SanjeevaObstacles to Achieve Human Rights in Asia

8/14/2019 SanjeevaObstacles to Achieve Human Rights in Asia

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Gwanju Human Rights Folk School 2004

Young girls from across Asia are trafficked into sex work or sexual slavery-like

conditions. Nepalese girls are trafficked into India. Mostly rural Thai girls aretrafficked into brothels in the cities and outside Thailand. Many young Chinese

girls are trafficked from mainland China (from rural to urban areas) as well as into

other Asian countries such as Hong Kong for sex work. Many of these girls do not

have any rights. Diseases such as AIDS are contracted easily among most of these

young girls, many of whom end up dying at incredibly young ages.

Dalits or so-called untouchables in India are living in sub-human conditions.

They continue to do filthy jobs such as the cleaning of toilets or other designateddegrading jobs in line with their caste. Many of these Dalits also become victims of

police custodial deaths, women are raped and children are denied education. There

are over 180 million such Dalits in India itself today. This is despite India

prohibiting untouchability in its 1947 Constitution.

The above demonstrates only a fraction of the human rights violations that occur in Asia

each and every day. Indeed, most people in Asia are victims of human rights violations

and do not enjoy the rights that should be afforded to them. This is despite the notion of

human rights being included in many national constitutions and laws. This is despite

these countries being party to international human rights treaties. This is despite the

establishment of national human rights institutions in these countries. This is despite

enormous numbers of reports written by many international and local NGOs on the

human rights situation in these countries. This is despite many human rights NGOs

directly working in these countries. Despite all this, human rights in many parts of Asia

remains an idea on paper only, having not reached the people that they are intended for.

This paper will attempt to examine why this is so.

Non-implementation of human rights at domestic levels

At the domestic level throughout Asia, human rights remain largely a notion with little

done to implement them or educate the public as to what they are about. Who then is

responsible for changing this situation? It should be the state and state institutions that

are responsible for such implementation. Yet if we look into the States, and their

relations to human rights, we often find that they are in fact the agents most responsible

for violations. How can we expect them to enforce human rights among their societies,

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The case of Gerald Perera [Sri Lanka]2

Gerald was a cook working at the Harbour Authority in Colombo. He was a Catholicand was married to a Buddhist. They had three children; a girl (8), and two boys (5 and

8 months).

Gerald arrested on mistaken identity and severely tortured

At 12.45 on 3 June 2002, Gerald Mervin Perera was arrested in the presence of his wife

by police officers from the Wattala Police Station. The police officers dragged Gerald

into their jeep saying, "you are the man we are looking for." Gerald was taken to WattalaPolice Station, where several policemen subjected him to torture. Geralds hands were

tied behind his back; he was blindfolded and hung from a beam before being severely

beaten with iron rods and wooden poles for about one hour. The officers then forced

him to the ground and began to burn him with lit matches. During the torture Gerald

was interrogated about a murder case concerning which he knew nothing about. He was

kept at the police station on the night of 3 June, before being released the following day.

On the morning of his release, Geralds brother was informed by Sena Suraweera, the

Officer In Charge (O.I.C.) of the Wattala police station, that Gerald had been mistakenly

arrested and detained based on erroneous information. Gerald had therefore been

subjected to torture as a result of mistaken identity.

Gerald hospitalised due to the effects of torture and falls into a coma

Following his release and due to the effects of the torture, Gerald was taken to the

Navaloka Hospitals Intensive Care Unit in Colombo. On arrival he suffered kidney

failure and fell into a coma for two weeks. During this time, he was kept alive by a life

support system. In a report written by the Judicial Medical Officer (JMO) of Colombo,

who had observed Gerald on 16 August, he concluded that Gerald had developed acute

renal failure, had lost sensation in a part of his spine, had complete loss of power of the

muscles around both shoulder joints and lacked the ability to move both arms. He

further noted that there was sensory loss around both elbow joints, that there were

2 Detailed information concerning the case of Mr. Gerald Perera, please go to the AHRC

website, where you can find all of the relevant urgent appeals, press releases,

statements and press cuttings collected together on one page. This can be found by

going to:http://www.ahrchk.net/gerald .

