This paper is based on actual experiences of policing and the rule of law in Asia in recent times. The views expressed are based on extensive consultations that have been carried out by the Asian Legal Resource Centre (ALRC) in many parts of Asia, and that have brought together participants from most countries in the region. The discussion is also informed by the provisions in article 2 of the International Covenant on Civil and Political Rights (ICCPR). It is an attempt to place the discussion on policing in Asia within the framework of state parties’ obligations under the ICCPR provisions.
The paper proceeds on the assumption that people in traditional democracies find it extremely difficult to understand what occurs in the name of the rule of law and policing in countries falling outside the category of traditional democracies. The difficulties in understanding suggest the experiential differences of people coming from these different backgrounds. It is presumed that these two experiences are fundamentally different and that serious difficulties in understanding are inevitable. A worthwhile discourse between people from these two backgrounds can take place only with an appreciation of these difficulties. The classification of “North” and “South” suggests a territorial division. The classification of “traditional democracies” and “others” suggests historical, social and political differences, pointing to the development of institutions for the rule of law, and policing in particular.
The reference above to “recent times” is intended to limit the discussion to the present day and avoid entering into other debates, such as that long before the rise of what are now known as traditional democracies, there had prevailed vibrant models of democracies in other places. For example, the political model of Asoka’s time in India during the third century BCE is rightly held to be a rich period of democracy under the conditions of that era. Without in any way undermining the importance of such discussions, this paper will concentrate on the realities that people in Asia are now experiencing in terms of the rule of law and policing.
A caution also needs to be made regarding the use of terms that, in these two contexts, may have different meanings.[i] For example, a police officer may be described as a law enforcement officer. However, a reference to law needs not be part of the description of a policeman in some jurisdictions. For instance, in post-Pol Pot Cambodia, there is little law in existence by way of legal enactment.[ii] Thus, the activities of police officers are not guided by laws. Police officers improvise their role and duties according to circumstances and the policy guidance given to them from above. Even in circumstances where comprehensive laws exist, as in Sri Lanka, these laws can be suspended without much difficulty. Police officers can be required to engage in massive killings, as when, for example, they were called upon to effect the disappearance of a large number of people (officially estimated at 30,000).[iii] Moreover, in all Asian countries, police officers are expected to use coercion, including torture, in criminal investigations. Furthermore, the gap between definitions contained in legislation and the available possibilities of enforcement is often so wide that, if one goes by the legislation only, it can lead to serious difficulties.
In most instances, the concept of order is not understood as order according to the law, but rather as order with or without the law.[iv] Thus, keeping Chia Thye Poh in detention for 26 years without trial was not considered illegal in the case of in Singapore.[v] Anwar Ibrahim of Malaysia is now in prison on the basis of a trial condemned as unfair all over the world. Such acts are justified on the basis of keeping order, and law enforcement officers have to carry out these orders irrespective of the legal issues involved. The military coup in Pakistan in 1999 was also justified on these grounds, and law enforcement officers are now expected to act on the basis of this assumption. The justification for torture in many Asian countries is also based on the view that it is necessary for maintaining order. What follows from this situation is that the rule of law is often sacrificed under the pretext of maintaining order. Police officers are thus seen more as order maintenance officers than as law enforcement officers.
Thus, I believe that the starting point for a meaningful discussion on the rule of law and policing must be the attempt to draw a distinction between order enforcement officers and law enforcement officers. The main differences are as follows:
The central issue in law enforcement under the rule of law is the criminal investigation: the effort to prove that crimes have been committed through the submission of evidence. Order enforcement, however, does not require investigations or proof according to the law. This distinction has huge implications for the understanding of policing functions.
Criminal investigations require training. Training requires basic education that makes participation in this training possible. Investigations also require facilities, such as forensic laboratories. However, these are not requirements when maintaining a police force to keep order by whatever means.
