Annexture 4

Central to this statement is the over all consideration that in Asia, the violations of the Civil and political rights are deeply linked with the violations economic, social and cultural rights. To illustrate, an expert trying to help the tribal people may himself be tortured, imprisoned, or even assassinated due to his work. Some one who conducts an employment training course for women below the poverty line may face the same fate. A husband who protests against professional negligence or lack of medical facilities which led to his wife’s death during child birth may end up being in a prison without a trial for a long time. One who works for basic wages, working conditions in free trade zones; one who helps a group of peasants to get a fair price for their vegetables and other products, or tries to highlight the suicides of peasants due to unfair loans, one whose work is related to environmental rights , women’s rights, rights of dalits - so called low castes, a lawyer who promotes due process as against corrupt police officers or even the one who tries to spread literacy among the poor may be engaging in activities forbidden in their societies and therefore may lose their civil liberties. Once these two aspects of human rights are de linked, we may be talking about any other place but Asia.

Protest, agitation, and teaching of human rights norms contained in the UN charters are not the only legitimate activities of the Human Rights movements. Achieving social changes on the basis of building consensus is an integral part of the work of the human rights movements. Here lies the real link between economic, social and Cultural rights and civil and political rights. (I deliberately use the movements, since there are many movements.) UN Human Rights Commissioner, Jose Ayala Lasso has spoken about Consensus as against confrontation, in a speech he made in Vienna last year. Of course, these two approaches are not mutually exclusive. Everything depends on the context and the actual options you have. Professor Upendra Baxi summed up the situation well, when he said, the paradox we are caught in, is that on the one hand we have to co-operate with state and on the other we had to fight it. My submissions will be based on this dual approach. Difference in emphasis however is useful, particularly when speaking about human rights activities in Asia. Take the case of media, since it is fundamental to any discussion on human rights in Asia. On the one hand in many countries of Asia, one had to fight for media freedoms. On the other hand the media must play greater role to inform the people of the ways to expand their freedoms, play significant role in developing enlightened public policies. Under revolutionized communication systems of our time, the potential of the human rights movements could be expanded in unimaginable proportions if the media-persons decides to do so and if the hidden agendas of the press establishments favoring limitation of rights is given up. In talking of activities, activities in the sphere of media in my view takes the first priority. An Asia based Disney land or a Hollywood on human rights? Why not.

But to come to that, one must place the discussion on activities within the context of Asia. To do that one must break the censorship that exist within the human rights discourse itself. Talking about censorship in general, it is not always masterminded by evil people. Self-censorship in particular is conditioned by habits, particularly the habitual inability to see the limits of what one once thought as right. With in the human rights discourse, there is a great resistance to going beyond, the activities relating to making of international norms and standards. Dealing with actualities relating to implementation and enforcement is often repelled or treated as not substantially central to the discussion.

May I illustrate this by two examples, both unfortunately from Cambodia. At early stages of the United Nations Transitional Authority of Cambodia, there were discussions on training judges. When the plans were been drawn, I asked, now where the judges? It was treated as an embarrassing question and main thing was to do something, without getting into complicated problems. Later, when the election was getting nearer, things in fact become complicated. There were murders of political opponents daily and other grave violations. High level pressures did not result in any arrest. The credibility of the whole exercise was at stake. UNTAC (United Nations Transitional Authority in Cambodia) gave its police the power to arrest. And four people were arrested within few days, and the murder rate dropped to zero. Prisoners were taken to court and the judge refused to hear the cases saying his minister told him not hear these cases. When contacted the minister confirmed the instructions. The prisoners had to be kept in a prison built and maintained by UNTAC. They were kept for almost eight months without any trial because UNTAC officially took up of the position that there was no competent and independent judiciary in Cambodia. However, every attempt to discuss the implications of this to human rights work has failed. If Cambodia signs one more UN convention there would be a great celebration! In fact when five Conventions were signed in September 1992 one of the signatories cynically asked the UNTAC officers attending the signing, do you have any more? I am sure there is no censorship here. So, please allow me, to mention a few problems, which are essential in placing the activities within an adequate perspective. The underdeveloped nature of state structures in most Asian countries is a major issue relating to human rights, both in civil and political rights as wel as in the economic, social and cultural rights spheres. In most developed countries state structures have developed over centuries and these are entrenched part of their social systems. Rules are made from time to time to modify or to extend the sphere of activities of these structures. The rulers are appointed to work within these rules. State officers are trained within this structural frame work and they are expected to work within the norms, standards and rules of these structures. In many parts of Asia, state structures are fragile and very limited. Cambodia is at the moment a classic example. After 20 years of civil war, out of which five years were devoted for ruthless wiping out of the past, the pre-1975 state structure does not exist at all. Today, after the election in 1993 a national state assembly had been appointed but it has to work without a state structure with binding rules and norms. The National State Assembly will have to go through a period with in which it will have to evolve its rules. In Burma (Myanmar) the same phenomenon could be seen in a different way. In 1989, a government was elected with the support of 90% of the people, but power was not transferred. The state machinery capable of ensuring the transfer of power to the newly elected government was absent. In places like Nepal where monarchy fell only recently, the struggle still goes on for making of basic social structures.

