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The Asian Human Rights Charter on The Rule of Law

The Asian Human Rights Charter on The Rule of Law: Consultation on Executive Control of the Judiciary and Judicial Corruption Hong Kong 13-19 May, 2007

REPORT

Edited by Shalini

The Asian Human Rights Commission Hong Kong

The Asian Human Rights Charter on The Rule of Law

The Asian Human Rights Charter on The Rule of Law

C O N T E N T

Introduction Asia: Rule of Law and Elimination of Corruption The meeting: Introductory Presentation by Mr. Basil Fernando Honk Kong as a model for clean politics in Asia Can we replicate the Hong Kong model in other Asian countries? The Right to Information (RTI) Act: An Indian Success story The Karuna Trust- Health as a fundamental human right Question and Answer session with Mr. John Clancey, Chairman of AHRC Money, Money, Money! Indonesia: From Bad to worse to......... Sri Lanka: A sorry story Conclusions

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The Asian Human Rights Charter on The Rule of Law

The Asian Human Rights Charter on The Rule of Law

REPORT OF THE CONSULTATION ON THE RULE OF LAW

Introduction
The Hong Kong-based Asian Human Rights Commission (AHRC) held its Second Annual Consultation on Executive Control of the Judiciary and Judicial Corruption in Asia from 14th to18th May 2007. More than twenty guest-speakers from ten Asian countries, from a cross-section of professional backgrounds namely, court judges, doctors and human rights activists were invited to attend the consultation. Based on an initial proposal in October 2005 to develop an Asian Charter on the Rule of Law, we at the AHRC have ever since launched a series of consultations aimed at fostering an intellectual environment in which Asian human rights defenders can discuss, debate and develop the core concepts of this charter. This proposal came in the wake of the 1998 Declaration of the Asian Human Rights Charter-A Peoples Charter in South Korea. Despite the strengths of its argument for radical reform, the South Korean Charter failed to connect the issue of human rights to the rule of law, or the lack of it. During the course of our work and through our extensive collaboration with human rights organizations both, within the Asian region and abroad, the AHRC has come to realize the extent to which the rule of law has collapsed in many, if not most countries in Asia; and how this in turn is largely responsible for the dire state in which human rights finds itself - a vicious cycle of sorts. As citizens of Asia, regardless of our cultural, religious, linguistic, socio-economic and professional differences, we are victims of this very same cycle which breeds anarchy in the region. The AHRC has long been dedicated to empowering the peoples voice, which has been drowned by its own power-hungry State and elite class interested in maintaining the current status-quo as long as it serves their best interests. By creating an accessible space for open dialogue and debate, we hope to understand and pinpoint where, why and how we as a people, society, nation and

The Asian Human Rights Charter on The Rule of Law

region went wrong, and what we must now to do in order to rectify it. In short, by diagnosing the problem, we hope to develop a sound solution. The guest-speakers at the recently concluded consultation were:
COUNTRY BANGLADESH CAMBODIA NAME Dr. Nazrul Islam Mr. Bun Rithy PROFESSION Professor of Law: University of Dhaka. Human Rights Lawyer/Provincial Officer: Cambodian Defenders Project. Lawyer/Court Monitor: Centre for Social Development. Secretary General: Cambodian Bar Association. Professor of Law: Wuhan University School of Law.

CAMBODIA CAMBODIA CHINA HONG KONG

Mr. Ly Ping Mr. Ly Tay Seng Mr. ZHANG Wanhong

Mr. Raymond SO Wing Keung Principal Investigator: Independent Commission Against Corruption (ICAC). Mr. John Clancey Mr. Cheung Yiu Leung Mr. Basil Fernando (Moderator) Mr. Bijo Francis (Moderator) Mr. Aravind Kejriwal Solicitor/Human Rights Activist/ Chairperson of the AHRC. Barrister/Board of Directors of the AHRC. Lawyer/Executive Director of the AHRC. Lawyer/ Programme Officer of South Asia Desk: Asian Legal Resource Centre (ALRC). Human Rights Activist/ Mechanical Engineer: Recipient of the 2006 Ramon Magsaysay Award for Emergent Leadership. Doctor: Vivekananda Girijana Kalyana Kendra, Karnataka. Lawyer: High Court of Kerala Lawyer: Supreme Court of India.

HONG KONG HONG KONG HONG KONG/ SRI LANKA HONG KONG/ INDIA INDIA

INDIA INDIA INDIA

Dr. Sudarshan Mr. Jijo Paul Mr. Salar M. Khan

The Asian Human Rights Charter on The Rule of Law

INDONESIA NEPAL PAKISTAN PHILIPPINES SRI LANKA SRI LANKA THAILAND THAILAND THAILAND

Mr. Danang Widyatmoko Ms. Mandira Sharma Justice Rasheed Razvi Mr. Hernando Pagluanan Mr. Ratnavele Ms. Sharmaine Gunaratne Mr. Somnuek Tumsupat Mr. Adilan Ali-Ishak Ms. Noi

Indonesian Corruption Watch. Executive Director: Advocacy Forum, Kathmandu, Nepal. Judge: High Court of Sindh Province. Lawyer. Attorney at Law: Supreme Court of Sri Lanka. Attorney at Law: Supreme Court of Sri Lanka. Lawyer. Lawyer. Human Rights Activist/Translator.

Encouraged to share their personal and professional experiences of the sorry state of the rule of law and of human rights scenario in their own country, the consultation also allowed participants to learn about the similar struggles of their Asian counterparts. By creating a common ground of central issues and problems which we as a region are facing, we hope to move forward in developing a course of regional action. The Consultation also served the crucial purpose of reinforcing the fact that in the darkest times of a seemingly lonely struggle, we are not alone. During the course of these pan-Asian consultations, we collected and compiled key findings, experiences, thought-processes and proposals into a final formal report which we plan to submit to Asian Governments, the UN and other international agencies, and last but not least, the public. The following report contains a basic break-up of this years consultation; the key issues discussed (namely corruption in the Judiciary), the experiences and frustrations shared and the unanimously agreed upon resolutions with which to take our campaign forward.

Shalini September 10, 2007

The Asian Human Rights Charter on The Rule of Law

Asia: Rule of Law and Elimination of Corruption1

A group of 23 legal professionals and human rights activists from Sri Lanka, Indonesia, the Philippines, Pakistan, India, Nepal, Cambodia, Bangladesh, China and Thailand gathered in Hong Kong from May 14 to 18, 2007 for the second consultation on the Asian Charter on the Rule of Law, on the topic, Executive Control & Corruption in the Judiciary. The first gathering was held in February 2006 under the theme, Towards Elimination of Corruption and Executive Control of the Judiciary. The participants at the second seminar endorsed the statement of the first event and further considered several important matters on eliminating of corruption. The participants unanimously agreed that in their respective countries corruption still remains a way of life. Corruption is not just a marginal problem but a very central one affecting the whole social fabric of each country. All aspects of life are permeated with corruption. Attempts by citizens to get services such as medical care, access to public utilities and educational institutions, and even hearings of cases in courts all are vitiated by the need to pay bribes at every point. Many services are delayed or withdrawn till bribes are paid. Bribery has its own language and ways of communication. Those who do not get co-opted to this form of communication have to suffer the consequences. Elimination of corruption thus is a central issue for everyone. Corruption gives rise to negligence. It weakens systems of supervision required to maintain essential services for health, transport, education and welfare. The rules that need to exist for proper management are sacrificed when energies are concentrated on making a fast profit rather than observing the norms and standards required for public life. Negligence also spreads to professional bodies such as those of doctors, lawyers, accountants and auditors. When negligence sweeps into all such areas, the capacity to monitor various aspects of society gets paralyzed. Such paralysis is witnessed everywhere in Asia.
1 This is the statement prepared by the participants of the meeting, which is published and released by the Asian Human Rights Commission on September 10, 2007

The Asian Human Rights Charter on The Rule of Law

Corruption also encourages the use of gangsters and other criminal elements to resolve disputes, as they are seen as speedier and more efficient in ending disputes over rent, hire purchase issues, loan repayments and the like through the power of the gun and other methods. This in turn leads to more serious crimes, which in turn foster more criminal intimidation and corruption. Often elements of law enforcement agencies themselves combine with syndicated criminals to provide services. The poor are affected by corruption much more than all other parts of society. Thus all attempts to eliminate poverty and assert human dignity in Asian countries have to be combined with strong and decisive moves to eliminate corruption. Programmes to eliminate poverty not accompanied by efforts to eliminate corruption do not benefit the poor. Instead, they become the means by which the poverty is enhanced and the freedoms of people further restricted. There seems to be a growing tendency in the judiciary to decide matters in favour of the corporate sector to the detriment of the poor. Various development practitioners have also influenced judicial thinking with the idea that the rights of the poor have to be sacrificed in favour of corporate ventures. The earlier judicial development of public interest litigation, which emphasizes the need for the judiciary to be the guardian of human rights, has in recent times often been sacrificed. Instead, the idea of being guardians for the corporate sector has become part of the new nationalism adopted among sections of the judiciary. This contributes to serious judicial corruption. Emphasis needs to be placed on the human rights consequences of corporate ventures and the rights of the poor should not be sacrificed on the pretext of development. Faced with the absence of justice in the courts and other official channels, people often feel that to take any form of official action will be futile. While people complain about corruption in private conversations and intimate circles, they often do not care to pursue their complaints through official channels. This is because they have realised that these channels are so manipulated that they cannot obtain the desired results. What is often seen as the absence of will to fight corruption is in fact the absence of leadership to give expression to the deepest aspirations of people to live in a much freer social environment. The elites in Asian countries have proved themselves incapable and unwilling to provide the necessary direction to bring policies and practices to effect that would eliminate corruption. Civil society movements should create more awareness and pressure from among the people so that wishes to eliminate corruption are better expressed and cannot be ignored by policymakers.

