The Asian Human Rights Consultation on the Asian Charter on
Rule of Law
Proceedings of 16th February 2006
(1) During the morning discussion it was clearly emphasized that the local
knowledge is the basis for effective action for protection and promotion of human
rights. Prof. Yash Ghai agreed with the view expressed by Mr. Basil Fernando on
this issue. Prof. Ghai went on to explain his experiences as the chair for the
Constitutional Committee in Kenya. He explained how his opinion about his
country and its systems completely changed as he began to meet the people
from the villages and in the countryside. This challenge the city based educated
elite’s perceptions of society as against the people who live in completely
different circumstances and who had completely different views of what is
happening in society.
(2) A good constitution must be based on this type of broad based consultations
where the ordinary folk can find meaning in the constitution. Once they are
involved in this manner the very process of constitutional making brings about a
change in the society. And that change lasts even when there are difficulties in
the actual passing of the constitution and all sought of vicissitudes that comes up
in the process of constitution making.
(3) The limitted view of rule of law as expressed, for example by Dicey, is no
longer sufficient. The rule of law can be built only with extreme distrust about
everyone who holds power and the people in less developed countries have that
dislike of power in an intense way. The question is how to build various types of
mechanisms that can intervene to obstruct the abuse of power. The traditional
terminology like the separation of powers and checks and balances do not
suffice. Various forms of accountability have to be built. In the context of each
country imagination must be used as how to develop such mechanisms. There
are no fixed answers. Taking the local situations based on the knowledge of such
situations imaginations must be used to devise this. Discussions of this nature
are vital in constitutional development.
(4) One of the major problems in dealing with the constitution is the issue of
judiciary. When the judiciary itself has become corrupt what can be done?
According to the traditional notion judiciary is treated as a sacred cow. However,
if we follow this approach we cannot address the basic problems that we face in
our countries. It is not easy to find solutions for this problem but new ways must
be found to deal with the issue. In Kenya, this issue came up in such way even to
consider the sacking of the entire judiciary as there was overwhelming evidence
of massive corruption. While various methods such as encouragement for person
to resign with whatever benefits is one way and at the end the issue of
disciplinary action also arises. The problem however is to bring the society to a
point where it will support actively the moves to radically change the judiciary.
(5) The education on constitutionalism and on human rights has also to change.
It is no point try to give undue priority to western textbooks on these matters. The
problems faced in those countries and the problems faced in less developed
countries are so different. We must address these problems and encourage the
students to explore these problems. Mere teaching of UN Conventions, UN
mechanisms and the like are insufficient.
(6) Prof. Gahi also agreed with the view expressed by Mr. Fernando that undue
importance given to human rights commissions but in fact these commissions
cannot play much of a role unless the vital organs for protection of rights is
functioning the way they ought to. Mr. Fernando summed up his view on human
rights commissions by stating “it is not possible for the toe to the function of the
(7) Several questions were raised, particularly on the problems of the judiciary of
various countries and these were discussed. However, Prof. Ghai stated that
problems are not only on judiciary but in all areas of democratic mechanisms, for
example the electoral process and other mechanisms which were all need to be
thought out in a fresh way and not merely to go by the limitted traditional
approach in the way these matters are currently been discussed.
(8) In the afternoon the experiences from Cambodia and Burma was discussed.
Dr. Lao Mong Hay presented the situation of rudimentary institutions in
Cambodia which subverts justice and makes it possible for the Prime Minister to
manipulate the entire system. Mr. Nick Cheesman discussed the issue of Burma
with illustrations from many cases where even the most rudimentary form of
results cannot be expected from the Burmese courts.
(9) On the basis of these two presentations several questions were posed during
the concluding session. And these questions were discussed by participants from
all countries. It clearly emerged that no adequate complaint making mechanism
are available in most Asian countries. It also showed that lack of transformation
of violations of rights and crimes prevents the beginning of investigations into
such violations as a part of the criminal law. Besides the investigation
mechanism themselves have many defects.
(10) Thus it can be said that effective remedy for human rights is not available in
any countries in the region. While the situation of Cambodia and Burma may be
very extreme cases of complete denial of rights the situation of other countries
are not far different.