Reaction Paper: Fear of Reprisal and Access to Justice in the United Nations

Human Rights Committee

According to Franklin Delano Roosevelt, “Freedom means the supremacy of

human rights everywhere. Our support goes to those who struggle to gain those rights
and keep them. Our strength is our unity of purpose. To that high concept there can be
no end save victory.” This quote implicitly shows the relevance of universal move
towards fostering human rights free from fear, threat or even violence from its place of
origin to any territory. In a world where governments and states set the rules, human
rights serves as the counterweight having its utmost focus on the individual. We need
human rights as it provides us a tool to challenge laws and practices towards the
treatment of every individual. This is the context that I can extract from the journal
written by Gil Anthony Aquino. This journal presents the arising fear of reprisal by an
individual from the agents of the State involved in the violation of human rights. This
also propounds the alternative mechanism to be resorted by those who fear from
reprisals.

The 1987 Philippine Constitution has proviso to give highest priority to the
enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common good.Hence,
the paramount responsibility of the State and its agents constituting the force towards
upholding human rights shall act accordingly for the attainment of the country’s purpose
on protecting its people. How irony the current circumstance turns out. Instead of relying
to the protection of the individual’s place of origin and consider it as a safe haven, the
opposite happens, as citizens opt to avoid domestic approach in the resolution of their
grievances. People instill fear from the agents of their own State and tend to refuse to
access the facilities and remedies available to them. The deprivation of the liberty of an
individual emanates not just from external threats but also from internal forces. Due to
this fear of reprisal, the attempt to seek justice may result to a graver threat and
injustice towards the plaintiff as some of the agents of the State are involve in the
invoked violation of human rights.

Anent to this, the United Nations Human Rights Committee proposed an

alternative mechanism to address the fear of reprisal and provide citizens with a
mechanism which will enable them to invoke and convey their respective complaints
and grievances freely and voluntarily escaping the probable danger that may ensue
when resorting to domestic remedies. UNHRC was established with the aim of
stimulating the political and social progress of an individual and enabling them to live a
decent condition of living. One of the methodologies employed by the UNHRC is the
institution of individual complaints. This approach aims to provide citizens the access to
justice which in effect gives opportunity for an individual to bring his claim before the
Committee. However, this remedy has its limitations which means that it is not
guaranteed for all people. These limitations impliedly manifest that the individual
complaint mechanism is not absolute right. These limitations includes the availability of
the remedy to the State Parties involve in the International Covenant on Civil and
Political Rights. The complaint instituted directly to the Committee will be evaluated and
subsequently publish its recommendations relative to the claim which, unfortunately, do
not dispense a legal procedure to enforce the same. Another limitation is that this
mechanism is open for reservation by the State Parties. The effect of this permissible
reservation is that it allows the State Parties to modify or exclude the legal effect of
some particular provisions of a treaty.
 Considering the preceding issue and its alternative remedy, does it upholds the
innate civil and political rights of humans? Does it provide the citizens a venue to
resolve their respective claims and issues? Does it not purports another thought that the
State Party where the claimant refuses to exhaust domestic remedies due to the fear of
reprisal, a manifestation of the failure of the State Party to abide with the international
treaty where it is involved? These are my queries upon reading the subject journal.

