ASIA: Still a Long Way to Go to Rule of Law and Human Rights in Asia

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

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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.

Neighboring 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 militarized 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.

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