International Covenant on Civil and Political rights & International Covenant of Economic, Social and Cultural Rights

AHRC-PAP-002-2011 September 5, 2011 A Paper by the Asian Human Rights Commission Human Rights and Democratic Governance Basil Fernando (This is the text of a presentation at A Consultation on Peace and Security in Asia and Ecumenical Responses held on August 1-6, 2011, organized by WCC and CCA) As a start we may try to reflect on some of the concerns expressed by the participants of this meeting who have spoken so far. One of the presentations that impressed me was from the representative from Nepal. After a detailed presentation of the country situation and explaining the impasse that had arisen relating to the making of the constitution he observed that Nepal is facing the risk of being a dysfunctional state. If we reflect on the meaning of a state becoming dysfunctional I think we could grasp to some extent the problems relating to democratic governance as well as rule of law not only in Nepal but in many of the countries in the Asian region and, in fact, many of the countries which are usually labeled as less developed countries. The problem of the dysfunctional state and human rights is also very significant. The implementation of human rights requires functional public institutions of justice. These institutions, briefly, are: the civilian policing institution, which guarantees inquiries into all allegations of the violations of human rights; the competent and impartial agency capable of prosecuting the allegations for which the investigators have found adequate evidence; and a judiciary that is independent and capable of ensuring the rights of all parties, including the accused and the victims. If these institutions have not reached a stage of social acceptance of their awareness of the legal obligations of these institutions and of their proven capacity to implement their obligations that situation could be described as one that has reached dysfunctionalism. In short when the policing system, the prosecuting system and the judicial system are incapable or unwilling to fulfill their obligations to uphold the international norms of human rights, such a state is virtually dysfunctional. This situation has been described by the CEO of the International Justice Mission, Gary Haugen, in a speech made at Columbia University thusly: "Looking back at the story, one can see that two generations of global human rights work have been predicated, consciously or unconsciously, upon assumptions of a functioning public justice system in the developing world which, if incorrect, effectively undercut the usefulness of those efforts for their intended beneficiaries. Now, absent an effective enforcement mechanism, the great work of the first two generations of the international human rights movement can deliver to the poor only empty parchment promises." Empty parchment promises Have human rights become 'empty parchment promises' for the people in Asian countries? In answering that question let us look briefly at the basic human rights of everyone in terms of the human rights conventions agreed upon by the international community through the mediation of the United Nations. For the purpose of this presentation I will make a brief summary of the basic rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social and Cultural Rights (ICESCR). Under the ICCPR Equality before the law and prevention of all forms of discrimination The right to life and the right against extrajudicial killings The right against torture and ill-treatment The right to security which includes the right against illegal arrest and illegal detention The right of movement The right to a fair trial The right to information The right to freedom of expression and freedom of association The right to freedom of thought, freedom of conscience and freedom to practice the religion of one's choice The right to choose a government of one's choice Under the ICESCR The right to life, meaning the right to means of life to be lived with dignity The right to work The right to form trade unions The right to education The right to health The right to leisure (This list of ICCPR and ICESCR rights is not exhaustive but is meant to illustrate the basic rights). In looking as to whether the states are, in fact, protecting, promoting and ensuring the realisation of these rights, what one needs is to find out is whether the people in the relevant countries are, in fact, enjoying these rights. A brief survey of responses from the participants to this question was that, in fact, the rights which are in the mentioned in the parchments are not available in real life for most of the people in their respective countries, particularly the poor. How does this situation arise? The duty to investigate and prosecute violations of rights States are under obligation to ensure that complaints of violations of rights are being investigated thoroughly by competent investigation agencies. The competent agency for investigations is the police. It is the police who have the obligation to take the complaints from the people of the allegations of violations and to record such complaints faithfully. Thereafter they are expected to investigate these allegations within a framework of the law that ensures proper conduct of inquiries. The police are also under obligations to seek the assistance of experts and competent bodies in making inquiries, when necessary, in order to ensure that all facilities are used for the purpose of conducting a thorough and impartial inquiry. They are also under obligation to keep faithful records of all that they do and all that they find in the course of such inquiries. Finally, they are under obligation to hand over a complete file of their investigations to the prosecuting agency. The prosecuting agency is under obligation to make a thorough study of the files of inquiry through competent lawyers and to make decisions relating to the adequacy or inadequacy of evidence to prosecute the offenders. Where the legal criteria relating to adequacy of evidence is met, the prosecutors are under obligation to prosecute the alleged offenders under competent courts and, in doing so, the status of any other circumstances of the offender is not a relevant consideration.The prosecutors are expected to file the necessary indictments before the competent courts and to conduct the