The 2018 Gwangju Human Rights Forum was jointly organized by the May 18 Foundation and AHRC
RIGHT TO JUSTICE
Systemic Ways to Ensure Human Rights Are Protected
A. Human Rights and the Violation of those Rights
Let’s start at the very beginning, a very good place to start. When you read, you begin with A, B, C. When you sing, you begin with Do, Re, Mi. When you discuss human rights, you start with those rights; and when you talk about the violations of those rights, you cite some examples of those violations.
The number of undernourished people on the planet increased from 777 million in 2015 to 815 million in 2017, according to the FAO, at a time when there was sufficient food produced in the world to feed everyone adequately. The lack of proper nutrition affects young children the most: malnutrition causes stunted growth; wasting; contributes to impaired cognitive ability; weakened performance at school and work; and greatly increases the risks of dying from infections. In India there are about 195 million undernourished people. In Pakistan 45% of the children under five are stunted, 32% are underweight, and 15% suffer from acute malnutrition. Nearly 20,000,000 Indonesians go to bed hungry every night. In Bangladesh 54% of pre-school age children, or 9.5 million children are stunted; 56% are underweight and more than 17% are wasted. This is happening in a world where there is increasing obesity among both children and adults.
Then there is the worst form of denial of the right to life: namely the unjust and unnecessary taking of human life by the military and police. The obvious example for those here today is the brutal killing by the military of hundreds of mostly young persons who had participated in the May 18 Gwangju Democratic Movement in 1980. Another example is the killing, coordinated by the 27th Army of Shanxi Province, of hundreds, or thousands, of again mostly young persons, who had been peacefully protesting at Tiananmen Square in Beijing, in 1989, to demand democracy and the end of corruption. More recently, Philippine President Duterte has ordered the killing of suspected drug users, rather than giving the accused persons a right to a fair trial, or to undergo treatment for their addiction. In the process, innocent persons, including dozens of children, have been killed. Since Duterte has been president 55 environmental activists have been killed, including a Catholic priest who was killed in April 2018.
Then there is the issue of disappearances, in which people are killed by security forces and their bodies disposed of in unknown places. This results not only in individuals being deprived of their right to life, but also causes years and even decades of suffering for their relatives, who usually, very correctly, suspect that their loved one is dead, but cannot have closure as they are denied a proper funeral service and period of mourning to end their grief.
Another type of violation of the right to life is the regular torture of prisoners by the police, which always causes great suffering and not infrequently results in death. In July 2017, at the end of a visit to Sri Lanka, the UN special rapporteur, Ben Emmerson QC, stated: “The use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds.” He added that 80% of those most recently arrested under the Prevention of Terrorism Act in late 2016 complained of torture and physical ill-treatment following their arrest. 80%! His report stated that the torture included beatings with sticks, asphyxiation use of plastic bags drenched in kerosene, the extraction of fingernails, the use of water torture, the suspension of individuals for several hours by their thumbs and the mutilation of genitals. You can go to the website of the Asian Human Rights Commission to see hundreds of documented examples of torture by the police, not only in Sri Lanka, but in a good number of other Asian countries. The sad thing is that the actual number of people being tortured is much larger than the cases that have been documented and published.
Still another type of violation involves those persons who are detained and held incommunicado in secret detention centers. Chinese lawyer Wang Quan Zhang, who defended political activists and victims of land seizures, was taken away by the police and has been held incommunicado for more than a 1,000 days. His wife does not know whether he is alive or dead or whether he has been so brutally beaten that the police do not want his family to see his condition. After being released from prison, Chinese human rights lawyer Gao Zhi Sheng published a book criticizing the government and since August 2017 there has not been any news of where he is being detained.
Another category is composed of those persons whose right to a normal life has been devastated by unlawful detention and arrest, sometimes arbitrarily by the police and sometimes on direct orders from someone with economic and political power and influence.
Then there are the examples of persons who have been brought to trial on charges that have been deliberately fabricated by the prosecution in order to settle personal grudges. Others use the “justice system” to ensure that legitimate challenges to the political and economic order are punished.
