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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:
- 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;
- 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:
- There were 41
countries categorized as being in the ¡§comfortable zone¡¨ in 1960; today
that
number has fallen to 19.
- The income of the
richest countries was 16 times higher than the poorest countries in
1960; by
1999 it was 35 times higher.
- 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.
Notes:
* 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