Basil Fernando, Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
This year I was able to complete my work on the relationship between the crisis in institutions for administration of justice and its consequences for the realisation of human rights in Asia. This work consists of three publications. The first was The phantom limb, which was published in 2009. It was followed by Recovering the authority of public institutions, which was also published in 2009. This year the work was completed with another publication, Sri Lanka: Impunity, criminal justice and human rights. Though all three books are studies of Sri Lanka, they are intended as case studies of a problem common to almost all parts of Asia, except for some places like Hong Kong and South Korea with comprehensive rule of law systems.
Stating the problem
The phantom limb: Failing judicial systems, torture and human rights work in Sri Lanka(AHRC, Hong Kong, 2009, 80 pp)
The first publication is perhaps the most important one in its articulating of the basic understanding of the problem. A medical doctor who attended a presentation I made on the absence of institutions for administrations of justice and its impact on human rights suggested the term “phantom limb”. In response to my speech, he said that the situation I described was known as the phantom limb syndrome. An amputee who has lost a limb continues to imagine that he has that limb and even feels pain in the limb. The problem of institutions for administration of justice is similar. Because certain institutions were formed at certain times in history, particularly colonial times, this has given rise to the feeling that these institutions still exist and function more or less as before. In this way they become phantom limbs.
The problem is related to external appearances versus inner realities. A professor from China once said that judges are given the external appearance of being judges; however, they may not have actual judicial power or proper training and competence. In my work in Cambodia at the beginning of the new period with the 1993 elections supervised by the United Nations, I was able to study the external appearance of judges and prosecutors as against the inner reality. The educational level of these judges was around grade 8, due to the upheaval in the country of the prior decades. The system had been designed and created by the Vietnamese, who were working according to the Soviet model. The people who were given various tasks in the courts were those that did well in the political party work as organisers. The system was the opposite of a liberal democratic one, in that it was the task of a court to defend the state and not the individual. The very meaning of the Cambodian word for ‘trial’ when translated into English was ‘sentencing session’.
People from outside Cambodia who wanted to begin a new system at the time also wanted to believe that a justice system existed in the country and that if some more education was given to these judges then they could function like judges in a liberal democracy, which is what the 1993 Constitution declared the country to be. However, other than via the introduction of some new words there was no change in daily reality. Within a few months of extensive human rights education, people started coming to the United Nations’ offices to ask where they could get the protection for the rights about which they had been educated. There were no police stations that would register their complaints, and the system of policing was one of intense surveillance. The prosecutor’s role was still to defend the state. Close interaction with the system and the justice minister revealed that “judgements” were actually written before trials were held. When this matter was discussed with the minister he clearly said that they did not have qualified judges and the only educated people they had were in the interior ministry. Those people could write better judgments than the judges who sat to hear the cases. He went on to say that people brought to court were guilty. Thus, the people coming from abroad who wanted to believe that the system could be transformed from a Soviet-style one into a liberal democratic one through some training programmes had to ignore the fact that there were no foundations in the system for any kind of criminal justice where individual liberty could be defended. Some external changes could give the appearance that there were also internal changes, but in fact these changes did nothing to alter fundamentally how the judicial institutions in this country operated.
Through my job I became profoundly aware of the tremendous contradictions in this situation. It was from this insight and the insight I also gained in Sri Lanka before leaving it in 1989 at a time that thousands of people in the south were being forcibly disappeared that I understood what the absence of justice meant.
This same situation of there being the appearance of a judiciary but no real capacity in the judiciary to protect the individual is visible in many other countries in Asia. For example, there is no such thing as a judiciary in Burma anymore. In that country through a highly sophisticated process which has gone on over some decades the system of courts has been shaped to play a useful role on behalf of the military. The military completely controls this system, so there is no basis for any kind of distinction between the executive and the judiciary. Though the courts function as if they have jurisdiction to make inquiries into the legality and the legitimacy of things they do not have any such power at all. To a lesser extent, the same types of problems can be found in other places, like Bangladesh, and even in certain respects in much more advanced but still heavily restricted systems like those in Thailand and the Philippines.
