Human Rights Correspondence School, Asian Human Rights Commission, Hong Kong
At a time of increasing natural and man made disasters, it is necessary to discuss the nexus between the rule of law and human rights. The aftermaths of both the December 2004 tsunami and the February 2005 Nepalese royal coup are a clear indicator that not only does Asia suffer from a breakdown in the rule of law, but that without it, only chaos and violence are possible. The past year has seen unequal aid distribution, the use of outdated injections in hospitals, an absence of arrest records in police stations and palpable hunger faced by people whose countries boast of food surpluses, all of which are symptoms of a collapse in the rule of law. Another symptom seen in many countries is the absence of democracy and accountable governance
All of these ills can be attributed primarily to the fact that in Asia little connection is made between rule of law and human rights. After the establishment of the Universal Declaration of Human Rights in 1948, the concepts regarding both rule of law and human rights developed largely in western countries. In the decades since then, Asia has had little serious discussion regarding international legal principles and their implementation. While governments may ratify numerous international covenants articulating human rights principles, corresponding provisions are not introduced domestically to implement these rights. Until these provisions are introduced into domestic justice systems, there can be no improvement in the human rights standards within the region. This is clearly indicated by the fact that while recent years have seen changes in Asian dictators and governments, their flawed systems and abusive institutions remain intact.
To address this situation requires the reform of these systems and institutions and the mobilization of a popular movement. It is quite clear that in almost all Asian countries the institutions responsible for the enforcement of the law and the protection of people’s rights are malfunctioning, resulting in further rights violations. In particular, these are the police, prosecution and judicial institutions. It is also clear that reforms can occur only through a popular movement. The folk school methodology, as formulated through the work of NFS Grundtvig, holds that all people are equal, that knowledge is not the privilege of the elite and that when ordinary people come together to discuss their problems, they are likely to also come up with solutions to these problems.
Rule of law and human rights implementation
For any society to be governed by the rule of law requires that it recognize the supremacy of the law and that all individuals are held equal before the law. Not only does this mean that the law itself must conform to the highest principles of human rights, but also that state agencies and officials themselves must be held accountable to this law. Only then can human rights be legally protected and remedies made available for the redress of rights violations.
In countries throughout Asia there is a lack of adherence to the law, both domestic and international. Ordinary people live in instability and fear, lacking basic security for a normal existence. The institutions responsible for protecting people’s rights are malfunctioning, in many instances being themselves responsible for violating rights. Not only must victims suffer such abuse and brutality from state officials, but they are further denied their rights when they attempt to seek redress.
When Ko Khin Zaw and U Ohn Myint for instance, filed a complaint for forced labour in the Henzada Township Court, Ayeyawaddy Division, Burma in July 2004 after being jailed for failing to do sentry duty at a village monastery, their complaint was summarily thrown out of the court. Furthermore, the same judge then entertained a complaint of criminal defamation against them by the vengeful local administrative officials. The two villagers were found guilty, and were offered a fine or six-months’ imprisonment. In an act of defiance, the two men chose jail. Although the widespread practice of obligating citizens to do manual work in Burma was recently prohibited under an agreement with the International Labour Organisation (ILO), the practice still occurs routinely. The agreement with the ILO envisaged that the means for complaints and investigation of forced labour allegations could be established. In practice though, when villagers attempt to make complaints, they are consistently rejected. Complainants then face counter-allegations of defaming public officials or refusing to carry out their instructions, for which they are sentenced to jail terms as a warning to others.
Abhijnan Basu was allegedly doused with diesel fuel and set on fire by officers of the Presidency Jail in Kolkata, West Bengal, India on 12 November 2004. The reason for this brutal act was that Abhijnan had reportedly complained about the quality and quantity of food the prisoners were being provided. On the morning of November 12, Abhijnan was approached by the jailor and several prison wardens, who quickly overpowered him and doused him in diesel, then set him on fire. Abhijnan was taken to the MR Bangur Hospital before being transferred to the SSKM Hospital, where he remained in a critical condition for eight days, having suffered burn injuries to 90 per cent of his body. He died in hospital on November 19. The subsequent inquiry was carried out by prison officials who even before completing their work exonerated their colleagues from blame and said that Abhijinan had committed suicide. Despite this claim, the authorities have not explained how Abhijnan came to possess diesel and matches inside the jail premises. The authorities have also claimed that Abhijnan suffered from a psychological disorder, but have produced no evidence to this effect.
In Nepal, even prior to the February 2005 coup by King Gyanendra, there existed little rule of law in the country, to the extent that Supreme Court orders were routinely ignored by the police and military. A Supreme Court order to release Jivan Shrestha on 16 November 2004 from the Central Jail in Kathmandu saw Jivan released but immediately rearrested on the same day, outside the prison compound by police from Bhaktapur. He was not given an opportunity to talk with his wife or lawyer, both present at the time, and was put straight into a police van. After having been rearrested, Jivan was found the following day at the District Police Office in Bhaktapur. Police inspectors at the office said that he was arrested by order of the Royal Nepalese Army, and that they did not know what the army wanted to do with him next. He was subsequently transferred back to the Singhanath Barracks. Another writ of habeas corpus was filed in the Supreme Court on November 18, and Jivan was at last released on November 24, but only on condition that he report back to the barracks on December 15. He dutifully went with his wife and another relative on the appointed date, and was taken inside while the others were told to wait. Incredibly, after some time his wife was told that her husband would be detained again. In a desperate state, his wife went back to the barracks the following day, but was told that she could not meet her husband. Again she went on the third day, pleading for his release. At this point the soldiers told her that if she appeared before the barracks again, she too would be put inside. They also blamed her for filing habeas corpus writs in court and for telling human rights groups about what had happened to her husband. Finally, Jivan was again released, but only on the condition that he again report to the barracks, this time with written proof that the writs issued against the security forces have been withdrawn.
