Human Rights of the oppressed: differing perspectives

Fr. Tissa Balasuriya, chairperson of the Centre for Society & Religion, Sri Lanka, in an open letter to UN Secretary General Ban Ki Moon, published in the Sunday Island, pointed out that his efforts to protect the human rights of oppressed people were deficient.

He sent a copy of the letter to the Asian Human Rights Commission with a request to give it some publicity to the letter.

AHRC director Basil Fernando, who, incidentally, is a Sri Lankan too, felt that Fr. Balasuriya’s analysis of the state of the oppressed and the causes of oppression, too, was deficient. He outlined his views on the subject in a reply to Fr. Balasuriya.

Fr. Tissa Balasuriya’s Open Letter to Ban Ki Moon and Mr. Basil Ferando’s reply to it, which were circulated by the AHRC, are reproduced in full below since the issue is as relevant to India as it is to Sri Lanka.

Fr. Tissa Balisuriya’s letter

United Nations’ Secretary General …

I am one who has worked for a peaceful resolution of our ethnic relations since 1956, and that right through the 1977 riots, the Black July of 1983 and since then. Recently I wrote an open letter to President Mahinda Rajapakse and leader of the Opposition Mr. Ranil Wickrmasinghe urging a southern consensus for a peaceful political solution, as I had done decades earlier to President J.R. Jayawardene and Mrs. Sirimavo Bandaranaike.
I am writing to you to welcome you to Sri Lanka and also thank you and your staff for helping us in this tragicsituation in Sri Lanka. I wish also to remind you and the UN Human Rights Groups of more serious and urgent responsibilities of the UNO in the global context. I refer first to the build up of the world system by the European peoples during four and half centuries by violence since 1492. The present world order that the UNO is meant to preserve is the fruit of 450 years of the worst racist terrorism in human history. The empires of the European peoples were built up in all the continents of the world by the colonial invasions of nations such as Portugal, Spain, Britain, France, Russia and later Germany, Italy, and Japan etc.

After World War II, the United Nations Organisations (UNO) was set up by the victors of the war with special privileges for them. The world system largely conserved the territorial limits they set up in the Americas, Africa, Oceania and much of Asia. The UN Security Council gives the right of veto to the main victors of World War II concerning any proposals brought to the UN sessions.

During the period of colonization the European peoples migrated to much of the open spaces as the Russians did to North East Asia. The European peoples could migrate to fertile lands elsewhere during these centuries while their population increased. On the other hand while the population of the South, so-called Third World Countries, now increase rapidly, the European populations are decreasing and ageing. But the countries of the North such as Europe, North America and Australia, New Zealand do not readily welcome peoples of the South specially Africa and Asia. The United Nations Organisation does not deal with a just alignment of population according to changes in the nations states. This situation is likely to get much worse in the coming decades when China and India in each have an increasing population more than a billion people. There will be more regional violence in Africa and Asia in the coming decades.

I am mentioning this to remark that much of the ethnic conflicts in the South have a relation to the colonial expansion and also because of the population pressure on the land. This is not to excuse ethnic chauvinism in countries such as Sri Lanka. But in our context too it is useful to recall that one million of our population was brought into our country by the British colonial power for their economic benefit through the plantations. Fortunately this issue is now being resolved by agreements between the governmnts of India and Sri Lanka.

It is also to be remembered that the economies of the colonies were transformed to benefit the colonial powers. They set up their multi-national corporations on a worldwide basis to obtain the profits from the land and work of the colonized peoples. The UNO has not done much to re-establish justice in the world economic system. On the contrary two of its supported organizations such as IMF (International Monetary Fund) and the World Bank support the Global Capitalist System which the colonial powers set up. The independence of the colonies and the end of colonial rule did not mean a just re-organisation of the exploitative global capitalist system. What we have since then is a new imperialism based on technology, finance and military power.

It has to be noted that the hegemonic military power of the United States of America can interfere in the domestic affairs of countries and invade places that it wants to control such as Iraq, without the United Nations being able to do anything about it. On the contrary recently the last US President Bush more or less declared “the war on terror” indicating the peoples of the lands where there are oil resources and stand in need of liberation by the democratic West.

