What Further Steps Ought to Be Taken

In one line

Repair the four things this book has shown to be broken: the unnotified article 22 amendment, the Commission's two disabilities, the vacancy in investigation and prosecution, and the absence of any sunset on permanent exceptional legislation.

In the wording a student can write in an exam: the further steps that ought to be taken fall into four groups. First, the constitutional repairs already enacted but not brought into force, principally the recasting of article 22 by the Constitution (Forty-fourth Amendment) Act 1978. Second, the removal of the two disabilities on the National Human Rights Commission, the one year limitation in section 36 and the special procedure for the armed forces in section 19. Third, the measures the Commission itself identified in 2000, namely independent and trained investigation, sufficient experienced prosecutors and an adequate number of courts. And fourth, the disciplining of permanent exceptional legislation, by sunset clauses, mandatory periodic review and published data on its use.

Group one: bring into force what is already enacted

The article 22 amendment. The 44th Amendment recast article 22(4) and (7) to reduce the maximum period of detention without an Advisory Board's opinion from three months to two, and to alter the Board's constitution so that its Chairman is a serving or retired Judge of a High Court and its members are appointed on the recommendation of the Chief Justice. The section was to come into force on a date notified, and no notification has ever been issued, as [The Article 22 the 44th Amendment Wrote, and Which Was Never Brought Into Force] records.

The proposal. Notify it. It requires no legislation, no amendment and no expenditure of consequence; it requires an executive act that Parliament authorised in 1978.

Why it is the first proposal. Because it is the only step in this list that costs nothing and has already been agreed by Parliament, and because it goes to the heart of the subject of this paper: the period for which a person may be held before any judicial body sees his case.

Group two: remove the Commission's two disabilities

Section 36(2): the one year bar. The Commission may not inquire into any matter after one year from the act complained of. In the class of case this book studies, custodial violence, disappearance, unlawful detention, the facts are frequently not disclosed within a year, and the section makes no exception for concealment, for continuing violations or for a complainant in custody.

The proposal. Amend section 36(2) to run from the date on which the violation came or ought reasonably to have come to the knowledge of the complainant; or, at least, empower the Commission to condone delay for reasons recorded, which is the ordinary rule for limitation elsewhere.