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http://www.ahrchk.net/geraldhttp://www.ahrchk.net/geraldhttp://www.ahrchk.net/gerald


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blackish scars on the back of Gerald's right hand, rope scars around both wrist and

bruising to the left shin.

Friends and villagers rally around Gerald and against torture

Geralds friends from his workplace and from his village collected money for medical

expenses. They also held a number of protests against police brutality when Gerald was

in a coma.

A human rights petition is filed on behalf of Gerald

A petition was filed with the Supreme Court on 19 June 2002 by a human rights lawyer

working with the AHRC, W.R. Sanjeewa, concerning violations of Gerald Pereras

rights that are guaranteed under of the Constitution of Sri Lanka. The aim was for

Gerald Perera to receive adequate reparation for the suffering and injuries that he

endured, and for the Attorney General to be given the order to prosecute the perpetrators

under Act. No 22 of 1994 of Sri Lanka, which prescribes a minimum 7 years of

imprisonment for any act of torture. The perpetrators were accused of having violated

the following articles of the Constitution of Sri Lanka: Article 11, which guarantees

freedom from torture and other cruel and inhuman treatment or punishment; Article 13.1

which stipulates that a reason for an arrest must be given; and Article 13.2 which

guarantees the freedom from illegal detention.

On 26 June 2002, while Gerald was still unconscious, three Sri Lankan Supreme Court

judges heard submissions made on his behalf in a fundamental rights violation case

concerning his torture at the hands of the following policemen: Sena Suraweera, the

Officer In Charge (O.I.C.) of the police station; Sub Inspector (S.I.) Kosala Navaratne,

O.I.C. Crimes: S. I. Suresh Gunaratne: S.I. Weerasinghe: S.I. Renuka; Police Constable

(P.C.) Nalin Jayasinghe and P.C. Perera.

The Supreme Court awards compensation to Gerald

On 4 April 2003, the Supreme Court passed a landmark judgement concerning Gerald

Pereras case and awarded him a record-breaking 800,000 Rupees (about 9,000 US$)

cash as well as full medical costs in damages. Mr Perera's medical costs exceed the

amount awarded in cash and the total amount was about 15,000 US$.

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Gerald becomes an activist

Gerald soon learnt of what had happened during his coma and of the support he had

been given. He felt very grateful to those who had helped him. He also learned about

his own rights, including those regarding torture. As he gained more and more

knowledge on this, he began to participate in torture victims meetings and attended a

regional human rights workshop held in November 2003 in Sri Lanka. He narrated his

experience and declared his commitment to fight torture.

Continuing threats to Geralds life from the Police

Meanwhile, the police officers that were facing criminal charges for Gerald's torture,

approached Gerald many times. They first asked him to accept money to the value of

USD$50,000 and to then withdraw his witness statement from the criminal trial. They

also threatened him that if he went ahead with the trial, his life would be in danger.

Gerald ignored these threats. He also refused any money saying, there are many

people behind me and if I accept this money I will be betraying them and the cause they

are fighting for.

The perpetrators (relevant police officers) of the torture that Gerald was subjected to

had to face criminal prosecution. The criminal case under Act. No 22 of 1994 against

the aforementioned alleged perpetrators was scheduled to be heard before the Negombo

High Court on 2 December 2004.

Gerald shot, critically injured

At around 11:15am on 21 November 2004, Gerald Perera was shot by an unknown

assailant at close range, while traveling on a bus. Geralds killer walked to where Gerald

was sitting in the back row and shot him several times. The bus driver drove directly to

Ragama General Hospital, and after some treatment Gerald was dispatched to the

Colombo main hospital for emergency treatment. The shooting took place only a matter

of days before Gerald was to appear as the victim and key witness in the criminal case

before the Negombo High Court. The AHRC is convinced that the killing was carried

out on orders of those facing trial. The police officers facing criminal charges still

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maintain their positions without any suspension of duty pending the outcome of the

trial.

