Access to Justice
Conciliation, Mediation, Arbitration, Negotiation
Access to justice in environmental matters
Jul 18th
A few lines about justice with environments:
Access to justice in environmental matters means, in essence, three things. These are that:
- people have proper information about environmental matters, that is, decisions which have environmental impacts
- people can have their say in decision-making about such matters
- decisions on environmental matters can be properly challenged
Examples of how access to justice is important in areas like planning can be seen when a major new development, like an incinerator or superstore, is proposed. This might concern a whole community. The local community will need proper information to participate in the decision making process. The community may have legitimate environmental concerns and may need access to a court or tribunal to challenge decisions made.
Source: http://www.ukela.org/rte.asp?id=96
BANGLADESH: Public Interest Litigation should be filed on extrajudicial killings by law enforcement agencies
Jun 15th
A Statement by the Asian Human Rights Commission, AHRC-STM-180-2009, August 28, 2009
On 25 August, 2009 the High Court Division of the Supreme Court of Bangladesh issued a landmark ruling on extra-judicial penalties in the name of arbitration. The Court ordered the government, law-enforcing agents and local governments to take immediate measures. These measures are against issuance or execution of extrajudicial penalties such as beating and caning in the name of arbitration, mediation or conciliation. A Division Bench, comprising Justice Syed Mahmud Hossain and Justice Quamrul Islam Siddique passed this ruling after hearing a public interest litigation writ petition filed by the human rights groups – Bangladesh Legal Aid Services Trust, Bangladesh Mahila Parishad, Ain O Salish Kendra, BRAC, and Nijera Kori.
The Court ordered the government to explain itself. Why would it not accept directions to frame and adopt guidelines and orders and disseminate them on the State’s mass media, for all the authorities concerned? These directives are concerned with reporting any information on present or future incidents of extrajudicial penalties, in the name of arbitration, mediation and conciliation. These incidents might be put forth by individuals, or bodies, including union councils or municipal representatives. It ordered the government, law enforcing agents, union councils and municipalities to take immediate measures to investigate promptly any report of issuance or execution of any extrajudicial punishment such as beating or caning. Furthermore, the Court ordered the Ministry of Local Government to inform all union councils and municipalities of the order.
The writ petition described several accounts where a woman and a man were caned 101 times and fined as well. The village leaders ordered these punishments in the presence of chairpersons of local government units from various jurisdictions in the country.
As a part of ordinary peoples’ lives in Bangladesh, there are incidents of public lashings, whippings, canings, beatings, stoning, and forced fines. These things are carried out under the direction of elected representatives of the local government, influential persons or Muslim religious leaders. In addition, the mediators isolate families of the victims from their neighbours and prevent other social exchanges. These brutal actions are abuses carried out mainly against women, the helpless and the poorest segments of society. Due to misinterpretations, Islamic values are often abused in the process of arbitration, mediation and conciliation. Social justice has disappeared because of the practice of biased arbitration, popularly known as “Shalish” and “Fotwa.” Ultimately, the law-enforcement agencies, the judicial and civil authorities have failed to uphold the law of the land.
The Asian Human Rights Commission (AHRC) welcomes the High Court’s rulings. It expects a comprehensive judgement to emerge at the end of the judicial process and that it will be enforced immediately. The AHRC observes that a number of wings of the government have been inactive and indifferent to their responsibilities. These agencies are the Ministries of Education, Religious Affairs, Home Affairs, Women and Children’s Affairs, Law, Justice and Parliamentary Affairs, Local Government, Rural Development and Co-operatives. They have failed utterly in performing their lawful duties in addressing the problems of mediation and atrocities. The authorities should identify the specific failures of the departments under these ministries. They should quickly initiate comprehensive, public educational programmes to stop the recurrence of such crimes, as well as to implement the directives of the High Court Division regarding extrajudicial punishments.
The issue of extrajudicial penalties is being dealt with at the Supreme Court level. But, the issue of extrajudicial killings is still being ignored.
