Full report - The Absence of the Rule of Law
and the Actualisation of Human Rights: a Contradiction that Must be
Resolved (PDF
- 1MB)
Letters to the High Commissioner for Human
Rights and Country Reports
Bangladesh- A society
floundering in corruption, fear and arbitrary killings (PDF)
Cambodia- Twelve years after
the peace process, Cambodian in human rights limbo (PDF)
India- The lack of domestic
remedies for human rights victims and the collapse of the rule
of law (PDF)
Indonesia- Trial of human
rights defender exposes absence of justice and rule of law in
Indonesia (PDF)
Myanmar (Burma)- Sinking
deeper into the un-rule of law (PDF)
Nepal- A world-leader in
disappearances, but no Parliament or laws to enable change (PDF)
Philippines- Human rights
defenders being killed in droves; the victims of a failing
system (PDF)
Republic of Korea (South Korea)
- Human rights trailing democracy - legislation and labour
rights concerns and the violent repression of demonstrations (PDF)
Sri Lanka- Deliberate
neglect of U.N. treaty body recommendations adds to general
lawlessness in Sri Lanka (PDF)
Thailand- Government of
Thailand shows little serious effort to meet commitments under
the ICCPR (PDF)
Extracts from The State of Human
Rights in Ten Asian Nations report:
INTRODUCTION:
International Human Rights Day Message 2005
The nexus between the rule of law and the actual realisation of human rights is not something to which the global human rights community has paid sufficient attention. The result is that while enormous attempts have been made to propagate the basic ideas of human rights, as enshrined in the 1948 Universal Declaration of Human Rights (UDHR) and other covenants and conventions adopted by the international community under the sponsorship of the United Nations, the effort to create the conditions that are necessary for the actual realisation of human rights compares very poorly with the hard work that has been undertaken to create an awareness of human rights. The result is that people whose rights are so blatantly and continuously violated ask their governments as well as the United Nations, "Where are my rights?" To this question, neither the governments nor the United Nations and the international community are able to give a satisfactory answer as of now.
The Asian Human Rights Commission (AHRC) calls upon the peoples of Asia, as well as all others concerned with the actual realisation of human rights, to pay special attention to the link between the rule of law and human rights. Finding ways to resolve this contradiction is the path that has to be treated if human rights are to be a practical reality. As a symbolic means of stressing this issue and keeping it alive for discussion in the immediate future, the AHRC has launched an Asian Charter on the Rule of Law. This effort is a follow-up to AHRC's earlier effort to work towards drafting a People's Charter on Human Rights. We urge everyone to support this effort and to make the theme of improving the rule of law for the achievement of human rights a central theme of engagement in the coming year.
BANGLADESH: A society floundering in corruption, fear and arbitrary killings
By its constitution Bangladesh is a democracy. However, this democracy is not based on well-founded institutions of the rule of law. The contradiction that exists in many countries outside the developed world between the constitutionally accepted democratic form of governance and the weak nature of rule of law institutions also exists in Bangladesh. In fact, it is this vast contradiction that creates all the problems that require preventive approaches from the community and civil society.
The weakness of the rule of law manifests itself through the basic institutions of justice, which are the police, the prosecution and the judiciary. The policing system in Bangladesh is extremely corrupt. Police officers are, in all respects, incapable of performing the usual functions that a police service is supposed to provide within a rule of law system. As for the prosecution, it is replaced every time a new political regime comes into power. This means that a regular, stable system with a prosecutor's officer that benefits from a strong tradition of prosecutions does not exist in the country. There are also many weaknesses within the judicial system. The part of the judiciary that consists of magistrates remains a branch of the executive. Only the higher judiciary is not part of the executive. The independence of the judiciary is not possible as there is no basic separation of powers. The magistrates who are part of the executive are also often suspected of being corrupt. Furthermore, the country suffers from one of the most primitive medico-legal systems, which is a significant hurdle for victims trying to achieve justice. Despite Bangladesh's considerable population, there is no recognized forensic laboratory.
