The Asian Human Rights Commission is holding the fourth Consultation on the Asian Charter of Rule of Law at Hong Kong from November 17 to 21, 2008. The theme of the Consultation is “Prosecution systems in Asia”.
The following is the Concept Paper prepared for the Consultation:
A well functioning judicial system is one of the cornerstones upholding the rule of law and democracy. Concerns, about the relative perception of the rule of law and the absence or the erosion of democratic values in any society, reflect the state of affairs of the judicial system in that society.
The protection, promotion and fulfilment of human rights and human values is impossible without a rule of law regime. The absoluteness of the rule of law is a mythical concept. No state can be and will ever be a perfect model that guarantees all tenets of the rule of law, to everyone within its jurisdiction. Challenges and prejudices in governance ripple out from myriad whirlpools. These political, cultural, historical and racial influences perpetually affect the rule of law regime irrespective of jurisdictions.
The Asian Human Rights Commission (AHRC) is taking the initiative in formulating an Asian Charter on the Rule of Law. It is an attempt to postulate a functioning as well as a reasonable example of a code of a rule of law that could be adapted by states, particularly in Asia. To formulate such a charter it is imperative to understand the issues that adversely affect judicial institutions in the region.
One of the elements of the justice machinery, which is often less explored and least understood in this context is the office of the prosecutor. Irrespective of procedural philosophy in applying the law, the office of the prosecutor plays an important role in the day-to-day functioning of the courts.
The prosecutor has the role to represent the state in a court of law, though procedure and practice varies between jurisdictions. The work of the prosecutor represents the philosophy and the responsibility of the state in punishing crimes. In this capacity, the prosecutor wears different hats ranging from being an inquirer, the representative of the victim, the state, an officer of the court and a professional lawyer. In most Asian jurisdictions the office of the prosecutor has a diminished capacity to understand and appreciate this tremendous responsibility.
The prosecutors' office is often mistakenly conceived under the guise of an arm of the government or a moderator. As an arm of the government it is always expected to persuade the court to hand down a conviction in every case. As a mere moderator it is expected to liaison between the investigating agency and the courts. A prosecutors' office is often misused by the state and those who wheel control to render 'selective justice'. To achieve this end the state employs various means to interfere with the work of the prosecutor. In addition to being a state sponsored office, the prosecutors are often selected from those who will support the state's agenda. To further this interest states often keep the office of the prosecutor in a state of flux employing such means as uncertainty of tenure, or requiring the job to be carried out even by police officers.
This state of liquidity resulting in a condition of free-floating anxiety is exploited by the state to ensure that only those who are acceptable to the state continue in the post. On the other hand, prosecutors continue to allow this exploitation so that they could make use of their positions for various illegal purposes, including corruption. There are also instances where the prosecutors, by law or by practise, are required to work under the supervision of police or military officers. Placing a prosecutor directly under the control of state agencies has adversely affected the independence of their office. Such an environment of unprofessionalism results in a lack of accountability and transparency and the relative non-predictability of the duties of the prosecutor.
Throughout the political and legal history of each state incidents can be observed that reflect the eagerness and willingness of the state to take action. Either they retain absolute control over the prosecutors' office or they choke it to death. This ensures that the office is never able to discharge its duties in a truthful manner.
On a parallel plane, in domestic and international forums, the prosecutors were repeatedly required to engage in washing the dirty laundry of the state. These long-term interferences have resulted in either of two things; the creation of a state office that has been given unwarranted powers or an office and officers who are demoralised because there is no hope of improvement in their conditions. Low morale coupled with an almost total dishonesty in work has resulted in a very low standard of professionalism in the prosecutors' office. In jurisdictions where the judiciary, as an institution, was already weak it was unable to resist the premeditated dissolution of one of its most necessary partners in the work for justice.
In some Asian jurisdictions, appointment as a prosecutor or as an attorney general is considered to have within it a guaranteed invitation to the judiciary. Judges, who thus came to the judiciary exploiting this backdoor entrance have contributed to such devaluation of the judiciary. The erosion of the justice quotient in the prosecutors' office has created such dents in some jurisdictions that any repair work will take more time than was required to cause such a dent in the first place. This state of affairs has also contributed to the lack of confidence of the general public in their justice system. This further contributes to the deterioration of yet another arm of the justice system, the judiciary itself.
The raison d'etre of this regional consultation is multi-purpose. It is to explore, identify, document and share the concerns of practitioners and jurists who feel that the above issues are reflected completely or in part in their own jurisdictions. There will also be an attempt to identify issues that might be unique to one particular jurisdiction that has not been identified so far. This consultation is not conceived with the idea that it would immediately be able to suggest any recommendations to correct decades-old problems. However, the consultation is seen to be a bold step forward in providing, in a free environment, a platform within which these concerns could be aired, discussed and documented.
There is the expectation that the 24 legal experts who will meet for the consultation will be transparent and share from their considerable experience in dealing with the prosecution systems in their respective countries. It is further expected that the consultation will provide sufficient insight into common and distinct issues that affect the prosecution mechanisms in Asian jurisdictions, which will be a step forward in correcting these issues and their supporting attitudes.
# # #
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.