Background and professional interest - W.P.J. Basil Fernando
I am a lawyer from Sri Lanka and for over 25 years I have been involved in dealing with human rights issues in several professional capacities.
I have represented people on matters of civil liberties and human rights before the courts of Sri Lanka, I have worked on the issues of the protection of refugees in a UNHCR sponsored project based in Hong Kong with regard to Vietnamese refugees, I have been a senior UN Human Rights Officer attached the UN Transitional Authority for Cambodia (UNTAC) and the first office of the Commissioner for Human Rights in Cambodia. Since 1994 I have been the Executive Director of the Asian Legal Resource Centre (ALRC) which enjoys ECOSOC status with the UN and the director of the Asian Human Rights Commission (AHRC). The AHRC and ALRC are sister organisations.
I believe that my quest to find some solutions to one major area of the protection and promotion of human rights, (the promotion of international norms and standards) may be of significant relevance in the area of human rights education. The linkage between the rule of law and the possibilities of pursuing human rights is the area that I and my colleague in the AHRC/ALRC have tried to study extensively.
My own understanding of this issue is a result of an extraordinary situation faced by my own country, Sri Lanka, and also the experience that I was confronted with as a human rights officer in Cambodia. Sri Lanka was the first country outside the developed world to obtain adult franchise and this happened in 1931. The expectation was that it would become a model of liberal democracy, not only for Asia but for the rest of the underdeveloped world. However, the reality that had developed by the latter part of the 20th century was quite the opposite. Sri Lanka witnessed some of the worst forms of repression in the subsequent decades in retaliation to insurgencies in the south, north and the east. The extent of extrajudicial killings and disappearances in Sri Lanka is horrendous. The idea of extremely disproportionate reactions to the challenge to political authority was a marked feature of the time. Under the pressure of such actions the system of police investigations, prosecutions and the judicial systems collapsed. In the work I have done through the AHRC and the ALRC we have been able to extensively document and to comment on this process. However, the theoretical issue that arose from this situation was as to whether it is possible to promote the protection of human rights without addressing the issue of the collapsed basic institutions, which are institutions of criminal investigations, prosecutions and the judiciary. It is in this area that I have done most of my investigations, writings, educational work and also thinking together with many other persons and organisations.
It was this same problem that also surfaced in the work of the UN with the Transitional Authority for Cambodia (UNTAC). Within a short time of an attempted revolution the entire infrastructure of the limited democratic and judicial institutions collapsed in Cambodia. Since the fall of the Pol Pot regime delaying the infrastructure of the economy and society was in the hands of a Cambodian leadership who worked under the guidance of Vietnam. The basic social organisation that arose during that period made no attempt to develop a rule of law framework or a justice mechanism. Under the Paris Agreements when UNTAC tried to organise the elections and develop the framework of a liberal democracy it could not go further than getting the concepts accepted and undertake just a few actions. This was due to the fact that the basic infrastructure for liberal democracy did not exist in the country. Despite of enormous amounts of human rights promotion there was no legal infrastructure within which such rights could be achieved. This remains the basic problem faced in Cambodia to date.
In my work through the AHRC and ALRC I have come across a similar problem in many countries such as Nepal, Bangladesh, Pakistan and Burma. Though there is a little more sophistication of the infrastructure in places like Thailand and the Philippines the actual situation of police investigation systems, prosecution systems and the judiciary suffer similar problems as those in other countries, creating extreme problems for the implementation of human rights. The situation of India is different only to the extent that the Supreme Court is a much more vibrant institution and the electoral system is still resilient. However, from the point of view of police investigations systems, prosecution systems and judicial process relating to protection of rights the Indian system has similar problems. This matter has been acknowledged by the Indian Supreme Court itself.
In the former socialist countries such as Vietnam and China there are attempts at legal reforms. However, one of the great difficulties faced within such reforms is the absence of recognition of basic concepts such as the independence of the judiciary, the independence of investigating and prosecuting branches, and that no particular section of society is above the law. Such problems raise similar issues as in the other countries mentioned above relating to rule of law and implementation of human rights.
In the study of these problems we came to realise how issues such as prolonged delays in criminal investigations and adjudication, the absence of witness protection, defects of the prosecution agencies such as the Attorney General's Department or the procurators officers can have extremely negative effects on legal redress for human rights violations. One of the areas we have studied extensively is how immunity is guaranteed through the insurmountable difficulties that exist within the legal process itself.
It was in the background of this realization that in the AHRC and ALRC we tried to develop several methods to improve understanding on this issue. We undertook an Asia-wide discussion on this aspect by way of an Asian Human Rights Charter – A People’s Charter. We also initiated a new periodical, Article 2, (ICCPR) particularly to discuss the implementation aspects of human rights. This bi-monthly publication has completed six years of regular publications. All past copies are available at our website at http://www.article2.org/. We have dealt with implementation issues on many countries of Asia in separate numbers in this publication.
Having realised that the study of implementation problems on human rights requires extensive documentation we initiated collaboration with many local groups for the transmission of oral testimonies into writing and to make these available for a larger audience. Several years of collection of documents on human rights violations from several countries, recordings of testimonies on the problems associated in finding redress in these countries and strenuous efforts made by local victims and their supporting groups are documented extensively in our websites. This extensive documentation has been used for studies on the institutional aspects of dealing with human rights in these countries. On the basis of such studies submissions have been made to the United Nations as well as other agencies and governments in order to encourage public discussion on these issues. All our contributions in this regard may also be found in our websites.
It is from this point of view that we have a serious interest in human rights education. I took the initiative for the development of the Human Rights School of the AHRC with the view to develop human rights education that takes into consideration the problems of the rule of law and institutional issues as an integral part of the human rights education. The lessons produced in this school have been referred to by many organisations in Asia and also many universities throughout the world. (http://www.hrschool.org/).
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