The Asian Human Rights Charter on The Rule of Law

The administration of justice in the Asian countries has suffered enormous setbacks due to widespread corruption. The systems of policing, prosecution and the judiciary have all been cowed by the enormous pressure it exerts, leading to widespread loss of faith in them. Instead of solving problems confronting people, these institutions are themselves submerged in corruption and thus complicate the problems, adding more burdens to people seeking redress. Some of the obstacles to eliminating corruption in Asia, and possible solutions, are described below.

Ineffective commissions to eliminate corruption


Often governments acting for the benefit of more corrupt groups in society create commissions that are purported to be to eliminate corruption. However, these are often no more than public relations exercises. They do not have the investigative capacity necessary for proper criminal inquiries or adequate mandates, and also are under-resourced. However, creating inefficient measures to end corruption is also part of the strategy to maintain the status quo.

Corrupt policing
At the core of corruption in most societies is the policing system itself. The making of complaints to the police often must be accompanied with payment of bribes. From the very inception of a complaint the police get new opportunities for money. Bribes are collected not only from complainants but also from alleged suspects and anyone else who is directly or indirectly affected. Thus complaints into crimes such as murder and rape may spread into extremely complex webs of relationships between the police and other sections of society. Lawyers and judges can be found in the webs. Instead of a complaint opening the way to justice, what in fact happens is that it opens extremely sophisticated and manipulative processes that deny a place for reason, whereas money, muscle power, cunning and shrewdness ultimately prevail.

Corrupt prosecutors
Prosecutors are also corrupt. Where investigations into crimes relate to powerful persons or state officers, the prosecutors branch mayif able to do sointerfere with the investigation process itself and provide various excuses not to proceed with inquiries. While in a good system of criminal justice the investigators and prosecutors should cooperate, in Asia cooperation is often limited to efforts to defeat justice because of undue influences. The supervision of more senior officers often fails and there are various ways by which illegal practices are devised or allowed to go on.

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Corrupt judges
In some parts of Asia the judiciary has deteriorated to a point that it has become a law unto itself and flouts all rules of legal and ethical conduct to which it should be bound. There are many allegations of corruption and abuse of power at the highest levels. Internal processes to control corruption exist, in practice many people doubt that they are functioning at all. The lack of ethical standards in the superior courts makes them unable to supervise lower branches. Even where judges of greater integrity still exist, they often do not exercise attempt to ensure that the subordinate judiciary works within the framework of law and ethics, and avoids corruption. Even worse, there have been glaring instances when more honest, capable and intelligent judicial officers with high integrity have been punished because they have refused to compromise with corruption. Thus the judiciary is not playing the role that it should to eliminate corruption and often instead plays a negative role, encouraging and buttressing it. The absence of proper inquiries by the judiciary into allegations of corruption within the system has given rise to expressions such as judicial mafia, where judges are seen to be protecting each others illegal activities. It is increasingly common to see members of the judiciary in parts of Asia ganging together to support a particular political party or defend each other against allegations of abuse of power and corruption. The public perception of some judicial officers as acting deliberately to take advantage of their authority and prevent effective investigations into corruption has extremely far-reaching consequences, which alienate people from defending the independence of the judiciary itself. The corresponding loss of faith in the judiciary contributes to a strengthening of executive power, since as the public loses confidence in the judiciary it is less likely to resort to it to seek redress against the arbitrary actions of the executive.

Delays in justice, close companions of corruption


Justice systems in Asia are being paralyzed by the failure of governments to modernize their machinery. Often all that remains are obsolete institutions that maintain procedures and working habits which are ill suited to the modern age. Delays in justice are among the most discouraging factors for people who have grievances and want redress. It often also appears that the failure to modernize justice systems is deliberate, as thereby certain powerful groups may benefit. Justice institutions are kept obsolete by not allocating them adequate resources. However, this is not a saving of national resources. The cost of an inefficient justice system is very heavy. It includes the cost of increased crime, of all sorts, and social instability. Delays in justice are close companions of corruption. All well-meaning measures taken to achieve justice or to eliminate corruption get trapped delays. Shrewd

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manipulators can rely on delays to defeat attempts at reform. Unscrupulous politicians may propose legislation that appears to be progressive; knowing that it will be defeated by delays in adjudication. Thus rulers and their governments may readily display enthusiasm to address corruption, quite assured that there is no possibility of success while the justice system remains as it is. Seemingly insurmountable obstacles caused by delays can also be used to argue against any meaningful reforms at all. Instead, leaders may seek authoritarian powers on the pretext that they are needed to deal with all sorts of heavy corruption. They may claim that these excessive powers are the only way to deal with problems of extraordinary scale. In fact, such authoritarian measures enhance corruption and make the task of eliminating it a matter of pure political authority. Many critics of corruption mistakenly end up by supporting such regimes, treating it as a matter of political realism that delays in justice are insurmountable and therefore the judiciary should be bypassed. No effective strategy to deal with corruption is possible where beginning with the premise that delays in justice are insurmountable. All effective policies regarding justice, including eliminating corruption, must begin with comprehensive strategies to deal with the problems which are the root causes of delays in justice. There is no shortcut to avoid this problem and to deal with corruption in any other way. Delays in the justice discourage complainants and may cause them not to come forward. If citizens feel that complaining against corruption is likely to bring more problems than benefits, they are unlikely to be enthusiastic and energetic about its elimination. Without a firm belief that a system of justice is efficient, fair and effective, people feel alienated from it. They may resign themselves to suffer under the existing system rather than try to fight, expecting that their efforts will end in failure. Thus, among the close companions of corruption are delays in justice.

Alternative dispute resolution


One of the most alarming developments in recent times is the view taken by some within the legal community that alternative dispute resolution techniques should be adopted within the criminal justice administration itself. Some legal and academic professionals have even advocated the abandonment of basic principles in modern criminal justice administration, including the presumption of innocence, the right to silence of the accused and the burden of proof beyond reasonable doubt. Fair trial rests upon these notions and threats to displace them amount to calls for a return to practices which prevailed before the development of modern jurisprudence.

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The Malimath Committee in India proposed such changes in its official report to the government. Enormous protests within India and outside led to it being shelved. However, the proposals are now being progressively introduced through separate pieces of legislation. Strong advocacy campaigns led by well known persons are trying to make alternative dispute resolution on criminal justice issues seem palatable and acceptable. In some other countries, judges themselves have taken the lead in introducing alternative dispute resolution in courts, although no legislative provisions authorize them to do so. Proponents of alternative dispute resolution point to the delays in justice described above as justification for new methods. The problem in their thinking is, as already mentioned, the idea that delays in adjudication are an insurmountable problem and therefore it is better to depart from the judicial process altogether. What alternative dispute resolution means in practice is displacement of the concept of trial as per the rule of law. Even if alternative dispute resolution takes place within the confines of a court, it means abandoning the buildings practices and instead bargaining over the delivering of judgements without adhering to legal norms. If court premises and judges are thus transformed, their functions in all respects become substantively different. They are reduced to arbitration, not criminal justice. Thus, alternative dispute resolution cannot be introduced into the criminal justice system without destroying the entire system itself. Though advocates of alternative dispute resolution in criminal justice do not dare to talk openly of doing away with the basic norms and standards of fair trial, their project cannot be achieved fully without this. Alternative dispute resolution in criminal law also means opening the criminal justice system to the greatest possible corruption. It opens the way for culprits to escape much easier and also makes it more possible to implicate innocent persons who may not have legal avenues to defend themselves. People with money, muscle power and social linkages may find it simpler to exert influence through alternative dispute resolution. The police may also find in it a fecund source of enrichment that will be less subject to scrutiny than existing sources. Alternative dispute resolution in criminal matters also undoes the whole process of appeal. As ultimate results are based not on reasoning upon facts and law, there is nothing left for an appeals court to judge. This too will encourage greater corruption.