There are many cases where the police have failed to take action in regard to rapes of minor girls: one case in India involved an 8 year old girl and another in which the police did not even investigate a complaint that a legislator had raped a young girl. In the latter case, the father of the girl was arrested and died in police custody, allegedly of torture. The Allahabad High Court “ordered the arrest of the accused legislator and also chastised the UP police for filing a false charge against the girl’s family members.” The author of that article commented: “The police are the tools of the political and class elite, and torture and violence are used as tools of punishment, control and retribution. The police are the repositories of all our social biases, an institution where objectivity and independence are hard to come by.”
Criminal trials are delayed for years and even decades, with innocent people being held in detention, usually in horrendous conditions, while awaiting trial. This causes suffering not only to those detained individuals, but also suffering for their family members, who are deprived of the income provided by that person, as well as the disruption to their lives because of the need to visit the imprisoned person regularly to provide food and offer some comfort.
Then there is the judiciary. On the one hand we have many examples of judges accepting bribes in return for judgments favorable to the payer of the bribes. On the other hand, we have examples of the executive branch seeking ways to control the judiciary, from using short five-year contracts to impeachment proceedings. In January 2013, Shirani Bandaranayke, the Chief Justice of Sri Lanka was impeached after the Supreme Court had made a series of rulings against the government. She was reinstated in January 2015, but retired the following day. Maria Lourdes Sereno, an outspoken critic of President Duterte, is facing impeachment. In India, the opposition Congress Party has submitted a motion for the impeachment of Chief Justice Dipak Misra.
In Korea the perception is that the law is generous to the very rich while being very strict towards workers and ordinary people. One example is that of Lee Jae-Yong, the heir to the Samsung conglomerate, who, in August 2017 was originally sentenced to a five year prison term for giving a EUR6.5 million bribe to former president Park. In February 2018, an appeals court reduced his sentence to a 30 month suspended sentence. In September 2007, the three-year jail term for embezzlement given to Hyundai chairman, Chung Mong-koo, was suspended by the Court of Appeal for five years.
Kim Seung-youn, the chairman of the Hanwha Group, also said to be one of Korea’s richest men, had been found guilty for his role in mobilizing his bodyguards and local gangsters to beat up some karaoke workers who had allegedly had a scuffle with his son. He was sentenced to 18 months in prison. What do you think the appeal court did? Yes, the appeal court judges suspended his sentence.
There are also numerous examples of individuals who have had to face spurious charges because they spoke up for democracy and human rights and against corruption.
B. Structures – Economic, Political, Administrative, Media and Cultural that prevent justice being done.
The most frequent means used by the executive branch of government to maintain unjust structures is to present falsehoods and to seek to hide the truth.
After the Gwangju massacre, the military junta who had illegally taken power by staging a coup claimed that the high number of casualties and wounded people had been caused by “vicious rioters” and “communist agitators.” The military leaders claimed that the military’s role was to protect people. They forced Korean newspapers to publish the military’s false stories. Fortunately, a number of foreign correspondents, including the German TV reporter Jurgen Hinzpeter, who with the assistance of a brave taxi driver, a certain Mr. Kim, was able to get around military blockades and checkpoints to record that it was the military that had shot civilians during that period in Gwangju and then to get his film out of the country to let people see what had actually happened.
In China the peaceful demonstration in the Tiananmen Square was labeled a serious counter-revolutionary rebellion by the government.
However, national security, or more frequently in recent years, terrorism have been the slogans most often used by governments to seek to justify the brutal suppression of human rights and the destruction of true systems of justice.
Personal Security
The oligarchy, composed of the economic and political elite, constantly talks of national security. We must begin to speak of a different type of national security that is rooted in personal security. Not having sufficient food to eat undermines personal security and contributes to weakening national security. Allowing the police to arbitrarily arrest people and to torture people is an attack on personal security and also contributes to undermining national security.
I therefore propose that we need to start talking about “Personal Security” as a prerequisite for true National Security. Each and every person has the right to Personal Security. This right to Personal Security includes the right to life, and the corresponding rights to food, health, education, a clean environment, and a truly democratic political and economic system, free of corruption that provides true systems of justice to protect these basic human rights.