Although Bangladesh ratified the [U.N.] Convention against Torture in 1998, it has not yet enacted legislation making torture a criminal offence. The absence of a law against torture is a tremendous impediment to those who wish to pursue the prevention of torture... Local and international human rights monitors agree that near complete impunity exists for state officers who engage in torture. The lack of laws to deal with human rights abuses, weaknesses of implementation mechanisms (that is, mechanisms of investigation and prosecution), and the general tolerance for corruption within state institutions, as well as the psychology of a people who have been frightened by extreme abuses of power, combine with the experience of failures in obtaining redress to guarantee that state officers can engage in the abuse of rights without fear of consequences.
CAMBODIA: Twelve years after the peace process, Cambodia in human rights limbo
The comprehensive human rights concepts encompassed within Cambodia's 1993 Constitution are unable to be realised. This is because the attempt to introduce principles of human rights, while with great UN and international support, was not accompanied by attempts to improve the basic institutions of justice-the police, prosecution and judiciary. These institutions continue to function in a similar way to that during 1980-1992, when large parts of the country were controlled by the Vietnam backed State of Cambodia (SOC). At that time, under a framework of socialist law, all three institutions were subordinate to the ruling party, with no institutional independence.
This situation continues to exist today, despite the rhetoric of the rule of law and liberalism used by the Ministry of Justice as well as other state agencies. Cambodia's police force is a direct instrument of the party in power. Its officers are little educated, and the force is highly unorganised, unable to coordinate as a single unit. The majority of the country's police stations are primitive and often do not have the necessary paper and other materials to record complaints. Furthermore, there is no code or mechanism by which disciplinary inquiries can be made. Corruption exists at all levels of policing and Cambodian citizens distrust and fear police officers. Under these circumstances, little coercion or intimidation is needed to obtain confessions. If it can be proved that a confession was obtained through the use of torture or other illegal means, it cannot be used in court. However, the lack of forensic and other facilities make it impossible to prove that a victim was tortured. Moreover, the nexus between the Cambodian courts and police will ensure that no attempt to prove police torture or abuse will succeed.
In Cambodia we find the contradiction between the principles of democracy and human rights and the reality. In reality, Cambodia lacks even an elementary foundation for the rule of law. Numerous countries and development agencies have poured large sums of money into Cambodia to encourage its development of democracy and human rights. However, no such development is taking place. This is hardly surprising, given Cambodia's lack of elementary rule of law and its defective policing, prosecution and judicial mechanisms. For all those concerned with Cambodia's democracy and human rights, both locally and internationally, it is time to review this situation seriously. Not only is the current limbo a waste of vast resources, but it is prolonging the suffering of the Cambodian people, who are commonly acknowledged to have suffered a terrible catastrophe. Until an effective strategy to improve the basic social and legal framework of the country is worked out, their suffering will not end.
INDIA: The lack of domestic remedies for human rights victims and the collapse of the rule of law
Many officers in the police and law enforcement agencies in India are criminals and killers in uniform. Torture in India is widespread, unaccounted for and rarely prosecuted. It contributes to the state of anarchy and lawlessness in many parts of the country. Recently, the police in India are also engaged in making extra money, collecting funds from the people to settle civil disputes. In the past, it was done by local criminals, but now the police have stepped in to replace them, and are accepting money to bully people. Even private money lending firms are employing police to collect money from defaulters. In the hands of the wealthy and influential, Indian law enforcement agencies have also strengthened their links with criminal elements. Even the judiciary in India cannot sever the nexus between police and criminals.
From its work in India, the AHRC has come across numerous cases of custodial torture in 2005 [including] 73 new cases of custodial violence [which the AHRC has documented in detail]. A study of each case would indicate that torture is widely practiced in India and that there is a consistent and widespread pattern of the use of torture, not only as an instrument in investigations, but also as a means to impart threats and fear upon the people, often in order to cater to the rich and influential.
