Difference and Human Rights

( Asian Human Rights Charter's Significance and Forecast )

Park Koo Young (Junnam University)

People and organizations which pursue concrete realization of universal human rights

ideology always must always precisely understand the diverse criticisms raised

regardinguniversal ideology of human rights. Only then human rights not lose

sensitivity regarding difference. If human rights are justified by restoring dissimilarity,

differences and divergence to sameness, then human rights could bring about

completely different results compared to its original ideology. In fact, there were cases

when human rights which was abstractly justified on the basis of sameness and not

differences was degraded to an ideology which justified violence and not as a

mechanism which guaranteed human rights. There are largely four types of criticisms

regarding universal human rights ideology.

The first type of criticism can be expressed by the proposition that human rights is a

moral supposition which is impossible to prove or disprove and that it is ultimately an

utopia which cannot be realistically achieved. In order toovercome this criticism, human

rights has to be justified based on a paradigm of mutual subjectivity and has to be

justified not by abstract ideology but by concrete norms. According to the second type

of criticism, justification of human rights itself has no choice but to be dependent on the

context so human rights cannot argue for universal validity. In order to overcome this

criticism, the fact that the universal validity of human rights is not hostile to cultural

distinctiveness but is mutually complementary has to be shown.

Third is the criticism is that since human rights were derived Western society's

heritage from liberalism and possessive individualism, it is hostile to culture which

emphasizes the value of culture of community rather than of individuals. In order to

overcome this criticism, human rights must not be limited to the rights of individuals

and be expanded to the rights of a group. The fourth criticism is that in case human

rights are justified as moral norms which have universal validity rather than as legal

norms, human rights can justify moral imperialism. In this context, warning that the

concept of moral human rights can infringe on sovereignty can be raised. This criticism,

for example can target the US government which is carrying out a war under the reason

of 'Ensuring the human rights of the Iraqi citizens'. In order to overcome this criticism,

human rights have to develop as a basic rights agreement with legal effectiveness and

not a moral charter.

At this point, we must see if the <Asian Human Rights Charter> is overcoming the

aforementioned four criticisms. In my opinion, it seems that <Asian Human Rights

Charter> can overcome at least the aforementioned three criticismsout of the four. First,

the <Asian Human Rights Charter> starts from the large principle that it provides a

human rights agreement as a basis of concrete actions and policy and not from a abstract

concept.

Second, the <Asian Human Rights Charter> is against regarding the universality of

human rights and historic and cultural distinctness as in a hostile relationship. The

<Asian Human Rights Charter> supports the human rights charters or agreements

declared by international organizations whilerespecting the distinctiveness and diversity

of Asian culture. The fact that the <Asian Human Rights Charter> pursues a harmony of

diversity and universality shows the high value of the charter. In particular, a very

remarkable point is the fact that the <Asian Human Rights Charter> clearly criticizes

authoritarian national ideology which is disguised under the name of "Asian value".

Third, the <Asian Human Rights Charter> does not limit human rights as the rights of

individuals but is expanding it to rights of diverse groups. In particular a very

significantachievement is that the human rights of 'women', 'children', 'disabled',

'laborers', 'students', 'prisoners' and 'political prisoners' are clearly stated. Through this,

the <Asian Human Rights Charter> makes it clear that the ideology of human rights

isnot hostile to communal culture. Fourth, <Asia Human Rights Charter> regards

human rights and sovereignty in a mutually limiting relationship. The <Asian Human

Rights Charter> states that countries which do not protect human rights under the name

of sovereignty cannot be justified any more and that infringing on human rights

selectively under the name of human rights also cannot be justified. According to the

<Asian Human Rights Charter>, only countries which guarantee human rights can enjoy

sovereign 쇼 andat the same time, only human rights which guarantee sovereignty is

justifiable.

As mentioned above, the <Asian Human Rights Charter> is convincingly overcoming

the diverse criticisms which are set forth in the modern discourse about human rights.

Furthermore, the critical viewpoint the <Asian Human Rights Charter> takes about

'wrong globalism', that is, a critical view toward 'globalism' and the critical view toward

national or economic ideology and regarding distorted nationalism shows that the

<Asian Human Rights Charter> is an ideology based on differences and not based on

the principle of sameness. The <Asian Human Rights Charter> states that human rights

must not become a logic of the strong but must be the logic of the weak. Of course,

there are several limitations despite these positive results.

The <Asian Human Rights Charter> in 1993 started from criticism by NGOs

regarding the Bangkok Declaration announced by the ASEAN based on the ideology of

"Asian Value'.Accordingly, the human rights charter was carried out purely by NGOs

without the consultation process of Asian governments. This is why the <Asian Human

Rights Charter> contains progressive content which was unheard of in the past.

However this execution process has weak points. Most of all, the <Asian Human Rights

Charter> is not expanding the human rights from a moral concept to a legal concept.

That is why it seems that the <Asian Human Rights Charter> is cannot overcome the

limitation of being a moral declaration of NGOs. Moreover, the <Asian Human Rights

Charter>is not developing into a standard of substantial oppression and limitation

regarding the anti-humanitarian systems and power execution in various Asian countries

This limitation on the onederives from the fact that Asian countries were excluded in

the process drawing up the <Asian Human Rights Charter> but on the other hand it was

because the charter wascompleted and announced in a situation where the public

autonomy of the Asian people was not exercised.Concretely it is because transparent

disclosure and comprehensive sharing process regarding the diverse types of procedures

and regarding the conference was insufficient. This limitation resulted in the content of

the human rights charter limiting awareness of the voting rights (rights about

communication and procedures) whose rights were emphasized in the <European Union

Basic Rights Charter>.

Now the <Asian Human Rights Charter> has to overcome the level of just being a

moral declaration and has to be expanded into a basic rights charter by a

consultativeprocess between related countries, organizations and the whole Asian

people. In this process, we are in need of governance which signifies public rule which

means non-hierarchical and cooperative ruling method between the pluralistic entities of

society including the government and not through a declaration by a government which

means government-centered rule or a declaration centering on a NGO. To this end, we

must first prepare the framework of Asian governance. Taking into account that in the

process of drawing up the basic plan of the <European Union Basic Right Charter>,

indirect participation of NGOs were guaranteed but very limited, the <Asian Human

Rights Charter> will need to come up with a developed human rights charter through a

more upgraded governance process.

Human rights are not a composition of fixed and settled norms but must be aconcept

which is formed in the process of continuous criticism regarding rule and oppression

carried out in a negative reality. Accordingly, human rights must always not be a

language for the ruling system but on the other hand must be the words for the

oppressed and the excluded, the rights for the excluded others or those who are not the

same who either are not assimilated into the system or refuse to be assimilated.

In this context, we must most of all come up with human rights indicators based on

the <Asian Human Rights Charter>. The human rights charter needs to be proposed and

evaluated according to the universality and the distinctiveness of each country. First of

all, it seems that it would be best for the human rights indicators to be proposedfrom the

perspectives of NGOs in each country. It is because through this, the human rights

indicator can be effectively set forth which sufficiently take into consideration the

historical distinctiveness, cultural distinctiveness and the social and economic

distinctiveness of each country.

The concrete human rights investigation, evaluation and declaration of theNGOs

through human rights indicators can limit the activities of the governments and local

autonomies of each country and furthermore provide a cornerstone so that the<Asian

Human Rights Charter> can be established through Asian governance. If the <Asian

Human Rights Charter> needs to be formed newly through Asian governance, it will be

best for the human rights indicators to be drawn up and selected by the NGOs so that

the concrete and special understanding and interests of the Asian people are reflected.

The human rights indicators drawn up mainly by governments or national organizations

have a high possibility of distorting the harmony between human rights, sovereignty,

the universality of human rights and distinctiveness.

The NGOs of Korea also need to come up with a unified human rights indicator. Of

course, before this, there needs to be proposals and executions of diverse forms of

human rights indicators which can limit the local governments according to the special

situation of each region. In this process, there is a need for the Korean human rights to

Be sensitive to the human rights of foreigners or migrant laborers and diverse human①

rights related issues which occur during the process of globalization Need to come②

up with regional human rights indicators, evaluate them and through this, connect

human rights to concrete issues in life and discuss them in the process of checking the

local autonomies. As human rights need to be concrete and practical ideology, the

human rights indicators should not be forced in a fixed framework.

THE POLITICAL AND HUMAN RIGHTS CONDITIONS IN ASIAN

COUNTRIES

I

Introduction

In Asia, as indeed anywhere in the world, the is a strong interdependence and

interrelatedness between political conditions and human rights conditions:

· Good governance brings with it political stability and inclusion, thus creating the

ideal environment for promoting, protecting, respecting and realizing human

rights: all human rights (economic, social, cultural, civil and political) for all

(individuals, communities and groups).

· Respect for human rights in turn fosters good governance.

· Bad governance and exclusion brings with it political instability and very

adverse human rights conditions.

· Disrespect for human rights and their systemic violation encourage bad and

unaccountable governance.

In most countries in Asia, the human rights and political conditions prevailing are like

the proverbial glass of water: half full or half empty depending on ones perspectives.

II

Challenges and opportunities regarding human rights in Asia

At least 5 major and daunting challenges confront human rights activists, governmental

and nongovernmental alike in Asia today:

Co-optation

Asian governments are increasingly adopting a strategy of co-opting the rhetoric of

human rights and making token gestures such as adopting national human rights plans

or creating a national human rights commission with a mandate and resource base so

limited as to make it ineffective. However, Asian human rights activists have responded

by trying to co-opt the co-opted! They have worked with national human rights

commissions and made them effective, often helping to provide human and other

resources, while constantly engaging with them and pressing them to do more.

Similarly, national human rights plans which were intended to be on paper only, have

taken on a life of their own and donors have been quick to respond, to support the

trend..

Confrontation

Certain Asian governments do not hesitate to crack down on human rights activist

whether in Bangkok or in Beijing. However, national refusal to be cowed down and

regional and international support has helped fight back. Urgent action appeals, and hot

lines have been established within Asia itself and an independent media is being

nurtured in several countries.

Conceptualization

Asian human rights intellectuals and activists have worked hard to debunk myths and

misconceptions about human rights spawned by some Western academics, namely that

economic, social and cultural rights are not really rights (unlike civil and political

rights) since they are realized only progressively. Or that human rights are rights only of

individuals and that there can be no such thing as collective rights. But much work lies

ahead in conceptualizing and realizing the rights of minorities, of indigenous peoples or

of migrant workers and the internally displaced. Work is also needed to encourage

justiciability of human rights but to not make justiciability a precondition for the

recognition of human rights. Most importantly, work is needed to hold non-state actors,

corporate, institutional or individual, accountable for the human rights consequences of

their acts and activities.

Capacity

Human rights NGOs and practitioners need to develop their capacities in newly

emerging fields such as applying a human rights-based approach to development, or

utilizing new information technologies for more effective networking.

Co-operation

Human rights NGOs and activists need to improve their ability to co-operate and work

with community-based organizations, peoples organizations, social movements and

other cause oriented action groups such as those working on environmental issues,

consumers issues etc.

But aside from these challenges, at least 5 major opportunities are also visible regarding

human rights in Asia.

Ratification of human rights treaties

There is a distinct trend towards ratifying human rights instruments on the part of some

Asian governments in post-conflict situations, either as part of an international peace

accord as is the case with Afghanistan or on attaining independence as is the case with

East Timor. After ratification, there is also the positive trend of including human rights

in several of the new Constitutions that have been drafted in Asia during the past

decade. The challenge now lies in moving from national incorporation to national

implementation as well;.

National Human Rights Commissions

Perhaps with greater frequency than any other region in the developing world, Asian

governments have been moving to establish National Human Rights Commissions.

Admittedly, the mandate of such Commissions has often been flawed at inception. But

even so, as the experience in Sri Lanka, India and Indonesia clearly indicates, once set

up these Commissions have tended to take on a life of their own and are functioning

with greater autonomy and effectiveness than one could have dared to hope at their

inception. An Asia-Pacific Forum of National Human Rights Institutions has been

established for some time now and is going from strength to strength in networking,

providing technical co-operation and in forging solidarity links.

Emerging human rights jurisprudence

In several Asian countries, under the exceptional leadership of the Supreme Court of

India (and its pioneering work on social action litigation) the apex judiciary has taken

the lead in incorporating human rights into national law and developing human rights

jurisprudence. Thus, for example, the Indian Supreme Court has “read” the right to a

healthy and safe environment into the rights to life and health guaranteed by the

Constitution of India. The Supreme Court and Courts of Appeal in the Phillipines have

been organizing workshops to better understand the role of the courts in realizing

economic, social and cultural rights. Moreover, good judicial practices and precedents

are been shared and adopted within the region.

Changing attitudes to human rights in the large countries in Asia

Although there is a long way to go yet, there has been a distinct change in attitudes

toward human rights in the large countries in Asia, with China and Indonesia beginning

to adopt a more open stance, following the example of India. A large part of the

population of Asia is found in these three countries. In Indonesia, the leadership is

coming from the National Human Rights Commission. In China, the Ministry of

Foreign Affairs has already (in a span of around 5 years) twice hosted the Annual Asia-

Pacific Intergovernmental Workshop on Regional Human Rights Arrangements

organized by the Office of the UN High Commissioner for Human Rights under

mandates flowing from annual Resolutions of the UN Human Rights Commission anf

the UN General Assembly.

The least developed countries and human rights.

In Asia there has been a very healthy co-operation between the international donor

community and the governments of the least developed countries of the region. With

generous assistance from the government of Finland, the Lao PDR has embarked upon

an ambitious agenda of ratification of international law treaties, notably the human

rights treaties and is moving from national incorporation to national implementation

over a very short span of less than five years. In Cambodia, the international donor

community has helped bring into existence and strengthen a number of vibrant national

human rights NGOs.

II

Challenges and opportunities regarding political conditions in Asia

As with human rights in Asia, there have been at least 5 positive trends and

opportunities regarding political developments in Asia.

