Protecting victims requires defence of principles and effective institutions
Asian Human Rights Commission
December 10, 2003
Today the very foundation upon which human rights stand is under attack. Challenges to human rights were once largely restricted to relative grounds, such as culture and religion. This is no longer the case. Now the absolute principles themselves are being treated as inconvenient and irrelevant.
Torture
Defence of human rights principles requires uncompromising defense of absolute rights; among these rights is the right to freedom from torture. The right to be safe from torture is among those most deeply entrenched in human rights theory and practice. If torture is permitted, everything else is possible. In recent years, however, the absolute prohibition against torture has been steadily undermined, under the guise of the war against terrorism. Alarmingly, in more developed democracies, particularly the United States, several centuries of international jurisprudence are being brushed aside in favour of politically expedient and highly dangerous policies and regulations.
The argument that torture is justified has both corrupted intellectual debate and led to increased torture throughout the world. While in the United States torture is proposed as a means to defeat terrorists, in other countries it is justified on many grounds, such as a means to fight growing organised crime. As a result, other abuses – particularly extrajudicial killings – are also on the rise, and are likewise openly justified by the perpetrators. Behind these developments lies a change in the way punishment is itself being understood. Torture, murder and other extrajudicial means are being openly advocated as a means to deter others from crime. The guilt or innocence of the accused is of little relevance. Law enforcement agencies are being freed from the need to produce evidence of guilt, and from the fear of punishment should it be found that they acted outside of their authority. Impunity is becoming ideologically acceptable. The draconian powers enjoyed by investigators and prosecutors in earlier centuries are being steadily reinstated.
Everyone concerned with the promotion of human rights around the world must now fight to uphold the United Nations Convention against Torture. The protection of every human from torture, without conditions, is imperative if absolute human rights principles are to be saved from the current onslaught.
Rule of law
As the absolute prohibition of torture is slighted, so too are other fundamental principles to the rule of law. These relate in particular to fair trial and judicial independence. Internationally, there have been calls to abolish the Geneva Conventions on war crimes. Domestically, there have been numerous proposals to reform legal systems in a manner that would seriously undermine the rule of law.
Asia’s new autocrats are threatening the rule of law by destroying its institutions. This they are doing in two ways. First, they are displacing existing institutions. Secondly, they are refusing the build new institutions, or rebuild old ones. Once these institutions are rendered dysfunctional, they are free to act without controls. They make arbitrary decisions that affect the day-to-day lives of millions, who have no place to go to complain or seek redress. Those who dare complain are told to go to the legal authorities, which have been incapacitated. Proper elections for new governments also cannot be held, as no agency exists to guarantee a free and fair ballot or give citizens an effective means to complain about wrongdoing.
The institutions for policing and prosecutions in many Asian countries are also being made inoperative. Burgeoning corruption, collapsing command systems and declining disciplinary control are affecting people’s capacity to make complaints, ensure proper investigations and effective prosecutions. A review of some country situations demonstrates these points.
India
India, which once boasted an independent judiciary, is now facing a nationwide crisis of confidence. Allegations of corruption are growing across all levels of the judiciary. No serious attempts have been made to investigate; the judiciary has no mechanism to investigate itself. To the extent concerns about this situation are expressed on paper, they have no effect in reality. Meanwhile, the Malimath Committee has proposed abandoning many of the most established principles of fair trial as a way to deal with growing crime throughout the country.
Sri Lanka
In neighboring Sri Lanka, an impeachment motion against the Chief Justice was filed in November 2003 with the signatures of about one hundred members of parliament. Even before this there had been an impeachment motion filed against the same Chief Justice but it had not been pursued for political reasons. The President has now exercised her political power to protect the Chief Justice. Thus, serious allegations against the highest judicial officer in the land have been reduced to political bargaining chips. Meanwhile, a survey conducted by a reputable organization has found that the public perceives the judiciary to be the second most corrupt institution in the country. This may explain the premature resignation of the country’s senior-most judge, Mark Fernando.
The judiciary in Sri Lanka, like India, is incapable of addressing its own institutional defects. With its highest member defending himself from allegations of misconduct, internal reforms cannot even begin. The judiciary’s inability to respond to widespread criticism is demoralising both the profession and the country’s citizens. As a result, people are increasingly seeking to resolve their grievances from outside the law, and so crime is on the increase. The noise being made about the need to deal with rising crime will remain nothing more than that until the problems within the judiciary are addressed.
Malaysia
Malaysia is another country where the independence of the judiciary has been seriously eroded over a number of decades. This situation has worsened in recent years, as evidenced by a number of political show trials. Judges making politically favourable decisions have reportedly been promoted ahead of others. In this regard, Dato’ Param Cumasraswamy, the former UN Special Rapporteur on the Independence of Judges and Lawyers, has said that the
“Integrity of the Malaysian judiciary has been a concern since 1988. Very recently, leapfrog promotions of three judges involved in the Anwar Ibrahim trials and appeals were perceived as rewards for having delivered what the Executive wanted. The Bar Council publicly protested and called for an extraordinary general meeting to adopt resolutions calling for disclosure of the criteria applied for the promotions and the setting up of an independent judicial services commission to select and recommend judicial appointments, promotions and transfers� [but] the required quorum of 2222 could not be mustered.”