The denial of justice through delays is a mockery of law, but in India it is not limited to mere mockery; the delay in fact kills the entire justice dispensation system in the country. This has led to people settling scores on their own, resulting in a growing number of criminal syndicates in the country and reflecting the loss of people's confidence in the rule of law.
The caste system is in violation of international human rights standards. It tends to weaken the human urge to excel and be free, since there is no liberation from its clutches, unless a person is very determined. Often this determination is clamped down due to societal pressure. It requires collective effort and massive movements to free society from this system. This may not be attained in a short period of time, but conscious effort from the government, which will affect the population, is a necessary prerequisite to counter this abhorrent system.
In India, there is a false notion that food problems only pertain to one or two victims living in remote areas. This is mainly due to the lack of knowledge by civil society and the outright denial by state authorities. In fact, hunger and starvation are common problems that necessitate a wide audience for the problems to be accepted and assistance to be provided. Thus, human rights activists need to create a network which enables their concerns to be heard on a larger scale. This network should include international agencies, UN mechanisms, local media and local and national level organisations concerned with economic, social and cultural rights.
INDONESIA: Trial of human rights defender exposes absence of justice and rule of law in Indonesia
The Indonesian legal system is such that torture, disappearances and other grave human rights abuses are not considered crimes and hence are not punishable by the penal code. This is the case even though Indonesia ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1998. While torture is considered a crime against humanity under Law No. 26 of 2000 in the Human Rights Court Act, the penal code does not define the act of torture and has no specific provisions for the prosecution of torture. At present, torture is treated in the same way as ordinary maltreatment between civilians. Furthermore, there are no provisions for the compensation of victims and no complaint mechanisms through which abuses can be reported.
Apart from torture, Indonesia has no laws to deal with disappearances and other grave human rights abuses, which has led to many past abuses not being redressed. The 1965-66 massacres are one such set of atrocities, when some half a million to a million unarmed civilians were killed for alleged communist sympathies, which have yet to be dealt with by the Indonesian government and society. In addition to those killed, hundreds of thousands more were tortured and imprisoned, including political opponents of the ruling regime. The families of those killed or imprisoned were also victimized through a programme of institutional ostracism that denied them the opportunity to engage in normal economic and social life. They have been imprisoned, dismissed from their jobs, denied access to education and ostracised by having ex-tapol (ex-political prisoner) put on their identification documents. This situation continues today, 40 years after the incidents.
It is essential for civil society in Indonesia to vigorously campaign for the reform of justice mechanisms-the police, prosecution and judiciary-as well as other public institutions such as the National Commission of Human Rights. The ratification of international covenants must be used as a basis for such reform, particularly the amending of domestic law to include international provisions. In particular, the domestic law against torture must be immediately revised so that victims get justice and the perpetrators are punished. If the state takes punitive action against its own criminals, the society will begin to trust the national justice system and it will pave the way for the establishment of the rule of law.
MYANMAR (BURMA): Sinking deeper into the un-rule of law
No doubt Burma is sunk in a deep mire. The challenge for human rights defenders in the country and abroad is how to understand this situation, and what to do about it. With a paranoid and introspective military government and an armed forces internationally renowned for rampant and gross human rights abuses-including systematic extrajudicial killing, torture, rape, forced labour and destruction of villages, crops and livestock-in the country's hinterlands where civil conflicts persist and both the concept and presence of the state is all but non-existent, it is easy to reduce the problems there to simplistic rhetoric about dictatorship versus democracy, slavery versus freedom. However, the far more insidious symptoms of the country's persistent decline are in the corrosion of institutions for the rule of law and social administration, and organizations through which parts of civil society might find some opportunity for expression. The majority of people in Burma must daily endure an abrasive fear of police and government officials with powers to abuse and axes to grind, and against whom there is no possibility of effective redress or recourse.
