Human Rights Challenges in AsiaPacific: Does Sri Lanka Show a Way

Out?

by Laksiri Fernando
( July 28, 2015, Sydney, Sri Lanka Guardian) Let me begin by briefly overviewing the
general status of Asia-Pacific on key issues of human rights. This region with 45
countries and territories is home to over 4.3 billion people, and is most complex in
terms of ethnic, religious and cultural diversity. Therefore, any attempt to generalize is
not an easy task. Depending on their priorities or the way they perceive human rights,
different international human rights organizations appear to differ on their
assessments. Among these organizations are Human Rights Watch, Amnesty
International and the Freedom House. Let me first quote what the Freedom House has
to say about the human rights situation for the past five years.
Over the past five years, the Asia-Pacific region has been the only one to record
steady gains in political rights and civil liberties as measured by Freedom House.
Although it is home to China, where over half the worlds Not Free population lives,
and North Korea, the least free country in the world, a number of Asia-Pacific countries

have made impressive gains in the institutions of electoral democracyelections,

political parties, pluralismand in freedom of association.[1]
Whatever the weaknesses of the methodology or approach of the Freedom House, the
above statement encapsulates the general situation in the region. It marks the steady
gains achieved, in general terms, which could be an encouragement for human rights
defenders. In contrast, Amnesty International noted a regressive trend in the region,
particularly in 2014, in its State of the Worlds Human Rights (2015).
As the Freedom House assessment emphasized, China still remains the most problematic, nearly 1.5 billion people
live without political rights or civil liberties. North Korea is the most despicable, denial or suppression of both

political/civil rights and basic economic/social necessities are quite conspicuous. The
influence of China as an emerging political giant and a successful economic story
could be considered unfavorable to human rights development in the region as many
regimes seek its backing for their open or covert authoritarian policies. However in
recent times, several countries and in particular Myanmar and Sri Lanka, have shown
quite a resistance to these influences moving at least partially away from Chinas
political hegemony.
It is not the economic benefits or influence that have become detrimental to human
rights, but the political influence or emulation of authoritarian structures and patterns
taking China as an example.
Evolving Challenges
If the human rights promoters or activists in the region, (say) in the coming 25 years,
could pay more attention on this overall condition of human rights and thus make their
best efforts on institution building on democracy with attendant aspects of good
governance, rule of law, accountability, independence of the judiciary and justice, they
could reap more practical results while not neglecting individual human rights whether
in the political/civil sphere or economic/social sphere without also not neglecting
cultural rights of the communities and individuals.
Among the major human rights debates in the region, in the past two and half
decades, there were two major issues, one epitomized by Asian values and the other
emphasizing on the primacy of economic and social rights. Both have now melted into
the background slowly though after the East Asian economic crisis in 1997-1998. This
is not to say that those issues are not existent in the debates today, but their
importance have dwindled. Even with their presence, it might be better to look at the
human rights challenges in the region in a broader perspective in a holistic manner
where activists or advocates in individual countries might be able to pick what is
relevant to them from a broader catalogue or shopping list of issues. The following
statement by Tae-Ung Baik few years back may be useful in finding such a broader
perspective.
In short, there are many challenges in the implementation of human rights in Asia:
the weakness of human rights norms, the existence of authoritarian regimes, the
problems of poverty and economic-first policy, the colonial legacy and transitional