People power

Over the past decade and more, there have been heartening manifestations of the

exercise of people power bringing to an end the reign of foreign occupation, autocrats,

dictators and the military in country after country in Asia: the Philippines, Bangladesh,

Pakistan (although lamentably short-lived), Thailand, Indonesia, South Korea, Vietnam,

and most recently East Timor are cases in point. Such exercise of people power has been

peaceful and non-violent. The challenge has been not in the restoration of democracy

but rather in the institutionalization of democracy.

Elections

There has again been a healthy trend in many countries in Asia towards the regular

conduct of largely free and fair elections accompanied by a growing willingness to

allow such elections to be freely monitored by international and national election

monitoring teams. Recognition of the importance of such election monitoring has been

generously made by the international donor community who have also provided willing

and generous support to the establishment of independent and effective National

Election commissions in several Asian countries..

Constitution-making processes

Especially in post-conflict countries in Asia there has been the welcome recognition of

the importance of constitution-making processes to peace-making and to peace-

building. International presence in such processes has been seen in Cambodia and in

Afghanistan. In Nepal, a decade ago, one of the most transparent and participatory

constitution-making processes produce the model, modern, constitution for the region.

Unfortunately, that document lies in tatters due to the usurpation of authority by the

Monarch in Nepal today.

NGOs and Civil Society

In many countries in Asia, there has been a flourishing of NGOs and civil society

organizations. There has also been a welcome trend of co-operation between human

rights NGOs, development NGOs and environmental NGOs exemplified for example,

in the campaign against the Narmada mega-dam project in India. Of course much more

needs to be done to strengthen networking and solidarity both within countries (and here

Iran is a shining example of best-practice) and also between countries (as the decades

long International Campaign for Justice in Bhopal so poignantly demonstrates).

Independence of the media

Given the degree of censorship and control of media that used to typify the Asian

region, there has been a welcome trend towards the development of independent and

responsible media in several countries of the region. Undoubtedly the information and

communications technology revolution has played a positive role here. But so too has a

change in the attitude of several governments in Asia.

Despite the above positive trend noted, one must guard against being too sanguine.

Formidable challenges continue to persist as well.

The failure of political parties

An alarming trend in many Asian countries has been the failure of political parties as an

institution for genuine and effective political participation. Unfortunately, it is a trend

that has not yet attracted the attention it deserves. There has almost been a fatalistic

tendency to accept “low-intensity democracy”. The need of the hour however, is for a

region-wide campaign to reject “low-intensity democracy” as being in fact “no-intensity

democracy”!

Internal armed conflicts

Too many Asian countries are plagued by long-standing (Sri Lanka), persistent (Aceh),

violent (Kashmir).internal armed conflict which is often being inadequately addressed

by the government in power as is the case with the 6 provinces in Southern Thailand

today. We the peoples of Asia need to strive to stop Asia from being the region in the

world with highest incidence and intensity of internal armed conlict.

Protection of minorities

A major cause of internal armed conflict in Asia has been the lack of protection of

minority rights. Asia has a proud heritage of cultural diversity and pluralism which we

once cherished and celebrated. Today, as a result of the ethnicization of politics and

because of the politicization of ethnic identity, many Asian governments look upon

ethnicity and diversity as something to be feared, controlled and suppressed. As ethnic

identities become more and more insecure, intolerance and fundamentalism hold sway.

We need to go back to the practice of appreciating differences and celebrating one

another’s festivals.

Poverty

Despite prosperity for some, poverty for the many remains the rule rather than the

exception in Asia. The growing gap between rich and poor, both within countries and

between countries needs to be addressed with highest degree of political will if peace

and stability are to be attained in our region. Economic globalization is marginalizing

millions in Asia and only a regional approach to the harmful practices of economic

globalization is likely to stem the rising tide of pauperization and human misery.

Prison

Prison conditions in many Asian countries are appalling and should be universally

unacceptable. Yet prison reform remains neglected on the political agenda of most

governments in Asia. This must be redressed instantly. As long as some remain in chains

in Asia there will be no true freedom for anyone in Asia.

In sum therefore, let us not be content to rest on our laurels; but rather let us rage, rage

against the dying of the light.

Clarence J, Dias,

New York.

November 5, 2005.

Paper presented by Gokul Pokhrel, Commissioner,

National Human Rights Commission (NHRC), Nepal, at

The Gwangju Forum on Asian Human Rights

Gwangju City, 7-9 December, 2005

Honorable Chairman,

Distinguished members of human rights community of Asia,

I feel much honored to participate in this august forum organized by our Korean hosts

with the aim of promoting and developing the spirit of democracy, human rights and

peace among various countries of Asia though their respective national human rights

commissions and non-governmental institutions. I would like to avail of this occasion to

extend warm greetings from the Chairman of Nepalese Commission to the 18 Memorial

Foundation, the Korean National Human Rights Commission and Korea Democracy

Foundation for hosting this important meeting at a very critical moment of history when

the lofty principles of human rights are under severe strains in several transitional

democracies, Nepal not being the exception.

While we are assembled here to make fresh appraisal of the human rights situation vis-

à-vis the commitments made by the respective governments to various international

treaties and agreements, our heart and mind bow in reverence to the sacrifices and

memories of the May 18 Gwangju Democratic Uprising, that has stood up as a beacon

providing immense inspiration to many emerging democracies the world over.

It is my honour to attend this meeting representing Nepal, which is now the focus of

attention in various international fora where our friends have expressed their legitimate

concerns over the derailment of democratic institutions in the wake of prolonged

internal conflict and violation of human rights in the absence of a polity based on the

respect for rule of law.

The political situation worsened from 1st February, 2005, when the king imposed a state

of emergency and formed a government under his chairmanship. The imposition of

emergency and direct rule generated wide spread criticism in the country and abroad as

it led to drastic curbs on human rights and media freedom. While the three-month state

of emergency ended on 29 April this year, the situation thereafter has not been

encouraging either. Fundamental rights of the people continue to be violated and abused

with increasing incidents of illegal arrests and re-arrests. The country in effect, is ruled

by ordinances and, in some cases, actions are based on ad-hoc expediencies over respect

for constitutional provisions. The absence of dialogue between the parliamentary

opposition parties and the government at the face of continued threat from the Maoist

insurgency has intensified instability at home and serious concern among international

community who want to see democracy restored in the country at the earliest.

Recent Issues at the Commission

The National Human Rights Commission (NHRC) of Nepal had to bear the brunt of the

worsened political environment when it was reconstituted on 27 May, 2005. The

resentment expressed by a section of human rights NGOs of Nepal over the composition

of a new team headed by the former chairman and the concerns expressed by

international fraternity of human rights organizations regarding the independence of the

Commission and its competence were not unfounded in the prevailing environment of

instability and conflict. In this context, the visit by a UN Fact Finding Mission to Nepal

last June and its recommendations thereafter have been very useful in dispelling many

of the apprehensions raised earlier regarding the performance of the national institution.

We are indeed very grateful for the criticism from friends of human rights NGOs in

Nepal and the constructive suggestions of international fraternity which have made us

more vigilant and alert in the dispensation of our onerous responsibilities in the most

critical juncture of our times.

NHRC has already initiated the process of implementing the recommendations made in

the mission report and realigning the activities of the national institution in conformity

with international norms and standards as far as practicable.

During the period of five months, NHRC has made relentless efforts to raise its voice

against cases of illegal detention of political leaders without any charges, the re-arrest of

detainees following their acquittal from courts and restrictions on the exercise of

freedom of expression and opinion.

Defending Human Rights

NHRC expressed grave concern over the unlawful ban imposed on FM radio stations

prohibiting them to air programmes other than of entertainment nature. The protest was

more manifest when the government issued an ordinance on 9 October amending most

of the media laws on print as well as broadcast media that provided for drastic

curtailment of press freedom and freedom of expression. The law permitted broadcast of

information on sectoral developmental issues but restricted airing news and views of

political nature. While the media continued to defy the ban, security forces stormed the

office of the foremost and popular private radio channel Kantipur FM during midnight

on 21 October, 2005 and seized the up-linking equipment.

NHRC denounced the incident as a violation of the fundamental rights of the people and

summoned the Information Minister of the Government for an explanation. The

statement denouncing the government’s unreasonable action was widely reported in the

media. But it also drew sharp reaction from senior government leaders who publicly

repudiated NHRC’s role over the incident.

NHRC on Peace Dialogue

The Maoists declared a three-month cease-fire on 3 September, 2005 on the eve of great

Hindu festivals. NHRC welcomed the move as a ‘positive gesture’ and called upon the

government to reciprocate with similar actions. NHRC regretted that the request did not

meet the response as was expected. The Commission has made relentless efforts

towards building a consensus for a human rights approach for conflict mitigation. In this

context, it once again called on His Majesty’s Government to respond to the ceasefire

positively and on both the parties involved in the conflict to sign on a cease-fire

document and Human Rights Accord drafted by the Commission. In our view, these

measures could be the first step toward confidence building and starting a peace

process.

During this period of unilateral cease-fire, NHRC undertook field monitoring of the

cases of human rights violations by both the State and the Maoists in 35 districts. Other

prominent human rights NGOs also undertook monitoring of human rights violations.

During this period, except sporadic cases of violence including abductions and forcible

extortion of money, the temporary peace gave immense relief to the people.

The period of unilateral cease-fire is due to expire on 3 December after which further

intense political confrontations are expected creating immense suffering to the common

people. There is still the need of promoting the agenda of peace at the mass level to put

enough pressure on the protagonists of power struggle to initiate dialogue and peaceful

settlement of their disagreements.

NHRC on Rule of Law

NHRC has been very forthright in pointing out lapses and shortcomings of the

government on various issues of public concern. It denounced the establishment of the

Royal Commission on Control of Corruption (RCCC) as contravening to the

Constitution of the Kingdom of Nepal, 1990 and human rights instruments to which

Nepal is a party, as well as principles of natural justice and rule of law. In recent times,

the promulgation of Media Ordinances followed by the Code of Conduct meant for

restricting the freedom of NGOs and INGOs operating in Nepal have further aggravated

public concern over the prevalence of rule of law in the country. NHRC has viewed

these developments with serious concern and is in the process of studying the

implications of these latest measures taken by the government. Certainly, it will be to

our advantage to share with members of regional and international community their

experiences and practices in other democratic country situations on these issues of high

priority public concerns. Meanwhile, the cases against the RCCC, media ordinance and

the code of conduct on NGOs are sub judice in the Supreme Court of Nepal. We hope

our apex court will finalize these cases in time.

NHRC on Asian Human Rights Charter

We are delighted to find that the Gwangju Forum on Asian Human Rights has, quite

appropriately, timed the occasion to make fresh appraisal of the contents of Asian

Human Rights Charter. We have noted with high admiration, the labor and efforts put in

by eminent scholars and civil society leaders of Asia for over a decade to bring the

historical document to the present shape. The document is an excellent piece of

synthesis of Asian social and cultural diversities with international human rights

covenants and charters and is applicable to various country situations that profess their

unflinching commitment to democracy, human dignity, freedom and human rights. I am

happy to find that many of our Nepalese friends have also contributed to enriching the

contents of the Draft Declaration during the consultation held in Kathmandu on 9 – 11

April, 1995.

I would like to submit my humble comments and observations on the Charter which are

as followed:

· Rule of Law, social and economic justice and democracy are the pre-conditions

for the dignity of people irrespective of their geography, ethnicity and

cultures. Some of values as codified by international covenants and charters

are universal in application and hence are subject to their implementation as

per the specified international and regional standards and procedures.

· We have noticed that different yard-sticks and criteria are adopted regarding the

composition and functioning of national human rights institutions in various

Asian countries. Such diversities are welcome to the extent that they are

conditioned by national requirements and situations. But in order to promote

their high sanctity and public trust, the Asian Forum is requested to look into

this matter from the view point of ‘best practices’ and flexibility norms

without compromising with international standards and principles.

· It is the responsibility and duty of various national institutions and civil society

organizations to disseminate the principles of the Charter as widely as

possible to educate the masses and generate thereupon a sense of belonging

to the international movement for enhancing human dignity including theirs

also.

· The Charter very rightly enjoins on the governments of States to respect the

various provisions of the Charter, share information with international and

regional bodies on human rights and provide open access to inspection

within the countries.

· NHRC finds merit in organizing a consultative meeting of concerned

organizations in Nepal to discuss the principles and operational modalities as

specified in the Charter for awareness creation among the stakeholders.

· The principles and modalities enumerated in the Charter should be made a part

of national curriculum of human rights and recommended for inclusion as

part of media training curricula and the curricula of various informal

channels of training.

Conclusion

NHRC fully endorses the principle that “Democratic and accountable governments are

the key to the protection of human rights” and looks forward to the restoration of

democratic institutions at the earliest. In this respect, any goodwill or assistance from

regional and international agencies aimed at finding a peaceful settlement of the

conflict, the prevalence of Rule of Law and protection of human rights will be highly

commendable. NHRC as an independent national institution created by a special Act of

law expresses its commitment to ensure that all the regional and international principles

on human rights and other rights associated with it are honored by the State and other

parties concerned. Despite our limitations and constraints under the very complex and

instable political environment we are facing today, we feel nonetheless, encouraged by

the support and understanding shown by human rights institutions and friends of the

Asia Region.

Human Rights Commission of Malaysia (SUHAKAM) -

Human Rights Activities and Issues

(Presented at Gwang Ju, Korea)

Before I begin, allow me to express my appreciation to the organisers for giving me this

opportunity to address this esteemed conference. The Human Rights Commission of

Malaysia or commonly known as SUHAKAM is deeply honoured by the invitation.

Before I deal with the functions, powers and the work of SUHAKAM, allow me to give

you a brief background of Malaysia to better appreciate the context within which the

Commission works.

