A Human Rights Code For South Asia
Iqbal Haider |
South
Asia, much to the misfortune
of our people, happens
to be one of the most
polarised and poverty-ridden
regions of the world.
Multiple polarisation,
illiteracy and poverty
not only reinforce each
other, but also create
many hurdles in promotion
and protection of human
rights. It is rightly
emphasised that: 'One
does not enjoy human
rights with a bare body
and empty stomach'.
Hence, poor countries
not only require faster
economic growth, but
also quicker reduction
in poverty to enhance
human development and
enforce commitment to
human rights. There
is also a growing realisation
that the universal nature
of human rights calls
for across the borders
cooperation.
The
United Nations has been
expressing serious concern
over repeated violation
of the Universal Declaration
of Human Rights and
the International Covenants
on Human Rights, as
well as the failure
of the member states
to implement and adhere
to the same. In the
past three decades,
the UN has been emphasising
the significant role
that institutions at
the regional and national
level can play in promoting
and protecting human
rights and fundamental
freedoms and in developing
and enhancing public
awareness of these rights
and freedoms. Many developed
countries have also
linked economic cooperation
to the democratisation
of institutions and
promotion of human rights
in the countries of
the Third World. Increased
awareness in civil society
and consistent efforts
being made by non-governmental
organisations for regional
cooperation have also
forced South Asian countries
to establish regional
and sub-regional institutions
and mechanisms for the
promotion and protection
of human rights.
Most
of the regional or sub-regional
groupings in Europe,
North America and Africa
have appreciated the
need to have common
human rights treaties/conventions
or codes and have officially
constituted autonomous
statutory forums to
ensure their observance
and enforcement. Perhaps
the first initiative
in this direction was
taken by the European
Union. On 14th November
1950, in Rome, members
of the Council of Europe
had adopted the Convention
for the Protection of
Human Rights and Fundamental
Freedom. This Convention
has been amended and
improved from time to
time. On 21st November
1998, this Convention
was further amended
by protocol No.11 to
provide for the establishment
of the European Court
of Human Rights with
wide jurisdiction to
deal with human rights
cases and issues. The
European HR Court is
also vested with the
power to grant relief
to any person, NGO or
group of individuals,
to disapprove any policy
or legislation of any
member country and conduct
trials. Such Human Rights
Charters and Commissions
or Courts have also
been established by
the 3Organisation of
African Unity and Latin
American countries.
However,
no regional or sub-regional
grouping in Asia, Asia
Pacific, South East
Asia, South Asia, Central
Asia or the Middle East
is willing to pay more
than lip service to
the cause of human rights.
Consequently, no regional
or sub-regional group
in Asia has any kind
of common Human Rights
Convention/Charter or
officially constituted
statutory body. Most
countries in Asia, including
the regional groups,
attempt to justify their
failure in adopting
a uniform HR Charter
and enforcing an official
mechanism on the grounds
that:
-
HR
issues are an internal
matter;
-
International
Human Rights Charters/Declarations
and Treaties etc.,
are in conflict
with certain religious
rites, cultural
values, customs
and practices;
-
National
security and economic
considerations must
prevail over rights
of individuals;
and
-
Common
regional or sub-regional
human rights official
forum or mechanism
is not advisable
in view of diversity
on many issues among
member states of
the regional alliances.
Despite all these reservations
among the Asian countries,
the need for regional
human rights mechanism
cannot be ignored. In
our neighbourhood, 10
members of the Association
of South East Asian
Nations (ASEAN) have
been debating this issue
but the final decision
to establish ASEAN Human
Rights Commission has
yet again been deferred.
In the meantime, some
of the ASEAN Countries
have established official
statutory human rights
institutions. In Thailand,
a comprehensive statute,
'National Human Rights
Commission Act' was
passed by its legislature
in 1999 to establish
the Commission, specify
its jurisdiction, composition,
etc. Members of the
NHRC4 of Thailand are
appointed by the King
on the advice of the
Senate and the Commission
also enjoys the powers,
among others, to examine
human rights violations,
entertain complaints/petitions
of individuals or private
organisations against
such violations and,
if it considers necessary,
it may conduct detailed
enquiry, hearing, trial
and propose remedial
measures. The Commission
in Thailand submits
its reports and recommendations
regularly to the parliament.
In
the Philippines the
Commission on Human
Rights is constituted
by the president in
pursuance of Article
XIII, Sections 17-19,
of the 1987 Philippine
Constitution.. It was
first established by
the president on 5th
May, 1987. The Commission
comprises a Chairman
and four members, who
are vested with sufficient
powers to promote awareness
and protection of human
rights. In Malaysia,
a Human Rights Commission
has been established
by the government in
pursuance of a comprehensive
statute 'Human Rights
Commission of Malaysia
Act 1999', which provides
that the Commission
shall be a corporate
body and shall have
not more than 25 members
and one of them will
be Chairman & Vice
Chairman. The Commission
is vested with the power
to conduct enquiry on
its own or on a complaint
made by an aggrieved
person or group of persons.