A society’s justice system is what determines the effect of its rule of law. This system is comprised by the police, prosecution and judicial mechanisms. The functioning of these mechanisms will affect the response of the justice system to the needs of society. When the system is able to respond adequately, the rule of law in that society will be effective. The perversion of laws and the malfunctioning of institutions the cases above portray are only too common throughout the region. Amazingly, the collapse of effective rule of law in the region and its bleak human rights situation are rarely looked at as two sides of the same coin. In fact, ineffective rule of law is not clearly seen as an obstacle to human rights. As a consequence, human rights are meaningless to the ordinary citizen. For the ordinary people, particularly those who have been victims of human rights abuses, the system that violates their rights is the same one that denies them access to justice and effective remedies for their violations; for them, there is an indivisible link between rule of law and human rights. In the case of Ko Khin Zaw and U Ohn Myint, not only were their rights violated when they were forced to do labour, but they were further denied their right to seek redress. Abhijnan was killed for making a complaint to the prison authorities. In Jivan Shrestha’s case, even a Supreme Court order did not deter the police and military from detaining him. In all these cases laws were violated by persons themselves responsible for the safeguarding and enforcement of the law. Under such circumstances there can be no remedies for human rights violations. This is the link between the rule of law and human rights. Today, the struggle for one cannot be separated from the other. It is for this reason that the Asian Human Rights Commission (AHRC) highlighted UN Secretary General Kofi Annan’s statement of 21 September 2004 regarding the centrality of the rule of law, in which he observed that
We must start from the principle that no one is above the law and no one should be denied its protection. Every nation that proclaims the rule of law at home must respect it abroad and every nation that insists on it abroad must enforce it at home. Yes, the rule of law starts at home. But in too many places it remains elusive. Hatred, corruption, violence and exclusion go without redress. The vulnerable lack effective recourse, and the powerful manipulate laws to retain power and accumulate wealth. At times even the necessary fight against terrorism is allowed to encroach unnecessarily on civil liberties.
Without emphasis on implementation there can be no improvement in the human rights situation of millions of people throughout Asia. This implementation requires the establishment of effective and functioning police, prosecution and judicial mechanisms. It is the justice system–comprising of these institutions–that must defend and protect human rights. If the system is malfunctioning, nothing but abuse can be expected.
The role of the police
Human rights can only be protected when the rule of law flourishes, and thus there is a firm link between the behaviour of the police and human rights violations in the society. If the police refuse to file a complaint due to bribes, if they fabricate charges against someone for personal motives or if they threaten the life and liberty of those who are willing to fight for justice, they are not only violating individual human rights, but are giving lie to the justice system that is meant to protect citizens’ rights.
The primary duties of any police force relate to the prevention and investigation of crime and the protection of citizens’ rights, all of which are to be undertaken in accordance with the law. Failure to carry out these duties both causes human rights violations and is a crime.
Illegal arrest and detention are routine aspects of police behavior in too many Asian countries. Not only are police violating procedural provisions for lawful arrest and detention when they engage in these actions, but they are also–and more seriously–committing crimes by violating basic human rights. Some of these crimes include death and torture, which are grave abuses, particularly when committed by state law enforcement officials.
The death of Kanai Santra in West Bengal occurred together with illegal arrest and detention. On 25 May 2004, 38-year-old Kanai Santra, of Chakdaulat-Kalitala village in West Bengal died at the Bangur Government Hospital. He had been brought to the hospital only hours earlier, after falling unconscious due to a brutal assault by several policemen stationed at the Alipur court lock-up, who used their fists, feet and sticks to beat Kanai so severely that he collapsed. The same policemen then used their authority to cover up the murderous act by filing a false complaint, claiming that other persons were responsible for Kanai’s death. After learning of Kanai’s death, the officer-in-charge of the lock-up, Mr Samir Mukherjee, lodged a false complaint with the Alipur Police Station, stating that Kanai had been assaulted by the other under trial prisoners with whom he shared a cell. Furthermore, a delay in registering the death led to a delay in the autopsy; although executive magistrate Mr Jiban Krishna Ghosh conducted an inquest on May 26, where multiple external injuries were found on Kanai’s body, the Jadavpur Police did not take the papers to the Calcutta morgue for Kanai’s post mortem until May 27, at around 3pm.
Procedural violations by police personnel together with deliberate falsification of records to cover up their crimes are among many of the problems that exist in policing in India, and throughout Asia. The police wield inordinate power, are not held accountable for their actions, and work in a system that gives wide scope for abuse. In India, the court lock-up is fully managed by the police personnel; in West Bengal the functions of the lower criminal courts are managed by the police. The magistrates are also dependent on the police in their judicial functions. Court orders are written by police even before the case is heard.
While international law provides that everyone has the right not to be tortured, including those arrested by the police and accused of crimes, police in Asia are known to routinely commit torture. In most Asian countries torture is not a crime, a punishable offence or even an act that requires compensation. India, for instance, adamantly refuses to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), stating that constitutional and other provisions exist to prevent torture. Kanai Santra and numerous others’ experiences clearly show that this is not the case.
The registering of a complaint is the first step towards redress for a wronged person or victim of human rights violation. However, filing complaints at police stations is a complicated and even dangerous business for most victims in Asia. By contrast, the police and persons with influence find it easy to file false complaints.
