Effective rule of law in any society is comprised of numerous factors, discussed below.

A. Political

Political will and power have a significant effect on the rule of law in any society. Governments in Asia tend to be authoritarian, with close links to the military and police. Those in power are much more interested in consolidating and retaining their power than in promoting democracy. For this reason, effective rule of law is not a priority for them; in fact, they are more interested in attempts to subvert the law to ensure their own interests. They are interested in promulgating laws and practices that will help them do this, even if these are contrary to rule of law principles: societies throughout Asia live under various forms of internal security laws, as well as strict legislation regarding contempt of court and criminal defamation.

Governments can also make use of state institutions to further their aims, a common characteristic in many Asian countries. In India for instance, politicization and communalism affect all state institutions, particularly the police. This means that rather than following the rule of law, the institutions follow the rule of the politicians. This can be seen in the periodic communal riots and massacres in which the police play a complicit role. The greatest affected groups are inevitably the marginalized and minority groups, as AHRC pointed out in its human rights day statement of 2004.

The persons who come off worst are those belonging to the lowest castes and other most marginalised social groups. As the rule of law has ebbed away, a tide of communal violence and intolerance has swept India. Invariably, such violence are attempts against those persons who have been structurally excluded from most parts of society, notably the 300 million or so Dalits, when they try to assert their rights and rise above their socially-prescribed status. Similarly, religious intolerance has been directed particularly towards Muslim communities. This violence is often manifested in state actions ostensibly undertaken with legal backing. It includes forced eviction and denial of access to state facilities and resources. It is also evidenced in the lack of efforts to alleviate extreme poverty, which is itself often brought about directly by the actions of government agents. Despite the fact that India has consistently declared a food surplus over the last few years, thousands from Dalit and tribal communities are starving to death, and millions suffer from malnutrition.

One example that illustrates how hunger is manifest through the negative actions of state authorities directed against marginalised groups, beginning in 2003 and continuing to the present, is in the 7000 persons evicted from an area of land under the control of the municipal authorities known as Bellilious Park, in greater Kolkata. The eviction occurred in February 2003, and was tacitly sanctioned by the courts. During the eviction the affected persons were physically assaulted and had all their meagre possessions either destroyed or looted by the police and other government agents. Since then, at least six persons are known to have died of starvation or related illnesses. Large numbers of the survivors are now living in subhuman conditions near a municipal dumping ground and a train line, while most of the land from which they were vacated stands idle. The authorities sheer denial of their humanity stems primarily from the fact that they are all Dalits. Despite strong efforts locally and from abroad to have some kind of commitment towards their rehabilitation and compensation for losses suffered, nothing has been forthcoming from government agencies at any level. Even humanitarian organisations such as the Indian Red Cross Society have not deigned to lift a finger in support. Under the current circumstances, the inaction of these agencies is tantamount to a death sentence for more persons in the community who will die of illness associated with a lack of nutritious food, clean water and health care, all brought on by callous and arbitrary actions of local authorities [See further: AHRC AS-60-2004, 8 December 2004].

The military is another institution used by governments to keep order and stability, as well as ensure that the ruling elite's aims are met, without regard to the rule of law. These governments further make use of the military in civil conflict, as seen in Nepal, Indonesia and even Thailand. In these situations, governments suspend normal laws by way of security regulations and grant the military significant powers to control people. The military are almost never held accountable for violations committed.

The governments, in fact, even attempt to cover up such military abuse, further demonstrating its lack of commitment to the law. In Nepal for instance,

The government has gone so far as to help the security forces to conceal grave human rights violations, particularly disappearances. Even the highest court of the country and the National Human Rights Commission have been directed not to discuss violations committed by the military, thereby denying any possibility of relief for the victims…

With the expiry of the Terrorist and Disruptive Activities (Punishment and Control) Act – 2058 last October 12, the government of Nepal has introduced a more severe version of the same law in its stead: the Terrorist and Disruptive Activities (Control and Punishment) Ordinance – 2061. This legislation clearly signals that the government has surrendered its authority to the military, and given it a green light to continue with arbitrary detentions, torture, disappearances, and extrajudicial and summary executions [See further: AHRC AS-60-2004, 8 December 2004].