Through law enforcement under a system based on the rule of law, it is possible to eliminate the use of torture and degrading punishment. Among order-enforcers, this is not possible, and such officers have even been used for committing extrajudicial killings—sometimes on a large scale.[vi]
In law enforcement under the rule of law, policing is a function subordinated and controlled by the judiciary and prosecutors. However, officers who are mobilized to maintain order are free from such controls.
The concept of an order enforcement officer is not derived from the concept of the rule of law. The concept of a law enforcement officer, on the other hand, is based on the concept of the rule of law.
Law enforcement under the rule of law presupposes the acceptance of equality before the law. Order enforcement does not need such a prerequisite; in fact, unequal treatment is inherent in the system of order enforcement.
Order enforcement is associated with impunity while law enforcement is not.
Law enforcement can be a transparent process, and the transparency can be maintained by procedural means, such as keeping the required records. Order enforcement does not have such a requirement. Indeed, often an order enforcement officer is discouraged from keeping records.
Communication between the hierarchy and subordinates in a law enforcement agency is usually based on written codes of ethics and discipline. Order enforcement does not require such codes, either written or unwritten.
Table 1: Problems facing the rule of law: A few sample explanations from Asia
| India |
A rule of law model exists, and a strong judiciary upholds it. However, this model is ineffective in dealing with violations against minorities, such as Dalits (a group consisting of 160 million people), indigenous people, and others. Also, in some states, such as Bihar, the rule of law has completely broken down. |
| Pakistan |
A military regime holds power. The rule of law has broken down. In some major cities, a state of chaos exists. |
| Sri Lanka |
Although, in the 1950s, Sri Lanka had a similar model to that of India, the rule of law has broken down in both the North and the South. Evidence includes: more than 30,000 disappearances, endemic torture, an enormous increase in crimes, a lack of accountability of the police and other agencies, and an ineffective system of prosecutions functioning under the auspices of the attorney general. The civil war, though aggravating the situation, is not the cause of this collapse of the rule of law. |
| Cambodia |
A concept of the rule of law does not exist yet; laws are very few and often contradictory. There is policy-level opposition to the development of the law. Criminal investigation facilities hardly exist. There is no criminal investigation training. The quality of prosecutors and judges does not meet basic levels of competency. The monthly salaries of the police, prosecutors and judiciary are very low (US). Extrajudicial punishments, such as beating thieves to death in public places, are common. |
| China |
During the last two decades, the theory of the “rule of law over the rule of man” has been commonly accepted. There is an increase in the body of law. However, the structural development of basic legal institutions is likely to take quite some time. |
| Thailand |
The country accepts the rule-of-law approach and takes many measures to enforce it. Problems arising from the feudal past still exist. Impunity is preserved through attitudes that prevent an efficient enforcement of the law. |
The preceding examples help in understanding some of the contemporary problems relating to the rule of law and policing in Asia. First of all, there is often resistance to development of the law. For example, in Cambodia even more than seven years after the UN-sponsored elections the country has no penal code or criminal procedure code. The reasons for this deficiency are more political than technical. Development of the law is seen as disruptive to the type of social order maintained in the country. Many activities carried out by the newly rich would become impossible if there were an expansion of the law and law-enforcement.
In the second case, in some countries, development of the law is confined to some areas, such as commerce, and restricted in regard to personal liberties. Malaysia and Singapore are good examples of this: economic and commercial development has not brought the people in those countries civil and political rights. In fact, in Malaysia the detention of political opponents to the current regime under the draconian Internal Security Act indicates how deteriorated the situation is there.
A third category is where very basic laws are suspended on the pretext that such laws are detrimental to order. In Sri Lanka, even laws relating to the reporting of deaths to the courts were suspended to allow the police to engage in acts of large-scale murder and the disposal of bodies. Moreover, the national and internal security laws of almost all Southeast Asian countries have resulted in the suspension of many laws that protect people from illegal arrest, detention, privacy, the protection of their living quarters, and other matters.
Another factor that militates against the rule of law is globalization. In Asia, multinational companies want a type of order in which local people cannot protest against the ill effects of their policies and actions. These companies want repressive regimes that protect their interests, rather than democracies in which people enjoy the rule of law. The more misery new economic developments bring to people, the less sympathy there is for the rule of law from those who wield political and economic power. Often, advocacy of the rule of law has become dangerous, and people who work for democracy are exposed to death threats and other risks.
