ASIA: The law and Christian morality – the law and basic human rights

The following was initially delivered as a talk given by Mr. John J. Clancey, Chairperson of the Asian Human Rights Commission to the priests of the Catholic Diocese of Hong Kong on January 4, 2007

When Anthony Ismail first approached me about this talk he had a suggested topic of “The Law and Same Sex relationships.”  I don’t know much about that specific area of the law, so I suggested this topic of “The Law and Basic Human Rights.”  I will talk about the development of our understanding of basic human rights, how those rights are protected or abused by the existing systems and how they relate to and can be protected by Christian morality.   Perhaps we can deal with same sex relationships during the discussion session.

As my background is in non-formal education, I will try to present some ideas to provoke discussion, as I think that it is through the dialogical process that we can all go deeper into the topic.

From where do basic human rights come?  How are basic human rights protected?  These questions are debated by those in the field of jurisprudence (the philosophy of what law is and what law is about).

Some would say that we have become aware of human rights as a result of negative attacks on various rights and therefore people work to pass laws to protect human rights.

Some say that rights are God given.  But that does not work for those who don’t believe in any God.  It also hasn’t seemed to work for those who claim a belief in God, such as former President Pinochet of Chile or for President Marcos of the Philippines.

Others say that the only valid sources of laws are those passed by governments with constitutional power.  But we have the examples of Stalin’s Russia, Hitler’s Germany and the apartheid government of South Africa, where the executive and judges based their decisions on their constitutions and laws that had been passed by their respective legislative bodies.

There is also a group of jurisprudence scholars who root their theories in the Natural Law, namely they claim that basic human rights are rights that belong to people because they are human beings.  They would say that governments cannot grant these rights or deprive people of these rights, but can only recognize and protect these basic rights.

You probably remember the story of Antigone in the drama written by Sophocles.  At the beginning of the play two brothers (Eteocles and Polynices), the sons of Oedipus, are dead, each apparently having been killed by the other.  The ruler of the Thebes, Creon, orders that Eteocles would be buried with full honors, but that his brother, Polynices, who had attacked Thebes could not be buried.  Creon further ordered that anyone who did try to bury Polynices would be punished.  This creates a dilemma for Antigone, the sister of Polynices.  She does not want to break the law, but she thinks that her brother deserves to be buried.  In the end she appeals to a higher authority and tries to bury her brother.  In regard to her motivation, she refers to the unwritten and unfailing statutes of heaven and then says, “For their life is not of today or yesterday, but from all time, and no man knows when they were first put forth.”  In other words, she appeals to a higher authority than the laws made by rulers.  She is saying that rulers cannot arbitrarily do whatever they want; that rulers cannot make laws that go against what “heaven” has determined are certain basic laws and that thee laws cannot be changed by rulers.

In Christian morality we have the tradition of the Old Testament prophets who referred to an authority higher than the laws made by kings.  Throughout history we have the example of many prophets who spoke out against rulers.  Thomas More is a good example and in recent times we have heard the voices of Nelson Mandela and Martin Luther King Jr. who first challenged the legitimacy of existing laws and motivated people to work to change those laws.

However, the biggest legal breakthrough for human rights was made in the aftermath of the Second World War, which had witnessed untold horrors and abuses of people’s basic rights in many parts of the world, all of which were carried out under the protection of laws and lawful executive decrees.

After a period of debate and drafting the United Nations passed the Universal Declaration of Human Rights.  This declaration basically stated that there are some rights that are so basic that every person enjoys those rights.  Those rights are not granted by any government but are rights which people have because they are human.  Once a government agreed to sign the Declaration and therefore recognize those basic rights, it is required to pass laws to protect and promote those rights within their countries.

Some of the rights set out in the Universal Declaration of Human rights, in simple language, are:

1. You have the right to live; you have the right to live in freedom and safety.
2. Nobody has the right to treat you as his or her slave and you should not make anyone your slave.
3. Nobody has the right to torture you. 
4. The law is the same for everyone and should be applied in the same way and manner for each person.
5. Each person has the right to marry and to have a family.
6. You have the right to profess your religion freely, to change it, and to practice it either on your own or with other people. 
7. You have the right to organize peaceful meetings or to take part in meetings in a peaceful way.
8. Each person has the right to go to school.
9. In order to respect and protect each person’s rights, there should be an order, both at the local level and worldwide.

I have selected only a few.  But note the last, because I will refer to that again.  It is related to a legal structure and I would submit it is related to Christian (and Jewish and Islamic, etc.) morality.

Since the time that the Universal Declaration of Human Rights was first promulgated and adopted by most countries around the world, various conventions have been passed and adopted by most countries.

Subsequently various conventions have been adopted to provide more details in regard to specific rights. There are conventions on civil, political, economic, social and cultural rights.  Other examples are a convention on the rights of women and a convention on torture.

According to Article 39 of the Basic Law of the HKSAR, “The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural rights, and the international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.”

The problem now is that while everyone – or most people and governments – recognize the existence of these basic human rights, many rights are still being violated or governments have refused to implement laws to promote and protect those basic rights.

Everyone has the right to life, but more than 700 persons in the Philippines, who have been critical of the government, including union leaders, lawyers, judges, and even a bishop, have been extrajudicially killed, allegedly by military or police officers.

