The Need for a Regional South Asian Mechanism for Human Rights

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By

Yasser Latif Hamdani[1]

Abstract

(South Asian States, despite the existence of fundamental rights in their national constitutions, require a regional mechanism. This is because the national mechanisms have failed to deliver. A Pan-South Asian court will be useful not just in ensuring human rights in all these states but will help foster a relationship which would bring peace and prosperity to South Asia. – Author)

For the purpose of this article the term South Asia includes the member states of South Asian Association for Regional Cooperation (SAARC), which at present include Afghanistan, Bangladesh, Bhutan, India, Nepal, Pakistan and Sri Lanka.  This – the South Asian region – is the only region without a regional human rights mechanism, i.e. a regional transnational court or commission to look into human rights complaints, in the world.  Every other economic region in the world has established some sort of a human rights mechanism, leading amongst which is the European Court of Human Rights and Inter-American Court and it goes without saying that if there was ever a case for such a human rights court, it would be the strongest in South Asia.

South Asian States all have written constitutions with defined fundamental rights. Pakistanis will be surprised to know that in the balance, the Pakistani Constitution gives more fundamental rights than any other South Asian Constitution. However these national states are entirely diverse in their self-identification.  Of this the recent entrant is Bhutan which has gone from an absolute monarchy to a constitutional one.  Nepal transformed from a Hindu Kingdom, albeit a constitutional monarchy to a secular republic.  Four of the republics in South Asia declare Islam as the state religion and two of them are Islamic Republics. The largest republic, i.e. India, has no state religion.  Of the states with Islam as the state religion, Bangladesh paradoxically also commits itself to secularism. Pakistan guarantees equality of citizenship to non-Muslims but closes the offices of president and prime minister to Non-Muslims.  Maldives denies citizenship to Non-Muslims. Religious freedom is not guaranteed under the Afghan constitution.  Sri Lanka defines Buddhism as its state religion but, like Pakistan, promises religious freedom to other communities, though not the right to propagate the faith.  Nepal on its part denies the right to convert to a different religion than which one is born to. Despite this divergent identifications and state formations, all South Asian states guarantee a number of fundamental rights which are nevertheless not always enforced by state mechanisms such as the courts because of political expediency and social pressures. This is what necessitates the creation of a South Asian Mechanism for Human Rights which would be fair and independent and will be unfettered by the dictates of national ideologies and local pressures.

Consider the fact that the member states of the SAARC have ratified most of the international human rights conventions[i].  A number of the member states, being previously part of the British Empire, follow the same legal system, more or less.  Many of these states have grave human rights issues despite them being constitutional democracies. All of them face challenges in spheres of religious freedoms, personal freedoms and terrorism.  All of these states have nations and communities that straddle borders and are often placed in antagonistic relationships with the majorities.

There are many purposes and objects that may lend themselves to the cause of establishing a South Asia Wide Mechanism. First and foremost it would help foster a culture of tolerance, peace and equity in South Asian states. One possible reason can be to overcome procedural and institutional weaknesses and short comings of some domestic/national jurisdictions/judiciaries that are caused by numerous extraneous factors, including the fact that at times these states experience long periods of instability, terrorism, communal violence and insurgency.  The best possible reason for having a South Asian Mechanism is to overcome the tremendous gap that exists in human rights jurisprudence in national legal systems and to ensure a more effective implementation and enforcement of human rights that are guaranteed in the national constitutions of these states. This can be done by adapting concepts and values which are integral to the intellectual and religious traditions and world-views of South Asia to address regional human rights problems  more effectively. It can also free the governments and judiciaries of these states from having to take positions that would be politically unwise.