Genuine national security must be based on the personal security of every person. At present so-called “national security” is used to maintain the power and privileges of the economic and political elite. Over the past decades, the military in Asian countries have not been engaged in wars with the military in neighboring countries, but have been used against the citizens of their own countries, usually the poor and powerless and those who are trying to assist the poor and powerless to speak up for their basic rights. In addition to the military, many countries have paramilitary police forces, and even use the police forces themselves to kidnap, kill, or disappear those persons who are considered to be a threat to the oligarchy.
In regards to climate change, the data collected by the majority of scientists is clear: global warming is a reality and unless we make dramatic changes, the situation will become so dire that will be almost impossible to prevent worldwide man-made “natural disasters.” However, large oil and coal companies have so much political and economic influence that it is difficult to bring about the change that is needed.
Similarly, the data is clear: the gap between the very rich and the rest of us, both within countries and globally, is worsening. This is happening at the same time that corresponding data documents that the justice systems don’t work to protect the personal security of the majority of people. In many countries, those so-called “justice systems” are an illusion and only operate to make it look as if “justice” is being done. We need to work to build true systems of justice, so that the police, prosecutors, and judges will protect the personal security of every person.
The right to life is meaningless unless there are societal structures to ensure people have sufficient food to eat. Likewise, the right to education does not have any meaning unless children can attend school and are provided with books. In like manner, the right to good health is not really a right unless people have access to a doctor, medicine, and if necessary a hospital. Similarly, the protection of our basic human rights requires access to a true system of justice, in which the police, prosecutors and judges act independently and fairly and are not motivated by money, fear, or blind obedience to their superiors to subvert the structures of justice.
People have basic rights and it is the responsibility of the state, namely government officials in the executive branch, to develop policies, programs, and budgets that will ensure there are structures in place to ensure that systems of justice will protect the basic rights of all persons.
PEACE
In light of the very interesting developments that we have been reading about these past few weeks, we look forward to reading the further news that all nuclear weapons on the Korean Peninsula will be destroyed or deactivated. This indeed will be good news. We should express our gratitude for the key role played by President Moon Jae-in, although the president of the United States is seeking to take all the credit. The next goal should be the elimination of all nuclear weapons, big and small, in every part of the world. I hope that President Moon and Mayor Yoon Jang-hyeon of Gwangju, both during their terms in office and after retirement, will work towards the goal of the elimination of all nuclear weapons in the world, which will further promote peace in the world and make available more resources for health, education and the improvement of the justice system. One of the reasons that there are not sufficient funds for implementing proper justice systems in Asia is that too much money is wasted on weapons, which are too frequently used against people within the country. Evolving cultures of peace need to recognize that to promote true peace, rooted in a democratic and just society, money needs to be allocated to providing food, education and a fair justice system rather than being wasted on military weapons.
CULTURE
But why has this been so difficult? I would refer briefly to some aspects of culture.
The rich and powerful insist on maintaining feudal privileges and demand that they be treated in a way that respects them more than others, particularly those of lower social or economic standing. The elite even demand to be addressed in a special way, which reflects the feudal remnants of culture and language. The next easy step is for the elite, sometimes openly, but most often through informal channels, again using traditional social and cultural connections, to demand that they be treated differently when they break the law. The elite also demand that the “Order” aspects of the justice system be used to prevent people from opposing their economic and political plans. They want all aspects of the so-called “Justice System” to keep people in their place and to ensure that people do not speak up and criticize them.
These remnants of feudalism in the culture of many Asian countries need to be confronted and changed if we are to have the true rule of law in Asian countries.
Some of the worst examples of these feudalistic cultural remnants are in places such as Indonesia’s Aceh Province and some provinces in Pakistan where vigilante groups enforce feudalistic values, dressed up as Sharia law, to enforce extrajudicial punishment on persons who don’t conform to their norms. Very often vigilante justice not only goes unpunished, but is supported by these distorted “justice systems.”
SILENCE IS SUPPORT
When people remain silent in the face of human rights abuses, such as killings, disappearances, torture, illegal arrests, obviously flawed Court judgments not supported by the evidence, they help to maintain the unjust structures which allow the rich and powerful to maintain their economic and political power. By not speaking up and demanding change people actually give their support to these unjust structures. Silence and passivity are often motivated by fear, but are also enforced by repression against those who dare to speak up and take action. The feudalistic cultural value of passive acceptance of the status quo empowers those who use unjust structures to maintain their power.
