A. Un-rule of law

In countries throughout Asia there is a lack of adherence to the law, both domestic and international. What results is that those in power--political or institutional--do as they please, with no one to account to. Ordinary people live in instability and fear, lacking basic security for a normal existence. The institutions responsible for protecting people's rights are malfunctioning, in many instances being themselves responsible for violating rights, as indicated in the cases below, all of which were issued as urgent appeals by the Asian Human Rights Commission (AHRC).

Brutality of state officials

Mr Abhijnan Basu was doused with diesel fuel and set on fire by officers of the Presidency Jail in Kolkata, West Bengal, India on 12 November 2004. The reason for this brutal act was that Abhijnan had allegedly complained about the quality and quantity of food the prisoners were being provided. Needless to say, the prison officials did not take kindly to such defiance from a prisoner. On the morning of November 12, Abhijnan was approached by the jailor and several prison wardens, who quickly overpowered him and doused him in diesel. They immediately set Abhijnan on fire, who fled the scene shouting in agony.

Abhijnan was taken to the MR Bangur Hospital before being transferred to the SSKM Hospital, where he remained in a critical condition for eight days, having suffered burn injuries to 90 per cent of his body. He succumbed to his injuries and died in hospital on November 19.
 
While an inquiry is in progress in relation to this case, it is being carried out by prison officials, and therefore its legitimacy is questionable. Before the inquiry being completed however, the Inquiring Officer has already provided a statement to the media that the jail authorities are not at fault.

According to the prison authorities, Abhijnan committed suicide and was not set on fire by others. Despite such a claim, the authorities could not explain how Abhijnan came to possess diesel and matches inside the jail premises. The authorities also referred to a psychological disorder that Abhijnan suffered from, but could provide no medical evidence of it [See further: AHRC UA-166-2004, 26 November 2004].

Such brutality exists not only in India. The police in Sri Lanka are well-known for their abusive behaviour, of which Mr Koraleliyanage Palitha Tissa Kumara was one victim of many. A prominent 31-year-old artisan, Tissa Kumara was brutally assaulted outside his house at 8:30am on 3 February 2004 by Sub-Inspector (SI) Silva, before being put into a jeep and taken to the Welipenna police station, Kalutara District. En route, the police picked up Galathara Don Shantha and several other young persons.

After arriving at the police station, the police took Tissa Kumara to SI Silva's room, where he was told to sit on the floor, while the others were taken to the cells. A little later, Galathara was brought in and made to sit opposite him. Then SI Silva took a cricket post and started hitting Tissa Kumara repeatedly, telling Galathara, "Look—this is how the others will also be treated." Tissa Kumara's wife, P Rajitha recalls what her husband later told her had been done to him:

There were several others who had also been arrested along with my husband on suspicion of robbing a boutique nearby. However the others had confessed to their involvement, so they had not incurred the wrath of the police. Palitha refused to confess, as he was not involved. One Sarath had been apprehended on suspicion and had falsely implicated Palitha as revenge [thinking that Tissa Kumara was somehow to blame for his arrest].
 
My husband told me that SI Silva severely assaulted him, demanding information and shouting, "Give me the bombs, give me the weapons and tell about the robbery." He had been beaten all over his body, especially over the chest and heart. While hitting Palitha on the heart SI Silva had remarked, "I am going to kill you." After each beating, Palitha had also been dragged and soaked with cold water. He also said that SI Silva made Sarath, who was a co-suspect in the case for which Palitha was arrested, and who had been suffering from tuberculosis, spit into my husband's mouth, saying, "You too will be dead within two months from today due to TB."
 
After the spitting incident, another policeman had given Palitha some water with which to rinse his mouth. This same policeman had taken pity on him and given him a mattress to sleep on. However SI Silva had subsequently arrived and had taken the mattress away, thus forcing my husband to spend the night on the floor.

The beating went on for possibly two hours, and in that time Tissa Kumara recalls being hit about 80 times, on all parts of his body, soaking his clothes with blood. The blows were often so forceful and wild that the officer also hit and smashed an electric bulb on the ceiling. Throughout this time, Galathara was watching in terror. Tissa Kumara noticed that he had involuntarily urinated on seeing the manner in which he was beaten up. After this, even other officers became concerned at the relentless beating and savagery of the attack. Another came in and said to SI Silva, "Are you trying to kill this man? Stop this hitting." However, he did not stop. Then the officer left and came back with about eight other officers, and one of them literally had to pull the cricket post out of SI Silva's hands. It was after this that SI Silva brought Sarath and forced him to spit into Tissa Kumara's mouth.

