Appendix I: Freedom of expression in Asia (E/CN.4/2005/NGO/37)

--A written statement submitted by the Asian Legal Resource Centre (ALRC) to the 61st session of the UN Commission on Human Rights, April 2005.

1. Discussion on freedom of expression usually centres on violations such as censorship, self-censorship, attacks on journalists, attacks on publications and the like. Little attention is paid to the suppression of freedom of expression through the legal process itself. This is because in developed democracies the legal system guarantees freedom of expression and offers various avenues for persons or groups who feel that their rights relating to freedom of expression have been violated to find redress. However, this is not the situation in most countries in Asia, where the legal system itself creates many obstacles for freedom of expression. Furthermore, defects in the legal system, when manipulated unscrupulously - either by the executive or the judiciary - can also create huge obstacles to freedom of expression and cause silence and submission among the people. In this statement, the Asian Legal Resource Centre (ALRC) wishes to examine a few of these obstacles.

2. Diminishment or curtailment of the freedom of lawyers to carry out their functions can virtually paralyse the freedom of expression in a society. When freedom of expression is violated lawyers have to canvas the matter before the courts. When matters are raised before courts, all violators are put on notice that their violations are under legal scrutiny. Once the lawyers raise questions after professional research and establishing the real grounds on which they go to court, their pleadings also provide good material for the media to take up the same issues. Thus, serious debate on all matters relating to freedom of expression in the courts takes place through the mediation of lawyers. If by direct or indirect means lawyers are prevented from playing their roles in the most effective and sophisticated manner, freedom of expression will be undermined.

3. There are many modes by which legal actions for the protection of freedom of expression can be curtailed by tampering with the rights of lawyers. One is to limit the remedies available in the law so that the capacity of lawyers to handle such matters is likewise limited. There are many countries in which the role of the lawyer is confined to minor criminal or civil matters, such as property or commercial disputes, and there is no room for public law. There are other countries where this role does exist but only marginally. This is the case in most former European colonies. Even though there may be constitutional expansion for legal canvassing against freedom of expression through bills of rights or other provisions introduced through the constitution, the actual capacity that exists for canvassing such matters is limited and is often also circumscribed by procedural limitations and habits in courts that were established through long years of practices under more limited legal remedies.

4. Worse still are the deliberate attempts to intimidate lawyers. Such intimidation can take many forms. The pretext of dealing with the workload of courts speedily may be intended to create an impression of professional lawyering as an obstruction to the speedy administration of justice. Lawyers are pressured to limit their interventions and surrender some of their basic professional freedoms on the pretext of court efficiency. If this pressure continues for long enough, as has happened in several countries in Asia, many lawyers also become demoralised. Opportunism may also grow in the legal profession itself, causing some lawyers to exploit the situation and unscrupulously subvert the basic practices of their profession and cause its degeneration.

5. Another way of silencing lawyers is to take legal action against them so that they are unable to practice either for a short time or indefinitely. While rules against unprofessional practice are essential to the functioning of any profession, such regulations must be applied only according to the best traditions of the profession itself. If the rules are used against lawyers on flimsy grounds over an arbitrary manner, this will have a chilling effect on the profession as a whole. When a lawyer feels that her dignity as a professional lawyer has been diminished and that she can get into serious problems if she practices her profession in the manner required normally, then she may withdraw from performing her duties and accept a lesser role. For example, if the rules against lawyers are issued with ease, then a lawyer can only assume that she might be the next target. In these circumstances the whole profession is affected psychologically. What remains thereafter as a profession is only the external façade but not the profession as it should be.

6. This same effect can also be brought about by the easy use of contempt of court proceedings.  Such proceedings can become an instrument for intimidation when one or two persons are punished without due process and all the requirements of law. The message is passed to the entire profession that it is a dangerous thing to be a good lawyer. Then lawyers stop taking controversial cases and do not advocate unpopular causes. Many will cease to take a brave position even in normal cases.

7. By these and other means lawyers can be silenced. They may still remain vociferous and complain of the indignities they suffer within private circles. However, in the courts, the real arena in which they are expected to play their role, they will humbly submit themselves to an oppressive ethos. They thereby only lend support to a process that has partly or completely lost legitimacy. The very professionals that have the legal capacity to expose the hypocrisies through which various crimes and gross violations of rights take place become silent partners to the death of freedom of expression. This tremendously important means for suppressing freedom of expression needs to be documented and opposed, not primarily for the sake of lawyers, but for the sake of preserving the people's freedom of expression.

Appendix II: Reform of the criminal investigations and prosecutions systems is the real key to reducing crime in Sri Lanka

--Asian Human Rights Commission, 11 January 2001

The recent decision of the Sri Lankan government to re-introduce the death sentence adds to the already very bad human rights record of the country. The argument that the increased crimes rate requires the reintroduction of the death sentence does not stand up to examination. There are fundamental failures in the criminal investigations and prosecution system in Sri Lanka that allow criminals to remain free, however serious their crimes. The Hangman can become a substitute for proper criminal investigators and competent prosecutors.