The members of the “modern” oligarchy have learned how to use these dysfunctional “justice systems” to help them maintain and even increase their wealth, power, and privilege.
We should also consider those aspects of culture that require not preservation, but change. Obvious aspects that need to be changed are those culture norms that defend inequality, such as those norms that say women have less rights than men; as well as those cultural norms that place persons in a caste at birth and place limits on their dignity, rights and ability to develop. Malala Yousafzai was shot in the head for advocating education for girls. Although children in Pakistan, aged 5 to 16, have a constitutional right to education, the illiteracy rate in the capital city Islamabad is very high, while overall in Pakistan 69% of males are literate and only 45% of females are literate.
Indian culture notoriously protects the caste system that denies dignity, freedom and rights to lower caste persons. What is surprising is that cultures influenced by the teachings of Buddha, such as the Singhalese and Japanese cultures, are still strongly influenced by feudalistic caste concepts. These feudalistic values, passed from parents to children, are used to deny dignity and rights to lower caste persons in Sri Lanka and the Burakumin people in contemporary Japanese society. I suggest that we should discuss which cultural values enhance and which hinder our efforts to implement an effective justice systems.
I think that you would agree that culture is not static: culture is not something that is handed down to us in order to be preserved and handed down without any change. Culture is something that slowly evolves. Even certain aspects of culture such as food, clothing, music and art are constantly in the process of evolving as people become aware of new possibilities and experiment with new ways of expressing these aspects of culture. Without creative adaptations, cultures remain stagnant. Cultures can respond to new challenges and opportunities: today that includes finding ways to do away with the dehumanizing aspects of feudalistic culture and searching for ways to promote and protect those values that enhance human dignity, such as all those rights set out in the Asian Charter.
What do you think? Will the oligarchy and the executive branches of governments be able to continue using cultural norms to protect their unjust “structures of justice” that attack the personal security of the majority of people, or will the people of Asia be able to take part in the process of developing new cultures that will recognize and promote equal rights for every person: including the rights of women and minorities; the rights of the poor and the marginalized; the rights all castes and classes of persons; and the rights of workers and handicapped persons.
I would suggest that there cannot be any true movement towards implementation of true justice systems to protect the rights of all and the personal security of each person until we also work to bring about a cultural awareness and cultural change so that human rights are seen as an integral part of the evolving culture in Asia.
We will not be able to attain genuine national security until we provide for the personal security of every person. Huge amounts of national resources are spent on the military. If we are to achieve true peace in this region of the world, we need to spend a greater proportion of national resources on developing true justice systems.
Not speaking up when the police fail to arrest persons who commit crimes or when the police arrest and torture innocent persons is an assault on personal security and contributes to undermining national security
Remaining silent when corrupt prosecutors charge people who are innocent and drop charges against those guilty persons who have political connections, is an attack on personal security and contributes towards weakening national security.
Saying nothing when corrupt judges find people guilty, even though there is no evidence to support the charges, is an assault on personal security and helps weaken national security.
Sealing our lips when corrupt or fearful judges acquit people even though the evidence clearly demonstrates that they are guilty, is a further assault on the personal security of the victims of the crimes and contributes to undermining national security.
The oligarchy composed of the economic and political elite constantly talks of national security. We must begin to speak of a different type of national security that is rooted in personal security. Not having sufficient food to eat undermines personal security, and contributes to weakening national security. Allowing the police to arbitrarily arrest people and torture people is an attack on personal security and contributes to undermining national security. Not speaking up when corrupt prosecutors charge people who are innocent and when they drop charges against those who are guilty is an assault on personal security and contributes to undermining national security. Remaining silent when corrupt judges find people guilty even though there is no evidence support the charges is an attack on personal security and contributes towards weakening national security. When corrupt or fearful judges acquit people when the evidence clearly demonstrates that they are guilty, is a further assault on the personal security of the victims of the crimes and con tributes to undermining national security.
Feudalistic cultural values are reflected in comments such as: “That’s the way things are.” “Nothing can be done.” “The rich and powerful can do whatever they like.” “You need to be realistic and practical.” These comments reflect a certain fatalistic pessimism, rooted in cultures that for centuries have developed countless ways to get ordinary people to passively accept injustice.