I am writing this to you as Secretary General of the United Nations to remind you that your effort to bring justice to oppressed peoples has been rather deficient at the international level where the super powers are concerned.

While we welcome your interest in justice and peace in Sri Lanka with the backing of the nations of the European Union we wish to remind you that the main on-going injustice in the world is the result of international lawlessness since 1492.

If the world is not to have worse clashes within and among countries of the South in the coming decades, the prevailing injustice among nations must be remedied with an adjustment of land and resources according to the numbers and needs to the populations. The safeguarding of the natural resources of the world and prevention of the worsening of the climate change also need attention by the United Nations without leaving the super powers to act as they wish.

These remarks are made very briefly as you are doubtless aware of them. I have written at length in my book Planetary Theology published by the Centre for Society and Religion (CSR) in 1978 and later by Orbis, Maryknoll, New York.

I sincerely hope that during the remaining period of your service as Secretary General for United Nations you can make
a) an evaluation of the damage done by the super powers to the poorer peoples of the world (including slavery) and
b) make reparation and compensation for the killings of these peoples and transfer of their resources including gold and silver to the colonizing powers to form their capital
c) in this connection you can evaluate also the justice or otherwise of the foreign debt of the poor peoples and remedy their sufferings due to unfair terms of trade.
d) Plan together for world justice for 2010-2020, with practical means of implementation to go forward to a better safeguarding of basic human rights specially in Asia and Africa internally and globally.

I am concluding this short letter informing you that some of us would be ready to dialogue with the United Nations Human Rights groups concerning the obligations of the former colonial powers and present neo-imperialist nations. Perhaps this could help you to rethink your agenda on human rights in a more comprehensive nature during the coming years.
Fr. Tissa Balasuriya, OMI
Chairperson, Centre for Society & Religion

Mr. Basil Fernando's response to Fr. Balasuriya's letter

Dear Fr. Balisuriya,

I hope you are well.

Thank you very much for sending me a copy of the letter you have published on Ban Ki Moon’s visit to Sri Lanka with regard to the issues arising after the assassination of all the LTTE leaders, which is related to the situation of nearly 300,000 internally displaced persons and the problems relating to accountability based on accepted human rights norms.

At your request we are publishing this letter and I attach a reply thereto. I was not surprised by your letter because I was aware that you have never understood the issue of the oppression of the local people by themselves and by their state. In all your writings you see only a part of that problem of oppression which is the colonial enterprise and the global domination by what you call the west. You do not see the other aspect of the oppression which is the oppression of local people by their own through the state, which is used only as a machinery of repression.

Perhaps the differences of our perspectives on this are that you are the son of an apothecary and by the standards of those times, very much a part of the richer classes and of the landlords. I say this after many years of reflection about the differences of our views.

I will not be unkind to you by trying to discuss the issues as to how apothecaries and the like acquired their large acreages. Many of today’s critics of colonialism from the richer families owe everything they have to the colonial powers.

It suffices to say that against your background I am a washerman’s son and you know (of course you can pretend not to know) what that means.

Human rights of the oppressed are not something that you will ever understand. I have noted for years that you treat the words, human rights as some sort of bad language, which has been created only for the purpose of western global domination.

I have not seen a single sentence in your life-long writings of the type of domination the South Asian countries had previous to the arrival of colonial powers. For you it was all paradise before the arrival of colonial powers. That is of course true for people of the top layer whose paradise consisted of the services of the servant class which were also called low caste. Your history does not take into consideration the millennia of years of land lord and caste domination in Sri Lanka. Just to illustrate what this means I quote from this year’s Man Booker Prize winning novel White Tiger of the Indian writer, Aravind Adiga, what the Indian system of oppression (which is also ours), means, which the novelist wrote by way of a letter to the Chinese premier.

The greatest thing to come out of this country in the ten thousand years of its history is the Rooster Coop.

Go to Old Delhi, behind the Jama Masjid, and look at the way they keep chickens there in the market. Hundreds of pale hens and brightly coloured roosters, stuffed tightly into wire-mesh cages, packed as tightly as worms in a belly, pecking each other and shitting on each other, jostling just for breathing space; the whole cage giving off a horrible stench — the stench of terrified, feathered flesh. On the wooden desk above this coop sits a grinning young butcher, showing off the flesh and organs of a recently chopped-up chicken, still oleaginous with a coating of dark blood. The roosters in the coop smell the blood from above. They see the organs of their brothers lying around them. They know they’re next. Yet they do not rebel. They do not try to get out of the coop.