Singapore
In Singapore citizens have virtually no means to challenge the authority of the state through the courts. Possibilities are mostly restricted to habeas corpus applications, and the success rate of such applications is very low. The state has numerous well-rooted means to punish its political opponents, and there is no effective challenge to its authority based on human rights principles. The authorities do not accept the principle that their powers should be limited by human rights standards. The very concept of independent institutions has been alien to the country for several decades.
Indonesia
That the Indonesian judiciary is enormously corrupt is a well-known and unchallenged fact. However, no strategy exists to change this situation. Both the corruption itself and lack of strategies are the product of a 35-year dictatorship that outlawed independent institutions and served as a model for autocrats throughout the region. Though the dictatorship has fallen, its legacy is frighteningly persistent. Most laws and criminal procedures being used today were devised during the period of dictatorship. There are still no effective legal mechanisms through which citizens can assert their rights; people’s rights are effectively denied due to the absence of institutions to protect them.
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Pakistan
The laws and procedures that now exist in Pakistan amount to a bewildering jumble. The judiciary is now subservient to a military dictatorship, which has concealed itself under some sham electoral procedures. Shariat Law is in some areas overtaking civil procedure. In practical terms, no independent institutions for protection of basic human rights exist.
Nepal
In recent years Nepal has experienced rampant extrajudicial killings, enforced disappearances, torture and arbitrary detention undertaken by all parties to the civil conflict there. The justice system, which is dominated by feudal agencies, has been a complete failure. Although the state has ratified numerous United Nations instruments, it has not properly brought them into domestic law or attempted to hold its agents accountable for violations of rights guaranteed by these covenants. A case in point is the Torture Compensation Act, under which the perpetrators cannot be punished and the victims can receive only minimal compensation.
Internal security laws
Throughout Asia, laws intended to violate rather than protect human rights are accompanying failed justice institutions. Among these are the Internal Security Act in Malaysia and Singapore, the National Security Law in the Republic of Korea and the Prevention of Terrorism Act in India, all of which permit detention without trial and threaten the rule of law.
A ray of light came from Hong Kong SAR earlier this year, however, when more than half a million people protested against the government’s proposed national security legislation there. The protest forced a government backdown, although concerns remain about how the legislation may be reintroduced. The marchers also called for a more democratic and accountable system of government – a sentiment underlined by the record turnout at the district council elections in November, in which pro-democracy candidates won a large number of seats.
The need for protection
Despite occasional moments of triumph, the defence of human rights has become extremely difficult in Asia. The protection of rights presupposes the existence of an institutional framework, adequate and credible enough to deal with complaints of violations. State parties to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights have undertaken under common article 2 to establish judicial, legislative and administrative mechanisms to protect the rights in those agreements. In Asia, however, to date all states have failed to honour this obligation.
This situation poses a challenge to both the international community and civil societies. All groups involved in the protection of human rights need to develop ways to intervene much more effectively in human rights cases and ensure states’ compliance with article 2. In particular, the management of United Nations agencies for effective intervention needs to be re-examined in light of the dramatic changes in modern communication. The Commission for Human Rights and Human Rights Committee were born in an era very different from today. Enormous possibilities now exist to observe and track human rights conditions in particular countries and offer various forms of assistance to bring about change, or to advocate for change from outside where a state is resistant. However, these mechanisms have not been kept up to date and as such their full potential has not been realised. The Office of the High Commissioner for Human Rights should play a leading role in initiating dialogue and debate about how to harness modern communications technology and other means to make human rights work more effective. It should also work to bring article 2 to the foreground of all work undertaken by international human rights agencies.
But for the immediate future, the defense of human rights will depend heavily on people themselves. This is not a time when we can afford to wait for state initiatives. People must be the chief defenders of their rights. Human rights organisations in particular should abandon the old model of dependence on the state, and even other outside agencies, and develop their own local initiatives. They must also seek to be broad-based, rather than confined to small groups, particularly where these are dominated by the more affluent sections of society.
A close bond between the victims of violations and human rights organisations is essential. It is the victims who know what is really happening. This work must concentrate on bringing the victims’ knowledge and opinions to the fore. Where the intense suffering of victims is brought out and developed through campaigns, it necessarily leads to reactions, and opens the way for criticism and change.
However, victims can come forward only when a protective umbrella exists to shelter them from attacks by perpetrators and their allies. To have such an umbrella requires a number of things. First, the existence of solidarity groups across a country capable of knowing about violations of rights and being able to reach the victims. Secondly, monitoring and recording mechanisms where violations have occurred. Thirdly, urgent appeal systems that can bring violations to the notice of the world in a short time. Fourthly, legal support groups that can overcome the limits of existing practices among the legal profession which retard the victim’s capacity to seek justice. Fifthly, the use of the media and other modern communications, which help to keep the flame of human rights alive in the hearts of the people, despite all the dismal failures they may have experienced.
Above all, everyone must get involved in criticising the rule of law situations in their countries and engage in effective advocacy to ensure change. Unless basic defects in judicial institutions are addressed, all other work advocating for the rights of one person or group will be meaningless. Human rights groups throughout the world are now coming to realise that their failure to do such work to date has rendered all their other activities ineffective. A global shift in approach may bring about hope for renewed defence of the principles of human rights in this hour of their greatest peril.
10 December, 2003; Hong Kong SAR
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