While these are more naked examples, the same problem exists in a more sophisticated way in many other Asian countries. Sri Lanka, inherited a basically democratic structure with a Constitution respecting the separation of powers. Now the situation has greatly deteriorated during the recent decades and once unimportant military apparatus has shifted its position to a central place. The power of the judiciary to review legislation and to take action in relation to the violations of peoples’ rights by the state officers is limited by the Constitution and even these limited powers are suspended often by Emergency and other public security laws and regulations. In most Asian countries, various forms of impunities have developed expressly by legal recognition or indirectly by inability to prosecute offenders. Even in countries where there is a reasonably operational state structure in the capital or in the towns, there are vast areas in the countryside, where the state exists only in a very rudimentary way. Citizens who are aggrieved have no one to complain to and have no forms of real redress. Thus, the tyranny that arises out of an incapacity of an underdeveloped state structure to deal with problems of a country and the grievances of the people, is a central concern in Asia. However, human rights discourse is directed only towards cases where the state is unwilling to deal with peoples grievances or state willingly imposes restrictions on the liberties of the people. Of course deliberate authoritarianism still remains a major problem in Asia to be fought consciously and consistently. However, the discourse on human right has to extend to the issue of underdeveloped state structures, where the state even when it is pressurized is unable deal with many problems related to civil as well as economic rights of people simply because it has no organized methods of dealing with such problems.

In dealing with state structures relating to civil as well as economic rights, the administrative structure of the state is a key factor. Often, outside the urban centers civil service and administrative structures are rudimentary in most part of Asia. Some times it is limited to revenue collection, death registration etc. The issue of civil administration is closely linked with the issue of local administration. The arbitrary and limited administrative facilities available at local government level often lead to regional conflicts which, when sometimes neglected lead even to demands of territorial separation and other acute conflicts leading to military confrontations. In many parts of Asia direct or indirect militarism that has developed is a result of the failure to develop adequate administrative machinery with in the country, to respond to the needs of the people. Years of such neglect led to the creation of perceptions, among some people particularly the young, that normal exercise of pressure on the state will not achieve the results of bringing about necessary changes to deal with their reasonable demands. Such perceptions at times lead to armed struggles, which the state in turn uses to strengthen its own military intervention. It could reach such chaotic levels where rule of law become virtually impossible. In vast areas of Asia rule of law is not regarded as a norm to abide by. This stark reality is something that the human rights movements have yet to learn to deal with. In doing so, we are forced to return to the issue of underdeveloped state structures. In many places the state has proved itself incapable of managing crime. What is worst is that police and military officers in many places are perceived by the people as negative social figures than positive ones.

In dealing with the problem of undeveloped state structures it is necessary to take into consideration many factors. Few such aspects are,

The Constitutions:

The inability develop suitable and comprehensive state structures to deal with diverse problems existing with in a countries have led to considerable difficulties including civil wars in some countries. For example, reasonable devolution of power in terms of ethnic concentration is one of the causes resulting in great crises in South Asia. Yet another classic example of crisis that could be created due to inadequate constitutional provisions is the case of Cambodia. The Cambodian constitution which was hurriedly made between May and September 1993 has already led to grave problems. The Constitutional Council which was to review legislation was never put in place. Thus when expulsion of members of parliament from the National Assembly came up, as it did within the last few months, there was no forum to contest these issues. How a debate is conducted within a national state assembly, how the links between executive and assembly, have not been dealt with in any adequate manner in the constitution. The presumption of some was that this constitution would be interpreted in terms of the French Constitutional tradition or in terms of Wesminister tradition. In Asia this presumption is increasingly invalid. There is no recognition, these two models should remain as the guiding lights for constitutions in Asia. Whether one likes it or not this is the reality in Asia.

