An Overview of the Police and Rule of Law in Asia

In Light of Article 2 of the ICCPR

Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.

– International Covenant on Civil and Political Rights

The Enforcement of Rights

15.1 Many Asian states have guarantees of human rights in their constitutions, and many of them have ratified international instruments on human rights. However, there continues to be a wide gap between rights enshrined in these documents and the abject reality that denies people their rights. Asian states must take urgent action to implement the human rights of their citizens and residents.

– Asian Human Rights Charter – A People’s Charter

An Overview of the Police and Rule of Law in Asia (In Light of Article 2 of the ICCPR) *

by Basil Fernando,[1] Executive Director, Asian Human Rights Commission

This paper examines the actual circumstances of the police and rule of law in Asia during recent times. It proceeds from the assumption that people in “traditional” democracies find it extremely difficult to understand what occurs in the name of the rule of law and policing in countries falling outside their paradigm. These difficulties in understanding suggest experiential differences that make misunderstanding inevitable. A worthwhile discourse between people from these different backgrounds can take place only with an appreciation of such difficulties. Classification of “North” and “South” suggests a territorial division. The classification of traditional democracies as against the others suggests much more complex historical, social and political differences, pointing to the development of different institutions for the rule of law and policing in particular.

This discussion is limited to present-day reality to avoid entering into historical debates about the extent to which before the rise of what are now known as traditional democracies there prevailed vibrant democratic models in other places (such as during the third century BC when India’s Emperor Asoka reigned over a rich democracy contemporaneous to that period). Without in any way undermining the importance of such discussions, this paper will concentrate on the actual realities that the peoples of Asia are now experiencing in terms of the rule of law and policing. It concludes by examining these realities in light of Article 2 of the International Covenant on Civil and Political Rights (ICCPR).

The Importance of Terminology

In different contexts the same terms may have different connotations, hence the need to begin by seeking some clarification.[2] A police officer may be described as a “law-enforcement officer” and to a person from a traditional democracy the two terms are likely to carry no distinction. However in other jurisdictions an explicit reference to the law needs to be part of the description of a policeman. For instance, in post-Pol Pot Cambodia there is little law in existence by way of legal enactment.[3] Thus, the activities of police officers are not guided by what laws people are supposed to observe. Police improvise their role and duties according to circumstances and policy guidance given to them from above. Even in circumstances where comprehensive laws exist, as in Sri Lanka, they can be suspended without much difficulty to allow police officers to engage in massive killings (as, for example, when they were called upon to cause mass disappearances in the late 1980s).[4] Moreover, police officers in all Asian countries are expected to use coercion-including torture-in criminal investigations. Further, legislative definitions and avenues available for law enforcement are often so different that going by legislation only can lead to serious difficulties.

In most instances, the concept of “order” is not understood as order according to the law but as order with or without the law.[5] Thus, when Chia Thye Poh was detained without trial by the Singapore authorities for 26 years it was not considered illegal.[6] In Malaysia, Anwar Ibrahim is now in prison based on his conviction secured at a trial condemned as unfair all over the world. Such acts are justified as “keeping order”, and law enforcement officers must carry out these orders irrespective of the legal issues involved. The 1999 military coup in Pakistan was likewise justified, and law enforcement officers there are now expected to act on the basis of this assumption. The justification for torture in many Asian countries is also based on the view that it is necessary for maintaining order. What follows from this situation is that the rule of law is often sacrificed under the pretext of maintaining order. Police officers are thus seen more as “order-enforcement officers” rather than law-enforcement officers.

Thus, the starting point for a meaningful discussion on the rule of law and policing is, I believe, to draw a distinction between order-enforcement officers and law enforcement officers. The main differences are as follows:

1. The concept of order-enforcement is not derived from that of the rule of law. The concept of law-enforcement, on the other hand, is based on that of the rule of law.
2. Law enforcement mandates criminal investigations to prove that crimes have been committed, undertaken through the submission of evidence. Order enforcement, however, does not require investigations or proof according to the law. This distinction has huge implications for the understanding of policing functions.
3. Criminal investigations require training, which requires basic education. Investigations also require facilities, such as forensic labs. These are not required by a police force designed to keep order through whatever means.
4. Law enforcement makes the elimination of use of torture and degrading punishment a possibility. Among order-enforcers this is not possible, and such officers have even been used to commit extrajudicial killings-sometimes on a large scale.
5. In law enforcement, policing is a function subordinated and controlled by the judiciary and prosecutors. Officers who are mobilised simply to maintain order, however, are free from such controls.
6. Law enforcement presupposes equality before the law. Order enforcement has no such prerequisite, and in fact unequal treatment is inherent in the system.
7. Order enforcement is associated with impunity while law enforcement is not.
8. Law enforcement can be a transparent process, and transparency can be maintained by procedural means, such as by keeping the required records. Order enforcement does not have such a requirement. Indeed, often an order enforcement officer is discouraged from keeping records.
9. Communication between the hierarchy and subordinates in a law-enforcement agency is usually based on written codes of ethics and discipline. Order enforcement does not require such codes, either written or unwritten.

The distinctions made above help to clarify some of the contemporary problems for the rule of law and policing in Asia. First of all, there is often resistance to the development of law. For example, more than seven years after the UN-sponsored elections in Cambodia the country has no penal code or criminal procedure code. The reasons for this deficiency are more political than technical. Development of the law is seen as disruptive to the social order maintained in the country (such as the types of property ownership that have developed since the Pol Pot era). Many activities of the newly rich would become impossible if there were an expansion of the law and its enforcement.

Secondly, in some countries, development of the law is permitted in some areas, such as commerce, but restricted in regard to personal liberties-Malaysia and Singapore are good examples of this.

Thirdly, very basic laws are sometimes suspended under the pretext that such laws are detrimental to order. In Sri Lanka, even laws relating the reporting of deaths to the courts were suspended to allow the police to engage in acts of large-scale murder and the disposal of bodies. Moreover, the national and internal security laws of almost all Southeast Asian countries have resulted in the suspension of many laws that give protection to people from illegal arrest, detention, invasions of privacy and so on.

Another factor that militates against the rule of law is globalisation. In Asia, multinational companies want a type of order in which local people cannot protest against the ill-effects of companies policies and actions. They want repressive regimes that protect their interests rather than democracies in which people enjoy the rule of law. The more misery new economic developments bring to people, the less sympathy there is to the rule of law by those who wield political and economic power. Advocacy of the rule of law has often become dangerous, with people working for democracy exposed to death threats and other risks.

All in all, the most fundamental distinctions between police officers maintaining law and security guards keeping order have been lost, even to such an extent that from July to December 2000 police officers in Cambodia’s capital handed over at least 10 alleged criminals to be beaten to death by mobs. Similarly, in October 2000 at least 26 inmates of Sri Lanka’s Bindunuwewa Rehabilitation Centre were chopped to death while 60 armed policemen looked on. Unfortunately, in most Asian countries such incidents are increasingly commonplace.

Current Actions to Monitor Police Behaviour

Equipped with these clarifications, it is necessary to examine suggestions that have been made to enforce the rule of law in Asia and define policing in its terms. In today’s Sri Lanka a popular demand is for the appointment of an independent commission to control police affairs, thereby countering manipulation of the police by politicians.[7] This phenomenon is quite common across both South Asia and Asia as a whole: the police are seen as mere enforcers of order due to political control. The call for an independent police force demands their de-linking from political control; the confinement of their duties to enforcement under the rule of law. However in Singapore (and Malaysia) there is no belief that the police will have any independence from the ruling political party. In this situation, comprehensive political reforms are a precondition for developing a police force that will respect the rule of law.

Others have pointed out that mere independence of the police is insufficient and that the functions of police investigation must be more closely linked with the work of prosecutors. For example, it has been observed that when the police are left do criminal investigations by themselves they often fail to do so, particularly when the police themselves are involved in criminal activity. The police then claim that they do not have sufficient evidence to prosecute the criminals. It has thus been suggested that the police must report all serious crimes to the prosecutors from the time they receive the first complaint and that prosecutors must share responsibility for ensuring the satisfactory conduct of investigations. Thus, the police’s practice of neglecting to comply with the law may be negated by the prosecutors’ supervision, and the “no evidence excuse” can then be rejected. Control exercised by prosecutors over the police can also help to eliminate torture, degrading punishment and illegal detention. Therefore, the principle to be established is that while the police must be made independent of the politicians they must also be made accountable to other legally established institutions.