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Some basic characteristics of an effective agency to eliminate corruption


To devise and establish an agency able to eliminate corruption requires serious policy decisions on how to overcome weaknesses of law and its implementation to wipe out corruption. When a country makes a policy shift from entrenched corruption to no corruption, one of the main institutional problems is its policing system. Therefore effective anti-corruption measures must be built outside the existing policing system. This implies that its legal machinery also not be under control of the police. It must be completely independent from policing and able to maintain strict confidentiality, as it will also be called upon to investigate police officers themselves, including higher-ranking officers. If information is leaked about such investigations, these officers will take precautions to erase evidence, intimidate witnesses and engage in other activities to subvert investigations. They may also take various measures to hide wealth that they may have obtained, except through their legitimate earnings. They may even leave the country. Thus, it is imperative that the anti-corruption agency, its staff and laws be fully independent from the countrys normal policing apparatus. The recruitment of staff and training for anti-corruption agencies must ensure that they have the possibility of acting independently in all their professional activities. This also implies that the officers engaged on behalf of the agency must be able to rely on it for their protection and that all possibilities of betrayal from within should be avoided. Persons with requisite modern criminal investigative skills, such as in forensic science, should be recruited, or promising candidates without such skills rigorously trained. The competence of all staff should be constantly improved through training. Internal regulations regarding acceptance of gifts or anything other than legally-entitled remuneration should be clearly established in order to avoid any possibilities of enrichment due to engagement with the anti-corruption agency. All assets of employees at all ranks should be exposed to scrutiny and any unexplained enrichment should be presumed to have been earned illegally. Declarations of indebtedness should be made at short intervals, such as quarterly, and should be scrutinized by superior officers. The successful establishment of an effective corruption control agency depends on adequate investment. The failure to provide adequate resources for the running of an institution which is expected to eliminate corruption amounts to deception. Thus, budgetary allocations to the agency should be under constant public scrutiny. It is futile to criticize an inadequately-resourced institution for its failure to carry out its functions.

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Equipped with laws, personnel and money, an effective corruption control agency should be organised into the following components: An operational component to deal with investigations; A training component for staff; A policy research component to study and make recommendations to eliminate corruption; A legal component to advise the agency on all issues relating to law arising from its work and educate its staff; An advocacy component to inform the public constantly on all matters relating to the elimination of corruption; and, A research and development component, which constantly updates the quality of work and materials. All these components should be independent but coordinated. There should be no overlap of functions within the institution itself. The success of an effective anti-corruption agency also depends very much on the integrity of the justice department or ministry and prosecution branch of government. It must be able to trust that in all circumstances the prosecution will act with professional integrity and competence. In many countries this trust is absent. Some defects also arise from the absence of sufficient staff in the prosecuting branch or the absence of competence of its officers, sometimes leading to leakages of information when preparing indictments and prosecuting. Thus defective prosecution agencies may defeat all the efforts made by an anti-corruption unit and even endanger the lives of its staff.

Models
The participants spent almost two days interacting with senior officers of the Independent Commission Against Corruption (ICAC) in Hong Kong, getting clarifications on how it has worked to turn a place where corruption was a way of life a few decades back into a place where the major obstacles have been overcome and people can go about their ordinary lives without being burdened with its weight. They also examined the Right to Information Act of India. This act emerged from the work of organisations and dedicated persons in civil society who have consistently worked to see a sensible law brought in regarding the right to information, which can be used across India and adapted to other countries. Lokayukta, a form of ombudsman used in India, can also under certain circumstances contribute to the prevention of corruption. Lokayukta involves the services of retired judges to deal with certain issues against the executive.

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The need to meticulously document experiences with corruption


Documentation of experiences with corruption should come from direct and constant interviews with ordinary people, the recording of such interviews, transmission of oral records into writing and its dissemination to large audiences through the use of modern technology. Good documentation can be constantly analyzed for the purpose of understanding what enables corruption and also finding ways to fight against it. A whole new discourse needs to be created on the basis of factual information which is constantly gathered, maintained and shared with all those who are engaged in fighting against corruption.

The defense of those who fight against corruption


The participants also recognised that those who pursue complaints against corruption as well as those supporting such persons are often exposed to great dangers. One of the glaring weaknesses of the criminal justice systems in most Asian countries is the absence of credible witness protection programmes. As a result, complainants and victims are exposed to enormous risks at the hands of the perpetrators, including some law-enforcement officers. Identifying the costs and benefits of establishing a credible witness protection programme managed by competent persons and resourced properly is an important strategy to fight corruption.

Special concerns over judicial corruption


The participants felt that assigning judges who are already overloaded with work to engage in enquiries into corruption allegations against their colleagues is not effective. If some senior judges are appointed to enquire into allegations of corruption of other judges, such as lower-ranking judges, then those assigned this task should be left to do it alone for the period of time needed. It is also essential that all allegations of corruption against judges be dealt with promptly. Corrupt senior judges may sometimes intimidate lower-ranking ones by abusing the judicial process. If inquiries are not conducted quickly, their unscrupulous manipulations may seriously demoralize the entire judiciary. Once a judicial panel decides that there is a prima facie case of corruption against a judge the actual criminal investigation should be handed over to criminal investigators who have the skills and capacity to investigate. The lack of a proper criminal inquiry can be one reason for the lack of proof of allegations about judicial corruption. Without credible outside inquiries doubts will remain over the credibility of the judicial process. Other methods to address judicial corruption alone, such as simple transfers of judges, will not inspire public trust that allegations of corruption in the courts will be addressed properly, thus hampering prospects

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for complaints and perhaps leading to some of the alternative methods for dispute settlement mentioned above, including through syndicated criminal gangs.

The need for a new movement


The participants agreed to develop various methodologies for the purpose of better understanding, communicating and working to fight against corruption by addressing the issues mentioned above. They agreed to make themselves into an informal grouping with a view to taking these ideas to their respective countries and audiences, which henceforth will be called the Network for Monitoring Corruption.

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The meeting: Introductory presentation by Mr. Basil Fernando

Welcome to the AHRC. The basic idea of this consultation is to gather people from different countries in the Asian region, to share our experiences as human rights activists, and to discuss the problem of executive control of the judiciary and judicial corruption. As human rights activists, this is no doubt a sensitive issue, as our human rights movement(s) relies on the impartiality of the judiciary to unfasten the strangle-hold of executive power in our countries. All of us, even if we have a basic knowledge of the rule-of-law, understand that it is virtually impossible to achieve anything without a functioning and independent judiciary. Last year, we held a consultation on this very issue; you have our summary statement with you. Please let us start by introducing yourselves, not only your name and organization, but also your personal experiences and views on the matter. A Supreme Court Judge from Pakistan will join us shortly. The situation in Pakistan is very critical now. The Chief Justice of the Supreme Court was suspended, and arrested at the national airport. This led to huge street demonstrations; resulting in the deaths of some 30 people in clashes with the police. This event is very much related to our wider discussion. It starts with the President planning to extend his presidency, which requires the sanction of the Supreme Court; President Musharaff knew that the Chief Justice would never sanction his proposal. In his affidavit, the Chief Justice recalls how he was taken to a military base camp where he was asked to resign from his position. Refusing to do so, he was detained at the camp for up to 5 hours. The Army then filed false charges against the Chief Justice, and suspended him indefinitely from service. This entire series of events is wholly unconstitutional. But that the legal fraternity, (namely lawyers and judges) and wider

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civil society in Pakistan took to the streets in vocal protest is also a very encouraging sign, as it shows the existence of a strong will amongst the people for justice and for an independent judiciary. I am sure that we will see more of this in the days to come. Also, one of our Indian participants is a vocal human rights activist who has been ardently campaigning for the peoples right to information in India. The Indian government passed a Right to Information (RTI) Act last year, which requires government agencies- including the police- to disclose official information, documents, records and reports to the public, upon request. The right to information is critical in combating corruption. It also shows how civil society can achieve its goals if it organizes itself effectively and works hard for it. Corruption and the rule of law is a fundamental contradiction which we must deal with here and now. The entire framework of the law should enable the protection and fulfillment of basic human rights for its citizens. On the other hand, corruption has its own practices and procedures, which obstruct the rule-of-law. The fundamental principle of the rule-of-law is that society be organized, and be accountable to the law; corruption on the other hand, is not determined by law, but by favour. Corruption fundamentally disrupts the rule-of-law. Of course, some marginal elements of corruption exist even in countries with the strongest rule-oflaw. But we are talking about societies of executive control and judicial corruption, in which the judiciary and justice is difficult, if not near impossible to access. If citizens cannot hope for a credible and effective investigation into their grievance against the state, because of corruption, where do they go? How can they hope for redressal and justice? This is also an important area which we should look into, as it is the crux of the problem that we and our countries are facing today. If there is no proper system whereby a citizen can make a complaint against the state, a state body or a state officer, then their perpetrators can easily evade the consequences of their actions. If a society does not have the capacity to deal with its problems, then the rule-of-law is at stake. The basic premise of the rule-of-law, is that your actions carry consequences, and that the system also punishes those who break the law. The rule-of-law not only depends on effective prosecution, but also in public faith. The people must believe that acting within the limits of the law is to their advantage. What would happen if people were to think that its better to break the law than to conform to it?

