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09 November, 2008

Asian Human Rights Consultation on the Asian Charter of Rule of Law

The Asian Human Rights Commission is holding the fourth Consultation on the Asian Charter of Rule of Law at Hong Kong from November 17 to 21, 2008. The theme of the Consultation is “Prosecution systems in Asia”.

The following is the Concept Paper prepared for the Consultation:

A well functioning judicial system is one of the cornerstones upholding the rule of law and democracy. Concerns, about the relative perception of the rule of law and the absence or the erosion of democratic values in any society, reflect the state of affairs of the judicial system in that society.

The protection, promotion and fulfilment of human rights and human values is impossible without a rule of law regime. The absoluteness of the rule of law is a mythical concept. No state can be and will ever be a perfect model that guarantees all tenets of the rule of law, to everyone within its jurisdiction. Challenges and prejudices in governance ripple out from myriad whirlpools. These political, cultural, historical and racial influences perpetually affect the rule of law regime irrespective of jurisdictions.

The Asian Human Rights Commission (AHRC) is taking the initiative in formulating an Asian Charter on the Rule of Law. It is an attempt to postulate a functioning as well as a reasonable example of a code of a rule of law that could be adapted by states, particularly in Asia. To formulate such a charter it is imperative to understand the issues that adversely affect judicial institutions in the region.
One of the elements of the justice machinery, which is often less explored and least understood in this context is the office of the prosecutor. Irrespective of procedural philosophy in applying the law, the office of the prosecutor plays an important role in the day-to-day functioning of the courts.

The prosecutor has the role to represent the state in a court of law, though procedure and practice varies between jurisdictions. The work of the prosecutor represents the philosophy and the responsibility of the state in punishing crimes. In this capacity, the prosecutor wears different hats ranging from being an inquirer, the representative of the victim, the state, an officer of the court and a professional lawyer. In most Asian jurisdictions the office of the prosecutor has a diminished capacity to understand and appreciate this tremendous responsibility.
The prosecutors' office is often mistakenly conceived under the guise of an arm of the government or a moderator. As an arm of the government it is always expected to persuade the court to hand down a conviction in every case. As a mere moderator it is expected to liaison between the investigating agency and the courts. A prosecutors' office is often misused by the state and those who wheel control to render 'selective justice'. To achieve this end the state employs various means to interfere with the work of the prosecutor. In addition to being a state sponsored office, the prosecutors are often selected from those who will support the state's agenda. To further this interest states often keep the office of the prosecutor in a state of flux employing such means as uncertainty of tenure, or requiring the job to be carried out even by police officers.

This state of liquidity resulting in a condition of free-floating anxiety is exploited by the state to ensure that only those who are acceptable to the state continue in the post. On the other hand, prosecutors continue to allow this exploitation so that they could make use of their positions for various illegal purposes, including corruption. There are also instances where the prosecutors, by law or by practise, are required to work under the supervision of police or military officers. Placing a prosecutor directly under the control of state agencies has adversely affected the independence of their office. Such an environment of unprofessionalism results in a lack of accountability and transparency and the relative non-predictability of the duties of the prosecutor.

Throughout the political and legal history of each state incidents can be observed that reflect the eagerness and willingness of the state to take action. Either they retain absolute control over the prosecutors' office or they choke it to death. This ensures that the office is never able to discharge its duties in a truthful manner.
On a parallel plane, in domestic and international forums, the prosecutors were repeatedly required to engage in washing the dirty laundry of the state. These long-term interferences have resulted in either of two things; the creation of a state office that has been given unwarranted powers or an office and officers who are demoralised because there is no hope of improvement in their conditions. Low morale coupled with an almost total dishonesty in work has resulted in a very low standard of professionalism in the prosecutors' office. In jurisdictions where the judiciary, as an institution, was already weak it was unable to resist the premeditated dissolution of one of its most necessary partners in the work for justice.