W Inuka Prasad Kumara Alwis’ neighbour filed a complaint against him at the Panadura North Police Station, Keselwatte, Sri Lanka after a dispute. His connections with Officer-in-Charge (OIC) Prasanna meant that before any investigation into the complaint was carried out, Alwis and his companion Sithura Nissanka were illegally detained and tortured. On 15 February 2005, after Alwis’ neighbour filed the complaint, three policemen from the Panadura North Police Station came to Alwis’ house. As he was not home, the policemen told Alwis’ wife that her husband should report to the police station the next day. On February 16 Alwis went into the police station with his friend, Sithura Nissanka. A police constable began to question Alwis about a man named Jeevantha and his brother-in-law Rohan. When Alwis replied that he did not know where Jeevantha lived, the constable threatened him. Nissanka then queried why the constable was questioning Alwis instead of Jeevantha. Overhearing this conversation, OIC Prasanna ordered the constable to bring Alwis and Nissanka to his room, where he assaulted them both. OIC Prasanna then threatened them, boasting of how he had broken one person’s arm and shot another person. Alwis was then told to leave the room, while Nissanka was further tortured. Alwis stated that his neighbour–who had filed the complaint–was present at the police station and watched him and Nissanka being tortured. Alwis was later brought to the OIC’s room again, where he was threatened with false charges of illegal weapons possession, and forced to apologize to his neighbour.
Another Sri Lankan torture victim, Marasinghe Arachchige Anura Dissanayaka, found it impossible to file a complaint with the police regarding his assault by a drunken police sergeant. At 12:30am on 24 January 2005 Dissanayaka was awoken and informed by a neighbour that a man was standing in front of his house. After identifying the man as Sergeant Nimal of the Wadduwa Police Station, Dissanayaka greeted him by saying ‘hello’. Sergeant Nimal, who was in plainclothes and was drunk, immediately raged at Dissanayaka, saying, “Who the devil are you to call me hello?” He then hit Dissanayaka around the face and ears. At the time of assault, Sub Inspector Rajapaksha and four other officers from the Wadduwa Police Station were also present, but did nothing to prevent or stop the assault. Before leaving, Sergeant Nimal warned Dissanayaka not to inform any higher authorities about the incident. Regardless, at 10am on January 24, Dissanayaka went to the Wadduwa Police Station to lodge a complaint. Sub Inspector Rajapaksha requested him not to make the complaint, but he persisted. Police constable Upali refused to take down the complaint however, and directed the victim towards the officer-in-charge, who likewise refused to accept the complaint. Finally, Dissanayaka went to the Senior Superintendent of Police in Panadura and lodged a complaint on January 25.
In many Asian countries the police are heavily influenced by politicians and religious or communal elements, making it particularly difficult for some persons to file complaints and seek redress for injustices committed against them. Officers at the Tarun Police Station, Tehsil Bikapur, Faizabad, Uttar Pradesh, India refused to file the complaint of a Dalit (‘untouchable’) villager. On 8 July 2004 Babu Lal had his family assaulted, home destroyed and possessions looted by an armed gang that opposed the granting of land to Dalit villagers under a state scheme. Among the gang were Ramjeet and Mansha Ram, both of whom belong to the powerful Kurmi family. Although the attack took place during daylight, the attackers left the house without any fear or obstruction. After the incident, Babu Lal’s family rushed to the Tarun Police Station–located within three kilometers from their house–to lodge a complaint. The police refused to file a case and allegedly said, “It is your problem. We would not like to be a party to your game. We don’t want to come there even for urinating.” Even when the head of the village administration approached the police to take action, they refused to do anything. Babu Lal then lodged complaints with the National Commission for Scheduled Castes, the Uttar Pradesh State Human Rights Commission, the Chief Minister of Uttar Pradesh and District Magistrate of Faizabad. After he took the case himself to the local court, the authorities took no action on the pretext that the matter is in court.
No complaints mean that there can be no investigations. However, even when complaints are registered, there may still be little investigation. This lack of proper investigation is a prime cause for the increase in crime and impunity throughout Asia. It also prevents victims of abuse from obtaining justice and redress.
In Thailand, corrupt and ineffective investigative practices result in innocent people being harshly sentenced. Chanon Suphaphan was traveling along a road near the Tantanote temple, Muang district, Singhburi province at around 6pm on 24 November 2002, when he was hailed by a local villager who asked him to assist a man injured in a motorcycle accident. Chanon helped the injured man, Thawatchai Nakthong, back to his feet and ensured that he was not seriously hurt. He did note that Thawatchai, who suffers a disability in his right leg, was incoherent and unable to stand or walk properly, but concluded that this was due to Thawatchai being drunk and not because of the accident he had just been involved in. On December 17, Chanon was summoned to the Singhburi District Police Station, where he was charged with robbery of Thawatchai. Although Chanon denied the charges and was released on bail, the police did not do anything to investigate this case. When Chanon and his parents, together with seven other witnesses, were at the police station to make bail on December 17, the police failed to take any statements from the witnesses. The same occurred when the witnesses returned on December 27. On January 10, when the witnesses tried for a third time to have their statements taken, the police agreed to take statements from just four of them. During this time, the police were also negligent in their duties of investigating the material evidence. On 3 April 2003 the public prosecutor filed a criminal case against Chanon. He was then appointed a lawyer. However, the lawyer did not study the case or meet with witnesses, but simply told them not to worry because they had a village headman as a witness. At no point did he visit the site of the incident or speak to any of the persons concerned. On 22 October 2004 the trial opened in Singbhuri Provincial Court and statements by the plaintiff and three witnesses were heard. None of the three were eyewitnesses to the event. The police did not present the witness statements taken on 10 January 2003. On November 26 the court found Chanon guilty of robbery and sentenced him to the maximum ten years in jail. Chanon has appealed against the case. Over 200 local villagers have signed a petition supporting his claim of innocence.
