Category Archives: Right to effective remedies

Government Responses to Human Rights Reports: Claims, Denials, and Counterclaims

Government Responses to Human Rights Reports: Claims, Denials, and Counterclaims
In lieu of an abstract, here is a brief excerpt of the content:Human Rights Quarterly 18.3 (1996) 517-543

I. Introduction

A major part of human rights work is the production of written reports. The report is usually seen as a means to an end. Information is collected, checked, standardized, and disseminated as part of a wider strategy to prevent violations and implement universal standards. Reporting also may become an end in itself: The belief that even without results there is an absolute duty to convey the truth, to bear witness.

There are many types of human rights reports. The major international nongovernmental organizations (such as Human Rights Watch and Amnesty International) produce regular and detailed book-length reports. These are the equivalent of social science research projects, giving a comprehensive account of a particular country’s current human rights record. Then there are the simplest reports — legal or journalistic, rather than social scientific — giving information only on a single case or problem. Other variants include entries in annual world-wide atlases of human rights violations, press releases, regular documentation by regional and national organizations, results of fact-finding missions, publications of academic human rights centers, and official documents from intergovernmental organizations within the UN orbit.

These reports have generated an extraordinary volume of information over the last twenty-five years. This coverage is obviously neither completely comprehensive nor evenly distributed. There are clear reasons for this — both rational (human rights problems are objectively worse in some countries than in others) and contingent (some countries are closed to outside scrutiny, more obscure and less politically interesting to international, especially US-based, organizations). Some countries are more highly scrutinized than others, especially those with a combination of visible violations and open access to media and human rights observers.

Because of such contingencies in reporting, it would be impossible to claim that the human rights problem is “objectively” constructed, in the sense of there being an exact correspondence between the severity, duration, and extent of violations and the amount of attention any particular country receives. For this reason, some government responses to international criticism are justified, even if usually disingenuous or a distraction from the issue: Yes, human rights organizations do report more about Israel than Syria.

Despite this selectivity, though, the cumulative picture produced by all human rights scrutiny is impressive. It would be difficult to find a country or issue which has not been the object of substantial attention. Despite occasional legendary cases of misreporting (such as the dubious incubator babies in Kuwait) and other less dramatic mistakes, this reporting is generally fair and reliable.

What happens to these reports when they are “released?” The resources that organizations devote to compiling all this information are not matched by attention to how reports are disseminated or what impact they might have on target audiences. Much information hardly gets off the shelves. Or it flows only within a closed circuit of other human rights organizations, governments, or intergovernmental bodies. When it does reach the wider public — either directly (through appeals, publicity, campaigns) or through the mass media — its effects remain unknown and unmonitored. Recent refinements in techniques of information collecting, standardized recording, and data-retrieval do not address this issue at all.

I have just completed an enquiry into how human rights information is communicated. Focusing on international organizations, my research considered three target audiences: (1) the official circuit of perpetrator and observer governments; (2) the mass media; and (3) direct appeals to the general public. This article deals only with the first audience — reactions by perpetrator governments. These reactions arise in three settings: (1) within their own country in response to criticism from domestic organizations; (2) within their country in response to international organizations; and (3) in the international arena in response to international organizations. This article concentrates on this third arena.

Perpetrator governments, however, when framing their replies to allegations by human rights organizations have to address other audiences as well — domestic public opinion and media, international public opinion and media, allied or friendly governments, and international bodies. Official reactions, therefore, resonate far beyond the restricted channels of a government press release in response to a critical report. The vocabulary of official reactions draws from the acceptable pool of accounts available…

Public Interest Litigation (India)

Public Interest Litigation


Remedies – Public Interest Litigation (PIL) – Part: 1


We briefly dealt with Public Interest Litigation in the earlier Project on “Knowledge of Law Essential for Public Servants”. For your beneift the biref is reproduced hereunder:
A Public Interest Litigation (PIL) can be filed in any High Court or directly in the Supreme Court. It is not necessary that the petitioner has suffered some injury of his own or has had personal grievance to litigate. PIL is a right given to the socially conscious member or a public spirited NGO to espouse a public cause by seeking judicial for redressal of public injury. Such injury may arise from breach of public duty or due to a violation of some provision of the Constitution. Public interest litigation is the device by which public participation in judicial review of administrative action is assured. It has the effect of making judicial process little more democratic.