All in all, the most fundamental distinctions between police officers maintaining law and security guards keeping order have been lost. They have been lost to such an extent that from July to December 2000, in Cambodia’s capital, Phnom Penh, “police officers” handed over at least 10 criminals to be beaten to death by mobs. In October 2000, at a detention centre in Sri Lanka known as the Bindunuwewa Rehabilitation Centre, at least 26 inmates were chopped to death while 60 policemen with guns were present and watched the gruesome massacre. And in almost all countries in Asia it is not that rare for special riot squads to attack people who engage in peaceful protest.
Actions to monitor police behaviour
With this background in mind that it is possible to discuss some of the suggestions that have been made to enforce the rule of law in Asia, and to define policing there in terms of the rule of law. One of the popular demands in Sri Lanka during recent times was for the appointment of an independent police commission to control the affairs of the police.[vii]The protest in Sri Lanka is against political control of the police by politicians.[viii] This is quite a common South Asian, and indeed, Asian phenomenon. Thus, there is a link between the concept of the police as enforcers of order and political control of the police. The assumption on which the call for an independent police force is based is detached from the issue of political control: the police will confine their duties to law enforcement under the rule of law. But in Singapore, there is no belief that the police will be independent from the ruling political party. This is also the case in Malaysia. In these situations, there are demands for comprehensive political reforms as preconditions for developing a police force that respects the rule of law.
However, others have pointed out that the mere independence of the police is insufficient, and that the function of investigations of the police must be more closely linked with the work of prosecutors. For example, when the police are left to conduct criminal investigations themselves, they often fail to fulfil their duties, particularly when they are involved in criminal activity. The police then claim that they do not have sufficient evidence to prosecute the criminals. Therefore, it has been suggested that, from the time they receive the first complaint, the police must report all serious crimes to the prosecutors, and that prosecutors must share responsibility for ensuring the satisfactory conduct of investigations. Thus, the established tendency of the police to neglect the law may be negated by the prosecutors’ supervision, so that the “no evidence” excuse can be rejected. Control exercised by prosecutors over the police can also help to eliminate torture, degrading punishment and illegal detention. Ultimately, the principle to be established is that, while the police must be made independent of the politicians, they must also be made accountable to other legally established institutions.
There are three pillars on which the human rights system, as envisaged by the ICCPR, stands:
A functioning and independent judiciary;
A functioning police service obligated to enforce the law;
A functioning and independent system of prosecution.
The following questionnaire provides some indicators for testing the components of a justice system in terms of article 2 of the ICCPR.
Table 2: Indicators regarding the existence of basic legal structures within which human rights can be implemented
The Judiciary
| 1. Do the following courts exist? |
Yes |
No |
| Courts of First Instance |
|
|
| Appellate Courts |
|
|
| Courts with jurisdiction to hear complaints against state agencies |
|
|
| Courts with jurisdiction to hear human rights abuses |
|
|
| Courts for judicial review of legislation |
|
|
| 2. What are the qualifications of judges as compared to a traditional democracy? |
Similar |
Below |
Far below |
| Courts of First Instance |
|
|
|
| Appellate Courts |
|
|
|
| Courts with jurisdiction to hear complaints against state agencies |
|
|
|
| Courts with jurisdiction to hear human rights abuses |
|
|
|
| Courts for judicial review of legislation |
|
|
|
| 3. What are the educational qualifications of judicial officers? |
University degree |
High school certificate |
Lower than high school certificate |
Primary school certificate |
| Higher ranks |
|
|
|
|
| Middle ranks |
|
|
|
|
| Lower ranks |
|
|
|
|
| 4. Is there a defined procedure for appointment? |
Yes |
No |
| Courts of First Instance |
|
|
| Appellate Courts |
|
|
| Courts with jurisdiction to hear complaints against state agencies |
|
|
| Courts with jurisdiction to hear human rights abuses |
|
|
| Courts for judicial review of legislation |
|
|
| 5. Are the powers of courts clearly defined? |
Yes |
No |
| Courts of First Instance |
|
|
| Appellate Courts |
|
|
| Courts with jurisdiction to hear complaints against state agencies |
|
|
| Courts with jurisdiction to hear human rights abuses |
|
|
| Courts for judicial review of legislation |
|
|
| 6. Is there a defined procedure for the hearing of cases? |