In some Asian jurisdictions, appointment as a prosecutor or as an attorney general is considered to have within it a guaranteed invitation to the judiciary. Judges, who thus came to the judiciary exploiting this backdoor entrance have contributed to such devaluation of the judiciary. The erosion of the justice quotient in the prosecutors' office has created such dents in some jurisdictions that any repair work will take more time than was required to cause such a dent in the first place. This state of affairs has also contributed to the lack of confidence of the general public in their justice system. This further contributes to the deterioration of yet another arm of the justice system, the judiciary itself.

The raison d'etre of this regional consultation is multi-purpose. It is to explore, identify, document and share the concerns of practitioners and jurists who feel that the above issues are reflected completely or in part in their own jurisdictions. There will also be an attempt to identify issues that might be unique to one particular jurisdiction that has not been identified so far. This consultation is not conceived with the idea that it would immediately be able to suggest any recommendations to correct decades-old problems. However, the consultation is seen to be a bold step forward in providing, in a free environment, a platform within which these concerns could be aired, discussed and documented.

There is the expectation that the 24 legal experts who will meet for the consultation will be transparent and share from their considerable experience in dealing with the prosecution systems in their respective countries. It is further expected that the consultation will provide sufficient insight into common and distinct issues that affect the prosecution mechanisms in Asian jurisdictions, which will be a step forward in correcting these issues and their supporting attitudes.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

1 comment:

Anonymous said...

The recent fuss about alleged “Hindu terrorists” has entertained me hugely because all the usual suspects played their expected roles to perfection. The pseudo-secular media had a field day insinuating that Hindu terrorism is as major a problem in India as is Mohammedan and Christist terrorism. The UPA forgot its axiom that “terrorism has no religion”, and joyously crowed about “Hindu terrorists”. The BJP was apoplectic in its attempts to distance itself from the alleged “Hindu terrorists”.

Meanwhile, some actual – not imagined — terrorism activity has been going on in Kerala, where at least 300 people have been recruited by Mohammedan fundamentalists to wage war on the Indian State. Newspaper reports suggest that at least 96 young men from Kerala, who were given military training by SIMI, are at large. 16 of them are in Kashmir, the others in Bangalore or Kerala, according to Intelligence Bureau reports. Apparently there are special instructions in Malayalam in SIMI jungle camps held all over the country, for the poor dears are not so proficient in Urdu/Arabic.

These young men were dispatched to Kashmir with simple instructions: kill Indian soldiers and facilitate infiltration by the Pakistanis. Terrorism has now become just a job. So much so that so-called “spiritual advisers” (“paymaster” may be a more accurate designation) are out there recruiting known gangsters, converting them and sending them off to Kashmir. A particular gang of Christist criminals in Cochin has apparently supplied several converts who made the trek to Kashmir: including one Verghese aka Yasin who took a bullet in his head from the Indian Army and had to be identified from his fingerprints.

All this is ironic: Kerala has long been a supplier of manpower and womanpower – first it was the clerks and petty shopkeepers all over India, as well as a lot of soldiers; then it has been nurses, next construction labor and professionals for the Persian Gulf and America, and most recently, Christist padres and nuns for the conversion industry and as gastarbeiter for the shrinking seminaries of Europe.

I guess it is but a small step to terrorism as a profession. As Adi Sankara said in a slightly different context some centuries ago, “udara nimittam bahu krta vesham” (one wears various roles to satisfy that despotic stomach). It is said that in parts of Malabar, the UAE dirham, the Saudi riyal, and the US dollar are almost as much legal tender as the Indian rupee: there is so much of that stuff floating around. Not to speak of absolutely authentic-looking Pakistani-made Indian rupee notes. A while ago, an entire ocean-going container full of Rs. 500 and Rs. 1000 counterfeit notes – from Pakistan with love via Dubai – was intercepted in Kerala. That is a boatload of money, indeed.

And then there’s the news about serial blasts in Manipur and – as I write this – in Assam, that have killed large numbers of innocent people. There are all the other blasts – there have been so many we begin to lose count – in Ahmedabad, Bangalore, Delhi, etc. etc. etc. – where the perpetrators unambiguously let it be known that they were Mohammedans inflamed by religious fundamentalism and jihad.

