An Article by Basil Fernando
This is a speech delivered by Basil Fernando at The Fifth Human Rights Cities Forum- As the Keynote address for the Special Session on Asian Human Rights – Human Rights in Asia and Vision of Human Rights City- 16th May 2015.
It is useful, I think, to recall the aims of the undertaking of the Asian Charter on Human Rights. By the late 1990s there was a widespread concern about the problems associated with obvious failures to realise human rights in almost all countries of Asia. By then many organisations and individuals had contributed a great deal to spread the gospel of human rights in all Asian countries. The academics, some persons from the legal professions including judges, and above all persons working for the various human rights organisations had done a great deal of work to introduce the various UN Conventions on Human Rights in their countries. Many governments also responded to the calls of the United Nation’s human rights bodies for the ratification of these Conventions. With a few rare exceptions, most countries have ratified the International Convention on Civil and Political Rights and also the International Convention on Economic, Social and Cultural Rights. The Convention Against Torture and Ill Treatment is another Convention that has been ratified by many countries. As time went by there were adoptions of Conventions relating to the child and also regarding various problems relating to the rights of women. Further most countries have also included reference to human rights into their constitutions and several countries have enshrined Human rights in their Bills of Rights. Added to this, there have been considerable achievements in the area of education on human rights. In this area civil society organisations and the academic communities that played a greater role.
However, what has been acutely felt everywhere is that while the rhetoric of human rights has become a common place in most Asian countries, there had been hardly any progress in the actual implementation. Thus although the ratification of UN Conventions, coupled with education on human rights, had become widespread, it had made almost no impact at all in the area of implementation. This gap was a disturbing factor. Concern was expressed mostly by the victims of human rights abuse of one sort or the other and also be persons who were pursuing redress for such violations, such as lawyers, as well as human rights organisations who often act as the friends of the victims. This absence of implementation was felt even heavier in situation where there were grave abuses of human rights taking place on a large scale. For example, large scale enforced disappearances, which have become quite a visible problem in many Asian countries, raised the absence of any kind of mechanism to provide redress for such a gross abuse of human rights.
A further factor that aggravated the situations was that several authoritarian regimes, either military dictatorships, or other forms of authoritarianism had become part of the political reality in several of the Asian countries. For example, since 1962 Burma has remained under a military dictatorship and so was Indonesia in 1965. In Pakistan there have been several military takeovers since independence in 1948, so that the total period spent under military dictatorships is more than half of the entire period since independence. There was the authoritarian regime of Ferdinand Marcos in the Philippines and there were also threats of authoritarianism under the Indira Gandhi regime in India. Similar tendencies could also be seen in Sri Lanka which had abandoned genuine democracy, through a change of a democratic constitution by way of the introduction of what is called an executive presidential system into a virtual authoritarian regime. Meanwhile, a unique experience of enormous catastrophe for human rights was experienced in Cambodia form 1975 to 1979, which left, according to conservative estimates, over 1 million people out of the 7 million populations being exposed to death either by extra judicial killings or due to starvation. Meanwhile Singapore and Malaysia developed their national security laws in a manner that denied all the human rights of persons against whom those laws were applied. Singapore has even refused to be a signatory to the international Covenant on Civil and Political Rights, nor any of the other conventions of the United Nations. Besides this, China and Vietnam have been under communist regimes where even the term human right is regarded as subversive. In Korea there was the reality of communism in one part and several military dictatorships in the other. This overall reality in Asia was a distinct contrast to the expectations raised by the passing of the United Conventions.
Thus this Asian reality needed to be confronted. It was decided that first it was necessary to try to understand the means by which human rights have been denied to the people in the Asian countries.
- What confined human rights to mere rhetoric?
- Why was implementation so difficult?
- What problems and issues need to be addressed, if human rights are to be practically realized?
These were the important questions that required answers. The discourse on an Asian Charter was initiated with the view to find answers to these very questions. Having posed these questions, the next issue was as how to find the answers. We did this by using one of the cornerstones of the AHRC’s strategies which are the Folk Schools. What this meant was that answers to these questions should be found by a process of extensive consultations with people who have been involved in work relating to human rights from all countries in Asia. On the basis of this understanding, many consultations were arranged regionally and also within countries.
The signatures attached to the final version of the Asian Charter shows a long list of organisations and individuals but many others participated in the consultations, which were held in several parts of Asia and also in various countries.
What the participants in these consultations said clarified the causes or the reasons for the dismal gap between the ‘talk on human rights’ and the actual practical denial of human rights almost everywhere in Asia.
What the consultations also revealed was that the institutional framework of governance in the different countries was based on principals and designs which are quite opposed to the principals and designs required for the actual implementation of human rights. The consultations revealed, for example that torture is the main instrument of criminal investigation in most Asian countries. This meant that the police departments used models of training of police officers where little importance was given to understanding the various forensic sciences and scientific methods of investigations into crimes. Instead, most policemen who were selected for the task of criminal investigations, did not even have adequate formal education and they were required to learn the “habits of the trade” by following the example of officers who were already in the service. This meant that what the officers already in service did in their day to day practice was what the new officers were also expected to do.