The role of the prosecution
The prosecution is responsible for ensuring that all law is enforced. When laws are violated and crimes committed, the prosecution must ensure that due process is followed and justice obtained. This is particularly important when it is law enforcement and government officials–those meant to be protecting citizens’ rights–who are breaking laws and committing violations. In order for the prosecution to enforce the law, it must be institutionally independent, particularly from political and judicial influence. In most countries of Asia however, prosecutors enjoy neither this independence, nor effective power to carry out the mandate of their office as stipulated under international legal principles. This inevitably has a detrimental effect on the rule of law and human rights within the region.
The investigation of crimes and collecting of evidence is crucial to the prosecution of perpetrators, without which there can be no justice. While it is usually the police who are at crime scenes and do the initial investigations, the prosecution department must take some responsibility to ensure that investigations are being done adequately, if at all, and that they are given enough information to proceed with filing charges.
The attorney general of Indonesia, however, not only refuses to undertake its own investigations, but further disregards investigations conducted by other groups such as the National Human Rights Commission, regarding the 1998 May riots, Trisakti shootings and Samanggi killings, which took the lives of over 1000 people, with many others suffering injury and damage to their property and possessions. The victims of these abuses have been awaiting justice for seven years. One of the reasons the attorney general refuses to act upon the Trisakti and Samanggi killings is that the Indonesian parliament concluded in 2000 that no violations of human rights had taken place. While this conclusion has been challenged and the parliament is set to reopen the investigation of these incidents, the attorney general’s office cannot conclusively accept or infer to such political proceedings. Only judicial bodies have the authority to decide whether human rights violations have occurred or not, and it is the attorney general’s responsibility to carry out investigations to this effect.
This lack of investigation by the prosecution becomes a greater liability when the case is proceeded with in court, as occurred in the Bindunuwewa massacre case, Sri Lanka, where all the accused were eventually acquitted by the courts due to a lack of evidence. On 25 October 2000, 27 young Tamils at a rehabilitation centre in Bindunuwewa were attacked and killed. Forty-one persons were charged with participating in the massacre. However, the courts gradually acquitted all of these persons due to lack of evidence. On 27 May 2005 the Supreme Court acquitted the remaining accused on the basis that the evidence against them lacked merit. That the massacre took place killing 27 detainees and injuring 14 others is not in doubt. That the modes of killing were ugly and cruel is also not in doubt. That the Sri Lankan government was responsible for the protection of these detainees is also well established. However, just who the actual perpetrators of this heinous crime were, the Sri Lankan justice system has been unable to resolve. The primary responsibility for this failure lies with the Sri Lankan police, who had the legal responsibility to investigate and provide the necessary evidence to secure a successful conviction. But there was also a failure on the part of the attorney general’s department. The department should not have filed indictments against persons if they did not have sufficient evidence to prove a case successfully before a court.
The absolute separation that exists between the criminal investigation and prosecution systems in many jurisdictions in Asia is highly detrimental. Criminal investigation is solely in the hands of the police, with the prosecution usually having no power to conduct investigations. Given the policing systems in the region, this does not bode well for the protection of human rights. Not only is this problematic when dealing with crimes committed by ordinary people, but it becomes worse when the crimes are committed by law enforcement officials.
In Thailand, for instance, the control of the police over the investigation and filing of charges has led to numerous instances of police abuse remaining unaddressed in accordance with either domestic or international legal provisions. These include recent incidents of police shootings as well as the 25 October 2004 mass deaths in army custody in Narathiwat province. Under Thailand’s Criminal Procedure Code, a death in custody must be followed by a post mortem autopsy and investigation into the cause of death. Under section 150, three agencies must be involved: the forensic doctor, investigating officer, and public prosecutor. After the autopsy has been completed and report submitted, it is the job of the public prosecutor to approach the court for an inquest, with a view to entering into criminal proceedings if necessary. This process should not be delayed under any circumstances, such as a politically appointed inquiry also being under way. It is the role of the public prosecutor to investigate and prosecute all crimes, including those committed by government officers, without regard to other factors. The mass killing that occurred on 25 October 2004 in Narathiwat province, Thailand due to the brutality of police and military officers however, was not so investigated. Full autopsies were not conducted, nor were officials from the police or public prosecutor reported to be present.
A commonly held excuse by public prosecutors in many countries in Asia is that where autopsies are botched or police investigations inadequate, they are unable to proceed with the case due to procedural failings or lack of evidence, thereby permitting the perpetrator to escape criminal liability. But this is no excuse. It is the constitutional requirement of a public prosecutor to pursue investigations, obtain the compliance of other necessary agencies, and take the matter into the courts. Failure to do this amounts to failure to do the job altogether. There is no substitute for this role, and under no circumstances should the public prosecutor be obstructed from performing this duty.
The stalled investigation into the recent death of Sunthorn Wongdao is another example of the control assumed by the Thai police, with little room for the prosecution to manoeuvre. Sunthorn was found dead in Bang Yai district, Nonthaburi province, on 21 May 2005. Sunthorn is said to have hidden in a house after being accused of shooting his wife and father-in-law in Bang Khunthien district, Bangkok. Police from that district claim that after they surrounded the house, Sunthorn committed suicide rather than surrender. But Sunthorn’s brother believes that the police killed him. Investigators from the Central Institute of Forensic Science support this view; neither the condition of the victim’s body nor the crime scene suggested a suicide. In fact, the victim had four bullets through a lung and one through his head. The gunshot wounds appeared to have been fired by another person at close range. Furthermore, the crime scene had allegedly been tampered with. The body of the victim seemed to have been turned over, and evidence organized to suggest a suicide. The police however, continue to insist that it was a suicide, and to get the matter before a judge it must go through the police. The power enjoyed by the Thai police in pursuing or neglecting cases is an enormous barrier to the exercise of basic criminal justice. In fact, this power completely subverts the whole judicial process.