Christist terrorists have been running rampant in the Northeast for some time: their modus operandi is a little different – they prefer the AK-47 and they generally target specific individuals. They have ethnically-cleansed 45,000 Reang tribals from Mizoram for refusing to convert; they shot respected litterateur and patriot, Bineshwar Brahma in Guwahati; they shot Hindu priest Shanti Tripura in his own temple; and most recently, they shot Swami Lakshmananda in Orissa (let’s not kid around about this: even the alleged Communist terrorist who was trotted out, suitably incognito, on TV to exonerate Christists admitted that most of his flock were Christists).

Not to mention that almost the entire top echelon of the dreaded Tamil Tigers are Christists, and the non-Christists mysteriously suffer “accidents” or are captured by the Sri Lankan Army or “commit suicide”. Velupillai Prabhakaran, Anton Balasingham, et al are all Christists. So was Dhanu, the suicide bomber who blew up Rajiv Nehru Gandhi. There is reason to believe that the so-called Maoists in Nepal are also crypto-Christists, especially some of their top brass.

Of course, none of this qualifies for the “religious terrorism” moniker as far as the lovely English-Language Media and the UPA are concerned. Their sound and fury is reserved for some poor Hindu nun who is, by the power of “truth by repeated assertion”, subjected to an electronic lynch, deemed a terrorist and subjected to tejovadham. This is to be expected, as the ELM and the pseudo-seculars in India have a sworn duty: that of cultural extinction of the native civilization of this country. Once you understand this axiom, their baffling acts are self-consistent in a certain bizarre frame of reference.

Whether the pseudo-seculars do this for money, or they have been brainwashed by the predatory State, is not entirely clear. But then it doesn’t matter, does it, since the end result is the same?

And this deliberate use of nomenclature terrorism – the use of insinuation to demonize and to create defensiveness – is a purely Goebbelsian propaganda tactic. I tried a little experiment on the pseudo-seculars some years ago by returning the favor. I started referring to their ideology as Nehruvian Stalinism. Their immediate knee-jerk reaction was to label me a Hindu fundamentalist, Hindu fascist etc. Which I was prepared for: I told them, fine, maybe I am all that, but you, you are Nehruvian Stalinists.

I got the reaction I expected: when the tables were turned, the pseudo-seculars did exactly what they expect others to do under their attacks. They got defensive, they labored to explain why they were not Stalinists, and how different Nehru was from Stalin. They grew increasingly exasperated as I kept insisting that Nehru was a lot like Stalin: the personality cult, the imperiousness, the purges, the heavy-industry fetish, etc., and how Jawaharlal was merely a little less effective in his ruthlessness.

Happily, I got a few pseudo-seculars into an absolute tizzy denying these allegations; they practically foamed at the mouth. I had succeeded – I had got them to play on my terms, on the playing field I defined; instead of protesting that I was not a fascist, I had changed the terms of reference and forced them to defend their cherished shibboleths. It was good to watch them squirm.

That, I submit, is the way to play this game. Hindus should not bother to try and prove that they are not terrorists. We should say “Yes, there must be Hindu terrorists, just like you guys are Communist terrorists, or Christist terrorists, or Mohammedan terrorists. Any questions?” If they continue to blather, one might hint darkly of caches of AK-47s and RDX.

It is evident that the pseudo-seculars are cowards and bullies, and this will shut them up. Only, gentle reader, I suggest you be careful in your choice of words, just in case somebody has a hidden camera– make veiled threats, where you cannot be pinned down to anything specific. And occasionally mutter knowingly about some atrocity perpetrated by the Christist or Communist or Mohammedan terrorists, and insinuate that you have certain “friends” and you know where the pseudo-seculars live. You know, the kind of thing the Mafioso say in those gangster movies.

Nomenclature terrorism is a game two can play, and the sinister Nehruvian Stalinists can be – as in the quaint phrase they use – hoist on their own petard.

Pinarayi Rajan