According to the guidelines of the Supreme Court any member of public having sufficient interest may maintain an action or petition by way of PIL provided: –

» There is a personal injury or injury to a disadvantaged section of the population for whom access to legal justice system is difficult,

» The person bringing the action has sufficient interest to maintain an action of public injury,

» The injury must have arisen because of breach of public duty or violation of the Constitution or of the law,

It must seek enforcement of such public duty and observance of the constitutional law or legal provisions.

» This is a powerful safeguard and has provided immense social benefits, where there is essentially failure on the part of the execute to ameliorate the problems of the oppressed citizens. Considering the importance of ths subject, three articles from the web on the subject are reproduced hereunder.

Introduction

 
The Emergency of 1976 marked not just a political watershed in this country, but a judicial one as well. In the euphoria of the return to democracy and in an attempt to refurbish its image that had been tarnished by some Emergency decisions, the Supreme Court of India opened the floodgates to public interest litigation (PIL). under PIL, courts take up cases that concern not the rights of the petitioner but of the public at large. In the last two decades, PIL has emerged as one of the most powerful tools for promoting social justice and for protecting the rights of the poor.

Among the numerous factors that have contributed to the growth of PIL in this country, the following deserve special mention:

» The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.

» India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.

» The liberal interpretation of locus standi where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received

» Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the “right to life” in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, barfetters and hand cuffing in prisons, etc.

» Sensitive judges have constantly innovated on the side of the poor. for instance, in the Bandhua Mukti Morcha case in 1983, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts

» In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench.

When and how to File a PIL


1.Make an informed decision to file a case.

2.Consult all affected interest groups who are possible allies.

3.Be careful in filing a case because
i.Litigation can be expensive.
ii.Litigation can be time consuming.
iii.Litigation can take away decision making capability/strength from communities.
iv.An adverse decision can affect the strength of the movement.
v.Litigation involvement can divert the attention of the community away from the real issues.

4.If you have taken the decision
i.Collect all the relevant information
ii.Be meticulous in gathering detail for use in the case. If you plan to use photographs, retain the negatives and take an affidavit from the photographer. Retain bills.
iii.Write to the relevant authorities and be clear about your demands.
iv.Maintain records in an organized fashion.
v.Consult a lawyer on the choice of forum.
vi.Engage a competent lawyer. If you are handling the matter yourself make sure you get good legal advice on the drafting.
vii.A PIL can be filed only by a registered organization. If you are unregistered, please file the PIL in the name of an office bearer/member in his/her personal capacity.
viii.You may have to issue a legal notice to the concerned parties/authorities before filing a PIL. Filing a suit against the government would require issuing a notice to the concerned officer department at least two months prior to filing.

Expanding Old Rights & Creating New Ones
There is an urgent need to expand old rights and create new rights. Indeed, the success of legal advocacy needs to be viewed by the social activist in these terms and not merely in terms of winning or losing cases. For instance, although Haksar and others, as part of their work on promoting human rights in Northeastern India, have been unsuccessful in their decade-long effort to get the Armed Forces Special Power Act repealed, they have succeeded in getting the provision in the criminal procedure code that women be searched only by women extended to the army.
Similarly, it is important to try and create new rights based on a vision of the future. For instance Article 14 of the Indian Constitution treat both an MNC and a citizen equally despite the inherent and yawning inequality between the two. Therefore if a citizen’s rights are to be fully protected in the wake of increasing MNC activity in the national economy, one needs to critique the concept of equality in liberal theory and develop new ideas on equality. The filing of test cases is one way of developing these new ideas.

The same holds true for individual rights vs. collective rights. The prevailing legal system recognizes only private property – where the owner has the right against the whole world – and public property, which belongs to the state. But before the imposition of the British legal system there existed a whole tradition of common property which now has no recognition in law. “Ass a result all forms of collective or shared realities whether they are in the realm of rights, relations, practices or knowledge have no place in the present legal scheme even though they are vital for human survival. They are not part of the language of legal discourse, either of the judges or lawyers and mention of these rights as ‘collective human rights’ is met with surprise, skepticism and often cynicism,” say Pradeep Prabhu of Khastakari Sanghatana. Prabhu, an advocate by training, has had some recent success in getting the Supreme Court to accept the validity of oral testimonies of poor tribals as evidence.

Sensitising Lawyers


Given the above scenario, one of the most difficult tasks for a social activist is to find a lawyer with a vision who is able to see the bigger picture and be prepared to fight for it. This calls for activists to sensitize lawyers on an ongoing basis and not restrict this activity to the peculiarities of a specific case. Also there is a need to sensitise law students in order to build a body of public interest lawyers in this country.