Malaysia is situated in South East Asia and comprises 11 States in Peninsular Malaysia

and two States, Sabah and Sarawak in the Borneo island. Malaysia’s population of

26.26 million1 is made up of diverse races, ethnic groups, cultures and religions. At the

1 2005 Third Quarter, http://www.statistics.gov.my

time of independence in 1957, Malaysia was known as Malaya and it was not until the

accession of the two States of Sabah and Sarawak in 1963, that the 13 States of the

Federation were collectively known as Malaysia.

Malaysia is a constitutional monarchy and also a representative democracy. What I

mean by this is that although the King is the Head of the State, sovereignty is in the

hands of the people who directly elect the government to govern the country.

Malaysia’s parliamentary democracy is based on the Westminster model, that is, the

legislative and executive powers are in the hands of the majority party. By way of a

general election, held every four years, the ruling government is formed by the party

that wins majority seats in Parliament. The Parliament of Malaysia consists of two

houses – the House of Representatives which comprises representatives elected by the

people during general elections and the Senate, which consists of two members elected

by the local legislature in each State and 40 appointed Senators. Since independence,

Malaysia has been governed by the National Front which consists of 14 component

parties2.

The second fundamental aspect of democracy is that of free and fair elections. The

Federal Constitution and various election laws in Malaysia prescribe the electoral

organisation, the conduct of elections, the constitution of an Election Commission and

the direct vote of electors. Since 1959, Malaysia has held free and fair elections.

The third feature of a democratic nation is an independent Judiciary. The Malaysian

Court system consists of the Magistrates Courts, the lowest Court in the hierarchical

structure, the Sessions Court and the constitutionally constituted High Court, the Court

of Appeal and the apex court of the land, the Federal Court. We have 87 superior Court

Judges and Judicial Commissioners. Whether the number of Superior Court Judges is

sufficient for a population of 26 million is an issue which merits separate consideration.

Suffice to say that the Commission has recommended that more Judges be appointed to

deal with the increasing number of Court cases.

2 The United Malays National Organisation (UMNO), The Malaysian Chinese Association (MCA), The Malaysian Indian Congress (MIC), Parti Pesaka Bumiputera Bersatu (PBB), Sarawak United People's Party (SUPP), Gerakan Rakyat Malaysia (GERAKAN), People's Progressive Party (PPP), Liberal Democratic Party (LDP), Sabah Progressive Party (SAPP), Parti Bersatu Rakyat Sabah (PBRS), United Pasokmomogun Kadazandusun Murut Organisation (UPKO) Parti Bersatu Sabah (PBS), Sarawak Progressive Democratic Party (SPDP) and Parti Rakyat Sarawak (PRS).

In Malaysia, the Federal Constitution is the supreme law of the land and contains basic

guarantees of fundamental liberties and freedoms. Of particular importance to human

rights is Part II of the Federal Constitution which provides for the right to liberty 3,

prohibition of slavery and forced labour4, right to the protection against retrospective

criminal laws and repeated trials5, right to equality6, right to freedom of movement7,

right to freedom of speech, assembly and association8, right to freedom of religion9,

right to education10 and the right to property11.

The Human Rights Commission of Malaysia Act 1999, the Act of Parliament that

established the Commission, uses as reference point these nine fundamental liberties as

a framework for the Commission’s activities and work. What is important to note is that

section 4(4) of 1999 Act states that, “regard shall be had to the Universal Declaration of

Human Rights to the extent that it is not inconsistent with the Federal Constitution”.

This provision marks a significant development in the law of human rights in Malaysia

as for the first time, a domestic legislation explicitly cites the application of the

Universal Declaration of Human Rights.

This brings me to the crux of my address - the establishment, powers, functions and the

work of the Human Rights Commission of Malaysia. The initiative to set up a national

human rights institution in Malaysia was brought about by a permutation of factors.

Firstly, Malaysia’s participation in the United Nations Commission on Human Rights

(UNCHR) from 1993 to1998 and the election of Tan Sri Dato’ Musa Hitam, former

Deputy Prime Minister, as the Chairman of the 52nd session of the UNCHR. In 1994,

Tan Sri Musa Hitam suggested to the Government that the time was right for Malaysia

to establish its own independent national human rights institution.

The increased international recognition of human rights and the important role of

national human rights institutions in the machinery for the protection of human rights

and the 1993 World Conference on Human Rights in Vienna also provided the necessary

impetus for the creation of the Commission. The Vienna Declaration and Programme of

3 Article 5 of the Federal Constitution.4 Article 6 of the Federal Constitution.5 Article 7 of the Federal Constitution.6 Article 8 of the Federal Constitution.7 Article 9 of the Federal Constitution.8 Article 10 of the Federal Constitution.9 Article 11 of the Federal Constitution.10 Article 12 of the Federal Constitution.11 Article 13 of the Federal Constitution.

Action, the main outcome document of the World Conference, which was concurred to

by the Government of Malaysia, called upon all States to promote and protect all human

rights and fundamental freedoms so as to secure full and universal enjoyment of these

rights. In addition, countries within the region such as Indonesia, Philippines, India, Sri

Lanka, Australia, Fiji, Iran and New Zealand had already established their own national

human rights institutions and Thailand was in the midst of setting up its own. To date,

17 countries within the Asia Pacific region12 have established their own national human

rights institutions, including Korea which established its commission in the year 2001.

With the favourable developments at the international and regional level, in July 1999,

the Bill to establish the Human Rights Commission of Malaysia was tabled in

Parliament. On 3 April 2000, the Government announced the appointment of

SUHAKAM's first Chairman, Tan Sri Dato' Musa Hitam, and the 12 other members of

the Commission.

The Human Rights Commission of Malaysia is an independent body and its

establishment is based upon the Principles Relating to the Status of National Institutions

or more commonly referred to as the Paris Principles13. The Paris Principles provide the

international standards that independent human rights commission should possess. The

provisions in the 1999 Act guarantees the independence and pluralism of the

Commission. Commissioners are appointed by His Majesty the King on the

recommendation of the Prime Minister and Commissioners are selected to reflect the

diversity and pluralism of Malaysian society as required by section 5(3) of the 1999 Act.

Furthermore, to ensure a stable mandate for the members of the Commission, without

which there can be no real independence, appointments are for duration of 2 years,

appointments are renewable and a Commissioner can only be removed from office for

cause. The Commission presently has 17 Commissioners, almost with an equal amount

of men and women, from different racial background.

To ensure that the Commission is able to discharge its functions under the 1999 Act,

consonant with the Paris Principles, the Government is required by law to provide

“adequate funds annually”14. Adequate funding is a crucial factor in preserving the

independence of any national human rights institution.

12 Afghanistan, Australia, Fiji, India, Indonesia, Islamic Republic of Iran, Jordan, Malaysia, Maldives, Mongolia, Nepal, New Zealand, Palestine, Philippines, Republic of Korea, Sri Lanka, Thailand.13 Adopted by General Assembly resolution 48/134 of 20 December 1993.14 Section 19(1) of the 1999 Act.

The functions of the Commission as set out in section 4(1) are:

· To promote awareness of and provide education relating to human rights;

· To advise and assist Government in formulating legislation and procedures and

recommend the necessary measures to be taken;

· To recommend to the Government with regard to subscription or accession of

treaties and other international instruments in the field of human

rights; and

· To inquire into complaints regarding infringements of human rights.

The 1999 Act also provides the Commission with powers to enable it to discharge its

functions effectively. Under section 4(2), the Commission is empowered to do the

following:

To undertake research by conducting programs, seminars and workshops and to

disseminate and distribute the results of such research;

To advise the Government and/or relevant authorities of complaints against them and to

recommend appropriate measures to be taken;

To study and verify any infringement of human rights;

To visit places of detention in accordance with procedures as prescribed by laws relating

to the places of detention and to make necessary

recommendations;

To issue public statements on human rights as and when necessary;

To undertake appropriate activities as are necessary.

The Commission’s activities and functions are carried by four working groups, namely,

the Education and Promotion Working Group, the Law Reform and International

Treaties Working Group, the Complaints and Inquiries Working Group and the

Economic, Social and Cultural Rights Working Group. Allow me to briefly elaborate on

one of the principal functions of the Commission - inquiring into complaints. The power

to inquire into complaints is an important aspect of any national human rights institution

as it establishes an avenue for the general public to lodge a complaint on any

infringement of human rights and it provides independent investigation of human rights

abuses. The function of inquiring into complaints is carried out by the Complaints and

Inquires Working Group. The Commission is prohibited from investigating into

complaints which are the subject matter of proceedings pending in a court of law or

which have been finally decided by any court. Where an inquiry discloses the

infringement of human rights, the Commission has the power to refer the matter, where

appropriate to the relevant authority or person with the necessary recommendations. For

inquires that do not disclose infringement of human rights, the Working Group will

record the finding and inform the person making the complaint.

The Human Rights Commission of Malaysia is in its 5th year of operation and based

upon the principle of universality, indivisibility and inalienability of human rights, the

Commission’s activities have ranged from civil and political rights to economic, social

and cultural rights. Amongst the reports published by the Commission are the Report on

Trafficking in Women and Children, Report on the Review of the Internal Security Act

1960, Report on Accessibility to Basic Needs, Report on Freedom of Assembly, Report

on the Rights of Remand Prisoners, Report on the Forums on CEDAW15 and more

recently the Report on the Forum on Right to an Expeditious and Fair Trial (Civil and

Criminal Courts) and the Report on the Millennium Development Goal 1 on eradication

of extreme poverty and hunger.

The Commission has also submitted a Memorandum to the Special Commission to

Enhance the Operations and Management of the Royal Malaysia Police where the

Commission highlighted serious human rights issues such as deaths in police custody

and as a result of police shooting, police brutality, inhuman or degrading treatment of

persons in police custody, abuse of power and police inaction. In addition, the

Commission made a submission to the Parliamentary Select Committee on the Penal

Code (Amendment) Bill 2004 and Criminal Procedure Code (Amendment) Bill 2004.

This provided the Commission with an opportunity to present its views and

recommendations on several issues such as sexual abuse and violence within marriage,

increased powers of the police in criminal surveillance and intelligence, right to privacy

and the definition of terrorism offence.

Under section 12 of the 1999 Act, which empowers the Commission to conduct

inquiries on its own motion or acting on a complaint, the Commission has carried out

three public inquiries. The first public inquiry, the KESAS Highway Public Inquiry was

an investigation into an incident that occurred on the KESAS Highway on 5 November

2000 when the police prevented a rally from taking place. Essentially, the allegations

were that many people were arrested at the incident, some of whom were injured. The

second public inquiry was prompted by the numerous complaints and memorandums

15 Convention on the Elimination of All Forms of Discrimination Against Women.

received by the Commission on allegations that persons detained under the Internal

Security Act 1960 were subjected to ill-treatment while under detention. The third

public inquiry was held in the year 2003. The Commission appointed a panel of three

Commissioners to hold a public inquiry to look into allegations of human rights abuses

by a private company and the police, in the town of Kundasang, Sabah.

The role of national human rights institutions will become progressively important in

the protection and promotion of human rights especially at the domestic level. The

escalating number of security legislation enacted in the name of preventing terrorism

demands greater vigilance on the part of national human rights institutions to ensure that

fundamental liberties are not eschewed in the name of terrorism and national security.

At the regional and international level, cooperation in the Asia Pacific region is greater

than before and for the first time, the United Nations Ad Hoc Committee to consider

proposals for A Comprehensive and Integral International Convention to Promote and

Protect the Rights of Persons with Disabilities, extended an invitation to national human

rights institutions to participate in the drafting and formulation of the said international

convention – a significant recognition by the United Nations of the role of national

human rights institutions in the formulation of international treaties.

I envisage that these developments would have an impact on SUHAKAM in particular,

on all national human rights institutions in general and on civil society at large,

inevitably increasing the responsibilities of national human rights institutions and civil

society to sincerely safeguard the fundamental freedoms of all people. On that note, I

thank you for being a captive audience and if there are any queries, I would be happy to

answer them.

Dato’ K.C. Vohrah

Commissioner

Human Rights Commission of Malaysia (SUHAKAM)

Involuntary Disappearances: Sri Lankan Experience

Since 1971 Sri Lanka, once a peaceful country has been under emergency rule up to the

present excepting for some brief intervals. The political turbulence of Sri Lanka began

in 1971 when the radical rebel movement Janatha Vimukthi Peramuna (JVP) (Peoples

Liberation Front) staged an organized armed insurrection against the government on

socio economic grounds.

The Coalition government led by the Sri Lanka Freedom Party (SLFP) declared a state

of emergency and curbed the insurrection in a few weeks.

For the first time in the recent history of Sri Lanka torture, involuntary disappearances

and extra-judicial executions were committed to crush the 1971 insurrection. Many

others who were not connected to the insurrection were also arbitrarily arrested and

detained under emergency regulations.

The United National Party government, which came to power in 1977, grew more

repressive. The Executive Presidency created under the new Constitution of 1977 made

the president a virtual dictator. Armed with emergency power promulgated by the

President and the Prevention of Terrorism Act (PTA) enacted by the Parliament later

began to suppress opposition and the peoples’ will.

The police, security forces, government backed groups of hoodlums. goons and

vigilante groups were used to harass and attack university students, trade unions,

political opponents, intellectuals, journalists and even Supreme Court Judges who

delivered fundamental rights violation judgments against the government. Police

officers found responsible for such violations were rewarded and promoted.

The rights violations dramatically escalated throughout the 1980s creating an

atmosphere of fear among the Sri Lankans, which drew the attention of the International

community. The infamous Referendum held in 1982 to postpone the life of the

Parliament was won by intimidating and harassing millions of people. The Government

started to terrorize Opposition political parties, trade unions and other civil society

organizations that opposed the anti-people economic policies of the Government, which

weakened the people’s capacity to dissent.

During the same time ethnic Tamil youths in the Northern Part of Sri Lanka who

claimed that the majority Sinhala Government in Sri Lanka had discriminated against

them, socially, ethically and economically launched a rebellion against the Government

under the banner of Liberation Tigers of Tamil Elam (LTTE). Their campaign

intensified in the 1980 in the North and spread to the East of the country and the

Government’s reaction was to use increased violence against them. The arrested

members of the LTTE were tortured and executed extra-judicially and were made to

disappear.