The very same thing is done with human beings in this country.

To claim that all contradictions in Sri Lankan society, including racial conflicts happened only because of colonial powers may help you to join the chorus of the chauvinist groups and perhaps your letter will help you to be placed also among the ranaviruos (heroic warriors). However, it is far from the truth, but then perhaps truth or history may matter very little to you. To all the nationalists, whether they are Sri Lankan or western nationalists like Hitler, Mussolini, Joseph Stalin and so many others, history matters so little. Myth and ideology is all they live by.

This is not to say that the colonial powers aggravated some of the problems we had. To speculate what might have been the situation if there were no colonial powers is pure fantasy as history has happened and we have to live amidst realities which were created by all who dominated the scene and created the conditions of life throughout our history, not only in some part of it.

Not only the period before colonial powers is important but also the period that came after. We have had over 60 years of power by the local political leaders. During these 60 years many countries which were former colonies have been able to overcome, to a relatively successful degree, many problems which were affecting their societies. India for example has resolved something a million times worse than racial relationships in Sri Lanka which was the condition of untouchability that affects more than 400 million people. Within the same period of independence as ours there is a considerable resolution of this problem, although there is a long way to go for a final equality. Also Malaysia was able to find a way to accommodate difference of ethnicities within their state structure.

The governments have been able to create a national sensitivity in which denigration of the untouchables, which was so prevalent and unbelievably cruel towards people, has been considered a wrong by the Indian state itself. The Indian leaders have the enlightenment to have, and to trust the leader of the movement of the untouchables as the chief draftsman of the drafting committee of the Indian Constitution: Dr. Babashaheb Ambekhar. Though there is still a long way to go, the future course can take place without violence within a functioning democracy because India, in fact, is a functional democracy, which Sri Lanka is not. They still have free and fair elections and a viable party politics. Indian’s have accepted responsibility for their own destiny and have not allowed themselves to be a failed state, which will be forever blaming their colonial masters.

You also completely misunderstand the United Nations today and the United Nations Human Rights approach in particular. In doing so what you fail to recognise is that there globally exists now, both in the west and the east, including in the most economically and politically underdeveloped countries in the world, a consensus that human rights is the measure in judging all those who hold power, be they those who hold economic and political power internationally, as well as judging all governments in all countries, which of course includes ours. For you it’s all black and white. Everybody in what you call the west are dominators and we are poor lambs who don’t bear any responsibility for ourselves. However, the modern human rights movement has been formed and developed in the movements against colonialism throughout the world, against internal oppression such as apartheid, against the struggle against slavery which in the United States was defeated by white people fighting white people and ending what was considered an abominable practice to human conscience.

You, Fr. Balasuriya, would you have fought with your life to end the caste discrimination in South Asia in the way the American northerners fought against the southerners to end slavery. This was again followed by a long period of struggle by the blacks against white domination and the black movement was able to transform the state apparatus of the United States in order to recognise the rights of the blacks. The law of America and the courts of America now protect the blacks in a far more advanced manner than at the beginning of the last century. None of these struggles are finished but the state has provided a democratic space to fight all these battles so that the need for armed struggles has been reduced. As against the gassing of six million Jews there was a world movement that arose to prevent future occurrences of the type. The entirety of the German law was changed. The German constitutional system and the education system were so transformed after recognizing a great cruelty that their system had perpetrated. Today the Palestinians have become the victims of Israel. The cry of the Palestinians is for respect for their human rights and for the recognition of their right to have their own state.

The world’s oppressed people are also thinking people today. The type of slave-like mentality some local people may have had towards your parents and all the landlord classes no longer exists. The untouchable that thinks calls himself a Dalit and wants his state to recognise his rights. The blacks in South Africa have created a state in which they can elect their own representatives. Throughout the world people are fighting both their local oppressors and the system of imperialism that dominates the world.