Part of the reason why there are few public interest lawyers in India is due to how poorly it pays. Public interest lawyers in the US (sometimes derisively called ‘ambulance chasers’) are easier to find. They largely operate on a ‘no-win, no-fee’ basis, given the huge damages that are awarded by US courts and which are then split between the client and the lawyer. In India even where free legal aid is provided – as it is to SCs & STs, industrial workers, women, bonded laborers, etc. – public- spirited lawyers end up paying out of their pocket as the amounts that are fixed for even photocopying of documents do not cover the cost of the service, says Ravi Rebba Pragada of the NGO Samata – which works among tribals in the Vishakapatnam district of Andhra Pradesh – who has accessed free legal aid services.
In the U.K., where courts like those in India don’t award massive damages, there has been an innovation in legal aid with wealthy benefactors pitching in to underwrite legal costs. One property developer underwrote the legal costs of a large number of arthritis patients who sued- for compensation for side effects they suffered from the drug Opren. Similarly Sir James Goldsmith, billionaire financier and father-in-law of Imran Khan, set up the Goldsmith Libel Fund which provided support to a motley assortment of libel defendants. But it is debatable if such private initiative would be forthcoming, or indeed welcome, to support PIL cases involving the poor and the marginalised. Activists, however, need to seriously consider the issue of getting more public-spirited lawyers to enter the fray.

Public Interest Litigation – Part: 2

Though the Constitution of India guarantees equal rights to all citizens, irrespective of race, gender, religion, and other considerations, and the “directive principles of state policy” as stated in the Constitution obligate the Government to provide to all citizens a minimum standard of living, the promise has not been fulfilled. The greater majority of the Indian people have no assurance of two nutritious meals a day, safety of employment, safe and clean housing, or such level of education as would make it possible for them to understand their constitutional rights and obligations. Indian newspapers abound in stories of the exploitation – by landlords, factory owners, businessmen, and the state’s own functionaries, such as police and revenue officials – of children, women, villagers, the poor, and the working class.

Though India’s higher courts and, in particular, the Supreme Court have often been sensitive to the grim social realities, and have on occasion given relief to the oppressed, the poor do not have the capacity to represent themselves, or to take advantage of progressive legislation. In 1982, the Supreme Court conceded that unusual measures were warranted to enable people the full realization of not merely their civil and political rights, but the enjoyment of economic, social, and cultural rights, and in its far- reaching decision in the case of PUDR [People’s Union for Democratic Rights] vs. Union of India [1982 (2) S.C.C. 253], it recognised that a third party could directly petition, whether through a letter or other means, the Court and seek its intervention in a matter where another party’s fundamental rights were being violated. In this case, adverting to the Constitutional prohibition on “begar”, or forced labor and traffic in human beings, PUDR submitted that workers contracted to build the large sports complex at the Asian Game Village in Delhi were being exploited. PUDR asked the Court to recognize that “begar” was far more than compelling someone to work against his or her will, and that work under exploitative and grotesquely humiliating conditions, or work that was not even compensated by prescribed minimum wages, was violative of fundamental rights. As the Supreme Court noted,

The rule of law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and rule of law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil?

Thus the court was willing to acknowledge that it had a mandate to advance the rights of the disadvantaged and poor, though this might be at the behest of individuals or groups who themselves claimed no disability. Such litigation, termed Public Interest Litigation or Social Action Litigation by its foremost advocate, Professor Upendra Baxi, has given the court “epistolary jurisdiction”.
Further Reading:

What is Public Interest Litigation


IN BLACK’S LAW DICTIONARY : “Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.”
Public Interest Litigation’s explicit purpose is to alienate the suffering off all those who have borne the burnt of insensitive treatment at the hands of fellow human being. Transparency in public life & fair judicial action are the right answer to check increasing menace of violation of legal rights. Traditional rule was that the right to move the Supreme Court is only available to those whose fundamental rights are infringed.

But this traditional rule was considerably relaxed by the Supreme Court in its recent rulings:

Peoples Union for Democratic Rights v. Union of India ( A.I.R.. 1982 , S C 1473). The court now permits Public Interest Litigation or Social Interest Litigation at the instance of ” Public spirited citizens” for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public interest litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps.

In the Judges Transfer Case – AIR 1982, SC 149: Court held Public Interest Litigation can be filed by any member of public having sufficient interest for public injury arising from violation of legal rights so as to get judicial redress. This is absolutely necessary for maintaining Rule of law and accelerating the balance between law and justice.
It is a settled law that when a person approaches the court of equity in exercise of extraordinary jurisdiction, he should approach the court not only with clean hands but with clean mind, heart and with clean objectives.