Similarly, in Indonesia
the then President Soeharto
had issued a presidential
decree on 7th June 1993
to establish a statutory
body: 'The National
Commission of Human
Rights', which was not
autonomous since only
the president had the
powers to appoint its
members and approve
the office bearers of
the Commission.
Despite sustained efforts
by civil society, the
respective governments
of the SAARC countries
are not willing to even
consider adoption of
a uniform Human Rights
Code or Convention and
to provide any common
forum or mechanism to
supervise adherence
to and implementation
of the same.. Although
not all SAARC countries
have autonomous and
official statutory institutions
devoted to address the
grievances of the people
on Human Rights issues,
India, Nepal and Sri
Lanka have established
independent statutory
National Commissions/Court
for Human Rights, to
provide some relief
to their people. In
1993, the Protection
of Human Rights Act5
was passed by the Parliament
of India, which provided
for establishment of
not only National Human
Rights Commission at
the Federal level, but
also establishment of
State Human Rights Commission
and Human Right Courts.
The National Human Rights
Commission in Nepal
was established under
the Act of 19976 as
an independent autonomous
statutory body. Similarly
the Human Rights Commission
in Sri Lanka was established
in March 1997 under
the Human Rights Commission
Act of 1996. In Pakistan
the need for such an
independent, autonomous
statutory body was felt
by the government of
former Prime Minister
Benazir Bhutto, when
it established:
- a
statutory body called
'Tribunal for the
Disadvantaged Persons';
- a
permanent non-lapsable
statutory funds
to provide financial
assistance and legal
aid to women victims
of Human Rights
violations, in pursuance
of the Fund for
Women in Distress
Act 1996; and
- a
separate full-fledged
Division and Ministry
of Human Rights
with wide powers
to check and monitor
compliance with
the international
conventions, treatises
as well as relevant
provisions of the
constitution and
local laws and to
promote awareness
about Human Rights
both in the administrative
machinery and in
society at large.
Unfortunately
all these measures
were discarded or
made ineffective after
the fall of the government.
There is only one
active official institution
in Pakistan to protect
women's rights National
Commission on the
Status of Women7 (NCSW)-which
was established in
pursuance of an Ordinance
promulgated by the
president on July
17, 2000. This Commission
addresses some of
the human rights issues
relating to women.
In
South Asian countries,
relief is provided
to the victims of
Human Rights in vast
majority of the cases,
by the judicial or
quasi-judicial forums.
However, jurisdiction
of the courts in South
Asian countries, much
to our disappointment,
is limited to specific
violations of any
particular legal right,
law or constitutional
provision. Generally,
the courts exercise
their jurisdiction
only on a complaint
filed by an aggrieved
party and the grant
of relief or compensation
by the courts is critically
dependent upon the
quality of evidence
in each case. The
concept of public
interest litigation
or representative
action is being discouraged
and restricted by
the superior judiciary.
The ordinary courts
of law, in any case,
are unable to dispense
inexpensive justice
expeditiously simply
because they are already
overburdened with
millions of cases,
pending for many decades.
Another
serious impediment
that the conscientious
complainant suffers
is that the ordinary
courts have very limited
jurisdiction on human
rights issues and
almost no jurisdiction
on the collective
human rights violations
or issues of any community
or any section of
public. Until a couple
of years ago, High
Courts in Pakistan
were entertaining
public interest or
representative action
matters. However,
now in Pakistan, India
and other SAARC countries,
the Supreme Court
has original jurisdiction
to directly entertain,
adjudicate and decide
public interest matters
on some of the human
rights issues. The
problem is that only
a few victims or organisations
have the means to
invoke jurisdiction
of the Supreme Court
in a serious and effective
manner. Consequently,
very few human rights
cases are filed directly
before the Supreme
Court to invoke its
jurisdiction. Expeditious
and inexpensive justice
from the ordinary
courts is still a
far fetched dream
for the oppressed
people in South Asian
Countries.
The
public opinion, both
internationally and
locally, is increasingly
asserting for the
establishment of regional
mechanism to protect
and promote human
rights. This growing
realisation and public
pressure is reflected
at different levels.
First, the international
community, particularly
the UN organs are
playing a more effective
role to persuade the
member states to setup
statutory official
human rights institutions
at the national level
and to encourage regional
cooperation among
them. Second factor
is the growing acceptance
of the universality
of human rights across
the borders. Thirdly,
to the good fortune
of the oppressed people
living in the third
world countries, some
of the developed countries
have attached trade
and investment to
the human rights values.
