(Some thoughts based on experience in Asia)-
Basil Fernando, Director Policy and Programmes, Asian Legal Resource Centre and Asian Human Rights Commission
This is a summary of a paper submitted to GETTING THE MILLENNIUM DEVELOPMENT GOALS RIGHT – Towards the founding of an operational framework for the MDG-HR Nexus organized by The Danish Institute for Human Rights in collaboration with Manfred Nowak from November 17-18, 2010 in Copenhagen.
Basil Fernando presented himself as a practitioner giving an eye witness account. He spoke of the difficulties involved in finding proper language to express the actual realities of poverty and its causes, as one sees these in real life. He compared this to the problems faced by those who wanted to describe the experiences of the Jews during the second world war. Writer like Elie Wiesel have expressed the problem of finding right language to describe such problems. Following quote expresses the problems that the involved in understanding poverty:
“It is true that too many children die from malnutrition each year in this country. Some of their parents also die from starvation and hunger. But the children are more vulnerable … one of the reasons is the widespread ‘irregularity’ in the state and central government services … the Chief Minister of Madhya Pradesh state is a very kind person … the Nutrition Rehabilitation Centres is not a solution for the millions of malnourished children. These centres are not cost effective. But now that the centres are there we must effectively use them. My suggestion is to appoint a Brahmin priest in each of these centres and require the priest to verify the horoscope of every child brought to the centre. After studying a child’s horoscope if the priest is of the opinion that the child will grow into a good citizen of this country, it must be provided treatment at the centre. For the rest, I would say, let us just leave them to their fate … if not where do we stop? … We cannot spend government money like this…” (Statement and opinion of Justice Ms. Sheela Khanna, the Chairperson of Madhya Praesh State Commission for Protection of Child Rights, made to the AHRC staff . members during a visit to the Commission in October 2010. http://www.humanrights.asia/resources/hrreport/2010/AHRC-SPR-004-2010.pdf)
First, he pointed to the nexus between poverty and arbitrary deprivation of personal and property rights of individuals. Dissecting the anatomy of poverty, particularly destitute poverty, from human rights point of view perhaps can begin with the application of the Magna Carta principles: how does the deprivation of personal and property rights outside the legal process become a component in creating and maintaining poverty? Observation of concrete situations and conditions of poverty in countries in the Asian Region clearly points to such a linkage between arbitrary deprivation of personal and property rights and absence of legal protection. This is particularly true, regarding the poorest sections, whose most limited properties are taken away without any legal process or alternative arrangements. Such deprivations cause a chain of events which cause destitute poverty. Linkage between deprivation of civil rights and destitute poverty is usually neglected in development studies.
How does a section of the poor descend to the very bottom, to the lowest of income groups? Observations on this in recent times often show links to “development” projects, for the execution of which even the minimum properties belonging to poor people are forcibly taken away without respecting basic rights of these persons – such projects as dam constructions, granting locations for bigger cooperation of various enterprises and road constructions often push large sections of already poor to abysmal poverty and this is done in a completely lawless manner.
The Millennium Development goals do not mention the justice component expressly in its eight point agenda. For example, improvements of access to justice are not expressly included. However, all of these goals are implicitly linked to basic justice, without which none of the goals can be realized. The very language used in the UN Human Rights Based Approach implies justice, for example “Duty Bearers – development of capacities to meet their obligations,” and “Rights-holders – development of capacities to claim their rights”. Also the very idea of entitlements implies justice.
Some questions may be helpful in eliciting this link: can the duty bearers develop their capacity within a setup which does not have a basic rule of law framework? – From where does the duty arise? An example is deprivation of the right to property of small property holders, owners of their home property, small paddy fields or other cultivations. This example is chosen from experience of Cambodia, Sri Lanka, Burma, India and several other countries where under the pretext of development projects, lands of poor people were expropriated forcibly without any legal process. When people are dislocated from the small holdings they also lose much of the belongings and also their connections. They lose their livelihoods and are reduced to lesser income levels. Children lose schooling. A chain of events often leads to grave forms of deprivation in problems such as trafficking of persons and prostitution. Malnutrition and even starvation have been the result in many instances.
With regard to the duty bearer, the state has no legal mechanism or does not use the mechanism it has for acquisition of proprieties for development purposes, and takes land arbitrarily. Courts do not intervene to uphold the duty. In some instances “courts” have the duty to enforce orders from above, and in others the lack of access to justice prevents the poor from seeking justice. Thus, the justice issue is a primary aspect of the poverty creation process. Therefore, resolving this must be an important component of poverty eradication process.
Another example is where a system exists but capacity to deal with the problems of rights holders is obstructed by extreme difficulties of inefficiency. Can the development of rights holders’ capacities to claim their rights exist outside a legal framework that protects the rights holder who makes claims?
Right holders do not have the capacity to resist as there are no mechanisms for making complaints, investigations, proper adjudication. This is the situation of several countries where persons deprived from personal or property rights do not have any recognized forums before which they can make claims. Any kind of awareness raising, education and such exercises ultimately end with the question: ‘Where do I go to make my claim?’