Tissa Kumara was first kept in the cell for about three days. In that time he often vomited, and could not eat or drink. Each time he tried to stand up, severe pain in his right ear caused dizziness and disorientation. On the third day SI Silva came and told him to get up, raise his arms and bend down. He found it very difficult, and so the officer punched him in the chest about 13 times, and once in the face. While punching him he said, pointing, "This is where your heart is and I am hitting so that you will die in two months." On another occasion SI Silva came and handcuffed Tissa Kumara to a bar of the cell door, and then pulled the door open and shut, injuring his wrist.

The police later filed two fabricated cases against Tissa Kumara, for possession of a grenade and for robbery, causing him to be remanded at Kalutatra Remand Prison, where he received no treatment for his injuries. Throughout this time his wife visited him regularly, and describes his condition then as follows:

He was treated as some kind of a 'special' remand detainee, segregated from the rest. During his period of remand, he had been taken to the Colombo National Hospital for an X-ray and several medical tests. He had also been operated on for a boil on his buttocks, at the prison hospital. This boil was a result of his assault at the Welipenna police station. I continued to give him Panadol and Siddhalepa [popular local ointment for aches and pains] for his ailments every time I visited the remand prison. I also did this while he was at the police station.
 
When I visited him on about April 24 he complained of chest pain and of coughing up blood. He also gave me a prescription for certain medicines. He had received the prescription from the prison hospital. The prison hospital had also told Palitha that he might be suffering from tuberculosis when he reported to them that he had been coughing up blood.
 
I purchased these medicines from a private clinic and sent them to my husband on April 27. On April 29, I met Palitha after he had been taken to the Nagoda hospital, where again he had been treated. He told me that two blood samples and his phlegm had also been taken to be tested at the Nagoda hospital. I visited him again on May 3 but his condition had not changed. I have not yet been able to know the results of these tests.
 
My husband also told me that he had been warded at the prison hospital ever since he started coughing blood with his saliva and complained of chest pains. Since then, he has been confined to a secluded room [formerly reserved for chickenpox patients] and for all intents and purposes, kept in isolation. Even his food is passed to him from under the door.

The preliminary hearing of the fundamental rights petition in Tissa Kumara's case submitted to the Supreme Court was heard on May 10. On May 24, the state counsel, appearing for the Attorney General, said that he is satisfied that the allegation of torture is true, and that the Special Investigation Unit (SIU) is conducting an inquiry to prosecute the perpetrator under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Act, No. 22 of 1994.
 
Tissa Kumara has also been alternately bribed and threatened to drop the formal complaints he has made against SI Silva. On June 16, he had a visit from a 'socially important person' who carried a message from the police that he would receive 500,000 rupees if the cases filed on the basis of his complaints were withdrawn. Meanwhile, in a separate incident, he received a message through a third party that his wife and child would be crushed to death by a vehicle if the complaints were not withdrawn.
 
The Matugama Magistrate's Court finally released Tissa Kumara on bail on June 28, some five months after he was originally taken into custody [See further: AHRC UA-18-2004, 13 February 2004; UP-21-2004, 30 April 2004; UP-22-2004, 3 May 2004; UP-28-2004, 24 June 2004 and also 'Urgent Appeals File: Tissa Kumara', article 2, vol. 3, no. 3, June 2004, pp. 41-48].

Violence against women and children is also common in a large number of Asian countries. Janaki and Chinki Chaudhary, two 16 and 14-year-old girls of Mahadev village, Belawa-5, Bardiya District, Nepal were working as day labourers in the building construction site of the Armed Police Force in Rajhena, Banke District. On the night of 27 September 2003, both of the victims and one male worker named Sarju were sleeping in a dormitory room at the construction site when seven Armed Policemen came to the room, switched off the light, threatened the male worker and forced the girls to go outside with them.

The policemen took the girls to a nearby garden and gang-raped them. Three different policemen raped each of the two girls and one policeman raped both of them. While they were raping the girls, the policemen threatened to kill them if they shouted or made any noise. After the rape, the policemen told the victims to go back to the dormitory and remain quiet and work as normal.

Although the perpetrators were remanded in custody on October 25 after inquiries were made into the complaints lodged against them by the girls, some police officers of the District Police Precinct suggested the victims to settle the case. The perpetrators offered 5000 rupees to each girl to withdraw the complaint, and threatened that they would have difficulties if they challenged the police.

