Overview: Human Rights & Jurisprudence

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A notable number of decisions of the highest courts in Asia-Pacific countries discuss human rights in relation to local situations. These judicial applications of the international human rights standards provide an important guide for governments in fulfilling human rights state obligation. Aside from resolving issues, these decisions clarify legal provisions, restrict government actions, provide guidelines on how to protect particular rights, and even direct governments to undertake particular tasks that support human rights. They also declare laws as violative of the state obligation under ratified international human rights instruments or of the human rights principles that are considered part of jus cogens or customary norms. Other laws can also be declared indirectly violative of human rights by declaring their violation of constitutional rights that are more or less similar to those of the international human rights standards.

The power of the court to require government subscription to international human rights standards is a pillar in the national mechanisms that protect, promote and realize human rights.

However, there are differing principles in the application of international human rights instruments to domestic issues. Some countries strict require enabling legislations before such international instruments could take effect in the domestic realm. Thus, court decisions may declare some international human rights instruments inapplicable to domestic cases due to lack of enabling laws. Other countries, on the other hand, have constitutional provision that gives ratified international instruments the effect of domestic legislations.

A study of jurisprudence in several countries in Asia provides a glimpse of the manner by which courts uphold the international human rights standards or restrict their domestic application. Following is an excerpt of the study report:[1]

The highest courts in some Asian countries have positively recognized the application of the international human rights standards in the domestic legal system. But the extent of this judicial recognition has not been consistent. Some courts have expressed rejection of the international human rights standards, particularly when they have not been embodied in domestic laws.  The Supreme Courts have applied the international human rights standards in different ways:

a.    Recognition of the incorporation of provisions of international human rights instruments in domestic laws such as BORO [Bill of Rights Ordinance] in Hong Kong, and laws on specific issues relating to children, women, and workers;

b.   Recognition of specific provisions of international human rights instruments as jus cogens under international law. Two years after the UDHR [Universal Declaration of Human Rights] was adopted by the UN [United Nations], the Philippine Supreme Court recognized the UDHR as an essential component of the "constitutional structure of world community" and characterized "freedom from arbitrary and unnecessarily prolonged detention as a customary norm." In Hong Kong, Article 7 of ICCPR was considered "a peremptory norm of customary international law from which no derogation is legally permissible;"

c.    Treatment of international human rights instruments as "guideline" in making decisions;

d.   Treatment of the provisions of the international human rights instruments as "obligation of the state" and … should be followed. The Supreme Court of Sri Lanka has applied the international human rights standards by citing the Standard Minimum Rules for the Treatment of Prisoners. It states that

[C]onsidering the Rules contained in the Prisons Ordinance and the Standard Minimum Rules for the Treatment of Prisoners adopted by the first United Nations Congress [on the Prevention of Crime and the Treatment of Offender on 30 August 1955], it is quite obvious that the Prison Officers are bound not only to perform such duties for the purpose of preserving discipline and enforcing diligence, cleanliness, order and conformity to the rules of the prison, but also to treat the prisoners with kindness and humanity.

In Nepal, the Supreme Court declared that it is the legal and constitutional obligation and duty of the Nepali government to "protect the rights of the child in line with the provisions of the Bonded Labour (Prohibition) Act" and the CRC. It further states that the protection of child bonded laborers is also the international commitment of Nepal pursuant to Nepal Treaty Act, 1990 and Article 26 of the Constitution of the Kingdom of Nepal. 

The Philippine Supreme Court in recognizing the right of a lesbian-gay-bisexual-transexual group to participate as a political party in an election declared that its decision is

fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of nondiscrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR [International Covenant on Civil and Political Rights].

 It also explained the necessity of applying the international standards:

[F]or individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct.

The Korean report presents a Constitutional Court decision that clarified for the first time the entitlement of migrant workers in Korea to exercise labor and other rights in recognition of the obligation of the Korean state under international human rights treaties.

The Indian report explains the rule being followed by the Indian Supreme Court in applying the international human rights standards in its decisions:

These treaties form part of the domestic law upon ratification. In the absence of contrary legislation, Indian courts would respect the international law principles. But if there is any express legislation contrary to the international law principles, Indian courts are bound to give effect to the Indian law. The Supreme Court of India has gone further to direct that by virtue of signing an international treaty it becomes part of the law of the land unless the provisions come in conflict with any of the domestic laws. Hence, protection of the rights to liberty, freedom of expression, peaceful assembly, effective remedy for violation of fundamental rights, fair and public hearing by an independent and impartial body  are seen both in the Constitution of India and the ratified international treaties above.

