Presentation at the International Human Rights Colloquium at San Paulo organised by CONECTAS from 3rd to 8th November by:
Basil Fernando
Executive Director of the Asian Human Rights Commission
This is quite a useful opportunity to look into the issue of social change from the perspective of human rights. The word social change implies the existence of social repression which in turn implies the existence of forms of social inequalities which are dangerously harmful to the section of the population which are usually called the ordinary folk who in fact are the majority of all societies. Social change to me means the betterment of various aspects of society which improves the lives of the ordinary folk in one way or another. It may be the improvement of their health, education, housing and conditions of normal living such as food and clothing or conditions of leisure and other means of social wellbeing. As discrimination is a fact of society all these aspects of the improvement of social life also implies special arrangements for those who have suffered discrimination in the past, for example the victims of gender inequality, racial or caste discrimination and also those who have suffered from discrimination due to sexual orientation and the like. All such forms of limitations in enjoyment of life on the basis of human dignity are accompanied by repression. Therefore by defeating repression to one degree or another, improvements of social life take place and the ordinary folk are thereby able to be more human and to be treated as more human.
Social change Vs repression
This connection between social change and dealing with repression is a more acute problem in countries outside those that are called developed countries. In that part of the world called developed countries social revolutions have taken place to deal with forms of repression which maintain the type of inequalities that are prominent in their countries. The French revolution, the English civil war and the American Revolution are examples of the types of political change by which prevailing forms of repression were overcome and some fundamental social changes took place in the areas of peoples lives, their health, education, security, transport, leisure and also gender relationships. Of course none of these have been achieved only at a particular moment of a revolution but also through a long process of social activity an development of laws within these countries. Scandinavian countries in particular provide even sharper examples of peoples participation achieved through various types of social movements such for example as the folk school movement of Denmark, movements for cooperatives in several other countries and various reforms achieved in the legal systems which made the achievements of social changes a permanent part of the way of life for the people of these societies.
Inequalities, violence and legal mechanisms
All these historical achievements are useful references when we look into the problems of social change in the countries which are outside the developed world. Today, the most acute problems of social inequalities and the consequences of such inequalities are felt in this part of the world which is outside the developed world. Here in all areas of life the ordinary folk face repression. The repression is achieved not just by naked violence of some people but through the legal machinery itself. Understanding how the legal machinery itself provides the apparatus for the denial of basic conditions of life for the ordinary folk and how to overcome the limitations of the law itself by various means among which the movement for social changes takes the first place are important in the context of our societies. In this context, human rights movements are part of the social movements. And it is essential to develop the understanding of this connection between the human rights movements and social movements and to forge this connection carefully. If those engaged in social movements understand the role of human rights organisations as agents of social change and if those involved in human rights movements understand the role of social movements as protectors and promoters of human rights we are likely to make great progress in achieving the type of social changes which are for the benefit of all. This way we can also make these achievements a permanent part of the peoples future by entrenching such changes as part of the law in our respective countries.
Attacks on livelihoods and dysfunctional justice systems
Judging from our experiences in many countries of Asia it is quite revealing that various governments have developed some new but common approaches to attack the livelihoods and the social conditions of people by dismantling the mechanisms of justice within their countries. What I mean by mechanisms of justice is the police, prosecution branches and the judiciary. Within a liberal democratic framework when the executive attacks the people by curtailment of their right to organisation, freedom of speech and publication, the people resort to the justice mechanisms of their countries in order to find redress or at least to ensure that the attack by the executive is limited and restrained. What is developing now is the deliberate dismantling of these institutions in such a manner that they are unable to provide the basic minimum protections they are supposed to within a legitimate state. In a recently published booklet we described this situation regarding Sri Lanka under the theme, Sri Lankas Dysfunctional Institutions of Justice. The study was on the way that the police investigating mechanism has been dismantled, how the prosecutors represented by the Attorney General’s Department have become falsifiers helping perpetrators of human rights abuses to escape liability and how the judiciary itself is failing to play any active role in the protection of rights. In fact, judicial inaction has become culpably negligent to the extent of supporting the violators of human rights abuses and to discourage everyone who wishes to produce their complaints against these violators.