In Thailand as well, the three generals identified as being primarily responsible for the killing of at least 85 persons in Narathiwat province on 25 October 2005 have been exonerated simply because 'there is no disciplinary penalty for those holding the rank of general'. That the government allowed a military investigation instead of independent inquiires and that no further proceedings have been initiated is indicative of the impunity granted to the perpetrators of violations.

Regardless of practice, most civilian governments will at least give lip service to the rule of law. This is missing from military governments though, for whom law holds little importance, as in Pakistan.

The continued dominance of the military over all public institutions in Pakistan in 2004 has done nothing to improve the human rights situation there. Apart from the president's refusal to step out of uniform, the increasing number of serving and retired military officers being brought into the civil service is sabotaging efforts at participation by the civilian public. The hand of the military is seen increasingly in the work of the police, prosecution and judiciary. Recent incidents in Okara, where people were brutally assaulted and tortured into signing agreements to hand over land for a military farm speak to the extent of control the army now feels free to exercise over the country.

Pakistan still lacks a legitimate constitution. Since its foundation, opportunists and power-mongering groups seeking personal advantage in the name of the greater good and law and order have manipulated the constitution. Consequently, generations have grown up knowing only the law of the jungle. They relate to gangs, personality-oriented political parties, sects and clans to attain their sense of security and identity. The concept of a civilised society is all but absent. Principles of the rule of law and a social ownership of public institutions—necessary for the protection and promotion of human rights—are non-existent.

Where the leadership of society has been taken over by the groups and individuals who use religion, sect, clan, class and other partisan bases to mobilise others for their personal political and social benefits, even the discussion of human rights become a challenge. The most common belief pushing disappointed youth is that given the anarchy, injustice and disrespect of human integrity prevalent in Pakistan, the only purpose in life is to die for a greater good. Economic deprivation and low literacy are certainly elements in the mixture, but more importantly, without remedies for human suffering, disillusioned and frustrated individuals look for recognition of their existence by making themselves available for use in violence and criminality. This trend is only exacerbated by the militarization of society, which encourages violence as a means to addressing problems…

It has been observed that ordinary people in rural areas of Pakistan know very little of the institutional changes that are being trumpeted as successful from offices in the capital. To the ordinary person in Pakistan, what matters most is that should he require a response from the police he can get it without having to ask his local member of parliament or feudal lord. He also wants that should police officers commit a crime or abuse against him, he or relatives can seek redress without fear that political heavyweights will get involved. And he requires that if he ends up in police custody, he will be treated as innocent until proven guilty and not summarily killed because a local feudal lord wants it to be so. The ordinary citizen want that should she enter a police station, she will not be intimidated, tortured, and kept in arbitrary custody. As a woman, she wants special provisions to protect her from harassment. Minorities are also particularly concerned that they will not become the easy targets of fabricated and falsified cases to boost records of police efficiency. These are the concerns of most people in Pakistan, which persist despite the grand blueprints for change drawn up by government bureaucrats and their international partners [AHRC AS-60-2004, 8 December 2004].

Such militarization and political influence have a negative effect on the institutions responsible for maintaining rule of law, as well as on the development of legal principles. Throughout Asia the rule of law is being threatened by the destruction of its institutions; existing institutions are being displaced, while there is a refusal to build new institutions, or rebuild old ones. Once these institutions are rendered dysfunctional, those in power are free to act without controls. They make arbitrary decisions that affect the daily lives of millions, who have no place to go to complain or seek redress. Those who dare complain are told to go to the legal authorities, which have been incapacitated.

