Mr. Basil Fernando’s keynote address delivered on 16 May 2018 at the Gwangju Human Rights Forum
The 2018 Gwangju Human Rights Forum was jointly organized by the May 18 Foundation and AHRC
It is a great honor to be speaking to you all today when we have gathered to celebrate the 20th anniversary of the Asian Charter, a Peoples’ Charter, under the overall theme of Our Common Humanity. 20 years ago, it was under the auspices of the May 18 Memorial Foundation that the Charter was launched after a prolonged period of discussions on the text with human rights activists, academics and all other interested persons in many parts of Asia. Many of the names of the persons who were involved are enshrined in the document.
The May 18 Memorial Foundation wanted the Charter to as a representation of the Gwangju spirit, the spirit of the uprising and the spirit of those who sacrificed their lives to ensure that the democracy will triumph and the militarism will be defeated.
Today by way of commemoration of the 20th anniversary of the charter, we have gathered to discuss three documents, a declaration on Right to Justice, a declaration of Right to Peace and declaration of Right to Culture and Cultural Identity. All these three documents are interlinked, and therefore carry a common theme.
What is the link between the Asian Charter and these three declarations, someone may ask. And it requires an explanation. The idea or the ambition behind those works on the Asian Charter was to draw attention to one of the very important problems that was yet to be resolved for the purpose of realization of human rights in developing countries in general, and most of the Asian countries in particular. That unresolved issue was on how to ensure the actual implementation of the rights contained in UN conventions which have been often ratified by many of the countries in the region, and some of the ideas of which have been also enshrined into the constitutions and statute laws of several countries. Notwithstanding the fact of such ratifications and domestic legislations, which have been passed, the fact remain that the actual possibility of implementation remain quite problematic. Within a short period of time, several Asian countries even boasted of creating model constitutions which gave wide expressions to human rights. The constitution of the Philippines which came about after the overthrow of Dictator Ferdinand Marcos by way of an uprising which was called peoples’ power at the time, a new constitution was brought about, particularly with a view to ensure that the human rights will never be threatened again. However, as we are meeting now, we see the whole fabric of the human rights structure is gravely being undermine by the measures adopted by President Duterte who among other things authorized mass killings without any kind of due process or fair trial being given to victims of such killings. In fact, they were summary killings by the order of President himself. At the same time, the Chief Justice of Philippines was impeached for political reasons. In the similar manner, there were constitutions in Thailand; there was a new constitution in Thailand, which again promised far greater respect for human rights. But today, Thailand is under military dictatorship. When after the Pol Pot regime, when the international community intervened in a large scale in order to establish a legitimate government in Cambodia, again a new constitution was promulgated in May 1993, which was also spoken of as a constitution, which guarantees democracy and human rights. However, now almost 24 years after the constitution, the country does not have an independent judicial system, and anyone who dares to take part in the political life of the country is threatened with imprisonment and other forms of punishment. The stories of many other countries such as Bangladesh, Pakistan, Sri Lanka, India, Nepal and others reveal similar stories. The gap between the declaration of rights and the actual implementation of these rights remain a vast gap.
If one were to ask why such an outcome has become possible, a very clear answer could emerge. That is because, in 1948, when the Universal Declaration of Human Rights was adopted and thereafter-other UN conventions have also been similarly adopted, there was an assumption that the possibility of implementation of rights existed in developing countries the same way as they exist in developed democracies. This unfortunately was a misunderstanding about the whole historical processes by which the functioning democracies comes into being. Development of democratic institutions in Europe and thereafter spread into United States was a product of many centuries of great struggles and often the right to have different kind of legal structures within which rights can be realized had already taken place. The link between a functioning legal structure, which is designed and created solely with the idea of protecting the basic democratic rights of the people, was the foundation that guaranteed the possibility of the implementation of human rights in these countries. This is a precondition that did not exist in developing countries.
It was a historical task that has to be faced in these countries to create the kind of legal structures within which tendencies for Dictatorships can be defeated by legal means, and that rights of people could be protected also by legal means.
We, in the developing countries and most of the Asian countries, fall within that category had not gone through that process of creating legal structures solely for the protection of the citizens. The result is today staggeringly clear despite of Right to Life being admitted as basic rights, extrajudicial killings of all sorts being taken place in most of these countries. The horrendous experiences of enforced disappearances is a common fact. Despite of right against torture, torture is routinely practiced in almost all these countries including also in county like India, which is called the largest democracy in the world. When it comes to the police, the police behavior is conditioned not by a senior control through legal process but through arbitrary means, which are used routinely. The politicians do not attempt to obstruct this process but instead take advantages of this situation. The clear mirror of existence of actual possibility of implementation of rights is the policing system in any country. It is in that area that in Asia we have simply made hardly any progress except in few places.
So is also the rights to Fair trial, rights to freedom of expression, rights to freedom of assembly, and right to elect the government of ones’ choice. These denials of actual practical implementation of rights in these civil rights areas determine also the kinds of living conditions of people in these countries. People from most part remain extremely poor, and the problems such as malnutrition exist in a drastic way in some of these countries. Denial of right to education, right to leisure, right to heath, and in all these areas, what we see is not a paradise created through the respect for human rights but stark denials of actual possibilities of achieving any of these rights.
The idea of the Asian Charter when adapted 20 years ago was to raise this issue in a sharpest possible manner, and to urge the governments and the peoples of this countries to come to recognize these problems and to find ways to resolve this problem.
However, there has hardly been much progress during these 20 years. This is why we specially chose to make the declaration on Right to Justice. Without respecting Right to Justice, rights loses all meaning. When any right is violated, there must be the possibility of correcting that as soon as possible through the country’s judicial system. The Judges, the Prosecutors and the investigating police are the instruments through which it must be achieved. That kind of justice is still far away from the actual experience of people in most part of Asia. That is why we have tried to deal in more greater detail than it was done in the Asian Charter to spell out the problem areas which exist in terms of freedom from illegal arrests, illegal detention, from torture, from all forms of extrajudicial killings including enforced disappearances and denial of fair trial, which are the instruments through which all rights are being denied. By spelling these out in greater details, we hope that it would be possible to have conscious discussions on these vary issues openly with the view to find solutions to the violations which are most common in our region.
The Right to Peace and Right to Culture and Cultural Identity is very much dependent on right to justice. Where there are no possibility of seeking justice effectively, there is no possibility of maintaining justice in the region. We have enormous violence in almost every aspect whether in terms of community relationships, ethnic relationships, relationships of social groups as well as conflict between countries. Asia has seen some of the horrendous forms of violence and which is symbolized by the bombing of Hiroshima and Nagasaki. Today many countries possess the possibility of creating a nuclear war. The possibility of the use of other forms of weapons of mass destruction is there, and Asia has experienced it many times. So is the Right to Culture and Cultural Identity. Without basic economic means for a decent way of life, it is hardly possible to develop cultures, and for cultures to thrive through many forms of creative expressions. People live in stark poverty are denied of all access to the possibilities of culture. Besides, cultural identities still remain deep problem creating some of the major problems in terms or rights of women. Women in many parts of Asia still suffer extreme forms of repression, which are justified often in cultural terms. Inability to bring the equality of men and women is starkest expression of absence of respect of human rights. This is the contradiction that call for resolution as early as possible.
These are the overall themes that we hope to discuss in the coming days. This is the vital discussion for every countries in our region and developed countries in general. Asian Charter with these three declarations could provide a strong creative source, which could generate the most vital discussion we need in Asia, which is the discussion on actual implementation of rights.