The following is a presentation made at a workshop organized by the Asian Human Rights Commission and the May 18th Foundation (14-16th September 2017) on the preparations for the 20th Anniversary of the Asian Human Rights Charter 1998. This paper addresses the direction the Asian human rights movement should take in order to contribute to the improved enjoyment of rights in Asian countries.
The Asian Human Rights Charter (hereinafter ‘the Charter’) was aimed at changing how human rights work was conducted in developing countries. This remains relevant to the context of most Asian countries, particularly because of the lack of developed systems for the administration of justice. The aim was to improve the actual realisation of human rights by the people. The institutions and systems required for the administration of justice are primarily the policing system, which plays the vital role of investigating into human rights violations; the prosecutions department, which is meant to call out violations of the law; and the judiciary, which is meant to adjudicate competently and impartially. All of these institutions and systems had to undergo significant improvements;
How were we to do that? That was what the Charter was meant to address.
The general human rights movement engages in calling for inquiries into massacres and other gross human rights abuses, and demands the prosecution of the perpetrators.
The Charter introduced the approach of investigating into the actual capacities of the institutions required for the administration of justice, in order to discover the defects that prevent people from accessing their rights. After establishing what was wrong with the system, the goal was to then engage in work that could help to overcome these defects and improve the enforcement of human rights.
For example, women in most Asian countries are denied their rights to liberty, education and equal opportunities for employment, and many suffer sexual abuse and associated forms of violence. Why is it that the police, prosecutions department and judicial system in their countries are unable to protect the rights of women? Why can’t women travel in the evenings and at night like men? Why are the police, prosecutions department and the judiciary unable to ensure the rights of women to move about in the way that men are able to move about? If the rights of women are to be enforced, it is necessary to find out why the institutions responsible for enforcing these rights have failed. In the same manner, we can discuss other examples like the rights of minorities, such as Dalits in South Asia. To discuss the rights of women or other groups without discussing why the institutions of justice fail them is to leave human rights purely as a dream or a pie in the sky.
What the AHRC wanted to suggest is that, in the same way that human rights groups advocate fact-finding missions into massacres and other crimes, there must also be fact-finding missions to discover the defects of the systems of justice that deny people redress for crimes and deprive them of their rights. Unfortunately while the human rights movement advocates fact-finding missions into massacres, it is not a mainstream practice to engage in fact-finding missions into problems of the justice system. This may be because the issues about defects of justice systems do not arise in developed countries under normal circumstances. Therefore, human rights investigations are confined to especially horrifying events and humanitarian catastrophes. This piecemeal approach is not suitable for countries that do not have the kind of institutional development that developed countries have because the day-to-day practices that lead to such catastrophes inevitably involve the administration of justice.
To be practical, let us ask the following questions:
a) Can the human rights movement engage in fact-finding missions with the view to make a proper assessment of, for example, the state of judicial independence in their countries? Can they look into the reasons why impunity prevails while the judiciary claims that it is independent? Is it because judicial officers are ill-educated or politically influenced, or because they do not really appreciate the idea of equality before the law? Or are there other reasons? If we know the reasons, then we can address the issue of impunity and take corrective actions to end it. Without this step, we will only be forever complaining about impunity. Impunity will continue despite such complaints. Ultimately, without the ability to understand the changes that need to be made and then taking steps to change things, the human rights movement could be seen as unable to show people what it can really offer to improve lives.
b) We can also undertake fact-finding missions into ineffective police investigation systems, with the view to finding out why such incompetence, which often leads to corruption, remains unchallenged. What are the causes of this situation and what is the way to change it?
c) The same questions could be raised about prosecutions, by undertaking similar fact-finding work.
The fact-finding methodologies may vary. It could be similar to the fact-finding missions into massacres. It could also be by way of extensive documentation work into the attempts taken by victims to seek justice and to find out why they have failed. It could also involve academic forms of fact-finding. Whatever be the method, the ultimate aim is to find the real causes of the defects in the system, with the view to work towards overcoming these problems.
This whole approach calls for a different type of activism. In assessing whether human rights defenders are sufficiently equipped to do their expected tasks, we must ask the questions that are raised above. There is no other way for human rights defenders to be well equipped to do their work.
Can this last year before the 20th anniversary of the Charter be the year in which we could experiment with new approaches to fact-finding and other human rights work, including advocacy and monitoring, which are directed towards the improved knowledge, and thereby increase the capacity of human rights defenders to improve their justice systems? This would increase the practical usefulness of human rights work for the people of their countries.
How can the advances that have come about in modern technology be used for the above purpose of fact-finding about justice system problems? And how could it further improve methods of advocacy so that more people could be influenced to undertake various types of functions as change makers? Additionally, how can we learn about the negative uses of modern technology, through which repressive states could use technology to repress work for the advancement of human rights? And how could we learn to counteract such methods?
Freedom of expression being the key to the improvement of human rights, how could this freedom be used for gaining and spreading a critical understanding of the defects of justice systems? These defects obstruct the enforcement of human rights, and it is important to develop ways to give expression to these problems so that whole nations and the international community could have a better understanding of the local situations, and thereby be in a position to take effective actions to overcome these problems.
Can we recondition activists to expand their work beyond the limited methods that they have gotten used to in accordance with earlier practices, and thereby learn to develop more efficient ways of showing people that their frustrations about human rights can in fact be explained, and that, with a proper understanding of defective systems of justice, actual improvements and even great changes could be brought about?
In short, can we envisage a new form of activism and dynamism and create a new type of human rights defender, one who does not merely talk about defending rights but can really protect the rights of the people they are working with?
Basil Fernando is a Sri Lankan born jurist, author, poet, human rights activist, editor of Article 2 and Ethics in Action, and a prolific writer. He became a legal adviser to Vietnamese refugees in a UNHCR-sponsored project in Hong Kong. He joined the United Nations Transitional Authority (UNTAC) in 1992 as a senior human rights officer and later also served as the Chief of Legal Assistance to Cambodia of the UN Centre of Human Rights ( now the UN High Commissioner of Human Rights office). He is associated with Asian Human Rights Commission and Asian Legal Resource centre, based in Hong Kong since 1994