This is what the un-rule of law signifies for the ordinary person in Burma. The long-term consequences of this condition are not yet well-understood. However, it can be said that as the country's institutions are further compromised and distorted its society becomes more harsh, its people more desperate...
NEPAL: A world leader in disappearances, but no parliament or laws to enable change
It is of capital importance to note that as Nepal currently has no functioning parliament, no laws can be enacted in a legal and constitutional way. The efforts of all persons working against torture and forced disappearances have therefore been stymied by the King's dismissal of the government earlier this year. This includes local and international NGOs, and the United Nations, notably through the newly established office of the High Commissioner for Human Rights in Nepal. The implementation of various recommendations made by United Nations bodies should also be considered as impossible... due to the absence of a functioning legislature. The international assistance that is being provided concerning human rights in Nepal is, under the present situation, not being used to its full potential. Donor countries, the U.N. and NGOs must therefore take immediate action to pressure the authorities to hold democratic, transparent, multi-party, all-inclusive elections, through a process agreed upon by all political actors, in order to enable a new government and therefore the legislature to be established. Regardless of the political barriers, civil society groups are urged to begin campaigning on the issues of making torture and forced disappearances criminal offences, in order that they be dealt with as a priority upon the election of a democratic government...
In having dismissed parliament, the King must be held personally responsible for all acts of torture, forced disappearance and other human rights abuses that have and are occurring in Nepal, as any tangible progress in the situation requires the legislature to be functioning.
The prevalence of human rights violations in Nepal cannot be explained simply by the presence of the internal conflict, but rather, that the cause of these violations lies in the fundamental collapse of institutions and the rule of law in the country. It is also necessary to take immediate steps to dismantle the systematic mechanisms of abuse in the country, without waiting for a resolution to the conflict, as this could spare the suffering and lives of a large number of Nepalese citizens.
PHILIPPINES: Human rights defenders being killed in droves, the victims of a failing system
The failure of the policing and prosecution system in the Philippines is completely undermining the protection of human rights in the country. Cases of extrajudicial killings, in particular those involving human rights defenders, have continued unabated. The government has not responded adequately to this situation. Thus, it has impaired its own ability to deliver justice. There is no serious implementation of policing or judicial reforms, which are essential for the protection of human rights.
There is also a completely ineffective protection mechanism for victims, families of the dead and witnesses. The victims have been deprived of state-sponsored security and protection when attempting to seek justice and redress. Even the existence of the state human rights commissions has not guaranteed them security and protection. Those victims who have suffered from hunger and starvation have been threatened, intimidated and harassed, especially when they lodged complaints to the authorities and took steps to expose their grievances. This reflects the lack of an effective complaints mechanism for human rights violations in general.
The government's failure to introduce domestic legislation on torture has deprived the victims of the ability to prosecute state agents. Despite being a state party to the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), no legislation has been enacted in full conformity with the Convention. Further, there is a complete absence of state-sponsored rehabilitation programmes for torture victims. Almost all torture victims have not received any physical or psychological treatment.
Prolonged adjudication of cases in local courts is widespread and a serious problem. The lack of competent judges, prosecutors and adequate resources has affected the judiciary's ability to effectively administer justice. For example, one judge usually presides over several courts, because in certain courts no judges have been assigned. There are also inadequate communication facilities in the Courts, such as fax machines and sufficient paper, which hinders the receiving of documents.
SOUTH KOREA: Human rights trailing democracy - the violent repression of demonstrations, and legislation and labour rights issues remain problematic
Although the Republic of Korea is regarded as a country with protected democracy and human rights, the people continue to suffer serious setbacks. Police brutality, especially by riot police, has become a serious concern in recent years. Other issues include violations of the freedoms of expression and assembly, criminal defamation of workers, the rights of migrant and irregular workers, excessive delays to court cases, the absence of legal provisions to outlaw torture, the rights of conscientious objectors to military service and the legal provisions allowing for the prolonged detention of suspects without trial.
