A Statement by the Asian Human Rights Commission

Asian Human Rights Commission

The international community took an important step this Sept. 24 when the secretary-general of the United Nations, Kofi Annan, urged the Security Council to take up rule of law issues. There is now global understanding that without the rule of law the lofty ideals of the U.N. Charter are irrelevant. Without the rule of law, attempts to ensure human security and address world problems, such as terrorism, are meaningless.

The international community and United Nations are at this time trying to deal with a sense of immense failure. The end of the Cold War has not resulted in a peaceful world. The demise of ideological geopolitics has instead exposed the sheer lawlessness that prevails in most countries.

The Asian Human Rights Commission (AHRC) has pointed out since 1995 that countries throughout Asia lack the fundamentals of the rule of law. Across the region, States enact regulations that enable the arrest and prolonged detention of people without charge. A fair trial is routinely denied; lawyers are intimidated; and fear is widespread. As a result, most people in Asia live in a state of extreme insecurity and are unable to envisage a way out.

In Cambodia, for instance, the United Nations peace mission failed to rebuild basic judicial and administrative institutions. Ten years later the country remains in a state of anarchy. Crime and the abuse of power have in no way been lessened by the efforts of the international community in this country.

In Indonesia, 33 years of dictatorship utterly destroyed all basic institutions for the rule of law. Corrupt soldiers and their appointees took the roles of police and judicial officials. The legal system became a political plaything. Since the dictatorship fell, some genuine attempts to restore basic democratic institutions have failed, for, to date, there are no functioning institutions to ensure the rule of law.

Even India, which boasts of the judicial system it inherited from the British colonial regime, has failed to achieve an effective rule of law. The November 2000 appointment of the Committee on Reforms of the Criminal Justice System (the Malimath Committee) was an admission of serious systemic failure. However, what the committee recommended in May 2003 was not the strengthening of institutions to ensure the rule of law but the abandoning of even its fundamental principles, including the presumption of innocence and proof beyond reasonable doubt. In fact, throughout all of South Asia, public confidence in the institutions of criminal justice collapsed a long time ago. The distrust that took its place has now been aggravated by modern circumstances in which sophisticated crimes are a daily threat.

AHRC has documented and analysed these conditions in detail, such as in its 2000 book Decline of Fair Trial in Asia; a bimonthly journal on practical implementation of human rights, article 2; and frequent regional gatherings. From these experiences, it deeply appreciates the secretary-general's recent address and subsequent Security Council deliberations. It is to be hoped that the international community will now work with renewed vigour towards the implementation of rights guaranteed by U.N. treaties. In particular, all state parties to the International Covenant on Civil and Political Rights (ICCPR) are obliged to provide the legislative, judicial and administrative means to achieve the rights it stipulates. However, the mechanisms established to monitor implementation of them, to date, have been grossly inadequate. These must be significantly reformed if the secretary-general's vision is to be realised.

For now, civil society must take the main responsibility in overcoming obstacles to the rule of law. Only civil society can build the pressure needed for governments to ensure that policing, prosecution and judicial institutions are independent and well funded. Only civil society can ensure that state officers defying the rule of law will be brought to justice. Therefore, it is incumbent on all civil society organisations in Asia, particularly in the human rights community, to rise to this important call by the secretary-general. There is, after all, good reason for them to do so: ultimately, they are the ones who suffer most when the rule of law is absent.