The present situation of increased crimes must be blamed on the criminal investigation authorities and on the prosecuting department which in Sri Lanka is the Attorney General's department. However, the relationship between these two departments themselves is inherently defective. As it exists now, criminal investigation is entirely the function of the police and if they fail to investigate, the prosecutors can wash their hands by saying that there is no evidence with which to prosecute. While this situation remains, all that the hangman can do is to send a few poor people to the gallows as a deterrent to others. This will only be a further mockery of justice in a country where justice is fast becoming a distant dream.

We instead call upon the government of Sri Lanka to seriously address the defects in the justice system that make the increase in crime possible and the increase in serious crime inevitable. The most vulnerable place in the system is the absolute separation between the criminal investigation function and the prosecuting function that exists. Without ending this separation, crimes will not only increase but more serious crimes will escape prosecution.

The reasons for such separation are as follows.

1. To end the absolute Gap that exists in Sri Lanka between the criminal investigation function and prosecution function:

The system as it stands now is for the police to investigate crimes and, in serious offences, to present the file to the Attorney General's department, which may thereafter prosecute the case. If the police do not investigate a crime or do so very badly, there is hardly anything that the prosecutor can do, except to say that there is no sufficient evidence to prosecute. Thus, the ultimate responsibility to prosecute a crime rests with the police. If the vicious circle that produces the 'no evidence' argument is to be broken, it is necessary to build a link between the prosecutors and the investigators from the very inception of a case. This would mean that from the receipt of the first complaint up to the finalization of investigations the prosecutors would be informed of the investigations and could take suitable steps to guide them.

2. To bring the Sri Lankan law into line with the developments of other common law countries:

The Sri Lankan practice of absolute separation between prosecutors and investigators is based on 19th century British practices. However in all of the major common law countries, including the United Kingdom, United States, Australia and India, no such separation exists. In these countries the prosecutor's departments have extension offices in all areas and the police departments coordinate their activities from the very inception of such inquiries. It would be useful for Sri Lanka's law drafters, legislators and the legal profession as a whole to study the developments that have taken place in other common law jurisdictions. In Civil law (the French system), the link between prosecution and investigation has always existed through the function of the investigation judge.

3. To create professional prosecutors:

The present practice of conducting prosecutions through the attorney general's department deprives the country of the development of professional prosecutors. Under the present set-up, lawyers in the Attorney General's department spend a few years in prosecution work and then shift into other work. The Attorney General's department has many functions and its lawyers shift from one to another. However, the acquirement of professional prosecuting skills takes a long time, as with any other serious profession. Besides, this allows individuals the option to enter and stay in this profession for a long time. In any profession, personal aptitudes and choice are important. This also has an impact on training. If the prosecutors are going to be in this profession for only a short time, there is no purpose investing in training for them. However, modern day prosecuting involves a high level of training and specialization. The mere fact of being an attorney-at-law is no sufficient qualification to be a competent prosecutor of serious crimes.

4. To create institutional habits within the prosecuting system:

Professional habits are made with difficulty. The credibility of any institution of professionals will depend on the way, these habits are formed and transmitted. The present system as it operates throgh the attorney general's department is not conducive to development of such professional habits and to ensure a continuity to a tradition of proper conduct of prosecutions.

5. To address the problem of increase in crime:

The government admits that there is a vast increase in crime. The only real answer to this is proper criminal investigation and certainty of prosecution for all crimes. The system as it exists now fails to do this. It is an unavoidable fact that the system needs to be corrected.

6. To deal with crimes committed by law enforcement agencies:

It was just few months back that about 26 persons were massacred in the presence of about 60 armed police. Each day bring reports of crimes in which law enforcement officers are involved. Over 30,000 disappearances have put the countries among those with the worst records in the world. It is simply ludicrous to leave these crimes to be investigated by the police alone. The repeated argument that comes up is that there is not enough evidence to prosecute these crimes. The evidence depends on competent investigations, which in turn depend on proper systems of accountability. To allow the present system of separation between prosecutions and investigations to continue is to connive with crimes done by law enforcement agencies.

7. To answer international criticism;

The United Nations' report of the Working Group on Enforced or Involuntary Disappearances (25-29 October 1999) (E/CN.4/2000/64/Add.1) issued on 21 December 1999 and presented to the UN Commission on Human Rights Session in April 2000 contains, among other things, the following recommendations:

"(a) The Government should establish an independent body with the task of investigating all cases of disappearance which occurred since 1995 and identifying the perpetrators;
(b) The Government should speed up its efforts to bring the perpetrators of enforced disappearances, whether committed under the former or the present Government, to justice. The Attorney-General or another independent authority should be empowered to investigate and indict suspected perpetrators of enforced disappearances irrespective of the outcome of investigations by the police;"

In a statement from 2000, AHRC summed up the central problem relating to prosecution of those responsible for the disappearances in Sri Lanka as follows:

"It is an elementary principle of Criminal Law that the investigation into crimes determines the prosecutions. Because of the lack of criminal investigations into cases of disappearance in Sri Lanka, the cases cannot be prosecuted. Thus, the first step towards any real prosecutions of these cases must be to begin criminal investigation.
"As the police were mobilized to cause the disappearances, it is not possible to investigate through this apparatus. Thus, an independent body for conducting criminal investigation must be the first step towards the carrying out of prosecutions."

