Affirming something through a declaration and denying the same in actual practice happens everywhere, but the real test of affirmation is the degree to which something is practiced. When what is affirmed and what is actually practiced is virtually divorced then the very act of affirmation becomes a mockery. That, unfortunately, is the situation regarding human rights in almost all developing countries. That is the situation in many countries in Asia.
Let us illustrate this through some real life examples. Take the case of the Philippines. After the overthrow of Ferdinand Marcos’ dictatorship by way of the Peoples Power Movement, Corazon Aquino became President. Her government ratified almost all of the UN conventions including the optional protocol for the ICCPR. An impressive section on human rights was incorporated into the constitution itself. However, President Duterte’s government has officially authorized extrajudicial executions, allegedly of “drug offenders”; these include at least 43 lawyers, a few judges and also human rights activists, particularly those working for environmental rights. All rights relating to arrest, detention and fair trial have been ignored. That is how vast the gap between written laws and actual practice has become in the Philippines, once considered one of the most progressive in terms of human rights in Asia.
Under the United Nation’s Transitional Authority in Cambodia, all the UN conventions were ratified and the constitution even stated that all these conventions are part of the Cambodian law. However, Cambodia did not attempt to practically develop an independent court system or any other independent public institutions. All opposition parties face degrees of suppression. The land given to the people on their return from the refugee camps at the Thai-Cambodia border, where they fled to after the fall of the Pol Pot regime, is now being subjected to land grabbing. Again, illegal arrests, illegal detentions and denial of fair trial are used as instruments to help the powerful.
As for Myanmar, the denial of the rights went to the extent of a virtual genocide of Rohingya people, a considerable number of whom have fled. The parliament has little say and the old military structure of governance is still intact. The court system is used to oppose the rule of law.
In Bangladesh, the former Chief Justice himself has written a book describing how judicial independence has been thoroughly undermined. The Rapid Action Battalion has been used for killing or otherwise harming all political opponents. The policing system is so corrupt that arrests and detentions are often used as means to obtain bribes, both from complainants and from the victims of illegal arrest and detention. There is hardly any space for the independent practice of the legal profession. Poverty is so deeply entrenched that a huge number of people migrate out of Bangladesh to wherever there is at least some opportunity for employment. There is hardly any system through which people can make their complaints about the wrongdoings that they suffer from. Enforced disappearances and encounter killings take place all the time and there is no attempt at all to investigate these matters. Independent media and the remaining human rights organisations are subject to severe repression.
In Pakistan, violence has spread everywhere and a sense of security has ceased to exist. Violent confrontations between the military and sections of the population take place on a regular basis. The policing system is completely corrupt and the judicial system is dysfunctional. Disappearances have been reported to be taking place in many parts of Pakistan. Illegal arrests, illegal detentions and denial of fair trial takes place all the time. The women are subjected to horrendous forms of violence and denial of rights. Virtually all aspects of life in Pakistan are controlled by the armed forces despite a pretense of the existence of a civilian government.
India, which maintained an appearance of being more democratic despite its own human rights violations, especially of the poorest sections of its society as well as those living in the border areas under draconian laws like the Armed Forces Special Powers Act, has also started to lose its sheen. India has ratified most of the UN conventions but is witnessing a right-wing majoritarian surge, leading to large scale violence, especially against minorities and Dalits. India’s right-wing government under the Bhartiya Janata Party has also been weakening public institutions and rights legislation like the Right to Information Act steadily and systemically. The country recently abrogated the special status of Jammu and Kashmir unilaterally and forced the state into a total lockdown that has been going on for over a month. Also, there is almost no rule of law in many of the states in India such as Uttar Pradesh, Bihar, North Eastern states and so on. The police there hesitate to file even First Information Reports in rape and murder cases without the intervention of the Supreme Court if the accused are powerful politicians, officers and so on, as exemplified by two recent cases in which legislators are involved. Generally, for the poor, access to justice does not exist.
Sri Lanka has by its own constitution, promulgated in 1978, displaced the principle of the rule of law and the separation of powers in order to create a system that is called an Executive Presidential system, which has virtually removed any limitations on the power of the President. Several decades under this constitution has displaced and undermined all public institutions including the civil service, policing system, prosecution system and also the judiciary to a great degree. Interference with the judiciary by powerful politicians has become part of normal life and no one has been brought to justice for their interference with the judiciary, or their attempts to do so. There have been cases that have taken over 17 years to reach final adjudication, on matters as serious as torture, rape and the like, and this dysfunction and delay virtually makes a mockery of the access to justice. While about 100,000 enforced disappearances have been reported over the last few decades there has not been a single case where the accused was identified and brought to court for prosecution. In the internal discourse, references to human rights is considered unpatriotic.
Illegal arrests, illegal detention, denial of fair trial and widespread use of torture takes place due to the dysfunctional nature of the policing system in particular and the justice system in general. Even in the case of the hundreds of people killed in the Easter Sunday terror attack, there has not been a serious investigation and no one has been brought to justice for crimes associated with this bomb attack.
In Afghanistan, violence has become so normalised that there is hardly any room for justice.
The importance of Goal 16 of the UN Sustainable Development Goals 2030:
For the first time, access to justice, the need to build strong public institutions for the protection of the people and the rule of law are recognized as essential ingredients of sustainable development by the United Nations. This recognition is important not only from the point of view of sustainable development but also in the overall scheme of the promotion of all the UN conventions.
The situations we have described from different countries are a result of ‘justice systems’ within which there is no real attempt made to provide access to justice in a genuine manner. That absence results from the absence of strong public institutions for the protection of the rights of the people. Such public institutions that could make the difference are a functioning parliament, disciplined civil service, credible policing service, non-politicised prosecution system and independent judicial institutions. It is these that are being severally undermined where they exist, and there are several places where they do not exist at all in any significant manner before a façade. Therefore it is not a surprise that rights are not protected in these countries, despite their making of public demonstrations of loyalty to the UN conventions by way of ratifications.
Protection of all rights depends on the rule of law and a just legal framework. Where rule of law is absent, there are all kinds of other methods that replace it. The essence of all such other methods is the arbitrary use of power by which the state abuses its position to the disadvantage of the citizens of the country.
Therefore, this recognition in Goal 16 of the SDG should be treated as a very important landmark in the development of the human rights thought globally. There was a recognition of the principles in the Goal 16 in other conventions such as the International Covenant on Civil and Political Rights (ICCPR). The article 2 of the ICCPR recognised the duty of the signatories of the Convention to provide for the legislative, judicial and administrative measures in order to ensure the implementation of rights. However, monitoring the implementation of these aspects has not been developed adequately even within the UN system. Now that Goal 16 recognises these principles, not purely as legal obligations but also an obligation in sustainable development, attempts should be made by the global human rights community to further articulate these positions and also to popularise this within the entire human rights field.
The importance of the Gwangju uprising of 1980:
The Gwangju Uprising of 1980 against the military takeover of South Korea was, is and will remain a great example of people’s resistance against repression and of what such resistance could achieve. About 160 people decided that it was better to not to surrender to the military so that the morale of the people to fight for democracy could be sustained. After clear deliberations, they decided not to surrender, and the military entered and killed many of them and wounded many others. Their memory became a part of the continuous resistance on the part of the South Korean people against the military, which was finally defeated, and two leaders were brought to justice before a court in South Korea. Today, South Korea remains a vibrant democracy and a shining example to other countries in Asia.
Asian Human Rights Commission (AHRC)