prosecution during the trial. They are expected to act without any subservience to any political authorities or any powerful forces. Finally, it is the obligation of the judges of competent courts to ensure fair trial within the framework of the law based on international norms. To be able to conduct such trials the courts must be able to ensure that they avoid undue delays or allow any other kind of corruption to hamper the conduct of a fair trial. To carry out this function the state must ensure that adequate funding is given for the administration of justice so that there will be an adequate number of judges with the required qualifications, who have all the necessary facilities for the carrying out of their obligations. Thus, it is the primary obligation of the state to ensure adequate funding for the functioning of institutions of investigation, prosecution and the judiciary. The failure to comply with state obligations as the cause of dysfunctionalism When the state fails to ensure the requirements mentioned above, those institutions cannot carry out the necessities to meet with their social obligations. When the policing, prosecutions and the judiciary fail to meet with the criteria of competent institutions, the people are unable to realise their rights. The problems described by Gary Haugen in stating human rights conventions becoming 'empty parchment promises' take place when there are no competent institutions to ensure the realisation of the norms enshrined in the UN conventions for which many of the countries have become signatories. Thus, the test of the availability of rights is not the government's ratification of the UN conventions or even bringing about domestic legislation to bring in such international obligations within the local law. A test of realisation is the availability of the functional public institutions of justice. It is in this that the governments in less developed countries fail. The people's obligations When there is a situation of dysfunctional public institutions of justice, it is the duty of people themselves to fight for the improvement of such public institutions. The civil society cannot survive without functioning institutions of justice. When there are arbitrary killings, such as forced disappearances and various forms of custodial killings, when torture and ill-treatment are widespread practices carried out by the police, military and paramilitary institutions, when illegal arrest and illegal detention takes place and when fair trial is denied, what comes into existence is a state of fear, intimidation and bewilderment for the people. This is deepened further when freedom of expression, association and publication are also brought under various restrictions and when the people are punished for engaging in any of the activities relating to the expression of their views. Politically, this situation is brought into sinister completion when the possibility of free and fair elections is denied. That is virtually the situation of many of the less developed countries, though the degree to which this happens may vary to some extent from country to country. In a situation of that sort the realisation of ICESCR rights is also not possible. The right to life can be deeply affected when the right to food and water and the right to housing are denied through various forms of economic measures. The right to health and education can also be denied in the same manner. Above all, the right to work can be denied both by unemployment and underemployment. When the process of transparency and accountability does not exist the people completely lose the capacity to participate in the process of determining the affairs of their own lives. The right to information is a fundamentally important aspect of guaranteeing a decent way of living within a society. The denial of the right to form trade unions and other workers' associations as well as students is also a way of creating a less than human environment for living. Participation and the existence of functioning public institutions of justice Democratic governance is based on the notion of the participation of the people themselves in their own governance. When the basic civil rights of the people mentioned above are denied, the people are in fact denied the right to participate in governance. Within that setup what emerges is a falsified version of representative governance. The representatives, in order to have legitimacy, must be chosen freely by people who live in a political environment within which they are able to express their consent or dissent in a well-informed manner and without coercion and fear. When the basic civil rights are denied such an environment of freedom does not exist. What takes place then by way of falsified versions of elections, or even by making constitutions without proper consultation with the people, is the generation of governments which are, in fact, authoritarian and arbitrary in character. In many of the less developed countries the governments have taken an absolutist mode, though they keep up the façade of being democratic governments. What exists is phantom democracy, which, like the phantom limb, is an illusion. The real nature of such governments has not yet adequately become the subject of studies. In a recent book entitled Gyges' Ring - the 1978 Constitution of Sri Lanka, I have tried to demonstrate this in terms of the situation in Sri Lanka. However, this is not just the political situation in Sri Lanka only but many less developed countries fall within this category. Thus, the discourse on the participation of people should incorporate an assessment of the peoples' actual capacity to enjoy their basic rights. Gender equality and the dysfunctional public institutions of justice Modern discourse on rights insists on the incorporation of the equality of women into all aspects of discourse on human rights as well as the political discourse on democracy. The participation of women in all aspects of social life is an integral part of this discourse. However, the problems discussed above about the situation of fear, bewilderment and alienation created by the denial of basic ICCPR and ICESCR rights prevents the participation of all, including that of women. For bringing the gender equality issue to public discourse beyond mere expression it is necessary to relate it to the problem of women's enjoyment of the basic Human