If in the absence of finding a just solution to deprivation of rights does exist, how can right holders ensure that the duty holder carries out their duties?
Rights holders who are arbitrarily deprived of their basic properties and have no legal remedies still naturally resist and protest for which they are arrested and often imprisoned. This situation has arisen in many other countries. Often harsh punishments including torture, extra-judicial killing and imprisonment are used. This in turn worsens the poverty situation for individuals and families.
Can a framework for participation of the rights holders in the makings of solutions to their problems be created without a rights-based framework for such a conversation to take place? Often, duty bearers do not have a conversation with rights holders on the entitlements of the rights holders. How can their entitlements be realized? Lack of information remains a primary problem. This raises questions about the right to information. Rights holders often attempt to seek information. This leads to conflicts and often right holders are punished for making such attempts.
Rights holders need to engage in publications in order to generate the conversation needed to win their rights. At this point, various kinds of restrictions are imposed on them and sometimes these limitations are imposed through harsh punishments. These are questions relating to right to freedom of speech and publications.
Right holders also need to organize themselves to be able to effectively negotiate with the duty bearers. This raises problems related to freedom of association. If duty bearers are faced with demand from rights holders, they often try to find ways to silence them. This can take extreme forms. To generate fear, torture and other punishments are used. In this area all the basic problems of civil rights comes up including freedom from torture. All issues mentioned above are experiences in the countries already mentioned and many other countries. It is the poorest sections that are exposed to these problems.
Based on the brief description of the nexus of poverty and deprivations of basic personal and property rights there is a need to recognize that it in dealing with MDGs some implications at operational level can be considered.
- The work on MDGs in any particular country requires an assessment of the problems of rights holders due to limitations of the human rights protection framework existing in a particular country context. Basic conversation with rights holders and those associated with them must constitute an essential element of any project that is meant to help them out of poverty. Duty holders need to be brought into the realization of this component. Initial research and documentation need to include this aspect. In all mapping exercises this aspect needs to play a prominent role.
- In project assistance, the strengthening of the institutional aspects of the protection of rights holders needs to be given a key place. Institutional development needs to also be seen as a fundamental aspect of sustainability. Absence of rule of law affects the civil administration. Service delivery can be crippled in the absence of or due to failures of the administration to function efficiently. Starvation deaths can occur, despite the availability of resources to prevent them, due to problems of administration. 1
- Factors that terrorize the poor and intimidate them and thus keep them out of genuine participation need to be understood and addressed. Where the practice of torture against the poor is endemic (the use of torture is endemic in policing system in most of the countries mentioned) this aspect needs to be understood in depth through studies and documentation, and the eradication of torture need to be taken as a very important component of poverty eradication. This may require drawing upon the expertise of persons in this specific area of human rights work. In understanding the social context in places where poverty is deep, understanding the torture and poverty nexus is important. Extra-judicial killings and forced disappearances are in many instances an extension of the habit of practice of torture. Effective torture prevention is a sure strategy in poverty eradication. In this, Hong Kong is a success story.
- Corruption and poverty nexus: The link between duty bearers and right holders in all matters relating to MDGs will be affected by the state of corruption control in each country. Where corruption is at a high level, reaching the poorest and uplifting them is naturally most difficult and often quite illusory. Therefore, supporting measures for effective control of corruption needs to be incorporated into pursuits of MDG goals. In Transparency International’s ranking on corruption in 2010: Burma 176, Cambodia 154, Laos 154, Nepal 146, Bangladesh 134, Philippines 134, Indonesia 110, Sri Lanka 91, India 87 just to mention a few Asian countries. Corruption creates its mentalities that generate the kind of unscrupulousness in which worst sufferers are the poorest. Various forms of debts make their lot worst. Studies that generate understanding of this process and investing in advocacy for improvement of corruption control can contribute greatly to improve this situation. Civil society partnerships need to be incorporated into MDG strategies to achieve these objectives.
- Secrecy factor: Revelations about acute poverty is politically damaging and therefore sensitive. Duty bearers are often likely to look for ways to prevent revelations of actual situations. The poor are often kept hidden. Documentations about the lives of the poor can help in poverty eradication in this age where information can greatly contribute to prevent situations like starvation deaths, drastic cuts on education facilities and other basic services related to the eight MDG goals. Human rights activities on documentation and information gathering need to be incorporated to operational strategies for pursuing MDG goals
This list is not exhaustive but is meant to point to certain areas where human rights approach can make an impact. UNDP and other similar agencies need to adopt such strategies and support such ventures and thus expand the possibilities in human rights protection.
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1 This is common experience in India, Bangladesh, Sri Lanka, Pakistan, Philippines and Cambodia. As shown from many reports, it is also a common experience of many of the countries, where legal systems do not provide protection to the people in the event of arbitrary discoloration caused by development projects.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
