By Basil Fernando –
A note on the proposal for a South Asian mechanism for human rights:
I propose that the discussion on a South Asian mechanism for human rights should concentrate more on what such a mechanism could positively achieve, rather than on justifying why such a mechanism is needed. In fact, if its useful goal is achieved for the people and States of the South Asian region, the reason why such a mechanism is needed would be self-explanatory
Kofi Annan, when he introduced the Human Rights Council in place of the Human Rights Commission, emphasized that the future of human rights lies not in more and more articulations of international norms and standards of human rights, but in finding solutions to the failures in the implementation of human rights conventions that States have willingly ratified.
Research has also shown that the mere inclusion of chapters on human rights or bills on human rights in constitutions, or even bringing local legislation accepting UN conventions on human rights and making them a part of the domestic law, have not guaranteed the implementation of human rights.
Globally, therefore, the challenge that the human rights project (which started with the Universal Declaration of Human Rights) faces is in finding solutions to the failures of the institutions.
Institutions are the instruments through which human rights are expected to be implemented within each State. These institutions, broadly speaking, are the police, the prosecutions department, the judiciary and the penal institutions.
The South Asian region also starkly demonstrates the failure to implement human rights and to thereby guarantee protection for the people. Again, those basic institutions mentioned above – namely, the police, prosecutions department, judiciary and penal institutions of the State – have clearly failed in all the States in South Asia to ensure the respect and the fulfilment of the basic human rights that are enshrined in UN conventions and, in fact, are also included in bills of rights in the Constitutions, and, to some extent, in the domestic law itself.
In a discussion on the South Asian mechanisms, perhaps it is best to recall the basic failures to implement some of the basic rights, such as the rights not to be subject to illegal arrest, illegal detention, torture and ill-treatment, and the rights of fair trial, and freedom of expression and assembly. We may also mention the grave difficulties that have been faced in South Asia in ensuring the people’s rights to elect governments of their own choice.
We may also recall the grave problems we have in ensuring due respect for women, as required by the notion of equal rights in international and local law, and, in particular, the failure to provide them with security so that they can exercise their rights in the same manner as others. The unique forms of violence against women and the denial of their rights to personal choice in their private lives are also matters that come up for discussion regularly. Problems such as human trafficking also affect the right to dignity of the women in South Asia.
It is also vital to protect the rights of migrant workers who, due to economic difficulties in their own countries, migrate into other countries. They often do extremely strenuous jobs, which leave little space for their personal liberties. Despite the vital roles they play in the economies in their countries, they are, for most part, neglected and suffer many forms of brutalities. They are also denied the right to justice. The dead bodies that arrive at our airports, and the regular stories about persons facing charges in foreign courts that carry death sentences, are also reminders of the need for efforts on the part of South Asian governments and peoples to protect those who are employed abroad.
The enumeration of human rights problems can be far lengthier, but, before passing from this point, it is also necessary to emphasize the stark forms of discrimination that still prevail in South Asian countries on the basis of caste, as well as race, ethnicity and gender. The many forms of brutality and discrimination that still prevail in the South Asian region on the basis of sexuality must also be mentioned. Indeed, the overcoming of many primitive forms of violence, as accomplished by other countries to one degree or another, has not been achieved in South Asia.
To come back to the point I raised at the beginning, the issue is how fast and how effectively we can overcome these violations of human rights. It mainly depends on the extent to which the basic institutions of law enforcement, along with the judiciary, are able to function in the manner in which they are expected to.
Some of the well-known defects in these institutions in the South Asian context are as follows:
The police have been unable to provide prompt services to the victims of crimes and human rights abuses due to inherent problems that exist within the law enforcement agencies. In many South Asian countries, even the possibility of quickly and professionally recording complaints remains a significant problem. The achievements made in some of the countries in Asia, and in developed countries generally, that make the police play the role of an ever-present protector who can reach victims within the shortest possible time and provide the services needed, is something that is yet to be achieved in South Asian countries.
The investigations into crimes suffer from the lack of modern methods of interviewing, forensic methods of investigation and other sophistications that have been achieved elsewhere. Some of these better services do exist at higher levels, such as through the Criminal Investigation Division, but the average citizen cannot have access to such services at their local police station. There have been allegations from the public of widespread corruption in the policing services over a long period. Further, one of the most disturbing problems is the widespread use of torture and ill-treatment throughout the police stations in all the countries of South Asia. None of these allegations are new and, in fact, over a long period, people have come to distrust seeking the services of law enforcement agencies. Sometimes they have developed alternative methods, such as taking the law into their own hands or resorting to criminal elements to get their problems resolved.