The officers already in service extensively use torture if they need to gather any information. Persons with extensive knowledge about how these investigations were carried out explained, and in great detail, during our consultations, how such “investigations take place”. It was even revealed that the officers were not engaged in a search for actual factual details of how a crime had taken place. Often they were acting with a view to create an impression that something had been done about the crime. Particularly, with a view to provide reports to the courts and also to their superior officers. Details about cases revealed that the beginning of an investigation is often done by way of torture of a suspect who the investigators expect to provide some information about the crime. If even after torture no information is actually forthcoming, which is often the case, because the suspects tortured have no knowledge about the crime, then the police officers themselves write down “confessions” and had the victims of torture sign these documents. The absence of any curiosity on the part of police officers about the details of how a crime has taken place is often a result of other extraneous causes, such as the common practices of bribery and corruption which have been overwhelmingly spread throughout policing departments in most Asian countries. All these and more details revealed to us that these police officers are not in a position to respect the rights of victims, and very often even the rights of complainants, due to systemic lethargy and corruption imbedded in the institutions themselves.
Where there is no genuine investigation, the rest of the process of administration of justice cannot function in any meaningful manner.
We discovered the following obstacles to such functioning through our consultations:
1. Does not make a complaint, because of fear or low expectation of redress.
2. Tries to make a complaint but cannot, because no legal institution exists to receive it, or because it exists but is inaccessible, or because it declines to receive the complaint.
3. Makes a complaint, but legal institutions have no authority, either in law or in fact to do anything about it.
4. Makes a complaint, but legal institutions do nothing, because they do not interpret their role as being to protect human rights, or because of threats or influence from other quarters, or because of lack of resources or inefficiency, or because they are paid not to act, or for more than one of these reasons.
5. Makes a complaint and legal institutions act, but in a way that is unreliable or arbitrary, that falls short of—or runs contrary to—human rights standards and expectations of the complainant.
6. Makes a complaint and one or more legal institutions act, but other institutions ignore or fail to enforce their directions.
From the consultations to the drafting of the Charter
Bringing the wealth of knowledge gained through consultations into a draft Charter was the next task. For this purpose the initial summary of the discussions that took place during the consultations were made by the AHRC staff and a group of experts consisting of Mathews Gerge Chunakara, CCA Hong Kong; Basil Fernando, UNTAC- Human Rights Component, Cambodia; Nacpil-Manipon Aida Jean, CCA – International Affairs, Hong Kong; Sajor India Lourdes, Asian Women’s Human Rights Council, the Phillippines; Tremawan Christopher, University of Auckland, New Zealand; T.Y. Renaldo, University of Philippines, the Philippines; Wong Kai Shing, AHRC, Hong Kong.
Then, preparation of the final draft was handed over to a group of eminent persons. The Chairperson of this group was Dr. Yash Ghai, an eminent academic who was at that time based at Hong Kong University. Two former Indian Supreme Court judges, late Justice Krishna V R Krishna Iyer and Justice P N Bhagwati were also in the drafting team. The drafters finalised the draft after several consultations.
Launching the Charter
The formal launching of the People’s Charter was held in Gwangju South Korea in consideration of the 1980 Gwangju uprising, a landmark in the development of human rights in Asia. Launching of the Charter in Gwangju was a way of paying tribute to those who sacrificed their lives for the cause of democracy and human rights during this great uprising. A large number of human rights activists from around Asia participated in this launching and there were also many messages of support from international human rights organisations as well. The Asian Charter for Human Rights – A People’s Charter was finally adopted on 17th May 1998.
After the launch
After its launching the Asian Charter became the working document for the Asian Human Rights Commission and its sister organisation the Asian Leal Resource Centre and also for its partner organisations. During the last 17 years, the AHRC, took the message of the Asian Charter throughout Asia, as well as outside. In Asia, the AHRC made its main focus, to work towards institutional reforms that would enable the implementation of human rights in the 12 countries in which it has been working. In each of these countries, the actual nature of the basic institutions of governance and administration of justice was studied and documented through practical involvement with the lives of the victims of human rights abuse, with the help of human rights defenders who are pursuing the cause of human rights in these countries.