The first question obviously is whether or not the SAARC is the body that can or that will take a Pan- South Asian Mechanism forward.  SAARC has amply demonstrated with the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution[ii], the Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia[iii], the establishment of the Food Bank[iv] that in its third decade of existence, it is finally willing to tackle issues of poverty, child rights and healthcare which are core human rights issues. However, so long as the principles of non-interference and the exclusion of contentious issues is a part of the SAARC Charter (and these were put there by military dictators who were amongst the founders of SAARC), SAARC will find it impossible to engage meaningfully on subjects of civil and political rights without contravening the terms of its Charter, and will not be able to take the next step as a human rights arbiter. Among the major human rights challenges in the region today, several revolve around civil and political rights where meaningful arbitration by a regional human rights body would require interfering in contentious issues in the internal affairs of a member state.  In the ideal world, a mature SAARC human rights body should be able to investigate and actually intervene in the following types of issues, something it would not be able to do in today’s political atmosphere: the application of the Armed Forces Special Powers Act by India in Kashmir and in Northeast India; the suppression of the right to self-determination of the Kashmiri people by the Indian Government for over 60 years in direct infringement of their acceptance of the 5th of January 1949 Resolution of the United Nations Commission for India and Pakistan which stated that “the question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite”; the refusal of the Bangladesh government to grant autonomy to the indigenous populations of the Chittagong Hill Tracts and to withdraw its military from the area which is a direct infringement of the Chittagong Hill Tracts Peace Accord which it signed in 1997; allegations of torture, enforced disappearances, arbitrary detention and extrajudicial killings by both government forces and Maoist rebels in Nepal during and after its civil war; the allegations of war crimes and crimes against humanity leveled at both the Sri Lankan Government and Tamil Tigers in Sri Lanka;  denial of fundamental rights of freedom of religion and expression to minorities in Pakistan, especially the Ahmadis;  excesses of the caste system and periodic religious violence in India; the situation vis a vis the stateless Biharis in Bangladesh; the terrible situation of fishermen of South Asia being arrested and captured by various states; the plight of prisoners;  and the woeful situation vis a vis women in almost all countries.

Additionally, a Charter of Democracy was approved by the SAARC Standing Committee in February 2011 and recommended for adoption at the 17th SAARC Summit in November 2011. It is a brief document which proposes that Member States pledge themselves to foster democracy and good governance, specifically mentioning that members “renounce unequivocally any unconstitutional change of an elected government in a Member State.” The COD came at a time when almost all of the governments in South Asia were under constitutional democratic rule – a far cry from the founding of the SAARC when several regimes in the region were led by military dictators. The COD also urges members to focus on decentralization and devolution in its efforts to build effective systems of governance. An institutional mechanism to oversee adherence to the principles of the Charter of Democracy is also suggested.  This institutional mechanism has the germs of a South Asian regional mechanism. [v]

Proposed South Asian Human Rights Declaration

The South Asian states have some of the most comprehensive constitutions when it comes to fundamental rights.  The irreducible minimums of a South Asian Human Rights Declaration will have to include the following points which have been compared to the various national constitutions:

  1. 1. Equality before Law:

All national constitutions in the SAARC region guarantee equality before law.  All member states have also ratified the International Covenant on Civil and Political Rights (ICCPR).

The Constitution of Pakistan:

4          Right of individuals to be dealt with in accordance with law, etc.

(1)        To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2)        In particular :-

(a)         no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b)        no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c)         no person shall be compelled to do that which the law does not require him to do.

25         Equality of citizens.

(1)        All citizens are equal before law and are entitled to equal protection of law.

(2)        There shall be no discrimination on the basis of sex 32[] 32.

(3)        Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

The Constitution of India:

Right to Equality

14. Equality before law.—The State shall not deny to any person

equality before the law or the equal protection of the laws within the territory of

India.

15. Prohibition of discrimination on grounds of religion, race, caste,  sex or place of birth.—(1) The State shall not discriminate against any citizen  on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of  birth or any of them, be subject to any disability, liability, restriction or  Condition…

The Constitution of Sri Lanka:

Right to equality.

12. (1) All persons are equal before the law and are entitled to the equal protection of the law.

(2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds:

Provided that it shall be lawful to require a person to acquire within a reasonable time sufficient knowledge of any language as a qualification for any employment or office in the Public, Judicial or Local Government Service or in the service of any public corporation, where such knowledge is reasonably necessary for the discharge of the duties of such employment or office:

Provided further that it shall be lawful to require a person to have sufficient knowledge of any language as a qualification for any such employment of office where no function of that employment or office can be discharged otherwise than with a knowledge of that language.

(3) No person shall, on the grounds of race, religion, language, caste, sex or any one such grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion.

(4) Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons.

Constitution of the Kingdom of Bhutan:

Article 7 (15):  All persons are equal before law and are entitled to equal protection of the law and shall not be discriminated against on grounds of race, sex, language, religion, politics or other status.

The Interim Constitution of Nepal:

13. Right to Equality: (1) All citizens shall be equal before the law. No person shall be denied the equal protection of the laws.