Yes |
No |
| Courts of First Instance |
|
|
| Appellate Courts |
|
|
| Courts with jurisdiction to hear complaints against state agencies |
|
|
| Courts with jurisdiction to hear human rights abuses |
|
|
| Courts for judicial review of legislation |
|
|
|
7. What is the access to courts as compared to a traditional democracy? |
Defined |
Not defined |
Easy |
Not Easy |
| Courts of First Instance |
|
|
|
|
| Appellate Courts |
|
|
|
|
| Courts with jurisdiction to hear complaints against state agencies |
|
|
|
|
| Courts with jurisdiction to hear human rights abuses |
|
|
|
|
| Courts for judicial review of legislation |
|
|
|
|
| 8. What is the access to lawyers? |
Defined |
Not defined |
Easy |
Not Easy |
| At pre-trial stage |
|
|
|
|
| At trial stage |
|
|
|
|
The Police
| 1. Does a structure exist for police as separate from political structure? |
Yes |
No |
| In writing |
|
|
| In practice |
|
|
| 2. Are the functions of the highest officer in the force defined? |
Yes |
No |
| In writing |
|
|
| In practice |
|
|
| 3. Is the relationship between the highest officer and the next highest-ranking officers defined? |
Yes |
No |
| In writing |
|
|
| In practice |
|
|
| 4. Are the basic duties of all officers at all ranks defined? |
Yes |
No |
| In writing |
|
|
| In practice |
|
|
| |
Yes |
No |
| 5. Does an adequate penal code exist? |
|
|
| 6. Does an adequate criminal procedure code exist? |
|
|
| 7. Are law and order functions and criminal investigation functions differentiated? |
|
|
| |
Yes |
No |
To some extent |
| 8. Do the police engage in surveillance of civilians because of their legitimate political activities? |
|
|
|
| 9. Are the police officers of higher ranks appointed on the basis of their political loyalties? |
|
|
|
| |
One of subordination |
Of superiority |
Police always obey judicial orders |
Police obey only if they wish |
| 10. What is the relationship between the police and judiciary? |
|
|
|
|
| 11. What are the educational qualifications of police officers? |
University degree |
High school certificate |
Lower than high school certificate |
Primary school certificate |
| Higher ranks |
|
|
|
|
| Middle ranks |
|
|
|
|
| Lower ranks |
|
|
|
|
The Prosecution
| 1. Is the prosecution system defined? |
Yes |
No |
Partially |
| In writing |
|
|
|
| In practice |
|
|
|
| 2. Are functions of the prosecution defined? |
Yes |
No |
Partially |
| In writing |
|
|
|
| In practice |
|
|
|
| 3. Are there criteria for prosecutors in deciding to prosecute cases? |
Yes |
No |
| In writing |
|
|
| In practice |
|
|
| |
Higher |
Lower |
Equal |
| 4. As compared to the judiciary, what position do prosecutors enjoy? |
|
|
|
| 5. As compared to the defence lawyers, does the prosecutor stand in a higher position in the eyes of the court? |
|
|
|
| |
Yes |
No |
Sometimes |
| 6. Do prosecutors have pre-trial conferences with judges about cases? |
|
|
|
| |
Yes |
No |
| 7. Do prosecutors guide enquiries into police activities? |
|
|
Special importance of the judiciary
Alongside the prosecution, the other institution that is most relied upon to ensure that the police act within the rule of law is the judiciary. In this regard, the Supreme Court of India has made the most positive contribution. In numerous cases, this court has intervened to prevent the use of the police for illegal purposes by certain governments. Of particular importance is the way in which the Supreme Court intervened to stifle the authoritarian manoeuvres attempted by the government of the late Indira Gandhi. It systematically opposed by the use of emergency regulations, thereby establishing for itself a prestigious status as the guardian of human rights and the rule of law in India. Even on such everyday affairs as arrests and detention, it has intervened to ensure police discipline. One famous case is that of D K Basu vs. State of West Bengal.[ix] In that case the court issued the following instructions, and also sought the assistance of the media to broadcast them repeatedly throughout India. In many public places in India, they are still exhibited. They are:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) The police officer carrying out the arrest shall prepare a memo at the time of arrest, and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed as soon as practicable that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal aid organisation in the district and the police station of the area concerned telegraphically within a period of eight to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officers in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest, and major and minor injuries, if any are present on his/her body, must be recorded at that time. The “inspection memo” must be signed both by the arrestee and the police officer effecting the arrest, and its copy must be provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody or by a doctor on the panel of approved doctors appointed by the director of health services of the concerned state or union territory. The director of health services should prepare such a panel for all provinces and districts as well.