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In some Asian countries, we are dealing with a gross increase in crime, particularly organized crime. Of course, crime is a common problem found in every society; the difference is that some societies have the capacity to deal with the problem, while yet other societies do not. For example, in some countries, abduction is a daily fear for many civilians. People might not only be abducted for political reasons, but also for ransom and for profit. At this present moment, a senior vice-chancellor of a university in Sri Lanka has been missing for the past 3 months. As far as we know, this was a contract kidnapping. Another question is that of lawyers. What are we as lawyers, working for? If you know that the ultimate outcome of a case will inevitably be negative, what is your next step as a lawyer? This is a problem that many lawyers in Asia are faced with on a daily basis? As a result, many competent lawyers either leave the country, retreat or retire. The inability of many lawyers to adequately perform their duties affects the legal profession as a whole. It is very sad to face such a situation in our countries. Criminal law is based on the right to representation; the belief in innocence until proven guilty. The inability of lawyers to perform their duties and to represent their client(s) to the best of their abilities, largely due to corruption, is a serious problem. Land or money disputes are in normal circumstances, settled in the courts. But when the curse of corruption begins to seep into a society and a system, it more often than not leads to grave crime. In many of our countries, it has reached a state where if a landlord wants to evict a tenant, he will just hire a thug to do the job. Such situations arise when people do not have access to the law. Public law is the area where citizens may challenge the directives and decisions made by the government. Today however, many people do not want to go to court because they know that nothing will come out of doing so. This is because the courts are heavily swayed towards the government, and will often go so far as discouraging lawyers from pursuing cases implicating government agencies/officers by threatening to revoke their license to practice, and even holding them in contempt of the court. Corruption and executive control is not only a case of bribery, but applies to the constitutional level. For example, if the constitution prohibits public litigation, it is against the interest of the people. For example in Thailand, the 1997 constitution was a progressive one; but last year, the Army suspended the constitution. The military coup leader even went so far as to argue that a constitution was not necessary to govern Thailand! And in neighbouring Cambodia, a citizen has no avenue to challenge his government and its decisions in open court.

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A 40 year-old woman who went to a local hospital in Sri Lanka to get her wound treated, ended up having her leg amputated! Another woman scheduled for an amputation had been admitted to the same hospital at the same time, and the doctors had mixed the two womens files! When the patient filed a formal complaint, the entire hospital staff threatened to go on strike if charges were brought against the attending doctors. This is a clear example of how corruption endorses gross negligence. This is also the case on the road. Drivers often bribe their way out of car-accidents, and it is a well known fact that people bribe the transport department to get a license, without actually learning how to drive! We must also ask ourselves: What impact does all this have on our children? Growing up in the midst of corruption and chaos, what kind of adults will they grow up to be? Education is largely a social process; it is impossible to hide corruption from children, as the idea of corruption becomes embedded in their minds. We are living in a state of chaos and anarchy. Therefore, the importance of this consultation is to freely discuss the issues and problems at hand, without any censorship. Please make use of this opportunity to truly speak your mind, if you are unable to do so in your own countries.

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Hong Kong as a model for clean politics in Asia

The Hong Kong Independent Commission against Corruption (ICAC) has long been hailed as the poster-child for clean politics in Asia. The public call for action in the late 1960s triggered a top-to-bottom reformation of a justice system which once fed on and fueled a culture of corruption, once a way of life for many in Hong Kong. The HKICAC stands as a prime example of the extent to which an actively engaged and involved civil society can impact their Government for the better. Mr. Raymond So, Principle Investigator with the Operations Department of the ICAC was a noted guest-speaker at this years consultation. Mr. So, a University graduate at the time of his recruitment, was one of the founding staff of the ICAC. Hong Kong in the 1960s was still in the early stages of development. Plagued with problems of overpopulation, abject poverty, an influx of refugees from mainland China, organized crime and illegal gambling, corruption and bribery were partand-parcel of life in Hong Kong; and the Royal Hong Kong Police Force were the ringleaders of this culture of corruption. In 1973, Mr. Peter Godber, Chief Superintendent of Police and the Deputy Commissioner of the Kowloon district was implicated in a corruption scandal, which upon further investigation, found him in possession over 4.32 million HKD. Mr. Godbers far-reaching influence and power saw that the case was stalled at every step, and despite strict orders not to leave Hong Kong while the case was pending, Mr. Godber managed to bypass investigative and immigration authorities and fled to England. A once dormant and passive civil society was in uproar, and took to the streets in protest of a system which had been stripped down to its bare corrupt parts, and demanded that the Government take immediate steps in combating the Rule-ofcorruption which had infiltrated all levels of society and state. This eventually led to the establishment of the ICAC.

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Unlike the former Anti-Corruption Branch of the Police, the newly-established ICAC was an independent and autonomous investigative agency and was accountable only to the Governor of Hong Kong. The ICAC consists of three key departments; COMMISSIONER

OPERATIONS DEPARTMENT

CORRUPTION PREVENTION

COMMUNITY RELATIONS

Receives, processes and conducts investigations into allegations of corruption.

Takes direct prosecutory action against those guilty of corruption. Examines and evaluates Government departments and agencies for possible loopholes of justice. Offers corruption prevention advice to private companies.

Handles the matter of public education and awareness on the evils of corruption, and enlists the support and involvement of civil society in combating corruption in Hong Kong.

From its inception, the ICAC have adopted what it calls a three-pronged attack against corruption: Investigation, Prevention and Education. The ICAC recognized that simply prosecuting cases of corruption was insufficient in bringing about significant social change; and that in order to do so, they needed to invest in a longterm strategy of educating both the Government and the public on matters of ef f e c t i v e a n d e t h i c a l governance. The battle against corruption can only be won by promoting a strong public conscience which does not tolerate corruption of any kind; a silent revolution of sorts. This strategy has proved itself to be more than effective, and is the guiding principle behind the ICAC today.

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In the current era of globalization, crime has also taken on a new global dimension. The ICAC has combated this by building a strong network base with international anti-corruption agencies, and recent years have also seen a growing partnership with anti-corruption agencies in China. On Tuesday 15th May, following Mr. Sos presentation, we arranged an exclusive visit to ICAC headquarters for our guest participants, where they saw firsthand how the ICAC puts principles into practice. To combat corruption, good laws and good organization are essential, but I put my trust principally in the services of sound men Sir Murray Maclehose; Former Governor of Hong Kong.

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Can we replicate the Hong Kong model in other Asian countries?

This was a critical issue raised in our following discussions. What are the obstacles faced by our countries in our struggle against corruption? What did Hong Kong do right that so many of our Asian counterparts did wrong? These were some of the key points raised by our participants; In many Asian countries, the Government does not invest adequate resources and funds towards a sustainable corruption-prevention programme. Our participants identified the impartiality of the judiciary in Hong Kong as key to the success of the ICAC. Unfortunately, in many Asian countries, the judiciary is more often than not, heavily swayed by moneyed and powerful individuals and/or groups. For example in India, charges of corruption made against such influential groups/individuals are often stayed by the judiciary, and in many cases, do not receive a formal judgment. According to Mr. So, the core concept of the ICAC is that no-one is above the law. Appointments for specific posts are often always subject to bribery and political interference; this, particularly involving positions with a specific salary scheme. People either bribe high-ranking Government ministers to get the job, or the Government for strategic reasons, appoints people with close political connections (and who are therefore relatively easy to control) despite their not being qualified for the task at hand. Many, if not most Asian countries do not have an established system of witness protection. Those who are brave enough to come forward as witnesses to corruption scandals, are often at the mercy of those whom they are testifying against. The ICAC on the other hand has in place, a functioning witness protection system. Witnesses are provided with protective bodyguards, and in highrisk circumstances, are given new housing and identities. The ICAC boasts an impressive annual conviction rate of 75-80%; in stark contrast, in countries such as Sri Lanka, the national conviction rate is less than 4%. These figures paint a clear picture of the huge discrepancies within

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the Asian region itself, and clearly illustrates how the breakdown in the Rule-of-law and due judicial procedure can carry dire consequences for the battle against crime and corruption. When asked the vital ingredients to the success of the ICAC, Mr. So responded: A determined Government, political will and finding the right people for the job.