(2) No discrimination shall be made against any citizen in the application of general laws on grounds of religion, race, sex, caste, tribe, origin, language or ideological conviction or any of these.

(3) The State shall not discriminate among citizens on grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these.

Provided that nothing shall be deemed to prevent the making  of special provisions by law for the protection, empowerment or  advancement of the interests of women, Dalit, indigenous ethnic tribes,  Madeshi, or peasants, labourers or those who belong to a class which is economically, socially or culturally backward and children, the aged,  disabled and those who are physically or mentally incapacitated.

(4) No discrimination in regard to remuneration and social security shall be made between men and women for the same work.

The Constitution of Bangladesh:

27.        Equality before law.

All citizens are equal before law and are entitled to equal protection of law.

28.        Discrimination on grounds of religion, etc.

(1) The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth.

(2) Women shall have equal rights with men in all spheres of the State and of public life.

(3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.

(4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.

29.        Equality of opportunity in public employment.

(1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.

(2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic.

(3) Nothing in this article shall prevent the State from –

making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic;

giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination;

reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.

The Constitution of Maldives:

20. Every individual is equal before and under the law, and  has the right to the equal protection and equal benefit  of the law.

The Constitution of Afghanistan:

Article Twenty-Two: Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden.  The citizens of Afghanistan, man and woman, have equal rights and duties before the law.

  1. 2. Gender equality:

SAARC states have, without exception, signed the Convention on Elimination of all forms of Discrimination Against Women (CEDAW)[vi].

  1. 3. Freedom of thought and expression:

All national constitutions give some basic right to freedom of thought and expression with claw-backs such as national security and law and order.  Pakistan also makes its FOE fundamental right subject to reasonable restrictions imposed by law in the interest of glory of Islam.

The Constitution of Pakistan:

19         Freedom of speech, etc.

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, 30[commission of] 30 or incitement to an offence.

The Constitution of India:

19 (1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) …

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of  any existing law, or prevent the State from making any law, in so far as such  law imposes reasonable restrictions on the exercise of the right conferred by the  said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,  decency or morality, or in relation to contempt of court, defamation or incitement to an offence

The Constitution of Sri Lanka:

14. (1) Every citizen is entitled to – (a) the freedom of speech and expression including publication;….

And

15. (2) The exercise and operation of the fundamental right declared and recognized by Article 14(1) (a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.

The Constitution of the Kingdom of Bhutan:

7.(2)  A Bhutanese Citizen shall have the right to freedom of speech, opinion and expression.

The Interim Constitution of Nepal:

15. Right Regarding Publication, Broadcasting and Press: (1) No publication and broadcasting or printing of any news items, editorial, article, writings or other readings, audio-visual materials, by any means including electronic publication, broadcasting and press, shall be censored.

Provided that nothing shall be deemed to prevent the making of  laws to impose reasonable restrictions on any act which may undermine the sovereignty or integrity of Nepal, or which may jeopardise the harmonious  relations subsisting among the peoples of various castes, tribes or communities; or on any act of sedition, defamation, contempt of court or  incitement to an offence; or on any act which may be contrary to decent  public behaviour or morality.

(2) No radio, television, online or any other types of digital or electronic means, press or any other communication media shall be closed,  seized or be cancelled the registration because of publishing and broadcasting or printing any material by such means of audio, audio-visual  or electronic equipments.

(3) No newspaper, periodical or press shall be closed, seized or be cancelled the registration for printing and publishing any news items, articles, editorial, writings or other reading materials.

(4) No communication means including press, electronic broadcasting and telephone shall be obstructed except in accordance with law.

The Constitution of Maldives:

27. Everyone has the right to freedom of thought and the freedom to communicate opinions and manner that is not contrary to any tenet of Islam.

The Constitution of Bangladesh:

39.        Freedom of thought and conscience, and of speech.

(1) Freedom of thought and conscience is guaranteed. Freedom of thought and conscience, and of speech.

(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence-the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.

The Constitution of Afghanistan:

Article Thirty-Four: Freedom of expression shall be inviolable. Every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law.

  1. 4. Right of access to information:

Many state constitutions, including Pakistan, recognize access to information as a fundamental right.

The Constitution of Pakistan:

19A.     Right to information:

Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

The Constitution of India:

None

The Constitution of Sri Lanka:

None

Constitution of Bhutan:

7(3) The Bhutanese Citizen shall have the right to information.

