Effective Rule of Law and Human Rights Implementation

Researched by Meryam Dabhoiwala for AHRC

Human rights discourse has been occurring most noticeably since the Universal Declaration of Human Rights in 1948. Since this time, there have been numerous bodies, covenants and organizations established to further the fundamental human rights of all peoples. There has been a corresponding amount of literature compiled on human rights. With covenants such as the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Prevention and Punishment of the Crime of Genocide, all of which are legally binding on states, the question arises as to why there has not been a parallel improvement in the human rights implementation, thereby affecting the human rights situation of so many people around the globe. The answer lies in a lack of the rule of law principle in so many countries, particularly in the developing areas of the world. Rule of law is central to any society that wishes to function effectively; without it violence, corruption and inequality will be rife. The rule of law is synonymous with the implementation of human rights; if a country is lacking in rule of law, it will be lacking in its implementation of human rights. It is damaging that so little importance has been given to the implementation of human rights given that implementation is an inherent part of the ICCPR, as it is of other key human rights instruments. Article 2 of the ICCPR requires countries to ensure that domestic institutions and practices meet international law standards, thereby ensuring the upholding of rule of law. However, there is no supervisory mechanism to ensure that this in reality is the case.

The reason for the lack of rule of law is faulty justice mechanisms _ the police, prosecution and judiciary. In most Asian countries, these systems “are so fundamentally flawed that there are constant public complaints and the absence of faith in these institutions, such as in Pakistan, Nepal, Bangladesh, Cambodia and Indonesia. Sri Lanka is an extreme example of a totally collapsed system. Malaysia and Singapore are examples of countries that deny remedies by operation of “internal security acts.” In Myanmar criminal investigations and prosecutions are totally controlled by the military regime. Even India, which in the past had a developed law enforcement system, has suffered greatly due to the operation of various anti-terrorism and internal security laws.

In ensuring effective remedies for violations of rights and thus the proper implementation of article 2, the prosecutor’s function is very important. The absence of an independent prosecuting agency is a feature in several Asian countries. In China, Vietnam and Laos, despite many attempts to carry out legal reforms, the role of the independent prosecutor has not yet been recognized. In countries such as Pakistan, Nepal, Bangladesh, Cambodia and Sri Lanka, the independence of the prosecutor has been greatly undermined by higher political authorities. Concerning political issues, the prosecution systems in Malaysia and Singapore are also defective.

[�] without independent criminal investigation and prosecuting authorities it is not possible to overcome impunity […] Thus the absence of adequate criminal investigation and prosecution mechanisms creates a vicious circle in which the work of human rights organizations is defeated by the very legal mechanisms upon which they rely.”¹

The reason for such problems in many Asian countries is the fundamental difference between the `rule of law’ principle, and the `rule of order’ practice. With reference to law enforcement, “the activities of police officers are not guided by what laws people are supposed to observe � Moreover, police officers in all Asian countries are expected to use coercion – including torture – in criminal investigations.”² Law enforcement agencies are meant to keep `order’, with or without the law. Thus “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.”³ The differences between these two categories are what give lie to human rights abuses:

� Order enforcement does not require proof of crimes committed, so investigations are never undertaken;

� It is the rule of law that requires the elimination of torture and degrading punishment: order enforcement has no such requirement;

� A system interested in maintaining order frees its police from the controls of the judiciary and prosecution, while keeping them under the influence of political powers;

� Order enforcement creates inequality and discourages transparency.

Human rights violations do not for the most part occur occasionally or as isolated incidents. It is necessary to look at the context they occur in; in other words, the system which allows them to occur. Sometimes the reason for systemic human rights violations is precisely due to the enforcement of harsh laws whose purpose is the domination and repression of society. Thus it is necessary to look at the laws of a country; in particular, those laws inherited from other times and societies �such as in Asia, where colonialism played a big role in the adoption of international law�need to be carefully examined for their contemporary relevance. Rule of law should translate into the enforcement of laws that serve the public, rather than dominate them.

Some general principles of such laws would be: the principles of natural justice must be observed; all laws should be prospective, open and clear; the independence of the judiciary must be guaranteed; the discretion of crime preventing agencies should not be allowed to pervert the law.

Such rule of law is central to the proper functioning of any society. Genuine democracy, the elimination of poverty, popular participation: none of these can occur effectively without the establishment of rule of law. While in many countries there is a tendency to displace rule of law as a prerequisite to economic growth, this only makes the economic situation worse, as well as worsening the plight of the poor and downtrodden. Poverty has to be fought with rule of law. Public participation will also be enhanced by the establishment of functioning justice mechanisms; participation has been a key element in development discourse, but it is overlooked that participation is unlikely without adequate protection. However, if the people are assured of protection from the relevant justice mechanisms, they are far more likely to participate and create solutions for their problems.

While the rule of law is itself implicit in the ICCPR, one of the reasons it has been brushed aside so easily is the fact that functioning judicial systems are taken for granted in the more developed nations of the world. Article 14.1 of the ICCPR states that everyone is equal before courts and tribunals, being entitled to hearings by a competent, independent and impartial tribunal; these factors are essential prerequisites to achieving rule of law. However, these factors are assumed by developed nations to be a given in the rest of the world as well, which is clearly an illusion. Without a functioning judicial system, there can be no effective rule of law, which in turn means that there is no mechanism in place to ensure the implementation of human rights or to correct human rights violations. Rather than looking at whether a country has merely ratified the ICCPR, the country’s legal structure should be examined _ does the country’s legal system (even theoretically) meet the requirements of a system under the norms of article 2 of the ICCPR? If the system itself is flawed, there can be no expectations of compliance to the ICCPR. Thus it is first necessary to expose the legal mechanisms which allow human rights violations to take place.

The rule of law has not so far been an essential component of human rights of development discourse, largely because, as mentioned above, it is taken for granted in the more developed countries of the world. Under the illusion of functioning justice mechanisms in less developed nations, these countries focus on themes such as `democratization’ or `rural development’. But money given for rural development is not much use if corruption at the level of government officials is rife. Presidential elections are worthless if voters are intimidated into choosing one candidate over another. Political will in itself is not enough to change the human rights situation and the lack of it is not an adequate explanation for rights violations. As Basil Fernando says, “many a government brought to power by popular upsurge against a tyrannical regime ends up unable to do much to halt continued violation of rights, despite good intentions. This is often due to … structural problems that do not automatically change.”⁴ To facilitate such change, what is needed are effective justice mechanisms which as institutions are independent _ they should function effectively regardless of which government is in power.