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The Right to Information (RTI) Act: An Indian success story

With our Governments doing precious little right, it was nothing short of a relief to hear the following presentation by Mr. Aravind Kejriwal, an Indian Human Rights activist (a mechanical engineer by profession), a fellow of the Ashoka Foundation, and the proud recipient of the 2006 Ramon Magsaysay award for Emergent Leadership for his tireless efforts in the RTI Movement. Passed by the Indian Parliament in June 2005, the RTI Act finally came into force in late October of that year. The basic philosophy of the RTI Act is rooted in the 1976 ruling of the Supreme Court that the freedom of speech and expression- in which the right to information is embedded- is a fundamental and vital right of the people. Under the terms of the RTI Act, the government are under obligation to make state information, documents, reports and records easily accessible to the wider public, should they request it. Upon filing a formal RTI application, a citizen has the right to; 1) 2) 3) 4) 5) Request specific government records, reports and documents. Inspect government records, reports and documents. Make copies of government records, reports and documents. Investigate government work and ongoing projects. Obtain information in the form of print-outs, photocopies, tapes, videotapes, diskettes and other such formats.

Upon the filing of an RTI application, the responsible government authorities/ officers have a specific time-frame of 30 days in which to respond to the particular request ; 48 hours in urgent cases of life and liberty. Non-action on the part of the responsible government authorities/officers on an RTI application within the specified time-frame will result in the daily deduction of their salary from the 31st day onwards.

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The RTI Act applies to the whole of India, except for the State of Jammu and Kashmir who follow their own system of law. It is applicable to all constitutional authorities; including the Executive, Legislature and Judiciary and any institution constituted by an act of Parliament or by state legislature. In special circumstances, private organizations/institutions which receive substantial assistance from the Government are also subject to the RTI Act. The following information however is exempt from public disclosure; Information received in confidence from foreign governments. Trade/Commercial secrets unless larger public interest so warrants. Information that in any way threatens the safety of the nation-state. Information that endangers the lives of the persons/group involved. Personal information which violates an individuals/groups right to privacy. Information that infringes copyright laws, except of the State.

However, the above exempt information will be released to the public after a period of 20 years. The 15-day Drive against Bribes campaign, primarily organized by Mr. Kejriwals organization, Parivartan, raised public awareness about the uses of the new civil liberties granted by the RTI act. Organized across over 20 states in India, the campaign received extensive media coverage. RTI Help phone-lines and stalls manned by volunteers were set up to speedily deal with public queries of how to use the RTI Act to address their particular grievances. By the end of the campaign, over 8,000 RTI applications had been filed! According to Mr. Kejriwal, India practices a sham democracy which is inherently dysfunctional. Other than casting their electoral vote, the Indian people have no other way of impacting their government and what it chooses to do in the name of the people. The RTI Act has empowered the people of India, particularly the formerly voiceless poor, and has enabled the citizen to intervene at the highest level of policy-making. The RTI has vastly improved public distribution services in India, and has directly blocked channels of corruption within the system itself.

Case Study: Triveni


Triveni is a very poor woman who struggles for survival in the slum colony of Sundemagari in the eastern part of Delhi. Triveni is an Antyodaya cardholder which

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entitles her to specified food rations at a subsidized rate; a government initiative designed to help the poor. As an Antyodaya cardholder, Triveni is entitled to wheat at 2 Indian rupees (Rs.) per kg, and rice at 3 Rs per kg. But Trivenis shopkeeper cheated her by selling her these items at the normal market price, which unable to afford, meant that Triveni could not purchase any rice and/or wheat for up to a year. In February of 2003 when she came to know of the subsidized food rates to which she was entitled, she was encouraged by Mr. Kejriwals organization, Parivartan, to file an RTI application requesting the release of her personal ration records and copies of cash memos (receipts) of her supposed transactions; which she did on the 17th February 2003. On the 11th March 2003, she received a formal response. To her utter shock, the records showed that she had been issued 25kg of wheat and 10kg of rice at the subsidized rate in the last three months alone. The cash memos also showed that her local shopkeeper had been forging her signature. Armed with conclusive evidence, Triveni could now take legal action. As soon as this became known to the shopkeeper, he pleaded with Triveni not to take legal action against him, and promised to mend his ways. From that day onwards, Triveni received her due subsidized food rations. Ordinarily, no-one (certainly not the government) would have paid heed to an impoverished woman. This case clearly shows how once unseen information received under the RTI Act can empower and enable a marginalized citizen to take avenues of action, once denied to her. Encouraged by Trivenis success, Parivartan applied for the ration records of 17 local shops in the Sundernagari slums. Of a total 182 families, 167 families in the area hadnt received a single grain of rice or wheat in the last four months. Ration records released under the RTI application showed that out of a total 4650kg of wheat and 1820kg of rice allocated to the residents of Sundernagari, only 595kg and 110kg of wheat and rice respectively, had actually reached the people. The remaining 90% of rationed food was siphoned off and sold in the black market for profit.

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Case Study: Corporate takeover of Indias water-supply


When rumours first started spreading of the possible privatization of Delhis water supply, Parivartan immediately filed an RTI application, requesting all records, reports and documents regarding ongoing projects and developments of Delhis central water supply. Upon receiving the said information, they found that this was indeed true. They unearthed a behind-closeddoors deal between the Indian government and the World Bank to privatize Delhis central water supply. They obtained and publicly released official documents of the Delhi Water Supply and Sewerage Project, and copies of under-thetable deals between the Delhi Jal (Water) Board (DJB), the Delhi state government and the World Bank. Under the guise of improving 24-hour efficiency and access, the project planned to siphon off control of Delhis 21 DistrictManagement Zones (DMA) to private multinational companies, who would operate by collecting annual water management and engineering consultancy fees of up to 24,400 US dollars (USD) per month. The quality of service would be judged on the efficiency of delivery to the wider DMA, as opposed to individual households. And as is always the case, the bill would be picked up by the customer. According to Parivartans estimates, if this project were to be implemented, the average Indian family in Delhi could find their water bill increased upto five times over. The World Bank had proposed a loan-scheme of 150 million USD spread over a six year period- at commercial rates of interest- to finance this project. The controversy and public outcry surrounding the project postponed the finalization of this loan scheme. Interestingly enough, photocopies of exchanges between the DJB and the World Bank showed that the latter had offered the DJB and the Delhi state government a loan of approximately 2.5 million USD to hire the services of a consultancy firm to assist with the implementation of the project; but when the World Banks own choice candidate, Price Waterhouse Coopers, failed to get shortlisted for the position, the World Bank wrote to both the DJB and the Delhi state government, insisting that they hire the Price Waterhouse Coopers firm. When DJB officers raised their objections, the World Bank toyed with the selection criteria to ensure that their candidate was short-listed.

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Across Delhi, non-government organizations (NGOs), professional experts, social welfare unions and concerned residents came together to form the Right to Water Campaign (RWC) to oppose the World Banks pet privatization project. In a pressrelease, the RWC stated that if this project were to go ahead, water would become virtually inaccessible to the poor. The RWC are still deadlocked in a struggle against the Delhi government, water board and the World Bank to prevent the implementation of this project, which would undoubtedly have led to the starvation of many in Delhi. Both cases clearly show how the RTI act can tilt the scales of power in favour of the people, by redefining the terms of their relationship with their government. Our discussion following Mr.Kejriwals spirited presentation raised the following key points; A Certified copy should be a right of the people. But in practice, the Courts in many, if not most parts of India do not even have the physical capacity to photocopy court and government documents, and even in order to do so, one must first bribe about six people. There is something inherently wrong that endorses callousness within the system towards lack of infrastructural facilities. This facilitates corruption. This is something that we must really think about if we want to combat corruption. What role should NGOs play in the fight against corruption? NGOs cannot afford to isolate themselves if they genuinely wish to significantly impact the Government and the foundations of the system itself; we must harness our collective resources for the greater public good, by forging a broader coalition. Ultimately, the role of the NGO and related organizations is to build up the momentum of the people. We must act as the mouthpiece of the people, but in order to do so, we need to be connected to them and their issues. NGOs operating in countries such as Sri Lanka and Nepal have faced strong, often insurmountable opposition from the government in the recent past. In Sri Lanka for example, NGOs have often been accused by the government of being puppets of Western governments, and also of attempting to destroy the local culture and traditions. And while there are certain NGOs (both local and international) that are far from being clean, there still others which are genuinely committed to a cause, without whom civil society faces daunting prospects of survival. We are living in the era of global technology and communications; as activists, we must make full use of this. With a simple click of a button, you can send information to thousands of contacts around the world.