The Republic of Korea has overcome a dark past comprising massive human rights violations, especially under military dictatorships. Today's democracy in the country has been achieved at the expense of the lives of many Korean citizens. No one wishes the country to return to its dark past. Instead, everyone hopes that Korea will move forward progressively, especially in terms of democracy, human rights and the respect for the rule of law. However, unfortunately, events mentioned in this report are still holding Korea back from moving along that progressive path. Development at the expense of rights and democracy will not last long and will surely falter, producing catastrophic results. The Republic of Korea should not only be a successful economic model in the Asian region, it should more importantly be a successful model of democracy and human rights.
SRI LANKA: Deliberate neglect of U.N. treaty body recommendations adds to general lawlessness in Sri Lanka
The general attitude of the [Sri Lankan] government towards the recommendations of the U.N. treaty bodies can be summed up as that of careless disregard and cynical dismissal. While both the Human Rights Committee and the Committee against Torture have considered Sri Lanka under special procedures and have called for reports on the implementation of their recommendations within a year-which has already elapsed since the recommendations of the Human Rights Committee-it is not known whether the government has submitted or is working to submit the reports.
Without a functioning National Police Commission, the Sri Lankan police are granted further impunity to commit abuses. Among other things, the Commission has the constitutional duty of maintaining discipline within the police force. Amidst the significant criminal behaviour attributed to police officers and the breakdown of discipline within the police force, the involvement of the Commission created hope for the establishment of measures to address the situation... Following the non appointment of the commissioners, the mandate of disciplinary control has been transferred back to the Inspector General of Police. Complainants against police abuse cannot hope to have a fair inquiry anymore. Instead, criminal elements within the police will be encouraged to blatantly flout legal and disciplinary provisions, while complainants receive threats and intimidation.
Effective rule of law is essential for the enjoyment of people's rights. The new president has yet to put in action any strategies to reform the justice institutions. A start can be made by implementing the recommendations of the [U.N.] Human Rights Committee and the Committee against Torture. Furthermore, the members of the Constitutional Council must immediately be appointed, which will in turn enable commissioners for important public authorities to be appointed, especially the National Police Commission.
THAILAND: Government of Thailand shows little serious effort to meet commitments under the ICCPR
The wanton killings of thousands of alleged drug dealers in 2003 still reverberate through Thailand. In March of that year, arranged killings were a daily event at many police stations: sufficiently well-organised that the victims were shot in the same place, at the same time and with the same little blue bag of 70 to 200 pills neatly inserted into the back pocket. Although that time was a nadir in the protection of human rights in Thailand, extrajudicial killings were a fact of life in the country before then, and have been a fact of life there since. The police still have very little fear of any consequences. Even in the most outrageous cases, they are safe to insist upon 'suicide': junior personnel are backed by powerful senior officers. Expressions of patronage are more powerful than those of justice.
Not only is there little if any prospect of a torture victim securing a criminal charge against a perpetrator in Thailand, but there is also little expectation that any justice or compensation can be obtained through a civil suit... With the prospects of being able to lay criminal charges next to none, the prospects of obtaining compensation slim and a long way off, and the prospects of getting adequate and immediate protection also dim and little known, the average victim of torture in Thailand has few choices. Inevitably, the withdrawal of cases under coercion and offers of money is a common occurence. Similarly, few lawyers are prepared to take on such cases...
There is a culture of deliberate and consistent falsification of police records in Thailand. When there is no such thing as a reliable record, the possibilities of identifying perpetrators of alleged crimes, including torture, become far lower... In the hearings against five police in connection with the abduction of human rights lawyer Somchai Neelaphaijit, police denied in open court that they were involved in investigations where the suspects have alleged that they were tortured, although their names have been on the lists of investigators. One pointed out that in a high-profile case virtually his entire division was listed as having been involved, although the true number of investigators was small.