There had been many instances when new jurisprudence has been evolved in response to local conditions. The theory and practice of social action litigation developed by the Indian Supreme is an example. (It is so surprising that there are so many Western intellectuals even among the liberals who still think that all our jurisprudential problems have been already solved by them in the West.) It is very distressing to note that global human rights debate is dominated by such thinking. I am not talking here about a revival of ancient ways. I am referring to the need of Asian initiatives to deal with contemporary problems faced by us. Human rights movements in particular suffer from blind imitation. Therefore, a development of principles and mechanisms to be enshrined in the constitution becomes an affair in which Community must get involved. This means community and its leadership by way of peoples organizations and NGOs must be sufficiently informed to be able actively and effectively participate in the local debates on the makings of Constitutions and other laws in their countries. Still the number of organizations particularly NGOs who extensively participate in these debates are limited. Therefore, their influence on such issues is also limited . Very often attempts are made by those with authoritarian tendencies to consti-tutionally legitimize the violations of human rights. This was the case of the Constitution of Sri Lanka in 1978. The provisions of public security act limiting the exercise of human rights was given recognition with in the section of the Constitution dealing with human rights itself. The initiatives to make changes in this area increasingly fall with in sphere of human rights movements.

Thus activities relating to legal reforms has to become an integral part of the human rights activities in Asia, due to historical questions mentioned above. In matters relating to women’s rights such as domestic violence, reforms will come only if there are strong initiatives from the community. This is also true on environment issues, tribal issues, minority issues, and development issues particularly relating to the poor.

Implementation: In the sphere of law enforcement too, the state structures in most Asian countries are under-developed. Cambodia may still be the extreme example. There judges cannot ensure that their orders will be enforced even on a small matter and crime investigation remains at a rudimentary level. Yet else where too, there are hardly any remedies for violations of Economic, Social and Cultural rights. If the law in Japan forbids some companies to continue their operations because they cause environmental problems such as pollution, these companies go to other places such as the Philippines where they could operate without such restrictions.

United Nations Center for Human Rights It is appropriate to mention human rights activities by referring to direct UN activities relating to Asia; Most extensive human rights involvement of the UN in Asia has been in Cambodia. From January 1992 up to September 1993, over forty UN officers were physically present in Cambodia involved in Human Rights work. They were assisted by the UN police and military forces and at times civilian UN officers engaged in other work. The work of the UNTAC Human Rights component consisted of monitoring, human rights education and making observations on the criminal justice system and suggesting corrective action. Other UN officers were engaged in activities directly relating to Economic, Social and Cultural rights, though they were not influenced by a human rights perspective. About 20 Human Rights officers worked in the provinces. The entire project operated outside the control of the UN Center for Human Rights, with a degree of autonomy to respond to local situations. Since 1993 September, a field office was started by the UN Center for Human Rights, with eight staff members stationed at Phnom Penh, and this office hopefully would remain for some time. This new approach to human rights has put the UN system of human rights to test. It has raised not only the issue of expertise, but also the conflicts between bureaucrats and experts, and the program makers and the implementors, particularly the UN Human Rights Center’s obsolete administrative system. Cambodian experience exposes the myth of Global expertise, a sort of person who could descend on an alien soil, an alien culture and an alien history and could do miracles, simply because he is armed with UN declarations and conventions. In Asia, there is a vast pool of expertise both in the sphere of Civil and political rights as well as on Economic, Social, and Cultural rights. There are eminent judges, lawyers, doctors, civil adminis-trators, ecologists, officers who had been been dealing with issues like malnutrition, experienced activist etc. Asia is also a land with a rich tradition of volunteerism. To tap these resources UN centers officials should try to over come their cultural limitations and open their eyes to rich human resources freely available.. At times one wonders whether bureaucrats prefer amateurs to experts. (This observation is not made lightly.) The need to tap on regional expertise is also valid in case of UN rapporteurs, Special Representatives etc. Overcoming prejudices is an essential part of reform of any institution, UN included.

I would suggest that the UN Center for Human Rights organize a consultation with several regional experts regarding the Cambodia field office and get their views and recommendations for the solutions of some of the besetting problems relating to this otherwise valuable experiment. Learning to consult involve a humility essential to promotion of reforms required for the protection and promotion of Human Rights.