When people are in a country where justice institutions are more like phantom limbs, they have a sensation of legality which, in fact, is an imaginary legality. People in disputes may believe that they can obtain some kind of justice by resorting to the courts, and many people do in fact pursue legal cases. However, as they interact with the system they slowly discover that what at first looked like reality is illusory. The system is not only unwilling but also incapable of delivering anything that might be called justice. However, there is nothing to replace the belief that they once had in the system. There is nothing that people can do when they are made victims. They can go to a lawyer, who will still just advise them of the various actions they can take within the framework of the law, irrespective of its reality or unreality.
At this point, belief in the justice system goes from being an empirical and rational exercise to a type of religious experience. Holy men whom people visit for solutions to their problems give instructions on all kinds of things that people can do to create some hope that things will work out to their advantage. The administration of justice in many parts of Asia today may create that kind of hope; however, there is nothing to connect hopeful expectation to reality. The suggestions made by lawyers and other professionals to persons hoping to obtain justice are no more likely to result in success than the suggestions of mystics and oracles. But because there is no other option, people do not like to admit that this is the reality, and instead they cling to beliefs that their interventions will have some desired effect. While everything tells them that a course of action will not bring the type of redress that they want, they resort to it for want of alternatives.
The frustrating experience of people seeking but not obtaining justice is prevalent in most Asian countries. The sensation of sheer powerlessness in the face of wrongdoing is commonplace.
Illustrating the problem
Recovering the authority of public institutions: A resource book on human rights in Sri Lanka (AHRC, Hong Kong, 2009, 545 pp)
The second part of the study was a book detailing 200 cases out of about a thousand recorded by the Urgent Appeals programme of the AHRC on the widespread use of torture and attendant abuses at police stations in Sri Lanka, and the incapacity of citizens to get any kind of legal redress for these abuses. Each case is part of many years of work to document the facts properly as well as to search for some form of justice by way of complaints or legal action or by resorting to international agencies, such as the United Nations. In some cases the litigants have been going to court for over eight years in the hope that they might obtain some kind of relief. However, the legal process only compounds the agony of the citizen who has already been subjected to injustice by agents of the state. The citizen having been subjected to abuse at the hands of law enforcement agencies finds that no other part of the state apparatus can or will protect him. The general failure of the administration of justice renders the individual powerless.
I used this part of the study to illustrate the problem through the empirical evidence that is found in the hundreds of cases documented. These cases together clearly establish that lawlessness has spread throughout the entire administration of justice. The details are overwhelming. The only option left to the government and others who do not want to admit the problem is to prove that the facts presented are untrue. Despite many attempts to do so, state agencies have not succeeded in challenging the factual evidence that has been brought about by way of the details of torture and other human rights abuses in these and hundreds of other cases.
Aside from the cases themselves, the book contains a lengthy section in which I have tried to explain the circumstances in which lawlessness has emerged as the dominant feature of the administration of justice in Sri Lanka. So-called anti-terrorism laws have encouraged anarchy within the system and have caused chaos in the social and political life of the country.
The book also contains commentary on various laws and related institutions such as police investigation divisions, the attorney general’s department and the judiciary. It explores the deficiencies existing within these institutions as well as the causes of the failure of justice within Sri Lanka. The failures of justice in individual cases can thus be linked to these institutional failures. The book as a whole is extremely detailed and heavy on factual information so as to establish that the allegations made about the failure to implement human rights in Sri Lanka can be proved with reference to existing publicly-available documentation.
Drawing conclusions
Sri Lanka: Impunity, criminal justice and human rights (AHRC, Hong Kong, 2010, 164 pp)
In this third book the consequences of the phantom limb in criminal justice and its effects on human rights are explained and an attempt is made to draw some conclusions. The consequences are discussed in terms of abysmal lawlessness and zero status of citizens; militarization and human rights in South Asia; loss of liberal democratic constitutionalism, and impunity. Each of these aspects is detailed in separate chapters.
The first chapter takes up the difference between a rule-of-law system and a non-rule-of-law system through study of the basic legal infrastructure in a liberal democracy with an institutional framework of police, prosecution and judiciary. When these institutions are functional they are able to ensure the basic framework of the rule of law. This is not an ideal situation. A functional state is not a perfect one. The term ‘functional’ simply means that the system is operating overall to reach its basic objectives. When a system is functional, defects or faults can be reviewed and over time, at least the more glaring ones can be corrected.