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Information technology is invaluable in improving our governments trackrecord of transparency and accountability. The threat of private government information being released to the public sphere, as seen with the RTI act, has proved itself to be an effective catalyst in making the government take action! While the RTI movement in India is indeed a great achievement, Mr. Kejriwal stressed that we as a region must aspire to a stage where the RTI is no longer necessary in making the government accountable to their people; we should aspire to a stage where the people ask less, and the government releases more information of their own accord. There is no excuse for ignorance in the current era of modern technology.

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The Karuna Trust- Health as a fundamental human right

We took a temporary interval from our discussions about judiciary corruption, to look more in depth at other areas of society and state that have been infiltrated by the evils of corruption; namely, health care. The Karuna Trust is a nongovernmental organization (NGO), which has since its inception in the mid-1980s, worked primarily on the issue of health-care and development among tribal peoples and disadvantaged communities in the Karnataka province. We had the privilege of counting Dr. H. Sudarshan, one of the founding members of the Karuna Trust, as one of our key guest speakers at this years consultation. In 1986, tribal communities across the Karnataka region were affected with a leprosy endemic; which first prompted Dr. Sudarshan and his colleagues to take a firm course of action. Since then, Dr. Sudarshan and his team have founded 25 primary health centres across the tribal foothills of the Karnataka province, which has seen the progressive and effective alienation of the once-fatal leprosy endemic amongst tribal peoples. The Karuna Trust has aimed to empower the powerless communities in India. They have funded and built schools for Karnatakas tribal children, developed a

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sound health care system which also incorporated traditional medicinal beliefs, held medical training schemes for local men and women., and have also with the cooperation of the National Insurance Company (NIC) developed a health insurance programme for tribal communities. In its first year, the Karuna Trust schooled six tribal children; four of whom went on to further post-graduate studies, one of them studied for a PhD and is now the Director of the Karuna Trust! The Indian government recently passed an Act for Forest-Dwelling Tribes of India, which is now in the process of implementation, and should hopefully secure the fundamental rights of all tribal communities in the country. Health has been identified under UN Convention as a fundamental human right. Dr. Sudarshan also works very closely with the National Human Rights Commission, which has recently taken up the highly sensitive issue of Indias black market in organ trade. Nowadays in India, you can purchase a kidney in the black market, for ten thousand Indian rupees (100,000 USD). The official report of the Health and Family Welfare Task-Force of Karnataka (of which Dr. Sudarshan was a member) in a highly controversial move, identified corruption as the key obstacle to health and development in the region. In understanding corruption, whether it be in the judiciary or in health-care, we must first understand the wider context in which it takes place. Transparency Internationals Corruption Index has identified the policing system as the single most corrupt area of state and governance throughout the world; which considering existing evidence, can hardly be disputed. Interestingly enough, health was pinpointed as the second most corrupt public sector service in India, but which has the greatest public impact as 40% of all funds garnered through corrupt means in India are invested in the health-care system. Under the Karnataka Lokayukta Act of 1986, which aims to improve the standards of public administration by investigating and dealing with all public complaints made against public servants - doctors and nursing staff who had demanded bribes of up to 2000 Indian Rupees [US$ 50] from their patients, and who had

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pointblank refused medical treatment to those who couldnt afford to pay bribes, were held accountable for their actions in open court where they were ordered to repay the bribes that they accepted. One of the more shocking cases is of a 22 year-old man who died in hospital because his doctors refused to treat him, having failed to pay them a bribe. From performing a cesarean section on a pregnant mother to claiming a relatives corpse for funeral rites, to recruiting and transferring medical staff, bribery is often the norm rather than an exception. The Karuna Trust has also worked closely in monitoring local drug manufacturing companies. Through their research, they found that the Drugs Control Department often granted manufacturing licenses to companies without first inspecting the standards of their manufacturing units. They also found that Drug Inspectors often made back-alley deals with pharmacies; allowing them to employ unqualified persons as pharmacists for a monthly fee of 500 Indian rupees [US$ 12] rather than having to pay qualified pharmacists the standard wage of 3000 India rupees [US$ 12]. 2268 random samples of pharmaceutical drugs were found to be well below standard quality, of which 126 were serious drugs. Some antibiotics capsules were found to have been tampered with chalk powder, and some steroid injections were found to just contain water. There were even cases of patients who were transfused with HIV-positive blood. But as always, bribes were swiftly paid and these crimes of gross negligence were quickly swept under the carpet. Dr. Sudarshan described this as a corruption epidemic; from the medical staff, to the technicians, to the pharmacists to the chief of medical institutes, everyones hands are soiled. What we as activists and concerned citizens must realize is that accepting bribes is as equally bad as paying bribes, and turning a blind eye to this uncontrollable culture of corruption and bribery is equally detrimental to the society in question.

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Question and Answer session with Mr. John Clancey, Chairman of the AHRC

John Clancey, an ardent social activist and practicing lawyer has been the Chairperson of the AHRC Having lived in Hong Kong for the past 40 years, Mr. Clancey has lived through Hong Kongs difficult transition to the success story that we see today. He is also one of the privileged 800 individuals who can vote in elections for the Chief Executive of the Hong Kong SAR. John Clancey: I know that the situation of many countries in Asia is desperate in terms of corruption; the system is almost totally dependent upon it. I will try and take you through the experiences of Hong Kong in eliminating corruption. One of my Chinese teachers used to be a police officer, but she quit after one year. She told me that on her first day as a police officer, she found an envelope containing money on her desk. She didnt take it. At that time, corruption in the police force was rampant. Sergeants would pay hefty bribes to get the job and would run illegal money-laundering scams within their district and then share the profit amongst their unit. Im assuming that you have already heard of the case of Mr. Godber. When the case came to light, I was working as a student chaplain. The students organized a protest-movement and called for the immediate arrest of Godber. On three consecutive Sundays, the students marched through the streets of Hong Kong in protest; some were even arrested by the police. It was two years after this that the government established the ICAC. Corruption eats away at the system. It is inefficient and costly. Question: What happened in that two year period between the public protests and the establishment of the ICAC?

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Answer: I also wanted to find out. I think that the government began to see that corruption was doing more harm than good, and the people were no longer willing to tolerate the situation. When they established the ICAC, they increased the wages of civil servants so that they would be less dependent on corrupt means of making profit. They also began to realize the long-term damage that corruption was wreaking on the local economy. Secondly, there was a growing respect for the people within the government system. When growing up in the USA, if you stopped and asked a policeman for directions, they would address you as Sir; but here, it was the other way around. Even elderly people had to call young police officers Sir; such was the level of their authority and power. What happened over this 2 year period, is that things began to equal out; the police started respecting the people too. The public now knew the rules of the game, and their rights. For example, they learnt that they had a basic civil right to file an official complaint against the state if they saw fit. When I first came to Hong Kong, it was a very racist society; only white people were allowed to file complaints. But after the establishment of the ICAC, the local Chinese population learnt of and put into practice their right to complain too. The lack of corruption ensures the rightful rule-of-law. Sometime back, I had a discussion with a Hong Kong University academic who was writing a paper on the progress of Japan in the 20th century, and the deprogression of China. It is not an easy question to answer, but I think that a lot of it is to do with their not controlling corruption. In China, at that time, landlords controlled the economy; only they could send their children to school etc. There was a close tie between bureaucracy and the economy. I think that Hong Kong and Japan are more similar; they were both willing to remove the power elites, and that it is why both countries are so successful today. Attempts to do the same in China were often crushed by key power players. One of the saddest cases I worked on was of a widow whose husband had been killed in a reckless car accident. We assisted her in her insurance claim, but we found out that the driver of the vehicle that had killer her husband had paid the police a bribe to destroy the case record to protect against the filing of any lawsuit against him. Because of this, the woman could not claim insurance for her husbands death. I think that the lesson to be learned by Hong Kongs example, is the power of social movements. After the 1967 protest movement, the government started to listen more to its people and their grievances. Now, anyone, even police officers can be charged with corruption.