A learning experience
During these 18 years we had a direct exposure to the conditions under which people live and the institutions under which people attempt to protect their rights. We began to witness that the system of governance and the system of justice itself are contributors to violence and this has remained a bewildering experience for most people in Asia, particularly the poor. From the work we carried out we began to see quite clearly that the systems of governance and of justice not merely deny people of their rights, but in fact are opposed to the rule of law and the fundamental norms of human rights. We have documented this experience of the basic systems opposing the rule of law and human rights through a large body of documentation that is available in print as well as electronic media and is made available through several websites. Among the most notable contributions are ‘The Narrative of Justice in Sri Lanka – told through the stories of torture victims’ and the most recently published book by one of our colleagues, who is also a staff of the Australian National University, Dr Nick Cheesman, published under the title “Opposing the Rule of Law – How Myanmar’s Courts Make Law and Order” published by Cambridge University. Also the Quarterly Magazines “Article 2” and “Torture, Asian and Global Perspectives,” and “State of Human Rights in 12 countries in Asia” an annual publication that contains a valuable record of the knowledge we have gathered on the actual state of human rights in Asia.
On the basis of our learning we have arrived at the following conclusions:
1. The major focus of human rights work in Asian countries, and in developing countries in general, should be the reform of institutions of governance and the administration of justice to enable such institutions to protect the rights of people.
2. In order to achieve this it is essential to develop a new generation of human rights activists who are able to understand the tasks associated with such institutional reforms, and thereby to be educators of the people on this issue.
3. It is essential to convince the global human rights movement, including the United Nation’s human rights agencies including the treaty bodies, to understand the unique obstacles to the realisation of human rights in developing countries due to problems of the systems of governance and the systems of justice in these countries.
4. Among the priorities are the reforms of criminal justice institutions in particular the policing systems, especially in relation to investigation of crimes, agencies dealing with bribery and corruption, the prosecution and judicial reforms and the overall improvement of the rule of law as the basis for the protection of rights.
Gwangju as a human rights city
The above brief review of the 1998 Asian Human Rights Charter provides a broader vision of the further work that can be done to enhance the work begun with the launching of this charter. Perhaps, we could consider drafting a 2018 Human Rights Charter to mark the 20th Anniversary of the original Charter.
What is important in that context is that the problems that have been identified as major obstacles to the promotion and protection of human rights in terms of the United Nations Conventions on human rights, be addressed so as to throw light on the direction in which Asia’s human rights movement should focus its work in the future.
As mentioned above, the direction of such work needs to deal with the problems associated with the implementation of rights rather than mere articulation and education about rights. Further this work is inseparable from the need to overcome the institutional obstacles to the actual implementation of rights.
The overall guidance on how this work should proceed can be found in Article 2 of the International Covenant on Civil and Political Rights. In fact this Article 2, is repeated one way or the other in all the UN Conventions. What this Article directs is that all the governments should provide for Legislative, judicial and administrative measures to ensure that the citizens of these countries can enjoy these rights. Therefore, the task of civil society organisations in particular, would be to monitor the realisation of the Article 2 provisions in all these countries. If indices are to be developed as instruments for guiding this work of the implementation of Article 2 then, such indices must be developed in terms of state obligations in the legislative, judicial and administrative fields. It is quite clear that the main controversial areas are in the judicial meaning of the institutions of administration of justice and in administrative area, meaning the proper allocation of resources for the proper functioning of those basic administrations of justice institutions.
This practical approach to the work on human rights would require different forms of orientation for all the stakeholders meaning those stakeholders in the state agencies, as well as all stakeholders in civil society. At the initial stages this should require new approaches to human rights education which shifts from mere dissemination of knowledge on norms and standards to the development of knowledge on how the institutional issues obstructing the implementations of such norms and standards be dealt with and how resources are allocated for the realisations of that aim.
Gwangju as a human rights city can play a pivotal education role relating to the implementation of human rights for Asia as a whole. South Korea’s relative advantage as a more prosperous country, where compared to many other Asian countries, should be utilised in order to enable this aim to become true. This Pan-Asian approach will not only help other countries, but it will also help the greater democratisation process in South Korea itself. Thus Gwangju could become a dynamic city, which communicates the message of its 1980 uprising for democracy and the Rights of its citizens by contributing to the practical struggle of all the peoples of Asia for the actual realization of their rights.
Thus the task of a 2018 Asian Charter would require a comprehensive programme of work first to understand the critical problems obstructing the implementation of human rights and then the strategies required to overcome these critical problems.
At the beginning this practical approach could be focused on the single issue of a torture free Asia. In the struggle to deal with the elimination of torture and the implementation of the Convention against torture and ill treatment, we confront all the problems of the implementation of human rights. Therefore, by making the elimination of torture the central issue, we embark on a very meaningful struggle to work for the implementation of all human rights.
I urge that Gwangju, as a human rights city, undertake to play a leadership role in uplifting the human rights movements in Asia towards a richer perspective, towards implementation of rights. For that purpose I also urge that this gathering makes a firm commitment to give top priority to the issue of the elimination of torture and ill -treatment in all countries of Asia. In this regard, let us hope that by 2018 we could achieve significant results and that in terms of practical commitments we could develop a 2018 Asian Charter on Human Rights.
