WORLD: A South Asian mechanism for human

rights

By Basil Fernando-December 14, 2015

I propose that the discussion on a South Asian mechanism for human rights should
concentrate more on what such a mechanism could positively achieve, rather than on
justifying why such a mechanism is needed. In fact, if its useful goal is achieved for the
people and States of the South Asian region, the reason why such a mechanism is
needed would be self-explanatory.
Kofi Annan, when introducing the Human Rights Council in place of the Human Rights
Commission, emphasized that the future of human rights lies, not in more articulations
of international norms and standards of human rights, but in finding solutions to the
failures in the implementation of the human rights Conventions that States have
willingly ratified.
Research has also shown that the mere inclusion of chapters on human rights or bills
on human rights in constitutions, or even bringing local legislation accepting UN
conventions on human rights and making them a part of the domestic law, have not
guaranteed the implementation of human rights on the ground.
Therefore, the challenge that the human rights project (which started with the
Universal Declaration of Human Rights) faces on a global scale is to find solutions to
the failures of the institutions. Institutions are the instruments through which human
rights are expected to be implemented within each State. In a broad sense, these
institutions are the police, the prosecutions departments, the judiciary and the penal
institutions.
The South Asian region also starkly demonstrates the failure to implement human
rights and thereby the failure to guarantee protection for the people. Reiterating that
these basic institutions mentioned above - namely, the police, prosecutions
department, judiciary and penal institutions - have clearly failed, in all the States in
South Asia to ensure the respect and the fulfilment of the basic human rights that are

enshrined in UN Conventions and, in fact, are also included in Bills of rights in the
Constitutions, and, to some extent, in the domestic law itself.
In a discussion, of South Asian mechanisms for the protection of human rights,
perhaps it is best to recall the basic failures to implement some of the basic rights,
such as the rights not to be subject to illegal arrest, illegal detention, torture and illtreatment, and the right to a fair trial, and freedom of expression and assembly. We
may also mention the grave difficulties that have been faced in South Asia in ensuring
the peoples rights to elect governments of their own choice.
We may also recall the grave problems we have had in ensuring due respect for
women, as required by the notion of equal rights in international and domestic laws,
and, in particular, the failure to provide them with security so that they can exercise
their rights in the same manner as others. The unique forms of violence against
women and the denial of their rights to personal choice in their private lives are also
matters that, regularly come up for discussion, and are limited to such discussions
only. Problems such as human trafficking also affect the right to dignity of women in
South Asia.
Further, it is vital to protect the rights of migrant workers who, due to economic
difficulties in their own countries, migrate to other countries. They often engage in
extremely strenuous jobs, which leave little space for their personal liberties. Despite
the vital roles they play in the economies of their countries, they are, for most part,
neglected and suffer many forms of brutalities. They are also denied the right to
justice. The dead bodies that arrive at our airports, and the regular stories about
persons facing charges in foreign courts that carry death sentences, are also
reminders of the need for efforts on the part of South Asian governments and peoples
to protect those who are employed overseas.
The enumeration of human rights problems can be far lengthier, but, before passing
from this point, it is also necessary to emphasize the stark forms of discrimination that
still prevail in South Asian countries on the basis of caste, as well as race, ethnicity
and gender. The many forms of brutality and discrimination that still prevail in the
South Asian region on the basis of sexuality must also be especially mentioned.
Indeed, the overcoming of many primitive forms of violence, as accomplished by other
countries to one degree or another, has not been achieved in South Asia.
To come back to the point I raised earlier, the issue now is how fast and how
effectively can we overcome these violations of human rights. It will depend, mainly on
the extent to which the basic institutions of law enforcement, along with the judiciary,
are able to function in the manner in which they are expected to function.
Some of the well-known defects in these institutions in the South Asian context can be
set out as follows:
The police have been unable to provide prompt services to the victims of crimes and
human rights abuses due to inherent problems that exist within the law enforcement
agencies. In many South Asian countries, the possibility of even, recording complaintsquickly and professionally - remains a significant problem. The achievements made in