B. Legal

Jurisprudence

In order for there to be the establishment of effective rule of law in society, there must exist laws that serve the public and defend human rights principles. The purpose of all law must be to protect and defend the lives and liberties of people, not the repression of them. In recent years however, many fundamental principles to the rule of law are being slowly eroded. These relate in particular to fair trial and judicial independence. Internationally, there have been calls to abolish the Geneva Conventions on war crimes. Domestically, there have been numerous proposals to reform legal systems in a manner that would seriously undermine the rule of law.

At the same time, harsh laws are being enforced, whose purpose is the domination and repression of society. These laws are increasingly being passed as national security or anti-terrorism measures, but in fact are widely used to suppress dissent and deviation. Arbitrary detention is a continuing problem in many countries including Malaysia, where around 100 persons are being detained under the Internal Security Act over the last three years. This law, which has been the subject of widespread condemnation both within and without the country over numerous years, permits unlimited successive two-year periods of detention without trial. Detainees are in many cases subjected to ill treatment and torture, including beatings, sexual humiliation and psychological abuse. Many of the victims have died. This is a direct result of the impunity that perpetrators of violations continue to enjoy; the few investigations of abuses that occur, fail to result in criminal prosecutions, with deaths explained as having occurred due to failed escape attempts.

Moreover, such internal security laws result in the suspension of many other laws that protect people from illegal arrest, detention, privacy, the protection of their living quarters, and other matters.

Another harsh law used to repress public opposition is Thailand's obsolete criminal defamation law, which is being increasingly deployed to silence public criticism of government policies. With the exception of one television channel, owned by the prime minister's corporation, the state holds a monopoly on electronic broadcasting in Thailand. Attempts to address this imbalance in accordance with provisions under the 1997 Constitution have been vigorously attacked by vested commercial and political interests. One case of particular concern relates to criminal defamation charges pending against a media reform campaigner, Supinya Klangnarong, whose research has demonstrated that the profits earned by the companies managed by the family of the prime minister have increased inordinately since he took office. Her case is going to court in 2005, and will be of historic importance for people in Thailand at a time that their right to express themselves freely on matters of public concern is very much under threat.

In other situations, laws do not exist to protect basic human rights, as in the case of torture and disappearances. When they do exist, they are not enforced properly, allowing them to be violated. Thailand for instance, has no specific legal provision penalising torture as it has yet to ratify the UN Convention against Torture. While Sri Lanka has ratified the Convention and has adequate domestic legislation, to date there have been few prosecutions under this, with only two convictions, even though the country faces serious police torture.

Basil Fernando sums up the situation of law and justice throughout the region thus:

There is often resistance to development of the law. For example, in Cambodia even more than seven years after the UN-sponsored elections the country has no penal code or criminal procedure code. The reasons for this deficiency are more political than technical. Development of the law is seen as disruptive to the type of social order maintained in the country. Many activities carried out by the newly rich would become impossible if there were an expansion of the law and law-enforcement.

In the second case, in some countries, development of the law is confined to some areas, such as commerce, and restricted in regard to personal liberties. Malaysia and Singapore are good examples of this: economic and commercial development has not brought the people in those countries civil and political rights. In fact, in Malaysia the detention of political opponents to the current regime under the draconian Internal Security Act indicates how deteriorated the situation is there.

A third category is where very basic laws are suspended on the pretext that such laws are detrimental to order. In Sri Lanka, even laws relating to the reporting of deaths to the courts were suspended to allow the police to engage in acts of large-scale murder and the disposal of bodies [Basil Fernando, 'The police, judiciary and rule of law in Asia', article 2, vol. 2, no. 5, October 2003, p. 28].

Institutions

When principles are undermined, this will inevitably affect the related institutions. When it comes to effective rule of law, the three institutions that are responsible are the police, prosecution and judiciary. These three institutions form the institutional framework of any society's justice system and are responsible for ensuring that the law is upheld and people's rights protected.