Similarly, the recent trend of human rights awareness and education campaigns has not been particularly useful in improving conditions on the ground precisely because awareness without implementation will have little impact, if at all. In the wake of such campaigns there has been an increase in human rights conferences and legislation. Legislation on its own also cannot accomplish much _ this legislation needs to be enforced for it to be effective.

Therefore, preventing human rights violations is indelibly linked to the establishment of rule of law. The judiciary, prosecution and police systems of a country must all be functioning effectively, to enable the monitoring and correction of human rights abuses. It is only combined with the rule of law that democratization and the elimination of poverty can be successful.

The following case studies of various Asian countries illustrate the link between the rule of law and human rights violations in more detail.

Sri Lanka: Policing and torture

The International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as an intentional act committed by state officials, which involves strong physical or mental suffering for the purpose of extracting information, as a punishment or for intimidation. Peter Baehr states that while the most common justification for torture is the necessity to obtain vital information, torture is also habitually used as a means of repression and intimidation.⁵ This is the case with Sri Lanka. While Sri Lanka acceded to the CAT in February 1994, the country has made little progress in its deploring torture conditions. Article 11 of Sri Lanka’s 1978 constitution states that no person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.⁶ This is a fundamental right that applies to criminals and non-criminals alike. However, torture is practiced consistently in Sri Lanka; it is daily carried out by the police for reasons far more trivial than obtaining vital information _ July 2003 saw the death of a 28 year old man due to custodial torture, for refusing to give the police a share of the lottery he had just won.⁷ Ineffective prosecution and judicial systems add to the transgressions of a corrupt police force.

Torture is a violation of the most fundamental concepts of human dignity and integrity; Baehr states that “torture presupposes a fundamental inequality between the torturer and the tortured; the first denying the latter’s very humanity.”⁸ It is for this reason that the right to be free from torture is a jus cogens norm: a norm higher than customary international law and from which no derogation is possible.⁹ Apart from the legal severity of torture, there are also grave social ramifications, which can be seen in the Sri Lankan society: the legitimization of violence, which results in making the act of torture relative; acts of torture in the public sphere inevitably lead to torture in the private sphere, especially in the form of violence against women and children; torture also destroys the ideals of democratic institutions, particularly law enforcement agencies and makes fair trial impossible.

The situation in Sri Lanka reached a point where the routine use of torture contributed to a culture of barbarity in policing at all levels throughout the country. There existed a “systemic crisis of immense proportions � not confined to a particular part of policing or region.”¹⁰ Such were the standards of `normal’ policing in Sri Lanka, as is illustrated by the torture of 17 year old Chamila Bandara, who has now permanently lost the use of his left arm. In his statement, Chamila said,

“Then they put my hands on my back and tied my thumbs together with a string, and they put a fibre string between the thumbs and hung me on a beam on the ceiling. One officer pulled the fibre string so that I was raised from the ground. When I was raised, my hands turned, and they became numb. Then the OIC [officer in charge] kept hitting me on my legs and soles with a cricket wicket. He hit me on my thighs. While hitting me in this manner, he asked me who my friends were. Because of the extreme pain, I said, “One is Roshan Deepal, and the other is Salier.” Because of the unbearable pain, I said, “Though I did not do any thefts, I am willing to admit to anything.”¹¹

Such conditions gave rise to a sense of helplessness, leaving people resigned to their circumstances. As one Sri Lankan lawyer who has worked closely with AHRC said,

“I am amazed at what has been happening over the last three years. Before, people would say there is no point in talking about torture, it is too deeply rooted in our society. People will not support our fight. However, now the situation is very different. The public and media constantly talk of torture. Several officers have been arrested under the prevention of torture law, Act 22 of 1994. The Government had to promise that it will act to stop torture. Judges are giving higher compensation to victims and a national consensus is emerging to eradicate torture.”¹²

Sri Lanka is also a country troubled by the phenomenon of `disappearances’. Dissidents and opponents of the regime would suddenly disappear, with the authorities claiming to have no information about them. According to the 1992 Declaration on the Protection of All Persons from Enforced Disappearance, disappearance constitutes a violation of the right to recognition as a person before the law, the right to liberty and security of the person, the right not to be subjected to torture and the right to life.¹³ The UN Working Group on Enforced and Involuntary Disappearances has stated that Sri Lanka is second only to Iraq in terms of the number of disappearances caused in a country.¹⁴ While government appointed commissions have reported on about 26 000 cases, prosecutions have been initiated for only about 400 cases of disappearances, and even this figure is disputed by many organizations.¹⁵ These organizations have also concluded that most of these disappearances were killings after arrest and were carried out as part of a plan approved by the highest political authorities.

Jayanthi Dandeniya, a Sri Lankan trade unionist, lost her boyfriend in this phenomenon of disappearances. Since then, she has worked hard to correct such systematic human rights violations. In her testimony, she said

“The UN Working Group on Disappearances made many recommendations to the Sri Lankan government to prosecute offenders. But these recommendations remained merely on paper, nothing was implemented. We were caught in a dead lock. Then during the late 1990s we came across AHRC. AHRC representatives told us that we must work to improve the implementation of human rights. They insisted on IMPLEMETATION. We agreed that for implementation, we would need to bring forward the issue of disappearances in a big way. AHRC sent us to Kwangjju, South Korea, where there is a very strong solidarity movement. We saw the big monument built for those who were killed in the Kwangjiu uprising of 1980. The people of Kwangjiu were strong in keeping the memory of the event alive and in attempting to prevent such an event from recurring. On our return we discussed that we too must do something similar, on a smaller scale. AHRC supported this move and helped us. We inaugurated the Monument for Disappeared Persons on 4 February 2000. February 4 is our national Independence Day. This event caught the imagination of the people. Many families of disappeared persons came together again. We are pressuring the government to prosecute offenders, and to use legal means to make the causing of disappearances a crime. We realized that we cannot only work on the disappearances issue, we have to work on larger issues like torture and the rule of law. We joined the AHRC network and began work on these issues as well.”¹⁶

Sri Lanka’s institutionalized practices of torture and disappearances have evolved with the country’s ongoing civil conflict. Governments have used the conflict to enforce draconian laws contradicting the constitution and international obligations, such as the Prevention of Terrorism Act (PTA) and the Emergency Regulations.¹⁷ Under the PTA, a police officer may arrest someone connected with or suspected of being connected with unlawful, `terrorist’ activity, and keep them in detention for 72 as opposed to the usual 24 hours before bringing them before a magistrate. Such measures resulted in the mass disappearances of the period 1989-92, with unofficial estimates believing over 60, 000 persons to have disappeared.¹⁸These laws, together with Sri Lanka’s current justice system not only allow human rights violations, but prevent the prosecution of violators.