Growing awareness
in civil society and
increasing cooperation
among the people on
a regional basis to
address human right
issues also increase
awareness. These factors
give every reason
and justification
to be optimistic about
realisation of the
basic objective to
establish a common
Human Rights Charter
and effective mechanism
to protect human rights
on regional basis
among the countries
in South Asia.
The
concerned prominent
citizens of the SAARC
countries took an
initiative to establish
a non-governmental
organisation on a
regional basis, called
'South Asians for
Human Rights (SAHR)',
in pursuance of a
declaration passed
in a representative
convention held at
Neemrana Fort, Rajasthan,
India on July 21-22,
2000. It is a broad
alliance of peace
and human rights activists
belonging to the SAARC
countries. This was
indeed a much needed
initiative at non-governmental
level to promote awareness
and mobilise public
opinion with a view
to pressurising the
governments of the
SAARC countries to
sign a Human Rights
Charter and establish
a common official
mechanism to check
the Human Rights abuses
in the SAARC countries.
There are a large
number of non-government
organisations in most
of the SAARC countries
who actively support
various human rights
causes.
The
SAARC countries have
already signed several
conventions on narcotics,
combating trafficking
in women and children
for prostitution,
promotion of child
welfare, among other
areas. Several agreements
have also been signed
on Food Security and
specific social issues,
which require concerted
and coordinated actions
for the effective
realisation of their
objectives. In the
12th SAARC Summit,
a Social Charter8
was signed on 4th
January, 2004 at Islamabad.
This Charter spells
out laudable goals
and objectives, such
as poverty alleviation,
promotion of the status
of women, education,
human resource development,
welfare of children,
population control,
promotion of tolerance,
pluralism, human dignity,
social justice, protection
of the rights and
interests of minorities,
elimination of discrimination
in all forms, etc.
Although, other treaties
address some human
rights issues, SAARC
has not adopted any
uniform human rights
convention or charter,
nor has it agreed
to create any regional
institution or mechanism
to monitor adherence
to and implementation
of various human rights
conventions, charters
and treaties signed
by the member countries.
The
need for regional
and sub-regional uniform
Human Rights Charter/Court
and implementing mechanisms,
such as Regional Human
Rights Commissions
and Courts, has been
emphasised time and
again by the UN organs
and UN-sponsored summits,
in the past three
decades. In December
1978, the UN General
Assembly passed a
resolution containing
guidelines on the
structure and functioning
of national and local
institutions for the
promotion and protection
of human rights. The
effective implementation
of International Human
Rights Standards was
highlighted and basic
parameters/guidelines
were prescribed first
in the UN sponsored
meeting of the representatives
of the member countries
held in Paris in 1991,
which had laid down
detailed set of principles
to guide as to how
to promote and ensure
protection of human
rights on a regional
and national basis.
These are commonly
known as 'The Paris
Principles'9.
These
principles were subsequently
endorsed by the UN
Commission on Human
Rights (Resolution
1992/54 of 3 March
1992) and the UN General
Assembly (Resolution
48/134 of 20 December
1993). Similarly,
the need for strengthening
of regional and national
institution/mechanism
was reiterated and
emphasised in a number
of UN-sponsored conferences
on human rights issues,
including the Regional
Meeting for Africa
of the World Conference
on Human Rights, held
at Tunis in 1992,
the Regional Meeting
for Latin America
and the Caribbean,
held at San Jose in
1993, the Regional
Meeting for Asia,
held at Bangkok in
1993, the Commonwealth
Workshop on National
Human Rights Institutions,
held at Ottawa in
1992, and the workshop
for the Asia and Pacific
Region on Human Rights
Issues, held at Jakarta
in 1993.
'The
Paris Principles'
of 1991, which were
endorsed by both the
General Assembly and
the Human Rights Commission
of the UN at Geneva,
prescribed the basic
standards, specifications
and characteristics
of regional/sub-regional
and national institutions:
-
Competence
and Responsibilities:
The institutions
ought to be vested
with adequate powers
and competence,
having as broad
a mandate as possible,
to promote and protect
human rights effectively,
in pursuance of
a constitutional
provision or a special
statute.
-
Composition,
Guarantees of Independence
and Pluralism:
Autonomy/independence
and pluralism ought
to be ensured by
the constitution
or the law, in the
composition of the
institution, which
should include representation
of various sections
of civil society
actively involved
in the promotion
and protection of
human rights. Pluralism
ought to be reflective
of the society they
represent.
