Basil Fernando, Executive Director, Asian Legal Resource Centre
I had the privilege of being a Senior Officer in the United National Transitional Authority for Cambodia (UNTAC) from its inception, and also with the Human Rights Centre that we started immediately thereafter. In this I see the problem we are trying to discuss here. Whether there was any capacity to interfere in the administration of justice under the UNTAC mandate became a debatable issue because there was no clear indication. It was more or less decided that UNTAC did not have a mandate. Today, seven years later, I have a very close connection with Cambodia; I go there almost every 3 months. Yet after such a massive intervention Cambodia has a Penal Code with only about 40 offenses, with a set of judges who do not have education up to Grade 10, where there is no police system. Now how is democracy going to function? We were there to establish a foundation—of course miracles cannot be done—of a liberal democracy. But up to date, this is the situation. So how can we demand a fair trial when there is no system of courts that is in any sense credible? That is the sort of fundamental issue we are facing in many countries.
Now let me take as an example a country which was considered at one time a liberal democracy, my own country, Sri Lanka. We had, due to whatever the reasons, over 30,000 disappearances within a period of over four years. Actually, this figure of 30,000 is the number of cases fact-finding commissions inquired into; 16,000 more were never inquired into. But the issue really is this: even where there was a certain willingness to act on this, no prosecution or anything took place. Why? There have been no investigations. The UN Working Group on enforced and involuntary disappearances gave 11 recommendations that people in Sri Lanka have now carved into a stone for a roadside monument to the missing. That is just to remind passers-by that there were such recommendations. But none of those were met. It was not purely because of lack of political will, but also systematic fault. Without investigations how can there ever be criminal prosecutions? So there is, linked with the whole matter of judiciary, subtle displacement of the judiciary by shutting the doors in the police and in the prosecution system. You shut the door there, and the case would never get into the courts. Now this is a fundamental problem in many part of Asia and it is being subtly done. While ratification is going on, and while externally there is a lot of compliance with these instruments, internally there is no mechanism to investigate violations.
For me article 2 is a great idea. If a state signs up to these rights, you provide an adequate remedy. An adequate remedy, a judicial remedy, is to take place through the police, through the prosecutions and then through the judiciary. The judiciary sometimes consists of qualified people and people of higher moral authority who often would fight back if their integrity is challenged. But it is easy to manipulate the police and it is easy to create a vacuum by not having a proper prosecution system. These do not get examined by any international body, not only to criticise, but to provide assistance in various ways to get these institutions in place. Even where a law is made for the protection of some rights, this is no guarantee. Take the case of the Dalits in India: laws have been made and there have been attempts to guarantee constitutional rights but you have officers in the police force from upper castes who attempt to change this so prosecutions don’t take place. As a result 240 million people still do not get humane treatment.
These are not exceptional cases. There is an ideological belief that the efficiency of the executive is what matters and this gets supported. Singapore is not a poor country. Judges in Singapore are higher paid than others. So it is a myth that only the payment of judges would make them implement the law. In Singapore, the lower ranks of the judiciary come from the civil service, and they go back to the civil service. There is no permanent cadre of judges building up. So for the higher courts you select people, sometimes very honourable people, but there is no tradition of the independence of the judiciary. As a result the very discourse has changed, the discourse on the basis of separation of powers, and on that basis the whole foundation of the International Covenant on Civil and Political Rights (ICCPR) is itself under challenge. That is why this is not just about a publication. This publication only highlights a problem in order to get a more serious discussion so that when we come to the Commission on Human Rights here, and other bodies, we will have more examination of remedies.
We owe to ourselves as a human rights community to examine where we ourselves have failed. What are our limitations? Why can’t we make progress? In Cambodia 2 billion dollars were spent for UNTAC. I was in charge of human rights investigations, and I could take a helicopter anytime and go to a place where something had happened. We arrested four people during that time under our mandate, but all four people were eventually released. We did not have any machinery to deal with anything. Actually we were accused of violating basic human rights principles as we were keeping people under arrest without being able to provide a trial.
So we learned these lessons, and they were highlighted recently in the present discussion on the Khmer Rouge tribunal. In my view, the UN made a correct decision in not going ahead with that, because in a country where you cannot guarantee an ordinary citizen an inquiry into murder how are you going to have genocide inquired into? Within one year of our work during UNTAC, “sathi manu”—human rights—became a household term in a country where there was genocide. But today when we try to take classes people ask “Where are those rights? If something happens to me—and it happens to many—where do I go? Where does it end??I think the human rights community owe an obligation of conscience, as was mentioned yesterday by the High Commissioner, to take the need for adequate remedies very seriously, and if we do we can make progress. Not all governments are deliberately depriving people of rights. There is willingness to cooperate when the cooperation is comprehensive, when the cooperation is intelligent and when the cooperation involves many aspects needing discussion.
If such an approach proceeds, I think the development of human rights norms and standards that were achieved in the last 50 years—a phenomenal and great achievement—can be transferred to a practical level. In the next 50 years we must devote ourselves to this.
Comments arising out of questions from the floor
Just a brief comment on the questions of urgency and remedies. Unless remedies are worked out into details, urgency will always remain and it will not be answered. As for the question of torture and also disappearances, people have lived through such things and waited for years without any solution because, as the Deputy High Commissioner said, if the fundamental principle is commitment, it also comes from the society. It is the enormous debate that went on for about 200 years in Europe that created some of the basic principles of human rights. In the 18th century there was already a debate on torture. Before that Europe accepted torture as a principle. Unless society intelligently discusses these issues—going from macro human rights to micro human rights—this urgency will not be answered. And we will suffer quite a lot while we know about very urgent situations but are unable to do anything, like millions of people around the world.
——————————————————————————–
* Edited text of a speech at the International Launch of article 2