The AHRC urges the civil society and the human rights groups of Bangladesh to file separate public interest litigation writs with the Supreme Court. Extrajudicial killings by law-enforcement agencies and security forces need to be eliminated in order to maintain the people’s right to life.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
Posted on 2009-08-28
Back to [AHRC Statements 2009]
Unlikely conciliator
Apr 25th
About conciliation and its process, almost of us know about it and sometimes, complicated issues are solved by using a good strategy of a conciliator. The differences between Pakistan and India over Kashmir are well known all over the world. Both countries have 2 wars on this issue and long tension exists between two countries. it has been learned that a back door diplomacy remained for a longtime during Pervaiz Musharaf regime but was suspended by the new government. Now again this has been continued and it is hoped that will bring some good results in future.
“The News” write in its editorial on Monday, April 26, 2010, “Perceptions of the relationship that exists between India and Pakistan often pass through several filters before they become fully formed – and not all of the filters are conducive to a clearer image of reality. The role of the US in the region, and particularly the nuances of its relationship with us and the Indians, came under scrutiny in a recent debate which was a part of the Aman ki Asha process. Prem Shankar Jha, a former editor of The Economic Times, The Financial Express and The Hindustan Times posited during the debate on the interesting notion that the US had been playing both sides against the middle in order to maintain a kind of managed instability. The purpose, he said, was to prevent rapprochement between the two sides, because if we and India were closer and more united, one of the things we might be more united against would be the United States. In support of his argument Prem Shankar Jha cited the way in which America has appeared to encourage Indian engagement with Afghanistan, a country with which India shares no border and hitherto has had a friendly, but not necessarily developmental, relationship. He suggested that instead of having separate policies for Afghanistan that were currently driven by American imperatives, we should develop a policy jointly which, while allowing our respective national interests to be safeguarded, also preserved and protected those interests that we had in common.
While there are pitfalls to such a development, not the least being that the extremists on both sides are going to claim that their birthrights and national identities are being sold off, there are obvious benefits as well. Afghanistan, with its long and largely irrelevant border with us, is a problem that is going to need careful management far into the future. Were we able to broker a foreign policy with the Indians relative to Afghanistan that was to our mutual benefit – trade, communications, power resources – and was created by ourselves independently, rather than at the behest of the Americans, then the knock-on effects across a range of current difficulties might be considerable. At the moment it could be said this is little more than musings of a group of intellectuals; but within it is the germ of an idea that bears nurture. Were it to grow and flower, it would mean that both Pakistan and India took back a little of their independence. (Http://www.thenews.com.pk)
Protecting foreigners’ rights in Indonesia
Feb 5th
Jakarta, Indonesia — Three foreign citizens who were sentenced to death by an Indonesian court – three of the “Bali Nine” convicted in Indonesia of drug trafficking in 2005 – filed a constitutional review two years after their conviction. After exhausting other appeals processes, Australian citizens Myuran Sukumaran, Andrew Chan and Scott Anthony Rush requested the Indonesian Constitutional Court to revoke the death sentence from the Narcotics Law on the grounds that it was inconsistent with the Constitution’s guarantee of the right to life. But the court rejected their request because they were not Indonesian citizens.
This raises the question: What legal avenue can be pursued to protect their right to life, a fundamental human right that applies to all human beings regardless of nationality?
Law No. 24/2003 regarding the Constitutional Court clearly states that the complainant in constitutional review cases must be an Indonesian citizen. If the rights of a foreign citizen living in Indonesia are violated by a prevailing law, he or she cannot request the Constitutional Court to declare the law unconstitutional and legally annulled.
This provision was strengthened by the Constitutional Court’s verdict in 2007, which ruled that three of five complainants on death row under the Narcotics Laws have no right to file a complaint before the Constitutional Court, based on the argument that the Constitution only provides protection to Indonesian citizens.
It is often deemed that a state and its constitution can only provide protection to citizens, as they are party to the social contract. Although it is true that an ideal and modern constitution must guarantee protection of the rights of a state’s citizens, this does not mean that the constitution cannot also protect third parties of the social contract, such as foreign citizens who live within the territory of the state.
Many states in the world provide protection not only to their own citizens but also to foreigners under their constitutions. This can be either implicit, as in South Africa and Croatia, or explicit, as in many former Soviet states such as Georgia, the Czech Republic and Russia.
