Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR) requires that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.”
Imagine that you are a member of a team of legislative drafters who have been asked to advise the Parliamentary Law Reform Committee on this obligation.
The chair of the committee has asked you to advise the committee on what the term “promptly” means, and what time limit for bringing an accused before a judge should be included in the law.
What sources would you turn to for guidance? Examples could include:
• The International Covenant on Civil and Political Rights
• The Human Rights Committee draft General Comment 35 on article 9 of the ICCPR
• Decisions of the Human Rights Committee
• Decisions of the European Court of Human Rights
• Guidance notes and other materials from rights-based organizations, such as Amnesty International, UN agencies, or the International Bar Association
In general, sources suggest that “promptly” should be interpreted as being forty-eight hours (see para. 33 of the Human Rights Committee draft General Comment 35).
• What is the time limit in your country?
• Is forty-eight hours a reasonable and realistic timeframe in your context? What might be some competing considerations?
(e.g., a lack of resources or vast geographical distances between courts)
• Why does the right exist in the first place?
• If the person arrested or detained was suspected of committing a terrorist act, would you recommend that the time frame be the same or different? Why?
The special rapporteur on human rights and counter-terrorism has stated that everyone held in detention must have access to a judicial hearing about the lawfulness of their detention within forty-eight hours.5
What is the rationale behind the special rapporteur’s recommendation of a forty-eight-hour time limit?
Chapter 3, Part 6: Rule of Law and Counterterrorism
CHAPTER 3 Part 4 ENDNOTES 4 Rausch, Combating Serious Crimes, 46.
5 UN General Assembly, “Protection of Human Rights and Fundamental Freedoms while Countering Terrorism: Note by the
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Part 5 A Process Approach to Law Reform
The process by which a law is drafted or amended is as important as the content of the law itself for ensuring its effectiveness in terms of not only being passed but also being success-fully implemented and accepted by a society.
This part of the chapter details a general process that can guide effective law reform activities, whether they take place during a comprehensive review of legislation, during a transition phase, during the amendment or development of new legislation to address a new threat such as piracy or terrorism, or under other circumstances.
• Colette Rausch, ed., Combating Serious Crimes in Postconflict Societies: A Handbook for Policymakers and Practitioners, chap. 3 (Washington, DC: USIP, 2006).
• USIP and US Army Peacekeeping and Stability Operations Institute (USAPSOI),
“Rule of Law,” Sec. 7 in Guiding Principles for Stabilization and Reconstruction (Washington, DC: USIP; Carlisle, PA: USPSOI, 2009), http://www.usip.org/
publications/guiding-principles-stabilization-and-reconstruction.
• UN Office on Drugs and Crime (UNODC) and USIP, Criminal Justice Reform in Post-conflict States: A Guide for Practitioners, chap. 8 (New York: UNODC;
Washington, DC: USIP, 2011), https://www.unodc.org/documents/justice-and-prison-reform/11-83015_Ebook.pdf.
Assessment: Understanding the existing legal framework is key to determining whether the framework is fair and just, and is necessary for identifying what changes need to occur to create an effective justice system.
A thorough review of the existing laws (consider the various systems, including the formal and customary systems, as well as the hierarchy of laws) should be conducted by qualified persons (both local and possibly international) in order to do the following:
a. determine what provisions or elements of the existing laws to keep and which need to be removed or reformed;
b. establish whether the existing laws comply with international human rights norms and standards and other treaty obligations;
c. identify what is not already included in the law and suggest what should be added; and d. determine whether the laws are up to date and reflective of the reality of the society
today.
The following text draws on lessons learned and good practice to offer key recommendations for how to carry out an effective law reform process. In particular, the text draws from the following sources:
Chapter 2, Part 2: Understanding the Domestic Legal System
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This assessment process should include obtaining input from all affected stakeholders such as legal professionals, civil society, and the public.
A thorough assessment will take time. Make sure adequate time and resources have been allocated for this part of the process.
Any proposal for changes to the law should be accompanied by a thorough analysis of the potential impact the new law will have not only on other laws but also on other parts of the justice system and society.
For example, what negative and positive impacts on the justice system will a proposed reform to the law to allow for alternative sentencing, such as suspended sentences, have on prisons (could this assist with prison overcrowding?), judges (are they willing to implement this new proposal?), law schools (will the curriculum need to be changed?), or the community (will the community understand and accept this new idea?).
Achieving political buy-in: It is crucial to ensure that there is significant political will for the proposed law reform and that there are “change agents” who are championing the process within the executive, legislative, and judiciary, and within society.
To support change, people need to understand the change that is being proposed, the vision and desired outcomes of the change, and the roles and responsibilities they will have in the process.
This can be achieved by having a clear, comprehensible strategy.
A strategic plan for law reform should consider:
a. who will be involved in preparing a draft;
b. how they will be selected;
c. how political and community consensus will be built;
d. how the law will be adopted;
e. what the timeline will be;
f. how disputes over content will be resolved;
g. how the proposed law reform will impact other laws and reform efforts; and
h. how the new law will be implemented and what other reforms might be necessitated to ensure effective implementation.
Have a realistic time frame. Law reform (from the time a policy is created to the time a law is implemented) can take many years. Consider, for example, the Maldives experience of reforming the penal code (see the example following). It took eight years to draft a new penal code and have it passed into law.
Chapter 2, Part 1: An Effective Justice System, &
Chapter 3, Reader Exercise: Assessing the Potential Impact of a New Anti-Torture Law
Chapter 4, Part 1, A Guide to the Plan Phase, &
Chapter 5, Part 1: Creating Change
Chapter 5, Part 1: Creating Change, “Being an Effective Change Agent”
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