I can illustrate to you what human rights means by one single example. When you were excommunicated by the Catholic Church I was one of the people who played a prominent role in defending you. I did not defend your theology, I had given up that world view a long time before that. My world view is entirely a secular one and therefore from the point of view of ideas mine was different to yours. As for some of your views I just consider them to be funny as these ignore the fundamental changes in human ideas since Galileo. But I defended you because you had a right to say what you wanted to say and it was wrong for anybody to punish you for just saying or writing your views. That, as I explained to you is the meaning of article of 19 of the International Covenant on Civil and Political Rights which is one of the United Nations covenants. I acted according to the principle I believed in, your right to express an opinion, though in fact your opinion did not matter to me at all. Had I not cared for your human rights I could have done what most of your friends and lifelong colleagues did. In fact, I was pressurized by some people who were very close to you not to push the matter so hard. I will not repeat here the reasons they gave because the purpose of writing this letter is not to hurt you. For your friends, their theology was more important than you. To me, your human rights were more important than anything else.

It is the duty of our state to protect its entire people. The protection should take place by the efficiency of democratic apparatus and not by the capacity of its armed forces. If such a state apparatus does not develop all are victims. Sri Lanka’s trade union movement was a victim, twice the JVP were victims and in the second time there were over 30,000 disappearances. Naturally minorities in any country are the worst victim of a bad state. Are we to say all this is the fault of the colonial powers?
The moral issue involved is the one of our responsibility to think, to will and to exercise our judgement. We in Sri Lanka have had at least the time since independence to think, to will and to judge our own course for correcting our society’s wrongs. Refusal to think, to will and to judge may have caused our failure to correct our own wrongs, at least since the time of independence.

I say from the time of independence, because unfortunately that process of thinking, willing and judging by ourselves did not start in Sri Lanka, at least to the extent that it happened in India. (By 1865 the National Congress Party of India started a process of thinking, not only of independence but also of resolving the country’s historical deficits by way of inequalities towards women, expressed by deprivation of education and practices like sati, other unacceptable practices like child marriages, the need for fundamental land reforms, for developing constitutional principles that will prevent the occurrences of the misuse of power exercised by the colonial powers and above all the country’s most abhorrent practice of caste discrimination, particularly the issue of the untouchables).

What kind of thinking, willing and judging have we Sri Lankans done in the shaping in our own systems of governance so that we could have eliminated neglect, corruption and arbitrary use of power at all levels and the prevention of national discourse in a free and fair atmosphere. As we talk now journalists are being killed simply because they are journalists who express their views freely. If your argument is that colonial powers created our mentality, particularly that of the elite and therefore they are guilty of the present wrongs, that to some extent is a justifiable statement.

However, that does not explain why for 60 years we have not been able to overcome problems of our mentality by our own thinking, willing and our own judgment and thus, creating a type of state that is a viable democracy with a functioning state apparatus. Instead we have abandoned even the limited apparatus of civil service, the judiciary and accountability and created a political monstrosity called the executive presidency in which all power is given to one man.

I do not in any way disagree with your view that colonial powers should pay for their colonial exploitation. You know my view on that and I did participate in one of the meetings you organised a few years ago on this issue alone and I subscribed to the statements adopted. However, to confuse this issue as the sole issue that exists in the world and that we, in our countries, can use that as an excuse for our failures is nonsensical from the point of view of reason and morally amounts to the abdication our responsibilities.

We have abdicated the limited system of administration of justice. We have today the most corruption and unreliable system of policing which is unwilling and incapable of investigating crimes. Today the criminals are protected and the victims of crimes are being further abused by the ‘system of justice’ under the pressure of politicisation, the Attorney General’s system and the judiciary itself has suffered serious setbacks. We had the nightmare period of the undermining of the judiciary from within under the leadership of the chief justice, Sarath N Silva. What is in the future for us we do not know, all that we can say is that there is something terribly wrong within the state of Sri Lanka.

I also do not claim that the human rights language cannot be and often is abused. That is the nature of everything human. However, to discard any historically developed idea due to its imperfections is to deny the validity of ideas altogether. Every idea ever known to human kind has certain limitations and can be abused. But the struggle for bettering of our ideas and to struggle for overcoming weaknesses by honest search and struggle to implement is all that humanity can aspire to. However, those who have abdicated their duty to think, to will and to judge descend to the discarding of the validity of ideas altogether. The ideas of human rights are among the best of ideas that modern society has developed as against all hitherto known societies, all of which accepted the ruthless discrimination of the many by the few.

