The criminal laws need revision and re-writing, along with police and prison laws. Police and prison reforms have to be introduced and implemented in earnest to make fair trial institutions deliver without discrimination in India.

The Constitution of the Kingdom of Nepal, 1990, has envisaged the standard of criminal justice as guaranteed by the international instruments. The practice however suffers from serious weaknesses. Certain fundamental rights, like the right to legal assistance by a legal counsel of choice, the right against arbitrary arrest and detention etc., are under continuous violations by investigating and prosecuting agencies. In brief, a study on the criminal justice system carried out by the Center for Legal Research and Resource Development has pointed out the following weaknesses that thwarts fair trial in Nepal:

Practice of arbitrary arrest and detention is phenomenal. The warrant or notice of arrest and detention is not given to the suspect in an overwhelming number of cases; confession has been effectively used to convict the accused, and as such torture is commonly used to extract confession obviously violating the right to remain silent; the suspect is never given the information of the charge and ground of arrest; grant or rejection of bail is not guided by facts and evidence but by personal discretion of the trial judge. Security bonds in the form of cash or asset for bail is phenomenal. Hence, poor people are incarcerated in the judicial custody simply for their inability to procure bond. Thus, justice is accessible only to wealthy people; the trial courts, without the right of the accused to be defended by a legal counsel or himself/herself being secured make grant of extension for police custody for prolonged investigation; continuous trial is not ensured, and thus people have to spend long time awaiting the final hearing.

Given the problems that exist in terms of fair trial in the countries mentioned above, as well as several other countries, the Asia Legal Resource Center (ALRC) urgently recommends the appointment of a Special Rapporteur to investigate and report on the persistent obstacles to fair trial in Asia, their causes and consequences. He or she should, in consultation with practicing professional lawyers, advocates and judges, as well as national and regional human rights advocates and organisations in the region who have direct experiences in dealing with these problems in the respective countries, make recommendations as to how to eliminate these obstacles.