Another common defect of the prosecution system throughout Asia is the considerable delay in indictments and hearings taking place. For Sri Lankan rape victim Rita, not only has this delay meant that the perpetrators continue to enjoy their liberty, but also that she has had to prolong her suffering with numerous hearings. Rita was a grade ten student when she was brutally raped by two young men, Rameez and Piyal Nalaka on 12 August 2001. Rita was forcibly abducted by the two men as she was walking home after attending Sunday mass and confirmation classes at St. Patrick’s Church in Talawakelle at about 2pm on August 12. She was raped by both men inside a vehicle and dropped off near the Hindu Kovil in Talawakelle at about 6pm that evening. With great difficulty Rita managed to report the incident to the police and identify the perpetrators, who were then arrested. Rita was taken to the Kotagala Hospital and later to the Nuwara Eliya Hospital for a medical check-up and was discharged from the hospital on August 16. When the case was brought to court on August 28, although Rita’s lawyer objected to bail for the perpetrators, the police did not object, influenced by political pressure. The judge thus ordered bail for the accused after a heated argument between the two counsels. Rita’s case was heard in the magistrate court of Nuwara-Eliya numerous times between August-November 2002 and was finally committed to the high court in November 2002. But the case was never called at the high court. The attorney general’s department was contacted on 26 July 2003 regarding the case, to which they responded on 19 January 2004, stating that they will take action. The case was then returned by the registrar of the Nuwara-Eliya Magistrate Court on the request of the attorney general’s department on 22 October 2004 while it was being prepared to be sent to the Badulla High Court. There are suspicions that someone is trying to cause additional delays.
In the Philippines as well, delays in cases are common and are a result of either direct or indirect actions by the prosecution. For instance, five young men who were arrested, tortured and illegally detained in 2003 are still awaiting a verdict from the court, as their trial has been continuously postponed or cancelled over the last two years. Tohamie Ulong and Ting Idar (both minors), together with Jimmy Balulao, To Akmad and Esmael Mamalangkas, were arrested on 8 April 2003 in separate joint police and military operations in connection with bombings at the Davao International Airport and Sasa Wharf in Cotabato City. Upon arrest, they were tortured into admitting involvement in the bombings. They were blindfolded, subjected to electric shocks, beaten, and experienced dry and wet methods of suffocation. They were then illegally detained at the headquarters of the Criminal Investigation and Detection Group in Davao City for several months before being turned over to the city jail. It was only in the latter part of 2004 that the victims were arraigned. A pre-trial was set for 2 December 2004, but was postponed. Since December 2004, the pre-trial has been postponed on several occasions. On 4 January 2005, it was postponed due to the existence of two sets of suspects in the same case. The judge had to order the City Prosecution Office (CPO) to decide who among them would be tried first. On January 7, the CPO decided that the five torture victims would undergo trial before the new suspects. On January 18, the hearing was cancelled due to the absence of the prosecutor, who was in hospital. Finally, on March 31 Judge Paul T Arcangel of the Regional Trial Court Branch 12, Davao City ruled that the trial should proceed. The next hearing, set for June, was also postponed, as the police and their witnesses failed to appear because they did not receive notice or a subpoena from the court. A July 25 hearing was again postponed for the same reason: the prosecutor’s failure to ensure the appearance of the complainants and witnesses at scheduled hearings.
Yet another reason for the delay in prosecution in many countries can be attributed to the lack of infrastructure and personnel. In its recent written statement to the 61st session of the UN Commission on Human Rights, the Asian Legal Resource Centre (ALRC) noted that in India many courts do not have sufficient prosecutors to represent cases as and when they are taken up. In a local Magistrate Court in Wadakkanchery, Kerala State for instance, prosecutions were stalled for years due to the fact that the only prosecutor available was on deputation from another court. Only when this officer had enough spare time would he turn up at the Wadakkanchery court. By the end of one year the number of criminal cases pending disposal before the court was so large that it will take several years to clear off these cases, given the fact that every year the number accumulates to the existing backlog. The lack of basic infrastructure within the entire justice system is another crucial issue that causes delays and inefficiency. When a prosecutor’s office wants to communicate with a particular police station, there is no mechanism available other than the initiative of the prosecutor to spend from his own pocket or to make the interested party pay for this communication if the entire proceedings are not to be stalled. This lack of basic infrastructure not only results in the delay of proceedings but is also a root cause for corruption.
Adequate witness and victim protection is essential for prosecutions to be successful. Furthermore, it is the prosecutor’s responsibility to ensure that if and when threats are made against those involved in legal proceedings, the perpetrators are punished. But although threats to witnesses in order to protect the accused are common in many Asian countries, particularly when persons are witnesses and/or victims of crimes committed by law enforcement agencies, few countries are able to provide effective protection to their citizens.
While the Philippines law provides for witness protection, it is not being enforced. In a 31 May 2005 letter to the AHRC, Police Director of the Directorate for Investigation and Detective Management at the national police headquarters Marcelo Ele Jr admits that the main obstacle to solving two recent killings in Camarines Norte, Luzon is the lack of witnesses. In the case of Ernesto Bang, an organizer in a peasant organization who was shot dead at the door of his house on May 10, “Relatives of the victim¡K are no longer interested in filing the case due to the absence of a witness”, Ele states. As for Joel Reyes, a political party organizer who was shot dead by a gunman posing as a passenger in his tricycle, “no witnesses had come out in the open for fear of reprisal”. In a May 30 letter, Paquito Nacino, regional director of the Commission on Human Rights in Tacloban City, Visayas revealed that it had set aside its investigations into three murders there for the same reason. According to the Commission, a witness to the March 14 killing of human rights lawyer Felidito Dacut “is nowhere to be found”. Meanwhile, the relatives of peasant movement leaders Fr. Edison Lapuz and Alfredo Malinao, who were killed in a May 12 shooting in Leyte have been “uncooperative and shown unwillingness to make any written statements”. The wife of Fr. Lapuz, who witnessed his killing, “requested to give her more time to decide [about complaining] as the assailants are still unknown to [the family]”.