justice issues, cultural hurdles, a weak civil society, and the limited influence of the
international community.[2]
Advantages of Democracy Approach
The above statement is a comprehensive catalogue of human rights challenges in the
region. The weaknesses of human rights norms highlight the awareness building and
educational tasks that human rights promoters need to undertake. The existence of
the authoritarian regimes undoubtedly is the major obstacle. The problems of poverty
legitimizes the economic-first policy, and allows the authoritarian regimes to easily
undermine political rights and civil liberties. There are accumulation of transitional
justice issues due to past and continuing societal conflicts (i.e. Sri Lanka) and even to
address them there are cultural hurdles to overcome. At the bottom is the weak or
weakened civil society by state action. It is an obvious fact to say that today the
international concern or support for human rights is very much weaker compared to
say the decade of 1990s. This is the limited influence of the international community
that the above author was talking about.
All these challenges show that the promotion of human rights in the Asia-Pacific is not
an easy task and concerted and well-balanced efforts are necessary under the
circumstances. Simply said, what might be proposed in this article is to undertake the
human rights campaigning within the rubric of democracy and good governance. That
may also be the lesson that Sri Lanka shows in recent times. It is possible to highlight
six advantages in doing so as follows.
Democracy is the base of all human rights and many of the individual human rights
particularly in the political and civil spheres could best be advocated under
democracy.
The concept or cause of democracy is less controversial in the region.
Democracy or good governance may resonate well with the traditional values

ofDharma in many parts of the region.

Obviously no human right could be promoted without democracy.
When democracy is promoted human rights follow naturally.
Democracy approach is more diplomatic instead of direct advocacy of human rights.
There are of course dangers and liabilities in adopting such an approach, if it is
adopted instead of human rights or in direct disadvantage to human rights. A major
danger is dilution or compromise. Moreover, many democracy advocates often
overlook specific and local (regional) issues of human rights within countries. This is
evident even in the case of Sri Lankan today. The constitutional reform issues have
taken a priority while minority rights issues have taken a backstage.
However, if the democracy approach is adopted for strategic or even tactical reasons,
the purpose and effects would be enhanced instead of damaging or retarding. It is not
suggested here to drop or postpone human rights but to forefront them with the

vanguard of democracy. This is not a suggestion on the spur of the moment. The
reasoning is well established in human rights theory as well.
Referring to EUs approach to human rights, Elena Fierro once said,
Whether the human rights clauses refer to democracy or to democratic principles, the
condition is always quoted first, before the necessity of respecting human rights.[3]
There are many other authors who have conceptualized the connection between
democracy and human rights or human rights and democracy. Introducing
Democracy: 80 Questions and Answers in 1996 by David Beetham and Kevin Boyle
was a good start.[4]The 2005 World Summit (New York) spoke of the connection of
development and democracy as interdependent and mutually reinforcing. There are
many other conceptualizations that the human rights promoters could benefit out of.
However, we should be aware of the possible downsides as well, as mentioned
before.
While it is true that the struggle for democracy can be the vanguard for the promotion
of human rights in any country, the opposite is also true to say that without the
rearguard, or more correctly, the centrality of human rights, democracy as a mere
structure is meaningless. This is particularly true in countries, including Sri Lanka,
where democracies could easily be hijacked by majoritarianism. Jack Donnelly has put
forward a strong argument in this respect. As he has argued, human rights are
integrally required to modulate and tame both majoritarianism in democracy and social
injustices in the market.
The Case of Sri Lanka
Samuel P. Huntington in his initial studies characterized Ceylon (later Sri Lanka) as a
democratic country in the Third Wave. This was mainly the same characterization that
the Australian author James Jupp (Sri Lanka: Third World Democracy, 1978) gave with
an insightful qualification. The reasons were quite obvious. Sri Lanka or Ceylon was a
model British colony with several of its democratic experimentations. Universal
franchise was introduced in 1931, for the first time in Asia. The country achieved
independence in 1948 peacefully without severing constitutional links with Britain
which was considered helpful for the maintenance of democracy at that time. Sri
Lanka achieved a two party system with alternating governments by 1960. The country
became a Republic in 1972 nevertheless remained within the Commonwealth of
Nations.
How did Sri Lanka become deviated from democratic norms is another story. Some
reasons can be given briefly without going into details. Unprecedented population
explosion, among other factors, gave rise to the first youth insurrection in 1971. Even
before this time, the majoritarian politics based on ethnic dominance of the majority
Sinhalese community made serious dents in the democratic norms and social justice
issues. It was related to these conditions that gross human rights violations started to
emerge. What became revealed was the deficiency of democracy without human
rights which was a common condition in many newly democratic countries. The