Thus the failure of the criminal investigation and prosecution system is now a well known fact world-wide. Sri Lanka has even been classified as one of the most dangerous places on earth. There can be no real answer to these criticisms until the defects inherent in the system, particular the absolute separation between criminal investigations and prosecutions, are done away with.

Appendix III: Guidelines on the Role of Prosecutors

--Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia, their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion,

Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal,

Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,

Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts undertaken to translate them fully into reality,
Whereas prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the above-mentioned principles, thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime,

Whereas it is essential to ensure that prosecutors possess the professional qualifications required for the accomplishment of their functions, through improved methods of recruitment and legal and professional training, and through the provision of all necessary means for the proper performance of their role in combating criminality, particularly in its new forms and dimensions,

Whereas the General Assembly, by its resolution 34/169 of 17 December 1979, adopted the Code of Conduct for Law Enforcement Officials, on the recommendation of the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,

Whereas in resolution 16 of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, the Committee on Crime Prevention and Control was called upon to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors, Whereas the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary, subsequently endorsed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985,

Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, recommends measures to be taken at the international and national levels to improve access to justice and fair treatment, restitution, compensation and assistance for victims of crime,

Whereas, in resolution 7 of the Seventh Congress the Committee was called upon to consider the need for guidelines relating, inter alia, to the selection, professional training and status of prosecutors, their expected tasks and conduct, means to enhance their contribution to the smooth functioning of the criminal justice system and their cooperation with the police, the scope of their discretionary powers, and their role in criminal proceedings, and to report thereon to future United Nations congresses,

The Guidelines set forth below, which have been formulated to assist Member States in their tasks of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings, should be respected and taken into account by Governments within the framework of their national legislation and practice, and should be brought to the attention of prosecutors, as well as other persons, such as judges, lawyers, members of the executive and the legislature and the public in general. The present Guidelines have been formulated principally with public prosecutors in mind, but they apply equally, as appropriate, to prosecutors appointed on an ad hoc basis.

Qualifications, selection and training

1. Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications.

2. States shall ensure that:

(a) Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex. Language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned;

(b) Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law.

Status and conditions of service

3. Prosecutors, as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession.

4. States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.

5. Prosecutors and their families shall be physically protected by the authorities when their personal safety is threatened as a result of the discharge of prosecutorial functions.

6. Reasonable conditions of service of prosecutors, adequate remuneration and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations.

7. Promotion of prosecutors, wherever such a system exists, shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures.

Freedom of expression and association

8. Prosecutors like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional disadvantage by reason of their lawful action or their membership in a lawful organization. In exercising these rights, prosecutors shall always conduct themselves in accordance with the law and the recognized standards and ethics of their profession.

9. Prosecutors shall be free to form and join professional associations or other organizations to represent their interests, to promote their professional training and to protect their status.

Role in criminal proceedings

10. The office of prosecutors shall be strictly separated from judicial functions.

11. Prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest.

12. Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.

13. In the performance of their duties, prosecutors shall:

(a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;

(b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;

(c) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise;

(d) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

14. Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.

15. Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences.

16. When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.

Discretionary functions

17. In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution.

Alternatives to prosecution

18. In accordance with national law, prosecutors shall give due consideration to waiving prosecution, discontinuing proceedings conditionally or unconditionally, or diverting criminal cases from the formal justice system, with full respect for the rights of suspect(s) and the victim(s). For this purpose, States should fully explore the possibility of adopting diversion schemes not only to alleviate excessive court loads, but also to avoid the stigmatization of pre-trial detention, indictment and conviction, as well as the possible adverse effects of imprisonment.

19. In countries where prosecutors are vested with discretionary functions as to the decision whether or not to prosecute a juvenile, special considerations shall be given to the nature and gravity of the offence, protection of society and the personality and background of the juvenile. In making that decision, prosecutors shall particularly consider available alternatives to prosecution under the relevant juvenile justice laws and procedures. Prosecutors shall use their best efforts to take prosecutory action against juveniles only to the extent strictly necessary.

Relations with other government agencies or institutions

20. In order to ensure the fairness and effectiveness of prosecution, prosecutors shall strive to cooperate with the police, the courts, the legal profession, public defenders and other government agencies or institutions.

Disciplinary proceedings

21. Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaints against prosecutors which allege that they acted in a manner clearly out of the range of professional standards shall be processed expeditiously and fairly under appropriate procedures. Prosecutors shall have the right to a fair hearing. The decision shall be subject to independent review.

22. Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics and in the light of the present Guidelines. Observance of the Guidelines

23. Prosecutors shall respect the present Guidelines. They shall also, to the best of their capability, prevent and actively oppose any violations thereof.

24. Prosecutors who have reason to believe that a violation of the present Guidelines has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power.

Appendix IV: International Covenant on Civil and Political Rights

--Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49

Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.