In the meantime the JVP also launched a second insurrection in the South almost at the

same time.

Government security forces, paramilitary squads and vigilante groups massacred

thousands of suspected JVP members as well as political opponents of the Government.

Incidents of involuntary disappearances, extra judicial killings and torture increased

dramatically.

The JVP and the LTTE insurrections were also violent. They also massacred hundred of

innocent people. Nevertheless the horrendous onslaught unleashed by the State on its

opponents threatened the basic human right of all Sri Lankans. When the State itself

becomes brutal and lawlessness and anarchy reigns the entire democratic fabric

crumbles. The Sri Lankan government failed to understand the saying of Nietzsche the

German Philosopher that "whoever fights monsters should see to it that in the process

he does not become a monster himself’.

According to the UN Working Group on Involuntary and Enforced Disappearances

(UNWGIED) report released in 1992, Sri Lanka with approximately 12,000

documented disappearances had the highest number of recorded involuntary

disappearances in the world. According to Human Rights Organizations, between

40,000 to 60,000 people had disappeared between 1983 and I990. Thousands were

detained in military detention camps. Furthermore, government sponsored death squads

executed many more thousands extra-judicially.

All these were perpetrated in the guise of protecting national security by using the

dreaded emergency regulations which permitted wide powers of arrest and detention

and even provided for the disposal of dead bodies without holding inquests and the

Prevention of Terrorism Act, which was introduced as a temporary measure to cover

only the North and East of the country was made permanent and enforceable all over the

country by a later amendment.

The Peoples’ Alliance (PA) Government came to power in 1994 with a solemn

undertaking inter alia to uphold the Rule of Law and to stop the forces violating

fundamental human rights and to bring before justice all those who were responsible for

the involuntary disappearances. This promise mainly influenced its election victory. But

their actions within the past eleven years show that the present Government’s attitude is

also nothing but apathy and condonation.

This is amply proved by the Report of the 56th Session of the U.N. Working Group

released on 05th April 2000. The report observed among other things “Sri Lanka remains

the country with the second largest number of non-clarified cases of disappearances.

Many of the missing persons allegedly traced by the authorities seem not to correspond

with the disappeared persons submitted by the Working Group”. Although a

considerable number of criminal investigations had been initiated in relation to

disappearances which occurred since 10 years ago only a very few of the suspected

perpetrators have actually been convicted.

After much pressure from various human rights organizations inside the country and

from the International Community the P.A Government set up three Presidential

Commissions of Inquiry into the involuntary removal and disappearances of persons

occurred since 01st June 1988 on territorial basis. All the Commissions submitted

comprehensive reports in September 1997 however without having finished their work.

The investigation of some 10.000 remaining complaints of the old cases was entrusted

to a 04th Commission. About 4.000 suspected individual perpetrators were identified,

about 500 of them have been indicted and a few of them convicted. In the meantime too

high level of disappearances continue to be reported

After the LTTE unilaterally ended peace talks in April 1995 several cases were reported

in Colombo, the Capital and the East of the country. The number increased dramatically

when the Armed Forces regained control over the Jaffna peninsula from the LTEE. In

1995 there were 78 and 623 in 1996, and in 1997 there were 92 cases of reported

involuntary disappearances. In 1998 and 1999 the number has come down to 4 and 2

respectively. This could rise at any time considering the possibility of re- escalation of

the internal armed conflict.

No independent Presidential Commissions have been appointed to probe the

disappearance that occurred during the present regime. Hoverer, a Special Board of

Investigations into the disappearances in the Jaffna Peninsula was appointed which

investigated a total of 2,621 complaints and traced more than 200 disappeared persons

and identified a number of perpetrators.

The three (03) earlier Presidential Commissions into disappearances investigated a total

of 27,742. A further 10,135 alleged complaints were entrusted to be inquired into by the

04th Commission that was functioning, out of which 4,052 cases have been identified as

" proven”.

Apart from only a few found alive all of mere than 20,000 disappeared persons are

presumed to be dead. More than 15,000 death certificates have been already issued in

accordance with the Temporary Legislation (The Registration of Death Amendment

[Temporary Provisions) amendment Act).

The final reports of the four Presidential Commissions were formally published in but

only a limited renumber of copies were printed and are hard to find.

In addition to above cases complained to the Commissions there were many more cases

of involuntary disappearances during the period between 1983 – 1990.

No Presidential Commission of Inquiry has been appointed to go into the

disappearances that occurred after 1994 up to date. The details about such

disappearances have been already dealt with.

Eleven though the Commissions in their report have found that the disappearances is a

result of a well-orchestrated practice carried out by the State the United Nations

Working Group on Disappearances in its report dated 28th December 1998 comments

about the findings of the three Commission as follow.

"The findings of the four Sri Lankan Presidential Commissions states that it has

established a systematic practice of disappearances carried out by the State.

This comprehensive practice includes the initial design of lifting the legal

obstacles that impede disappearances by way of;

1.Carefully drafted emergency regulations

2.Planning and executing abductions (arrest with intention to kill)

3. Establishing detention centers.

4. Training and instructing personnel to, torture kill and dispose bodies

5. The maintenance of mass graves and

6. General instructions to erase all records and to protect the culprits.

What obligations do these well-founded facts established by the Government sources

pose to the international community? The Sri Lankan Presidential Commissions

emphasize the special character of the crimes committed by the State which uses it’s

power to violate the law rather than to uphold it.

In all the Commissions narrated by thousands of humble petitioners of thousands of

abductions and disappearances bore powerful witness to the fact what we are looking at

was an orchestrated phenomenon and not a series isolated instances explicable in terms

of “excesses’” bi individual transgressors.

The 04th Presidential Commission on Disappearances (All-Island) finalized its work a

long time ago but had to wait long to get an appointment with the President of the

country to submit its report. By this alone the International Community can ascertain

the importance the Government attaches to Presidential Commissions on

Disappearances. It is not strange that disappearances are beginning to take place again

in various parts of the country.

The mandates of the four Presidential Commissions expected there to report on inter alia

whether any person or persons were responsible for the removal or disappearance of any

persons and if so what changes in the Laws are needed to prevent such occurrences in

the future and so on.

The Commissions have reported that there is sufficient evidence to prosecute many

persons responsible for disappearances but the Government who rode on the back if

victims, disappeared persons, to power have not taken action against the perpetrators.

The Missing Persons Unit (MPU) in the Attorney-General’s Department which is in –

charge of prosecuting the culprits on the findings of the Commissions have been slow

and negative in their approach in 1997 and proceedings have been instituted only

against about 200 security personnel of the lowest ranks, like Constables and Sergeants

whilst the seniors in the hierarchy like Superintendents, Assistant Superintendents of

Police and Commanders of military units have been exempted. Even the actions filed

are not perused diligently showing the same interest shown in prosecuting ordinary

civilians. It is correct to say that in the majority of such cases taken up for trial in

various high courts in the country, the majority has been acquitted. Though several

leading politicians of the previous Government have been named as persons responsible

for disappearances none has been prosecuted so far. A leading politician of the previous

government against whom there was clear evidence of complicity in the famous

Embilipitiya students disappeared case joined the Peoples Alliance Government and was

made a Minister.

A specific directive by the President issued on the 11" of January 1996 to send on

compulsory leave nearly 200 Police and Army Officers against whom there is evidence

of complicity in disappearances has not been carried out so far. The directive addressed

to the Inspector General of Police and the Service Commander to comply with and

report within one month from the said date has been defied with impunity. The failure of

the president to take action against the violators of her order shows that the officers

concerned know that no follow up action would be taken against them for non-

compliance with the President’s directive.

As a result of the public outcry the Attorney General Department indicted 597 personnel

of the security forces and Police and interdicted in their posts in July 2000, but all of

them were reinstated in their posts in May 2001 by a circular issued by the Deputy

Inspector General (Personnel) on the instruction of the Inspector General of Police.

The Commission’s reports also mention about 15 mass graves in various parts of the

country but no action has been taken to probe them, to exhume the sites or record the

evidence of the witnesses who have mentioned about these sites to the Commissions in

spite of recommendations to that effect. Even at Suriyakanda there are many bodies to

be exhumed. The government was under pressure to take action about the graves at

Chemanai in the North because of the dramatic revelation by a Lance Corporal

convicted in the famous Krishanthy Coomraswamy rape and murder case that many

LTTE suspects were killed extra-judicially and buried in mass graves mentioned above

remained unprobed because the corrupt leaders in the third world countries need Armed

forces to protect themselves against the people.

Torture:

Even though the Sri Lankan government has incorporated the provisions of the UN

Convention on the prevention against Torture by an Act of Parliament, only one person

has been prosecuted so far and that too in the absence of the accused.

Conclusion

The Sri Lanka state must review the current legislation, regulations and orders in

relation to Fundamental Rights to ensure that they comply with its International

obligations.

The procedure under the National Security Laws & Regulations must be either repealed

or amended to be compatible with the International standards in this respect.

All effort must be made by the Sri Lankan authorities with the support of the civil

society to re-establish the hallowed rule of law.

Suggested Resolutions

Resolution 01

“ Where as countries in Africa, the Americas and Europe have adopted their own

regional Human Rights Charters and Monitoring mechanisms & Judicial Tribunals

under those charters for the protection and promotion of Human Rights in their

respective regions this forum resolves that the countries in Asia adopt the Asian Human

Rights Charter of 1998 which will lead to the establishment of an Asian Convention on

Human Rights which will provide for monitoring mechanisms and judicial tribunals for

the protection and promotion of Human Rights in our region.”

Resolution 02

“ Where as the open ended working group appointed by United Nations Commission on

Human Rights has approved a convention against enforced disappearances, this forum

resolves that all states parties of the United Nations in the Asian Region adopt the above

convention without any reservations.”

Resolution 03

“ Where as United Nations’ working group on involuntary and enforced disappearances

(UNWGIED) and Presidential Commissions against enforced & involuntary

disappearances appointed by Her Excellency the President of Sri Lanka have submitted

extensive recommendations to the Government of Sri Lanka in respect of dispensing

transitional justice to the victims and their families, this forum resolves that the

Government of Sri Lanka implement all those recommendations without any further

delay.”

Harischandra Samarasinghe

Member of Board of Directors

Centre for Human Rights and Develo0pment (CHRD) &

Projects Consultant

Organization of Parents and Family Members of the Disappeared (OPFMD)

Written by:

Ahmad Zia Langari

Commissioner

Afghanistan Independent human Rights Commission

15 November 2005, Afghanistan

Afghanistan Women and Human Rights

Afghanistan with its traditionally conservative society still maintains the culture of

medieval history in some parts of the country. Two factors, the tribal traditions and

miss-perception from the Islamic, made most of the communities very conservative.

Except in the capital and in areas of big cities, women have no presence in public as

men. Men and women do not set together to discuss social issues, telling their

suggestion and making joint decision. The female employees of the government

departments are symbolically given chance to participate in dialogues with male

employees for making decision, while in-deed male employees are the main decision

makers. In rural communities, women and men of the village never set together to

discus over the community issues, except in serious cases of family or community

dispute that only old ladies, if men requested, can participate in the community

meetings. In most communities of the rural and semi-rural areas, women are not

allowed to talk face to face with man who is not her family member or relatives.

In Afghanistan gender disparity exercise starts from the first days when a baby born.

Having son is counted a great privilege for a couple while not for the female baby. Very

expensive birthing ceremony is organized by the parents of a male baby while not for

the female baby. This tradition is unfortunately practice even by educated and scholar

families. From the first days when a baby learns playing, parents and family members

treat it differently according the baby gender. The method of education for every aspect

of life is different for boys and girls. Female children of over 12-13 are deprived of

going to school because there is no girl schools in rural areas. Also from the point view

of wrong perception from Islam, girls not allowed to attend the same classroom with

younger boys. Girls have to be separately educated, while this opportunity is only exist

everywhere in the country except in some parts of rural areas where NGOs or

government have constructed the secondary schools for girls. Because of very

conservative thoughts overshadowed the tribal communities, girls were not to go even

to elementary schools, but during recent years, as a result of successful awareness

raising programs done by NGO among rural communities, nowadays girls are allowed

to go to the same elementary school as boys. Unfortunately, 70% of rural areas have no

secondary and high school for girls. In many areas, the elementary schools are located

about 6-10 kilo-meter far from the homes of children which is difficult for girls to walk

every day, while a few number of boys can use bicycle. In many areas of the country,

even in the capital, because of shortage of adequate school premises, tents are used as

classroom, and students have to tolerate cold days of Spring and Autumn and very hot

days of summer which raise up to 35-43oc. However, this is the indicator of people’s

enthusiasm to education.

For easy highlighting the situation of women’s human rights in Afghanistan, I would

like to focus briefly on challenges and progress made in due course:

Marriage and Women

Generally marriage is not taken place on the basis of man and woman’s decision. Due to

the existence of conservative traditions, except at high education institutions and at

workplace, man and woman have rare chance to talk/see each other face to face before

the engagement ceremony takes place. The decision for marriage mostly take by

parents. Most of woman and man is not given enough time to think about the suggestion

made by the parents for marriage or there is less chance for couple to get the necessary

information about the character of each other. Only those couple are lucky who are, by

chance, think the same way as each other and find them good partners, otherwise there

would be continuing family quarrel and disagreement environment for the whole life of

the couple, which negatively affects the future behavior of their children. Because of

tribal attitudes, resorting to divorce to end the whole life dispute, is very restricted, and

the man who divorce his wife gets very bad name among the community members, and

on the other hand, in case of divorce, their children are faced disaster because after

divorce, children are considered as stepchildren by their parents, which is very panic.

However, due to conservative environment, a single women cannot live alone as in

European countries, she has to live with her parents or member of her parent family for

the security reason. In spite of all, generally ninety percent of women loss in case of

divorce in Afghanistan.