Gerald succumbs to his gun shot wounds

On 24 November 2004, Gerald Perera passed away at around 1pm local time, at the

Colombo General Hospital.

International lobbying

AHRC has continuously lobbied for the case of Gerald since the time he was subjectedto torture by the police. There have been a number of appeals sent on behalf of him to

the international community and as a result, UN authorities have intervened into

Gerald's case on a number of occasions. In the aftermath of the shooting of Gerald,

AHRC intensified its international campaign for the case of Gerald. As a result, local

and international media covered the case of Gerald intensively. Many of our partner

organizations approached Sri Lankan embassies in their own countries to protest against

the murder of Gerald. In Korea, there was a signature campaign that collected over

1,400 signatures urging the police to arrest the perpetrators and bring them to justice.

AHRC also contacted higher police authorities, the National Police Commission and the

Human Rights Commission of Sri Lanka directly to urge them to expedite the arrest of

suspects and bring them to justice.

Immediate effects of Geralds death

Geralds family became terrified after the death of Gerald. They lived in fear and did

not even attempt to recover Geralds body. AHRC immediately sent two colleagues,

Eugene Soh from Kwangju, Korea and Bijo Francis from AHRC office to Sri Lanka.

They played a crucial role in helping Gerald's family recover his body and provided

necessary emotional and moral support. Local groups working against torture in Sri

Lanka met and decided to carry on with their fight against torture while taking greater

precautions. A mass funeral was arranged for Gerald on the 26 of November 2004.

Thousands attended the funeral and national television covered the event. Hundreds

staged a protest on the funeral day against the police who are suspected of being behind

the murder of Gerald. A senior policeman spoke to the public during the protest

promising prompt action. Threats to activists and victims continue.

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The AHRC called for a witness protection programme to protect other victims of torture

who have become witnesses in criminal cases field by the state against police officers.Eventually, police protection was provided to the houses of one victim and an activist.

The police suspended the service of 7 police officers related to the case of Gerald

Perera. The Officer In Charge of Wattala Police station has been transferred. One

month after the murder of Gerald the police arrested two persons, including one police

officer, as suspects for the murder of Gerald.

Basil Fernando wrote the following in the aftermath of Geralds death:

When he regained consciousness two weeks later, he began to fathom the

magnitude of what had happened to him. He was from Hendela - my hometown.

Knowing the people of his neighbourhood, I could feel the strength of his

indignation at being treated in such a manner. These are a fiercely proud people,

whose natural reaction would be to resist such inhuman treatment.

Gerald insisted on seeking justice. One of the expressions he used so often was,

'What I want is not money compensation but actual justice.' I met him directly

for the first time only in court, when the case came to be argued before judges. I

found Gerald to be a very warm and large-hearted individual. On that very first day

he told me that until this incident had happened, he had not known anything about

human rights. He said, 'But when I was unconscious, people had come. A lawyer

had come from the human rights groups, and thereafter I was strongly supported by

them. Only now do I understand this type of work. I want to be part of such work.'

".

.

After the judgement, of his own volition, Gerald visited human rights organizations

and when there were meetings he would come and speak. No encouragement was

needed for this, as he was convinced that it was his duty to participate in this way.

The last time he volunteered to come and speak was on the United Nations Torture

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Prevention Day, June 26th 2004, at a meeting held at the Sri Lanka Foundation

Institute. This speech is available on video. His style of speaking was very soft and

gentle but he conveyed deep convictions and determination.

His sense of self-respect made him refuse to bow down to these pressures. He

did not take the efforts to deter him as seriously as many other victims do. His wife

recalls that she had told him to take her with him when he attended inquiries

concerning his torture. However, he had said that there was nothing much to worry

about. That was very much in keeping with his character. Even as I write this, I can

recall his smile, the very affectionate expression on his face and the firmness of his

voice.