Sri Lanka’s current justice system comprises an absolute separation between the criminal investigation and prosecution apparatuses. Criminal investigation is entirely the job of the police and if they fail to investigate, the prosecutors can simply say there was insufficient evidence for a case.¹⁹ It is necessary to create a link between the two departments, enabling joint action from the beginning of a case. Also, currently the prosecution apparatus lies with the Attorney General’s department, where lawyers are constantly shifting their work types.²⁰Thus it is necessary for the creation of professional prosecutors, with adequate training and specialization, enabling them to conduct efficient prosecution cases.

ALRC claims that the major obstacle to the prosecution of the perpetrators is the lack of criminal investigations into the disappearances when they occurred _ investigations were prevented by the enforcement of special emergency regulation laws, which created the background for mass disappearances. The bodies were allowed to be disposed of without any report being filed, or any inquest held. Most of the bodies were burnt, so examination of the bodies during belated inquiries is impossible. Furthermore, since the alleged perpetrators are law enforcement officials themselves, conducting credible inquiries through police agencies would be absurd.

It is clear that in order to address the issues of torture, disappearances and other related human rights violations, it is essential for Sri Lanka to improve its criminal justice system. A link must be established between the police and prosecution departments, in order to break the vicious `no evidence’ circle that currently exists, due to the responsibility of criminal investigation resting with the police. The prosecution needs to be involved from the beginning of the case, so they can suitably guide the police during investigation.

Both the prosecution and police departments themselves must be strengthened _ the police need to be made more accountable, while there needs to be a professional category of prosecutors. With an increasing amount of crime and torture committed by police officers themselves, an independent agency should be established to deal with crimes committed by law enforcement officials. This will also make it easier for prosecutors to do their job more effectively. Prosecutors however, need to be more qualified and professional. Under the current system, prosecutors are simply attorneys-at-law. There is no training or specialization procedure, which is essential to competent prosecution of serious crimes. With the establishment of professional prosecutors, institutional habits within the prosecuting system will also be created, which will help ensure continuity to the proper conduct of prosecutions.

While many of these are structural changes requiring government initiation, there is much that can be done by civil society. As was shown in Jayanthi’s instance, friends and relatives of victims can be important vehicles for change, as can victims themselves. They should be given the support of NGOs and other international bodies. By observing South Korea’s solidarity, Jayanthi was given a moral boost that allowed a similar solidarity to occur in Sri Lanka. International civil society movements are crucial to developing better universal human rights mechanisms.

The Sri Lankan judiciary has its own role to play, as illustrated in the case of victim Gerald Perera, who was arrested on mistaken identity and then brutally tortured:

“The court held that victims’ rights against torture, illegal arrest and detention is further violated in Sri Lanka, as courts award very low sums, most below US0 as compensation for torture. Only in a few cases has it gone up to US00 or 5000. However, in this case the court awarded around US,000 inclusive of medical expenses. It is a remarkable increase from a local point of view. Such awards will set precedence. Sri Lanka is a common law country where precedents have the effect of law.”²¹

With the judiciary insisting on accountability, it will be harder for the Sri Lankan police to affect impunity in committing torture and other human rights violations. It will also encourage more victims and citizens to speak up and defend their rights.

Training and funding will also be needed in improving Sri Lanka’s criminal justice system – this is an area in which development cooperation is essential. Various governments and international agencies may work with Sri Lanka to set up appropriate training programs and send relevant expertise to the country; be it for the purposes of police or prosecution reforms.

Cambodia: Absence of functioning justice mechanisms

Cambodia is a country with no functioning legal system. Although in 1974 the United Nations Transitional Authority on Cambodia (UNTAC) was established, which produced some laws, these were administered to the country via a socialist system that was still in place. For this reason the laws never had any weight, and in large, members of the legal system were not able to even understand the concepts behind such laws. At the same time, the laws are largely inadequate: there is an “absence of organic laws [which] makes many other laws, including the constitution, inoperative.”²² Cambodia does not have either an adequate penal code or a basic criminal procedure code, let alone laws relating to the judiciary or civil matters. The laws that do currently exist are defective or contradictory. For instance, while article 24(3) of the 1992 UNTAC Criminal Law and Procedure Act states that confessions under any form of torture may not be admissible as evidence of guilt, article 125 of the 1993 Law of Criminal Procedure Act unequivocally recognizes without any prohibitions, the reception of confession as evidence of guilt, whether made to a police officer or otherwise.²³ In other cases, it is the twisted interpretation of the laws that is to blame, such as the Ministry of Justice interpretation of UNTAC law stating that police may continue their investigation after 48 hours as meaning that the police may not do anything unless requested by the investigating judge or prosecutor.²⁴

Although Cambodia is a party to the International Covenant on Civil and Political Rights (ICCPR) and the Cambodian constitution incorporates ICCPR principles such as protection of the right to life, the right to liberty and security, including freedom from arbitrary arrest and detention, the right to fair trial, these rights are consistently violated with no effective justice mechanisms to correct such violations.²⁵ This being the case, it is no surprise that impunity, torture, illegal arrests and detention, as well as forced confessions are regular incidents of Cambodian life. Cambodian legal aid organizations report that approximately twenty percent of all their cases involve forced confessions.²⁶ Lawyers have a hard time proving confessions are forced, as the police tend to keep victims in custody until signs of violence have disappeared. Victims tend to confess to prosecutors as the police threaten them with more violence if they do not confess. Therefore while article 38 of the Cambodian constitution states that “confession obtained by physical or mental force shall not be admissible as evidence of guilt,” confession is still the main technique of proof, and trials are held to simply get the confessions “obtained during police investigation confirmed by the accused at a public hearing.”²⁷ Torture is not an offence under law, and there is no legal procedure to establish that torture has occurred. Therein, Cambodia is also in breach of its obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

