On the occasion of International Human Rights Day, which falls on December 10, the Asian Human Rights Commission (AHRC) is making the statement below. This will be followed by short commentaries about human rights conditions this year in many countries in Asia.  A Statement by the Asian Human Rights Commission

ASIA: Flawed criminal justice systems negate the realisation of human rights in Asia

Discontent over malfunctioning democracies and legal systems and the consequent setbacks these shortcomings cause for human rights and the rule of law, as well as aggressively expressed aspirations to resolve such problems, are marked features that define the year 2006 in many Asian countries.

Specifically, Asia’s people feel discontent over the authoritarianism of democratically elected governments as well as military regimes. They are restlessness over restrictions on their freedom of expression, association and assembly. They are angry at the use of martial law and emergency and terrorism laws that steal their rights in the name of making them secure. They are frustrated over rampant corruption and dissatisfied over the ineffectiveness of states to stop manifold forms of discrimination that are widely experienced throughout the continent. They are distressed as extrajudicial killings, disappearances and torture continue unabated, and they are disappointed over the ineffectiveness of parliaments, judiciaries, police forces and prosecution systems to address these deficiencies. Moreover, states are not dealing with this discontent in a positive manner by trying to resolve these problems. Instead, governments resort to even worse military and policing methods to deal with them. This is the grim picture of Asia as it approaches 2007.

In our International Human Rights Day message for 2005, the AHRC stated, "Although there are complex factors that contribute to the denial of people's rights, one factor stands clearly above all others: the rule of law does not exist in most parts of this vast continent." In the year that has followed this message, respect for the rule of law has worsened in most countries of Asia, and there is hardly any nation that can claim an improvement in this vital area, which, in fact, is the only foundation on which democracy and human rights can be built. Many more people still ask, "Where are my rights?" To this question, neither governments nor the United Nations and international community are able to give a satisfactory answer.

The absence of effort to improve respect for people’s rights is very much linked to the criminal justice systems in these countries. There is a common failure to develop a criminal justice system before which everyone is equal, everyone enjoys the equal protection of the law and every violation of rights has a remedy. Such a legal system is, in fact, a far-off dream in many countries. Social elites and powerful forces within each of these societies act strongly to thwart the development of the criminal justice system. Abuse of power and corruption are severely restrained as a credible criminal justice system develops, and consequently, these elites and powerful forces seek to obstruct the development of the criminal justice system through the regimes in power. Thus, in Asia, most governments would not like to see the development of a proper criminal justice system. When the state itself prevents the development of such a system, by what means can the people achieve such an objective? The sense of powerlessness of the people expressed in many different ways in various parts of Asia arises from the strong opposition the government itself has to the development of a criminal justice system.

Arising from the state's connivance in preventing the development of a criminal justice system are the manifold forms of violence that the state in many places perpetrate on the people—abductions, disappearances, extrajudicial killings, torture and other forms of violence. States often claim these acts not only as their right but also as their obligation. Indeed, states do not plead forgiveness for violations of the basic rights of people. Instead, states claim they are carrying out their obligations as a state by engaging in extrajudicial killings, disappearances, mass murder, torture and even crimes against humanity. To this list, other human rights violations—illegal arrests and detentions, the maintenance of illegal prisons and torture chambers, etc.—can be added.

Perhaps one of the marked features of change in the nature of repression in several Asian countries in recent times is that there is not just the abuse of rights, such as illegal arrests and illegal imprisonment following the denial of a fair trial, but the dismissal by the state of trials or, for that matter, due process itself. Secret arrests, assassinations and the disposal of bodies are now means that states employ often under the pretext of responding to terrorism. The complete bypassing of legal norms and standards makes the experience of present times much more frightening.

The courts are becoming less and less important as institutions for the protection of rights and the defence of the rule of law. In many places, there is serious undermining of the Constitution through the constitutional process itself. Many of the constitutions of Asian countries are not a product of the tradition of constitutionalism that creates safeguards and limits on state power. Instead, rulers give themselves unlimited powers by creating for themselves “Constitutions” that virtually give them powers similar to those of absolute monarchs. Although some of the language of democratic constitutions is still maintained, actual power positions developed through such “Constitutions” negate the power of parliaments and courts. This process becomes even worse when the judges of higher courts themselves begin to adjust to and take advantage of the new power relationships. Subjugation to executive control, on one hand, and an increase of corruption, on the other, have become marked features of judicial institutions in many countries at the present time (for more details on this phenomenon, kindly see the consultation paper on the Asian Charter on the Rule of Law: Elimination of Corruption).

All the major struggles against discrimination are also trapped within this problem of state complicity in violence, the state’s failure to protect people’s rights and the collapse of the rule of law that mainly manifests itself through neglect of the criminal justice system. While there has been a great deal of discussion about women’s rights and those of children, there are no signs of improvement. Sadly, violence against women and children has not been affected for the better by merely improving laws as the implementation systems remain seriously flawed. Other forms of discrimination, like that against Dalits in India and Nepal, indigenous peoples and other minorities in various parts of Asia, have seen no effective measures taken for the betterment of their lives and living conditions. While the global critique against discrimination on the basis of caste and descent has grown stronger, the internal dynamics needed to improve the lives of Dalits in India and Nepal have not changed. Lobbies that work to eliminate all forms of discrimination need to address the problems arising from rule-of-law issues if the rights of discriminated groups are to be realised.

In such contexts, none of the aspects of the rule of law are clear any longer. Do law enforcement officers have an obligation to protect people taken into custody by them? What is to prevent the person in custody from being killed? When deaths in custody occur, what is the role of magistrates? Do they really have the capacity to insist on proper investigations and to refuse to give orders stating that such killings are justifiable homicides done in self-defence? If a magistrate does their duty in the manner required by the law, can they expect the higher judiciary and the state to protect them? On the other hand, when the state, on such pretexts as anti-terrorism, associates itself with extrajudicial killings, is it in a position to prosecute state officers who fall foul of the law?

These are thus disturbing times for living in most Asian countries. No principle is any longer clear or sacred. There is no place that may be called a sanctuary or a place to resort to when everything else fails. “Who is my protector?” any innocent person caught in present-day tensions may ask. This is not a question that anyone can answer anymore.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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