//ASIA: Still a long way to go to rule of law & human rights in Asia

ASIA: Still a long way to go to rule of law & human rights in Asia

Closing statement of the 6th Human Rights Folk School of the Asian Human Rights Commission

The 6th Human Rights Folks School of the Asian Human Rights Commission (AHRC) was held in Hong Kong from 21 to 26 August 2006. Over 30 persons from Korea, Japan, the Philippines, Indonesia, Cambodia, Thailand, Burma, Bangladesh, Nepal, India, Sri Lanka, Pakistan, and others expressed a common opinion that Asia still has a long way to go to secure the rule of law and basic human rights. The participants pointed to the prevalence of custodial torture and related abuses along with a lack of ways to obtain redress as the key issues of concern for human rights defenders in Asia today.

South Korea, for instance, although a relatively developed jurisdiction in comparison to the other Asian countries, has not yet eradicated custodial abuse. When the National Human Rights Commission of Korea was established a few years ago, it received about 10,000 complaints of alleged abuses. Police brutality against demonstrators, sometimes resulting in death, has also been common, and a subject of growing concern. Rather than addressing the problem with sincerity, the government has sought to restrict the right to assembly, contrary to international standards. Domestic laws need to be reformed and the justice system developed to allow for better redress to victims. For example, the absence of registered lawyers in around half of the country's districts greatly inhibits the possibility for victims of abuses to obtain redress.

Participants expressed special concern about the lack of laws and unwillingness of judicial agencies to combat torture. In Indonesia, there has been no proper adjudication of cases alleging brutal torture by police and army personnel. Although the country has ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, torture has not been specifically defined as a crime there. The existing definition is so broad as to render it meaningless: even domestic violence can be classified as 'torture'. Meanwhile, Indonesia's courts make a mockery of justice. The chief justice of the Supreme Court recently passed an extraordinary order to extend his own term in office, and decided on his own case in an appeal against the order that challenged its constitutionality. The court ruled that the National Judicial Commission cannot intervene in the appointment, retirement and extension of service of judges, effectively defeating its entire purpose. When the highest court behaves in this manner it sets an example for all other courts that has long-lasting and negative effects.

In China too a prohibition on torture is limited by definition to only certain categories of acts, which fall short of the standards set by international law. In addition, the courts are not independent. Although the criminal justice system is improving, custodial torture remains widespread and there is a great deal more work for the country to do if the rule of law is to be established.

Bangladesh is much like China in that with the exception of the Supreme Court its judiciary is under government control. However, unlike China it is not making reforms or showing evidence of change. Its government has taken years to make even the smallest reforms under intense pressure from inside and outside the country. Custodial torture, "crossfire" killings and other gross abuses occur daily but although the government has joined the anti-torture treaty for the sake of its international reputation, it has done nothing to modify the domestic law to criminalize torture and has failed to ever submit a report to the UN on torture in the country as required.

Neighbouring India has for its part failed both to ratify the Convention against Torture and do anything to stop the rampant custodial torture within its borders. In heavily militarised states like those in the northeast the army and paramilitary units are the main perpetrators. In these areas draconian laws such as the Armed Forces Special Powers Act provide absolute impunity to state officers for whatever abuses they commit. In other parts of the country, the police and other regular law-enforcement agencies are primarily responsible. They too are beyond the reach of complainants, due to the absence of a law to address torture and the enormous obstacles that India's broken down courts place before them.

Although Sri Lanka has ratified the UN convention and introduced a law to prohibit torture, custodial abuse continues to be rampant in police stations. Few perpetrators are convicted, due to the country's corrupted and inept investigative, prosecution and judicial agencies. At the same time, other institutions such as the Human Rights Commission of Sri Lanka have performed poorly. The public has no faith in the capacity of the state to give them relief when their rights are violated. However, they are not silent. People are taking to the streets to demand change. A growing number understand that the only way out of the situation that they are in is through concerted demands for re-establishing of the rule of law.

Participants at the folk school discussed the links between torture and other gross abuses, including forced disappearances and killings. They discussed how in the Philippines all forms of abuse are commonly practiced, including through sexual assault. The police and army are systematically used to suppress popular movements, such as those for the rights of landless peasants. People who raise their voices in protest loud enough are either killed or imprisoned on fabricated charges. They have trouble obtaining lawyers, as fear of being killed, abducted or tortured has caused fewer advocates to take up human rights cases.
 
In Thailand also custodial torture is believed to be widespread and victims have no avenues to justice. The country has not ratified the Convention against Torture or made any law to give protection against the police or others accused of abuse. There are many other related problems, such as the absence of any effective witness and victim protection. Although an office for witness protection was recently established, it has only a handful of staff and is not yet able to function independently. Another problem is that despite the principle of presumption of innocence, poor persons brought by the police before courts in Thailand are generally treated as if they are already guilty. Even persons complaining that they have been tortured to extract a confession are not heard or understood by the courts, which routinely hand out very harsh sentences for minor offences. On the other hand, highly placed officials and politicians are almost always exempt from prosecution.