-
Methods
of Functioning:
Complete freedom
to consider any
question within
its competence and
to have free access
to the people directly,
or through media;
free access to gather
information from
any department or
authority; complete
freedom to promote
and propagate awareness
among the masses
about the human
rights and the basic
rights, remedies
and entitlement
of the people; adequate
powers to conduct
enquiry, investigations,
intervention in
any proceedings,
make mandatory recommendations
and conduct trial
and hearing of specific
cases; to submit
to the government/parliament
and other competent
bodies, reports,
requests and proposals
on any matter concerning
promotion and protection
of human rights;
proposed legislative
or administrative
measures the government
should adopt; to
promote and ensure
harmonisation of
the local laws/regulations
and practices with
the international
human rights instruments
and to encourage
ratifications of
the international
human rights instruments
etc., etc.
-
Judicial
powers:
To receive, hear
and decide complaints
and petitions of
any individual or
group of persons
or any NGO concerning
human right issues
or violations; seeking
an amicable settlement
through conciliation
or decide the disputes
in accordance with
the law.
-
Financial
Resources:
The institutions
ought to have financial
autonomy in pursuance
of the constitution
provision or the
statute, which should
guarantee that the
government shall
allocate in the
annual budget sufficient
funds, which the
institution would
be authorised to
spend in its discretion,
but in a transparent,
fair and lawful
manner
These
are just some of the
basic standards, parameters
and characteristics
prescribed by the 'Paris
Principles'. Institutions
set up under the Paris
Principles display a
great deal of commonality
in perception of human
rights issues and approach
to protect and promote
the same. It is suggested
that South Asian countries
must, without any further
delay, also agree to
set up a uniform Human
Right Code and establish
institutions in accordance
with the Paris Principles.
For this purpose, the
following course of
action needs to be adopted:
- SAARC
countries and its
Secretariat may
be approached by
South Asian Free
Media Association
(SAFMA), and other
regional organisations
committed to human
rights causes, such
as SAHR, should
also make such an
appeal to place
this issue on the
agenda of SAARC
Summit, scheduled
to be held at Dhaka
in January 2005,
and the member states
may be persuaded
to agree to adopt
a uniform comprehensive
Human Rights Code/Convention,
enforceable on all
the member states
of South Asia. Once
SAARC Summit takes
the decision in
principle, it can
appoint a group
of eminent human
rights activists
to prepare a Draft
Human Rights Code
with the help of
the UN Human Rights
Charter, European
Convention on Human
Rights and other
related treaties.
- Identify
the maximum possible
International Conventions/Treaties
& Charters relating
to human rights
issues, which the
member states of
SAARC agree to honour,
abide and enforce.
- Across
the border cooperation
is needed among
the SAARC countries,
to prevent and eradicate
human rights abuses,
terrorism and other
organised crime
and undesirable
practices such as
slavery, trafficking
of women and children,
drugs, smuggling
etc.
- Extending
help and assistance
to the governments
of each other member
states of SAARC,
in their endeavour
to establish their
own national institutions,
in conformity with
the Paris Principles,
to promote and protect
human rights.
- Mutual
support to strengthen
the capacity of
national institutions
of the member states
of SAARC to undertake
their mandates.
In
this regard, the European
Convention of Human
Rights/European Court
of Human Rights, the
African Commission of
Human and People Rights,
are successful illustrations
of a step by step building
block approach and should
stimulate joint efforts
in evolving a regional
mechanism for the protection
and promotion of human
rights in South Asia,
as well. What appears
to be lacking is sincerity
of purpose and bona
fide commitment to set
up such regional mechanisms.
A beginning should be
made with certain minimum
common denominators
of easily achievable
objectives, projects
and programmes. A regional
common mechanism for
South Asian Countries
must precede the establishment
of Official/Statutory
Human Rights Commissions/Courts
at national level in
all member states of
SAARC. As stated above,
at least three of the
SAARC countries already
have official independent
autonomous national
human rights institutions.
Other member states
must establish the same
without further delay
in accordance with the
'Paris Principles',
to provide the first
effective edifice for
the protection and promotion
of human rights in the
region
(Iqbal
Haider is a former Senator,
Attorney General and
Federal Minister for
Law, Justice, Parliamentary
Affairs and Human Rights,
Pakistan)
End Notes
- Human
Rights Information
Centre Counsel of
Europe http://www.dhdirhr.coe.fr
- Ibid
- The
African Commission
on Human and People's
Rights
Organisation of
African Unity
The Secretariat
of the African Commission
on Human and People's
Rights
Banjul, The Gambia
- For
details see www.nhrc.or.th/en/nhrc_full.htm
- For
details see www.nhrc.nic.in/hract.htm
- For
details see www.nhrc-nepal.org/?ID=122&AFD=0
- For
detail refer http://www.ncsw.gov.pk
- For
details see www.saarc-sec.org/main.php
- For
compete text refer
www.ohcr.org/english/law/parisprinciples.h
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