That such a gentle person could have been treated so brutally twice, the first time by

way of extreme torture and the second by a well-planned murder, is a clear

indication of the extent to which the basic institutions of justice have collapsed in

the country. It is not so much the depravity of the perpetrators that is responsible for

this tragedy, but what contributed most of all was the institutional collapse of the

policing system in the country. That is what made this killing possible.3

The killing of a torture victim speaks to how the rule of law in Sri Lanka has totally

collapsed, and how discipline in the police force has degenerated to the extent that some

officers have become nothing better than the planners and instigators of homicide. Over

the last ten years, the AHRC has repeatedly voiced concerns over the exceptional

collapse of the rule of law in Sri Lanka. It is now a place where ordinary citizens lack

even the most rudimentary security. Today the whole government apparatus stands as an

accused party to this murder by reason of its failure to provide Gerald Perera with

adequate protection.

Outdated models of human rights work

Human rights NGOs are partly to share the blame for the lack of progress of human

rights at the local level. Many human rights NGOs conveniently adopted human rights

working models from developed countries. Many NGO activists got their training in

3 Fernando, Basil, Gerald Perera whom I knew, Asian Human Rights Commission, 2004

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the West. Many big international NGOs have trained local human rights activists in

developing countries to carry out human rights work. Many NGOs have regarded the

United Nations as the centre of all of what they do. The information and documentationof many NGOs has been directed towards UN systems and big international NGOs only.

By conducting their work in such a way, local NGOs ignored the disparity between

justice systems in developed countries and those that exist in Asian countries. Many

human rights models developed by large NGOs and western groups have been based on

the assumption that there is a basic functional justice system in all the countries where

these models are to be applied. However, the reality is rather different. In Asia, most

countries do not have genuinely democratic governments. Further, justice systems, suchas policing, prosecution and judiciary, are deteriorating or have collapsed. In the West,

such systems have been established and functioning reasonably well for a long time.

There is a historical legal tradition developed in the West to uphold justice and human

rights. Functioning anti-corruption mechanisms have been established in the many

Western countries. However in Asia, only Hong Kong and Singapore can be mentioned

as having established effective anti-corruption mechanisms. In most Asian countries,

very little emphasis has been given to the improvement of justice systems. Justice

system institutions are either very corrupt or heavily politicised or both.

Further, human rights work should attempt to include ordinary people who have become

victims of human rights themselves. Often, NGOs focus on political prisoners and high

profile persons who have become victims of human rights. This is not adequate. This

will create a misconception among the public that human rights groups are working on

limited number of privileged groups or persons.

One should not be confuse the above analysis as a criticism of the West or international

standards. Rather it is a self-criticism of ourselves. Established rule of law traditions in

the West are examples to follow. In fact we need to learn how such traditions have been

established. Human rights are universal. However, these standards need to be enforced

within the context of a system of rule of law. If that system of rule of law is absent, our

efforts to enforce human rights are fruitless.

Further, human rights actions needed to be persistent and repeated if necessary. Regular

repetition of actions helps create public conceptions, debate and support.

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Incomplete models of human rights education

Another emphasis of many human rights groups in Asia including many national human

rights institutions has been human rights education. However, often human rights

education has been limited to explaining international human rights standards, the UN

human rights system and how NGOs could participate in them. There is a serious flaw

in this model of human rights education. Human rights education should focus on the

implementation of human rights at the local level. Such implementation could always

abide by international standards but with a local focus. When you discuss problems

with regard to implementation, you encounter various problems with regards toinstitutions that should be guaranteeing human rights to people. Once again, we are

back to the justice system here. Human rights education needs to seriously focus on

problems with regard to local justice systems and institutions and how the local groups

could lobby to improve these systems. Such lobbying needs to be done locally as well

as internationally.