By using grammatical and historical interpretations, we can actually conclude that the amended Indonesian Constitution implicitly provides protection for foreign citizens. Instead of using “every citizen” as in article 28D paragraph (3) of the Constitution, regarding the right to take part in government, other human rights provisions in the Constitution use the term “everyone.”
Historically, intense and thorough discussions never took place as to who was actually protected under human rights provisions in the Constitution. During discussions on the amendment of the Constitution, however, some political parties proposed to use the phrase “every citizen” in all human rights provisions. This proposal was later dropped, and the Indonesian People’s Consultative Assembly deliberately chose to use “everyone” – which again shows that the Constitution was intended to protect the rights of every individual within Indonesia’s territory.
Given that the Constitution provides protection for the rights of foreign citizens, it is logical that the laws and regulations under the Constitution would provide legal avenues for them to pursue when their rights are violated. The article that restricts foreigners from filing complaints with the Constitutional Court therefore violates their right to be recognized as persons before the law.
Further, it also meets the criteria of “discrimination” as determined by the International Convention on the Elimination of All Forms of Racial Discrimination, since it excludes persons from filing a constitutional review solely on the basis of their nationality.
This issue brings up the question of a state’s sovereignty, and of whether persons should be allowed to challenge the policy of a state that is not theirs. This concern is understandable, as a decision by the Constitutional Court applies not only to the complainant but to everyone in Indonesia’s territory.
For this reason it is important to place some limitations if foreign citizens are permitted to file complaints with the Constitutional Court. First, they should be allowed to challenge a law only if they believe it has infringed on their rights guaranteed by the Constitution. Foreign citizens should not be allowed to contest a law that is irrelevant to their rights.
Second, complaints should be filed only by individuals, not legal entities, as human rights are inherent to human beings. Another important aspect that the Constitutional Court must bear in mind in examining a case filed by a foreign citizen is that the national interest should be prioritized. It is important to protect the rights of foreign citizens in the context of the universal value of human rights, but this should not be upheld if it harms the national interest, as the country’s citizens are first party to the social contract.
There are some possible ways Indonesia could accommodate foreigners’ right to file a complaint for constitutional review. The first is by revising the Constitutional Court Law. This may take a long period of time, however. While waiting for Parliament to revise the law, the Constitutional Court actually could set aside the relevant article of the law if a foreigner filed a complaint. The Constitutional Court could then decide whether it wants to declare the article unconstitutional, or conditionally unconstitutional.
One thing is sure: laws and regulations should never restrict a person’s human rights, as these rights apply to the worst of us as well as to the best.
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(Answer C. Styannes is a research associate at the Community Legal Aid Institute (LBH Masyarakat) in Jakarta, Indonesia. She holds a law degree from the Faculty of Law at the University of Indonesia. Her work focuses on the issues of constitutional law, judicial and legislative reforms, labor laws, and civil and political rights.)
Source:http://www.upiasia.com/Human_Rights/2010/02/04/protecting_foreigners_rights_in_indonesia/7122/
Written by By Answer C. Styannes
UN To Create Security Council Ombudsman & New Mediation Division Launched
Jan 8th
Recently the United Nation’s Security Council announced it will created an Ombudsman Office. This position is being created specifically in response to concerns over its own No Fly List.
According to the CBC, “The Security Council’s unanimous decision to appoint an ombudsman is aimed at ensuring that UN sanctions target the right people, companies and organizations for links to al-Qaeda and the Taliban.”
Creation of the Ombudsman Office was passed unanimously by the Council and the position will initially be created for 18 months to assist the sanctions committee to review the procedures regarding delisting individuals on the list.
Further information from the article explains how the Ombuds will be chosen, “The ombudsman will be appointed by the UN Secretary General, and will be someone who should be “an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions”, a UN release stated.”
The United Nations currently has an Ombudsman Office which serves the employees of the UN. You can read more about that office, and John Barkat, the current ombudsman, [here].
Note, their site is newly re-designed and you will notice the UN has created a new Mediation Division with the Ombudsman Office. The office was created in August 2009 as per the passing of General Assembly resolution A/RES/62/228. You can read more about the new Mediation Division and its services [here].
Read the full CBC article [here].
From Jeff Thompson’s Enjoy Mediation Blog