A clear pointer that these institutions are malfunctioning however, is their failure to ensure effective remedies to human rights violations, which is described in a written statement to the 58th session of the UN Commission on Human Rights made by the ALRC, reproduced below.

Implementing article 2 of the ICCPR to ensure effective remedies for human rights violations in Asia (E/CN.4/2002/NGO/65)
 
1. Failure to ensure effective remedies for violations of human rights is itself a basic violation of rights guaranteed under the International Covenant on Civil and Political Rights (ICCPR). Most neglected in this Covenant is article 2. In fact no agency or mechanism has consistently monitored the implementation of article 2. Nor is there a specific item on the agenda of the Commission for its discussion.

2. The neglect of article 2 may be related to the differences between remedies available in countries called 'developed democracies' and those falling outside this category. In a developed democracy, once ratification of a convention takes place its implementation can be ensured through the existing mechanisms of law enforcement. However, this is not the case in countries where the law enforcement mechanism itself is defective.

3. Most law enforcement mechanisms in Asia impede the implementation of effective remedies under article 2 of the ICCPR. In many countries criminal investigation systems are so fundamentally flawed that there are constant public complaints and the absence of faith in these institutions, such as in Pakistan, Nepal, Bangladesh, Cambodia and Indonesia. Sri Lanka is an extreme example of a totally collapsed system. Malaysia and Singapore are examples of countries that deny remedies by operation of "internal security acts" In Myanmar criminal investigations and prosecutions are totally controlled by the military regime. Even India, which in the past had a developed law enforcement system, has suffered greatly due to the operation of various anti-terrorism and internal security laws.

4. In ensuring effective remedies for violations of rights and thus the proper implementation of article 2, the prosecutor's function is very important. The absence of an independent prosecuting agency is a feature in several Asian countries. In China, Vietnam and Laos, despite many attempts to carry out legal reforms, the role of the independent prosecutor has not yet been recognized. In countries such as Pakistan, Nepal, Bangladesh, Cambodia and Sri Lanka, the independence of the prosecutor has been greatly undermined by higher political authorities. Concerning political issues, the prosecution systems in Malaysia and Singapore are also defective.

5. While there are many rhetorical condemnations of impunity, it is not often realised that without independent criminal investigation and prosecuting authorities it is not possible to overcome impunity. Impunity can safeguard itself through defective mechanisms even when there are laws against it. Typically what occurs is that after a violation takes place the criminal investigation authorities either do not pursue the matter at all, or do so unsatisfactorily. The prosecutor then claims that there is little or no evidence to act against the perpetrators. Even if under pressure the prosecutor takes the case to court, with insufficient evidence the perpetrators are released. In some instances the perpetrators then claim that their own human rights have been violated. Thus the absence of adequate criminal investigation and prosecution mechanisms creates a vicious circle in which the work of human rights organisations is defeated by the very legal mechanisms upon which they rely.

6. In recent times many Asian governments-under heavy pressure from the international community-have appointed governmental commissions or committees to look into violations of human rights. These are mostly bodies performing mere public relations exercises. Without addressing the basic defects of the criminal investigations and prosecutions mechanisms the work of these agencies does not produce any positive results in ensuring the implementation of article 2. Unfortunately the same observation is valid regarding most national human rights institutions in Asia.

7. Accordingly, the Asian Legal Resource Centre urges the international community to pay greater attention to problems relating to the implementation of article 2 of the ICCPR. It should facilitate studies and develop recommendations on this issue. Special financial and non-material support must be provided to countries to reform and develop their criminal investigation and prosecution mechanisms, to ensure proper implementation of article 2. The Asian Legal Resource Centre also urges all UN human rights mechanisms to pay special attention to article 2, particularly by ensuring proper criminal investigations and prosecutions. Those of particular relevance are the Special Rapporteur of the Commission on Human Rights on the question of torture, Special Rapporteur of the Commission on Human Rights on extrajudicial, summary or arbitrary executions, the Working Group on Arbitrary Detention, the Working Group on Enforced or Involuntary Disappearances, the Special Representative of the Secretary-General on the situation of human rights defenders, the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers and the Special Rapporteur of the Commission on Human Rights on violence against women, its causes and consequences. This issue is also very relevant to all groups working on economic, social and cultural rights, and the Independent expert of the Commission on Human Rights on the right to development. Finally, we urge all civil society organisations, international human rights groups and bodies involved in the promotion and protection of human rights to take special note of issues relating to the implementation of the article 2. Without it, much of the work they do will produce little or no result in altering the patterns of human rights violations, particularly in countries not falling within the category of developed democracies.