United Nations High Com-missioner’s Office The appointment of the United Nations High Commissioner of Human Rights , has been welcomed by the human rights movement in Asia. In fact they have participated in the agitation for the making of these institutions at the Vienna Conference and before. The High Commissioner has paid several visits to Asia. His visit to Jammu-Kashmir in particular has been appreciated very much. However, most NGOs are still awaiting for a clear communiqu on the activities that the High Commissioner may undertake in Asia. If the High Commissioner’s Office is to have a significant place in the promotion and protection of human rights in Asia, he needs to build a closer link with those who are committed to human rights in Asia. It is suggested that he build an advisory body consisting of some persons highly experienced in human rights matters in a consultative capacity. Such an advisory body could be an informal body. The High Commissioner may keep this advisory body closely informed about the activities he is proposing to undertake and get their responses. There would be many in Asia who would offer their services on a voluntary basis for the development of activities related to the High Commissioner’s office. The High Commissioner may extend his patronage particularly to research activities and extensive training activities in the area of human rights particularly in relation to economic, social and cultural rights. The hotline that the High Commissioner has opened in Geneva may be a useful instrument in intervening on an urgent basis to situations where human rights are undermined. However, running of an effective hotline requires responses back to the persons who are providing information to such hotlines. Often after using the hotline one may not know what response the High Commissioner’s office might have made to such requests. Fully appreciating the staffing problems relating to this office at present, one would still hope that the facilities like hotline would not be a one-way process but a reciprocal process.

UN Rapporteurs, Special Representatives Etc. With the availability more extensive mandates for UN Rapporteurs, Special representatives etc., it may be necessary to consider more effective working methods to achieve a grater out put, as these special offices could contribute a great deal to building of consensus for social change. Role models from those who followed the big stick policy may be replaced by new models which call for comprehensive understanding where diplomacy is combined with expertise. Paying few short visits, during which many short interviews are conducted with state officers in their official capacity could hardly be a way to arrive at conclusions, where ones mandate extends to such issues as technical assistance for reforms in the system of administration of justice. When recommendations are made to improve primitive hospital conditions, it is necessary to accompany these, with more detailed suggestions of how to achieve this aim. Where observations are made to the effect that US$ 20 monthly salary of a judge is not conducive promoting independence of judiciary, it is also necessary to consider ways to get out of this situation, considering also the implications to the rest of civil service.

cent past there has been increased participation of Asian NGOs at the UN Human Rights Commission Sessions at Geneva. However, there has also been a considerable disillusionment about the effectiveness of their interventions at the Commission. In terms of the limited resources available to NGOs, questions has even been raised as to whether such participation is worthwhile. On the other hand there are others who share the view that the NGOs must find a more organized methods of making their interventions at the Commission’s sessions. It has been suggested that in November or December each year the Asian NGOs pull their resources to get their reports and other materials collected and start the lobbying much earlier. The need for some form of coordinating of activities has also been proposed. There are few training courses in Asia to acquaint Asian participants about the UN machinery relating to human rights. These training courses deal mainly with UN mechanisms and the ideal conditions within which such mechanisms are expected to operate. However, the need is also expressed for a more realistic aspects to be included into the training program making the participants aware of the difficulties involved in getting their proposals across to the Commission and the aspects of politics that are being played at the Commission sessions. The demand is for more informed participation rather than to be present as a mere gesture, thus legitimizing the limited approaches that the Commission takes regarding vital human rights issues in Asia.

Significance of an Asian Charter on Human Rights

Enormous interest has been expressed from many quarters in Asia for an Asian Charter on Human Rights. This is not for the purpose of derogating from the UN Charter an conventions on Human Rights but for the purpose of restating the principles in the Asian context for the purpose of highlighting the main issues of the human rights agenda in future. Realizing the considerable tensions that exist between different states on the issue of human rights, those who are concerned on an Asian charter of human rights are aware that the process may take some time and would require considerable groundwork. Therefore, while pursuing an agreement of states on a human rights charter, the pursuit of people’s charter has received considerable support. A draft proposed by the Asian Human Rights Commission has been discussed in many parts of Asia and has received considerable support. This is a continuous process for greater awareness building on the human rights issues ,with emphasis on the problems relating to implementation and enforcement of human rights.