Rights. Equality relating to any sector of society has three different aspects. a) Equality as understood in the human sense, b) Equality before the law so that the equality is in fact ensured and implemented by the law as legal entitlements, c) as quality of opportunity. What is often discussed as the equality of women is usually on the first aspect of purely human terms but often the problem of equality before the law and equality of opportunity are not adequately emphasised in these discourses. The considerations of equality before the law require an understanding of complicated legal steps, legal processes and practices. Bringing about a structural framework within which women's equality could be realised is very different to making public declarations about such equality. The tendency to ignore the structural aspects of the realisation of rights is a common feature in human rights discourse and is not confined to women's equality issues only. Further the problem of equality of opportunity, which is actually the area in which rights are realised, requires basic guarantees of the ICCPR and ICESCR rights in general, but also regarding women's equality in particular. Thus, the question of the realisation of women's rights in less developed countries is bound to the resolving of the problem of creating functioning institutions of justice. Where such institutions do not exist, women's rights will also be only empty parchment promises. A few basic suggestions On the basis of these reflections, the basic conclusion we can make on the issue of human rights and democratic governance in less developed countries is that the central issue to be addressed is the way to undo the state of dysfunctional public institutions of justice, thereby turning them into functional public institutions of justice. In that regard, civil society organisations including religious and church organisations should take an interest in the study the problem of human rights and democratic governance from the point of view of understanding the role to be played by functioning public institutions of justice in transforming society and creating the actual possibility of the enjoyment of rights and the participation of persons in the affairs of governance. The religious and church organisations can also influence international partners and encourage them to understand the problems of less developed countries from the perspective of creating the possibilities for justice within the framework of functioning public institutions. The developed countries should be encouraged to make efforts to understand the difference the availability of functioning institutions of justice make in resolving the problems of underdevelopment. Funding in granting aid and providing funds and assistance to the creation of functioning public institutions should be made a priority. Within the local context, creating public opinion and generating civil society movements for reforms in the institutions of justice should become a priority in the human rights field as well as in the work towards creating democratic governance. With creative effort many active contributions can be made for the resolving of this all-important issue and thus to emerge from the culture of and fear and paralysis that exists in many of the less developed countries. The following observations of Gary Haugen are relevant in this regard. "Moreover, the absence of functioning public justice systems for the poor also tragically undermines the usefulness of $2.5 trillion worth of foreign aid sent to the developing world over the last half century, because there is no effective mechanism of preventing those with power from stealing it away, blocking access to it or rendering it useless for its intended beneficiaries. First of all, without rule of law and effective enforcement mechanisms, resources earmarked for aid efforts often never reach their intended beneficiaries. A World Bank study found that as much as 85% of aid flows are diverted from purposes for which they were originally intended. Indeed, unchecked human rights abuses undermine the effectiveness of even those resources and services that do manage to reach the poor in those communities. Farming tools, for instance, are of no use to widows whose land is stolen away. Vocational training is of no use to women and men who are rotting in jail for refusing to pay a bribe. Medical clinics in communities are of no use to slaves who cannot leave the brick factories even when they are sick. Microloans are of no use if the proceeds from the new sewing machine are stolen by the local police. Similarly, the inability to restrain human rights abuses has seriously undermined attempts to improve the health of the poor in the developing world. For instance, a World Bank report found that gender violence was the cause of more ill health among women and girls than malaria and traffic accidents combined. Another World Health Organization report found that in some countries, up to nearly 70% of women report having been physically assaulted, and up to 47% report that their first sexual intercourse was forced. Surveys of villages in India show that 70% of women had suffered at least two forms of domestic violence or abuse in that year. And 16% of all deaths during pregnancy are from domestic abuse. Studies from Peru report that about 40% of girls will be victims of rape or attempted rape by the age of 14. 70% of HIV-infected women and girls in South Africa report having been forced to have sex. AIDS education does little to help women and children who are contracting the virus from forced sexual encounters. Now given all this, one might expect that remedying the failure to provide the rule of law to the poor would become the central focus of human rights efforts. Yet few if any international human rights organizations or development agencies focus specifically on building public justice systems that work for the poor. These agencies do other very important work but none measures organizational success by its ability to help police and courts in the developing world bring effective law enforcement to the poor. None." (The full speech may be found at: TEXT:http://www.ijmnl.org/seminar/The%20New%20Mandate%20for%20Human%20Rights.pdf AUDIO:http://www.law.uchicago.edu/audio/by/title/gary_haugen_a_new_mandate_for_human_rights ) # # # About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.