(9) Copies of all the documents, including the memo of arrest referred to above, should be sent to the magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation.
(11) A police central room should be provided in all districts and state headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest; and at the police central room, the information should be displayed on a conspicuous notice board.
In Sri Lanka too, the Supreme Court has tried to intervene in matters relating to violations of human rights by the police. Sri Lanka’s constitutional provisions allow complaints against fundamental rights violations to be lodged before the Supreme Court.[x] This has become a popular form of litigation, and thousands of cases have been filed under these provisions. Most respondents to the cases are the police. In numerous instances, the courts have declared that citizens’ rights have been violated and have ordered compensation. Despite many limitations placed on this form of legal redress, such as the time limit that is allowed for filing cases, this mode of litigation is a useful device that may be introduced elsewhere with suitable modifications. In many Asian countries—for example, Thailand, Cambodia, Singapore and Malaysia—there are no special provisions under which a violation of fundamental rights is justiciable under local laws. Singapore and Malaysia are not signatories to the ICCPR: thus, in these countries, there is no obligation under treaty law to protect human rights. Though Cambodia has ratified all UN conventions relating to human rights and recognized them in the Constitution itself, there is no legal provision for a citizen to come to court and complain against the state. In these countries, there are no known cases where citizens have sought redress from local courts, under treaty law or customary law, for human rights violations.
Other important institutions
In addition to the judiciary, many other institutions have evolved in Asia for dealing with the violation of rights by the police. One such example is the Presidential Truth Commission on Suspicious Deaths in South Korea, which was inaugurated in August 2000. The following information about this institution may be relevant:
The major functions of the commission outlined in the Special Act to Find the Truth on Suspicious Deaths and its Enforcement Decree (also known as the Presidential Decree) are as follows:
- To select cases which merit investigation;
- To investigate suspicious deaths;
- To provide information and consultation related to suspicious deaths;
- To receive and process applications related to suspicious deaths;
- To take charge of matters related to restitution and compensation for victims whose death has been acknowledged by the commission as having been due to their involvement in the democratisation movement and having resulted from the abuse of power by the government in its attempt to suppress the movement;
- To take charge of matters related to compensation and necessary assistance to people who testify about a suspicious death or who provide evidence or documentation;
- To take charge of matters related to compilation and the announcement of reports on suspicious deaths at the end of the investigation;
- To take charge of matters related to finding the truth about suspicious deaths.[xi]
A similar institution was the Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in Sri Lanka.[xii] In fact, three commissions were appointed, constituted according to geographical areas, and a fourth commission was later established to deal with the remaining cases. The commission’s mandate was to inquire into (a) people who were involuntarily removed, allegedly by agents of the State (police, army, etc.) and paramilitary groups in collaboration with them, or by subversives or unknown persons, and who subsequently disappeared (in the sense that the present whereabouts of the person are unknown); (b) people allegedly held in detention in unauthorized army camps or police stations, and who subsequently disappeared (i.e., the present whereabouts of the person are unknown).
