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|¡@|| ROLC-U-1 from 01.10.2005
Human Rights, Peace and the Rule of Law*
By Jack Clancey**
We come together here to remember that time during the dark nights of martial law and repression when your neighbors, friends and relatives in Kwangju rose up to demand democracy and justice.
We gather here to commemorate those ordinary citizens, who demonstrated extraordinary bravery by throwing off the blanket of fear that the military dictators had thrown over the country and fought for democracy and a rule of law.
We join our voices in a chorus of praise to celebrate the spirit of Kwangju: People, united, committed and undaunted in the face of oppression can change history.
And I believe we come here not just to look back, but also to look to the future with the hope that the Spirit and people of Kwangju can inspire and assist persons in other parts of the world to create democratic governments and build societies based on the rule of law.
Why the reference to the rule of law? It is because without the rule of law we cannot achieve democracy, true economic development and respect for every person¡¦s human rights. It is also because today in most parts of Asia there is no rule of law. Let us look at a few examples of what is happening in other parts of the Asia where there is no rule of law.
In Myanmar (Burma) large numbers of persons in rural areas are required by the military to do forced labor.
Innocent persons in a number of countries, including Sri Lanka, are regularly beaten up and tortured by the police.
Millions of persons in India are denied access to basic rights and forced to work in prescribed low paying jobs just because they were born into a low caste or the Dalit (outcaste) group.
In many countries, including Indonesia, because of protection offered by politicians to their cronies, there are no independent effective investigations into crimes that have been committed and evidence is not collected, with the result that the perpetrators of crimes are not prosecuted.
In many countries in Asia, there is no true judicial independence. Judges are either paid relatively low salaries or are not given tenure, with the result that they are influenced by others.
Let me give you some further examples in greater detail.
Union leaders in many countries are systematically harassed, arrested and murdered. You may have read the recent news about the union leader who had organized a successful strike on the large hacienda (plantation) that is owned by former Philippine president, Cory Aquino. Shortly after an agreement was signed, the union leader was killed. The AHRC has confirmed reports of 17 labor leaders and three Catholic priests who were killed in the Philippines just in the period from February to November 2005. There may well be more.
In India, thirty-five families in Bhagwatpur-9 Village were banned from using public facilities after they joined a nationwide campaign to end caste-based discrimination.
The families belong to the Chamar group, which has traditionally been obliged to do one kind of work: remove carcasses. The campaign urged all Chamars to refuse to do this work and assert their rights to freely choose their occupations. In response, powerful upper caste villagers arbitrarily imposed a ban on the Chamars from buying goods and forbid them to use the local pond or to allow their animals to graze on the public field.
The upper caste villagers, without any legal authority, stated that any Chamar found using the public facilities in the village would be fined US$16.50, a substantial sum for a poor villager. The upper caste leaders also warned upper caste persons that if they were found breaking the ban, or even speaking to one of the Chamars, they too would be fined.
In Nepal, the story of a 15-year old girl, Maina, illustrates the frequent collusion between the army and police in covering up crimes. Maina was arrested by a group of about 15 Royal Nepalese Army personnel at her home. The soldiers had been looking for Maina's mother, who had reportedly witnessed the gang rape and killing of her niece by security personnel.
Maina's family members then attempted to find her. Some persons had seen two girls being brought into an army camp, but officials repeatedly denied that she was being detained there. According to reports, Maina was blindfolded, tied to trees and beaten for hours. Later a national weekly newspaper published a letter, allegedly signed by members of the army, that claimed Maina had been tortured, and later died, as a result of electric shocks being applied to her breasts. The Police claimed to have conducted a post mortem examination and then handed Maina's body over to her family: Maina¡¦s family denied this allegation. The Royal Nepalese Army made conflicting claims, such as, ¡§Maina had escaped while in custody¡¨ and ¡§she was killed during an encounter with security forces.¡¨
More than a year later, the army admitted that Maina had been found dead in an army barracks and that three officers, a colonel and two captains, had been found guilty, and court martialed, for improper conduct. What was that ¡§improper conduct¡¨? The officers did not a conduct post mortem examination or hand the body over to the victim's family! However, there was no investigation into the cause of Maina¡¦s death!
In Thailand, many persons have been ¡¥disappeared.¡¨ One of them a lawyer, Somchai, was abducted in public in March 2004. Since that time the response of the authorities has been characterized by deceit. Although two deputy prime ministers were assigned to the case, there is no evidence to suggest any progress or genuine interest coming from the government. Many people in Thailand are convinced that senior government officials clearly do know what happened to Somchai, and who was responsible for his abduction and presumed death. However, these people are considered to be ¡§beyond the limits of the rule of law¡¨ to the extent that it exists in Thailand.
In China, following the rapid economic growth during the past decade, land developers and business groups, in collaboration with local governments, have been seizing lands from peasants, often at the expense of their livelihood, and without paying proper compensation. Lawyers actively involved in helping these now landless peasants pursue compensation have been unlawfully arrested, abducted, illegally detained or physically abused, often with the active participation of the local government and police.