What Ban Ki Moon, as the United Nations General Secretary has done is to do what he is obliged to do within the framework of the human rights mandate of the United Nations with which Sri Lanka has expressed her agreement by being a signatory to all the relevant UN treatises.

I acknowledge your right to say what you have said in this article. I also believe that as a thinking person I also have a responsibility to express my thoughts and my judgment on what you say and its implications as I have always done.

I wish you a long life.

Thank you

Fraternally yours,
Basil Fernando
Director
Asian Human Rights Commission

Guidelines for human rights fact-finding

Saji Thomas (saji@forum-asia.org) writes:

The International Bar Association’s Human Rights Institute, in conjunction with the Raoul Wallenberg Institute, finalized a set of human rights fact-finding guidelines during a conference at the British Institute of International and Comparative Law, London, on June 1, 2009.

The guidelines are the result of several years’ work and wide consultation. They arose out of concern that, despite there being no agreed international standards for human rights fact-finding reporting, such reports are frequently referred to by courts and tribunals as evidence of the facts alleged in them, as well as by governments, NGOs and other interested people.

The guidelines aim to fill this gap by setting an agreed international standard of good practice in the conduct of fact-finding visits and in the compilation of reports.

Although primarily intended for use by NGOs, the guidelines can provide direction to all those engaged in human rights fact-finding and reporting with a view to improving accuracy, objectivity, transparency and credibility.

As the Preamble to the Guidelines states: “If a report has been compiled in accordance with these guidelines it indicates that the allegations, observations and conclusions in it can be reasonably relied upon, thus enhancing the efficacy and credibility of the report. This will enhance fact finding as a step in a constructive process to improve the general climate of human rights compliance and to protect the victims of human rights violations.”

The Guidelines can be downloaded from: www.factfindingguidelines.org

Human Rights Film Festival in India

A scene from the film Play the Devil back to Hell, which tells how thousands of Christian and Muslim Liberian women peacefully ended the civil war that had claimed more than 250,000 lives.

India’s premiere Human Rights Film Festival opened in New Delhi yesterday (January 15). It was inaugurated by critically acclaimed actor and social activist Nandita Das.

The festival programme envisages screening of documentary films at the India Habitat Centre and the AllianceFrancaise de Delhi till January 18. The festival will then travel to Mumbai, Banglooru and Kolkata.

The festival features 28 films from more than 20 countries and includes 11 Asia premieres, eight India premieres and one world premiere.

The festival opened with the Asia premiere of Tribeca Film Festival award-winner, Pray the Devil Back to Hell, directed by Gini Reticker, an extraordinary story of a small group of Liberian women who win peace for their shattered country. The film shares this year’s Tri-Continental Jury Award for Best Film with The Sari Soldiers by Julie Bridgham, which showcases the leadership of six women through the Maoist struggle in Nepal.

Other Asia premieres include the riveting film, The Choir, directed by Zimbabwean Michael Davie, about the powerful role of music in surviving South Africa’s largest prison. La Americana documents the human stories behind the current US immigration debate while Up the Yangtze chronicles the contradictions that accompany modernization in contemporary China

The films were selected from more than 150 submissions by a five-member jury comprising Aruna Vasudev (India), Nick Deocampo (The Philippines),Madhusree Dutta (India), Amir Muhammad (Malaysia) and Anurag Kashyap (India).Last year’s Jury Award went to A Jihad for Love by Parvez Sharma.

The Tri Continental Film Festival began in Latin America in 2002, in Africa in2003, and was introduced in India by Breakthrough in 2004. It has become the primary platform for human rights cinema across all three continents, showcasing internationally acclaimed, and award-winning films about social justice issues impacting the global south.