In addition to the prosecutors, the other institution most relied upon to ensure that the police act within the rule of law is the judiciary. In this regard, the most positive Asian contribution has been made by the Supreme Court of India, which has in numerous cases intervened to prevent government misuse of the police. Of particular importance is the way in which the Supreme Court broke the authoritarian inroads attempted by the government of the late Indira Gandhi. This government’s use of emergency regulations was systematically opposed by the Supreme Court, which thereby established a prestigious place for itself as the guardian of human rights and the rule of law in India. Even on such day-to-day affairs as arrests and detention, it has intervened to ensure police discipline. In one famous case (D. K. Basu vs. State of West Bengal) the court issued a concise set of instructions on procedures for arrest and detention. The court also sought media assistance to broadcast these instructions repeatedly throughout India, where they remain exhibited in many public places, as follows:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2. The police officer carrying out the arrest shall prepare a memo at the time of arrest, and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed as soon as practicable that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal aid organisation in the district and the police station of the area concerned telegraphically within a period of eight to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officers in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest, and major and minor injuries, if any are present on his/her body, must be recorded at that time. The “inspection memo” must be signed both by the arrestee and the police officer effecting the arrest, and its copy must be provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody or by a doctor on the panel of approved doctors appointed by the director of health services of the concerned state or union territory. The director of health services should prepare such a panel for all provinces and districts as well.
9. Copies of all the documents, including the memo of arrest referred to above, should be sent to the magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation.
11. A police central room should be provided in all districts and state headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest; and at the police central room, the information should be displayed on a conspicuous notice board.[8]

The Supreme Court of Sri Lanka has also tried to intervene in matters relating to violations of human rights by the police under constitutional provisions allowing complaints against fundamental rights violations to be lodged before the Supreme Court.[9] This has become a popular form of litigation, and thousands of cases have been filed under these provisions, to which the respondents are mostly police. In numerous cases the court has declared citizens’ rights violated and has ordered compensation. Despite the many limitations placed on this form of legal redress (such as the time limit allowed for filing cases) this mode of litigation is a useful device that may be introduced elsewhere with suitable modifications. In many countries in Asia (such as Thailand, Cambodia, Singapore and Malaysia) there are no special provisions under which a violation of fundamental rights can be justifiable under local laws.

In addition to the judiciary, many other regional institutions have evolved for dealing with the violation of rights by the police. One example is the Presidential Truth Commission on Suspicious Deaths in South Korea, which has the following major functions:

• To select cases which merit investigation;
• To investigate suspicious deaths;
• To provide information and consultation related to suspicious deaths;
• To receive and process applications related to suspicious deaths;
• To take charge of matters related to restitution and compensation for victims whose death has been acknowledged by the commission as having been due to their involvement in the democratisation movement and having resulted from the abuse of power by the government in its attempt to suppress the movement;
• To take charge of matters related to compensation and necessary assistance to people who testify about a suspicious death or who provide evidence or documentation;
• To take charge of matters related to compilation and the announcement of reports on suspicious deaths at the end of the investigation;
• To take charge of matters related to finding the truth about suspicious deaths.[10]

The Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in Sri Lanka was a similar institution.[11] In fact, three commissions covering separate geographical areas were appointed, and a fourth was later impanelled to deal with the remaining cases. The commission’s mandate was to inquire into (a) people who were involuntarily removed, allegedly by agents of the state (police, army, etc.) and paramilitary groups in collaboration with them, or subversives or unknown persons, who subsequently disappeared (the present whereabouts of the person are unknown); and, (b) people allegedly held in detention in unauthorised army camps or police stations who subsequently disappeared.

National human rights commissions also are useful institutions that have become common to many Asian countries.[12] These commissions have the mandate to inquire into and report on human rights violations and so they can become one means of monitoring police observance of the rule of law.