These are but a few examples of the abuse of basic human rights that takes place in Asia every day. These abuses occur at the local level because people have no recourse to the rule of law. I would briefly mention two examples of international abuses: the illegal military intervention in Iraq by President Bush and the advocacy by U.S. Vice-President Cheney of the use of ¡§light¡¨ torture techniques to try to extract information from detainees. If we want to achieve peace and respect for human rights in the world, we must find concrete means to stop the powerful from doing whatever they like. We must find means to establish the rule of law, by enforcing laws, at the local, national and international level, that will protect the basic rights of all persons.
As you are well aware, the Asian Human Rights Charter: A People¡¦s Charter was launched in Kwangju in May 1998.
However, in light of the systemic abuse of human rights in Asia, the Asian Human Rights Commission (AHRC) has decided that there is a need to draft an Asian Charter on the Rule of Law. We have launched a program to hold a series of discussions on the relationship between the rule of law and the implementation of human rights in Asia.
In its work, the AHRC
identified the prevailing breakdown of the rule of law throughout Asia
primary obstacle to the achievement of human rights.
Therefore we see the need to develop the radical themes of
Charter from the perspective of the implementation of
The recognition of
rights in national
constitutions or international covenants is far from sufficient. Laws
enforcement agencies are needed to ensure basic rights are enjoyed by
all. Without the rule of law, people will
deprived of the enjoyment of their basic rights. Both
the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights
this fact in their common Article 2, which obligates state
take legislative, judicial and administrative measures to uphold human
The problem is
further exacerbated by
the fact that many governments fail to provide basic financial and
resources for the proper functioning of law enforcement agencies and
judicial system (courts): salaries and
benefits are minimal, while training facilities and investigative
such as forensic science equipment are either non-existent or extremely
inadequate. This means that even when laws exist on paper, they cannot
enforced because personnel in those institutions do not have sufficient
resources to carry out their mandates and duties.
In the light of these historical and institutional constraints, concrete plans and effective laws must be implemented to develop these institutions; otherwise these key institutions will continue to be obstacles to the effective implementation of the rule of law. The AHRC is also advocating the need to study how to create the necessary political environment to enable the rule of law to take root and flourish.
The AHRC has noted
policing institutions in many countries are a key obstacle to the
of the rule of law. Police behavior often mimics the role and manner of
military or paramilitary forces: such
policing techniques, which use force as its primary working method, are
unfriendly to civilians and counter-productive to police investigations. Torture has become a common and endemic part
of such policing practices.
is also a result
of the absence of a rule of law and increasing reliance on so-called
forces.¡¨ The modern world has yet to
fulfill its promise to satisfy the basic material needs of the majority
people in the world. On the contrary,
hundreds of millions of persons are barely surviving and lack the basic
material goods essential for a decent human life. Absolute
poverty can be eliminated if we create the rule of law
so that the rights of each person are protected and each person is
participate in political, economic, social and cultural decisions that
their societies and their lives.
Recently, President Roh Moo Hyun said, ¡§The more emphasis we place on forging a business-friendly environment, the more aggravated social disparities will tend to become.¡¨ I agree. But I would go on to say more: big businesses have been systematically persuading governments to pass laws which enable them to control markets. They constantly downplay the role of governments and advocate leaving decisions to market forces (read big businesses) which are supposed to create more wealth for all.
Let us look at the reality that has resulted from such policies, as documented by a World Bank economist:
Another study documented that the number of people in Asia living in poverty today is greater than the total population of Asia in 1945.
I would suggest that one of the reasons for the widening wealth gap both between countries and within countries is the lack of a Rule of Law: present laws and institutions do not give equal treatment to, nor equal protection of the rights of, all persons.
There is more than enough anecdotal evidence to show how this ¡§market force system¡¨ works. A poor person works hard and others notice his extra income. Local officials then visit him and use various means to require him to pay them money. To whom can the person turn? The police, often poorly paid, are not independent and will accept bribes to stop the person from ¡§making trouble.¡¨ Prosecutors will not take action against officials and powerful landlords or businessmen. If the case ever does make it to Court, judges are too easily influenced. The scenario is even grimmer when the poor person or a small company is up against a large rich landowner or a big company. I submit for your consideration the following: one of the major causes of poverty is the lack of the rule of law. Those who seriously want to lessen the dehumanizing poverty in Asia must work to implement a rule of law.
We hope that these discussions will provide an opportunity for ordinary people, as well as concerned groups and academics, throughout Asia to discuss these problems and search for means to implement the rule of law.
The spirit of Kwangju is reflected in many of your monuments and buildings, including the Asian Culture Complex. But more importantly the spirit of Kwangju lives on in the dedication of its citizens who are working to promote peace, democracy and human rights in other parts of the world.
For me, Kwangju is a city full of hope and a city of dreams. The city is full of hope because its citizens remember the struggles of the past, while working for a better future, not only for themselves but for people in other parts of the world. It is a city of dreams where citizens¡¦ lives are so rooted in reality that they are able to make realistic plans to make their dreams of building a better world come true. Your solidarity with the people in other parts of Asia will help them keep alive their hope for democracy and inspire them to work hard to make their dreams come true.
The AHRC looks forward to working with the people of Kwangju in the process of drafting the Asian Charter on the Rule of Law and in finding practical ways to make the rule of law a reality, so that all persons in Asia can enjoy lives based on human rights, peace and democracy.