Another institution that has proved valuable in safeguarding human rights is the national human rights commission, which has become a common phenomenon in many Asian countries.[xiii] These commissions are mandated to inquire into and report on human rights violations. Thus, these bodies can become a means of monitoring the police’s observance of the rule of law. In this regard, a notable development was the establishment of the Advisory Council of Jurists on 9 September 1998, at the third annual meeting of the Asia-Pacific Forum of National Human Rights Institutions, in Jakarta, Indonesia. The council will advise the forum and its member national human rights institutions, at their request, on the interpretation and application of international human rights standards. In addition to developing regional jurisprudence on international human rights norms, the council will further strengthen the effectiveness and capacity of national human rights institutions in the region. The forum’s secretariat will support the work of the council.
In addition, non-governmental organizations (NGOs) and other civil society actors have taken many initiatives to monitor human rights violations by the police, and to ensure that the rule of law is respected. In most Asian countries there are NGOs engaging in activities such as making legal representations on behalf of victims of human rights abuses, collecting documentation, maintaining databases, and providing humanitarian assistance. Regionally, there are also support groups. The AHRC Urgent Appeals programme provides a wide network for sharing information and pursuing joint actions on behalf of those who suffer abuse at the hands of law enforcement authorities.[xiv]
There are also education programmes for law enforcement officers about human rights. The Bangalore Law School programme in India is one noteworthy example. Many NGOs also have programmes for this purpose. A criticism levelled against these programmes, though, is that education is no substitute for reforms. Education can, at best, supplement needed reforms.
A review of actions to improve policing
The actions mentioned above, as well as many others, are taking place regularly. What is their impact? Given the massive deterioration of the rule of law in Asia and the dismal record of the police, it is difficult to conclude anything other than that the impact of the positive actions described above is very limited. These actions, effected with great effort and often much courage, nonetheless have failed to address the problem and, at best, have only peripheral effects.
It can be said without the slightest hesitation that all Asian states have failed to comply with article 2 of the ICCPR, which requires an effective remedy for the violation of rights, “Notwithstanding that the violation has been committed by persons acting in an official capacity.”
In terms of article 2 of the ICCPR, the problem of policing in most Asian countries can be summed up as follows. The prosecution of crimes and human rights abuses fails when there is insufficient evidence to proceed. The gathering of evidence presupposes the existence of a functioning criminal investigation agency. The functioning of such an agency presupposes that the agency has the full legal powers to conduct these investigations, and that such powers are not suspended arbitrarily by the law or political interference or any other means that the agency is unable to overcome. The functioning of this agency also presupposes that the agency has the human resources and technical capacity to function, and that it has a system of internal controls regarding its professional duties. Most Asian countries do not have a criminal investigation system in which all or most of these requirements for the proper functioning of a criminal investigation system exist to any satisfactory degree. Thus, most Asian countries do not have a functioning criminal investigation agency, which means that they do not a have policing system that meets the criteria for proper functioning. Another way of saying the same thing is that most Asian countries have a malfunctioning policing system.
A malfunctioning policing system is not only a deficiency in a society, but also a threat to that society. It encourages crimes and weakens and even destroys people’s faith in the possibility of legal redress against criminals. It causes people to feel intimidated by criminals as well as by the police, and helps to build bridges between big crime and the police. It allows political revenge against people holding opposing views, encourages corruption and endangers free and fair elections, thus making the realization of the rights enshrined in the ICCPR very difficult, if not impossible, to be achieved. These numerous factors make any expectations about the rule of law unrealistic. In fact, in several Asian countries, the police are treated as a serious threat to the rule of law.
Article 2 of the ICCPR makes it obligatory for all state parties to provide an effective remedy for the violation of rights. The absence of a functioning police system indicates a failure to provide an effective remedy as required by article 2. The question is how can we address this problem?