By contrast, when a system has become dysfunctional this implies that it cannot achieve even its basic objectives. This is not simply a problem of defects. It is a problem characterized by incapacity to resolve practically any difficulty besetting the system, as a result of which the system is completely overwhelmed and incapable of operating. This is the situation of the policing, prosecution and judicial systems in many Asian countries today. In those countries the minimum requirements of a rule-of-law system cannot be realised because of institutional dysfunction. The people of these countries do not have the protection of the law, even though there may be external appearances to the contrary.
The consequence of institutional dysfunction I have described as abysmal lawlessness. The idea of abysmal lawlessness is explained in a chapter in the third book, which attributes to it the following features: lost meaning of legality; predominance of the security apparatus; disappearance of truth through propaganda; the superman controller; destroyed public institutions; and zero status of citizens. I also outlined these features in an essay published in article 2 at the end of last year (vol. 8, no. 4, December 2009).
The militarisation that accompanies institutional dysfunction is an especially important feature of the non-rule-of-law systems found across Asia, and in a separate chapter in the last part of the study I examine the spread of militarization and its consequences.
Certain trends and patterns in public and social life reveal a rise in militarization of state institutions. These include widespread kidnappings; loss of legal protection in matters of arrest, detention, searches and other areas of state interference in personal life; judicial corruption; undermining of civilian policing; diminishing respect for women; loss of the importance of the individual; obstacles to the realisation of contract and tort, and loss of memory, language and attitudes.
The meaning of militarization is dealt with politically, legally, socially, financially and ethically. Politically, the very notion of the separation of powers loses its meaning. The state bases its legitimacy on the use of force rather than on the basis of consent.
Legally, the rule of law is displaced. Arbitrary orders through emergency regulations and anti-terrorism laws replace coherent legislation. In fact, the executive acquires such power that it need not justify its actions before any forum.
Socially, reason too is gradually displaced. Instead of consensus-building through rational discourse there is propaganda. The distinction between truth and falsehood becomes thinner and eventually is lost altogether. Language changes, facts and figures lose significance, and the media becomes a no-fact zone.
Financially, as law and language lose their significance so too the notion of auditing for accountability ceases to be relevant. The distinction between private and public ownership is blurred. The state interferes in every financial transaction on behalf of private interests. Private ownership of property loses its certainty, except for those few who are outside of the system.
Ethically, crime becomes relative. The absolute prohibition on killing ceases to connote anything of importance to society; murder becomes a lesser evil. Violent measures to settle disputes are justified because no institutions provide remedies. Life is cheapened. The devaluation of life affects personal and family relationships. Abuse and distrust of others becomes the norm and powerlessness becomes an excuse for compromise, no matter how morally unacceptable.
How can we escape from the cycle of militarisation? History does provide us with examples. First, the capacity to understand the shock and shame suffered under these circumstances, as well as collective shock and shame, needs to be uncovered and inculcated. In the aftermath of World War Two, people in Germany suffered various illnesses. Alexander and Margarete Mitscherlich studied these ailments and wrote a book called The inability to mourn. What they discovered was that the capacity of both the individual and the society to recover was dependant on the capacity of people to admit to their plight and mourn for what had happened. Only in this way could they find a path to recovery.
This first step is closely associated to the second: that the problems with public and legal institutions must be discussed boldly and relentlessly to bring about change and restore some public confidence that someone is doing something to address what has gone wrong. This means documenting in as great detail as possible every incident of abuse, and developing databases and information centres for the purpose. Elie Wiesel, the Nobel Prize laureate, recalled the advice of the rabbis at the height of the holocaust who told people to make records of everything they saw happening to others or themselves. The literature that survived through this process provided the basis for later reflection and helped the recovery process legally, socially and spiritually. One remarkable document of this nature was the diary of Anne Frank. There is no alternative to dedicated documentation of injustice and abuse. The night, when it comes, causes havoc—but faithful records of that havoc are essential for the recovery of the conscience.