country took an authoritarian turn in 1978 when a presidential system was inaugurated
without checks and balances and human rights became further eroded. Since 1983,
the country has been engulfed in a serious internal war situation based on the ethnic
conflict.
This war ended in May 2009 primarily and rather unavoidably through military means.
However the opportunity was not taken to enhance democracy or reconcile the ethnic
conflict, but to create an unmitigated authoritarian regime for the purposes of
remaining in power for a closely knit (new) political elite led by a ruling family. That is
how a Free country became a Partly Free country according to the Freedom House
assessments.[5]Both political rights and civil liberties deteriorated. If we take the
issues of individual human rights violations before or even after the end of the war in
2009, it is a long list. Although the constitution provided human rights redress through
judicial process and through the National Human Rights Commission, those were not
effective under the circumstances.
Since early 1970s there have been a growing number of human rights organizations
who were doing exemplary work in areas of protection, promotion and education.
These activities also became stifled due to the deterioration of democracy. Formal
human rights work generally assumes the existence of democracy and attempts to
correct deviations within it. Therefore, in the absence of democracy, the key issue of
human rights obviously is democracy itself. Joshua Cohen strongly expounded this
argument. He tried to conceptualize democracy itself as a mega human right.
Perhaps the human rights activists in Sri Lankan came to this realization by default or
through experience.
How Does Human Rights Develop?
This is not an easy question to answer. However, through theoretical reasoning or trial
and error it is not difficult to develop certain propositions. Richard P. Claude developed
what he called The Classical Model of Human Rights Development in explaining how
they developed during the initial periods in Western societies. He gave much
emphasis on stages of development, and different social classes as catalysts in these
developments at different stages. However, the conceptualization was placed primarily
within a national context as that was the way human rights evolved in those societies
prior to the formation of the UN, universalization of human rights (i.e. UDHR and
international conventions) and globalization of communication and interrelationships.
However today, human rights by nature are internationalized.
I had occasion to visualize a different or a contemporary model taking the international
factor or the influence into primary concern. Yet, the main dynamics of the
development does not come from the external but the internal forces, most usefully
influenced or assisted by the international. As it was said in 2002:
I have been of the opinion for some years that three main political processes shape
and condition human rights circumstances in our countries, to mean the
underdeveloped and Asian countries, for good or for bad. These processes are
namely: 1. internal political mobilizations by civil society organizations; 2. state-making

by political leaders; and 3. International influence by multi-national organizations and

Western countries.[6]
Therefore, what the human rights promoters or the activists have to do, if this is at
least broadly correct, is to work on the synergies or meeting points between these
processes in order to bring and develop human rights in a particular country. This is of
course easily said than done.
In addition, what I didnt realize at that time was the importance of democracy as the
main vanguard of struggles for human rights in our countries. This realization came
later primarily through looking back at 25 years experience of Diplomacy Training
Program (for human rights) and trying also to understand what Jose Ramos-Horta,
Nobel Peace Laureate and former President tried to achieve in Timor Leste through
different and arduous struggles.
Now this is confirmed by the experience in Sri Lanka both positively and negatively
democracy as the main vanguard of human rights struggles or development.
Sri Lankas Experience
A major breakthrough came in Sri Lanka, not immediately but eventually, when the
autocratic regime decided to go beyond its limits. That was the 18th Amendment to
the Constitution in September 2010 which removed the conventional two term-limit to
the presidency and suppressed the independent commissions, including the Human
Rights Commission, except by name. The amendment was passed hurriedly through
Parliament with the required two- thirds majority, but three political parties who voted in
favor later declared it was a mistake. There was a crack. Democracy or human rights
campaigners should always look for these types of windows of opportunity.
After the end of the war in 2009, although opportunities were there to relax the military
rule in the northern parts of Sri Lanka, where the Tamil community was predominantly
living, it was not done. Elections to the Northern Provincial Council (NPC) was not held
until October 2013. There were limitations to wage democracy campaigns on these
issues internally given the past extremist movements associated with the militarily
defeated LTTE. What became useful in addressing these issues were international
persuasion or pressure by the Western governments. If not for that international factor,
the NPC elections would not have been held even in 2013.
The regimes meddling with the judiciary was a major impetus for internal democratic
mobilizations led by lawyers and lawyers associations. On the 18th Amendment, the
Chief Justice succumbed, but on a similar issue later, she resisted in 2012. The
consequence was an unlawful impeachment against her, which was strongly resisted
by the judiciary. This was a clear turning point in the country. For the first time, judicial
officers opted to stop work in protest and the lawyers associations took to the streets.
By this time resistance had also emerged from other quarters. Student protests were a
frequent feature in the country for a long time with both pros and cons. They were not
particularly helpful for a democracy movement. However, a change came from the
academics who became united against political interference in university