The legal system in Cambodia having proved itself incapable of dispensing justice, Cambodian citizens have resorted to `revenge’ killing, which the police either have no control over, or simply turn a blind eye to.²⁸ For example, on 19 August 2000, Rim Bros was taken from the Sam Pov Loun district police station, Battambang, while in police custody for an alleged rape; his penis was chopped off and he was beaten to death by a large mob with sticks and rocks. On 15 September 2000, Sna of Chankar Morn Section, Phnom Penh, was beaten to death at Dankor Market after attempting to escape from the police, having been accused of the theft of a gold watch.

Such practices are not simply the product of public outrage or mob violence; they are rooted in the failure of Cambodia’s criminal justice system, which encourages elements of the public to seek violent alternatives. The failure of the justice system is manifested in these ways:

Judiciary

� Judges are too close to the military and political parties;

� Ministry of Justice influences judges through circulars which

judges have to respect as laws;

� Most judges are not fully qualified, especially with regard to international law principles;

� Socialist trials are still the norm; it is presumed that if a person has been arrested, there is enough evidence to find them guilty, so judges have already decided on the verdict prior to the trial;

� The Supreme Court is ineffectual _ it has never conducted public hearings and only has the rights to read municipal court files and to recommend retrials by the same court, although these rights have never been exercised;

� The Appeals Court functions in the same way as the rest of the courts _ the judge prepares the decision before the appeal opens;

�Trial judges are likely to conclude that the defendant is guilty since the prosecutor has sufficient evidence against them to go to trial.

Prosecution

� Socialist trials have no function for lawyers;

� Public prosecutors are under the supervision of the Ministry of Justice, which can mean negative interference in prosecution affairs;

� Public prosecutors do not have the authority to investigate cases; they rely on the information given to them by the investigating judges;

� Most prosecutors are appointed and have little legal background;

� The state has not recognized its obligation to provide legal aid;

� Lawyers cannot claim the right to represent their clients at all stages and there is limited opportunity for them to intervene during pretrial stages.

Policing

� Law enforcement officers form no disciplined police force; criminal investigations are left to the military police and judicial police;

� Police have no power to investigate cases unless required by investigation judges;

� Police are under no obligation to record complaints, initiate investigations or send cases to court, they may stop investigations whenever they wish.

Underlying these manifestations of ineffective justice mechanisms is Cambodia’s continued attachment to pre-UNTAC socialist structures. In a totalitarian society the approach to criminal investigations is influenced by a legal structure where the predominant interest is the protection of the State, as against the liberties of the individual.²⁹ For this reason the concept of investigation does not exist within a socialist system; it is the confession that is emphasized upon. Unlike criminal trials in liberal democracies, in a socialist system “the investigators, the prosecutor and the judge collaborate in gaining and perfecting a confession in a manner that the conviction of the accused becomes socially convincing.”³⁰ This being the case, there is no real function for lawyers.

Former Cambodian Minister of Justice gave an honest account of trials in the country:

“The judge prepares his decision before the trial opens. Before the case opens, he already has a model. During the trials, issues may be brought up that modify the judge’s decision. If the responses to questioning or testimony are slightly different than expected, the judge will modify the decision for 10 to 15 minutes at the end of the trial. If the events during the trial are very different, he must suspend the trial until a later date. At that time, he will look at additional evidence and write a decision. Judges always make a map of their decision after looking at the [pre-trial] evidence.”³¹

This depiction of criminal trials clearly shows that the international law principles set out by UNTAC are not in practice within Cambodia. UNTAC’s failure was primarily due to writing a constitution and provisional laws of liberal, democratic principles without purging the existing totalitarian structures. To correct this failure, Cambodia needs to build new justice mechanisms from scratch. This involves the enactment of comprehensive laws, which need to be made clear to public officials, as well as the general population. Primarily, Cambodia needs a new penal code and a criminal procedure code. The new laws should also cover the establishment and mandate for essential institutions such as the police, judiciary and prosecution. The existing judiciary, prosecution and police systems are not worthy of their titles. They are the result of a socialist system that has yet to be purged from the country. The establishment of new justice mechanisms goes hand in hand with the enactment of laws; one without the other is ineffectual.

Cambodia will need much international assistance to accomplish the monumental task of creating a new legal structure for itself. It will need financial assistance as well as legal expertise with regard to enacting laws _ legal texts, documents, interpretations. While several NGOs have already done a great deal for Cambodia’s legal aid system, much still remains to be done.

Funding and training will be needed also for the new police force, judges and lawyers, which international agencies can help with, both in terms of financial assistance as well as expertise. While under UNTAC training was given to a number of judges, this was ineffectual, as the system the judges worked in functioned under socialist principles. A lesson must be learned from this; abstract training is equivalent to no training at all. For the training to be effective, principles of international law must be seen to exist. All members of the justice system, be they police, lawyers or judges, must be familiar with not only the laws of Cambodia, but also human rights principles under various international covenants.

To help with investigations, there should also be the development of forensic and other scientific facilities.

It is important for Cambodian civil society to play a role in the revamping of the legal structure, because otherwise it will be hard to legitimize the structure. As mentioned before, the Cambodian people have lost all faith in mechanisms of justice, thereby taking it upon themselves to commit `revenge killings’. These will not stop until the people sense positive changes occurring and acknowledge the authority of the legal structure. For this to happen, they must play some role in its creation themselves. The population needs to be mobilized into citizens’ tribunals, civil society movements, and other organizations. This can be helped by NGOs already present in Cambodia, as well as other international organizations.