***

It is not only their lack of effective remedies to human rights violations that render the police, prosecution and judicial mechanisms throughout Asia dysfunctional; rather, it is the very fact that in many cases it is these mechanisms themselves which commit human rights violations as indicated by the cases in Lesson 1.

The police for instance, are seen as criminals in most Asian countries rather than law enforcers. They are largely associated with intimidation, political influence, violence and impunity, which encourages crime and corruption in society and destroys people's faith in legal redress.

The prosecution system is also defective in most countries. A prosecutor's duty is to uphold the principles of due process by acting on their basis alone. Applying criminal principles defined by law, the prosecutor must examine evidence and charge those where there is sufficient evidence of the commission of a crime. To do this, the prosecutor must have legal and actual power. In many Asian countries however, this is not the case.

Furthermore, in many instances prosecutors are also known to collaborate with the police or act in accordance with the executive. In India for instance, the trials proceeding with the Gujarat pogrom of 2002 have been a complete mockery of justice. In its written statement to the 60th session of the UN Commission on Human Rights, the ALRC pointed out that this is precisely due to the institutional links between the prosecution, police and ruling elite.

3. …In Gujarat, the same police force responsible for the atrocities has been charged with investigating the cases going to trial, and the government responsible for what occurred has been appointing the prosecutors. Although the National Human Rights Commission explicitly recommended that the Government of India permit independent agencies to investigate the cases, hear the trials in other states and provide witness protection, these recommendations were unheeded. Only in September 2003 did the Supreme Court state that it has 'no faith left' in the Gujarat government's handling of the cases arising out of Gujarat. It appointed a former solicitor general to sit as special advisor to the court in the Gujarat trials, and in November 2003, the Court stalled the proceedings in ten cases, including some of those mentioned above, while considering whether they should in fact be heard outside the state [ALRC, 'India: Genocide in Gujarat', E/CN.4/2004/NGO/40].

The judiciary in Asia is largely seen to have compromised its independence. Judges, particularly those in lower courts, collaborate with the police and give no justice to victims. Corruption within the judiciary is widespread. In Indonesia, a former Supreme Court judge has himself recognised that the main obstacle to the effective functioning of the judiciary is the widespread corruption among its ranks. In Burma for instance,

it is well recognised that most judges are appointed on the basis of their relationship to persons in the armed forces and administration, rather than training, and relatively few have proper legal qualifications. Even in the Supreme Court, earlier provisions stipulating professional requirements for judges were long-since removed in order that socialist party cadres of the earlier regime and persons close to the state leadership could take over the bench. Similar practices have continued today: in November, two Supreme Court judges and numerous other senior legal officials were sacked after the removal from power of the former prime minister, who was also the head of military intelligence. The judges were said to have either had connections with the former intelligence chief or had refused to give legal advice to convict him and his colleagues on corruption charges [AHRC AS-60-2004, 8 December 2004].

This being the situation of the police, prosecution and judicial mechanisms in Asia, it is obvious that the obligation undertaken by way of article 2 of the ICCPR to establish functioning judicial, legislative and administrative mechanisms and provide remedies has not been honoured.