 

On the other hand, the courts may even improve the international standards. As one account states:

Justice Bokhary cited extensively international legal materials when he said that "[i]n the field of human rights, municipal law has often walked in the footsteps of international law and may in some jurisdictions have caught up with or even overtaken it." 

Yet, other Supreme Courts may not give international human rights standards importance as legal reference. In interpreting a provision of the law (Section 4(4) of the SUHAKAM Act 33) that created a national human rights institution, the Malaysian Supreme Court interpreted the clause as merely constituting 

an invitation to look at the [Universal] Declaration [of Human Rights] if one is disposed to do so, consider the principles stated therein and be persuaded by them if need be. Beyond that one is not obliged or compelled to adhere to them.

In the case of Hong Kong, the UN Economic, Social and Cultural Rights Committee regretted that some judgements of the High Court of HKSAR express the opinion that

the [International Covenant on Economic, Social and Cultural Rights] is "promotional" (Mok Chi Hung v. Director of Immigration, judgement of 5 January 2001) or "aspirational" (Chan To Foon v. Director of Immigration, judgement of 11 April 2001) in nature. As the Committee has confirmed on numerous occasions, such opinions are based on mistaken understanding of the legal obligations arising from the [ICESCR].

The Japanese legal system considers a ratified international treaty as having the same status [of] a domestic law, and takes precedence over all related laws with the exception of the Constitution. And yet Japanese courts hardly refer to them in their decisions.

In the Pacific, one report states:[2]

A total of 44 human rights cases were collected from the 34 years between 1971 and 2005 for the first Volume of the Digest. In Volume 2, over 50 cases were collected from 2006 to 2008, a significant increase in the volume of cases and reporting. And in 2009–2010, during a one year period, more than 50 cases were reported. These figures highlight a dramatic increase in the application of international human rights standards and norms in the Pacific region.

In a 2006 conference of judges and lawyers from Pacific countries, the participants recommended, among others, the following:[3]

8. The participants acknowledged the universality, interdependence and interrelatedness of all human rights as contained in the Universal Declaration of Human Rights. They encouraged the universal ratification of international human rights treaties. They stressed the importance of the treaty monitoring system, including the Committee on Economic, Social and Cultural Rights as a framework for establishing a culture of human rights. They also acknowledged the general comments of the treaty bodies, which provide guidance for the interpretation of human rights obligations, and the concluding observations of the treaty bodies, which provide guidance for state parties in implementing rights. They further noted the work towards the formulation of an optional procedure which would allow individuals to complain about violations of economic, social and cultural rights. Participants also recognized that some economic, social and cultural rights embodied in domestic law and international instruments have been held to be justiciable by several national, regional courts and in international decision making.

                                xxx                                                                 xxx                                                               xxx

23. Where this is otherwise not required under domestic law, the consideration of using international human rights norms and standards to assist in the interpretation of bills of rights and other legislation, including in relation to economic, social and cultural rights.

24. The recognition that in cases involving human rights violations, justice may require the relaxation of requirements relating to standing, evidence, rules of court and procedures generally, and a flexible approach to remedies.  

In 2009, the Judicial Colloquium on the Domestic Application of International Human Rights Norm the Justices and Judges from Cambodia, Malaysia, the Philippines, Sri Lanka and Thailand recommended, among others, the following: [4]

b) Where lacunae in the domestic law are identified, the judiciary should, as far as possible, resort to interpretations consistent with principles of international law and customary international law, as well as the meaning of international instruments, as interpreted and applied by the UN human rights treaty bodies;

c) Where domestic laws or principles prevail over international law and thereby prevent the judiciary from applying international standards – where for instance such norms are expressed as non-justiciable in the domestic legal order or where domestic law which is inconsistent binds the judiciary – such inconsistency should be highlighted in the judgments.

The recognition of international human rights standards in Asian and Pacific jurisprudence is clear; yet there is still much room for improvement.

Below is an initial compilation of jurisprudence related to human rights from a number of Asia-Pacific countries.