Interim Constitution of Nepal:

27. Right to Information: (1) Every citizen shall have the right to demand or obtain information on any matters of his/her own or of public importance.  Provided that nothing shall compel any person to provide information on any matter about which secrecy is to be maintained by law.

The Constitution of Nepal:

29. Everyone has the freedom to acquire and impart knowledge, information and learning.

The Constitution of Bangladesh:

None

The Constitution of Afghanistan:

Article Fifty

The state shall adopt necessary measures to create a healthy administration and realize reforms in the administrative system of the country. The administration shall perform its duties with complete neutrality and in compliance with the provisions of the laws. The citizens of Afghanistan shall have the right of access to information from state departments in accordance with the provisions of the law. This right shall have no limit except when harming rights of others as well as public security. The citizens of Afghanistan shall be recruited by the state on the basis of ability, without any discrimination, according to the provisions of the law.

  1. Right of access to internet:

Given the relatively low penetration of the internet, member states have so far been reluctant to speak directly on the issue of the right of access to internet.  South Asia will have to underscore the viability of this important resource. None of the national constitutions recognize this right as yet.

  1. Right to be forgotten:

Unless there are compelling reasons, a person should have the right to be forgotten – that is to have all public records online expunged or kept private.  No state constitution has this idea which in any event is very new in human rights jurisprudence.

  1. Right of inviolability of correspondence electronic or hard copy:

Correspondence should be deemed the private right of two individuals and no surveillance by the state should be allowed.  This however should not apply to individuals voluntarily giving up information regarding such correspondence.   Bhutan covers correspondence in its national constitution under 7(19). Constitutions of Maldives and Bangladesh also recognize privacy of correspondence as a fundamental right.

  1. Freedom of movement:

It is covered by national constitutions and also by ICCPR.

The Constitution of Pakistan:

15         Freedom of movement, etc.

Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.

The Constitution of India:

None.

The Constitution of Sri Lanka:

14. (1) Every citizen is entitled to –

(h)  the freedom of movement and of choosing his residence within Sri Lanka; and

(i) the freedom to return to Sri Lanka.

The Constitution of the Kingdom of Bhutan:

7(7) The Bhutanese Citizen shall have the right to freedom of movement and residence within Bhutan.

The Interim Constitution of Nepal:

None

The Constitution of Maldives:

41. (a) Every citizen has the freedom to enter, remain in  and leave the Maldives, and to travel within the  Maldives.

(b) Every citizen has the right to move to, and take up residence on, any inhabited island of the

Maldives.

(c) Every citizen shall have equal access to the receipt of rights and benefits from any island where he has established residency

The Constitution of Bangladesh:

36.        Freedom of movement.

Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.

Constitution of Afghanistan:

None

  1. 9. Fair Trial and Due Process:

The Pakistani Constitution recognizes fair trial and due process as a fundamental right.  Other constitutions, like the Indian constitution, have been interpreted to include these as a fundamental right.

The Constitution of Pakistan:

10A.           Right to fair trial:

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

The Constitution of India:

None

The Constitution of Sri Lanka:

Freedom from arbitrary arrest, detention and punishment, and prohibition of retroactive penal legislation.

13. (1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

(3) Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court.

(4) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.

(5) Every person shall be presumed innocent until he is proved guilty:

Provided that the burden of proving particular facts may, by law, be placed on an accused person.

(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.

Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

It shall not be a contravention of this Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed.

(7) The arrest, holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigrants and Emigrants Act or the Indo-Ceylon Agreement (Implementation) Act, No. 14 of 1967, or such other law as may be enacted in substitution therefor, shall not be a contravention of this Article.

The Constitution of the Kingdom of Bhutan:

7(1)  “Shall not be deprived of such rights save in accordance with due process of law”

Interim Constitution of Nepal:

24 (9) Every person shall be entitled to a fair trial by a competent court or judicial authority.

Constitution of Maldives:

42. (a) In the determination of one’s civil rights and obligations or of any criminal charge, everyone  is entitled to a fair and public hearing within a reasonable time by an independent court or tribunal established by law.

(b) All judicial proceedings in the Maldives shall be conducted with justice, transparency and impartiality.