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Question: Currently, Hong Kong is number 50 on the corruption list, while Singapore is number 5. Why is Hong Kong progressing so slowly? Answer: I think its due to a change in culture. Before 1975, civil servants were paid so low that they often dabbled in gambling and financial scams. Nowadays, corruption is the exception in Hong Kong. I guess it is impossible to completely eradicate corruption, but at least we now have a system that can combat it. Basil Fernando: I think that another major difference between Hong Kong and Singapore, is that Singapore is a police-run state. We have to draw a fine line here. We must maintain our democratic ideals when discussing how to curb corruption. Singapore is a society of extremes; they do not have any opposition parties nor a free press. John Clancey: Yes, Hong Kong still has a relatively free press. Corruption cases are reported by the press; but in Singapore, a journalist can be sacked for doing that. Question: Do officials and candidates have to declare their assets in Hong Kong? Answer: Candidates have to list their expenditure, but elected officials must declare their assets each year. If you break these rules, you have to answer to the courts through a civil procedure, otherwise you can be criminally charged. There was a case of a LegCo member who went to jail because of this. Question: How do you deal with pre-election corruption? Do you have a commission to disqualify candidates? Answer: It hasnt come up yet. The elections here are usually monitored by a highcourt judge. But I am glad that there is not much violence during the election time. If there are cases of corruption in the elections, you can be assured that it will be reported in the papers and the culprits will be held responsible. Question: Can you register as a political party here? Answer: No, thats what they want. Right now, you can also register as a company. It is an issue right now in the courts, because according to company law, the names of members and shareholders have to be open to public. But the democratic party are arguing against this. Question: Do you think that the change of culture is because of fear?

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Answer: I think that the ICAC has done very well in publicizing this issue. I think there has been a gradual change in culture. People know now that you dont have to resort to corruption to get things done. For example, if you want to get a driving license, you sit for the test instead of bribing officers. Peoples attitude changes; now the vast majority are against corruption. Basil Fernando: I think the influence of law is very important here, because the law positively changes peoples culture. John Clancey: Not only the law, but also law enforcement. Question: I think that the promotion of business is the main reason for the fight against corruption in Hong Kong. Do you see any promotion of business against human rights? Answer: I think that the issues are separate. We do have problems in the service sector. For example, the government have privatized low-wage earning labour like cleaners and watchmen, but they are still underpaid. I think that its more related to the lack of a labour rights movement. On the whole though, anti-corruption benefits all. Question: Shouldnt anti-corruption laws be more pro-poor than pro-rich? Answer: Well, people my age still remember what it was like to live in the shadow of corruption, and know all too well how it affects both the rich and the poor. Its not an issue of Capitalism vs. Socialism. Basil Fernando: I think that there is a danger in your argument; it might lead to populism. For example, do the rich ever get tortured? We need to improve the situation of the rich and the poor together. If you dont invest in the rule-of-law, the poor suffer the most. Its better to improve the capitalist system than have a chaotic system. John Clancey: Also, in Hong Kong, there are minimal delays in our judiciary system. Cases are always tried in a court; whether youre rich or poor makes no difference. That is very important when looking at beating corruption. Question: What first made the political will for corruption? Answer: I cant really pinpoint one specific thing. Maybe it would be a good idea to collect all the analyses of Hong Kong and try and identify what triggered this political will for a clean government.

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Basil Fernando: I think that besides the social movement, people also knew how to get things done. England used to be a corrupt place, but they later transformed to a system that practiced the rule-of-law. So there was a huge body of knowledge brought to Hong Kong. John Clancey: Regarding the question of political will in Hong Kong; at that time, most people were against it, but we still have to find out why the elites wanted the change. Secondly, besides political will, it is about finding the right person to do the job. Once, there was a big confrontation between the police and the ICAC which ended up in 90% of Hong Kong policemen going on strike, and demonstrating outside the ICAC building! The government made a clever tactical decision to make an armistice for past corruption charges, but warned police that they would not tolerate any further offenses.

Open Discussion: Key Points


The underlying reason for corruption is that some people continue to benefit from it; at the expense of others. We need to focus more of our advocacy efforts on educating the higher and middle classes and other power elites on the adverse effects of corruption, and to promote a sense of responsibility towards the lesser-privileged majority. Our leaders are simply human, but it almost sounds as if we are turning our leaders into Gods! Our government has a responsibility to us; once they are elected, they are accountable to the people. Corruption becomes a way of life when people do not know how to make complaints. This problem needs to be addressed with immediate remedies. We have talked extensively about the need for change, but we have not discussed how to bring about this change. We also need to discuss the issue of judiciary bias. For example in Thailand, judges are often extremely biased when handling cases involving separatism.

Points of Discussion: The problem of Prosecution- or the lack of it


Asia has a double-barreled problem when it comes to the issue of prosecution; it either exists in a highly dysfunctional and corrupted capacity, or it does not exist at all. Justice in Asia has become a dirty word. The past 20 years has seen the near total collapse of the concept throughout the region, which has in turn had a domino effect on all aspects of Asian life. It is a sad fact that the peculiar brand of justice practiced by Asian judiciaries today, prioritize the perpetrator over the victim. Nowhere is this more evident than in the prosecution system.

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Money, Money, Money!

The problem begins at the very first level of the complaints procedure. In many countries throughout Asia, the victim must bribe the police in order to file a formal complaint/report and/or to press charges; even then, the chances of their case being efficiently and effectively dealt with are either slim or none at all. Surveys in Bangladesh have shown that victims often must pay up to 865 Taka (approx. 13 US Dollars) to report and file a single criminal complaint. Bribes must also be paid to assure ones protection from torture and ill-treatment while in police custody, and in many cases, is the difference between a proclamation of innocence and a conviction of guilt. One of our participants from Sri Lanka told us of how he once asked a police officer whether there are any honest police officers in the country; the officer replied that he knew of only one honest police inspector, who was honest in that he equally distributed his bribes!! More than 70% of all victims are from poorer socio-economic backgrounds; thus making it virtually impossible for them to pursue any avenues of redress for their grievances. Shoddy standards of investigation often mean that their cases seldom ever reach the stage of a court-trial. The dire lack of an established mechanism for speedily filing, processing and investigating criminal complaints is clearly reflective in national statistics. In countries such as Sri Lanka, it can take up to 10 years for an official judgment to be made on whether or not to press for prosecution of a single case. In Indonesia, less than 5% of all reported cases are prosecuted in a court-of-law.

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One of our Bangladeshi participants pressed home the importance of using alternative methods of recording complaints in the absence of a functioning state mechanism. Independent human rights organizations and NGOs have at times stepped into the shoes of the police in recording criminal complaints and grievances; a role which many of our participants felt, we should remain actively engaged in. The media is another medium, which we have yet to fully harness to serve this goal. The lack of social critique of this sorry state of affairs in Asia is largely due to a lack of knowledge and understanding. Many people are not aware of their rights under the law; they do not know that they have the right to complain against government officers who fail to perform their duties well, or who abuse their position of authority. This is an important point which we will discuss further at a later point. It is a sad fact of Asia, that money makes all the difference in the eyes of the law. The worth of a criminal case is often decided on the basis of wealth, status and power. Politicians, government officers and moneyed individuals can all too easily bribe their way out of any and all criminal charges brought against them. For example in India, a state government officer against whom multiple criminal charges have been filed has yet to be prosecuted by local law-enforcement authorities, despite clear and conclusive evidence of his guilt. It is well known to the local community that the said officer makes monthly payments to the local police and prosecutory authorities to ensure his impunity from prosecution. It is also common for powerful individuals to monopolize their personal and political connections to sway the residing court judge and prosecution. Money is not the only currency of bribery in Asia; knowing the right people can also easily sway an entire case in your favour- even if the evidence points to your guilt. It is sad but true; if you have money, power and connections, you can get away with just about anything. One of our Chinese participants offered a very interesting perspective on the issue. Under the Communist system, everyone received the same salary, regardless of their position. But under

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the new market-economy, the gap between rich and poor widened tremendously, which many in China resent. With money being introduced as the sole objective, people are willing to do anything in its name; including bribery, corruption and crime. Asia is caught in a vicious cycle: Corruption becomes an intrinsic part of life because society literally stops working, and society cannot work when corruption becomes so deeply rooted. We have reached a highly precarious state, where bribery is in some cases a mandatory means to achieving an end. This not only applies to victims seeking justice, but also within the legal fraternity itself. Even lawyers are not exempt from this out-of-control culture of bribery. Lawyers must pay bribes at every stage in processing their case; from getting the official seal of the Attorney General upon submission, to setting a court-hearing date, to rigging the trial jury.