Outdated communication system mindset

Many NGOs also live and work on the old system-mindset meaning we disregard the

changes in the world in terms of information technology. We are living in the

information age where the sharing of information to a large number of persons can be

done through the press of a button. Fifteen years ago, many NGOs were used to a

certain styles of work. We produced publications and mailed them to a limited number

of NGOs and close contacts. Thus our outreach was limited. We had meetings after

meetings regional and international but often the same people attended these

meetings and there was no continuity. Contacting each other took weeks if not months.

Today this has changed dramatically. With the Internet, e-mail and mobile phones, we

are in constant touch. We can disseminate information to an unlimited number of

persons in seeking solidarity and support. We can do this little or no cost. All that we

need is someone to type this information into a computer, and a list of e-mail addresses

that we can send the information to. This improvement in communication could be

regarded as the biggest change in the way of life for all people in the world in the 20 th

Century. People have become closer to each other information wise. E-mail and use

of the Internet by NGOs is no longer an option or a privilege. It has become a necessity.

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But the potential of such communication has not been fully realised or explored. Today

we can go beyond our NGO circles and reach out to hundreds of thousands of persons

who can become supporters of our local causes. But if we remain in the oldinformation-mindset, we will fail and no doubt regret this later. Today the greatest

resources are the young who are more acquainted with information technology than

older generations. Given the opportunity, these young people could become an

indispensable asset to our work.

Further, innovative models of education need to be used to educate the public at large.

This means human rights education needs to go beyond the human rights activists and

lawyers. The use of mass media for local campaigns can not only educate the public onhuman rights issues, but can help create public opinion and support for human rights

causes.

Alternative models of human rights work Analysis

When you look at the case of Gerald Perera, you could make few remarks.

Gerald was an ordinary citizen who was tortured. Human rights organisations and a

lawyer intervened on behalf of him. When his case was publicised, the public at large

could identify themselves with him, as there are many other innocent citizens who are

routinely subjected to torture by the police. Public anger and dissatisfaction of the

police surfaced and was debated. Thus the institutional problem became a public debate

and public consensus was built that police are too ruthless and torture by the police is

unacceptable.

Gerald also became an activist. He became a member of the victims group that was

initiated with the local human rights NGOs by Eugene Soh from Kwangju. The victims

met each other and began to talk about their own problems and experiences. This

became a forum of supporting each other as well as a forum to rally a campaign against

torture with greater involvement of victims. Victims became strengthened to speak out.

Human rights education programmes invited these victims to talk and share their

experiences instead of listening to human rights lectures by scholars from universities.

Human rights workers at training programmes became patient listeners. Their education

model has been changed. After listening to these victims, the workers began to discuss

what would have prevented these victims from these violations thus justice system

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problems relating to implantation of human rights at the local level as well as effective

remedies for human rights violations at the local level. Human rights groups also

brought victims to international and UN forums to directly recount their experiences.Thus the top-down educational model was changed to become a bottom-up one.

Further, a number of local media sources were used to advertise and highlight the

demand on Government institutions to end torture in Sri Lanka

When Gerald was murdered, it was a crucial point of time for the victims and activists

in Sri Lanka who were campaigning against torture. However, with the help of

inspirational models like Kwangju Uprising, this moment was transformed into a

opportunity to take a further step. It was a moment to respect Gerald for what he stoodfor and draw inspiration from his life. Many activities intensified to covert this moment

into one of transformation and progression. This is exactly what happened in Kwangju.

On the 26 of May 1980, when a group students decided to sacrifice their life in the

name of democracy. It is very important what happened after that. The family

members of the victims supported by activists and civic leaders continued to

commemorate the Kwangju uprising year after year, risking arrests and harassment by

the military government. This continued and persistent commemorations were

instrumental to keep the spirit of Kwangju Uprising alive. Persistent actions by the

family members and activists later prompted the successful prosecution of two former

presidents of south Korea Chun Doo-hwan and Roh Tae-woo - who were sent to jail;

one to life and the other for 21 years. Thus the Kwangju Uprising changed Korea for

good by ending military rule permanently and eventually creating an environment for

real democracy in south Korea.