One of the problematic forms of marriage in Afghanistan is the inevitable type of

marriage where a poor parents give their young daughter to rich man so as to get

sufficient money, who are mostly much older than the girl. In some cases, such men

might have one or two wife before the third marriage. The parents use this bride price

for investment to maintain their livelihood expenses or to pay their debts.

Exchanging marriage is another form of marriage that a number of couples are not

happy, but they have to tolerate it because the marriage cost is too high which is out of

their efforts. In such type of marriage, parents of girl agree to give their daughter to the

son of the second parents for marriage, and in compensation, second parents also have

to agree to give their daughter to the son of the firs parents so as to cut down the

marriage expenses. This is done mostly regardless of the girls and boys agreement.

The worst type of marriage is that a powerful or a rich man forces parents to give their

daughter to marry with him, regardless the age of the man, his education status, without

considering the agreement of the girl. Attractive girls are mostly targeted by rich men or

powerful commanders. In some cases, parents are in difficult situation even their life is

threatened. In case of disagreement by parents, the girl might be kidnapped.

However, all of these types of marriage, by this way or another, are forced marriage,

which denies the rights to free choice for marriage.

The Islamic principle for marriage is strictly conditional upon the agreement of man and

woman to orally agree by their voice in front of more than two adult persons, but

unfortunately in most cases, getting this agreement is forcibly done by their parents.

Access to Education

About 86% of women are illiterate in Afghanistan. The conservative culture in deed,

don’t consider the necessity of education for women. According to this perception, good

cooking, washing, cleaning the house, rearing children, looking after livestock, are the

indicators for an ideal housewife.

Although the first efforts for educating women began in the first decade of nineteen

century that, for the first time, about twenty young Afghan girls sent to Turkey for

higher education, but this effort was frustrated by the conservative clergies, even it

became one of the pretexts made by clergies to overthrown the reformist King

Amanullah in 1928. Removal of veil from women was also announced by the King

Amanullah. His wife, for the first time, came into public without veil, but this was also

frustrated till 1933. The first high schools for girls opened in thirties, first in the capital

and later on in main cities. Afterward girls were given opportunity to study in higher

education institutions. In the years of Sixties, Afghan women got the ministerial post

and a few of them elected as parliament members. During the ruling time of communist

regime, 1978-1992, women were given senior position and a big number of them

studied university and employed by government departments.

During the Mujahiddin’s ruling time, the environment for women’s participation in

different aspects of economic, social, cultural and political life, were limited which

challenged women’s fundamental rights and freedoms. The government separated the

male and female employees at workplace. Even in the same office space, women and

men were separated by developing partition. Recruitment of women in the

governmental offices was stopped. Most of the female students of the universities were

disappointed and left the universities. Putting large scarf was forced on women.

In the harsh atmosphere of Taliban regime (1994- November 2001) women were

seriously suppressed. No woman allowed to work at any office except in female wards

of the hospitals and governmental health clinics. Working outside home and women’s

education, even primary education for female children, totally banned by the regime.

The fundamental rights and freedoms of women were seriously abused. The worst form

of forced marriage was exercised by the Taliban commanders. Using overall veil by

women was forced and violators were lashed publicly. Women not allowed to be seen in

cities for shopping without family male supporter. Women were not allowed to talk with

a man of non-family member. Launching television programmes were forbidden and no

voice of women heard from radio. It was a killing period for Afghan women in the

history of Afghanistan.

Fortunately, after the establishment of the Interim Administration of Afghanistan in

January 2002, Afghan women now enjoy of their fundamental rights and freedoms at

least at low percentage in the capital and in main cities. Now they allowed to maintain

their studies at universities, going abroad for higher education, travel outside the

country, take the senior positions in the government, UN and NGO offices. More than

eighty NGOs are being managed by women, who had very good initiatives in the area of

economic, social and culture, and raised the capabilities of women through

empowerment programmes. Several publications and media organizations also run by

women. Three ministerial and one governor posts allocated in the new cabinet. Very

significant development took place in the area of women’s rights during recent years is

that the new Afghan constitution adapted the rights of women equal as men, The new

election law stipulated a positive discrimination for women to be elected as parliament

members, at the rate of minimum two women per province which is raised up according

to the size of the population of the province. Women candidates were elected for the

upcoming parliament. The President, in accordance with the law, have to appoint 15

women as the parliament member for the Upper House of the Parliament These are the

great achievements made since the onset of the Interim Administration. Off course, the

advocacy support of the international community has been very effective in this

achievement. Despite these, the Afghan society is still far away of protecting and

promoting women’s rights.

Access to Health Facilities

Most of the Afghan women have inadequate access to health services. Every half an

hour a woman dies of pregnancy-related problems. 1,600 out of 100,000 die during

childbirth, which 60 times higher than the rate in industrialized countries.

Due to Conservative attitude, women are not intending to go to those health clinics

which are run by men. According to UNFPA, over 80 percent of maternal deaths are

considered preventable. Women’s knowledge about reproductive health is very low.

Delivery clinics are limited only in big cities, while in rural areas only traditional birth

attendants, who are illiterate ladies, manage the delivery process at poor hygienic

condition. Few people are aware about HIV/AIDS. About forty HIV/AIDS positive

cases have been officially reported in the country, while may be there are more positive

cases that has not been so far diagnosed because HIV/AIDS diagnose is not possible in

private clinics in the country, or infected persons, themselves, have not been noticed

yet.

Employment

Women are doing varieties of works in rural communities. They are responsible for

cooking, child rearing, washing, house cleaning, livestock keeping, kitchen gardening,

looking after the orchards, fruit collecting and processing, and almost many of the post

harvest duties. In forest area, women are graze animals and collect wood from the

forest. Afghan women are very skillful in handicraft making in the northern part of the

country. They also perform some of the community work, but unfortunately not valued.

In main cities, educated women are working in the government offices, UN and NGO

offices and few of them are working in the private trade an industrial offices. Unless

there is no legal barriers curtailing women employment, but practically, because of

cultural barriers, women are given less chance to exercise their ability in management.

Women and Media

Afghan women nowadays are very active in media. They present well in TV and radio

programmes. They had good initiatives in designing those programmes, advocate the

status of women’s rights in different Afghan communities. Women also run more than

ten publications as monthly or quarterly magazines, and weekly news as well as other

non-periodical publications, which have effective role in raising the awareness of people

about human rights.

Afghan women and politics

Afghan women now got involved in politics. In the very near future the female

members of the parliament of Afghanistan will participate in every debate in the

parliament house. Women are participating in TV and radio roundtable interviews,

analyzing the political situation of the country, particularly women’s political rights, and

give comments. Several of Afghan women who are prominent ladies in the areas of

politics and human rights, have gained international price and honorary awards during

the last three years.

Women and Justice

Although a considerable number of Afghan women have academic law background but

they are not appointed as senior judge. They work as judicial staff in the courts and

attorney general offices, while a few of them are judges in the juvenile and family

courts.

Women’s vice heard rarely in the judicial offices for their case proceeding. Therefore,

they are not able to defend them in the court, and on the other hand, hiring advocating

attorney is impossible for destitute women. Due to traditions, registering a property by

the name of a lady in court offices is not so common, although there is no barrier in the

civil and Sharia codes in Afghanistan in this regard. Therefore, a lady registers her

properties mostly by the name of her husband of her brother.

Women and Violence

Afghan women are seriously victimized by different types of violence. Family violence

is of serious one among different violence challenging women rights and dignity. The

criminal justice system is simply unwilling or unable to address the issues of violence

against women. No sentence has stipulated so far in the law pertaining to violence

against women. The magnitude of family violence is so intensive that some of women

killed them due to serious depression and many of them have been disabled as a result

of attempt to suicide attempts. Self-immolation has been of the serious type of suicide

that more than 200 disappointed women have ended their lives in the last two years. The

main reason of suicide by women is the different types of deprivation, economic, social,

cultural, and civil, and generally being deprived of their fundamental rights and

freedoms.

Challenges

· Miss-perception from Islam by conservative clergies

· Overshadowing the tribal codes that challenge women’s rights and dignity as the

worst example are giving a women to a man as crime compensation and honor

killing

· Lack or poor security of women outside home

· Poor social knowledge of husbands about women’s rights and understanding their

special gender needs

· The existence of the culture of disturbing women outside home

· Existence of wrong perceptions within the society about the inequality of man and

woman

· Wrong perceptions considering that women are not naturally competent and capable

to perform social duties

· Ignoring special gender needs of women

· Inadequate legislation to address women’s rights and provide them opportunities for

development initiatives

· Not giving priority to women recruitment

· Kidnapping young girls for sexual exploitation

The Afghanistan Independent Human rights Commission and women’s rights

The Afghanistan Independent Human Rights Commission, from the first days of its

establishment in June 2002, paid its keen attention to the situation of Afghan women

and taken necessary steps to protect and promote the rights of women all over the

country. To achieve well, the Commission established its units of women’s rights

promotion and promotion in the headquarters and other 10 regional and provincial

offices throughout the country. The Commission receives complaints on women’s rights

violation and investigate them. The staff then refer them to the relevant government

departments to solve women’s problems. In cases of serious violation committed by the

government staff, it is directly reported to the President, the Head of the Supreme Court,

and Attorney General. To promote women’s rights, the commission raises public

awareness about the women’s rights through organizing meetings with different walks

of the society, organizing awareness workshops and also celebrating the International

Women’s Day, 8th March, and the International Day of elimination of Violence Against

Women, 25th November of each year. The commission, to address adequately the rights

of women through advocacy efforts, developed its relation with the Ministry of

Women’s Affairs, other government departments, UN and diplomatic representative

offices, and NGOs. The national and private media also very cooperative now to the

Human Rights Commission for airing awareness programmes of the Commission.

THE ACTIVITIES AND CONCERNS OF THE NATIONAL COMMISSION ON

HUMAN RIGHTS OF INDONESIA

BY SAMSUDIN

1. INTRODUCTION

Komnas HAM was formed based on the limited authority given through Presidential

Decree No. 50/1993 for the monitoring and investigation of Human Rights issues and

the proposal of recommendations to government.

Law No. 39/1999 gives Komnas HAM the authority for the power of subpoena to carry

out Pro Justisia inquiry and monitoring.

Komnas HAM is the only organisation which has been given the authority to hold Pro

Justisia investigations which can be referred to the public prosecutor. This authority

particularly pertains to the investigations surrounding the gross violations of human

rights and crimes against humanity. This authority is offered to Komnas HAM for

issues pertaining to basic Human Rights under Law No. 26/2000.

2. INFLUENTIAL CONDITIONS

A significant contributing factor to human rights in Indonesia relates to the pluralistic

and extremely heterogeneous nature of Indonesia, giving rise to issues relating to

religious, economic and ethnic minorities. Indonesia is still characterised by the

practice of diverse cultural and traditional values.

Such conditions contain a substantial potential for violations of basic human rights due

to differentiation within society. Also, human rights in some areas of Indonesia are still

hindered by conflict and security issues. Conflict affected areas may begin to experience

hardships which are environmental, social or which have resulted from problems

relating to refugees.

Given the pluralistic and heterogenous nature of Indonesian society, Indonesia must

establish human rights which stem from society and which are based on objective

conditions and which are not contradictory to the values of basic universal human

rights.

3. SOME OF THE ACTIVITIES OF KOMNAS HAM

Komnas HAM has exercised its authority for the Pro Justisia investigation of cases of

the gross violation of human rights in the following investigations. The first

investigation relates to events in Timor Leste in 1999; the second to Tanjung Priok in

1984; and the third to Abepura in 2002.

In this third case, Komnas HAM determined that a gross violation of human rights had

occurred in the shape of a crime against humanity. The outcome of this investigation

was accepted by the public prosecutor in the form of an investigation.

The first two cases were heard by an Ad Hoc court, whereas the third case was heard in

a human rights court under the provisions in Law No. 26/2000. In their report, Komnas

HAM made recommendations relating to the civil, military and political authorities who

were found responsible in the Komnas HAM investigation. It is extremely regrettable

that the decision and outcome of the court released the charges against all accused.

The United Nations Security Council had sufficient grounds for suspicion of the

Indonesian government with regard to the case in Timor Leste to send experts to Timor

Leste and Indonesia to investigate.

In the case of Aceh, between 1988 and 1990 Komnas HAM and security organisations

uncovered mass graves indicating that crimes against humanity had been committed. A

Komnas HAM recommendation for the investigation of such crimes had been made to

the government. Prior to this, suspected cases of crimes against humanity committed

during the Military Emergency in Aceh had been restricted to the level of data collection

and monitoring.

Another case which is currently in the process of being investigated is the case of

crimes against humanity committed in Wasior and Wamena in Papua. The Pro Justisia

investigation, which began in 2004, has already been presented to the public prosecutor,

although it has yet to come to court.

A further case, which began in 1998, relates to disappeared persons. This is currently

under the process of Pro Justisia investigation.

In addition to the vertical conflicts discussed above, Komnas HAM, together with

government and nongovernmental organisations, has assisted in attempts to resolve

horizontal conflict such as ethnic conflict in Kalimantan, religious conflict in Maluku,

North Maluku and Central Sulawesi.

A third conflict area also addressed by Komnas HAM relates to the problems

surrounding the thousands of refugees in Indonesia.

Komnas HAM has also attempted to work with government to implement the Human

Development Index.

Another issue which has been addressed by Komnas HAM is that of the trafficking of

women, particularly those trafficked for the purposes of domestic and international

prostitution.

Research has begun in the areas from which the majority of women are recruited into

prostitution, and in the areas through which they transit and in which they will work.

The problem of the trafficking of women has the potential to become an international

issue.

These issues arising in circumstances of armed, civil conflict have led to the exodus of

local populations. It is estimated that up to 10 000 people have become categorised as

Internally Displaced Persons (IDPs) as a result of conflict.

Together with NGOs, Komnas HAM has already visited locations affected by IDPs and

urged the government to fulfil their basic rights such as food, shelter, education and

health.