Yet another development is the Advisory Council of Jurists that was established on September 9, 1998, at the third annual meeting of the Asia-Pacific Forum of National Human Rights Institutions (in Jakarta, Indonesia). The council will advise the forum and its member national human rights institutions, at their request, on the interpretation and application of international human rights standards. In addition to developing regional jurisprudence on international human rights norms, the council will further strengthen the effectiveness and capacity of national human rights institutions in the region. The forum’s secretariat will support the work of the council.[13]
In addition there exist many initiatives by non-governmental organisations (NGOs)-and other civil society actors-to monitor human rights violations by the police and ensure that the rule of law is respected. In most Asian countries there are NGOs who engage in activities such as making legal representations on behalf of the victims of human rights abuses, collecting documentation, maintaining databases and providing humanitarian assistance. Regionally, there are also support groups. The urgent appeals programme of the Asian Human Rights Commission (AHRC) provides a wide network for sharing information and pursuing joint actions on behalf of those who suffer abuse at the hands of law-enforcement authorities.[14]

There are also education programmes about human rights for law enforcement officers. The Bangalore Law School programme in India is one noteworthy example. Many NGOs have programmes for this purpose. However a criticism levelled against these programmes is that education is no substitute for reforms; at best it can supplement needed reforms.

A Review of Actions to Improve Policing in Light of Article 2 of the ICCPR

What is the impact of the ongoing actions mentioned above, among others? Given the massive deterioration of the rule of law in Asia and the dismal record of its police, it is difficult to reject the conclusion that the impact of these positive actions is very limited. While done with great effort and often enormous courage, these undertakings have nonetheless failed to address the problem and have at best had only peripheral effects. It can be said without the slightest hesitation that all Asian states have failed to comply with Article 2 of the ICCPR, which requires an effective remedy for the violation of rights, “notwithstanding that the violation has been committed by persons acting in an official capacity.”

In terms of Article 2, the problem of policing in most Asian countries can be summed up as follows. The prosecution of crimes and human rights abuses fails when there is insufficient evidence to proceed. The gathering of evidence presupposes the existence of a functioning criminal investigation agency. The functioning of such an agency presupposes that it has full legal powers to conduct these investigations; that such powers are not suspended arbitrarily by the law or political interference (or any other means that the agency is unable to overcome); that the agency has the human resources and technical capacity to function; and that it has a system of internal controls regarding its professional duties. Most Asian countries do not have a criminal investigation system in which all or most of these requirements for its proper functioning exist to any satisfactory degree. Thus, most Asian countries do not have a functioning criminal investigation agency, which means that they do not have a policing system that meets the criteria for proper functioning. In other words, most Asian countries have a malfunctioning policing system.

A malfunctioning policing system is not just a deficiency of a society but also a threat to that society. It encourages crime; weakens and even destroys people’s faith in seeking legal redress against criminals; causes people to feel intimidated by criminals as well as by the police; helps to build bridges between big crime and the police; allows political revenge against people holding opposing views; encourages corruption; and endangers free and fair elections, thus making the realisation of the rights enshrined in the ICCPR very difficult, if not impossible, to achieve. Glaring examples of all these instances can be found in most Asian countries, making any expectations about the rule of law unrealistic. In fact, in several Asian countries the police are treated as a serious threat to the rule of law.
Article 2 makes it obligatory for all state parties to provide an effective remedy for the violation of rights. The absence of a functioning police system indicates a failure to provide an effective remedy as required by Article 2. The question becomes how to address this problem. The human rights model that exists today is not capable of dealing with it because it presumes the existence of a functioning police system-at least to a minimum standard. International bodies established to monitor states’ compliance with Article 2-such as the UN Human Rights Committee and UN Human Rights Commission-examine the violations of rights and make recommendations where violations have occurred. When these recommendations are made, it is presumed that the state party to which they are addressed possesses the legal mechanisms, including a functioning policing system, to put them into effect. As outlined above, for most Asian countries such a presumption is baseless.