(c) Trials of any matter shall be held publicly, but  the presiding judge may exclude the public from all or part of a trial in accordance with democratic norms:

1. in the interests of public morals, public  order or national security;

2. where the interest of juveniles or the  victims of a crime so require; or

3. in other special circumstances where publicity would prejudice the interests of justice.

The Constitution of Bangladesh:

None

The Constitution of Afghanistan:

Article Twenty-Seven

No deed shall be considered a crime unless ruled by a law promulgated prior to commitment of the offense. No one shall be pursued, arrested, or detained without due process of law. No one shall be punished without the decision of an authoritative court taken in accordance with the provisions of the law, promulgated prior to commitment of the offense.

  1. 10. Protection against Arbitrary Detention

The Constitution of Pakistan:

9          Security of person.

No person shall be deprived of life or liberty save in accordance with law.

10         Safeguards as to arrest and detention

(1)        No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2)        Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in :custody beyond the said period without the authority of a magistrate.

(3)        Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

(4)        No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding  [three months]  unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of  [three months], unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.

Explanation-I: In this Article, “the appropriate Review Board” means:-

(i)         in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and

(ii)         in the case of a Person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.

Explanation-II: The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.

(5)        When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall,  [within fifteen days] from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order:

Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.

(6)        The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.

(7)        Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case:

Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy  20[or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity].

(8)        The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.

(9)        Nothing in this Article shall apply to any person who for the time being is an enemy alien.

The Constitution of India:

22. Protection against arrest and detention in certain cases.—(1) No  person who is arrested shall be detained in custody without being informed, as  soon as may be, of the grounds for such arrest nor shall he be denied the right  to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest  to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

The Constitution of Sri Lanka:

See Sri Lanka Entry for previous section.

The Constitution of the Kingdom of Bhutan:

7(20)  A person shall not be subjected to arbitrary detention or arrest.

The Interim Constitution of Nepal:

24  Rights Regarding to Justice: (1) No person who is arrested shall be detained in custody without being informed of the ground for such arrest.

The Constitution of Maldives:

46. No person shall be arrested or detained for an offence  unless the arresting officer observes the offence being  committed, or has reasonable and probable grounds or evidence to believe the person has committed an offence or is about to commit an offence, or under the

The Constitution of Bangladesh:

Safeguards as to arrest and detention.

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person-

who for the time being is an enemy alien; or who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order.

(6) Parliament may be law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4).

The Constitution of Afghanistan:

See Afghanistan entry in the last section

  1. Freedom to profess and propagate a religion:

Constitutions of Pakistan, India and Bangladesh recognize both the freedom to profess and propagate one’s religion as a fundamental right. The Constitution of Sri Lanka gives the right to profess but not propagate.  Nepal and Bhutan place certain restrictions on conversion.

The Constitution of Pakistan:

20 Freedom to profess religion and to manage religious institutions.
Subject to law, public order and morality:-

(a) every citizen shall have the right to profess, practice and propagate his religion; and
(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

The Constitution of India:

Right to Freedom of Religion

25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and  to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina  or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

The Constitution of Sri Lanka:

14. (1) Every citizen is entitled to –

(e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;

The Constitution of the Kingdom of Bhutan:

7(4) A Bhutanese Citizen shall have the right to freedom of thought, conscience and religion. No person shall be compelled to belong to another faith by coercion or inducement.

The Interim Constitution of Nepal

23. Right to Religion: (1) Every person shall have the right to profess, practise and preserve his/her own religion as handed down to him/her from ancient times having due regards to the social and cultural traditional practices.

Provided that no person shall be entitled to convert another person from one religion to another, and shall not act or behave in a manner which may jeopardize the religion of others.

(2) Every religious denomination shall have the right to maintain its independent existence, and for this purpose to manage and protect its religious places and religious trusts, in accordance with law.

The Constitution of Maldives:

None. Maldives only recognizes Islam as the religion of citizens of Maldives.

The Constitution of Bangladesh:

The religious freedom clause i.e. Article 41 is the same as the Pakistani Article 20.

The Constitution of Afghanistan:

No religious freedom clause.

  1. 12. Freedom of worship and Freedom not to worship:

South Asia being largely a religious region has often overlooked the fact that other than freedom of worship, the right not to worship must also be protected. Some constitutions, including the Pakistani constitution, recognize the right of minority communities not to be forced into religious education but none of the states recognizes the “non-religious” as a distinct community.