Police offices in Sri Lanka have been regularly torturing persons, mostly poor persons, in police custody.   Judges in Sri Lanka have resigned out of frustration that the judicial system is not providing justice.

Rights are protected not only by the police, prosecutors and courts.  Basic rights are also protected by a free press that can document violations and by individuals and civil society groups speaking out to demand that basic rights be protected and promoted.

Last month I attended a meeting hosted by the national Human Rights Commission of Korea.  That HR Commission is doing excellent work to document human rights violations and making suggestions about systemic changes.    There are groups in Hong Kong that have suggested (some have demanded) that HK also establish a Human Rights Commission.  At present there is a formal proposal by the government to pass a race discrimination ordinance.  It is interesting because the government position seems to be that HK does not really need this law, but that as the UN has been requesting it they will pass such a law.  However, the minority groups that will be the most affected have said that there are so many exceptions in the bill as to make it ineffective.    How does Christian morality respond to the draft bill?  How can Christians – and others – make contributions to ensuring the legislation is effective, both as to its contents and well as enforcement?

There is also another interesting issue in Hong Kong. Those of you who have been involved in pastoral work with workers are probably aware of the issue that flows from Article 39 of the basic Law – the implementation of international labor conventions.  One international labor convention (87) provides freedom of association, namely the right of workers to form unions.  Another (98) is in regard to the right to collective bargaining, namely a union can bargain on behalf of all the workers in a particular company.

Allow me to give the brief facts.  In June 1997, Lee Cheuk Yan proposed a bill that would recognize the right to collective bargaining and that bill was passed into law by the Legislative Council.  Two weeks later the new Provisional Legislative Council froze the legislation and two weeks after that the law was abolished.   A complaint that was made to the International Labor Organization, which said that what had been done, was wrong.  However, the Government of the HKSAR has continued to ignore the ILO and has not reinstated the old law or proposed any new law to protect the right to collective bargaining.

There are also other issues outside of Hong Kong.

People have a right to profess and practice their religion freely, but if you are not a Muslim try exercising that right in Saudi Arabia. At the same time there are many migrant workers who are Christian or non-Muslims in Saudi Arabia.  How can their basic rights to practice their religion be protected?

Nobody has any right to treat anyone as a Slave, but see the article by Fr. Cullen in last week’s Sunday examiner.  Workers were kidnapped and forced to cut sugar cane. They were only given one bowl of rice and a can of sardines each day.  This is one example of apparently a wide phenomenon. How can workers’ rights be protected in a country where the rights of the rich are protected, while the rights of the poor are ignored or trampled?

There is also the issue of torture.   Arrested persons in a good number of countries in Asia are beaten up and some are tortured after arrest.  The reason being either that the police are convinced that the arrested person committed the offence and want to persuade him or her to acknowledge that the police are correct, or there is pressure on the police to charge someone with a crime and they choose some hapless person – usually so poor that he cannot afford a lawyer and has no connections to offer assistance – and torture that person until they admit to committing the crime.  Some recent books have also documented that the American CIA “rendered” suspects to the police in other jurisdictions so that the torture could take place when the persons were not in the custody of the USA.

Some governments argue that there are times when they have to torture people to get information.  There are two responses: (1) the Covenant on torture explicitly states that there are no exceptions; and (2) Going back to the time of Caesarea Beccaria (in the late 18th century) people have noted that torture does not elicit the truth, but only forces the person being tortured to state what the torturers want to hear.

Groups of Catholics and Buddhists in Sri Lanka, working with lawyers and others have spoken out strongly against torture, have offered sanctuary in the homes of religious for those who have been rescued from police custody and have helped to initiate civil claims for damages for torture.

Human Rights need to be protected by persons and groups who are ready to speak up and demand that governments protect those rights and punish those who violate the rights of others.

I am sure you recall the poem/statement of Pastor Martin Neimoller of Germany.

“First they came for the Communists, but I was not a Communist, so I remained silent. 
Then they came for the social democrats/ trade unionists, but I was not a member, so I did not speak out. 
Then they came for the handicapped people, but I was not handicapped, so I did not speak out. 
Then they came for the Jews, but since I was not a Jew, I did not speak out. 
When they came for me there was no one left to speak out.”

He spent eight years in concentration camps, and was almost killed in Dachau.  After the war he did speak out.

The Vatican II document The Church in the Modern World reminds us that while we are citizens of an everlasting world, we have a responsibility to make this world better.  We should not remain silent when the rights of others are violated.

Lawyers and the Courts can help to protect human rights.  However, I would suggest that human rights would only be fully recognized and implemented when people throughout the community speak up when the rights of others are affected. We need to create a climate within which human rights are seen as important to a healthy society, at the local, national as well as the international level.

And back to the relationship to Christian Morality.  I would also suggest that there will be better implementation of human rights in the world when Christians, as well as members of all religions, regard it as part of their vocation to join with others in society:

1. to speak up when they see violations of human rights; 
2. to write letters to political leaders to take action to punish those whose rights are violated; and 
3. to establish more structures to ensure that the basic human rights of all will be protected.

J. Clancey
January 4, 2007