Any serious discussion of a South Asian mechanism for human rights must concentrate on ways through which States can cooperate in dealing with these problems, and how they must do so with a sense of urgency. They must develop the kind of protection that people need, particularly the socially weaker sections of the society, such as women and children, to live with human security in the countries of the region. If the work on a South Asian mechanism on human rights does not deal squarely with this problem, the need for police reforms, it would certainly be impossible to convince most people that the proposed South Asian mechanism will be one that is of any use to them.
It is also well known that the prosecution services in our country have suffered grave setbacks due to political and other reasons, and that this has resulted in a great distrust of these institutions among the people. Either due to the politicization of these institutions or the failure to have an adequate number of professionals who are provided with all the facilities they need, these institutions are often responsible for enormous delays in the adjudication process and the denial of fair trial and other relief that the people look for. The problems in the prosecution services do not only affect ordinary crimes, but also affect issues that that State needs to address in order to deal with acute problems, such as financial corruption, environmental problems, problems relating to national resources, the prevention of domestic violence, and many other vital areas of life. In fact, in almost every area where change is expected to be achieved by the use of law, the prosecutor’s role is vital for achieving any success.
Then we come to our judicial services, which have, in fact, become a major obstacle to the achievement of justice, due to what may be called the most obvious South Asian disease: the delays in adjudication. This singular factor has alienated the people from all parts of South Asia from wanting to seek redress for their grievances. Many would rather suffer in silence rather than incurring themselves many more grave problems, including threats to their lives, by making any attempts to find justice. Delays in adjudication is one of the major causes that contribute to the failure to finding a solution to the major South Asian problem of widespread corruption. Delays breed corruption and corruption breeds further delays. Thereby, South Asians are caught in a nightmare of abysmal failures in their judicial systems.
Over the years, there have been many assaults on the independence of the judiciary, particularly the oppression caused by political parties utilizing the courts inappropriately to ensure their power. This has been a problem that even the best of judges have found difficult to overcome. The problems in the judiciary are numerous, and this point is clear for the purposes our discussion on a South Asian mechanism for the protection and promotion of human rights.
The penal institutions in all South Asian countries still remain primitive, with grave inadequacies even in providing proper sleeping arrangements, sanitation and other basic facilities needed to deal with prisoners as human beings.
The ratification of international instruments by South Asian governments, and even making constitutional provisions and legislation for creating respect for human rights, have in no way made any of the conditions mentioned above any better. This is what poses a challenge to all those who take the laudable initiative towards developing a South Asian mechanism for human rights. The development of this mechanism should be part of an attempt to create cooperation among the South Asian nations to find ways to resolve these problems that not only make the lives of the South Asians more miserable, but also affects the political, social and the economic lives of the South Asian nations. All these issues could be pursued, not as accusations coming from external agencies, but as part of our own internal critique of ourselves with the hope of making improvements to the quality of life in our nations.
Thus, the pursuit of the South Asian mechanism has a very legitimate and locally justifiable objective, which is to make our own lives a better through cooperation among ourselves. There is often a negative attitude towards human rights, as it is alleged that criticisms about human rights implementation only serve external forces, which are presumed not to be friendly towards South Asian nations. It is not my purpose to examine the validity or otherwise of such a belief. Instead, we can take responsibility for improving our own rights by genuine and credible efforts made for our countries. Thus, we can claim ownership of such efforts and make human rights an integral part of South Asia.
In the pursuit of an Asian mechanism for the protection and promotion of human rights, it is essential that there should be widespread discussions on this issue, so that as many people as possible can participate. Civil society organizations can take initiative in all parts of South Asia to discuss this in the villages, towns and cities.
One example of such an effort was the Asian Charter on Human Rights/People’s Charter, an initiative based in Hong Kong. Before the adoption of the Charter in 1996 in the South Korean City of Gwangju, widespread discussions were held in many parts of different Asian countries.
Finally, the work towards a South Asian mechanism for human rights should, above all, be a learning experience. It should be a learning experience to those who actively pursue this objective, and also to as many other people as is possible. We should bring together Parliamentarians, judges, lawyers and other professionals, intellectuals and the media, trade unionists and other leaders of social movements, including those from women’s movements. In the process, we can become aware of our own problems and thereby become partners in solving those problems. Thus, this initiative has the possibility of bringing about greater South Asian solidarity among all sectors of the people in the region. In that way, this initiative may give rise to many other initiatives to make our lives better and, above all, to improve the South Asian capacity to think critically and act with solidarity to resolve our own problems.
*A short submission from Basil Fernando of the Asian Human Rights Commission for a workshop conducted in Sri Lanka by Law & Society Trust, Forum Asia and other organizations on the 14th of December 2015.
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