Access to an effective remedy

Judicial independence is crucial in providing an effective judicial remedy for those whose rights have been violated, either as individuals or groups (such as members of an indigenous community). Judicial independence can be compromised by outside influence, including by the government and other actors, as well as through bribery and corruption and intimidation by armed groups. A lack of judicial effectiveness may also compromise the ability of judicial mechanisms to remedy human rights violations. Examples include insufficient personnel and financial resources, limited or restricted funding and training of officials, backlogs of cases and administrative mismanagement. Government failure to enforce court judgements, or the ignoring of court orders altogether, further slows down or prevents access to remedy by victims and restricts the ability of the judiciary to enforce the law. Lack of protection for victims, witnesses, lawyers and the police etc. has a huge impact on the effectiveness of the legal system and may act as a strong deterrent for those wanting to report crimes.

Implications for business

An independent judiciary is a precondition in providing an effective judicial remedy for victims of human rights violations. However, when this independence is brought in to question, for example through the disproportionate or unjustified use of emergency legislation or the use of military and emergency courts, victims’ access to remedies is restricted. This impacts business when individuals or groups have concerns about company activities or operations but cannot adequately voice their concerns due to investigations and trials not being independent, or the harassment of those raising concerns. Companies may be perceived to be complicit in denying access to judicial remedies and should identify and address grievances early, before they escalate, particularly where access to adequate state-based grievance mechanisms is restricted. An effective grievance mechanism is part of the corporate responsibility to respect human rights.

The following examples were identified through background research:

  • In March 2008, the Asian Human Rights Commission issued a statement commemorating the dismissal of the Pakistani Chief Justice by General Musharraf, which it describes as illegal and unconstitutional. The AHRC reports that the lawyers’ movement, which resulted from the dismissal, continues “to fight for the rule of law, the reinstatement of the Chief Justice, the supremacy of the judiciary and the restoration of the constitution.” In 2007 and 2008, many lawyers were beaten, murdered, killed, tortured and arrested.
  • In March 2009, Amnesty International (AI) praised the conviction of ten members of the illegal para-policing groups (milícias) from Rio de Janeiro, Brazil, as an “emblematic victory in the fight for human rights in the state.” AI reports that a number of judges, prosecutors, police officers and state deputies faced death threats and intimidation over the case.
  • In December 2008, the Indonesian National Commission for Human Rights stated that the decision to acquit retired Indonesian intelligence chief and Major General Muchdi Purwoprandjono of charges of murder and abuse of power in the case of the death in 2004 of one of Indonesia’s leading human rights activists, “shows that our judicial system has failed to fully uphold its independence”.

Identifying the dilemma

How does a company ensure that human rights related grievances and concerns by local communities can be voiced when access to adequate judicial remedies are limited?

The following have been identified as possible components of this dilemma:

  • Company-level grievance mechanisms
  • Restricted access to judicial remedies
  • Lack of or incompetent state-based non-judicial grievance mechanisms

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