India: Institutionalized communalism/discrimination

India’s caste system continues to cast its shadow over the country’s secular and democratic constitution. Although article 17 of the constitution abolishes the practice of untouchability, and articles 14 and 15 call for equality and the prohibition of any form of discrimination, the call goes unheard. Social discrimination is rife in India and increasingly takes the form of police and state abuse towards scheduled castes, as well as other ethnic minorities. While India is a party to the International Covenant on Civil and Political Rights and while the Indian constitution incorporates many of the human rights stipulated in the Universal Declaration, there is an enormous gap between theory and practice, as illustrated by the daily human rights violations encountered by a large number of the population, as well as by the periodic communal riots and massacres that occur, killing terrifying numbers of people. In most of these incidents the police play a complicit role, with political powers using the events as electoral capital.

According to S K Verma, the Indian police “have been viewed as coercive in nature. Incidents of police violence, torture, custodial atrocities and excesses are reported daily in every leading newspaper, including the vernacular press of the country, and makes painful and shocking reading.”³² Such excesses take the form of various practices: from selective registration of complaints, illegal detention, to the `manufacturing’ of evidence.³³ These practices exist due to the corruption of the police force, and a political unwillingness to hold the police accountable under the law.

P J Alexander writes that the Indian criminal justice system on paper is remarkable, to the extent that the British-enacted Indian laws “had in them rights which they [the British] did not enjoy in England and contained provisions for a fair trial and protection of the rights of the accused, almost parallel to present day concepts.”³⁴ Unfortunately, the system remains on paper. In practice, the police commit many human rights abuses, while the judicial system is not adequate for correcting such violations. Discriminatory attitudes are rife amongst law enforcement officials; the Indian police force is known for its communalism and political affiliations. What this means for the general public is the use of either bribery or political influence to register any complaint, or to move a case forward. For this reason, a large number of cases are never registered with the police, particularly by the weaker sections of society; the Indian police have a tendency to “violate the human rights of the people who are designated [by society] as lesser human beings.”³⁵ For this reason, scheduled castes do not lodge many complaints with the police, being apprehensive of threats, grudges and further atrocities against them.³⁶ When the police feel they have no choice but to register a case brought by a Dalit, they change the nature of the offence so that it can be tried under the Indian Penal Code, rather than the Protection of Civil Rights Act; as the IPC offers lesser punishments.³⁷ In the state of Karnataka, there has not been a single conviction regarding cases pertaining to the atrocities on scheduled castes and tribes for the last three years, even though the number of cases reported have been increasing.³⁸

According to the National Campaign on Dalit Human Rights,

“every hour two Dalits are assaulted; ever day three Dalit women are raped; every day two Dalits are murdered; every day two Dalit hourses are burnt down. Large scale violations perpetrated on Dalits involve burning of homes and fields, murder, torture and beating of women, molestation, rape, death in lock-up and custody, and others [�] Dalits live in separate colonies, far away from caste Hindu localities. They do not have access to pubic wells or public eating-places. They cannot enter Hindu temples. Inter-caste marriages are prohibited, both by religion and practice. Atrocities against Dalits basically arise in the context of “keeping Dalits” in their place within the social hierarchy mediated by case and untouchability [�] The rising consciousness of Dalits and resistance on a wide range of issues such as distribution of surplus land, minimum wages, dignity and justice have led o brutal caste violence against Dalits.”³⁹

However, discrimination in India is not only towards Dalits; adivasis (indigenous tribal people), women and other minorities all suffer their share of discrimination. For instance, the adivasis are constantly being removed from their land, a recent incident being:

“On July 21 about one hundred police and security personnel demolished houses and destroyed crops belonging to indigenous Adivasi people in Maharashtra, India. They burnt down hundreds of huts and more than a thousand acres of crops. About two hundred families now have no homes, no food, no livelihood and no place to go. [�]The police and their accomplices were acting on orders of the Maharashtra State Farming Corporation, which holds title over the land the Adivasis are contesting. They carried out the destruction without giving notice and despite community leaders showing documents that an appeal over the title is pending before the Revenue Commissioner at Nashik. At least one leader was placed under detention without charge for the day.”⁴⁰

Not only did the police violate laws of criminal procedure by failing to serve notice to the adivasis, but the acts of destruction were also in clear violation of the Maharashtra Agricultural Land Act of 1961, as well as India’s international obligations, such as the rights to food and adequate shelter.

Another example of police ill-treatment of adivasis, is a recent death of a tribal member in police custody:

“Mr Khemala was allegedly accused of theft. Police picked him up from his home in the early hours of 14 June. He was handcuffed and brutally beaten up in front of others who had been rounded up and brought to the police station. Consequently, Mr Khemala started vomiting blood. His brother Sayba, who had already been taken into police custody on similar charges, was witness to what happened to Mr Khemala. When Sayba tried to give his injured brother some water to drink, the local Sub Divisional Officer of Police (SDOP) who was apparently present there, kicked him in the stomach. [�] Soon after this, Mr Khemala fell unconscious. The police then dragged him out where he had been locked up. They subsequently took him to the local hospital, and later to the Budwani Government Hospital. However, by the time the body reached the hospital, the attending doctors pronounced Mr Khemala already dead. [�] Meanwhile, the police released the other inmates in their custody, who had been witness to the brutal beating inflicted on Mr Khemala. The police ordered these persons to go far away and not to be seen in the vicinity for the next 3-4 months. [�] It has been learnt that the police officials who were allegedly present during Mr Khemala’s physical abuse have now absconded. The tribals are demanding the immediate arrest of these police officials.”⁴¹

Needless to say, the government has yet to take action against the perpetrators.

Women are also victims of discrimination in India. Custodial rape is not an unusual phenomenon, and its conviction rate remains at zero. Rape committed by armed forces is also common in areas of insurgency, such as Northeast India, where rapes are usually carried out during combing operations. With immunity from prosecution granted by the Armed Forces Act of 1958, the perpetrators walk away free.⁴² Many rape cases go unreported, with the victims’ fears of “being stigmatized, losing marriage opportunities, revealing lost virginity, or [being] reluctant to talk about a sexual act in public.”⁴³

The threat of rape and physical abuse of female family members is also used by police officers to force suspects to confess. In countless instances, women have been compelled to present themselves at police stations, where members of their family are either being held or looked for, then threatened with being stripped, paraded nude in the streets or raped. ⁴⁴

Institutionalized communalism and discrimination also shows itself in the periodic communal riots and massacres that India is home to. While ethnic minorities make up approximately 80% of the Indian population, the Hindus are the majority and in large part make up the Indian government. Increasingly politicians have been spouting the Hindutva ideology, which means the Hindu `reawakening’ and calls for the return of a pure Chaturvarna-based society, from which all `others’ are excluded.⁴⁵ Communal tensions have been used time and again as political strategy. The latest in line was the Gujarat pogrom of 2002. This was a clear illustration of state and police complicity in the killing of more than 2,000 Muslims.⁴⁶ The Indian police are but a tool of oppression for state officials, offering little protection to citizens.

