Basil Fernando- Asian Human Rights Commission
In recent times many Asian countries have experienced the uprooting of law enforcement practices, mechanisms and agencies. Let us begin with an overview of conditions in some countries.
In Indonesia, since 1965 there was a comprehensive attempt to disallow any form of growth in mechanisms for the rule of law. After its organised massacre of over one million persons and ruthless exploitation of the national wealth, the military regime led by Suharto could not have allowed for the rule of law or any mechanism for application of its principles. Thus during this period policing became military in style. It aimed to get information about the masses and activities hostile to the military regime. The task of the law was to defend repression. In the process, the task of the prosecutor was to support the repression and not to be the defender of the rule of law or protector of the people’s freedom. The very prosecution function underwent change. This applied also to the judiciary. Most importantly, judicial positions were occupied by military personnel. No impartiality or fairness could be expected. The judiciary was an arm of the military. The role of the higher judiciary to be arbiter between the government and the individual ceased.
Though the Suharto regime has fallen its legacy remains. The political elements trying to prevent the emergence of democracy are still very powerful in Indonesia. Besides them, the revival of institutions for democratic change, fair policing, genuine prosecutions and a judiciary that will uphold the rule of law will take a long time. The memory of institutions for the rule of law is gone, and individuals with knowledge and experience have been lost. It will take a long time to recreate them. Above all, the loss of popular faith in these institutions cannot be easily dispelled. It is paradox that on the one hand a functioning system for the rule of law is necessary to create faith in justice among the people, and on the other hand no functioning system of law enforcement can be created without the faith of the people in the genuineness of such attempts. Quite a lot of what might happen in Indonesia will depend on how this seeming dilemma is resolved.
Neighboring East Timor regained its freedom in 2000 after 500 years of Portuguese colonial rule and 25 years of Indonesian rule. During the latter, Indonesian legal institutions were introduced to East Timor. These institutions continue to operate with some reforms and introduction of new personnel to serve as judges, prosecutors and defense lawyers However, their numbers are small and very much inadequate. Besides, many of them feel that their training and experience are too limited and they need to have ways to upgrade these. The police are also in training. For all elements to grow up and be parts of a vibrant justice system will take a considerable time.
In Burma, since the military take over by General Ne Win in 1962, the justice system has suffered greatly. In many areas where minorities live the military has followed a civil war policy and no functioning justice system of any sort exists. Within Burma, the old system exists in a dilapidated way without any serious respect for the rights of judges, prosecutors and lawyers. Sometimes judges have resigned when unable to bear it any longer. The military often arrests, detains and interrogates people without court orders. There are very few judges with legal qualifications, and they are handpicked by the military. Often military decrees constitute legal offences. The following statement by U Tin Oo sums up the situation:
"Not only are democratic activists charged unjustly under various laws and military decrees and denied fair trials and due process of law, the judicial system has been emasculated over the years. Court proceeding are not open to the public and defendants are very seldom allowed access to counsel. Moreover they are presumed guilty in advance and not given a fair chance to prove their innocence. There is no effective right of appeal to an independent higher forum due to the systematic interference of the military intelligence authorities. There has not been a single case where a political prisoner has been acquitted to given a lesser sentence by higher courts. Trials are a mere mockery of justice and punishments are far in excess of the so-called crimes. Moreover, most of the legal action taken against political prisoners falls into the ultra vires category." (Decline of Fair Trial in Asia, AHRC, p. 125)
In Malaysia, beginning from the executive’s attack on Lord President Salleb Abas in 1988 there began an astounding decline of judicial independence. Naturally this has spread like cancer through the entire justice system. Recent political trials and detentions only surprise outsiders. A few lone voices among the judiciary give bold decisions. However, Judge Augustine Paul, whose judgements have disillusioned many people, symbolizes the general decline of the judiciary in Malaysia. The groundwork for this process was laid a long time ago by the executive, which restricted judicial reviews of its actions and wanted a judiciary that would not challenge its actions. The physical assault of former Deputy Prime Minister Anwar Abrahim by the then police chief clearly indicated the lack of morale existing in the force and its subservience to politicians. The malaise is visible in every aspect of the police, but particularly in the way political detainees are handled. Often families are not told prisoners’ whereabouts for weeks. Documents authorizing detentions are not shown to detainees or their families. Responses to family queries are often crude. The prosecutors do not pursue state officers who violate people’s rights. In fact, impunity is taken for granted. Inside the country any criticism of these abuses is responded to with civil litigation and criminal punishment.
In Pakistan the military commander has declared himself president and become supreme ruler without any restrictions to his power. With neighboring Afghanistan in total collapse, now there are doubts as to what might happen in Pakistan. With the military assumption of power the country has lost whatever was gained in the fight against previous military regimes. What is worse this time is that the civilian rulers too have lost credibility due to corruption scandals. The judiciary has also lost whatever credibility was previously left. The hope of elections in these circumstances does not create much hope for return of democracy. Some form of democracy façade to an entrenched military rule and an anarchic situation may be all there is to come. Under these circumstances, the rule of law has degenerated even more. Crime has increased to astounding propositions. Religious fundamentalism has increased so much that public perception is that the military—which initially spoke against fundamentalism—has now given in. The future of human rights and democracy now depend entirely on civilian movements. How these might take shape is hard to predict.
