Right to justice

[Jonathan Buhacoff]

The proposed right:

No person shall be denied the cooperation of the government to seek justice on behalf of themselves or others whose rights have been violated. No person shall be obligated to secrecy regarding violation of rights or criminal acts, or conspiracy to violate rights or commit criminal acts.

Intent:

Any person whose rights have been violated has the right to seek justice, and any person who has knowledge of a violation of someone’s rights has the right to seek justice on their behalf.

Seeking justice does not require the consent of the victim. If the victim is too scared or injured or otherwise unable to speak up and fight for their rights, including being dead, the victim still benefits from the right to justice when others seek justice on their behalf.

Furthermore, while the government has limited resources and must prioritize work, it cannot outright refuse to investigate allegations of violations of rights or criminal acts, and if an investigation yields evidence the government cannot refuse to prosecute if at least one person petitions the government to prosecute based on the evidence. The government can schedule and prioritize but it cannot simply refuse to be involved because it’s the only legitimate mechanism to conduct a trial and punish the convicted.

The right to justice prevents any contracts with non-disclosure agreements from being enforced by the justice system to silence whistleblowers who disclose violation of rights or criminal acts or conspiracy to violate rights or commit criminal acts.

The right to justice is one of the few rights that impose an obligation on others to participate in an investigation or a trial as a witness or as a member of the jury. To deny cooperation would be a violation of the victim’s right to justice.

The right to justice does not impose an obligation on others to violate anyone’s rights or break the law. The pursuit of justice must happen with respect for everyone’s rights and the law.

Discussion:

The right to justice makes everyone in society a potential participant in the continuous effort to seek justice. When someone’s rights have been violated, everyone who knows about it has legal standing to petition, to file a lawsuit, or to take other actions to seek justice on behalf of the victim. This is different than the current situation in the United States and elsewhere, in which people who haven’t been directly harmed by someone’s actions don’t have “standing” to pursue justice. The right to justice means that anyone who is aware of a violation of rights can petition the government to investigate it, and the government must cooperate — meaning the government cannot refuse to investigate an allegation because a person doesn’t have “standing”.

However, the right to justice does not grant any permission to commit crimes or violate someone else’s rights in the pursuit of justice, and neither does it create any obligation on anyone to seek justice nor break any agreements if they don’t want to.

Whistleblowers

The need of the people to expose violation of rights, crimes, and corruption in government is greater than the need of the people to keep information confidential. See also the liberty of confidentiality.

The right to justice allows a person to breach any confidentiality agreement that was used in furtherance of a violation of rights and to disclose information protected by a non-disclosure agreement when that information is evidence of misconduct or a violation of rights. Contracts in furtherance of a crime are not enforceable, so if the disclosure or breach of contract reveals criminal misconduct, including misconduct by a government official, employee, or contractor, the confidentiality agreement cannot be enforced in that instance. True whistleblowers are protected by the right to justice because when the crime is exposed, no private organization or government agency may seek any damages or punishments against the whistleblower for the disclosure.

When the right to justice involves disclosure of classified information, the fault lies with the government official, employee, or contractor whose misconduct prompted the disclosure, not with the person or people who disclosed the information to expose the misconduct.

It is the duty of every government official, employee, or contractor handling or generating classified information to uphold the highest ethical and legal standards of conduct so the information stays confidential and is not disclosed for the purpose of exposing misconduct including criminal activity and corruption. It is also the duty of every government official, employee, or contractor to expose misconduct in government, even — or especially — if it involves classified information.

The Investigative Branch must make an officer or agent available with clearance to receive classified information from the public, for the purpose of determining whether there is evidence of a crime committed by a government official, employee, or contractor, and opening or adding to an investigation into that manner; for returning any other classified information to its agency of origin; and for providing a receipt to the person who returned the classified information. This service provides a safe way for people to both report misconduct and return classified information or information that might be protected by a non-disclosure agreement, without creating any further liability for themselves for treason (in the case of classified information) or breach of contract (in the case of any private non-confidentiality agreement).

Attorney-client confidentiality

The attorney-client privilege is limited to private personal or business matters, and does not apply to information the attorney obtains or receives regarding a violation of rights or other criminal act that was committed or that is being planned. An attorney may keep private information about unlawful acts that are not a violation of rights or crimes, such as driving faster than the speed limit when that did not result in any collision, or using recreational drugs when nobody else was harmed, etc.

See also attorney-client privilege.

Comparison with the United Nations

Article 8 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” This relates to the right to justice, but we frame it differently because the remedies available to courts are allowed by law and if whatever is deemed to be an effective remedy isn’t allowed by law, a judge cannot order it. If the person who committed the criminal act cannot be identified or found, the government cannot punish them. Instead, the right to justice promises the cooperation of government in seeking justice. This means the investigative branch may investigate, the executive branch may arrest, the judicial branch may conduct a fair trial, and the legislative branch may enact changes as needed to correct any deficiencies in the law moving forward. In the case that the perpetrator cannot be identified or found, the government can provide whatever remedies are possible.

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