These manifestations of communalism and discrimination stem from the Law of Manu, under which India was governed for thousands of years prior to British rule. The Law of Manu was a set of social laws that introduced the rigid caste system. According to this system, Hindu society was divided into four varnas or categories, associated with particular social occupations. The Dalits have no legitimate place in such a society, as they do not belong to any of the four varnas. Their social occupation involves “skinning animal carcasses, tanning leather and making shoes and belts; butchery of animals; removal of human waste; attendance at cremation grounds.”⁴⁷ Such work is considered `polluted’ or `unclean’, and hence Dalits are considered to be a permanently polluted people. The Law of Manu entailed the social sanctioning of dire treatment to certain classes, such as the “poor, Dalits and women.”⁴⁸ Such sanctioning still exists and its basis lies in the fundamental belief in the inherent inequality and `difference’ of individuals. In the caste system, inequality is the ideological basis for a good society; this being the case, “[c]aste society does not deny the practice of discrimination; it instead rejects the concept of discrimination in itself.“⁴⁹

The Hindutva movement in India, which is calling for a return to the rigid caste structures of old, is also seeking the annihilation of the other. In a Chaturnarva society, there is no space for Dalits or other minorities, except as outcastes. It is unfortunate that the majority of the Indian political elite are espousing such ideology, and even more unfortunate that they have such a large influence on the police.

The Indian police force was established during British rule, to maintain `order’. This was not necessarily done through any legal means. Not much has changed: today, the state confers arbitrary power to the police under a similar pretext of maintaining law and order, and in so doing, legitimizes human rights violations.

The Indian police today are also a product of social prejudice and bias. Kumar writes that most police officers come from rural areas and middle class families, unable to easily divest themselves of certain preconceived notions; “it is this mental block that is the greatest hindrance towards faithful implementation and enforcement of social legislation.”⁵⁰ This explains the scenario of police officers being in league with upper caste persons, and inflicting atrocities on weaker sections of society, in many cases under the pretext of maintaining law and order. This is related to the fact that police training is “archaic in content and methods. The emphasis is still more on muscle than on the mind. Human rights, if at all, form an insignificant module in the training programme and there is hardly any emphasis on human rights in the training of constables, who form 85 percent of the force.”⁵¹

With these being the social and ethical constructs of Indian society, it is obvious there is a contradiction with international legal norms, as well as with the norms of the Indian constitution. This will explain why there are movements in India today who see the concessions made to the lower-castes in the constitution as mistakes that need to be rectified.

In order to bring India back in line with its constitution, it is essential for the police force to become independent from state and political influence. The force needs to be reformed, with an emphasis put on human rights training. The police must be made to realize that they are accountable under law for their actions; the judiciary must exert its authority in such instances. The annihilation of the caste system, together with other forms of discrimination is a monumental task that will not be accomplished over night. Apart from the implementation of legal procedures to abolish discriminatory practices, what is also needed is a parallel social evolution. The exclusionary nature of the caste system means that it is not enough for one caste to open its margins, all castes must do so; “while one caste may make a decision to exit from its boundaries, entering into boundaries held by others requires their consent. As long as the most socially and politically powerful castes desire to remain enclosed, lower castes’ decisions to break open their own part of the system will have little effect.”⁵²

It is obvious that the annihilation of such a system and corresponding mind-sets will not happen overnight. It seems equally obvious that any change in the system will have to come from civil society, as the Indian government and its institutions have failed. Justice H Suresh has suggested that people’s hearings, or jan sunvai, would be a good avenue for the advancement of Dalit rights; by communities taking the initiative to establishing tribunals to hear atrocities and try offenders, they are likely to advance their cause significantly.⁵³Similarly, if groups of citizens were to work with state organizations such as the police, as well as with lawyers and national commissions, there would be greater transparency and motivation to act for the communal welfare, rather than for political pressure.

Police reforms are essential, although these cannot be brought about only by the people, but must be initiated by members of the police force and the government. The police must be given adequate training in criminal investigation, as well as being made aware of human rights principles and the socio-economic situation on the ground.

Greater resources for the development of scientific and forensic investigation should be allocated. The police force must be moved away from state and political influence: to this effect, an independent agency should be established to monitor the actions of police officers themselves, thereby making them more accountable.

International pressure and assistance can do much to lessen institutionalized discrimination in India.

Hong Kong: Institutional independence

The Independent Commission Against Corruption (ICAC) is an institutional success story, different from the previous three case studies. A key component of effective rule of law is institutional independence. The justice mechanisms of a country _ the prosecution, police and judiciary _ should all be independent of political influence and should be able to function on their own steam, in terms of both resources and ideology. Without this type of independence, the legal structure of a country will always be under threat, whether from political rivalry or vested interest groups. Such independence was the hidden success of the ICAC in Hong Kong.

The 1970s proved to be a difficult period for Hong Kong, with corruption levels increasing and permeating through all levels of society:

“At that time, the problem of corruption was very serious in the public sector. Vivid examples included ambulance attendants demanding tea money before picking up a sick person and firemen soliciting water money before they would turn on the hoses to put out a fire. Even hospital amahs asked for “tips” before they gave patients a bedpan or a glass of water. Offering bribes to the right officials was also necessary for the application of public housing, schooling and other public services. Corruption was particularly serious in the Police Force. Corrupt police officers covered up vice, gambling and drug activities. Social law and order was under threat. Many in the community had fallen victims to corruption. And yet, they swallowed their anger.