Sri Lanka does not have a witness protection programme and it has been stated that in 85 per cent of criminal cases, witnesses do not show up as they fear for their lives. This fear is founded on the recent killings of several witnesses and complainants against the police: Gerald Perera was killed just a few days before he was to give evidence in a police torture case. The culprits have now been arrested: three police officers who are the accused in the torture case. Another torture victim, Channa Prasanna, in whose case an inquiry was being conducted, was kidnapped and narrowly escaped a murder attempt. While two cases regarding these incidents were ongoing in the Magistrate Court of Negombo, a further attempt was made on his life at midnight as he was sleeping, but Channa awakened and was able to run away. Complaints have been made regarding this as well. In the case of Lalith Rajapakse, there were numerous threats on his life and he is at present in hiding, while there is a police guard to protect his family and neighbor ULF Joseph, who was also threatened with death for helping the torture victim. Amarasinghe Morris Elmo De Silva, who was allegedly tortured by some officers of the Ja Ella police station, had to flee the country due to threats to him and his wife because of a case filed against the perpetrators at the Negombo High Court. Despite the numerous appeals and complaints in the above cases, government agencies have failed to provide adequate witness protection ensuring the security and well being of the victims. They have also failed to interdict the officers against whom inquiries are pending. The brutal and criminal behavior of such officers is thus allowed to take place with impunity, while the personal security of citizens is callously abandoned.
Prosecutors must be independent and impartial and must focus on achieving justice, particularly when dealing with crimes committed by law enforcement officials, which are graver in nature and consequence than those committed by ordinary civilians. When their work is based not on legal principles but on political or other influence, they are abusing their power; unfortunately, this is a common occurrence within Asia.
Partha Majumdar disappeared on 5 September 1997 after witnessing the shooting of Suresh Barui in Akrampur, West Bengal, India by police officers from the Habra Police Station. During the police firing, Partha was injured in his leg and was taken away by the police. In the days that followed, the victim’s family made many efforts to locate him, to no avail; the police claimed that Partha had never been arrested by them. In January 1998, the West Bengal High Court ordered the West Bengal Human Rights Commission (WBHRC) to undertake an investigation of the family’s claims. The WBHRC recommended the West Bengal government to instruct the Criminal Investigation Department (CID) to initiate a case against those responsible for Partha’s disappearance. The CID began investigating this case, but it did not make any serious effort to arrest the accused. Instead, 11 accused police officers were granted anticipatory bail on 12 December 2000 without any objection from either the CID or the public prosecutor, even though their charges were non-bailable. Since then, the main accused Sunil Haldar has held the post of Additional Superintendent of Police, Malda, Murshidabad district. All the other accused are also still working as police. After several preliminary hearings, on 4 September 2004 the Additional District and Sessions Judge, 1st Court at Barasat, North 24 Parganas finally decided that the 11 officers should be tried. Partha’s family alleged that during those hearings the prosecutor deliberately made mistakes regarding the date of the incident and the names of the places in the legal documents, to create confusion and delay. Furthermore, the prosecutor did not object to the defense counsel appearing for the accused being state government empanelled advocates, even though under domestic law public prosecutors are prohibited to represent the police in a private capacity. Partha’s family also stated that in court on September 4, the prosecutor allegedly threatened the victim’s mother and elder brother in court. In response, Partha’s brother, Mr Dipankar Majumdar, submitted a complaint to the Calcutta High Court. Although the high court ordered the removal of the public prosecutor and security for the complainants, nothing has been done.
The role of the judiciary
The judiciary is the last resort for citizens seeking justice, particularly when it is other state agencies that have violated their rights. When the judiciary itself ignores human rights and participates in the abuse of power–as is common in many parts of Asia–it becomes a serious impediment to the effective implementation of human rights in the region.
Independence of the judiciary stems from the notion of the separation of powers, whereby the executive, legislature and judiciary form three separate branches of government, which can constitute a system of checks and balances aimed at preventing abuses of power. This separation and consequent independence is key to the judiciary’s effective functioning and upholding of the rule of law and human rights. Without the rule of law, there can be no realization of human rights, which has been the focus of discussion throughout this book. The role of the judiciary in any society must be to protect human rights by way of due process and effective remedies. This role cannot be fulfilled unless the judicial mechanism is functioning independently, with its decisions based solely on the basis of legal principles and impartial reasoning.
Institutional independence requires the judiciary to be able to function without any influence from the government or other state agencies. This is usually necessitated by either the constitution or other legal provisions in all but socialist countries or those with military dictatorships. However, throughout Asia, it is the practical realization of this principle that is more problematic. This can either be because legal provisions themselves are shaky, or that they are not being enforced as they should be. In its written submission to the 61st session of the Commission on Human Rights for instance, the ALRC stated that in Sri Lanka the Constitution of 1978 shifted power very much in favour of the executive president, to the detriment of the parliament and the judiciary. Though the constitution theoretically accepts the separation of powers, in actual fact the type of power arrangement it contains relegates the judiciary, including the Supreme Court, to a lesser position. The judiciary has very limited powers over judicial review.
Similarly in Cambodia, while the constitution accepts judicial independence, the political and legal structure that existed prior to the temporary UN government of the early 1990s remains in place. In other words, the courts function as an arm of the government. The present-day judges have associations with either the military or political parties; they are bound by circulars from the ministry of justice; most are not properly qualified; socialist trials are still the norm–it is presumed that if a person has been arrested, there is enough evidence to find them guilty. Furthermore, both the appeals and supreme courts are ineffectual.