Furthermore, the Superintendent of Police, Shri Bahadur Ghale, said that he thought the policemen had consensual sex with the girls, even though the perpetrators had at first admitted to the crime. They only denied it later, insisting that the contractor was using the two girls to make false accusations against them because of previous bad relations [See further: AHRC UA-66-2003, 27 October 2003 and 'Missing and maimed: Case studies of forced disappearances and torture committed by the Nepalese security forces', article 2, vol. 3, no. 6, December 2004, pp. 35-6].

Judicial incompetence and partiality

Not only must victims suffer such abuse and brutality from state officials, but they are further denied their rights when they attempt to seek redress. When Ko Khin Zaw and U Ohn Myint filed a complaint for forced labour in the Henzada Township Court, Ayeyawaddy Division in July 2004 after being jailed for failing to do sentry duty at a village monastery for instance, their complaint was summarily thrown out of the court. Furthermore, the same judge then entertained a complaint of criminal defamation against them by the vengeful local administrative officials. The two villagers were found guilty, and were offered a fine or six-months' imprisonment. In an act of defiance, the two men chose jail.

Although the widespread practice of obligating citizens to do manual work in Burma was recently prohibited under an agreement with the International Labour Organisation (ILO), the practice still occurs routinely. The agreement with the ILO envisaged that the means for complaints and investigation of forced labour allegations could be established. In practice though, when villagers attempt to make complaints, they are consistently rejected. Complainants then face counter-allegations of defaming public officials or refusing to carry out their instructions, for which they are sentenced to jail terms as a warning to others [See further: AHRC UA-112-2004, 3 September 2004].

In Nepal, even prior to the February 2005 coup by King Gyanendra, there existed little rule of law in the country, to the extent that Supreme Court orders were routinely ignored by the police and military. A Supreme Court order to release Jivan Shrestha on 16 November 2004 from the Central Jail in Kathmandu saw Jivan released but immediately rearrested on the same day, outside the prison compound by police from Bhaktapur. He was not given an opportunity to talk with his wife or lawyer, both present at the time, and was put straight into a police van.

Jivan, a 38-year-old permanent resident of Wana-1, Sankhuwasavha District, was initially arrested at his Kathmandu shop on 15 September 2004 by Royal Nepalese Army personnel deployed from Singhanath Barracks, Suryabinayak, Bhaktapur. Bhola Limbu, who was staying with Jivan, was also arrested. After searching the premises, the soldiers also took Jivan's mobile phone and 8000 rupees.

After the arrest, both Jivan and Bhola were kept at the Singhanath Barracks for six days. Jivan was then produced before the Chief District Officer, Bhaktapur on September 22, who ordered him detained under the Terrorist and Disruptive Activities (Punishment and Control) Act. He was subsequently sent to the Central Jail, Kathmandu.

In prison, Jivan told lawyers from Advocacy Forum, a human rights organization, that he had been tortured while in the army barracks and forced to confess to being a Maoist and being involved in extortion. A habeas corpus writ was filed on his behalf on October 7, in response to which the Supreme Court ordered that he be released on November 16.

After having been rearrested, Jivan was found the following day at the District Police Office in Bhaktapur. Police inspectors at the office said that he was arrested by order of the Royal Nepalese Army, and that they did not know what the army wanted to do with him next. He was subsequently transferred back to the Singhanath Barracks.

Another writ of habeas corpus was filed in the Supreme Court on November 18, and Jivan was at last released on November 24, but only on condition that he report back to the barracks on December 15. He dutifully went with his wife and another relative on the appointed date, and was taken inside while the others were told to wait. Incredibly, after some time his wife was told that her husband would be detained again. In a desperate state, his wife went back to the barracks the following day, but was told that she could not meet her husband. Again she went on the third day, pleading for his release. At this point the soldiers told her that if she appeared before the barracks again, she too would be put inside. They also blamed her for filing habeas corpus writs in court and for telling human rights groups about what had happened to her husband. Finally, Jivan was again released, but only on the condition that he again report to the barracks, this time with written proof that the writs issued against the security forces have been withdrawn [See further: AHRC UA-159-2004, 22 November 2004; AHRC UP-84-2004, 24 December 2004 and 'Missing and maimed: Case studies of forced disappearances and torture committed by the Nepalese security forces', article 2, vol. 3, no. 6, December 2004, pp. 31-2].

B. The justice system and human rights

A society's justice system is what determines the effect of its rule of law. This system is comprised by the police, prosecution and judicial mechanisms. The functioning of these mechanisms will affect the response of the justice system to the needs of society. When the system is able to respond adequately, the rule of law in that society will be effective.

