The Absence of the Rule of Law and the Actualisation of Human Rights: A Contradiction that Must Be Resolved
International Human Rights Day on December 10 should be a moment in Asia to reflect soberly as to why on this continent, where more than half of the world's population live, basic human rights are denied to most people. Although there are complex factors that contribute to this denial of people's rights, one factor stands clearly above all others: the rule of law does not exist in most parts of this vast continent.
The nexus between the rule of law and the actual realisation of human rights is not something to which the global human rights community has paid sufficient attention. The result is that while enormous attempts have been made to propagate the basic ideas of human rights, as enshrined in the 1948 Universal Declaration of Human Rights (UDHR) and other covenants and conventions adopted by the international community under the sponsorship of the United Nations, the effort to create the conditions that are necessary for the actual realisation of human rights compares very poorly with the hard work that has been undertaken to create an awareness of human rights. The result is that people whose rights are so blatantly and continuously violated ask their governments as well as the United Nations, "Where are my rights?" To this question, neither the governments nor the United Nations and the international community are able to give a satisfactory answer as of now.
Burma, Nepal and Cambodia are among the countries in Asia that have no possibility of enforcing the rights of their people. Various political obstructions stand in the way of creating a type of state that is capable of undertaking the responsibilities necessary for the realisation of people's rights. While democratic and human rights jargon may be used by these states, they are preventing the development of the elementary forms of state development within which citizens can approach their state with even a most rudimentary level of confidence and belief that the state intends to respect their rights. From the point of view of accountability for respecting human rights, these states do not even have the basic structures to make such accountability possible. The international community, in approaching such countries, should take into consideration this key issue which, if left unresolved, will make the efforts of the international community likely to bear few tangible results. The example of Cambodia, where enormous international efforts and resources have been allocated over the last 10 years, demonstrates the type of internal contradictions that prohibit even small positive developments in this country. The same problems are evident in Burma and Nepal as well. We therefore urge the United Nations and the international community to pay special attention to these three countries and to develop a more comprehensive strategy to assist the development of state institutions through which people can seek redress and protection of their rights.
Many other countries in the region reflect how the absence of the rule of law in varying degrees obstructs the realisation of human rights. India and China are the countries with the largest populations in the world. Although the political systems and the history of their justice systems differ, there are similar patterns of obstructing the rights of people in both countries through defects in their rule of law systems.
India, for instance, claims long years of legal and constitutional development and the development of judicial institutions from colonial times up to now. However, the enormous delays that affect India's justice system and vast defects in India's policing system deprive ordinary citizens of their basic rights. India today stands as a glaring example of the adage that justice delayed is justice betrayed. Thus, those who suffer violations of their rights naturally have a deeply inherent pessimism about the possibility of actually achieving these rights. Moreover, the corruption and inefficiency embedded in India's policing system is a constant source of torture, particularly for India's poorer and marginalised sections of society, such as the country's minorities. The discriminatory psychology of caste is inbuilt into the policing system of India as well. Those who are considered to be Dalits and lower castes are among the people who are most brutalised by torture and are denied all of their rights. Other minorities, such as India's adivasis, or indigenous people, and Muslims, Christians and Sikhs, are also denied the possibility of equality and fairness in their relationships with the police and justice within the basic institutions of the judicial system. It should be noted that although a request has been pending by the U.N. special rapporteur on torture to visit India since 1997 the government of India has not made this visit possible.
The denial of justice in China takes place in a different manner. China's struggle to build a system based on law instead of the arbitrary rule of individuals extends back more than two decades. Although some progress has been made in this direction, China, however, is far from establishing a system based on the rule of law. When social order is maintained without the rule of law, there are hardly any effective means of redress for people who feel that their rights have been violated. China does not recognise a separation of powers between the institutions of the state, and therefore, the independence of the judiciary from the executive does not exist. This present reality prevents the possibility of the judiciary intervening as an adjudicator on basic rights issues and obstructs the development of the rule of law in the country. This contradiction is a matter that China's people and the authorities will have to resolve in the future. The recent visit of Manfred Nowak, the U.N. special rapporteur on torture, reflects the results of these contradictions. He notes that the use of torture is still widespread, though it is not always for political reasons. The general contradiction of the police and other institutions, such as prisons and rehabilitation centres and the like that are operating outside of the basic framework of the rule of law, will remain sources of torture and other violations of human rights. This contradiction cannot be cured by the imposition of the death sentence as China does now. The wide use of the death penalty is only a reflection of executive action to resolve perceived problems in an arbitrary manner rather than through institutional processes that strengthen the state and society.
Moreover, the rule of law is seriously flawed and torture is endemic and widespread in the following countries: Bangladesh, Pakistan, Sri Lanka, the Philippines, Thailand, Indonesia and Malaysia in addition to the countries mentioned above. The key issues are the extremely arbitrary nature of policing systems; the lack of effective redress mechanisms in justice systems; enormous obstacles faced by people, particularly the poor, which constitute the majority of the population in these countries, in terms of access to the law; enormous delays in judicial systems; an absence of protection to the complainants and victims, particularly when they make complaints against state authorities; and the weak development of the legal profession in these countries, either due to intense pressure that intimidates lawyers or the lack of traditions of fearlessly defending people seeking justice. The net result is that, despite ratification of the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and other U.N. conventions and covenants against discrimination, people have little or no possibility of actually asserting these rights. While a facade of compliance to international treaty bodies is maintained, the observations and recommendations of these U.N. bodies are shamelessly flouted and ignored over and over again, in effect mocking the international effort to make it possible for everyone to enjoy their basic rights.
Meanwhile, the denial of human rights in Singapore belongs to a special category. Singapore makes it effectively impossible for people to live in an environment in which individual rights can exist. The ruling party is also virtually the state. Freedom of assembly, freedom of expression and the capacity to assert one's rights do not exist in this environment at all. The absolute denial of rights makes it impossible for the realisation of any of the rights enshrined in the international covenants and conventions. In fact, the official political ideology does not recognise the validity of these covenants and conventions.
Under these circumstances, the Asian Human Rights Commission (AHRC) calls upon the peoples of Asia, as well as all others concerned with the actual realisation of human rights, to pay special attention to the link between the rule of law and human rights. Finding ways to resolve this contradiction is the path that has to be tread if human rights are to be a practical reality. As a symbolic means of stressing this issue and keeping it alive for discussion in the immediate future, the AHRC has launched an Asian Charter on the Rule of Law. This effort is a follow-up to AHRC's earlier effort to work towards drafting a People's Charter on Human Rights. We urge everyone to support this effort and to make the theme of improving the rule of law for the achievement of human rights a central theme of engagement in the coming year.
This year on International Human Rights Day the AHRC is presenting a report on the state of human rights in 10 Asian countries -- Thailand, India, Nepal, Sri Lanka, Bangladesh, Burma, the Philippines, Cambodia, South Korea and Indonesia.
Full report (pdf* format - 1.33 MB)