In India on the other hand, while the principle of judicial independence is accepted legally, there is no implementation. For instance, although the Criminal Procedure Code was rewritten in 1973 with the express intention that the judiciary be severed from other parts of the government, in West Bengal the lower judiciary is largely controlled by the police. In fact, the police there control almost all aspects of criminal proceedings, whether arrest, conviction, imprisonment or death.
The Beldanga police in Murshidabad district, West Bengal blatantly disregarded March 2005 court orders regarding the filing of a complaint and subsequent investigation of the death of Saidul Mullick, a potato vendor. The police ignored two separate court orders regarding this case, and finally even stated that they had no intention of carrying out investigations as they had decided that Mullick’s death was a case of suicide. Mullick left his house on 29 November 2004 with two business partners and Rs 70,000 (USD 1600) in his pocket to purchase potatoes. When Mullick had not returned in three days, his wife lodged a complaint with the Beldanga Police Station. The next day, his dead body was found on the railway tracks near the Rezinagar Railway Station. The railway police seized the body and registered an unnatural death after conducting a post mortem. However, the post mortem report did not reveal the actual cause of death, nor whether it was a murder or suicide. When Dilruba went to the Beldanga Police Station to claim her husband’s body and to file a First Information Report against his business partners, she was not only refused by the police personnel but also threatened that they would impose false charges on her if she did so. Dilruba then took the case to the district magistrate and Indrila Mukherjee, the Sub-Divisional Judicial Magistrate, directed the Beldanga police to register a case and submit a report, which they failed to do. On 29 March 2005, Dilruba complained that the police were refusing to file her complaint regarding her husband’s murder and were trying to cover it up by insisting that it was a case of suicide. Sub-Divisional Magistrate Yasmin Fatema then ordered the Beldanga police to file the complaint, conduct an enquiry and report back to the court. However, the Beldanga police deliberately disobeyed the court’s order and made an excuse that the officer-in-charge, Arun Kumar Das, was on leave and it was not possible to pursue the matter in his absence. It was later found that he had been on duty at the time. When a local human rights group spoke him, he categorically stated that though the Beldanga police received the judicial orders, they had not complied with them and would not do so in future because the case was one of suicide. In the meantime, the Superintendent of Police for Murshidabad District said that the inquiry was over and it was found to be death by suicide and not murder.
Even the Supreme Court of India is not exempt from such undermining of its authority, as evidenced by the Uttaranchal state government’s non compliance with its orders regarding land rights. Over eight months after the Supreme Court declared that around 150 Dalit families in the Ambedkhar settlement have legal rights to over one thousand acres of land in Kashipur sub-district, Uttaranchal, the state government has not yet complied with the order. Although the Dalit community of Ambedkhar settlement had been legally tilling the land in question for over thirty years, in 1992 a local government official declared it to be ‘surplus land’ under state law, which means that legal rights to the land could be granted to the villagers. However, after that a local company called M/s Escort Farms Ltd contested the granting of title in the Allahabad High Court. In the meantime, the director of the company used his local influence to have the villagers violently and illegally evicted in 1993 with the help of local police and officials, and their village demolished. Over 80 of the villagers were detained for eight days on charges of disturbing the peace. Nonetheless, in May 1995 the court decided against the company and ordered it to pay one million rupees in compensation, to be used for the rehabilitation and resettlement of the villagers. The company appealed, and the case went to the Supreme Court, which finally gave its decision, also in favour of the Dalit villagers, in February 2004. The court ordered unequivocally that the state take control of the land with a view to returning it to the affected community. However, the state government has to date failed to act to see that the land is returned, despite the efforts of local human rights organizations to raise attention to the matter.
The judiciary in Nepal is undermined to the extent that court orders to release those arrested and detained arbitrarily by both police and military forces are simply ignored, with the persons being immediately detained as soon as they step outside the courts. In fact, many individuals have stated they prefer to remain in police or judicial custody, rather than be released only to be immediately rearrested, particularly by the military. In June 2005 at least 32 political activists and human rights defenders had been rearrested in violation of court orders since King Gyanendra’s coup of February 2005. Even prior to the coup, however, Nepal’s judiciary was weakened. For instance, four persons were arrested as soon as they stepped out of the judge’s chambers at the Morang District Court on 14 July 2004, while in the presence of four lawyers from the local bar association. The four persons Yek Raj Basnet, Khagendra Sambahamfe, Ram Bahadur Ingaram and Tek Bahadur Bista were initially arrested nine months earlier and held for ‘preventive detention’ under the Public Security Act. That the judiciary cannot safeguard the authority of its decisions or prevent the security forces from abusing the legal process indicates the failure of the judicial system in Nepal.
Together with institutional independence, it is essential that judges are also guaranteed the independence to undertake their work effectively. The two are obviously linked, and if there is no institutional independence, there is little chance of there being any individual independence. Both entitle and require judges to ensure that judicial proceedings are conducted fairly and the rights of all parties are respected; both require that judicial accountability is upheld. This is particularly important when it comes to senior members of the judiciary, such as chief justices or the presidents of apex courts. They have greater power that can be abused, as well as the fact that their conduct will not only be observed by the public but by their junior colleagues.
