Law means more
(SCMP, 15 Dec 2005) Thursday, December 15, 2005
RAVINA SHAMDASANI
A poor man tries to break the poverty cycle by working even harder, and succeeds in putting aside extra money. Local officials notice the added income and pay him a visit, asking for a cut.
The man has no choice but to pay up because he has no recourse to the police, themselves underpaid, susceptible to corruption and often colluding with officials. Prosecutors are not independent and will not take action against officials or powerful individuals. Local judges are no better.
Worse, if he declines to pay, he could be arbitrarily arrested, detained, beaten up, even tortured at the mercy of officials and police, and would have to summon extraordinary courage to lodge a complaint against such abuse.
The man pays up and the cycle of poverty continues.
This scenario could be from almost any Asian country, save a select few affluent and more developed places.
Reformists constantly advocate economic and welfare measures to alleviate poverty, while rights activists ceaselessly agitate for better protection of fundamental human rights.
But according to one Hong Kong lawyer and rights expert, the panacea for much of the injustice and poverty that has plagued Asia is the development of the rule of law.
"One of the major causes of poverty is the lack of the rule of law," John Clancey told a recent rights conference, the Kwangju Forum for Asian Human Rights, in South Korea.
"One of the reasons for the widening wealth gap both between countries and within countries is the lack of a rule of law. Those who seriously want to lessen the dehumanising poverty in Asia must work to implement a rule of law."
Together with Basil Fernando of the Asian Human Rights Commission, which is headquartered in Hong Kong, Mr Clancey is spearheading the idea of drafting an Asian Charter on the Rule of Law. And Hong Kong is hailed as a welcome example for others in the region.
"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," Mr Clancey said. "Without the rule of law we cannot achieve democracy, true economic development and respect for every person's human rights."
The conference, organised by the May 18 Memorial Foundation, discussed how lack of rule of law institutions and respect for a rule of law culture has led to such consequences as abductions, extra-judicial killings, illegal arrests and detention, violence against women, corrupt and arbitrary enforcement of laws, lack of independence of judiciaries, denial of justice to victims of human rights abuses, impunity for human rights violators and harassment and persecution of human rights defenders.
"We have been working on human rights issues now for so many years, and everywhere we find the main obstacle is that there are very serious defects in basic institutions like the police, the prosecution system and the judiciary," Mr Fernando said. "As a result, no proper enquiries take place when violations of human rights happen and people keep violating rights with no consequences. We have a lot of ratification of United Nations conventions and covenants, but there is no concrete domestic action."
He cited the example that, excepting Hong Kong and South Korea, no Asian territory had a law against punishing torture by state officials.
Mariam Rawi, of the Revolutionary Association of the Women of Afghanistan, said victims of domestic violence would not seek help from the police for fear they would be raped or beaten, as had happened in several cases.
Mr Fernando said the use of torture in police stations in Thailand, Sri Lanka, Bangladesh and India was rampant and seen as a legitimate method of 爄nvestigation.
Sok Sam Oeun, executive director of the Cambodian Defenders Project and law lecturer at the University of Phnom Penh, said the problem was that police had the mindset that they had to get a confession to launch prosecution, and that the best way to get a confession was to torture. They also lacked the basic tools for a more sophisticated 爄nvestigation.
Mr Clancey agreed that many governments failed to provide basic resources for the proper functioning of law enforcement agencies and courts. "Salaries and benefits are minimal, while training facilities and investigative facilities, such as forensic science equipment, are either non-existent or extremely inadequate," he said.
"Simple things that we have in Hong Kong like recording or intercepting devices, fingerprint tools and databases are not there. So much money goes into building roads and such in these countries, but nothing into basic legal infrastructure. Many courtrooms don't have recording devices, so when a case is on appeal, there is no record."
Mr Clancey added that police, prosecutors and the judiciary lacked independence, preventing them from "executing their duties with integrity and free from political manipulation".
"Prosecutors base their decisions not on the rule of law but on extraneous factors such as political pressure, and sometimes fabricate statements and evidence," he said.
"In several Asian countries not even the principle of an independent judiciary is accepted. The appointment, promotion and tenure of judges are used as leverages, to prevent judges from acting independently."
Mr Fernando and Mr Clancey said most of a society's problems could be traced back to a lack of rule of law, be it caste discrimination, rampant domestic violence, high crime rates, labour union issues or corruption. Elections held without adequate rule of law safeguards, Mr Clancey said, "merely legitimise the power of those individuals able to manipulate the process".
The men plan to take this discussion to the masses across Asia, to document the problems, search for specific solutions within affected communities, draft a charter on the rule of law based on the results, and finally lobby governments for the necessary change.
"It is public opinion and education that is going to lead to policy changes by the state," Mr Fernando said. "People tend to discuss only the substance of rights - women's groups discuss women's rights, children's groups children's rights, and environmental groups environmental rights. But they don't discuss the issue of implementation of rights, and that is empty talk unless you deal with the rule of law."
He said the general public would be engaged, along with lawyers, victims' groups and academics.
"We will hold conferences, newspaper discussions, internet and e-mail-based discussions, involve various media and raise it at various forums like parliaments, the UN ... it will be the people's charter."
Mr Clancey said the process was as important as the outcome.
"We want to go around and see the reality of the rule of law in these branches of government and make concrete suggestions," he said.
"In order for there to be proper economic and social development in a country, we have to have rule of law, so people don't live in fear of the arbitrariness of authorities' exercise of power. It is one of the real reasons we have had strong economic development in Hong Kong since the [Independent Commission Against Corruption] was set up."
The successes of Hong Kong, as well as South Korea, would be drawn upon liberally in the process.
"In everything from the ICAC to the truly independent police, prosecutors and judges ... if other countries could emulate what Hong Kong has done, where the police force was once as bad as anywhere in Asia today, that would be very welcome," Mr Clancey said.
Mr Fernando said South Korea also set a good example for the changes a country can undergo just years after emerging from a "severely repressed military dictatorship".
"They have made a very important change to a society with rule of law and democracy," he said.
He warned that if this change was not achieved, it could lead to "serious collapse of places", citing Nepal and Myanmar as examples.
Printer Friendly Page 