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RELIGIOUS PERSPECTIVES ON HUMAN RIGHTS

E-Newsletter
Vol.2 No.6
February 8, 2000


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Religious Perspectives on Human Rights is now available online at: http://www.rghr.net

Religious Perspectives on Human Rights is a weekly e-newsletter issued by Buddhist, Muslim, Catholic and Christian Groups on Human Rights, initiated by the Asian Human Rights Commission.

Dear Friends,

The problems in Cambodia in relation to police reform and administration of justice are tremendous. The press release issued in this e-newsletter deals with the problem by making a very clear statement on where urgent action is needed. The issue of torture has had a long history and despite the various UN Conventions ratified by many nations, the barbaric practice of torture continues in almost all sectors in the administration of justice. It is in this context that we share with the rationale behind the proposed seminar to be held in Bangalore from 20-25th February.

Reconciliation requires the admission of the crimes committed and any tendency to ignore or sidetrack such crimes under the pretext that the future can be built without reference to the past is, to say the least is deceptive. Non-admission of the crimes can only lead to further crimes as has been amply demonstrated in the case of Sri Lanka. The erection of the monument in Raddoluwa, Sri Lanka in memory of the disappeared, is an attempt to bring home this simple truths that each and every life counts and that the dead have a right for a proper burial. The editor

Please take note of our new e-mail address: rghr@ahrchk.org

1) PRESS RELEASE on the Police Reforms and Administration of Justice
2) The Rational behind the Proposed Conference on Torture for the Religious Groups
3) THE MONUMENT FOR THE DISAPPEARED - Basil Fernando reporting from Sri Lanka

1) PRESS RELEASE Abolition of office of Investigating Judge, Cambodia

[The participants included five Senior Officers from the Ministry of Interior, four Cambodian Lawyers belonging to Legal Aid NGOs and four foreign consultants from abroad who met at Siem Riep from 22nd to 24th January 2000 to discuss some pressing problems relating to police reform and administration of justice in Cambodia. This workshop was organized by the Cambodian Defenders Project, the Asian Human Rights Commission and the Danish Center for Human Rights. After careful consideration and much discussion, the participants unanimously agreed on the following recommendations:]

The participants of this workshop are unanimously of the view that the office and function of the Investigating Judge needs to be abolished completely as soon as possible. This office of the Investigating Judge remains an impediment and creates many obstacles to the administration of justice in Cambodia. The further continuance of this office will result only in continuing dysfunction and miscarriages of justice. Further, we are firmly of the view that the continuation of this office does not make any positive contribution to the administration of justice and maintenance of the rule of law. For all practical purposes, it hinders the police investigation into crimes and severely reduces the effectiveness of the Prosecutor's function.

Other than the practical problems, this office does not also have any constitutional mandate and therefore lacks legitimacy. Article 131 of the Constitution recognizes the office of Prosecutor. Nowhere in the Constitution is there any mention of the office of the Investigating Judge. Article 158 of the Constitution (as amended) specifically abrogates those institutions which are contrary to the spirit of the Constitution. The office of Investigating Judge, having become an obstacle to the achieving the ends of justice, has thereby become contrary to the spirit of the Constitution, which aims among other things to restore Cambodia to an island of peace based on a multiparty, liberal and democratic regime guaranteeing human rights and the respect of law.

For the purpose of abolishing the office of Investigating Judge, articles 68 to 95 (Chapter 4) of the State of Cambodia Law on Criminal Procedure, dated 29 January 1993, need to be repealed. We strongly suggest the removal of the articles mentioned, and the amendment of any other article which directly or indirectly makes any reference to the office of the Investigating Judge.

Those persons who at present function wholly or partially as Investigating Judges would, from the date of abolition of that office, thereafter function entirely as presiding or trial judges. This transition will cause no practical difficulties, as the roles of trial judge and investigating judge have been interchangeable for some time.

Deletion of Chapter 4 of the said law will not create any insurmountable difficulties in the investigation and prosecution of crimes because, pursuant to chapter 3 of the said law, the Public Prosecutor Department has the backing of the Constitution. On the contrary, the abolition of the office of the Investigating Judge will help to improve the relationship between the police and prosecutor and add a great deal of speed and efficiency to the process of bringing criminals to justice.

48-hour Rule

The participants observed that there seems to be a great deal of confusion regarding the operation of the 48-hour rule for producing the accused before the court. Some participants seemed to have interpreted this provision to mean that all criminal investigation into a crime must be completed within 48 hours. This is neither intended nor desirable (or possible). The 48-hour rule only starts to run from the moment of arrest. An accused should be kept in police custody for the shortest time necessary for the police to complete their questioning (but in no case longer than 48 hours, not counting transportation time) and thereafter should be handed over to judicial custody. Keeping an accused for over 48 hours in police custody is illegal.