C. Social

Social and cultural practices

There are many cultural factors that affect the establishment and implementation of rule of law in Asia. In many societies legal reforms were brought in from the outside, and have thus remained at a superficial level, without affecting the daily lives of people. For instance, while equality is the principle upon which rule of law is based, in many societies inequality is rife, with certain sectors of society living lives of great oppression and poverty, such as women and Dalits.

India is home to several million Dalits, or untouchables, the lowest strata of the caste system. This system dictates that inequality is inherent in the life of individuals. The system segregates people into certain 'castes', which are determined for life; these castes determine a person's occupation, education, social status and so on. For the majority of those who are seen as 'untouchable' by this harsh system, legal provisions within the country exist only to perpetuate injustice as well as serve as a façade for India's international obligations. The extent of caste prejudice pervading in social and governmental attitudes was made alarmingly clear in the wake of the December 2004 tsunami relief operations, as mentioned by the ALRC in a written statement made to the 61st session of the UN Commission on Human Rights.

2. Places such as Kadapakuppam and Pattipulam of the Kachipuram district in Tamil Nadu have received no relief whatsoever. This is despite 175 families in Kadapakuppam and 280 families in Pattipulam having felt the brunt of the disaster. Despite complaints by villagers in these two places, at the time of writing no government officials or aid agencies have gone to the assistance of these people. Likewise, in Pannanthittu village of Tamil Nadu's Chidambaram Thaluka, all 150 families affected by the tsunami have been denied aid and. Villagers in MGR Thattu, meanwhile, protest that they are being discriminated against, as little relief has been provided to them.

3. Caste-based discrimination has also been evident in relief operations elsewhere. When burying the dead, Dalits have been brought in to handle the bodies, as 'traditionally' they have been obligated to do.  Community kitchens, established to distribute food to victims, were divided into two: one for caste Indians and one for Dalits, as upper castes would not consume food prepared by Dalits. It is a sad reality that even in times of extreme necessity caste prejudices dominate social exchanges [ALRC, 'Caste-based discrimination in India', E/CN.4/2005/NGO/56].

Women throughout Asia are faced with violence and gender discrimination, inherent in the patriarchal societies they live in. For them as well, rule of law has no meaning beyond legal restrictions regarding their travel, education or employment. They associate police and other government officials with harassment and sexual abuse. Honour killings in Pakistan is a particularly brutal form of violence against women, while also being a practice that underlines how the absence of the rule of law has led to the perpetuation of jirgas.

4. The lives of millions of women in Pakistan are circumscribed by traditions that enforce extreme seclusion and submission to men, many of whom impose their control over women with violence. For the most part, women bear the traditional male control over every aspect of their bodies, speech and behaviour with stoicism, as part of their fate. In cases where a woman is believed to have 'dishonoured' her family by having a male friend, marrying a man of her choice or seeking a divorce, tribal councils—in some parts of the country known as jirgas—have decided that all those responsible be killed or otherwise punished. With the expansion of the notion of 'honour' and of what undermines it, not only alleged sexual misconduct of a woman but every act of perceived disobedience may amount to her 'shaming' her family and lead to action to restore 'honour'. 

5. Many Pakistanis connect honour killings, tradition and religion, but in fact the jirga tradition has no relationship to religion, and many so-called traditions, particularly "Islamic laws," are not based on religion or tradition. Jirga law is rooted in tribal customs and in the power of elders. Many tribal leaders themselves are parliamentarians or members of the civil administration, or have family links to the administration. In their official capacity they talk about human rights for all, yet in their constituencies they participate in tribal courts. On the one hand they are talking about 'good governance' and 'real democracy', on the other they are handing down their punishments in violation of basic human rights principles, and running private prisons.