Attacks on electoral processes
Making the basic institutions of justice dysfunctional is an attack on every area of organised life in society. When these institutions begin to act negatively it is possible to have rigged elections without much difficulty. Today rigged elections have become a fundamental problem of democracy in many countries of Asia. Free and fair elections are an essential part of trying to achieve positive social changes for the benefit of the people. If the people have the opportunity to influence the political parties in the development of policies that ensures their wellbeing and they are able to ensure fair competition in elections then they could hope for the use of the political process for achieving their betterment. However, for political process to act fairly the justice process must function within the parameters of justice. If this system is made to function in a way which produces opposite results then the electoral process can become a nightmare for the people. Much of the violence that has become a common feature in the modern world is a product of failed electoral systems. Once the basic faith in the electoral system is lost then basic faith in the political process also ceases to exist. People with varying interests then take up other means in dealing with their opponents and this very often, ends up in all parties relying on the gun and not the ballot in trying to settle disputes. It is unfortunate that in the discourse on violence this aspect of dysfunctional justice systems having the effect of displacing legitimate electoral processes and political process in turn, has not been given the due recognition it deserves in understand violence.
Corruption and the law
One of the fundamental problems affecting development and also social change for the benefit of the people is the issue of corruption. Much can said about corruption but I would like to concentrate on the legal mechanics that makes corruption possible and also demonstrates other legal mechanisms by which corruption can be dramatically curtailed or even eliminated. Often corruption is attributed to the greed of some people and particularly the greed of those who hold power and authority in society. However, whether the greedy can achieve their satisfaction of greed or not very much depends on the legal mechanisms operating in society. One of the purposes for which the justice system is made dysfunctional is for some powerful sections of society, particularly some political power holders, to be able to abuse their position in order to amass wealth by illegitimate and immoral means. One of the more common means of such enrichment is the sale of public properties to private ownership. This process can easily be manipulated for political power holders to amass undreamt of wealth within a very short time. The process may be justified as privatisation. However, there is a vast difference between privatisation which takes place the full operation of the democratic process and the justice systems and that which takes place outside such mechanisms. Once again various maneuverings done in the process of privatizing public property has been one of the major causes for the development of violence within various societies in the past decades. Sometimes such violence is described in terms of religious, ethnic and other forms of societal conflicts. However, the development of such violence is often needed in order to achieve huge transfers of wealth outside the mechanisms of democratic processes and legal processes. Making justice systems dysfunctional for the purpose of amassing wealth is often portrayed as a necessary step in the fight against terrorism and violence. However, the very development of the causes of violence itself takes place by a process of displacement of the basic processes of democracy and justice.
As against this experience we see countries that have been able to reduce and even eliminate corruption successfully by the development of legal mechanisms which improves the mechanisms of justice. To cite one example, Hong Kong before 1974 was a pretty corrupt place with also a lot of violence. Through a long process the people as well as some sections of the civil authorities began to identify the limitations of the justice process itself as the cause of such corruption and violence. In particular there was an understanding that to deal with corruption successfully it is necessary to deal with the corruption within the primary law enforcement agency, the police. During the earlier times the corruption control agency itself was very much under the control of the police authorities and a part of the police department. A major legal technique adopted by those who wanted to eliminate corruption was to an independent commission for the control of corruption outside all government agencies including the police. In 1974 the Independent Commission against Corruption (ICAC) was established and this was a completely independent organisation who recruited professionals for lifetime work within the institution devoted to the sole aim of the institution which was to eliminate corruption. Within a short time Hong Kong was recognised among the places which are charaterised as the least corrupt places. This institution is still the major agency which keeps the discipline within all state agencies and helps to protect the mechanisms of justice form undue influence. This organisation has also contributed to the credibility of the electoral process within the territory. Though there was the transfer of sovereignty from British to Chinese rule in 1997 with some apprehension of radical alterations in the style of rule, and the possible relaxing of investigations into corrupt practices, this did not happen due to the habits acquired by the local people to hold their institutions of law enforcement accountable. The ICAC has contributed a great deal to the creation of that positive mindset among the people.