administration and academic matters. Their demands or slogans were much broader
appealing to the people. In a context of funding cuts to education, they demanded 6%
GDP allocation to education. For the first time, university professors and lecturers
were marching on the streets.
A mini uprising took place in August 2013, when security forces were employed to
suppress a local protest of village dwellers who were protesting against ground water
pollution due to industrial waste in Weliweriya, north of Colombo. As an issue of
environment protection, the protest attracted many activists involved in environmental
issues. The high handed security force involvement ended up in three persons killed
and many wounded which created a national issue (See picture).

After Tamils, the Muslim community was at the receiving end of many atrocities of
increasingly bigoted policies of an intolerant government. There was a direct
connection between the extremist nationalist/religious groups and the security
establishment in the country. After several mosque attacks, a major onslaught took
place in Aluthgama in June 2014, in a residential and business area of the Muslims in
the South. Small scale random attacks had already taken place against many
Christian missionary establishments throughout the country after the end of the war as
if to keep all minority communities under the majority yoke. The minority disaffection
and even resistance was a major impetus for the democracy movement in the country
that turned out to be a decisive political change in January 2015.
The above is not a complete record of events or developments but only some
highlights. A major merit of these movements were their complete non-violent and
legitimate character particularly when they were compared to Arab-Spring movements.
Change Dynamics

The whole world today knows that a preliminary change came in Sri Lanka in January
2015. The former President was defeated and a new President was appointed quite
dramatically. The latter was a common candidate of the opposition who broke away
from the previous regime at the last moment. Although a strong electoral support came
from the formal opposition in Parliament, the main dynamic for change originated from
outside and from the civil society.
The movement that brought up the change was catalyzed by a civil society elite. The
crystallization of the movement took barely three years nevertheless based on a long
and arduous work undertaken by a host of NGOs and other civil society organizations.
Sri Lanka is home to over 15,000 civil society organizations out of which nearly 100
with international affiliations. This is apart from trade unions or religious organizations
and for a population of 21 million people. A great majority of these organizations
usually work in the spheres of community and welfare, and others who were involved
in human rights or democracy related issues were largely subdued due to the
repressive atmosphere for the last few decades.
The catalyst for change did not come spontaneously from the grassroots or the voters,
although they finally voted against the autocratic President. It came from a civil society
and a professional elite. The media and journalists also played a major role, some
working from outside the country. The Colombo Telegraph, Sri Lanka
Guardian and Lanka e News were three media outlets working outside the country. If I
were to mention two professional organizations which were on the democratic
forefront, the Bar Association of Sri Lanka (BASL) and the Federation of University
Teachers Associations (FUTA) can be named. A long standing NGO, the Centre for
Policy Alternatives (CPA), played a role of a think-tank and also was involved in DTP
type diplomacy with foreign embassies and governments.
The most pivotal was the formation of the National Movement for Just Society (NMJS)
led by a radical Buddhist monk, Ven. Maduluwawe Sobitha, supported and assisted by
similarly radical academics and lawyers. The NMJS was based on a 15 point
manifesto for constitutional reform and good governance. Call for human rights and
ethnic reconciliation was an integral part of the program. The role of the former
President, Chandrika Bandaranaike Kumaratunga (CBK), also was important. Any
such support from past statesmen/women or politicians would be an advantage in any
country. During the elections, newly politicized youth involved in the democracy
movement in a great measure under different ad hoc organizations. One such
organization was the Democratic National Movement. Face Book and social media
played a major role in awareness building and protest.
To end the Sri Lanka story, it is important at this stage to highlight and generalize three
major steps or interactions through which a spiral of democracy movement or internal
political mobilization became unleashed. This dynamic of an elite-mass interaction
might be important for any country.
First was a strong realization among a group of civil society/professional elite that
the situation should be changed and it can be changed. Many seminars and