Corruption had no doubt become a major social problem in Hong Kong. But the Government seemed powerless to deal with it. The community patience was running thin and more and more people began to express their anger at the Government’s lukewarm attitude towards tackling the problem. In the early seventies, a new and potent force of public opinion emerged. People pressed incessantly for the Government to take decisive action to fight graft. Public resentment escalated to new heights when a corrupt expatriate police officer under investigation succeeded in fleeing Hong Kong. The case provided the straw that broke the camel’s back.”⁵⁴

It is clear the rule of law was being undermined in Hong Kong, resulting in human rights violations. Public pressure demanded a government response to end such practices, and this pressure translated into the formation of the ICAC. Since its establishment, Hong Kong has become one of the least corrupt places in the world, and its residents are sure of the prosecution of illegal activities, regardless of the seniority/influence of the perpetrator. This is indeed an improvement from the previous situation, and should be studied to see if its emulation can take place elsewhere, particularly in the three countries discussed above. With this goal in mind, here is a synopsis of the structure and work of the ICAC.

The organization was established in 1974 on the principle that control of corruption must be a function separate from the police. Furthermore, initially a large part of ICAC’s work consisted of holding the police accountable under rule of law; its very first case was against ex-Police Commissioner Godbar, who fled Hong Kong after making a fortune of about HK$ 4 million, four times his life time salary. ICAC was able to get Godbar extradited and prosecuted. Although initially there were revolts by the police, ICAC’s uncompromising stance led to a complete transformation in police discipline, which gradually made itself felt in all other sectors as well.

The three objectives of the ICAC are the enforcement of anti-corruption laws, the identification and elimination of opportunities for corruption and the education of the community on the evils of corruption. In order to achieve these objectives several factors played an important role: political will to end corruption, which was willing to create an independent institution and provide it with adequate resources to “fight not only the battle but also the long-term war”; legislative support, giving the ICAC specific powers to attain their goals; professional and dedicated staff, who possessed the necessary integrity, efficiency and vigilance to do their job well and were given the necessary training and equipment to help them; public support, which translated into vigilance against corruption and the willingness to come forward with corruption complaints, due to the witness protection provisions made by ICAC.

For such an agency to effectively enforce anti-corruption laws and gain public support, it can in no way be linked to existing justice mechanisms or other vested interest groups. It is the independence of the agency that allows it to undertake its objectives; independence creates impartiality or objectivity, which is essential in effective rule of law. Such impartiality is what underlines the equality of all those before the law; if all are equal, corruption is of little use. However, at the same time, the independence of any institution should not lead to god like attributes _ even the `watchdog’ needs monitoring. This was another key attribute leading to ICAC’s success; the checks and balances written into its structure ensured that even as the organization is independent, it is still monitored by other agencies, and is thus held accountable. For instance, the ICAC has advisory committees, an independent complaint committee, internal investigation unit, is looked over by the Department of Justice, courts, the media, and must abide by the Treatment of Detainee Order, as well as the Bill of Rights. ICAC is also monitored by various independent committees, each chaired by a non-official member. All of these characteristics ensure practices of transparency and accountability, which inevitably lead to greater efficiency, while minimizing the space in which corrupt practices and activities can occur.

It is worth highlighting here the emphasis on a `long term war’; the success of any institutional campaign or reform is linked to its consistency and comprehensiveness. Rather than focusing on a few individual cases of corruption, ICAC committed itself to investigating all complaints registered as well as investigating cases through detection, and to fighting corruption at all levels of society, enlisting public support and awareness in the process. Since its inception the Commission has constantly worked to improve its methods and outreach, examples being the establishment of the Hong Kong Ethics Development Center in 1995, and in May 2002 the introduction of a moral education web site hosting materials for teachers to use in educating children on moral issues, as well as providing a forum for the sharing of views and experiences.

International cooperation and experience sharing has also been a part of ICAC’s work and success. The Commission’s Operations Department works with organizations in China, as well as with other national law enforcement agencies on matters of mutual interest. Annual liaison meetings are also held with representatives of the Federal Bureau of Investigation of the US, Royal Canadian Mounted Police and Australian Federal Police, in order to enhance cooperation and mutual understanding. ICAC recently co-hosted a conference with Interpol on `Partnership Against Corruption’.⁵⁵ Such cooperation is useful in terms not only of transnational crime and corruption, but also in terms of resources, strategies and expertise.

Development Cooperation

The above case studies have shown that effective rule of law is the key prerequisite to ensuring human rights implementation within national contexts. In the case of Sri Lanka, the habitual torture and violations practiced by the police are a result of the enforcement of emergency laws and the absence of professional prosecutors and effective judiciary. In other words, all three justice mechanisms of the country are failures, resulting in prevalent human rights abuses. The

Cambodian case study revealed the total absence of any functioning justice mechanisms, which is the reason for increasing crime and anarchy. India’s situation reveals the enormous gap between the legal system on paper and in practice, explaining the pervasiveness of discriminatory practices. All the case studies have also illustrated that the existence of laws and legal structures per se do not equal effective rule of law. The case studies are also poignant examples of the indivisibility of rights. The violations of certain rights are almost always linked to the absence of other rights. For this reason, rule of law is essential for the implementation of all rights, whether civil or economic, social or political. Thus the first step in correcting human rights violations and improving the implementation of rights, is the establishment of effective rule of law. This should be combined with democratization and the elimination of poverty, but the primary emphasis must be on rule of law, without which nothing else can take root.

Article 2 of the ICCPR must be taken as the starting point, with the monitoring that all countries have justice mechanisms that can meet the required obligations of the covenant. Rather than monitory bodies and working groups who simply give recommendations based on individual violations, bodies able to study particular legal systems and expose structural flaws that allow violations to occur are needed. A micro-study approach will be the most useful, enabling the creation of solutions to specific problems. What is also needed is domestic pressure, rather than simply international pressure which takes the form of a UN recommendation or statement. While such international pressure is valuable in terms of international standing and governance, without corresponding domestic demands for change it is useless. Such domestic demand comes with the unity of civil society, whose strength compels governments to pay heed.

