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¡@ ROLC-U-1 from 01.10.2005

Democracy, 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 has consistently identified the prevailing breakdown of the rule of law throughout Asia as the primary obstacle to the achievement of human rights.  Therefore we see the need to develop the radical themes of the Peoples¡¦ Charter from the perspective of the implementation of rights.  

Most of the numerous attempts throughout Asia, to promote true democracy  -  namely a government that truly represents and serves all the people in the country ¡V have been largely unsuccessful.  The AHRC is of the view that the failure lies in the absence of accompanying strategies to establish or enhance the rule of law.  Without systems and structures to enforce an effective rule of law, powerful interests, with government connivance, are able to distort and even destroy democratic institutions and practices.  Without the rule of law, elections merely legitimize the power of those individuals able to manipulate the process.  A parliament that exercises legislative power to pass laws that undermine basic freedoms is a fraud.  The absence of the rule of law creates avenues for corruption, which spreads cancerously into and destroys the democratic system.  We are of the view that attempts to promote democracy, human rights and peace -  without equally strong attempts to establish and promote the rule of law -  will be futile.

Without the existence of an operative rule of law, the exercise of universally recognized human rights will remain a dream.  All persons have the right to life, but the realization of this right depends largely on state institutions enforcing laws that will respect, protect and fulfill people¡¦s fundamental rights. If these basic obligations are not met, the hunger, disease and the collapse of educational institutions, which we witnessing in so many countries, will continue to take place.  The lack of effective investigation, prosecution and judicial mechanisms also threaten people's rights to life and liberty:  innocent people are subjected to arbitrary punishments, including death, while persons guilty of illegal activities go unpunished.

The recognition of rights in national constitutions or international covenants is far from sufficient. Laws and enforcement agencies are needed to ensure basic rights are enjoyed by all.  Without the rule of law, people will be 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 recognize this fact in their common Article 2, which obligates state parties to take legislative, judicial and administrative measures to uphold human rights.
Those persons attempting to uphold or promote the rule of law in Asian countries face many obstacles.  In some countries, the very principle of the rule of law itself is rejected on the premise that the only thing that matters is maintaining order. To this effect, officials and bureaucrats regard the law and legal procedures as an obstacle to a country¡¦s development and social stability:  laws are often ignored, or at times superseded, by way of executive orders.  One consequence of this is the transformation of law enforcement officers into ¡§order enforcement¡¨ officers:  they enforce an ¡§order¡¨ that protects the rich and powerful.  Another grave consequence, for innocent individuals, of the lack of the rule of law is that barbaric acts - extrajudicial killings and torture, massacres, and large scale ¡§disappearances,¡¨ - are routinely committed by the police, military and other authorities in complete disregard of legal or constitutional restraints. 

The problem is further exacerbated by the fact that many governments fail to provide basic financial and other resources for the proper functioning of law enforcement agencies and the judicial system (courts):  salaries and benefits are minimal, while training facilities and investigative facilities, such as forensic science equipment are either non-existent or extremely inadequate. This means that even when laws exist on paper, they cannot be enforced because personnel in those institutions do not have sufficient resources to carry out their mandates and duties.  

The primary institutions responsible for the administration of justice such as the police, prosecution and judiciary are severely handicapped by constraints: 

  1. some constraints are the result historical development of these institutions within the restrictive framework of colonialism, feudal traditions, inherent social and cultural discrimination, as well as periods of internal conflict or civil war; 
  2.  other constraints are related to the lack of institutional independence, with the result that officials are not able to execute their duties with competence and integrity. The reality is that political authorities interfere in order to manipulate these institutions to protect or promote their own interests.  The result is that these institutions lose the objectivity and the impartiality that they require to uphold the rule of law.

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 that defective policing institutions in many countries are a key obstacle to the realization of the rule of law. Police behavior often mimics the role and manner of the 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.

Prosecution mechanisms also have fundamental problems that affect upholding the rule of law. In some countries prosecutors are used for political purposes; false charges against political opponents are a common occurrence.  Similarly, the prosecution mechanism in many places, especially where the prosecutors are not independent from the government, bases its decisions not on the rule of law, but on extraneous factors such as political pressure. During times of civil or even political conflict, contrary to international norms, state prosecutors have acted as defense counsel for military and police officers accused of gross human rights abuses.  Further, these officers have then been advised by counsel to fabricate statements and evidence.  These practices have diminished the credibility of the prosecution departments and have eroded if not destroyed the overall morale of those prosecutors who want to uphold justice.  

In many countries the judiciary is a faulty institution that needs an overhaul before the rule of law can be achieved.  In several Asian countries not even the principle of an independent judiciary is accepted.  Where that principle is recognized, there is often a lack of competent and qualified judges. In other countries political regimes have imposed severe restrictions on the judiciary.  The appointment, promotion and tenure of judges are used as leverages, to prevent judges from acting independently.

Persons in marginalized groups and those living in poverty, as well as women, Dalits, indigenous peoples and religious minorities are often entirely deprived of all access to law.

Anti-terrorism and emergency laws are increasingly being used to remove all forms of legal protection. These types of laws provide protection for those who resort to the use of torture and disappearances to protect their political and economic power.

Dehumanizing poverty is also a result of the absence of a rule of law and increasing reliance on so-called ¡§market forces.¡¨  The modern world has yet to fulfill its promise to satisfy the basic material needs of the majority of the 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 allowed to participate in political, economic, social and cultural decisions that affect 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:

  1. There were 41 countries categorized as being in the ¡§comfortable zone¡¨ in 1960; today that number has fallen to 19. 
  2.  The income of the richest countries was 16 times higher than the poorest countries in 1960; by 1999 it was 35 times higher.
  3.  Nicaragua, which received ¡§assistance¡¨ from the U.S.A., had a Gross Domestic Product (GDP) of $5,000 in 1977; the GDP fell to $2,300 in 1988 and is estimated to be down to $476 at present.

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.

Towards an Asian Charter on the Rule of Law

The issues mentioned above, as well as many others, make it essential for there to be a genuine consideration of what is involved and what is needed to make the achievement of political and economic democracy and human rights a reality.  The AHRC proposes that we conduct Asia wide discussions on these issues in order to document these problems and their causes in detail and to discuss alternatives. The first goal is to educate local people and the international community about the real problems that need to be addressed if the rule of law, peace and human rights are to be realized in Asia.

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. 

Keynote speech of the Session 3 of the Gwangju Forum on Asian Human Rights entitled, "Differences and Human Rights" held from 7 - 9 December 2005 at Gwangju south Korea.  This event was organised by the May 18 Memorial Foundation in Gwangju and was co-hosted by the National Human Rights Commission of Republic of Korea, Korea Democracy Foundation and was sponsored by the Committee for Cultural Cities, Ministry of Culture and Tourism, Republic of Korea
** Jack Clancey has been involved in student, workers and social movements in the Asian region during last 4 decades.  He is presently the chairman of the Board of Directors of the AHRC

Asian Human Rights Commission