4. CONCLUSION

a. In an extremely pluralist and heterogenous society such as Indonesia, the potential for

the violation of basic human rights is significant. In order to prevent the breach of

human rights Indonesia must strive for consensus between different social and value

groups and different cultures. This consensus is necessary to bring about a sense of

tolerance between those groups of society at conflict. In order for consensus and

tolerance to be possible, they must be underpinned by a sense of security. This sense of

security must be created by the government and House of Representatives and founded

in legislation in which the attainment of a sense of security is a centralised goal.

b. The nature of national development (political, economic, social, cultural and legal)

should have the purpose of promoting the fulfilment of human rights. This approach to

development sees that an integration of basic human rights into development must

become a mould for every country (Human Rights-based Development).

c. Development which is based on an awareness of basic human rights allows the

strengthening of democracy. In such a democracy, the value of human safety, security

and the enforcement of law are very highly respected in themselves. A strong

democratic system will emerge if an awareness of basic human rights is integrated into a

transparent legal system. In a system of democracy, freedom is a necessity, as freedom

can cultivate new and diverse thinking. This thinking can benefit the resolution of

problems concerning human rights, as it will result in alternatives views being

contributed to the decision making process.

EXTRA JUDICIAL KILLING

(By : Samsudin)

1. INTRODUCTION

Extra Judicial Killing (EJK) is something form of crime against humanity and

cursed by international community. EJK is a cruel action, and degrading human

dignity ; against the right to live, the right of freedom and the right of equal. Those the

three rights known as the highest aspirations of human rights.

Generally, EJK presiding, at the least one among this actions such as arrest

without cause, torture and unvoluntary disappearance before killed. Thus, EJK break

several international laws as :

· Chapter 5 of Universal Declaration of Human Rights.

· Chapter 6 and chapter 7 of ICER.

· Convention Against Torture.

· Chapter 1 paragraph (2) and chapter 4 paragraph (1) of Protection for All From

Unvoluntary Disappearance, issued by UN General Assembly number 47/133

December 18 1992.

Notes : Convention Against Torture and Covenant on ICCPR and

ECOSOC has been ratified by The Government of the

Republic of Indonesia.

2. STATE IN INDONESIA

A significant contributing factor of human rights in Indonesia relates to the

pluralistic and extremely heterogeneous of Indonesia. We also faced the problem in

minority as minority in ethnic group, economic and religion. There are 1075 ethnics

group live in 17000 islands. Indonesia is still characterized by the practice of diverse

cultural and traditional values.

Such conditions mention above contain a substantial potential for violation of

human right and then to physically conflict among the communities. Up to now, conflict

is still proceed in several places. Especially, arm conflict gave significant contribution to

EJK. In 1985 - 2003, three big scale of conflicts among the communities occurred.

Firstly, conflict in Maluku, North Maluku and Poso. Those conflicts caused by

religious background. In this conflict, highly cruel EJK proceeded. All the massacre

unacceptable by civilized communities. Among the perpetrators killed in trance, as if

they got inspiration from their ancestors to kill. The victim were little children, young

and old men and women.

Secondly, physically conflict in Kalimantan between two ethnics group. This

conflict cause by differences of values and cultural. In this conflict the way to killed

equal to what explained above.

The third, EJK occurred in arm conflict areas and carried out by booth sides to

each other and to the civilian.

In the three shapes of conflict mention above caused in thousands were killed

besides thousand more seriously wounded or physically handicap for life. The other

result of the conflict were in thousands of internally displaced persons (IDPs), widows

and orphans. What is more, conflict in Kalimantan caused eviction of stranger ethnic to

their birthplace out of Kalimantan. They left all their personal belonging, houses, land

other properties. Since 2001 up to now local people never permit them to come back.

EJK had seriously effect to Indonesia. This incident almost created

disintegration of the nation. As far as human rights is concern, our report was very

disappointed. Beside, social problems caused by IDPs created unemployment,

education, health and hate among the communities. It is extremely regrettable, non of

EJK had been completed. The past arm conflict would be completed by truth

commission being prepared.

Except the big scale conflict, minor crime occurred widely spread in Indonesia.

Perpetrators just like minor crime killed by cruel and sadistic. They were stoned or

burned. As regard, behavior change of communities occurred toward destructively.

Probably it was an iceberg syndrome which hidden a serious problem. Thus, the

judgment by groups of people was gratify annoyance caused press burden of life.

Attached to this paper, enclosed a result of EJK investigation in Ambon, and I

was appointed as investigation team leader.

Human Rights Issues in Korea and

the Human Rights Commission of Korea

Kim, Man Heum

Commissioner, National Human Rights Commission of Korea

1. Democratization, Globalization and Human Rights in Korea

Along with democratization, the human rights conditions in Korea have been

improved considerably. There’s greater public sensitivity to human rights. This

receptiveness is reflected in the public debate and attention over the

recommendations, policy suggestions and activities of the Human Rights

Commission of Korea. Still, however, Korea faces difficult challenges and tasks to

make further improvements. There continues to be disagreement and controversy

over human rights issues such as the National Security Law, North Korean human

rights, and conscientious objectors. New and emerging controversial issues include

privacy and human rights, migrant workers, and irregular workers.

Human rights was not a concept that was referred to often before Korea became a

democratic country. During the military dictatorships, democracy was a concept that

included human rights, and democratization was, in effect, a practical expression of

human rights. Violations of human rights committed by the state that included

torture and the fabrication of pro-communist activities were issues that we had to

resolve. The Kwangju Uprising of May 18 of 1980, in which Kwangju citizens’

rights were violated through the brute violence of the military dictatorship, enabled

Korea to address human rights issues throughout the democratization process. That

is why we intend to make Kwangju, which is hosting this conference, a city of

democracy, human rights, and peace.

During the democratization process, the human rights challenges that Korea faced

were mainly struggles for civil and political rights. Two factors behind the

challenges were the dictatorship and the division of the Korean Peninsula.

Democracy drove the dictatorship out, but the inter-Korea problem has continued to

be a particular factor dominating the human rights situation, but when President

Kim, Dae-Jung came into office, the environment began to change. An increasing

number of peaceful exchanges between North and South Korea have affected the

condition, but most of all, the nature of leadership has changed. Along with the

leadership of President Kim, forces that pursued a strategy of embracing North

Korea have led the government.

Broader understanding of human rights is an achievement of democratization. Not

only did the democratization improve human rights, but it also made human rights

issues more concrete and broad in the context of democracy. In particular, the Kim,

Dae-Jung administration added human rights as one of the values that Korean

politics must pursue along with peace. It’s been commonly said, ‘democracy and

human rights’. During his leadership, efforts by human rights NGOs and the

response of the government allowed the National Human Rights Commission of

Korea to set sail.

The National Human Rights Commission has recently celebrated its 4 th anniversary

since its inception in November of 2001. Complying with the Paris Principles, the

Commission was established as an independent body. The Commission mainly

performs two functions: receiving and addressing complaints of human rights

violations and making recommendations to the government on national policy

related to human rights.

I’d like to now introduce some human rights issues in Korea that are at the center of

the activities of the Commission. I’d then like to briefly introduce the National

Action Plan for the Promotion and Protection of Human Rights (NAP).

2. Activities of NHRC (November 2001~October 2005)

Since 2001, the National Human Rights Commission has dealt with a total number

of 17, 529 complaints. Human rights violation cases accounted for 80% of them. In

particular, complaints against detention facilities including prison, and police

accounted for the greatest amount of the percentage. Of the total number of

complaints, 10.6% were discrimination cases which are increasing. Discrimination

cases were filed mostly on the basis of gender, disability, age, and type of

employment.

NHRC has made 322 recommendations on human rights violations committed by

national agencies and bodies, most of which were accepted by them (98.4%). Also

NHRC addressed 115 cases of discrimination that led to public debate and

controversy because the recommendations suggested changing existing practices in

society. Despite such controversy, 85.1% of the measures advised by NHRC were

accepted.

In addition, NHRC issued a total number of 100 statements in regards to legislative

bills or government policies. Among these statements, one included a

recommendation to investigate human rights violations committed by former

authorities and to establish an act on compensation. It also advised revision or

repeal of bills or acts that could possibly violate human rights. In 2003, it expressed

its opinion opposing the dispatch of Korean soldiers to Iraq, in conflict with the

government.

► Conflicts surrounding human rights (National Security Law, North Korean

human rights)

Regarding policy recommendations on bills and acts, NHRC’s recommendation to

repeal the National Security Law, a law that has violated human rights throughout

past dictatorships, was a point of controversy. NHRC concluded that the National

Security Law is nothing but an anachronism and violates human rights limiting

freedom of ideology and conscience. NHRC presented its opinion that threats to the

nation's security based on the Law should be regulated by other general laws

including criminal law. The National Assembly has yet to decide whether to revise

or repeal the Law. Civic groups also clash over opposing opinions on this issue.

Progressive civic groups are campaigning to abolish the Law while conservative

groups denounce them. They base their arguments on positions on North Korea,

freedom of ideology and consciousness, national security, and more. Amid this, a

majority of people are arguing that the Law should exist but be revised to reduce

elements that could lead to human rights violations.

Such conflict is apparent on the matter of North Korean human rights. NHRC has

collected information and researched the North Korean human rights issue for more

than one year. However, NHRC is mandated to review only cases that occur to

Korean citizens and persons living in Korea. Therefore, whether NHRC has the

authority to present its opinion on the North Korean human rights issue and to

whom it should do so is still controversial, and the Commission has not made a

final decision. Conservative groups insist that NHRC should criticize North Korea.

Where progressive groups are actively engaging in overall human rights issues,

North Korean human rights is almost the only agenda that conservative groups

would like to actively comment on.

Korea has adopted the conscription system, which does not acknowledge refusal of

military service based on conscience or offer alternatives to military service. For the

last 5 years, there have been a total number of 2,911, or 600 per year, who refused

to serve in the military. 16 persons rejected the service based on personal faith

including personal commitments to anti-war and peace. The rest of them refused to

serve in the military based on their religion. Of them, 2,393 were sentenced to more

than one year of prison. NHRC has reviewed whether conscientious objection to

military service can be acknowledged and whether alternatives to military service

can be adopted. NHRC expects to present its final opinion on this in the near future.

► Globalization and influx of foreign workforce - migrant workers' rights

The topic of migrant workers' human rights has grown into one of the controversial

human rights issues in Korean society in the process of globalization. Korea, who

used to be one of the major labor exporting countries, has become a labor importing

country as its economy grew and became highly industrialized. It could be assumed

that migrant workers' working conditions would be inferior to those of domestic

workers. Migrant workers' human rights are becoming an important and

controversial issue in Korea, an isolated society with little experience in

multicultural

ism. In addition, the number of illegal foreign workers, which brings out several

social problems amounts to 50%. It was once estimated that 78% of migrant

workers were illegal (undocumented) workers. According to statistics from the

ministry of justice as of August 2005, the number of illegal foreign workers is

189,000, which accounts for the 50% of the total migrant workers.

The National Human Rights Commission of Korea has so far received 392

complaints related to migrant workers or foreigners. Both domestic and

international organizations and activists have demonstrated dedicated support for

the promotion of migrant workers' rights. Among those complaints, mutual

agreements were reached or relief measures were taken to resolve 22 cases, and 44

cases are still under investigation. The laws and legislation related to migrant

workers were amended according to NHRC's recommendation, and immigration

offices have actively reflected human rights views after having participated in

human rights education. Nevertheless there is still room for improvements, and the

commission has included migrant workers' problems in the proposed NAP.

► Abolition of social polarization and discrimination against informal employees

It was a recent event that the problem of discrimination against irregular employees

has become an controversial labor rights issue in Korean society. Korean society

discriminates between the working conditions of formal employees and those of

irregular or informal employees to a great extent. Even though Korea has achieved

miraculous economic growth to the extent that it is now included in the list of

OECD countries, the polarization within society is serious. The most severe

polarization is the discrimination between regular labor and irregular labor. Even

according to the statistics from the ministry of labor, which presents the lowest ratio

among others, 37% of the employed are engaged in part-time or informal positions.

Given the seriousness of the problem, it is a critical issue for the whole society to do

away with the discrimination against the informal employees.

The National Human Rights Commission has made a policy recommendation last

year that irregular workers should be protected from misuse, and be treated on the

basis of [equal payment for equal work]. However, the controversy over the new

bill continues with the objection from management.

3. The main human rights subject in the future: eradication of social discrimination

and the promotion of human rights in the field of Economic, Social and Cultural

Rights.

The issue of human rights that used to be focused on the prevention of human rights

violations by the state power is gradually expanding to the field of Economic,

Social and Cultural Rights. Besides the discrimination based on gender and the

disability, matters that had been customary and culturally accepted are now

considered as discriminatory acts, and reviewed. Especially, it used to be commonly

accepted that people get treated differently based on their age and/or academic

background , and on this account, the recommendation on correction of

discrimination has brought about social disputes. The recommendation by the

commission on the abolition of 'hojuje' or the patriarchal family registry system was

also exceptional. Through such events, the government and society began to have a

new perspective on human rights. Issues that were controversial when the

commission first made recommendations to rectify or address discrimination are

now gaining widespread acceptance among government organs and civil society.

The matters that were once handled by other government ministries, such as women

and labor have been gradually merged into the NHRC's work. In response to this

trend, the commission is now conducting basic operations for introducing anti-

discrimination legislation. Although the current National Human Rights

Commission Act includes provisions about the prohibition of discrimination,

independent anti-discrimination legislation is now being promoted to specify the

restrictions and to expand its scope, reinforcing the actual effects of the prohibition

on discrimination law.

On the commemoration day of the Universal Declaration of Human Rights, NHRC

plans to submit recommendations on the National Action Plan (NAP) to the

government. The NAP could be a blueprint for a nation's human rights policy. Since

the Vienna Conference on the Universal Human Rights had recommended each

nation to establish human rights NAPs as well as the national human rights

institutions in 1993, this is the first time Korea has prepared an NAP. The draft

proposal is now in the final stage of completion after more than 2 years' work.

