How should the work on the Asian Charter for Human Rights be carried forward ?
- Asian Human Rights Commission -
Basil Fernando *
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?
# # #
The Asian Human Rights Commission (AHRC) works towards the radical
rethinking and fundamental redesigning of justice institutions in
order to protect and promote human rights in Asia. Established in
1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.
* Basil Fernando wrote this article for Asian Human Rights Commission
The writer can be contacted at www.humanrights.asia
This article was posted on September 26, 2017.
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