With the massacre of its royal family, Nepal entered a period of political instability without any warning. The moral blow to the very system of monarchy is so complete that Nepal has begun a new era of history. The immediate period is dangerous as the ruling groups are trying to curb civil liberties in order to consolidate their collective position again. The arrests of journalists and others during previous weeks have made many people apprehensive. The new situation opens up great potential for democratization and modernization of the legal and political institutions in the country. Much will depend on how the democratic movements develop their positions to consolidate democracy. Movements for social equality and eradication of caste will have a very special role in the coming days.
Under these circumstances India could have played a significant role for peace and democracy in Nepal. However, India is showing very clearly that maintenance of Brahmin social domination is its deepest consideration. It has taken a very hard position against elimination of caste and the uplifting of minorities. It is really India’s inability to extricate itself from Brahmin control that is putting the whole subcontinent in a position of instability. In recent times, particularly approaching the World Conference Against Racism, the Caste debate has received worldwide attention. The different approaches to the issue by Indian leaders of the twentieth century are also being discussed, especially those of Mahatma Gandhi and B.R Ambedkar. Their central difference centred around the issue of Brahminism. Ambedkar took the position that the eradication of Brahminism and the uplifting of "low castes" are inseparable. Gandhi could not do likewise as he could not conceive of Indian independence except under the leadership of Brahmins. In fact, Brahmins resented the position that Gandhi has risen to in the independence movement and if they felt he was threatening Brahmin hegemony he could not have held that position. It was a Brahmin activist Godse who assassinated him, accusing him of letting down Hindus, by which he meant Brahmins. At best Gandhi’s position was to improve the condition of the "low castes". Ambedkar did not see this as a possibility without eradication of caste, which meant doing away with caste system as a whole. Ambedkar thought Gautama Buddha was a person who held the same view quite early in Indian history. It was the reason for his conversion Buddhism with a large number of "untouchables". In India, while enthusiasm for Gandhi’s views has diminished, the popularity of Ambedkar’s views continues in the face of ongoing heavy propaganda against him.
The situation in Sri Lanka is a matter of grave concern. No one disputes that the law and order situation is at an all-time low. Most cases of grave human rights violations - including disappearances, extra-judicial killings and torture – do not find any satisfactory solution. In fact, even a massacre such as the one at Bindunuwewa, where around 26 detainees were killed inside a detention camp in the presence of sixty armed police, no significant action has been taken. There have been discussions on the reform of police, judiciary, elections, public service and state media, however local expectations on these reforms are very low. The protracted ethnic war continues within the framework of a legal system that is seriously flawed. The law enforcement agencies, the prosecution system (Attorney General) and the judiciary have lost much of the people’s confidence in them. An impeachment motion has been filed against the Chief Justice in the Parliament. The justice system’s serious crisis also affects resolution of the ethnic crisis. Added to all this, the parliament in Sri Lanka has become a very devalued institution. The proroguing of the parliament by the President at a time when some serious motions were to be discussed is seen by many as a final blow to this institution, which had already suffered a great deal since the Executive Presidential system was introduced to Sri Lanka in 1978. A period of intensified instability is now inevitable. Additionally, the nature of the country’s political system is now ambiguous. It is now difficult to say that a basic democratic framework still exists in Sri Lanka. The predictions are that it may become a full dictatorship or turn into anarchy. Much depends on the initiatives of the people themselves and how much the international community responds to this situation. Under these circumstances, the protection and promotion of human rights has been seriously jeopardized. There is great fear that there may once again be a period of very heavy violation of rights throughout the country. In the North and the East, which have been facing a civil war situation for a considerable period of time, there are already complaints of many serious human rights violations on a regular basis.
China and Vietnam have abandoned much of their communist apparatuses, however the next steps have not been thought out yet. Neither has considered a democratic framework, which would threaten the present day power holders. However, rule of law has been held as an imperative and considerable work is being done in this field. The question however, is whether the rule of law can be built without acceptance of a basic democratic framework as a reference point. In its absence, who makes the laws? How are they made? Who implements them? How are they implemented? Who interprets them? None of these questions can be answered in an adequate manner without a fundamental reference point. However such a reference does not exist if the idea of democracy itself is looked upon with suspicion. Thus at the moment there is a considerable vacuum, with thousands of unanswered questions about what is to replace the outmoded communist system. This state of uncertainty has a tremendous impact on people’s rights. Can people expect anything as a right? From whom can they expect rights? The absence of midnight violators of rights does not necessarily imply the existence of protectors of rights. Thus, under the present circumstances there are many questions regarding the future of human rights and human kind in general for these post-communist societies.
With this overview we may look into the future for what needs to be done to improve the human rights situation in different Asian countries. To do this, let us refer to three of the more important common issues.