For the promotion of economic, social and cultural rights as well as the civil and

political rights, the commission has presented legal and institutional tasks in its

recommendations to the government. Reflecting the changing society, certain rights

such as the rights to information and the rights to life are now getting attention as a

new aspect of civil and political rights. Economic, Social and Cultural rights

include the Social Security Act(S.S.A), the right to work, the right to health, the

right to housing, the right to education, the right to environment, and cultural rights.

Other main tasks of the commission are strengthening the human rights education

and building networks through international and domestic cooperation.

Besides the legal and institutional tasks for the promotion of human rights, the

commission has also focused the NAP on the rights of the vulnerable and minorities

of society. People with disabilities, informal employees, migrant workers, refugees,

women, children and youth, the elderly, sexual minorities, military men, North

Korean defectors (Satoemin), and people living in residential social service

facilities are included in this category. It also includes measures to protect the

human rights of soldiers and the police living in group environments particularly

under the conscription system of Korean society. The commission intends to submit

those recommendations to the government. After the government draws up the draft

plan, the commission plans to monitor implementation and how the proposed

recommendations are carried out.

The National Action Plan contains directions and strategies for the protection and

promotion of human rights in Korea as I mentioned before. Human rights norms are

universal. However, a national approach or prioritization is needed to develop an

actual action plan. The National Action Plan, therefore, will be the initiative to

review human rights ideology to principles of Korean society. Korea has professed

democracy and a market economy from its foundation. However, Koreans haven't

really realized the importance of living together within their communities owing to

its history of strong nationalism. Now it is time to focus on specific challenges that

have been raised as human rights arguments. For example, the ways that we tackle

the issue of irregular workers will decide the future of Korea, and migrant workers'

rights will set our position within international communities. The way we approach

the North Korean human rights issue is overlapped with systems of integration

among the two Koreas.

The National Action Plan has been prepared by the National Human Rights

Commission of Korea under the banner of mainstreaming human rights in Korea.

Respect of human dignity and solidarity among people are the structural elements of

a community based on this mainstreaming, which is a goal of a nation and at the

same time a universal goal of the world. As it had the honor and opportunity to host

the Seventh International Conference of National Human Rights Institutions in

Korea, the National Human Rights Commission of Korea sincerely hopes to

continue to take part of the efforts to protect and promote human rights in the world

by building cooperative relationships internationally. We are looking forward to

future relationships and exchanges. Thank you.

Human Rights in Cambodia

Presented by Mr. SOK Sam Oeun, Esq.,

Executive Director of the Cambodian Defenders Project and Law Lecturer of University

in Phnom Penh

During the Gwangju Forum on Asian Human Rights in South Korea

Today is the human rights day which the people around the world are celebrating. Some

people in Cambodia is joking that we have only one day enjoying our human rights, but

on the others the government forgot and ignored. The poor people complained that they

have not enjoyed their rights yet but the government officials said that the human rights

in Cambodia has been improved a lot if we compare with the time before 1993 or with

Pol Pot time. The rich people said that they were enjoying their rights enough.

The Human Right Day is not a festival. But it is the day that we should remind and

review the past last year whether our human rights have been protected or not. If there

were not, it is better for us to think how we can promote and protect human rights, in

particular for the vulnerable and disadvantaged people. It is not the day that we should

review about ourselves but we should review also the people in the other countries, in

particular the transitional countries which are under or have just been freed from

dictatorship, military or genocidal regimes or from the war.

In fact, the situation of human rights in Cambodia is further improved than we were

before 1993 or in Pol Pot time. But, we could not compare with those bad times. We

need to compare with other people in world, or other countries in the region. The little

improvement from the bad situation is not enough. We need:

· To ensure that the human rights shall be protected and respected in accordance

with the international norms;

· To ensure that the situation of human rights respect and protection shall be

stable;

· To have a functional mechanism to protect human rights, so that the protection

of human rights is systematic; and

· To make the promoting and protecting human rights to become a culture in

Cambodia.

THE IMPORTANCE OF HUMAN RIGHTS

Some people said that human rights is a concept created in Western world, it cannot be

used in Asia. It is wrong perception. Every body, rich and poor, Westerners, African or

Asian, black, yellow or white people are equal. Everybody needs to live with dignity.

Human beings cannot live like parrots living in the cage without freedom to travel

anywhere, freedom to speak what they want, or freedom to express opinions what they

are thinking. Human beings cannot live like cattle that are used any time, without rest

and without care of their health.

Cambodian people experienced a lot of human rights abuses in Pol Pot time. We

understand clearly how important of freedom and human rights. At that time, Khmer

Rouge regime robbed all of our properties and our land and forced us to go to live in

country side or forest where we did not want to. We were forced to work hard, did not

provide us enough food. The children were not allowed to education. We had no rights

to choose jobs. Everybody was forced to farm and work what we did not like to work.

We were forced to live far from our parents. During any meeting, Khmer Rouge leaders

always said that everybody has right to express opinion, but many people were killed

because they expressed opinion against Khmer Rouge policies, etc…

No one understands about the importance of human rights more than the people who

had experienced their rights abused. The people who crossed their lives in Pol Pot

regime understand clearly that the human rights and freedom are very important for

them.

Because Cambodian people did not want those bad historical experience would be

happened again in Cambodia and we did not want our rights abused like in Pol Pot time,

a new Constitution was adopted in 1993. This new Constitution guaranteed many

Citizens' rights in accordance with international standard. Additionally, the Article 31 of

this Constitution recognized all human rights instruments of the United Nations. It

means that Cambodian people shall enjoy their rights like other people in the world. It is

only in the Constitution. What happens in real life?

No Independence of Judiciary, no Human Rights

In 1995, two press editors were convicted on defamation because they criticized the

prime minister. Their lawyers16 argued that they should not be charged on a criminal

16 Lawyers of the Cambodian Defenders Project.

offense because they were journalists and must be under the press law. If they are

charged on press law, they would not receive any imprisonment. If there is not criminal

charge on journalist, the journalists will not be scared to express opinion and release

information to the public. Therefore, at that time everybody wanted the Supreme Court

to make clear that the government could not use criminal offense to charge journalists.

But, unfortunately, the Supreme Court did not dare to decide that the criminal offenses

could not be used against journalists. Instead, the Supreme Court announced that it had

not power to interpret the law. Only the Constitutional Council could interpret the law.

In Kbal Spean case, five people were shot to death and many others were injured

because of the crash between the people and police and military force used by the

winner to evict the people from the land they lost in the court. Some military men were

arrested but were found not guilty because the court could not find any evidence against

them.

Based on the lessons learnt from this case, the human rights cannot be respect and

protected if the judiciary is not strong and independent enough.

Human Rights Cases and Citizen's rights Violation

Many people perceives that the fact of a government official abuses a person's rights is a

human rights abuse. So, in order not to show that there are any human rights abuses, the

official-in-charge must hide this information. For example, if a prison guardian beat a

prisoner, the Chief of Prison will hide this information.

Is the fact that a prison guardian beat a prisoner the human right abuse? It may be but it

also may be not. If the prison chief investigates the incident and punishes who did

wrong, it is not human rights abuse because the prisoner's right has been protected by

the government. And if the prison chief understands this meaning, he or she will not

hide for his or her staff and instead he or she will protect the victim's rights.

Therefore, it is very important to understand what human right abuse is. If the meaning

of human right abuse is misunderstood, the word human right will increase human

rights abuses.

How to abuse Human Rights

There are many types of abusing human rights.

1. Human Rights violation by lack of protection: A right is abused by a person and

the government does not try to protect the victim's rights. For this case, we need

to improve judicial system and law enforcement system.

2. Human Rights violation by lack of assistance: The people cannot or is not able

to enjoy his or her rights, and the government does not try to assist him or her to

enjoy that rights. For this case, we need to have mass movement and train the

people to advocate for their need.

3. Human Rights violation by Law: The people need a right to do or not to do

something, but the law prohibits or forces the people to do that act. For this case,

we need to have law reform and push the government to recognize and ratify

international laws.

Human Rights Mechanism

At present, there are three human rights commissions in Cambodia, of the National

Assembly, the Senate and of the Government. But all of them are not independent from

the three branches and not strong enough. There is no procedure to solve the human

rights abuse, if the act is not a crime. In India, the victim of human rights abuse can

complain to the Supreme Court and in Europe they can complain to the Human Rights

Court in Strasbourg. But, in Cambodia the people found no place to complain if they

feel abused by powerful people. There are many strikes in front of the National

Assembly but they were cracked down by riot police.

During the negotiation between elected parties, both of ruling parties, CPP17 and

Funcinpec18, agreed to establish a National Independent Human Right Commission. The

civil society also is discussing a draft of law on this commission in order to recommend

to the government. However, Cambodia still needs to reform the jurisdiction of

Supreme Court so that this court can hear human rights case or establish a Special Court

on Human Rights.

Police Reform

Police is the ones who have duties to protect the people's life and properties. When

police receives information about robberies or any events can impact to the people's life

17 Cambodian People's Party, former Heng Sam Rin Regime.18 From French abbreviation: National United Front of Cambodia for Independence, Peace and Cooperation.

or properties, they must go to the scene immediately to save and protect the people and

their properties. However, they should use some powers to do their works. Their

powers, such as power of arrest, search, entry and seizure, all are impact to the people's

rights. So if they do not follow the legal process carefully or the law itself not fair

enough, they will be viewed as the first ones who violate human rights. However, if the

police are well trained, they will be the first ones who protect human rights.

Therefore, the police reform must be prioritized. Their training must be human rights

based approach. Their concepts and organizational structure must be changed. They

must be non-partisan. In Cambodia, most police officers are members of ruling parties

and top positions of police forces are shared by quota between both ruling parties. These

practices must be stopped.

In order to reform police forces, a police code and ethics must be made. Clear and

transparent police policies including recruitment, disciplinary action and promotion

must be in writing and implemented strictly.

Police should be changed from:

· Police forces to police service

· Military police to civilian police

· Political Police to Community Police

· Watch dogs to Legal Advisors for the people

· Political Party Police to National Police

· Human Rights Abuser to First Human Rights Protector, etc…

However, at present the Ministry of Interior establishes a Royal Police Training School

and five Regional Police Training Schools. The Ministry of Interior opens for

cooperation with NGOs19 to establish a new police training curriculum20. The Ministry

also asked Mr. Sok Sam Oeun to draft a Police Code for the Ministry. However it still

needs time and political wills.

Human Rights Commission must be independent

There are many debates on how to establish an independent institution. Political parties

19 It cooperates with the Cambodian Defenders Project and the Asian Human Rights Institute to establish a new police training curriculum.20 They finished the training course for Police Trainers (ten from Royal Police Training School and ten from the Training Department of Ministry of Interior.

said there were no independent people, so the members of independent institution shall

be mixed among all political parties having seat in national assembly. Civil society had

different views. They believe that they can find independent people but they should be

recruited by a recruitment committee consisting of political party representatives and

civil society. The recruitment committee will recruit candidates for members of human

rights commission for the National Assembly or the Senate to vote for.

However there are many other factors to make an institution independent. It shall have

autonomous budget and has power enough to operate its function freely. It is better to

make this commission as a constitutional one. So, it is better to amend the Constitution

and put the human rights commission and how to recruit its members in the

Constitution.

Human Rights Commission must not be misused

At present, we remark that the Human Rights Commission of the Government tried to

report against the report of human right violation made by the Civil Society or by the

Officer of Human Rights of the United Nations. The Commission also has responsibility

to report about the human rights situation to the Human Rights Commission of the

United Nations. So it means that the commission has two conflicting roles, preventing

and fighting against human rights violation and protecting the government against bad

reputation of human rights abuse. These two functions can make the Commission to

change its mission and it will become the one that tried to hide the wrongdoing of the

government not to find and prosecuting human rights abusers.

It is okay that the government has its human rights office to correct the wrong doing or

promote human rights but it is better to have another human rights commission which is

independent from the government. I recommend strongly that the Independent Human

Rights Commission must not have function to represent the government to report on

human rights situation in the country.

Constitution must be protected

The Constitution is the top law of a county. There are two types of Constitution, rigid

and flexible ones. Flexible Constitution is the one that is easy to change or has been

changed or amended many times. If the Constitution is flexible, we can say that it is a

weak Constitution or we can say that the executive or powerful person is above the

Constitution. If the Constitution is not protected or is ignored or violated without

protection measures or mechanism, the human rights will be easily abused the same.

In 1993, Cambodia passed a new Constitution. This Constitution recognizes all

International Human Rights instruments and guarantees many rights of the people. But,

it also recognizes existing laws before the Constitution until the new ones would replace

them. Before 1993, Cambodia was socialist regime so those laws do not care about the

people's rights but they cared only the interests of the State. For example, at present the

government uses law on demonstration to prohibit the demonstration. So, if this law is

still in force, the freedom of expression and freedom of assembly guaranteed in the

Constitution means nothing. Now twelve years has been passed but the government is

still using law existed since socialist time.

The Government passed a law on press regime in 1995. In that law, there is no

imprisonment used against journalists. But the government still uses penal code to put

journalist in jail. In recently, Mr. Mam Sonando, the Director of Behive Radio has been

arrested on defamation because he interviewed a person who criticized the Prime

Minister.

In 1994, because of the deadlock of forming the new government, both ruling parties

make an Additional Constitution. Many legal analysts said that Cambodia has two

Constitutions. It is another type of amending the Constitution. If it is an additional one,

it means Cambodia has two Constitutions. It also means that the Constitution of 1993 is

not the Top Law of Cambodia.

So we can see that the Constitution of the Kingdom of Cambodia is very flexible, or we

can say that it is very weak.

Regional Human Rights Mechanism

Europe has its European Human Rights Commission and one Human Rights Court.

Even though Europe and Asia may have different values on human rights, it is better for

Asia to have similar human rights mechanism so that Asian States can help each other to

raise the level of human rights in our continents. In case we may not be able to start for

whole Asia, but we may start from Regional level.