Shiram Food & Fertilizer case AIR (1986) 2 SCC 176 SC through Public Interest Litigation directed the Co. Manufacturing hazardous & lethal chemical and gases posing danger to life and health of workmen & to take all necessary safety measures before re-opening the plant.

In the case of M.C Mehta V. Union of India (1988) 1 SCC 471 – In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions , as he is the person interested in protecting the lives of the people who make use of Ganga water.

Parmanand Katara V. Union of India – AIR 1989, SC 2039 :- Supreme Court held in the Public Interest Litigation filed by a human right activist fighting for general public interest that it is a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities.

Council For Environment Legal Action V. Union Of India – (1996)5 SCC281 : Public Interest Litigation filed by registered voluntary organisation regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology.
A report entitled “Treat Prisoners Equally HC” published in THE TRIBUNE , Aug 23 Punjab & Haryana High Court quashed the provisions of jail manual dividing prisoners into A , B & C classes after holding that there cannot be any classification of convicts on the basis of their social status, education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be ” Unconstitutional”.

State V. Union Of India – AIR 1996 Cal 181 at 218 : Public Interest Litigation is a strategic arm of the legal aid movement which intended to bring justice. Rule Of Law does not mean that the Protection of the law must be available only to a fortunate few or that the law should be allowed to be abused and misused by the vested interest. In a recent ruling of Supreme Court on ” GROWTH OF SLUMS” in Delhi through Public Interest Litigation initiated by lawyers Mr. B.L. Wadhera & Mr. Almitra Patel Court held that large area of public land is covered by the people living in slum area . Departments despite being giving a dig on the slum clearance, it has been found that more and more slums are coming into existence. Instead of “Slum Clearance”, there is “Slum Creation” in Delhi. As slums tended to increase; the Court directed the departments to take appropriate action to check the growth of slums and to create an environment worth for living.

During the last few years, Judicial Activism has opened up a new dimension for the Judicial process and has given a new hope to the millions who starve for their livelihood. There is no reason why the Court should not adopt activist approach similar to Court in America , so as to provide remedial amplitude to the citizens of India.

Supreme Court has now realised its proper role in welfare state and it is using its new strategy for the development of a whole new corpus of law for effective and purposeful implementation of Public Interest Litigation. One can simply approach to the Court for the enforcement of fundamental rights by writing a letter or post card to any Judge. That particular letters based on true facts and concept will be converted to writ petition. When Court welcome Public Interest Litigation , its attempt is to endure observance of social and economic programmes frame for the benefits of have-nots and the handicapped. Public Interest Litigation has proved a boon for the common men. Public Interest Litigation has set right a number of wrongs committed by an individual or by society. By relaxing the scope of Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions of Indians; which the executive has not been able to do despite a lot of money is being spent on new legal aid schemes operating at the central and state level. Supreme Court’s pivotal role in expanding the scope of Public Interest Litigation as a counter balance to the lethargy and inefficiency of the executive is commendable.

(Sources –
http://www.sit.edu/global_capacity/gpdocs/articles/india.html,
http://www.sscnet.ucla.edu/southasia/History/SocialPol/spmove.html,
http://www.supremecourtonline.com/articles/public-intrest-litigation.php )
Complied by : Advocate Aradhana Singh

U.S. denies private cause of action for violations of ICCPR

U.S. denies private cause of action for violations of ICCPR

(source: Wikipedia)

The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[21] Some have noted that with so many reservations, its implementation has little domestic effect.[22] Included in the Senate’s ratification was the declaration that “the provisions of Article 1 through 27 of the Covenant are not self-executing”,[23] and in a Senate Executive Report stated that the declaration was meant to “clarify that the Covenant will not create a private cause of action in U.S. Courts.”[24]

Prominent critics in the human rights community, such as Prof. Louis Henkin[25] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust[26] (“Rarely has a treaty been so abused.”) have denounced the United States’ ratification subject to the non-self-execution declaration as a blatant fraud upon the international community, especially in light of its subsequent failure to conform domestic law to the minimum human rights standards as established in the Covenant over the last fifteen years.

Indeed, the United States has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant. See Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002) (noting that Congress has not done so). Its subjects are not permitted to sue to enforce their basic human rights under the Covenant, as noted above. It has not ratified the Optional Protocol. As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials’ insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its subjects of the “effective remedy” under law the Covenant is intended to guarantee…