Turning to how a dysfunctional legal system is associated with emergence of widespread impunity, the third book in the study tracks how Sri Lanka has left the orbit of constitutionalism. It shows how the autonomous civil service was destroyed through the 1972 Constitution and how civil servants were brought under direct control of the executive president through the 1978 Constitution. With this change the entire civil service was politicised and recruitment, promotion, transfer and disciplinary control were all made the subjects of political considerations. This feature of the system spread into policing, the attorney general’s department, and also into the judiciary. Judicial independence has been undermined through interference in the appointment of senior judges, who lost the protection they needed to perform their tasks in accordance with a rule-of-law state.
The last part of the book begins with the attempts of civil society organisations to battle with Sri Lanka’s dysfunctional system by various means. Litigating to protect civil rights in a dysfunctional system often does not lead to any improvement for individuals; however, it can help in the discovery of details, exposing previously hidden defects and contributing to understanding of the methods by which power is abused. The chapter deals with cases pursued for several years in the courts and the lessons that have been learned about the system through these cases. In an interview published in this section, I make the following comment:
The ultimate success for human rights remedies lies in winning public opinion in favour of… redress. For many reasons, previous and existing social attitudes directly or indirectly support various practices of repression by the state. That police torture is necessary for public security and stability for instance, is an inbuilt social prejudice prevalent in Sri Lanka. Another inbuilt perception is that torture victims are bad criminals. Our work and approach attempt to demonstrate that these prejudices are in fact contrary to reality, and that law enforcement without torture can create a far better community spirit, both within the community and the law enforcement agencies. Moreover, the entire society will benefit from a legal system that has adequate remedies for human rights violations.
This kind of social discourse cannot be carried out without practical participation in the litigation process. It is not possible for instance, to introduce adequate legal remedies by merely teaching human rights or enacting new laws. Litigants must go to court to demonstrate the difficulties involved in actually obtaining these remedies. The root causes of such difficulties should also be analyzed and explained. It is only through this process that you can condition sectors of society and the state to appreciate the meaning of adequate remedies for human rights in terms of article 2 of the International Covenant on Civil and Political Rights.
In a chapter entitled “Sri Lanka: A murder tolerating nation” the book explores how inhibitions against killing have been abandoned in order to achieve some political objectives, and the social impact is discussed. The policy to kill is explained thus:
There was a deliberate policy to kill the arrested persons instead of detaining them. Besides the incapacity to keep large numbers of persons in prisons, there would also have been the political issue of holding large numbers of political prisoners, which would inevitably lead to considerable protest regarding their release. Such demands would come from various political parties and human rights organizations within the country, as well as from the international community. This would create a political problem with several repercussions for the government.
The results of killing for political purposes are described as follows:
This approach of eliminating political opponents paved the way for killings to become common in the society at large. Killing is a pragmatic approach to get away from all legal methods and consequences. If a property dispute is to be dealt with legally for instance, it may require cases to be filed in court and the cases themselves may take a long time.
The basic message was that the legal process was cumbersome and dispensable. Killing could be used much more easily to deal with disputes without all the problematic consequences of law. The law was marginalised and killing normalised. This situation has become the status quo in Sri Lanka, virtually destroying all guarantees of life that are normally available within a civilized society.
The situation of the north and east, where a prolonged military conflict had even more disastrous consequences, is taken up from a rule-of-law viewpoint. In a country where dismal lawlessness characterizes ordinary life in non-conflict zones, it is not difficult to understand how much worse life has been made in areas beset by one of the most bedevilling and devastating wars in the world of recent decades. Now that direct military conflict has ended, the government has approached the problem of reconstruction in the north and east as one with an economic solution. It has characteristically neglected the legal and institutional arrangements to stabilize conditions and give people in these areas any prospects for the defence of their human rights.
The reestablishment of stability in the north and east will require a working policing system, able to guarantee security to the people rather than commit further abuses. When the entire policing system of the country has collapsed how can this sort of institutional development take place in the north and the east? While there is some talk about truth and reconciliation, what meaning does it have in the absence of any kind of security and protection for citizens, and in an environment where there is no possibility of guaranteeing any kind of legal entitlement? These are the sorts of problems that have to be addressed if some semblance of security is to be restored to the populations of these areas.