Regional human rights groups like the AHRC used modern communications systems

effectively to spread information relating to Gerald to a large international audience. As

a result, thousands of people all around the world wrote letters and faxes to the Sri

Lankan government and related institutions. Many also wrote letters to relevant

authorities in the UN. The use of communication technology created a large

international lobby.

Cultural and religious differences and conflicts

When you look into various cultural and religions differences and conflicts throughout

Asia, one common perspective appears one group, often the dominant religious,

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ethnic, linguistic or cultural group has denied rights of another group. Often minority

groups become the victims. Prolonged practise of discrimination, and rights violation

of these minority groups has prompted some members of these groups to initiate armsstruggles to achieve their rights or in some cases self-determination in the land they live.

Once again, the institutions that should guarantee rule of law and justice have often

failed in such environments. If the courts guaranteed the rights of minorities,

differences between groups could be narrowed. I do not say that this is the only way to

achieve common ground when there are differences. However, I do wish to stress that

independent and impartial justice systems could make a big contribution to ease

differences through delivering justice. Often, groups tend to take up arms and resort to

conflicts when all other avenues available, including the avenues to seek justice, areclosed to them.

Conclusion

Human rights are universal. However, to achieve this, human rights must be realised at

a local level, which is not always done. Obstacles to achieve human rights are

predominantly local. As discussed in this paper, the obstacles span from outdated

methods used by the NGOs, narrow perceptions of human rights work, outdated

communications mindset to educational models. But the most fundamental obstacle

seems to be the absence of a functioning justice system to prevent human rights

violations as well as to provide effective remedies when violations occur. When justice

systems are corrupt and politicised, they lose their independence and professional

character, resulting in inefficient services. Thus such systems become nominal without

much effect. Such systems also create conducive environments for human rights

violations. Often the rich or the affluent become beneficiaries of such systems. The

poor and the non-affluent become victims. Thus absence of a proper justice system

which does not uphold rule of law can be the biggest obstacle to achieving human

rights. Not only human rights NGOs, but also other institutions such as national human

rights institutions, international NGOs and UN agencies, must take a greater

responsibility to make a concerted effort to build independent and corrupt-free justice

systems, which abide by international human rights standards. Such systems will not

only prevent human rights violations, but also sustain human rights.

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About the author: Sanjeewa Liyanage, a Sri Lankan, was involved in the student

movement from about 1984. In 1988 he became the Asian coordinator of InternationalYoung Christian Students (IYCS) an international Catholic student body and worked in

about 14 Asian countries. In 1995 he joined the Asian Human Rights Commission

(AHRC) and helped establish its electronic communications network involving

thousands in Asia and other countries. He has assisted human rights training programs

for different groups including students, activists, lawyers and judges from the Asia-

Pacific region. He first visited Kwangju in May 1996 and played a key role in the

process leading to the creation and declaration of Asian Human Rights Charter A

peoples Charter including drafting of the final document. He represented Asian LegalResource Centre (ALRC), the sister organization of the AHRC, at UN forums including

Commission on Human Rights in 1999, 2000, 2001 and 2002 and preparatory meetings

leading to World Conference Against Racism. Mr. Liyanage is presently the East Asian

focal point for the NGO Coalition for International Criminal Court (CICC) in New York

and a member of the Assembly of Delegates of the World Organization Against Torture

(OMCT) in Geneva. He is a member of the editorial board of Human Rights

SOLIDARITY and article 2, published by the AHRC and ALRC. He has undergone

human rights training at the Institute of Social Studies (ISS) in The Hague and Danish

Centre for Human Rights (DCHR) in Copenhagen. He obtained his Masters of Law

(LLM) from the University of Hong Kong in 2004. Sanjeewa Liyanage is presently the

Programme Coordinator Communications of the AHRC and ALRC.

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SanjeevaObstacles to Achieve Human Rights in Asia