How should the
work on the Asian Charter for Human Rights be carried forward?
BASIL FERNANDO, AHRC
September 22, 2017
The following is a
presentation made at a workshop organized by the Asian Human Rights
Commission and the May 18th Foundation (14-16th September 2017) on
the preparations for the 20th Anniversary of the Asian Human Rights
Charter 1998. This paper addresses the direction the Asian human
rights movement should take in order to contribute to the improved
enjoyment of rights in Asian countries.
The Asian Human Rights
Charter (hereinafter ‘the Charter’) was aimed at changing how human
rights work was conducted in developing countries. This remains
relevant to the context of most Asian countries, particularly
because of the lack of developed systems for the administration of
justice. The aim was to improve the actual realisation of human
rights by the people. The institutions and systems required for the
administration of justice are primarily the policing system, which
plays the vital role of investigating into human rights violations;
the prosecutions department, which is meant to call out violations
of the law; and the judiciary, which is meant to adjudicate
competently and impartially. All of these institutions and systems
had to undergo significant improvements;
How were we to do that?
That was what the Charter was meant to address.
The general human rights
movement engages in calling for inquiries into massacres and other
gross human rights abuses, and demands the prosecution of the
The Charter introduced the
approach of investigating into the actual capacities of the
institutions required for the administration of justice, in order to
discover the defects that prevent people from accessing their
rights. After establishing what was wrong with the system, the goal
was to then engage in work that could help to overcome these defects
and improve the enforcement of human rights.
For example, women in most
Asian countries are denied their rights to liberty, education and
equal opportunities for employment, and many suffer sexual abuse and
associated forms of violence. Why is it that the police,
prosecutions department and judicial system in their countries are
unable to protect the rights of women? Why can’t women travel in the
evenings and at night like men? Why are the police, prosecutions
department and the judiciary unable to ensure the rights of women to
move about in the way that men are able to move about? If the rights
of women are to be enforced, it is necessary to find out why the
institutions responsible for enforcing these rights have failed. In
the same manner, we can discuss other examples like the rights of
minorities, such as Dalits in South Asia. To discuss the rights of
women or other groups without discussing why the institutions of
justice fail them is to leave human rights purely as a dream or a
pie in the sky.
What the AHRC wanted to
suggest is that, in the same way that human rights groups advocate
fact-finding missions into massacres and other crimes, there must
also be fact-finding missions to discover the defects of the systems
of justice that deny people redress for crimes and deprive them of
their rights. Unfortunately while the human rights movement
advocates fact-finding missions into massacres, it is not a
mainstream practice to engage in fact-finding missions into problems
of the justice system. This may be because the issues about defects
of justice systems do not arise in developed countries under normal
circumstances. Therefore, human rights investigations are confined
to especially horrifying events and humanitarian catastrophes. This
piecemeal approach is not suitable for countries that do not have
the kind of institutional development that developed countries have
because the day-to-day practices that lead to such catastrophes
inevitably involve the administration of justice.
To be practical, let us
ask the following questions:
a) Can the human rights
movement engage in fact-finding missions with the view to make a
proper assessment of, for example, the state of judicial
independence in their countries? Can they look into the reasons why
impunity prevails while the judiciary claims that it is independent?
Is it because judicial officers are ill-educated or politically
influenced, or because they do not really appreciate the idea of
equality before the law? Or are there other reasons? If we know the
reasons, then we can address the issue of impunity and take
corrective actions to end it. Without this step, we will only be
forever complaining about impunity. Impunity will continue despite
such complaints. Ultimately, without the ability to understand the
changes that need to be made and then taking steps to change things,
the human rights movement could be seen as unable to show people
what it can really offer to improve lives.
b) We can also undertake
fact-finding missions into ineffective police investigation systems,
with the view to finding out why such incompetence, which often
leads to corruption, remains unchallenged. What are the causes of
this situation and what is the way to change it?
c) The same questions
could be raised about prosecutions, by undertaking similar
methodologies may vary. It could be similar to the fact-finding
missions into massacres. It could also be by way of extensive
documentation work into the attempts taken by victims to seek
justice and to find out why they have failed. It could also involve
academic forms of fact-finding. Whatever be the method, the ultimate
aim is to find the real causes of the defects in the system, with
the view to work towards overcoming these problems.
This whole approach calls
for a different type of activism. In assessing whether human rights
defenders are sufficiently equipped to do their expected tasks, we
must ask the questions that are raised above. There is no other way
for human rights defenders to be well equipped to do their work.
Can this last year before
the 20th anniversary of the Charter be the year in which we could
experiment with new approaches to fact-finding and other human
rights work, including advocacy and monitoring, which are directed
towards the improved knowledge, and thereby increase the capacity of
human rights defenders to improve their justice systems? This would
increase the practical usefulness of human rights work for the
people of their countries.
How can the advances that
have come about in modern technology be used for the above purpose
of fact-finding about justice system problems? And how could it
further improve methods of advocacy so that more people could be
influenced to undertake various types of functions as change makers?
Additionally, how can we learn about the negative uses of modern
technology, through which repressive states could use technology to
repress work for the advancement of human rights? And how could we
learn to counteract such methods?
Freedom of expression
being the key to the improvement of human rights, how could this
freedom be used for gaining and spreading a critical understanding
of the defects of justice systems? These defects obstruct the
enforcement of human rights, and it is important to develop ways to
give expression to these problems so that whole nations and the
international community could have a better understanding of the
local situations, and thereby be in a position to take effective
actions to overcome these problems.
Can we recondition
activists to expand their work beyond the limited methods that they
have gotten used to in accordance with earlier practices, and
thereby learn to develop more efficient ways of showing people that
their frustrations about human rights can in fact be explained, and
that, with a proper understanding of defective systems of justice,
actual improvements and even great changes could be brought about?
In short, can we envisage
a new form of activism and dynamism and create a new type of human
rights defender, one who does not merely talk about defending rights
but can really protect the rights of the people they are working