Appendix VI: Open Letter to the UN High Commissioner for Human Rights on 10 December 2004

Dear High Commissioner Arbour,

The Asian Human Rights Commission (AHRC) would like to take this opportunity to send you its warm regards on your first Human Rights Day in office as United Nations High Commissioner for Human Rights. We would also like to reaffirm our full support to you and your office, and the important work that you undertake in favour of human rights around the world.

On this, Human Rights Day, the AHRC remains deeply preoccupied by the fact that the majority of people in the world continue to live in fear, insecurity and a vacuum of such rights. In many parts of the world the concept of personal justice that is enshrined in the lofty ideals that the international human rights system is tasked with upholding, is nothing but a pipe dream. The largest number of human beings for whom this is the unfortunate fate are located in Asia.

Human Rights Day should be an opportunity for the human rights community, particularly human rights organizations and activists, to look back critically at their own work and to ask whether there are any defective theories or practices that limit their impact. The AHRC hereby wishes to put forward its views on these issues, notably concerning situations in countries that are not “developed democracies”.

The collapse of the rule of law and the failure of the police and judiciary

Concerning most States in Asia, it must be noted that the principle barrier to the enjoyment of human rights is the collapse of the rule of law and deficiencies to components of the judicial system, notably the lack of a functioning policing system with adequate checks and balances, and an effective and independent prosecution and judiciary.

The AHRC feels that these issues do not receive sufficient attention from the international human rights community, and this despite the fact that Secretary General Kofi Annan has in the past pointed out the centrality of the rule of law. In “developed democracies,” issues concerning the rule of law and defective justice systems may not be significant enough to derail attempts to promote and protect human rights. For the rest of the world, however, attempts to promote the realisation of human rights are, in practice, obstructed by deficiencies in the rule of law and justice systems. Even if a government becomes a party to the various UN human rights conventions, the implementation of the content of these conventions is impossible without effective mechanisms and bodies in place within the country.

The prerequisite for the protection of civil rights is the presence of state authorities that can effectively investigate crimes and violations of human rights. The most basic of such state institutions is the police. In most countries it is the policing system that is defective. In such cases, the police not only fails to fulfil its obligation to investigate crimes and violations of human rights, but also forms part of the crime syndicate within the country. What hope for human rights in such a place?

The need to prioritise the provision of resources towards effective reform programmes

In recent years, the human rights community has spent enormous time and resources to educate the police and security personnel on human rights norms and standards. However, when the entire system remains defective and encourages crime and violations of human rights, can such violations be overcome by mere human rights education programmes? We are compelled to say that the international human rights community has not yet seriously addressed these issues.

Educational sessions on human rights are of little use, unless serious attempts are made to study and understand the actual defects of these systems and undertake activities that encourage the relevant governments to engage in serious reforms. In many instances, the lack of reforms on the part of governments can be attributed to a sense of powerlessness felt by members of the political leadership, as well as the risk to their personal security engendered by attempts to challenge the powerful, corrupt police and criminal nexus. Governments also complain that they do not have the resources required to enable effective criminal investigations or to pay their police forces adequately. The international community should therefore divert resources away from ineffective projects in order to assist in providing the means, support and protection required for such reforms to take place.

Civil and political rights are being undervalued

Another major defect of the post-Vienna period of human rights has been the tendency by the human rights community to treat civil and political rights as being of secondary importance, which has allowed extremely flawed judicial institutions to go unexamined and unchallenged. Certain governments agree to conduct cosmetic programmes on child rights, women’s rights or the rights of persons suffering from special disabilities, in countries that are beset by colossal, systematic violations of civil and political rights. In such countries, the populations are muted by fear and insecurity. This is brought about by the lack of effective mechanisms, including witness protection laws, leading to victims of violations refraining from seeking justice. States are then able to claim compliance with human rights standards through show-piece activities.

If the enjoyment of human rights is to have some meaning for the majority of the world’s population, the issue of civil and political rights, particularly those of systemic and widespread violations in specific countries, should become the focus of attention. Civil society must also develop to become more representative of the wider populations in their countries.

The AHRC points out that the time has come for far greater dialogue and action regarding the obstacles to the realization of human rights, and a well informed common consensus must be reached to face up to these problems. Delays in holding such a discourse will only help the violators of justice and human rights. On this year’s Human Rights Day, we urge the human rights community to face up to the challenges that arise from such systemic obstacles to the rule of law, the administration of justice and protection and promotion of human rights. Many of the measures and mechanisms used in the bulk of human rights activities are not delivering the results that the severity of situations cry out for.

On the occasion of the Human Rights Day, the Asian Human Rights Commission requests that the United Nations High Commissioner for Human Rights, Mrs. Louise Arbour, take the lead and launch initiatives that are conducive to changing the direction of the human rights debate, in order to enable these vital issues to be brought up for discussion and action. The defects in human rights theory and practice can thus be identified and corrected, allowing human rights to become a meaningful reality for the majority of the world’s people, who currently live without such rights.

Yours sincerely,

Basil Fernando
Executive Director
Asian Human Rights Commission

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