For instance, public opinion in Sri Lanka sees Chief Justice Sarath Silva responsible for the lack of justice within the country and the collapse of rule of law. Lawyers typically claim he intimidates them when in court, and threatens to debar them from practice, especially in human rights cases. Others accuse him of manipulating panels and dates of hearings in a manner that casts doubt on the objectivity of proceedings. In a lengthy book entitled The Unfinished Struggle for the Independence of the Judiciary (2002), prominent journalist Victor Ivan has exposed extensive misconduct and abuse of authority by Silva both as Attorney General and Chief Justice. Most recently Nuwara Eliya District Judge Prabath de Silva resigned in protest against the Chief Justice. In November 2003, not for the first time, an impeachment motion was filed against the Chief Justice–the only avenue by which he may be investigated–with the signatures of about one hundred members of parliament. However, the Sri Lankan President exercised her political power to protect him. Thus, serious allegations against the highest judicial officer in the land were reduced to political bargaining chips. Meanwhile, a survey conducted by a reputable organization found that the public perceives the judiciary to be the second most corrupt institution in the country. The Sri Lankan judiciary is thus incapable of addressing its own institutional defects. With its highest member defending himself from allegations of misconduct, internal reforms cannot even begin. The judiciary’s inability to respond to widespread criticism is demoralizing both the profession and the country’s citizens. As a result, people are increasingly seeking to resolve their grievances outside the law, and so crime is on the increase.
Individual independence also requires that judges are free to make decisions based solely on legal principles, free from fear of criticism or reprisal. In several Asian countries, the main obstacle to this independence is the fear of reprisal. For instance, judges in Sri Lanka increasingly face threats in carrying out their duties, as the ALRC wrote to the 61st session of the UN Commission on Human Rights:
On 19 November 2004 a senior high court judge, Sarath Ambepitiya, was assassinated in Colombo. This was the first assassination of a high court judge in the history of the judiciary in Sri Lanka. A few months earlier, another high court judge was reported to have been attacked in an attempted rape. Both instances highlight the lack of protection for judges in Sri Lanka. In a statement by the Bar Association of Sri Lanka it was pointed out that Judge Ambepitiya had received threatening telephone calls in the days prior to the assassination. Although these calls were reported, no security measures were taken. In fact, three days prior to the killing, protection previously provided to the judge at his place of residence was removed. The Bar Association also stated that at the time of the murder the telephone lines of the judge’s residence were disconnected; as a result there was a considerable delay in the police arriving at the scene of the crime. Later, during the investigations, it was revealed that the alleged mastermind of the murder had connections with several senior-level police officers. The Bar Association has called for a commission of inquiry into security matters related to this murder. In the case of the judge who was attacked, it was found that the police guard assigned to her residence for security purposes was asleep at the time of the incident.
While judicial independence requires that the judiciary is able to function effectively without undue interference from political or other agencies, judicial impartiality requires the judiciary to base decisions on facts and in accordance with the law. Judges should thereby not have any preconceptions regarding issues they are deciding upon, nor should they favour either of the parties to the dispute. This includes the arbitrary use of contempt of court proceedings.
The nexus between judiciary, police and government officials is most clearly visible in Burma. The ALRC stated to the 61st session of the UN Commission on Human Rights that
The experience of U Ohn Myint and Ko Khin Zaw, both of whom were charged with criminal defamation for complaining of forced labour is indicative. Although the Government of Myanmar outlawed the use of forced labour in 1999, reports of the practice continue to be widespread, and attempts to lodge complaints in accordance with existing legal provisions have proved futile. When Ko Khin Zaw and U Ohn Myint filed a complaint in the Henzada Township Court, Ayeyawaddy Division in July 2004 after being jailed for failing to do sentry duty at a village monastery, their complaint was summarily thrown out of the court. However, the same judge then entertained a complaint of criminal defamation by the vengeful local administrative officials. The two villagers were found guilty, and were offered a fine or six-months’ imprisonment. In an act of defiance, the two men chose jail.
In another instance, on 18 April 2004 Police Corporal Aung Naing Soe came to Thida Street, in Thida Ward, Kyinmyindaing Township, and began to clear away homeless people present in the vicinity, including one Ma San San Htay, a betel nut seller, who quarrelled with him. He then hit her in the mouth, grabbed hold of her hair and before many witnesses dragged her along the road while she cried out for help. When 26-year-old Kyaw Min Htun intervened, the police officer hit him, whereupon Kyaw Min Htun hit back, breaking the officer’s nose. Kyaw Min Htun was then taken and charged under section 333 of the Penal Code with inflicting violence on a public servant while in performance of his duties. On 24 June 2004, the Kyinmyindaing Township Court found Kyaw Min Htun guilty, and sentenced him to two years imprisonment with hard labour…
This lack of impartiality connotes a lack of institutional and individual independence. Judges in Burma are rarely appointed on the basis of merit or qualifications, rather, they are appointed based on their relationship with those in power. Without this independence, it is impossible for the judiciary in any country to function as it is meant to. If it does not function in this manner, there is no hope for the rule of law to flourish, and instead violence and impunity will be rife. Furthermore, if citizens do not have faith in their judicial institutions, they themselves will seek other ways of obtaining justice, which may in turn lead to more violence. It is for this reason that it is as crucial for the judiciary to be seen as being independent as it is for it to actually be so.
The way that judicial appointments are made and discipline enforced greatly affects the institutional environment. The appointment, promotion, dismissal and discipline of judges should be based on professional qualifications, merit and personal integrity, not on any other influences or bases. The same can be said for security of tenure and finance. However, at present there is a great lack of judicial accountability in many Asian countries due in part to the lack of standardized procedures for their appointment and discipline.
The absence of the rule of law in so many Asian countries means that there is no supremacy of law, as well as that the law does not meet the highest standards of human rights, but rather is becoming increasingly repressive. For this reason, all institutions of justice are suffering. The deterioration of these institutions together completely undermines the administering of justice, and with it, fundamental human rights.
This article consists of edited text from a new book released by the Human Rights Correspondence School of the Asian Human Rights Commission, Rule of law and human rights in Asia, (February 2006). To obtain copies contact: hrschool@ahrchk.org.
