Asian Human Rights Commission, Hong Kong
With a view to drafting an Asian Charter on the Rule of Law, the Asian Human Rights Commission (AHRC) is launching a series of discussions on the relationship between the rule of law and the implementation of human rights. Wide consultations are planned to be held before writing and approving a final draft of this charter. This work is a follow up to the Asian Human Rights Charter-A People’s Charter, declared in Kwangju, South Korea, in May 1998.
The radical themes of the People’s Charter need to be further developed from the perspective of the implementation of rights. The AHRC has in its work consistently identified the prevailing breakdown in the rule of law throughout Asia as the primary obstacle to the achievement of human rights. It is hoped that the discussion being launched will provide an opportunity for a detailed articulation of the problems relating to the breakdown of the rule of law by ordinary people as well as concerned groups and academics throughout Asia. These observations and recommendations will subsequently be compiled into a document that reflects the common problems being faced by people in all Asian countries and would suggest means through which these problems could be addressed and remedied.
Democracy, human rights and the rule of law
There have been numerous attempts to promote democracy all over Asia, largely unsuccessful. Their failure lies in the absence of accompanying strategies to establish or enhance the rule of law. As a result, defective rule of law systems are able to distort and even destroy democratic institutions and practices. An election held without the rule of law, for instance, will merely become a farce legitimising the power of those individuals able to manipulate the process. A parliament will become fraudulent when legislative power is abused to the detriment of basic freedoms. The absence of rule of law creates avenues for corruption, which spreads cancerously into the democratic system. All attempts to promote democracy must therefore be associated with equally strong attempts to establish and promote the rule of law.
Similarly, all human rights recognised today as universal depend on the existence of operative rule of law for their implementation. The right to life, for instance, depends largely on state institutions that are meant to respect, protect and fulfil people’s fundamental rights. If these obligations are not met, hunger, disease and the collapse of educational institutions will take place. The lack of effective investigation, prosecution and judicial mechanisms can also threaten people’s rights to life and liberty: innocent people can be subjected to arbitrary punishments, including death. Therefore, despite the proclamations of rights in national constitutions or through states becoming parties to international covenants, people will be deprived of the enjoyment of rights in the absence of rule of law. The common article 2 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises this when it obligates state parties to take legislative, judicial and administrative measures to uphold human rights.
Breakdown in rule of law and key institutions
Vast obstacles are faced in all countries of Asia by those attempting to uphold or promote the rule of law. In some countries, the principle of the rule of law itself is rejected on the premise of maintaining order with or without law. To this effect, the law is regarded by officials and bureaucrats as an obstacle to a country’s development and social stability and is at times superseded by way of executive orders. One consequence of this is the transformation of law enforcement officers into order enforcement officers. Another consequence is that barbaric acts-massacres, large-scale disappearances, extrajudicial killings and torture-are committed by the police and other authorities regardless of legal or constitutional restraints. Many governments also neglect to provide the basic financial and other resources for the proper functioning of law enforcement agencies and even the judicial system (courts). These include staff salaries and benefits, training facilities and facilities needed for investigations, such as forensic science equipment. This means that even when laws exist on paper they cannot be enforced because personnel in many institutions claim that they are incapable of carrying out their mandates due to resource limitations.
The primary institutions responsible for the administration of justice-the police, prosecution and judiciary-are now facing significant problems. Some of these have been caused by the historical development of these institutions, which may have been hampered by colonialism, feudal traditions, inherent societal discrimination and periods of internal conflict or civil war. Others are related to the lack of independence enjoyed by these institutions to perform their duties with competence and integrity; often attempts are made by political authorities to manipulate the institutions for their own interests, thereby affecting their objectivity and impartiality. Without studying these causes and making deliberate attempts to develop these institutions, it is not possible to prevent the institutions from becoming obstacles to effective rule of law. It is also important to study how the necessary political environment for the rule of law to flourish can be created. Such studies should thus be an important component of this series of discussions.
The defective policing institution in many countries is a key obstacle to the realisation of the rule of law. Police behaviour often resembles that of the military or paramilitary forces. Such policing is unfriendly to civilians and tends to use force as its working method. Torture often becomes a common and endemic practice as a result of such policing.
Prosecution mechanisms also have fundamental problems that affect their upholding of the rule of law. In some countries, the prosecution is directly controlled by the state and used for political purposes; false charges against political opponents of the state are a common occurrence. Similarly, the prosecution mechanism in many places bases its decisions not on the rule of law but on extraneous factors, such as political pressure. Such pressure is greater in systems where no separate prosecution function exists so that the same department is responsible for state affairs as well as criminal prosecution. At times of civil conflict, practices contrary to international norms, such as state prosecutors acting as defence counsel for military and police officers accused of gross human rights abuses, have occurred in certain prosecution systems. These officers have then been advised by their counsel to fabricate statements and other evidence, which, in turn, affects the overall morale and credibility of the prosecution department.
The judiciary is another faulty institution which needs to be addressed when considering obstacles to the rule of law. Several Asian countries do not recognise the principle of an independent judiciary. Where the principle is recognised, there is often a lack of competent and qualified judges. In other countries, political regimes impose severe restrictions on the judiciary, even bringing about constitutional limitations on judicial powers. The appointment and promotion of judges as well as other administrative processes are used as leverage, preventing them from acting independently.
Supervisory mechanisms to ensure the rule of law and human rights must also be studied. In some countries, such mechanisms do not exist at all while in other countries their actual capacity for intervention is limited. Many such mechanisms suffer from limited mandates and a lack of resources.
Together with institutions, the justice and legal systems in Asia must also be scrutinised. The problems faced by marginalised sectors of society in obtaining legal redress are a significant aspect of the breakdown in the rule of law. These groups, which, in fact, are a majority in the region, are often entirely excluded from the legal process. Some of these exclusions have occurred throughout history. Women, Dalits, indigenous peoples and religious minorities are often those deprived of all access to law.
Anti-terrorism and emergency laws are another aspect of the increasingly repressive nature of legal systems in Asia. The use of such laws removes all forms of legal protection. It is for this reason that torture, mass killings after arrest and disappearances have taken place while such laws are in operation.
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 genuine consideration of what is involved and what is needed to make the achievement of human rights a reality. The purpose of conducting Asia-wide discussions on this issue is to document these problems in detail and to debate these matters publicly in order to promote local education as well as to educate the international community about the real problems that need to be addressed if the rule of law and human rights are to be realised in Asia.
The AHRC calls upon everyone to take an interest in order to contribute to making this project-of taking concrete steps to promote the rule of law-a success. While focused discussions will be held in various countries, the possibility of having discussions through e-mail networks, the internet and other print media will also be explored. All comments and suggestions in regard to this proposal are welcome.
Visit the Asian Charter on the Rule of Law webpage atwww.ahrchk.net/rol_charter/ to keep up to date with the latest discussions and get involved.
This is the text of a statement released by the Asian Human Rights Commission on 7 October 2005 (AS-104-2005).