This presumption is inappropriate for most Asian countries as it is based on the structures and practices of traditional democracies, upon which the existing human rights model was founded. While violations of rights occur in these democracies, a basic structure exists for dealing with these violations, in contrast to most societies in Asia. Thus, the existing human rights model is inadequate to deal with the problems examined above, and therefore needs to be expanded. The following are some suggestions on what ways and by what means the existing human rights model may be expanded:

(1) The jurisprudence relating to Article 2 needs to be explored and developed;
(2) UN bodies for human rights monitoring must scrutinise states’ performance regarding Article 2;
(3) Human rights educational institutes must change their curricula to include more comprehensive expositions of the implications of Article 2;
(4) It is more important to encourage the reform of law-enforcement agencies than to provide them with human rights education;
(5) Human rights NGOs and civil society organisations must play an active role in exposing the limitations of the existing human rights model and exploring ways to initiate change. NGOs in traditional democracies must work in partnership with NGOs outside of their countries to achieve this objective;
(6) International agencies should make financial resources available for the achievement of this objective; and
(7) The UN Human Rights High Commissioner’s office should initiate activities and studies to promote this aim.

Problems Facing the Rule of Law:
How Uninvestigated Crimes Erode the Rule of Law

Stage 1

A complainant goes to the police.
* The police do not take down his statements; or
* The police take down his statement but do not investigate; or
* The police do not investigate sufficiently.

This complainant goes to the prosecutor.
* The prosecutor says that the police have not brought sufficient evidence to him, and therefore, he cannot prosecute.

This complainant goes to court.
* The court says that since the prosecutor has not filed a case there is nothing they can do; or
* Since the prosecutor has brought a case without sufficient evidence, the court is obliged to dismiss it.
The net result is that the crime is not disposed of within the justice system.

Stage 2
When the justice system is unable to cope with crime, lawlessness spreads.

Stage 3
When lawlessness spreads, extrajudicial punishment spreads.

Stage 4
When extrajudicial punishment spreads, belief in the law and morality declines, resulting in the very foundations on which the rule of law are based being lost.

* A paper presented at the International Workshop on Human Rights and the Police in Transitional Countries, 6 – 10 March, 2001, Copenhagen, Denmark, organised by the Danish Centre for Human Rights [Back to text]

End Notes

1. Basil Fernando, an attorney at law of the Supreme Court of Sri Lanka, has practised law in Sri Lanka and has been a senior U.N. officer in Cambodia. He is the author of several books and articles and an editor of the monthly publication Human Rights Solidarity. [Back to text]
2. Differences in understanding of common terms because of different backgrounds and experiences are elaborated upon in Basil Fernando, ” Judicial and Legal Reform: Preparing the Field,” in Rule of Law, Human Rights and Legal Aid in Southeast Asia and China: Report of the Practitioners Forum (Hong Kong: International Human Rights Law Group and Asian Human Rights Commission, 2000), pp. 1-5. [Back to text]
3. Basil Fernando, Problems Facing the Cambodian Legal System (Hong Kong: Asian Human Rights Commission, 1998).[Back to text]
4. Asian Human Rights Commission, Sri Lanka: Disappearances and the Collapse of the Police System (Hong Kong: Asian Human Rights Commission, 1999).[Back to text]
5. Basil Fernando, “Disappearances of Persons and the Disappearances of a System,” in Sri Lanka: Disappearances and the Collapse of the Police System.[Back to text]
6. “Singaporeans Demand Repeal of ISA,” Human Rights Solidarity, Vol. 9, No. 1 (January 1999); Chee Soon Juan, “Looking into the Past and Struggling for the Future: Prospects for Democracy in Asia,” Human Rights Solidarity, Vol. 9, No. 10 (October 1999).[Back to text]
7. Asian Human Rights Commission, Suggestions for Police Reforms in Sri Lanka: Final Statement of the Consultation on Police Reforms in Sri Lanka (Hong Kong: Asian Human Rights Commission, 1999).[Back to text]
8. Asian Human Rights Commission, Suggestions for Police Reforms in Sri Lanka: Final Statement of the Consultation on Police Reforms in Sri Lanka.[Back to text]
9. Article 126 of the Sri Lankan Constitution.[Back to text]
10. For more information, see www.truthfinder.go.kr. [Back to text]
11. For a lengthy report on disappearances in Sri Lanka, see the Cyberspace Graveyard for Disappeared Persons at www.disappearances.org. [Back to text]
12. For details about commissions, see National Human Rights Institutions at www.ahrchk.net. [Back to text]
13. For more information about the Asia-Pacific Forum, see www.apf.hreoc.gov.au. [Back to text]
14. For details, see Urgent Appeals at www.ahrchk.net. [Back to text]