We hope that in short future, ASEAN may lead to establish its ASEAN Human Rights

Commission and ASEAN Human Right Court in Asia.

Roles of NGOs in Cambodia

There are many types of NGOs in Cambodia. We can categorize them into four types:

1. Human Rights NGOs,

2. Democracy NGOs,

3. Development NGOs and

4. Legal Aid NGOs.

However, they have four types activities:

Development assistance such as providing or donating wells, school building,

computers, etc… to the poor people.

Awareness programs:

Health Awareness: HIV, sanitation, health, medical care etc…

Legal Awareness: legal skill training, workshop on legal issues, etc…

Advocacy:

Local advocacy: with local authorities, cadastry committees, etc…

Political advocacy: lobby with donors, foreign embassies or high rank

officials relating to political tension, for example arrest of radio director,

or arrest of civil society leaders, etc…

Legal advocacy: giving comments to the draft laws, etc…

Legal Aid: There are two largest legal aid NGOs, the Cambodian Defenders Project

(CDP) and Legal Aid for Cambodia (LAC). These two organizations provide

legal services to the poor and vulnerable people free of charge. Since 1994, the

CDP represented more than eleven thousands poor and vulnerable people.

In Cambodia, NGOs are stronger than the government. Many good staffs work with

NGOs21. However, after 2003 more good people left NGOs and joined the Government.

Recently, the Government arrested and issues warrant for arresting many NGO leaders

who criticized the Government. All top leaders of NGOs are in the black list of

government. It is a backward step of democracy in Cambodia.

Therefore, if an NGO is independent it becomes a watch dog to monitor the

government. It will become a fourth power. However, each NGO has different

21 It may be working with government, the salary is very low.

strategies. Some NGOs use confrontation approach, some use coaching approach, etc…

In order to have synergy, NGOs establish many coalitions, so that they will work as a

group.

More Independent Bodies, Stronger Democracy.

Civil Society is a bridge between the people and the Government

Since 1993, the New Constitution adopts many good principles and guarantees many

rights of the people. When we read it, we feel that we have all those rights. But it is not

true. If you do not try to demand those rights you do not know whether you have any

rights or not. For example, in the Constitution provides the freedom of demonstration,

but at present the government do not allow the people to have any demonstration or any

event in the public places. You can organize it only in any building. So, do we enjoy this

right? We must demand.

So the civil society or NGOs have very important roles in telling the people what rights

they have and help the people to demand those rights to be sure that we have really

those rights or not. It is a normal life of Democracy.

CONCLUSION

Human Rights Day is not a Human Rights Festival. We do not come only for fun and

chatting with old friend. But, we must use this day to review whether the people have

their human rights or not. It is the day that reminds us that we must try to strengthen

human rights mechanism in our own country, help neighbor countries, and build

regional and continental human rights mechanism.

The government is only a group of the people working for the people. We vote for them

not to kill us but to serve us. If you are elected as a leader or head of state, you are

parent of the people. You must care the children, love them, tolerate them and work for

them.

The Legal Problems of China's Environment Rights

＿Under the Background of Asian Human Rights Charter of 1998

ZhouWei 22

一、The Legislations on Environment Rights of China

After the People's Republic of China was founded in 1949, the legal protection of

Environment Rights in Mainland can be divided into three stages: the first stage was in

the “initial period after founding ”. During the initial period after the People's Republic

of China's founding from 1949 to the end of 1950s, some rules and normative

documents were formulated to explore, make use of , protect and improve the

environment and natural resources reasonably, such as the Interim Regulation on

Mining of the People's Republic of China (April, 1951)，the Government

Administration Council's Designation on Mobilizing the People to Plant Forests,

Cultivate Forests, and Protect Forests（July, 1953）, the Management Ways of

Hunting（October,1956） and so on . In this period, corresponding with the economic

development, environmental pollution was not a problem yet. The second stage was in

“starting period” from 1960s to 1970s. The first national environmental protection

meeting of China was held on August in 1973, in which Several Regulations on the

Protection and Improvement of Environment was formulated that was the first

comprehensive administrative regulation on environmental protection of China and had

important meaning to the development of China's environmental legislations. On

January 1974, the central government made out the Interim Regulation on Prevention

and Cure of the Coastal Waters' Pollution，which was the first normal administrative

regulation of prevention and cure of environmental pollution. The third stage was in

opening-up period. It was the time the modern environmental legislations of China

developed quickly and comprehensively from 1978 till now. The first climax of

environmental legislations emerged in the metaphase and anaphase of 20c, started from

the enactment of Environmental Protection Law (trying out). In 1978, the Constitution

was amended and in the new Constitution it was said that “ the country protect

environment and natural resources, prevent and cure pollution and other social effects of

22 professor of Law school of Sichuan university and Shanghai Jiaotong

universit

e-mail: drzhouwei@hotmail.com

address: No.99,ZHIHUI-ROAD,610016 CHENDU CITY, CHINA

pollution.” It was the first time China prescribed environmental protection in the

Constitution, considered environmental protection as a national basic duty, and

identified natural protection and prevention and cure of pollution as two fields of

environmental protection and environmental legislations, which directly established the

basic framework and main content of environment legislations system in China. On

September 1979, China passed Environmental Protection Law (trying out)， and in

1989, China passed Environmental Protection Law，after that, China finished the

environmental legislations system preliminarily. With the economic development,

environmental protection is becoming a popular social problem gradually. On March

1994, the central government ratified China's agenda in 21c, and proposed the total

strategy, fundamental countermeasures, and plans of action to achieve sustainable

development. On March 1993, with the set up of environment and resources protection

committee, the legislations and supervisions on the environmental protection of the

organ of supreme power was strengthened. Since 1994, China has revised and

formulated one batch of laws、regulations and administrative rules about pollution

preventing and controlling .Such as Rules for Implementation of the Law on Prevention

and Control of Atmospheric pollution(Formulated on 8/1995) Rules for Implementation

of the Law on the Prevention and Control of Solid waste pollution(Formulated on

10/1995,Amended on 2004) Rules for Implementation of the Law on the Prevention and

Control of Water Pollution(Formulated on 5/1996)etc. Successively has revised and

formulated some resources energy management, disaster preventing and controlling

and the natural conservation aspect law, the laws and regulations and the rules and

regulations, like " nature protection area rule " (in October, 1994), " coal law " (in

August, 1996), " flood prevention law " (in August, 1997) and so on. In solid waste

pollution environment preventing and controlling law which recently newly revised,

increasing the promotion of circulation economy development, implementing the

system on producer extend responsibility ,initiating the production method and the life

style that are advantageous to the environmental protection .strengthening the

stipulation in the village environmental protection, the mine environmental protection as

well as aggravating the punishment , manifesting the important principle of

comprehensive realizing pollution responsibility and the thought of encouraging solid

waste circulation use .and entrusting the environmental protection department with a

governing power by a set time .

二、Chinese environment law execution present situation

The Chinese law educational world mostly favors the environment power for the

human right organic constituent. In recent years, the Chinese scholar started to favor

the environment power for the human right constituent. Seem by the Chinese scholar,

the human right core factor is the right to live and the development power. The

environment power not only is the right to live, also development ,and is the humanity

survival and the development essential premise, the reality safeguard of Human

civilization inheritance and race multiplication. In order to protect the environment,

Chinese government strengthens the environmental protection work from the

organization mechanism. The important measure of carrying out science development

view and the correct achievements in one's official career view .is to implement the

leading cadre environmental protection achievements in one's official career inspection

Some places bring into line with the environmental protection inspection inspect inside

the place all levels of officials' standard, promoting environmental protection work

developing. For example, Heilongjiang Province first includes the environmental

protection target among it, Chongqing inspects the environmental protection actual

accomplishments and inspection object various areas county party politics one handle

expands to the municipal government department concerned one handle. Hebei,

Guangdong, Shandong, Tianjin, Sichuan, Zhejiang, Jilin (city) the scope carrying out

environmental protection actual accomplishments inspection work with the party

politics leading cadre in entire province.

At the same time, the national environmental protection law enforcement

department increased the law enforcement dynamics to reduce the environmental

pollution. In 2004, China altogether has the environmental pollution and destruction

accidents 1,,441, creates the direct economy loses 36,365.70 thousand Yuan. Whole

year altogether implements environment administration punishment case 80,079. In

2004, the Chinese environmental pollution government investment is 1,908.6 hundred

million Yuan, occupying same year GDP 1.4%, achieving the historical most high level.

The Chinese country environmental protection bureau proposed the concrete

environmental protection goal in "Country Environmental protection" 15 "Plan".The

nation altogether sets out 1310 thousand law enforcement personnel inspecting 600

thousand enterprises , soluting 3365 prominent environment questions with the license

to supervise, investigating 270000 environment illegal questions of which 15000 has

settled a lawsuit , banning 6462 closure illegally dumps pollutants enterprises, ordering

3861 enterprises to have a suspension ,and 6755 enterprises by a set time punishing 155

related responsibility people of whom government and department concerned 81 people

(environmental protection department 66 people). Through investigating the illegal

activity, solving some prominent environmental pollution harm problems. Some 18

provinces initiatively cleaned up and corrected more than 200 “ local policies” which

violate Environmental protection law and regulations, and promoting local authority

environment concept of law.

三、The problem and outlook of the Chinese environment law performance

The fundamental realities of China is “the population is many, the resources are

few, the pollution is heavy, the economy grows quickly and the development form is

extensive ”, this indicates that environmental pollution and resources consumption have

been “a bottleneck” to achieve the goal of ensuring our people a relative comfortable

life. Therefore, the country proposes the policy of “transforming economy development

way, developing circulation economy and taking a new road to industrialization” and so

on, And this substituted for the value orientation of developing economy firstly while

neglecting the environmental protection in the past. However, China is locating the

period of economical development fast, the environment and the development

contradiction is more and more prominent. According to the State Environmental

Protection Administration, these questions mainly display in the following aspects:

Firstly, in the process of industrialization, the pollution profession of papermaking, the

electric power, chemical, the building materials, the metallurgy equipollent and so on

will continue to develop, the control pollution and the ecology will destroy the

difficulty will enlarge; Secondly, in the process of urbanization, the city’s environment

infrastructure construction will lag, the massive trash and the sewage cannot handle

safely, and the surface vegetation receives badly destruction; Thirdly, in the process of

agriculture modernization, the use of chemical fertilizer and insecticides and the

development of aquaculture will pollute the cultivated land, and the controlling and

preventing task of the durable organic pollutant will be more arduous, this threats

agricultural product’s security; Fourthly, in the transformation of society

consummation , every kind of new pollution such as the waste of electronic electric

appliance, the vehicle exhaust, the harmful building material and inappropriate interior

decoration and so on will take on a rapidly rise tendency; Fifthly, take the coal as the

focus energy structure long-term existence, and the task to deal with the sulfur dioxide,

the compound of nitrogen oxide, the smoke and dust will be more arduous; Sixthly, the

new technology and the new product such as transgenic product, the new chemical

substance and so on will brings more latent risks to the environment and the health. In

brief, along with the rapid development of economy, the economical scale expands

unceasingly; the type and the quantity of output of pollutant will increase rapidly , the

rivers, the lake, the wet land, the ground water, and the multiply biology will have the

possibility of being polluted and destructed.

Along with Chinese government to take sustainable development and

environmental protection seriously, the ideas and the policy which the development

economy and the protection environment, and the environment is one part of the

economical sustainable development are becoming a execution policy of local

government. In the recent years, Chinese government has proposed the scientific

concept of development which the concept of people-oriented, comprehensive,

coordinated and sustainable development, which indicates that the Chinese government

has put economical construction to a new height with which economy and society,

person and nature comprehensive development, and this brings the rare opportunity for

the development of environmental protection enterprise. The Chinese government have

already realized the permanent cure to the environment question at the present stage is

to transform the economical growth way, develop circulation economy and construct the

resource conservation and the friendly environment society.

Appendix : The Song hua river environmental contamination accident caused by ji lin

chemical corporation of China oil and gas group

In November 13 of 2005 , double benzolism chemical plant of ji lin chemical

corporation exploded abruptly. Because of the unexpected explosion accident, some

poisonous substance flowed into Song hua river causing great water pollution through

the process of saving. Zhang li jun (the vice president of national environmental

protection department) said “ This accident belongs to a major environmental pollution

accident.The major poisonous substance include benzolism, aniline, nitrobenzene and

other organic matters. And it is sured that the responsibility is taken by double

benzolism chemical plant of ji lin chemical corporation.” in the press conference of

November 24, 2005. According to the expertises′ estimation, about 100 tons poisonous

substance have flowed into Song hua river. By far, the citizens don′t have any physical

problems for drinking the water of Song hua river . Because of this major pollution,

Harbin municipal government announced that there will be no water supply from

November 22 to 26 and also will check the city propers′ water supply network

installaion comprehensively.

(Attachment: the details of Harbin municipal government Announcement).

The announcement of cutting off the city propers′ water supply by Harbin municipal

government

【2005】26 unit

In November 13 of 2005 , double benzolism chemical plant of ji lin chemical

corporation exploded abruptly. According to the environmental supervision department

survey, up to now, unusual things are not discovered in the city′s section of song hua

river, however,forests that the upper section′s pollution will come in short run. To ensure

the safety of water supply, the municipal government will cut off the water supply

temporarily .And the details of the announcement are as followed:

· There will be no water supply in Harbin city from 8pm November 22 . This

water shortage event will be extended for about 4 days( the timeline for

recovering water supply wil be proclaimed afer several days). Hope that every

public bodies ,enterprises, individual producers and citizens are seriously

prepared to store water for future various use meeting their own needs.

· From now on, any bathe units and car body washing units must stop using water

immediately in the Harbin city propers.

· The industry and commerce supervision department , market pricing department

and public security must execute their own work well in the fields of

strengthening market supervision ,safety guards,protecting market and social

sequence.

November 21, 2005