The mobilization of civil society can be enhanced through development cooperation. International governments, human rights organizations and civil society can all play a role in working with local groups to improve local implementation of human rights. The forming

of grassroots movements, citizens tribunals, and networking with state and non-governmental organizations may need a push from international actors, particularly in countries where civil society movements are largely non existent.

Financial assistance is obviously essential for countries to improve their implementation mechanisms, another role for international agencies to share. Funding is needed for necessary legal texts and materials, as in the case of Cambodia. The development of cost-effective legal aid systems is needed in Sri Lanka, India and Cambodia. Resources and expertise will both be needed in the development of model agencies, such as national human rights commissions and professional judges, police and prosecutors.

End Notes

1. Asian Legal Resource Centre, “Implementing article2 of the ICCPR to ensure effective remedies for human rights violations in Asia: Written statement to the UN Commission on Human Rights 58th Session, 2002,” article2, vol. 1, no.1, 2002, pp. 39-40.
2. Basil Fernando, “An Overview of the Police and Rule of Law in Asia,” Monitoring The Right for an Effective Remedy For Human Rights Violations, (Hong Kong: AHRC, 2001) p. 8.
3. Ibid, 9.
4. Basil Fernando, “The anatomy of impunity,” article2, vol. 1, no. 1, 2002, p.6.
5. Peter R Baehr, Human Rights: Universality in practice, (New York: Palgrave, 1999) p. 24.
6. “Prevention of Torture and Disappearances in Sri Lanka,” in Torture: Mother of All Human Rights Violations, (Hong Kong: AHRC, 2001) p. 75.
7. See “Sri Lanka: Custodial death of Sunil Hemachandra,” Asian Human Rights Commission statement, 30 July 2003. AS-25-2003 www.ahrchk.net
8. Baehr, Human Rights, p. 25.
9. “Legal Aspects Relating to Torture,” in Torture: Mother of All Human Rights Violations, (Hong Kong: AHRC, 2001) p. 79.
10. “Introduction: Torture committed by the police in Sri Lanka,” article2, vol. 1, no. 4, 2002, p. 2.
11. “Update (Sri Lanka): Update on torture of 17-year-old boy, Chamila Bandara, by Ankumbura police,” AHRC Urgent Appeal, 20 August 2003, UA-39-2003.
12. W.R. Sanjeewa, attorney at law, testimony.
13. Baehr, Human Rights, p. 29.
14. “Enforced and Involuntary Disappearances in Sri Lanka,” Asian Legal Resource Centre submission to the 56th Session of the UN Commission on Human Rights.
15. Ibid.
16. Jayanthi Dandeniya, trade unionist, testimony.
17. “Prevention of Torture and Disappearances in Sri Lanka,” in Torture: Mother of All Human Rights Violations, pp. 75-6.
18. Ibid, p.76.
19. “Reform of the Criminal Investigations and Prosecutions Systems is the Real Key to Reducing Crime in Sri Lanka,” AHRC statement, 11 January 2001 www.ahrchk.net.
20. Ibid, 41.
21. Gerald Perera case
22. Basil Fernando, Problems Facing the Cambodian Legal System, (Hong Kong: AHRC, 1998) p. 26.
23. Ibid, pp. 71-72.
24. Sok Sam Oeun, “Trial in Cambodia,” Decline of Fair Trial in Asia, (Hong Kong: AHRC, 2000) p. 137.
25. “Police Abuses in Cambodia,” Monitoring The Right for an Effective Remedy For Human Rights Violations, (Hong Kong: AHRC, 2001) pp. 23-4.
26. Ibid, 24.
27. Fernando, Problems Facing the Cambodian Legal System, p.71.
28. “Police Abuses in Cambodia,” p. 27.
29. Fernando, Problems Facing The Cambodian Legal System, p. 15.
30. Ibid.
31. Quoted in Fernando, Problems Facing The Cambodian Legal System, p. 89.
32. S K Verma, “Police and Human Rights,” Policing India in the New Millennium, (ed) P J Alexander. (New Delhi: Allied Publishers, 2002) p. 362.
33. P J Alexander, “Fair Trial: The Indian Situation,” Decline of Fair Trial in Asia, (Hong Kong: AHRC, 2000) pp. 154-5.
34. Alexander, “Fair Trial: The Indian Situation,” p. 147.
35. Manoje Nath, “Human Rights and the Police,” in Policing India in the New Millennium, p. 473.
36. Mumtaz Ali Khan, “Legal Enactments and the Status of Dalits,” in Policing India in the New Millennium, p. 503.
37. Ibid, p.502.
38. D Jeevan Kumar, “Law, Police and Weaker Sections,” in Policing India in the New Millennium, p. 452.
39. Qtd in Kumar, “Law, Police and Weaker Sections,” pp. 438-39.
40. AHRC Statement, AS-26-2003, India: Land for India’s Landless returning to the hand of landlords, 31 July 2003.
41. AHRC, Urgent Appeal UA-36-2003: India: Torture, death in police custody; indigenous groups, 31 July, 2003.
42. Nonibala Devi Yengkhom and Meihoubam Rakesh, “Fear of rape: The experience of women in Northeast India,” article2, vol.1, no.5, p.30.
43. Ibid.
44. Alexander, “Fair Trial: The Indian Situation,” p. 155.
45. See Basil Fernando, “An Examination of Caste Discrimination in India,” Discrimination and Toleration, K. Hastrup & G. Ulrich (eds), Kluwer Law International, 2002, p. 159.
46. See Concerned Citizens Tribunal report Crime against Humanity, http://www.sabrang.com/tribunal
47. Kumar, “Law, Police and Weaker Sections,” p. 420.
48. J Prabash, “Police and Human Rights Violations in India,” in Policing India in the New Millennium p. 395.
49. Fernando, “An Examination of Caste Discrimination in India,” p. 143.
50. Kumar, “Law, Police and Weaker Sections,” p. 456.
51. N R Madhava Menon, “Police Reform: The imperative for efficiency in criminal justice,” article2, vol.1, no.3, p.3.
52. Fernando, “An Examination of Caste Discrimination in India,” p. 160.
53. Justice H Suresh, “Jan sunvai for Dalit rights: A meaningful exercise,” article2, vol. 2, no 1, p.26.
54. See www.icac.org.hk
55. See http://www.icac.org.hk/conference/Index.htm