- Addressing the fundamental flaws in justice systems
If any progress is to be made in the human rights field there needs to be improvement in policing, prosecution and judicial systems. The human rights movement needs to give priority to detailed study of potential reforms and educate the public on these matters. Mere protest actions on single issues, without addressing these fundamental issues, will further weaken the regional human rights situation. Western partners need to understand this. The following comments made by Asian Human Rights Commission are relevant:
"It is the fortune of Western countries that during the 19th century and thereafter they were able to establish a legal system based on the rule of law. Everyone born into it inherits it and naturally is conditioned by it. The identification of human rights problems in this context means looking for areas where such development has been defective or insufficient. There may be moments where this whole system is challenged, as under fascism or communism, for instance, and then it has to be defended. By and large, the issue is one of this or that defect in the system.
"When one looks at the outside world with this conditioning of the mind and tries to understand the gross violation of rights—for example, what has happened in Sri Lanka—the natural tendency is to look for the defects of the system which produces them. The presumption is that the system exists but, as elsewhere, there are limitations. We may call this the ‘we-too-have-such-problems’ approach.
"With this approach, one looks for the defects of the system, but what if the system itself is the cause of the problem? Here ‘the system’ is the legal system. Could it be that it is the legal system as it exists in a particular country that is the cause of disappearances or any other gross human rights abuses?
"This will be a very difficult problem for any western person whose experience is conditioned by the legal system of his or her society. After all, a fundamental belief in the rule of law is a very important part of the living culture of the West. It follows that there is a faith that a functioning legal system exists, though it may have many defects.
"Now, without going into too many abstractions, the problem of understanding of a situation like Sri Lanka for a westerner is that no such functioning legal system really exists. Of course, in this respect, there are countries that have this problem in a more acute way, like Afghanistan or Cambodia, but the basic problem in comparison to a western democracy is the same: The system itself is fundamentally flawed.
"To come to the point, a local person trying to deal with the issue of disappearances knows that this is not just a question of evidence. Where is the prosecutor before whom the evidence is going to be put forward? Where is the law that makes disappearances, the maintenance of torture camps, etc., offences? Which court will hear these cases?
"What the local people concerned about the disappearances issue think are the problems and what the international organizations think are the problems have never been brought together for serious discourse. The Western organizations have been keener to tell the local people how to solve the problem than to listen to the local groups or even the victims.
"Again, to come back to the point, the real problem of the prosecution of disappearance cases and other serious violations of rights is that Sri Lanka does not have a system of prosecutions that can be relied upon for dealing with this type of case. Imagine if there did not exist the Spanish prosecutor to take up the Pinochet case. What would have been a case in London if this were the reality? If not for the prosecutor in the Hague War Crimes Tribunal, would Milosevic be there now? AHRC has been raising this issue for the last six years regarding Sri Lanka. The U.N. Working Group mentioned it in their recommendations in the year 2000. However, there has not been a consistent international strategy to bring this matter of the prosecutor as a central issue and to focus the international campaign on this issue so that pressure can be brought to bear to resolve it."
- Addressing the issue of equality
In the modern context the main difference in the conceptual framework of a democracy as compared to various Asian regimes is that these regimes do not accept equality as the fundamental basis of their societies. In fact, in South Asian societies caste remains the basis of social organization for all practical purposes and (despite denials) equality is treated as an unsuitable basis for society. Outside South Asia too what are often presented as "Asian Values" are a defense of hierarchical society as against a society based on equality. It is no exaggeration to say that equality is being treated as an alien concept by a large section of the elite in Asia. The basis for the denial of gender justice in Asia is also a matter of denial of equality. The progess in this area is extreme low. Furthermore, inability to accept equality in practical terms is the root of injustices committed against minorities, which give rise to violence. To deal with such violence it is first necessary to genuinely establish equality as the fundamental basis of society.
- Addressing torture as the central form of human rights abuse in Asia
In Asia torture is still endemic. That implies that all other rights are affected by this practice. The freedom needed to develop understanding of rights and the will to assert rights is retarded by consciousness of the widespread nature of torture. Torture is the reason why vast masses of people in Asia are silent about the deep injustices they suffer. Torture is what keeps inequality alive.
Torture at the state level results in torture in society, such as domestic violence. When the state and the elite keep a living tradition of torture, a living tradition of dialogue and common understanding is hard to create. To build the foundation for a democratic society it is essential to eradicate torture.
In all three of the above areas if progress is to be made the people themselves should take a greater initiative. In that respect, the people and their community organizations must come to the defense of their societies. Religion can play a positive role here. It is unfortunate that in recent times the role of religion in Asia has usually been to defend injustice rather than to protect and promote people’s rights. However, there are also awakenings to the dangers that human beings and their communities face. Positive responses from religions may help people to rise above fear and demoralization. Hence, religious groups need to play a more positive role. More proactive religions committed to humanizing society are now essential for survival.
There is oppression of religion by religion. This is usually known as religious fundamentalism. Asia is quite well known for this and South Asia has the worst record. To fight back against this evil of great magnitude, it is necessary to return to the creative elements of religions and their egalitarian cores. The religions that rise above the oppressive and dehumanizing aspects that they may have acquired due to past historical compromises need to focus their searchlights inward and review themselves. This way they can contribute not only to their own growth but also to the humanizing of others.