The perversion of laws and the malfunctioning of institutions the cases above portray are only too common throughout the region. Amazingly, the collapse of effective rule of law in the region and its bleak human rights situation are rarely looked at as two sides of the same coin. In fact, the obstacle of ineffective rule of law is disconnected from that of human rights. As soon as such a disconnection is made however, human rights become a meaningless subject to the ordinary citizen.

For the ordinary people, particularly those who have been victims of human rights abuses, the system that violates their rights is the same one that denies them access to justice and effective remedies for their violations; for them, there is an indivisible link between rule of law and human rights. In the case of Ko Khin Zaw and U Ohn Myint, not only were their rights violated when they were forced to do labour, but they were further denied their right to seek redress. Abijnan was killed for making a complaint to the prison authorities, clearly pointing to the lack of effective complaint mechanisms. In Jivan Shrestha's case, even a Supreme Court order did not deter the police and military from detaining him.

In all these cases not only were laws being violated--thus leading to human rights abuse--but the persons committing the violations are themselves responsible for the safeguarding and enforcement of the law. In such circumstances, there can be no remedies for human rights violations. Thus, only effective rule of law can hold the perpetrators of abuse accountable for their actions and give redress to the victims. The absence of such rule of law will perpetuate violence, corruption and fear in society, with the perpetrators at large and the victims denied justice.

The exposure of the link between the rule of law and human rights together with the active engagement to establish the rule of law--and the corresponding justice mechanisms--are thus essential preconditions for the realization of human rights. Today, the struggle for one cannot be separated from the other. It is for this reason that the Asian Human Rights Commission (AHRC) highlighted UN Secretary General Kofi Annan's statement of 21 September 2004 regarding the centrality of the rule of law, in which he observed that

"We must start from the principle that no one is above the law and no one should be denied its protection. Every nation that proclaims the rule of law at home must respect it abroad and every nation that insists on it abroad must enforce it at home. Yes, the rule of law starts at home. But in too many places it remains elusive. Hatred, corruption, violence and exclusion go without redress. The vulnerable lack effective recourse, and the powerful manipulate laws to retain power and accumulate wealth. At times even the necessary fight against terrorism is allowed to encroach unnecessarily on civil liberties. "

This statement is of utmost importance for Asia…[where] the collapse of the rule of law is most visible in the poor quality of basic state services provided through the policing, prosecution and judicial arms of government. These arms suffer from insufficient budgetary allocations, the absence of responsible leadership, and oftentimes deliberate efforts to precipitate institutional breakdown [AHRC AS-35-2004, 22 September 2004].

This April, Kofi Annan further emphasized the need for implementation within the human rights movement.

The address to the United Nations Commission on Human Rights by the U.N. Secretary General Kofi Annan this April 7 is a wake-up call to the global human rights movement. This speech marks a moment in the development of global human rights standards of far greater importance than the Vienna Conference of 1993.

For the reasons identified by the Secretary General, the global human rights movement has ossified. Instead of fighting for meaningful change, it has grown cynical and withdrawn from many of the critical issues facing our time. Among his remarks on the need for bold and comprehensive changes to the U.N. approach to dealing with human rights, the Secretary General at last laid emphasis firmly on implementation. He stated that

"The cause of human rights has entered a new era. For much of the past 60 years, our focus has been on articulating, codifying and enshrining rights. That effort produced a remarkable framework of laws, standards and mechanisms–the Universal Declaration, the international covenants, and much else. Such work needs to continue in some areas. But the era of declaration is now giving way, as it should, to an era of implementation" [ALRC AL-02-2005, 8 April 2005].

Without an emphasis on implementation there can be no improvement in the human rights situation of millions of people throughout the region. This implementation requires the establishment of effective rule of law and functioning police, prosecution and judicial mechanisms. It is the justice system--comprising of these institutions--that must defend and protect human rights. If the system is malfunctioning, nothing but abuse can be expected.

These issues have been detailed by the ALRC in an open letter to the human rights community in 2002, reproduced below.

Open letter to the global human rights community: Let us rise to article 2 of the ICCPR
-Editorial board, article 2, vol. 1, no. 1, February 2002

The inauguration of article 2 is an occasion to address the global human rights community on a matter of primary importance: the need to deal with problems of human rights implementation, rather than confining our work merely to the propagating of ideals.

Since the adoption of the Universal Declaration of Human Rights in 1948, the human rights movement has worked hard to spread its gospel. The development of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights was a major milestone. Numerous other conventions and declarations have further improved and enhanced the body of human rights principles, and articulated them to the global community. United Nations mechanisms have provided a base for monitoring the observance of rights, not least of all through the establishment of the High Commissioner on Human Rights.