The human rights model that exists today is not capable of dealing with this issue. It presumes the existence of a functioning police force, at least to a satisfactory degree. The mechanisms established to monitor the compliance of state parties, such as the UN Human Rights Committee, the UN Human Rights Commission and other bodies, examine the violations of rights and make recommendations for correction where violations have occurred. When these recommendations are made, it is presumed that the state party to which these recommendations are addressed possesses the legal mechanisms, including a functioning policing system, to put these recommendations into effect. As I have shown, for most Asian countries, such a presumption is baseless.
This presumption is based on the experience of traditional democracies, for the existing human rights model is based on their state structures and practices. While there are violations of rights in these democracies, a basic structure exists for dealing with these violations.
Thus, the existing human rights model is insufficient to deal with the problems examined above, and therefore, the existing human rights model needs to be expanded. The following are some suggestions for the expansion of the existing human rights model, and for ways to achieve this aim:
The jurisprudence relating to article 2 of the ICCPR needs to be explored and developed;
The UN mechanism for human rights monitoring must scrutinize the performance of state parties regarding article 2 of the ICCPR;
Human rights educational institutes must change their education curriculum to include a more comprehensive exposition of the implications of article 2 of the ICCPR;
It is more important to encourage the reform of law enforcement agencies than to provide them with human rights education;
Human rights NGOs and civil society organizations must play an active role in exposing the limitations of the existing human rights model, and in exploring ways to initiate change. NGOs in traditional democracies must work in partnership with NGOs outside of their countries to achieve this objective;
International agencies should make financial resources available for the achievement of this objective; and
The Office of the UN High Commissioner for Human Rights should initiate activities and studies to promote this aim.
End Notes
This is a revised version of ‘Police and the rule of law in Asia’, published in Human rights and the police in transitional countries, L Lindholt et al (eds), Kluwer Law International, Netherlands, 2003, pp. 29–49.
[i] The different understandings of common terms depending on one’s experiences are elaborated on in Basil Fernando, ‘Judicial and legal reform: Preparing the field’, Rule of law, human rights and legal aid in Southeast Asia and China: Report of the practitioners’ forum, International Human Rights Law Group & Asian Human Rights Commission, Hong Kong, 2000, pp. 1–5.
[ii] Basil Fernando, Problems facing the Cambodian legal system, Asian Human Rights Commission, Hong Kong, 1998.
[iii] Sri Lanka: Disappearances and the collapse of the police system, Asian Human Rights Commission, Hong Kong, 1999. For further details on disappearances, see [http://www.disappearances.org].
[iv] Basil Fernando, ‘Disappearances of persons and the disappearance of a system’, in Sri Lanka: Disappearances and the collapse of the police system.
[v] ‘Singaporeans demand repeal of ISA’, Human Rights Solidarity, vol. 9, no. 1, January 1999. C S Juan, ‘Looking into the past and struggling for the future: Prospects for democracy in Asia’, Human Rights Solidarity, vol. 9, no. 10, October 1999, pp. 19–20.
[vi] Most recently in Thailand, where over two thousand alleged drug dealers were killed with police complicity this year. See further the Asian Legal Resource Centre’s special report, ‘Extrajudicial killings of alleged drug dealers in Thailand’, article 2, vol. 2, no. 3, June 2003.
[vii] The independent National Police Commission was in fact established in December 2002.
[viii] Suggestions for police reforms in Sri Lanka: Final statement of the consultation on police reforms in Sri Lanka, Asian Human Rights Commission, Hong Kong, 1999.
[ix] D K Basu vs. State of West Bengal, All India Reporter, 1997, 610 SC to 628 SC.
[x] Article 126 of the Constitution of Sri Lanka.
[xi] For more information, see [http://www.truthfinder.go.kr].
[xii] For a lengthy report on disappearances in Sri Lanka, see the Cyberspace Graveyard for Disappeared Persons at [http://www.disappearances.org].
[xiii] For details about commissions, see National Human Rights Institutions at [http://www.alrc.net].
[xiv] For details, see Urgent Appeals at [http://www.ahrchk.net/ua].