discussions were held, and articles/missives were written. Most of the opposition
political party leaders, however, were still far behind this realization. It was not easy
to motivate them directly.
Second was the steps taken to take up the democracy issue to the masses. The
NMJS and others played a major role in an effort to spark public interest on reform
and change. It was a success. The protest against the unlawful impeachment was a
major event led by the BASL.
At the third stage, the public pressure forced the reluctant political leaders in the
opposition to accept the reform agenda and move forward. The former President
worked behind the scenes. What they learnt in the process was the limitations of
purely a reform agenda. Broad economic and social issues that the general public
was interested in were brought into the picture. The situation also made cracks
within the existing regime and the common candidate finally was a defector from the
regime.
Conclusions
My principle argument in this article is the importance of democracy as a vanguard in
promoting and protecting human rights in the region, without neglecting the individual
human rights in the process. Democracy is the bearer and the base of human rights.
The advantages of democracy as an approach also was highlighted (6 points) while
cautioning particularly on majoritarianism. Synergy between human rights and
democracy might be the necessity.
The advocacy of democracy approach does not deny the approach of human rights
diplomacy. However, the golden age of it might be over. I have not seen its effective
use in recent times like in the case of East Timor or by Jose Ramos-Horta. Also as
Tae-Ung has noted, the limited influence of the international community in recent
times itself is a setback in the region. Therefore, the democratic governments like in
Australia should pay more attention on the predicament with more endowments etc.
One reason for the situation might be the counter influence of China. What could offset
the situation might be the promotion of democracy in the region and in China itself.
Those governments not democratically elected by the people, and not accountable to
them properly, cannot be of any worth in the 21stCentury.
The present article gave more space for Sri Lanka than for any other issue. The
purpose was to demonstrate, as requested, how democratic change actually could
come about through elite-mass interaction. It might be too early, however, to consider
Sri Lanka as a model for others. It is still a long way to go. The January silent
revolution is only a first step with certain subsequent setbacks. The crucial role of the
civil society, if and when, inspired by a socially committed elite, is nevertheless amply
demonstrated by that example. The role of the DTP in the coming 25 years in the
region could well be to inspire and train such an elite extensively on human rights, as it
has been doing in the past, nevertheless at a higher level in promoting and protecting
democracy and human rights. What might be emphasized finally is the elite-mass
interaction as a catalyst for democratic and human rights change not only for initial

advancement but also for its continuity and sustainability.

(This article is an adapted version, without many references, of what was published in
the DTP Newsletter, No. 50 (July 2015) at the University of New South Wales. Dr
Laksiri Fernando was a former Executive Director of the Diplomacy Training Program
(DTP) started in 1990 by Jose Ramos-Horta and Professor Garth Nettheim.)
[1] [1] https://freedomhouse.org/regions/asia-pacific#.VY-1qRsVgcA
[2] Tae-Ung Baik, Emerging Regional Human Rights in Asia, Cambridge, 2012, p. 272.
[3] Elena Fierro, European Unions Approach to Human Rights Conditionality in
Practice,Martin Nijhoff, 2003.
[4] The present author translated the 2010 edition of this book into Sinhalese (Marga,
2011) also suggesting its translation into Tamil in Sri Lanka.
[5] For a comprehensive assessment of all countries
seehttps://en.wikipedia.org/wiki/Freedom_in_the_World
[6] Laksiri Fernando, Human Rights, Politics and States: Burma, Cambodia and Sri
Lanka, SSA, 2002, p. i.
Posted by Thavam