All over the world extensive programmes are now taking place to educate people on human rights. States engage in this work to varying degrees, United Nations agencies facilitate them, and academic institutions participate. The most important education work is done by human rights organisations, predominantly voluntary bodies. As a result, today there exists a vast network of persons and organisations firmly committed to human rights: more than at any other time in the history of humankind.

Yet the actual situation is that human rights continue to be monstrously violated all over the world. The most visible abuses take place where the majority of the world's population lives: the so-called 'Third World', or 'Underdeveloped World'.

It is time for the global human rights movement to examine why it may not yet be achieving real improvement in the global human rights situation. One factor hindering honest examination is the belief that improvement of knowledge about human rights will by itself end human rights violations. This is a myth based on the corresponding belief that education is itself capable of improving things. In reality human rights can only be implemented through a system of justice. If this system is fundamentally flawed, no amount of knowledge - no amount of repetition of human rights concepts - will by itself correct the defects. Rather, they need to be studied and corrected by practical actions. Hence research and intimate knowledge of micro-level issues must become an integral part of human rights education and related work. This is the key issue in promoting and protecting human rights.

The work of human rights monitoring mechanisms is mainly focused on the correction of individual violations. This approach is inadequate when dealing with systemic breaches. For example, a country may be condemned for acts of torture, mass murder, crimes against humanity and other violations, and a monitoring body may make some recommendations to correct these. However, monitoring bodies have neither the mandate nor capacity to engage in studies on the actual functioning of components within the justice system - the police, prosecutors and judiciary - through which such recommendations have to be achieved. Thus, even if one person or another is punished, the actual system allowing violations remains, and may even get worse.

Another wrongly held belief is that enacting legislation on human rights will by itself result in improvements of rights. Legislation can work only through the mechanisms for administration of justice in each country. If those mechanisms are fundamentally flawed then legislation will remain simply in the books and will be used merely to confuse monitoring bodies into believing that actions have been taken to improve conditions. For example, a constitution may provide for fair trial, however the criminal investigation, prosecution and judicial systems may not have reached a credible standard. Such legislation then only mocks the victims and cynically manipulates monitoring bodies and the international community.

article 2 is being inaugurated to draw global attention to article 2 of the International Covenant on Civil and Political Rights (ICCPR), and make it a key concern of all partners in the global human rights community. This integral article deals with provision of adequate remedies for human rights violations by legislative, administrative and judicial means. Sadly, article 2 has become the forgotten component of the ICCPR. There is a dearth of relevant international jurisprudence, and hardly any mention of it in the enormous volumes of annual literature on human rights.

There is a reason for this neglect of article 2. In the 'Developed World', the existence of basically functioning judicial systems is taken for granted. This does not mean that these systems are perfect; in some instances there may be important challenges to them. However, to assume that these systems exist even minimally in other parts of the world is to ignore reality. A person coming from a 'developed' country may have many problems understanding this. We human beings are often prisoners of our own histories: conditions outside our upbringing and experience may be incomprehensible. Even an open-minded person may not have the means to abandon her or his framework for understanding society.

Other difficulties also arise. One is the fear to meddle in the 'internal affairs' of other countries. State parties especially can create many obstacles for those trying to go deep down to the roots of problems. Thus, inadequate knowledge of actual situations may be guaranteed by the nature of interactions in the monitoring system itself. A further and quite recent disturbing factor is the portrayal of national human rights institutions and their equivalents as surrogate agencies for dealing with issues related to article 2. Some state parties may agree to new national human rights institutions taking on this role because they know that by doing so they may avoid criticisms of a more fundamental nature.

To overcome these difficulties, human rights movements in different parts of the world should cooperate closely in analysing and solving their respective problems. Cooperation can bring much needed in-depth knowledge of systemic obstacles to human rights implementation. Without cooperation it will not be possible to address some of the key questions facing the global human rights movement today.

After many years of study and work on these issues, the Asian Legal Resource Centre has decided that it is time to ring the alarm bells. We hope that the global human rights community will respond positively to this publication by looking into its own limitations and by trying to improve the human rights situation in different parts of the world. In the meantime, article 2 will lead the call to arms.

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Questions For Discussion

1.    Would you describe your society as one governed by the rule of law? Give examples.
2.    Are you aware of human rights violations perpetuated by law enforcement agencies in your own country? In such instances, how can victims obtain redress?
3.    Discuss the link between rule of law and human rights protection.