United Nations Human Rights Committee has its purpose to foster and
strengthen the Civil and Political Rights of individuals reiterated in the International
Convention on Civil and Political Rights. The employed individual complaint mechanism
has its affirmative manifestation to the development of the status of human rights as it
assists the aggrieved party to the access of justice which is impliedly deprived by him in
his place of origin because of the presence of fear of reprisal from the State’s Agent. It
also allows the UNHRC to evaluate State Parties’ failure to afford its citizens with the
access of justice which in fact must primarily be considered by the State Party.
However, in my view, this mechanism somehow encourages State Parties to ignore the
“red flag” in the promotion of human rights. It is because, the Human Rights
Commission of the State Parties may tend to be reluctant to address the State’s agents
who are violators, as victims opt to resort to international justice being afforded to them.
It allows those agents to continue their illegal system because they cannot be easily be
identified by the domestic level due to the insufficiency of the knowledge of the
Commission relative to the information of the existing violations and violators of human
rights. Moreover, considering that the recommendations of the UNCHR are not legally
binding, it then consequently manifests that the individual complaint mechanism is not
the best remedy to address human rights violations. The Committee will provide only a
mere recommendation towards the violation but does not entail any legal effect to the
State Party, it may or may not consider the Committee’s recommendation. Further, this
mechanism has its shortfall as it allows victims to resort to the individual complaint
lodged to the UNHRC without first exhausting domestic remedies. In fact, victims can
directly resort to the UNHRC and escape the supposed procedural process without any
legal basis. In effect, it defeats the procedural process of resolving the same.
Consequently, victims may raise the “fear of reprisal” in resorting to the United Nations
Committee.

The intent of the creation of United Nations Human Rights Committee and other
international treaties is to balance the scale of justice for domestic and international
level to attain a systematic and order rule of law. Human rights system nowadays
endeavors challenges which needs an integrated effort of the Human Rights
Commission in every State corroborated with the abiding actions of the people. All of
these are vital to provide absolute freedom free from constraints from civil and political
deprivation to foster full potential as citizens.

This journal wants to convey to us the message that there are several remedies
available in order to protect our being and to attain justice. Failure of the state and its
legal orders to secure its people within their control, then international rule of law may
come into play. Access to justice is associated as the equal recognition before the law.
This right guarantee an impartial process and opportunity to receive a fair and just trial
when individual’s rights is at stake. This journal presents that access to justice involves
the availability of other accessible and effective remedy. It further conveys that human
rights system is responsive to all human rights concern, particularly to the fear of
reprisal that prevents victims to outcry their claims and grievances.
Hence, in order to have an effective result of this mechanism, this must be
implemented efficiently by UNHRC and evaluate every evidence adduced by the victim
and allow the concern State to comment on the issue. Effective and impartial tool must
be employed to this mechanism to effectively redress grievances and to provide prompt
action to come up with just and fair effect to the victim. My concurrence with the journal
is 80% as I presume that there are some strategies that needs to be improved. We, as
members of the global community, shall work hand in hand to pinpoint the shortcomings
of the mechanism and employ probable strategies to improve the same. Absence of
access to justice, people will be hindered to carry out their voices, exercise their innate
human rights and impose accountability to violators. As a citizen of the Philippines, I
encourage everyone to speak the truth, plea and undauntedly face the reality.

Persons living in poverty may

choose not to seek justice due to
fear of reprisal or sanc-
tion from more powerful actors
within or outside their
community. Certain groups such
as ethnic minorities or
indigenous peoples may be
reluctant to engage with the
justice
system because of concerns
relating to the respect of their
own cultural or religious val-
ues. The fact that some persons
living in poverty may not have a
fully legal status in
terms of their housing, civil
registration or immigration status
may prevent them from
going to a formal court for fear of
being sanctioned.
Women living in poverty often
face particularly strong social
barriers to pursuing cases. In
some contexts there are strong
cultural norms against women
speaking on their own behalf
Persons living in poverty may
choose not to seek justice due to
fear of reprisal or sanc-
tion from more powerful actors
within or outside their
community. Certain groups such
as ethnic minorities or
indigenous peoples may be
reluctant to engage with the
justice
system because of concerns
relating to the respect of their
own cultural or religious val-
ues. The fact that some persons
living in poverty may not have a
fully legal status in
terms of their housing, civil
registration or immigration status
may prevent them from
going to a formal court for fear of
being sanctioned.
Women living in poverty often
face particularly strong social
barriers to pursuing cases. In
some contexts there are strong
cultural norms against women
speaking on their own behalf