  1. 13. Right to privacy:

The Constitution of Pakistan:

14 (1)    The dignity of man and, subject to law, the privacy of home, shall be inviolable.

The Constitution of India:

None

The Constitution of Sri Lanka:

None

The Constitution of Kingdom of Bhutan:

Article 7(19) protects against arbitrary interference in privacy.

Interim Constitution of Nepal:

28. Right to Privacy: (1) Except on the circumstance as provided by law, the privacy of the person, residence, property, document, statistics, correspondence and character of anyone is inviolable.

The Constitution of Maldives:

24. Everyone has the right to respect for his private and family life, his home and his private communications. Every person must respect these rights with respect to others.

The Constitution of Bangladesh:

43.        Protection of home and correspondence.

Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health-to be secured in his home against entry, search and seizure; and to the privacy of his correspondence and other means of communication.

The Constitution of Afghanistan:

None

  1. 14. Right to choose:

The right to choose who to marry or not marry, what to believe or disbelieve and finally how to conduct one’s life should be a right protected by the South Asian declaration.

  1. 15. Right to education:

Right to universal education has been recognized by many state constitutions including Pakistan and India.  Pakistan’s Article 25-A was added through the 18th Amendment.

  1. Freedom of trade and profession:

The right to choose a profession without discrimination is recognized by all state constitutions.

  1. Right of Peaceful Assembly:

This is the basic democratic right of citizens and is recognized by all states in South Asia with reasonable restrictions.

  1. Right of Association:

The right to join a political, cultural, trade or labour association should be unabridged. This is recognized by all state constitutions.

  1. Protection against exploitation and slavery

Every person in South Asia should have the right not to be exploited economically, physically, morally socially. All constitutions forbid slavery and bonded labour.

  1. Preservation of beneficial aspects of language and culture:

The right to safeguard one’s language, culture, script and other distinguishing factors should be guaranteed.  Constitutions of Pakistan and India specifically recognize this right.

  1. 21. Right of self-determination:

Right to self-determination in accordance with international obligations and national constitutions should be protected.  Everyone should have the right to decide their fate in accordance with the law and international obligations.

  1. 22. Right to a pollution free healthy environment.

This should be part of the human rights declaration. At present only the Constitution of Maldives recognizes this important right.

  1. 23. Right to life and safeguards against torture

The right to life is recognized by all constitutions.  All state constitutions forbid torture.

  1. 24. Right of nationality:

No one should be stateless.  This is especially pertinent for refugees and stateless people living outside their countries.

  1. Rights of Child

Every child should have a right to a healthy protected environment and to education, love and wellbeing.

  1. 26. Right to family and protection thereof

No one should be deprived of their right to family and the protection of their family.

  1. 27. Right to vote

All South Asian states are democracies in some form. However India and Pakistan do not specifically recognize this as a fundamental right.

  1. 28. Right to property

India does not allow the right to property which was repealed. The rest of the member states recognize the right to property.

  1. Right to petition:

The right to petition the government or the courts for enforcement of fundamental rights should not be abridged for any citizen. All articles of individual constitutions should be brought in line with this right.

  1. Right to participate equally in Government:

No citizen of a state should be discriminated against in any official function or office of the state.

  1. 31. Special Rights of Women:

Affirmative action for women.

  1. Special Rights of Minority Communities :

Affirmative action for all nationally recognized minorities in each country.

The Structure and Administration of the South Asian Mechanism for Human Rights

The South Asian Mechanism on Human Rights should have a central secretariat in the country which has the least possible conflict of interest with other countries. In this case one would propose the secretariat in Kathmandu, Nepal which enjoys friendly relations with every country in South Asia.

The central secretariat should house the South Asian Court of Human Rights and the central secretariat for South Asian Commission of Human Rights.   The financing of the Mechanism should be undertaken by the SAARC.

Commission

It is proposed that there should be three commissioners appointed by the South Asian Mechanism for each state which would then be based in the capital city of each state.  Of these three commissioners two must be from outside the host country.   It is recommended that leading human rights lawyers and civil rights activists should be made these commissioners.

These commissioners should have the following functions:

  1. Oversight and review of all legal cases with a human/fundamental rights angle.
  2. Review and give opinions on all human rights crises in a country.
  3. Prepare an annual human rights performance appraisal of the three branches of the state.
  4. Accept human rights complaints and advise concerned national bodies such as the government or the judiciary accordingly.
  5. Suo Sponte action in matters requiring urgent attention.
  6. Recommend and certify cases by majority for adjudication by the South Asian Court of Human Rights in Khatmandu.