Breakthrough is an innovative, high-impact transnational human rights organization that uses media, popular culture, grassroots training and education to transform attitudes and advance equality, justice, and dignity.
Breakthrough currently works in India and the United States, the world's two largest democracies, on several issues including violence against women, sexuality and HIV/AIDS, racial justice, and immigrant rights.
For more on Breakthrough, visit www.breakthrough.tv. For more on the Festival, go towww.triconfilm.com

This report is based on a message from Mallika Dutt , forwarded by Sree Sreenivasan through SAJA FORUM

Asian Legal Resource Centre reports on human rights situation in India

The Asian Legal Resource Centre (ALRC), a unit of the Asian Human Rights Commission, has submitted a country report on India for consideration by the United Nations Human Rights Council’s Universal Periodic Review (UPR) process.

The report concentrates on the issues of caste-based discrimination, policing and custodial torture, and the right to food, including starvations deaths.
The report can be seen at http://www.alrc.net/PDF/ALRC-UPR-1-002-2008-India.pdf

The UN Human Rights Council (HRC) established the UPR as a means to monitor the human rights situations in all UN member-States, starting with the members of the HRC itself, ostensibly to avoid the situation encountered in the past in which grave violators of human rights were able to achieve membership of the UN’s apex human rights body. Each member-nation will be reviewed every four years.

The state in question will submit a 10-page report concerning its evaluation of its performance with regard to human rights. The UN’s Office of the High Commissioner for Human Rights (OHCHR) will prepare a 10-page report concerning its evaluation of the state’s record. NGOs and other stakeholders, including national human rights institutions, have been invited to submit five-page reports that will be synthesized by the OHCHR into a third 10-page document.

The ALRC has submitted reports in respect of six other Asian countries too. They are Indonesia, Japan, Pakistan, the Philippines, South Korea and Sri Lanka. For details, kindly visit http://www.alrc.net/pr/mainfile.php/2008pr/133/

A working group of UPR is scheduled to consider the reports on India, Indonesia and the Philippines between April 7 and 18, 2008. The reports on Japan, Pakistan, South Korea and Sri Lanka will be reviewed between May 5 and 16, 2008.

Are courts and media substitutes for governance? AHRC poser

Can courts and media be substitutes for governance? The Asian Human Rights Commission raises this question in the context of the Kerala government's response to its communications regarding human rights violations in the State. Below is the text of the statement issued by the Commission on October 26, 2007:

ON OCTOBER 22, 2007 the Asian Human Rights Commission received a communication from the government of Kerala in India. The communication, in the form of a letter, dated September 9, 2007 prepared on behalf of the Additional Chief Secretary to the government informs the AHRC that if the AHRC is concerned about incidents of custodial deaths in Kerala, the AHRC must approach the human rights commissions in the country or the courts or the media and NOT the government or any of its departments, particularly the Home Department.

While the letter triggers a series of questions regarding governance, of particular interest is the role of the Home Department and the local police this department controls and allegedly govern. The Home Department is an important government agency that is primarily responsible for law and order within its jurisdiction. In the initial communication from the AHRC to the state government, written in October, 2006, the AHRC urged the government to take appropriate steps to address the issue of custodial violence committed by the local police. The AHRC also urged the government to initiate enquiries into reported cases of custodial deaths from the state.

The extent to which violence is used as part of crime control and case investigation is no news to anyone who is familiar with policing in India. Policing in Kerala is not different. The performance and temperament of the Kerala State Police is not different from the police elsewhere in India. In most cases, if a crime is registered, investigation begins with the arrest and detention of a suspect. What then follow are confessions leading to recovery and charge-sheeting. It would be naïve to believe that a large proportion of persons arrested of being accused of charges easily confess their crime. It would be equally naïve to agree that any person who dies in police custody died from cardiac arrest, since it is often the excuse the Kerala State Police poses when a person die in custody.

Custodial torture and violence are the brutal means often adopted by the police in India for investigating crimes and maintaining law and order. Fear and aversion are the two most common feelings the general public express about their police in India. Who is responsible for this? It would be unfair to blame the police in isolation.

Custodial violence is an external manifestation of a failing institution -- the police department. The lack of a clear political determination to rule out the possibilities of custodial violence perpetuates the use of uncontrolled violence by the law enforcement agencies. For instance, there is no specific law in India that prohibits custodial violence. Sceptics may tend to argue that with the provisions in the Indian Penal Code, 1860 and the procedures laid out in the Criminal Procedure Code, 1973 are adequate enough to prevent custodial violence in India. But what is missing in this argument is the gravity of the offence.