Education and Training Programs on Human Rights

Intense attention has been paid by many groups and persons on the need for developing effective education programs for Asia. Attention has been paid not only for the improvement of the content of the training programs, but also for improved techniques for better communications on human rights issues. Regarding the content there is a call for much more expertise training, which may take longer periods. At present many activists participate in training programs held in Western countries. The resources may be better utilized for the many more persons if some Asian universities develop more extensive programs on human rights. It has also been proposed that ongoing human rights training programs be conducted throughout Asia for the benefit of the activists, as well as government officers. The need for training in specific fields is also expressed very often. The need to develop better manuals and teaching materials particularly in the field of economic, social and cultural rights has also been expressed. Some of this work could be done in collaboration with the human rights centers or other foundations and institutions which are involved in developing such materials. The use of modern technologies for human rights education has been expressed quite often. The model of the media unit of the UNTAC in Cambodia provides an example of how effectively media could communicate messages relating to human rights if opportunities are provided. The BBC Asia broadcast, Voice of America and other regional television and radio networks ought to think of providing greater facilities such activities. For example, about half-an-hour or even 15 minutes weekly devoted to human rights programs by these networks could have an unimaginable effect on the continent. Meanwhile, NGOs and concerned persons are interested in finding space in their own local media networks to get more time for human rights education programs. Use of video and other materials to highlight human rights issues are in the increase. Perhaps an NGO or a foundation that is completely devoted for making of such materials in various languages should be considered by human rights promoting agencies and the funding agencies. To achieve these objectives in the filed of media, including electronic media, it is necessary to provide intensive human rights training to a group of journalists from various Asian countries. This ought to be treated as a priority.

Human Rights Commissions and Human Rights Tribunals

While several governments have introduced human rights commissions in their countries still the mandates and the powers of these commissions remain extremely limited. There is considerable agitation for the improvement of these domestic mechanisms for improvement of human rights. The advisory capacity of the United Nations Human Rights Center should be extended in this field so as to provide technical assistance for the making of such institutions as well as for the proper functioning of such institutions. Meanwhile, there is also much interest on the peoples’ commissions that is where a commission consisting of well reputed eminent persons are appointed by the NGOs to conduct objective studies in cases of grave violations of human rights and to make recommendations. This may take the form of a commission or a tribunal depending on the way their terms of reference are framed. There had been many such tribunals and commissions during the recent decades in Asia. There is a call for a more permanent commission to work on this basis till governments themselves decide for an Asian court of human rights in some future day. Urgent Action on Pressing Economic, Social and Cultural Rights Issues

There is need to find ways to alert the international community on urgent issues, such as matter relating to children, malnutrition, lack of basic health facilities leading to deaths due to preventable diseases, infanticides arising out of social policies etc.and developing remedies for issues related to people living under poverty line; These need to be treated on an urgent basis as neglect of such problems lead to dire consequences. Domestic violence on women, and women’s trafficking need to fall with in the urgent action agenda. Asia-Based Center or a Foundation for Human Rights Research, Policy Development and Training Activities

Consensus building for achieving human rights objectives call for the effective development of more informed and sophisticated approaches. Such sophistication call for geographic proximity as well as competence of the persons involved. This could be achieved if the UN, bilateral agencies, non-governmental funding agencies as well as NGOs could participate through a foundation or center based in Asia. Given the political considerations as well as UN Human Rights center’s own unresolved problems it may be more advisable to think of some other working arrangement for example like the Agency for Voluntary Service (AVS) at Hong Kong, which was an NGO, though funded by UNHCR. Such arrangements provide for greater flexibility for work, greater out put and high quality ,as the work will be subjected to greater scrutiny. There could be greater openness, and accountability. The specifics could be worked out in consultation with many parties, once there is agreement on this matter. In fact such a foundation or a center could work entirely outside UN too, as the example of HURIGHTS Osaka shows. Most of the work which was done earlier with great constraints arising out of mandates etc., could today be done with a greater output possibility and probably less cost, if facilities now available particularly in the communication sphere are imaginatively and innovatively used.

Finally, the persons who have been deeply involved in human rights activities in Asia are very much interested in an open debate on the future of the UN mechanisms of human rights. Such a open debate is a vital necessity for creating greater awareness of the possibilities of the human rights approach for consensus building to achieve the human rights mentioned in the UN conventions. It is hoped that United Nations High Commissioner for Human Rights could work towards an Asian event similar to the Vienna Conference even if it is limited to the NGOs to encourage an open debate on many issues relating to human rights regarding which many people share strong opinions. The encouragement of this dialogue itself would be an activity directed towards a new approach to human rights, that is for development and consensus leading to a resolution of basic human problems.

- B.F., Asian Human Rights Commission

[A paper presented at an experts’ meeting organised by HURIGHTS OSAKA group in July 1995 at Osaka, Japan.]