The participants widely explored and agreed upon the links between grave abuses and impunity in their countries. In Pakistan today government opponents are being slaughtered and the country is being driven to anarchy due in large part to the massive numbers of abductions and murders by state agents. Detainees are tortured in order to admit to being involved in 'anti-national' activities: no law exists to protect them against torture and the country has not joined the Convention against Torture. Although the number of such cases has escalated in the past two years, not a single perpetrator has ever been held to account. In many cases, the police have not even received or recorded complaints. Even if cases ever go to court, the judiciary is completely compliant with the government's wishes, so the prospects for justice are naught.

Folk school participants also agreed that as custodial torture is a form of systemic violence by the state upon its own people, efforts to oppose it involve a fight against the authorities who stand behind it. This requires the ability to speak out loudly. Where freedom of expression is seriously curtailed or completely prohibited, addressing torture and concomitant abuses is all but impossible. The par
ticipants agreed that promotion and protection of human rights is constantly hindered by control over modes of communication and other means to restrict freedom of speech and greater awareness about the shocking realities afflicting countless millions throughout Asia.

In Bangladesh and the Philippines journalists are routinely targeted and killed by the police, army and people working on their behalf. In the Philippines alleged perpetrators escape even arrest or investigation; in Bangladesh, the executive-controlled courts have acquitted the accused. In Pakistan laws imposed by the military are used to stifle opposition. And in Thailand, criminal defamation is used widely and severely to silence dissent. The country's leadership in general is intolerant of any kind of criticism. All this restricts the possibility in these countries to address grave abuses.

In Cambodia too, the government has prohibited freedom of expression despite a constitutional provision to the contrary. Protests are quickly and uncompromisingly put down. Victims of abuses have no means to complain or assert their rights under law. As many other parts of Asia, the government has organised gangs such as the so-called "Pagoda Boys" to be used violently against opponents.

Burma is among the worst examples of a lack of freedom of expression in Asia. It has for decades been tightly controlled. Any form of dissent is fiercely opposed. There is only a single permitted narrative in the country: that imposed by the state. Persons seeking to complain about police abuses find themselves made the subject of fraudulent charges and jailed. Even farmers who complain about land confiscation, local corruption or ineptitude are arrested and prosecuted. The courts are completely corrupt and little more than a weak arm of the military government.

By contrast to Burma, Nepal is a country that is now coming out of a period of very severe repression; nonetheless, it faces enormous challenges in the days, months and years ahead. Both the government and Maoists have been responsible for huge numbers of atrocities in the last few years. Many incidents are still occurring. However, the trading of allegations and insults has damaged prospects for genuine discussion towards change. Both sides remain armed and ready to fight, and the lack of cases being investigated and brought against army and police personnel for abuses has the possibility to severely affect public confidence at this critical time. It may be that both sides will negotiate for an amnesty as part of a political settlement, to the detriment of countless victims and their families. So far also there has been no move to change the law on torture, which only allows for petty compensation, not prosecution. And as in other states, the courts and prosecution and investigating agencies are completely defective: restoring them will require immense work, resources and political will.

Both Nepal and India also suffer from the blight of caste discrimination, which is itself closely linked to torture and the failure of justice institutions in Asia. Throughout Nepal and in parts of India–such as Uttar Pradesh–separation by caste is still widely enforced. Huge numbers of people are classed as "untouchables", today broadly identified as Dalits. These people suffer from excessive poverty and degradation. They starve in the face of utter neglect by the authorities. They cannot put their children into schools, eat in restaurants or drink in teashops, get registered to vote or listed as scheduled castes and tribes, rent accommodation, or visit temples. Feudal lords continue to hold them in modern forms of slavery, such as bonded labour. Laws to prohibit all of these practices and give relief are simply not applied.

The participants at the folk school agreed that there is still a long way to go for the rule of law and human rights in Asia to be made reality. However, they were encouraged by the commonality of their efforts and joint recognition that change and progress is possible. Authoritarian regimes in Korea, Indonesia, the Philippines, Thailand and Bangladesh have all been brought down by their peoples. In 2006 the people's overthrow of the absolute monarch in Nepal has been a great example for others in the region, as has the determined opposition to the illegal election of the government in Thailand by the public there. The government of the Philippines is being subjected to growing and determined pressure over its failure to end extrajudicial killings. There are continued serious efforts by legal professionals in China to make lasting reforms to criminal procedure and law. Still, there are only two states in the region that can be classed as democracies: Korea and Japan; while Hong Kong has done much to uphold rule of law principles despite not having obtained universal franchise. In the Philippines, Indonesia, Cambodia, Thailand, Bangladesh, India and Sri Lanka elected governments promote a false image of democracy while in fact undermining it through overt or covert control of the courts and laws, police, media and other key public institutions. And in all countries of the region there are many areas yet to be addressed in order to see that the rule of law and human rights are truly enjoyed. The participants reaffirmed their commitment to work together towards these goals, to utilise modern technology in order to advocate at the domestic, regional and global levels, and build a common understanding of the problems they face and possibilities for change.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.