Human rights and the protection of legal systems
Sometimes when human rights organisations try to engage in activities to monitor and demand investigations into human rights abuses, such as torture, extrajudicial killings and abuses by the police, there are some who think that these are only partially important issues and not core issues in dealing with social change for the betterment of the people. However, when we observe closely the manner in which legal mechanisms work it becomes quite evident that all human rights abuses have a deep impact on the way a legal system works. All attempts to fight against human rights abuses is an inseparable part of trying to keep the legal mechanisms to work for the purposes for which they were created. It is the observance of human rights principles that preserves the behaviour pattern of these legal institutions. If these behavior patterns are allowed to degenerate they can easily become dysfunctional which means they can produce the opposite result and thus can become a bewildering experience to the people who live within these systems. Thus, in the utilisation of the law for the promotion of positive social changes the work towards monitoring and advocacy of human rights acquires a central importance.
The paramount importance of dealing with police reforms
Some also fail to realise that in modern society policing is one of the factors that contributes either to the worsening of social relationships and the increase of crime of on the other hand for the betterment of social relationships and the development of greater harmony between individuals as well as social groups. Where the police are allowed unfettered license to abuse the law and the rights of the people violence is bound to erupt. Great social insecurities can be caused by bad policing. We have that experience in many parts of Asia. Thus, a preoccupation with the development of proper policing systems and the ensuring of healthy police reforms is an unavoidable condition of creating a peace loving and sober society. Sometimes western observers fail to recognise this aspect because for them a bad policeman is often an individual phenomenon. However, in countries outside the developed world bad policing is a systemic problem. And it in turn makes the entire system of justice and also the democratic process itself warped to one extent or the other. Therefore engagement in the task of police reforms that are conducive to social equality should be a primary concern of those who want to use the law for the benefit of social change. When the law enforcers are bad there is very little use of even good laws. To keep the law enforcement officers to be law abiding and to ensure that they contribute to cultivate a greater respect for all individuals with particular emphasis on the more marginalised groups of persons needs to be a concern of those who aspire for a democratic process within which social equality is genuinely respected.
Court Delays — law and social change
In many countries delays in adjudication remains a mean by which access to justice is denied. Persons having to spend many years of their lives to find redress to some problem or the other virtually have more to lose than to gain by having recourse to courts. When this is widespread it creates mental habits in the entire population creating loss of faith or skepticism in the process of justice itself. That acts as an obstacle to the use of the law for the purpose of the improvement of social conditions and any hope of achieving social change. When after long struggles some improvements are achieved in the law by new legislation on various aspects, the next step has to be the implementation. And the implementation takes place through the judicial process. When the whole judicial process becomes negative then even the legislation which has been achieved through many years of advocacy and various forms of agitation does not bring the desired results. In fact, it may produce a negative result and create greater frustration among the people.
Sometimes those who struggle for social change do not realise the link this has with problems such as delays in adjudication. However, if this link is understood it is possible for social movements to be developed to address this problem. If the social movement takes an active part in dealing with issues such as these it is quite likely that the problem of delays in adjudication could be adequately solved in a way to make justice more speedy and efficient. A group of human rights activists discussed this at a regional meeting attended by several countries in Asia. Their concerns were summed up in an open letter written to the UN Special Rapporteur on judges and lawyers and it is annexed herewith.
Judicial Corruption
The question of the corruption of the judiciary is also one of the topics that is receiving attention in recent times. Transparency International produced a report on this issue in 2006. The AHRC has held two consultations on this issue and produced two statements which have been widely circulated. The statement of the second meeting is annexed to this paper.
The role of lawyers
Today lawyers who deal with basic criminal law issues, issues of civil and political rights, also issues of economic social and cultural rights, are exposed to great dangers. They live in an environment which may be described as threatened. This is vast topic but those who are concerned with social change need to pay attention to this issue. A paper prepared for the discussion on this issue at a separate meeting may be found at: http://www.alrc.net/doc/mainfile.php/documents/458/
Concluding remark
There is a close link between the positive developments of law and the promotion of positive social changes. However, what we notice today is the promotion of repression and negative social changes through a process of the dismantling of institutions of justice. Those who are seriously concerned with social change need to study this common experience in order to better understand the mechanisms of violence and how to counteract them. The protection and promotion of human rights is an essential part for the use of the law for promoting social equality and positive social change.