On the other hand, we have the “Spirit of Gwangju,” the spirit of people who would not accept the destruction of their democracy by the generals who took power through a military coup. The people of Gwangju were not passive, but decided that they needed to take action to protect their democracy and their rights. The people of Gwangju first rose up against the military and chased them out of the city. Later, after the military returned and imposed martial law, the people of Gwangju constantly and consistently worked for democracy and the recognition of their human rights, not only for those living in their own city, but for all the people of Korea.
It is that same spirit of hope for a better future and commitment to take the requisite action that should motivate us to organize and to take all the practical steps needed to bring about reform of the justice systems in Asian countries.
The new emerging culture invites us not to be resigned to accepting the present situation, but to have hope that things not only can improve, but will get better. The spirit of this new culture should shout a loud NO to feudalistic passivity and cheer loudly for all those human rights activists who are engaged in assertive organizing work. Gathered here together from many parts of Asia, we should continue to help people realize that they are not isolated in their own struggles but are united in solidarity to assist one another to develop effective Justice structures in each country. We each need to remember, and to remind one another, that we are not alone in this important work.
The development of true structures of justice will not only protect, but will also promote the human rights of every person.
We need to expect all kinds of opposition and danger. Young men who join the military are trained to kill others and are motivated to go into dangerous situations even when they are afraid. If they exhibit bravery in the face of battle they are awarded medals and honor. Human rights activists in many countries in Asia are beaten, arrested and detained on false charges, sentenced to prison terms and even killed. Human rights lawyers who come to the defense of their clients have themselves been arrested and put in prison after being convicted of false charges. We need to encourage young persons working for human rights and democracy tobe brave in the face of opposition.
I would like to cite two examples of two brave persons who continued their work for human rights even though they knew what would likely happen to them.
A number of human rights lawyers in China who had been helping people by representing them in the legal cases also confronted those who had been oppressing and exploiting people. These lawyers had to make a choice: to continue doing their work, or to keep quiet. One who decided to continue – Mr. Gao Zhi Shing – had been detained in an unknown place for years and was eventually imprisoned. When he was released from prison he wrote a book criticizing the government. Shortly after the book was published he was again disappeared.
In Sri Lanka, there was a lawyer who chose to work for justice and human rights as a newspaper editor: Mr. Lasantha Wickramatunga. Lasantha was killed on January 8, 2009. Three days after he died, his newspaper published an obituary that he himself had written. That obituary is a beautiful piece of writing, by a man who, saw what could happen, yet still chose to continue to speak out, to try to help others. I’m going to read a few excerpts from the obituary he wrote.
“We have stood up for those too feeble to stand up for themselves. I was on two occasions brutally assaulted, while on another my house was sprayed with machine gun fire. When I am finally killed, it will be the government that kills me. Fellow journalists walked with me; most of them are now dead, imprisoned without trial, or exiled in far-off lands. It has long been written that my life would be taken and by whom. All that remains is when. I hope my assassination will be seen not as a defeat of freedom, but an inspiration for those who survive to step up their efforts. I hope that my assassination will help galvanize forces that will usher in a new era of human liberty.”
Those words reflect bravery, a defiant stance of commitment to change and a new cultural attitude; a perspective of hope: confident hope in the face of what appears to be a hopeless situation.
When we know of people like Gao and Lasantha we too have a choice to make: do we keep quiet or do we speak up, demanding their release? I think that we need to develop a culture that will help us to maintain solidarity with all those who are working to make human rights and justice a reality until the human rights of each and every person are respected and protected.
You well know the current situation. Do you have still have hope? If you do, I can assure you that the future is ours.
All that remains to be done is to unite that hope with a commitment to take action, in solidarity with all those who are struggling to work for human rights and the implementation of a true justice system: a system that will ensure respect for the human rights of every person, which in turn will protect and promote the personal security of each person.
That future, with structures of justice that will protect the human rights of all is coming. How soon that future enters our present reality will depend on our level of hope, the strength of our commitment and our solidarity in the face of expected opposition. In solidarity, we will be able to make that future goal a reality. I hope that we can do it sooner rather than later. And I think that you have the same hope.
Let’s constantly remind one another: the future is ours!
May 2018
Jack Clancey
Chairperson: Asian Human Rights Commission