6. Although illegal, influenced by powerful clans and biased against women and the poor, the jirga is an institution in Pakistan's informal justice system that is condoned by corrupt police. The Government of Pakistan does not generally take action when jirga decisions lead to murder, rape or other abuses. State officials have also used tribal leaders to solve criminal cases that are pending in court. The state, willing to exchange some of its powers for social stability, has let these men take responsibility for many 'private' matters. This means, in practice, giving a small and relatively homogenous segment of the population absolute power over others, particularly women. The state permits the practice because the official justice system is seen to be ineffective and expensive. A high percentage of the rural population is illiterate and does not know how to approach the official justice system. Corruption in both police ranks and the judiciary also seriously compromises the official system. Presently Pakistan operates under a medley of common law, shariah law and jirga law, among others, but all seem to be ineffective when addressing violence against women and honour killings [ALRC written statement to the 59th session of the UN Commission on Human Rights, 'Honour killing' in Pakistan', E/CN.4/2003/NGO/95].

Public opinion and attitude

While social norms and practices will affect how a particular society views the rule of law and its principles, the malfunctioning of the justice system or the absence of effective rule of law will also have a significant effect on society's views. In Sri Lanka for instance, society has come to a point where it believes law is no longer able to provide it with the security and stability necessary. For this reason,

to extrajudicially do away with those who are hard-core criminals is an article of faith. Police officers claiming to have shot such a criminal are thus considered heroes. Leading monks appear in the press accusing persons in opposition to such acts to be collaborators of the criminals or persons lacking in patriotism.

This call for the liberty to kill criminals is a clear manifestation of the loss of faith in the justice system. It is a common phenomenon in societies that have reached a high level of demoralization for tacit approval of extrajudicial killings as the solution to crime to develop. Any discussion on the rule of the law must take into consideration this mindset, which considers the law as a hindrance to personal security. The development of such a mental framework allows society to overlook that which a stable society would consider gruesome, inhuman and uncivilized. Sri Lanka has reached that point…

The term 'law and order' is no longer a valid term in Sri Lanka. Rather, 'order' with or without law is the prevailing philosophy. In this case, if the law becomes an obstacle in achieving 'order', then the law must be discarded. This is not just a theoretical premise, but how practical policies are developed and pursued in the establishments that are supposed to uphold the law. It is common knowledge for instance, that there is a tacit agreement to ignore the law regarding corruption. As for torture, the prevalent premise is that the police are unable to carry out criminal investigations without the use of torture. The Convention Against Torture Act No. 22 of 1994 then becomes a hindrance to criminal investigations. 'Legal experts' thus argue against the enforcement of the Torture Act on two grounds: the police cannot function without the use of torture and that the people want the police to function, even if torture is to be used. Similar arguments legitimize extrajudicial killings of alleged criminals.

In such circumstances, can Sri Lanka be called a society governed by the rule of law? While abstract answers may claim that it can, in reality what can be done under the pretext of law is now left to the executive and supporting institutions. What is perceived to be the wish of the people is now more important than the creation and enforcement of legitimate laws. This being the case, senior police or prosecution officials now have the right to decide what is 'the wish of the people' and then carry out such wishes, regardless of the law. They also have the power to authorize the commission of crimes such as murder, torture and kidnapping…

If demoralization and disappointment has created 'a wish' to allow law enforcement agencies to ignore or violate the law, then the real arena for the fight of the reestablishment of the rule of law is public opinion itself. All efforts to re-establish the rule of law must convince the public that the critical examination of the problem is serious enough to allow for an effective remedy [AHRC AS-14-2005, 7 February 2005].

This situation is unfortunately not the case only in Sri Lanka, but in many other societies, whether articulated from the top or through the masses. Apart from a visible deterioration of the institutions meant to be protecting them, people will also lose faith in the system when there is a lack of protection for victims and witnesses of abuse. When complainants cannot find an effective remedy for the violation suffered, and when they are harassed or even threatened for attempting to seek redress, they will inevitably lose faith in the rule of law.

Questions For Discussion

1.    Discuss the effectiveness of the police, prosecution and judiciary in your own country. What is their relationship to the rule of law?
2.    Are human rights in your country protected legally as well as in practice? How may victims of rights abuse seek redress?
3.    Compare your answers to the first two questions and discuss the links.