A crime committed by a police officer upon a person under his custody is more serious than a crime committed by a local criminal. This is why the crime of torture as of today has the status of ius cogens in international law. Unfortunately in India custodial violence is just another crime, which takes the regular course of investigation and trial. In most cases these trials result in an acquittal.

The Home Ministry of the state is directly accountable for the law and order in the state in addition to the police force. Law and order and rule of law are directly related. Proper maintenance of law and order is one of the foundation stones for establishing rule of law in a country. Rule of law in simple terms means that no one is above the law. Catalysts like trade and commerce has resulted in evolving new sequencings for establishing rule of law. Yet, what Samuel Rutherford said in Lex Rex in 1644 and a century later Montesquieu in Spirit of Laws in 1748, the fundamental principle of what rule of law is has not changed.

What was said centuries ago are now sought to be perfected by several states across the globe. In fact rule of law has become the backbone of economies in some countries. One example is Hong Kong. Even though there is great scope for improvement like the concept of full democratic governance as a separate entity within China, the administration in Hong Kong has achieved enough to be proud to advertise the territory's potential for investment by showcasing its rather impeccable record of rule of law. A postal stamp released earlier this year says exactly this. The stamp displays a caricature of the Hong Kong skyline with 'Rule of Law' printed on the skirting.

The AHRC wonders how many other Asian countries can be honest and bold enough to advertise their country, pitching rule of law as one of the key factors to attract business. Unfortunately most Asian countries cannot, since they are institutional wastelands as far as rule of law is concerned.

What the governments in India have failed repeatedly is to establish the minimum guarantee of rule of law, while the country is allegedly marching towards economic progress. An economy without the basic guarantees of rule of law can never be stable. In this context it is imperative to look into what is lacking in India. The country has one of the best constitutions in the world, is home to some of the best jurists and legal professionals and also has a governance mechanism. But this all in theory. In reality India is a far cry from what it ought to be. Somehow the democratic institutions in India have failed to make their 'real' contact with the people. Casting a vote once in a while and having some courts and other similar semi-functional institutions is not what democracy or rule of law really means.

In this context, policing has a major role to play in India. Courts, human rights commissions and the media are not substitute mechanisms for what policing must be. While courts and commissions are dispute redressal forums, the media serves the purpose of being the public's eye and ear. None of them can be expected to replace the police. The question is what if the policing itself is bad? Even though the presence of these institutions serves the purpose of a deterrent, that role is limited. The very purpose of having a Home Department is to monitor the functioning of the police and to lay down rules and procedures for policing and also to define the norms required to maintain discipline in the force.

Widespread use of custodial violence is an indicator that the Home Department is ignoring this role, intentionally. The letter issued by an officer as senior as the Additional Chief Secretary to the government is a proof to this. The courts in India and other para-legal mechanisms have tried to address this issue in part. The judgment of the Indian Supreme Court in the Prakash Singh v. Union of India delivered in 2006 is just one example.

In this case the Supreme Court of India has asked the state governments to come up with effective policies and even legislations to regulate policing in their respective jurisdictions, including but not limited to maintaining internal discipline and procedures to be put in place for the police to strictly adherence to the law of the land. The guideline in the judgment also to a large extent is expected to reduce one of the worst curses of policing in India – political interference. The AHRC believes that it is the duty of the Home Department in each state, among other duties, to advice their respective ministries how the judgment of the court could be effectively implemented. The communication received by the AHRC however does not reflect this attitude.

The Home Department is literally ruled by a Minister – the Home Minister – advised by a team of bureaucrats who might not be directly involved with policing. The implementing agency of the decisions made by the Home Department however is the police. What the AHRC, like any other human rights organisation did, was to urge the state government and the concerned departments to discharge their duty and in the process to help the police in correcting itself.

The response by the state government of Kerala to the AHRC is not only condemnable, but also exposes the neglect and contempt with which the department views their execution wing - the local police. If not for human rights organisations like the AHRC, at least the local police themselves must be concerned about why their bureaucratic counterparts in the government neglect them to an extent that the local police is taken for nothing more than a joke.

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.