Despite the limitations on police detention of the accused, there are many aspects of a criminal investigation that the police investigator has to carry out before a trial, which is the final initiative before the court of law. If a criminal investigation is not conducted properly, it will have serious consequences for both the complainant as well as the accused. In order for the criminal investigator and the prosecutor to make a fair assessment of the need for proceeding against the accused by way of the trial all the material facts relating to the case need to be investigated and studied. Thus the investigation should continue as long as is necessary independent of a decision on detention. However, a suspect should never be arrested unless the police or prosecutor has reasonable grounds to suspect that s/he has been involved in the commission of an offense. Clearing of this misunderstanding relating to the 48-hour rule will benefit both the accused as well as those who are involved in the investigation of crimes.

The full statements of the participants may be obtained from the Cambodian Defenders Project (email: cdplas@worldmail.com.kh) and the Asian Human Rights Commission (ahrc@ahrchk.org)

2) The Rational behind the Proposed Conference on Torture for the Religious Groups

During the last two decades there has been a great interest on the issue of 'Torture, Inhuman and Degrading Punishment' due mostly to the efforts of the United Nations.  The Convention against Torture  Inhuman and Degrading Punishment passed in the UN, has already been adopted by many countries.  In some countries the Courts have also taken cognizance of the new law and have at times tried to impose the provisions of the new convention when actual cases were heard.

By and large there seems to be a mentality in all sectors in the administration of justice to take rather a tolerant attitude regarding torture, inhuman and degrading punishment meted out by the law-enforcing authorities on citizens, particularly the poor. A tacit acceptance of torture as a means of criminal investigations remains still rather prominent. This is not withstanding the fact that many countries are signatories to the International Convention on Civil and Political Rights (ICCPR) and to the Convention Against Torture and Inhumane and Degrading Punishment. Some countries have even promulgated their own laws in keeping with the said Convention. However, these legal provisions remain in the book. And in actual practice completely different situations exist. The attention of the human rights community in each country, the region and the international community must specially be directed towards this issue.

The type of torture that is prevalent in several countries is extremely gruesome and inhumane. The use of electric gadgets and special devices for torture, brutal forms of assault and special forms of torture for women are among the worst instances that are so frequently reported to courts in these countries. Still, despite various declarations, the attitudes adapted by the judiciary and the human rights commissions do not show a great resolve to bring such practices to an end.

Surprisingly, the community leaders including the Religious have taken very little interest in this discussion.  There is hardly any attempt  on the part of the religious groups to promote the understanding of the convention among their religious groups and also to take part in the social discourse to make the application of the convention widespread. 

In this context the question that needs to be asked concerns the 'reluctance on the part of the Churches, the religious bodies that spouse non-violence to address this issue?' It is around this precise question that the regional seminar on Torture will focus its attention when it commences this month in Bangalore.  

3) Sri Lanka: THE MONUMENT FOR THE DISAPPEARED

The monument dedicated to the memory of the disappeared persons was opened on the 4th Feburuary 2000 - the 52nd day of Independence in Sri Lanka. The beautiful monument designed by a young and a well known artist in Sri Lanka, shows an empty space in the form of a human body symbolizing a disappeared person. At the large back wall, pictures of several disappeared persons are fixed by way of tiles. The empty space in the wall will eventually be covered with the photos of the other disappeared persons.

About a hundred persons from the families of disappeared and over four hundred others participated at the opening ceremony. A Buddhist monk, a Hindu Swamy, a Catholic priest and a Muslim Mulla performed the religious rites and preached at the ceremony.

The most touching part of the ceremony was the placing of flowers at the monument by the loved ones of the disappeared persons. It was a moment of tears. A newspaper which carried the photos of this event, described it as a very touching moment. Many family members of the disappeared persons were heard as saying, at least now we have place to lay flowers to remember our loved one. Many persons from peoples organizations addressed the gathering.

CAUSING DISAPPERANCES IS A CRIME AGAINST HUMANITY and THIS SHOLD NEVER BE ALLOWED TO HAPPEN AGAIN was the main theme of the ceremony.

Large banners carried the following poem

This wreath
with no name attached
is for you
who have no grave.

As the place of earth
which embraced you
could not be found,
this wreath was placed by the wayside.

Forgive me.

Many persons had worked deep into the night for several days to complete the monument in time. Kalapaye API- the People of the Free Trade Zone, were the local organizers responsible for getting the monument constructed. Many local newspapers carried reports on the event while several TV stations carried short news items during their regular news- casts.

This event marks a further stage in the Campaign to seek justice on behalf of the disappeared persons, numbering over 30,000 according to official estimates and over 60,000 according to NGO sources. The Asian Human Rights Commissions opened a web-site in December 1998 entitled Cyber Space Grave Yard for Disappeared Persons and raised the matter at the UN Commission on Human Rights at its session in 1999. It will be raised again this year. The erection of this monument marks A Proud Moment for AHRC. Many requests have already been received for constructing monuments for the disappeared persons from several parts of the country to drive home the simple truth even the dead have their rights which have to be respected.