some of the countries in Asia, and in developed countries generally, that make the
police play the role of an ever-present protector who can reach victims within the
shortest possible time and provide the services needed, is something that is yet to be
achieved in South Asian countries.
Investigations into crime suffer from the lack of modern methods of interviewing,
forensic technology and other modern and sophisticated investigative methods that
have been achieved elsewhere. Some of these better services do exist at higher
levels, such as at the level of the Criminal Investigation Divisions (CID), but the
average citizen cannot have access to such services at their local police stations.
There have been allegations from the public of widespread corruption in the policing
services over a long period time. Further, one of the most disturbing problems is the
widespread use of torture and ill-treatment throughout the police stations in all the
countries in South Asia. None of these allegations are new and, in fact, over a long
period, people have come to distrust seeking the services of law enforcement
agencies. Sometimes they have developed alternative methods, such as taking the
law into their own hands or resorting to criminal elements to have their problems
resolved.
Any serious discussion of a South Asian mechanism for human rights must
concentrate on ways through which States can cooperate in dealing with these
problems, and how they must do so with a sense of urgency. They must develop the
kind of protection that people need, particularly the socially weaker sections of the
society, such as women and children, to live with human security in the countries of
the region. If the work on a South Asian mechanism on human rights does not deal
squarely with this problem of the need for police reforms, it would certainly be
impossible to convince most people that the proposed South Asian mechanism will be
one that is of any use to them.
It is also well known that the prosecution services in our country have suffered grave
setbacks due to political and other reasons, and that this has resulted in a great
distrust in these institutions among the people. Either due to the politicization of these
institutions or due to the failure to have an adequate number of professionals who are
provided with all the facilities they need, these institutions are often responsible for
enormous delays in the adjudication process and the denial of fair trial and other relief
that the people look for. The problems in the prosecution services do not only affect
ordinary crimes, but also affect issues that that State needs to address in order to deal
with acute problems, such as financial corruption, environmental problems, problems
relating to national resources, the prevention of domestic violence, and many other
vital areas of life. In fact, in almost every area where change is expected to be
achieved by the use of law, the prosecutors role is vital for achieving any success.
Next, we look at our judicial services, which themselves have, in fact, become a major
obstacle to the achievement of justice, due to what may be called the most obvious
South Asian disease: the delays in adjudication. This singular factor has alienated the
people from all parts of South Asia from wanting to seek redress for their grievances.
Many would rather suffer in silence rather than incur themselves many more grave

problems, including threats to their lives, by making any attempts to find justice.
Delays in adjudication, is one of the major causes that contribute to the failure to
finding a solution to the major South Asian problem of widespread corruption. Delays
breed corruption and corruption breeds further delays. Thereby, South Asians are
caught in a nightmare of abysmal failures in their judicial systems.
Over the years, there have been many assaults on the independence of the judiciary,
particularly the oppression caused by political parties utilizing the courts
inappropriately to ensure their power. This has been a problem that even the best of
judges have found difficult to overcome. The problems in the judiciary are numerous,
and this point is clear for the purposes our discussion on a South Asian mechanism for
the protection and promotion of human rights.
The penal institutions in all South Asian countries still remain primitive, with grave
inadequacies even in providing proper sleeping arrangements, sanitation and other
basic facilities needed to deal with prisoners as human beings.
The ratification of international instruments by South Asian governments, and even
making constitutional provisions and legislation for creating respect for human rights,
have in no way made any of the conditions mentioned above any better. This is what
poses as a challenge to all those who take the laudable initiative towards developing a
South Asian mechanism for human rights. The development of this mechanism should
be part of an attempt to create cooperation among the South Asian nations to find
ways to resolve these problems that not only make the lives of the South Asians more
miserable, but also affect the political, social and the economic lives of all South Asian
nations.
All these issues could be pursued, not as accusations coming from external agencies,
but as part of our own internal critique of ourselves with the hope of making
improvements to the quality of life in our nations.
Thus, the pursuit of the South Asian mechanism for human rights has a very legitimate
and locally justifiable objective, which is to make our own lives better through
cooperation amongst ourselves. There is often a negative attitude towards human
rights, as it is alleged that criticisms about human rights implementation only serve
external forces, which are presumed not to be friendly towards South Asian nations. It
is not my purpose to examine the validity or otherwise of such beliefs. Instead, we can
take responsibility for improving our own rights by genuine and credible efforts made
for our countries. Thus, we can claim ownership of such efforts and make human
rights an integral part of South Asia.
In the pursuit of an Asian mechanism for the protection and promotion of human rights,
it is essential that there should be widespread discussions on this issue, so that as
many people as possible can participate. Civil society organizations can take initiative
in all parts of South Asia to discuss this in the villages, towns and cities.
One example of such an effort was the Asian Charter on Human Rights/Peoples
Charter, an initiative based in Hong Kong. Before the adoption of the Charter in 1996

in the South Korean City of Gwangju, widespread discussions were held in many parts
of different Asian countries.
Lastly, the work towards a South Asian mechanism for human rights should, above all,
be a learning experience. It should be a learning experience to those who actively
pursue this objective, and also to as many other people as is possible. We should
bring together Parliamentarians, judges, lawyers and other professionals, intellectuals
and the media, trade unionists and other leaders of social movements, including those
from womens movements to contribute to this process. During the process, we can
become aware of our own problems and thereby become partners in solving our
problems. Thus, this initiative has the possibility of bringing about greater South Asian
solidarity among all sectors of the people in the region. In that way, this initiative may
give rise to many other initiatives to make our lives better and, above all, to improve
and strengthen the capacity of South Asia to think critically and to act with solidarity to
resolve our own problems.
###
A short submission from Basil Fernando, Right Livelihood Laureate and Director of
Policy and Programmes, the Asian Human Rights Commission, Hong Kong, delivered
at a workshop conducted in Sri Lanka by Law & Society Trust, Forum Asia and other
organizations on 14th of December 2015.
Posted by Thavam