The Commissioners would be the first interface of the Mechanism with the population.  They would be responsible for reviewing all human rights related matters in a given country and shall advise and decide the matter accordingly.  If in the event that the Commissioners feel that a matter has exhausted all national remedies available and the national courts have failed to rectify the situation or a miscarriage of justice or has, in the view of the majority of the Commissioners, infringed upon the human rights of an individual, a community or a state, the Commissioners should then be empowered to:

  1. Address the matter to the South Asian Court of Human Rights.
  2. Arrange for the travel expense and costs of the petitioner and his/her counsel to Khatmandu through the secretariat.

In all cases where the Commission rules 2-1 in a matter, the decision should be appealable to the South Asian Court of Human Rights, provided the petitioner can show that the decision erred in law or was malafide or under duress or arbitrary.

Advocates:  Counsel or Advocates with a standing of 10 years in legal practice should be admitted to a special bar for South Asian Human Rights.  Advocates should be allowed to practice in this capacity as lawyers before the South Asian Court of Human Rights as well as all Commissioners in all South Asian countries.  If a petitioner is unable to pay for his counsel, a fixed amount maybe set by the Mechanism for the payment of counsel.

Court

The South Asian Court of Human Rights should have 15 justices including the chief justice.  These justices should be drawn from the superior judiciary of the member states or from amongst the commissioners who have served as commissioners for five years.

A full court should have five justices to hear a matter before it.  Matters should be referred to the South Asian Court of Human Rights only after all available national remedies have been exhausted and if the Commissioners have certified, by a majority, that a particular matter deserves a ruling of the South Asian Court of Human Rights.  Furthermore, the South Asian Court of Human Rights should have appellate jurisdiction in matters where commissioners have decided against a matter being referred to the South Asian Court of Human Rights with a majority of 2 to 1.

The South Asian Court of Human Rights should have suo sponte jurisdiction i.e. where it feels that a certain matter, having exhausted all national remedies, deserves their attention, the justices of this court should be able to take cognizance of it.

The first South Asian Court of Human Rights would have to be elected by the SAARC body.  This process would include nominations by member states and appointment by consensus. Once the body has been elected, it should become a self-governing judicial body i.e. it should appoint commissioners and future justices.  However the SAARC body should reserve the right of impeachment by consensus of any justice or commissioner of the body.  The Chief Justice of the South Asian Court of Human Rights should be appointed according to the principle of seniority.

Conclusion

South Asian States, despite the existence of fundamental rights in their national constitutions, require a regional mechanism. This is because the national mechanisms have failed to deliver. A Pan-South Asian court will be useful not just in ensuring human rights in all these states but will help foster a relationship which would bring peace and prosperity to South Asia.


[1] The author is a practicing lawyer based in Lahore.  He is also the author of the upcoming book, “Jinnah; Myth and reality.”  He can be contacted at Yasser.hamdani@gmail.com


[i] A list of ratification of the ICCPR for example is as follows:

Afghanistan 24 Jan 1983, Bangladesh 6 Sep 2000, India 10 Apr 1979, Maldives 19 Sep 2006, Nepal 14 May 1991, Pakistan 23 Jun 2010, Sri Lanka 11 Jun 1980. (Bhutan is yet to ratify the ICCPR)

[ii] http://www.saarc-sec.org/userfiles/conv-traffiking.pdf

[iii] http://www.saarc-sec.org/userfiles/conv-children.pdf

[iv] http://www.saarc-sec.org/userfiles/FoodBank.doc

[v] http://saarc-sec.org/SAARC-Charter-of-Democracy/88/

[vi] Afghanistan signed it on 14 Aug 1980  and ratified it on 5 Mar 2003,  Bangladesh ratified it on 6 Nov 1984, Bhutan signed it on 17 Jul 1980  and ratified it on 31 Aug 1981,  India signed it on 30 Jul 1980  and ratified it on 9 Jul 1993,  Maldives ratified it on 1 Jul 1993, Nepal signed it on 5 Feb 1991  and ratified it on 22 Apr     1991, Pakistan ratified it on 12 Mar 1996, Sri Lanka signed it on 17 Jul 1980 and ratified it on 5 Oct 1981.