The Attorney General: On the wrong side of the Law!


Many people in Asia have lost all faith in their government, in their political system, in their judiciary and in the system of justice; their governments have given them little reason to hope. The collapse of the justice system in many of our Asian countries can be largely attributed to the failure of the Attorney Generals department to fulfill their fundamental responsibilities to the people. It is the responsibility of the Attorney General to initiate, oversee and direct all criminal investigations and to then submit cases for formal prosecution. The victim should not have to seek help; it should be the priority of the Attorney General to take the necessary steps in ensuring the protection of the victim and their family, and that justice is served. The Attorney Generals department is a critical cog in the machinery of justice; if it does not work, the machine cannot work. This is what we observe throughout Asia:

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Indonesia: From bad to worse to....

The Indonesian Attorney General has been a stumbling block in the already shaky course of justice in the country. The recent replacement of the Attorney General was however seen as a public victory. Former Attorney General Mr. Abdul Rahman Saleh was both totally inaccessible and oblivious to the plight of his people; choosing to protect the perpetrators of human rights violations within the government by consciously neglecting his duties to the victims. It remains to be seen whether the new Attorney General, Mr. Henderman Supandji, will be better or worse. Since 2003, the National Human Rights Commission (Komnas Ham) has been consistently appealing to the good graces of the Attorney Generals department to present their independent investigative findings of the student/activist abductions of 1998/99 to the House of Representatives, so that it may be granted the formal parliamentary and presidential sanction required to be tried within Indonesias Ad Hoc Human Rights Court. In their investigative report, KOMNAS HAM implicated 27 officers of the TNI State Army, National Police (Polri) and State Intelligentsia (BIN). Former Officer of the specialist Kopasus military forces, Major General Muchdi PR (also implicated in the murder of Human Rights defender, the late Munir) was also implicated as a key conspiring party to the 1998/99 abductions. To date, the Attorney General has point-blank refused to press forward with the investigations, despite the existing bank of conclusive evidence of gross human rights atrocities committed by the state against its own people. We can only gather that the Attorney General has chosen to prioritize his loyalties to the government,

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over his loyalties to the people. Meanwhile, the victims of the 1998/99 abductions have been waiting for 9 long years for justice. Sadly, a similar fate has befallen many other, if not most human rights violation cases in Indonesia. Points of Discussion: Combating Corruption: Are our governments doing enough? On the third day of discussions, Basil Fernando posed the following questions on anti-corruption efforts within their respective countries, for further reflection and debate; 1) In your country, is corruption the rule or the exception? The successful elimination of corruption cannot be judged by the number of successful convictions, but by whether corruption remains a way of life or not. 2) Do citizens in your country feel that it is worthwhile to file complaints regarding acts of bribery and corruption, and do they believe that their complaints will lead to credible investigations? 3) In your view, is the government in your country seriously committed to eliminating corruption? Do other actors such as opposition parties also share a serious commitment to the elimination of corruption? 4) Among the more powerful sectors in your society, does there exist a powerful unit of individuals who are committed to combating corruption? 5) Can you identify the forces in your country who are strongly opposed to the elimination of corruption? 6) Amongst the citizens, are there individuals/groups who exert influence in trying to create public opinion in favour of establishing legal and other mechanisms for the elimination of corruption? Or does the wider public believe that the elimination of corruption is a futile exercise? 7) In your view, in your country, what should be the most basic elements for constituting an effective anti-corruption policy? 8) Are there genuine attempts on the part of the judiciary to curb corruption? 9) What is the perception of the people regarding the integrity of judges and the judiciary in your country? 10) Who are the opinion makers in your country? The ensuing debate raised the following key points:

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India: The only existing form of punishment for Supreme and High Court judges is impeachment; however, only one case of impeachment has ever been tried in Indian judicial history. For the remaining cases of intracourt corruption, they seldom, if ever, result in a conviction. Clearly, internal disciplinary procedures do not work in India; which begs the question of what other form of punishment to implement alongside impeachment. Corruption breeds negligence. It is a sad but well known fact that nowadays in Asia, people often settle their cases out of court by resorting to crime. Typically, they hire the services of underground thugs to settle their score. Numerous cases of people being murdered over petty property, marriage, financial and other disputes have been reported across the region. Pakistan: The judiciary is relatively autonomous from executive control. The matter of appointing judges is the responsibility of the High Court, and not the government. An act was recently passed that saw the appointment of provincial monitoring judges for each district who would be responsible for handling cases of corruption within his/her jurisdiction. In that sense, we have been relatively successful. There is also a growing sentiment that the national elections should be conducted and overseen by the judiciary and not the government. We need to address our civil court procedure; as it stands, it is ineffective and takes too long. When people start losing faith in the system, thats when they start to resort to crime and corruption. Unfortunately, with regard to the general commitment to combating corruption, the national morale is quite low and ambivalent. People talk about eliminating corruption, but if they have a chance to get ahead by doing something corrupt, they would do so in a heartbeat. When personal interest comes into play, values and ethics are all too easily forgotten. This is the hypocrisy that we practice and that we are confronted with on a daily basis. We are facing very similar problems in all our countries, and yet we do not have mechanisms in place to carefully monitor these problems.

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Bangladesh: In the judiciary system in Bangladesh, the lower judiciary is very much under the control of the higher judiciary, especially in areas such as inspection, appeals, reports etc. In our case, when the higher judiciary is so corrupt and incompetent, it doesnt matter to what extent you separate the judiciary and the executive. The appointment of higher judges should not be on an immediately permanent basis. When the executive has full control of the judiciary, they can employ their own puppets to secure their control over the judiciary. When the judiciary is independent- as it should be - the performance of judges is evaluated on an annual basis. In Hong Kong, any complaints made against high court judges are handled in the strictest confidentiality. The findings will then be submitted to a separate judicial body. There needs to be a sub-system in place to handle charges against the judiciary, which is something that we often overlook in the investigation of corruption. Sri Lanka: We have a body for training judges which does not work. Magistrates are obligated to conduct regular inspections of prison conditions, but 98% of them do not do so. Lawyers cannot even easily access judges. Our entire legal profession is totally controlled by the Supreme Court. You often see favoritism towards certain lawyers; you see the same lawyer in every court trial. We call this chamber practice. Theres a clear nexus between the police, the judges and the lawyers. There are very few lawyers left in Sri Lanka today who are not party to this nexus. The following day, we further developed discussions by dividing anti-corruption efforts into two main categories which we then looked at separately;

ANTI-CORRUPTION EFFORTS

RULE OF LAW Functioning prosecution system, fair and transparent criminal investigations, judicial mechanisms in place to combat corruption.

PUBLIC EDUCATION Promoting public awareness of the evils of corruption, and enlisting their support and active involvement in anti-corruption efforts. Freedom of the media and the publics right to information. Incorporating the basic fundamentals of the law into the school curriculum.

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As we saw with the earlier example of Hong Kongs ICAC, anti-corruption efforts relies on the marrying of these two categories in ones approach. The following key points were raised in our debate; If we accept that the collapse of the rule of law is an intrinsic part of corruption, what methodologies do we then employ to document the defects of state institutions and investigations? The identification of the problem at hand should be a rigorous process, as should be the process in finding a solution to it. Despite the strong movement against corruption in Asia, we havent been very successful in achieving our goals. Why? Have we as yet failed to accurately pinpoint the smaller problems within the larger problem of corruption? Pakistan: The judiciary in Pakistan has never been a part of civil society. The Supreme Courts judgment in favour of Musharrafs military government was largely due to the governments law of necessity. The use of the law of necessity has been exploited by the military regime, who has often under mined the national constitution when it suits their purposes. The militarys human rights violations are often actually defended by the judiciary, who have even gone so far as to grant Musharraf the power to amend the constitution. The delays in receiving a case judgment in the formal courts has led to the creation of an informal private court, or Jirga. Despite its illegality, the jirga courts do still operate in some rural areas of the country, and have also passed down criminal sentences. The lower court is also terribly corrupt. Judges and prosecutors receive and pay bribes. The lack of a strong civil movement against this, simply allows it to continue unabated. Regarding the highly controversial matter of the former Chief Justice, he was under intense pressure from all corners of the government and the military to resign, and when we refused to do so, was detained for more than five hours. But the government did not anticipate the strong backlash within the legal and civil fraternity in support of the Chief Justice. Imminent lawyers and judges resigned in protest, and the second in authority after the Chief Justice refused to be anointed as the new acting Chief Justice. The Bar Councils peaceful sit-in protest was met with unexpected violence from the police, leading to the death of several people. The situation there is now a judicial crisis.

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The very existence of a jirga court or any other alternative court system for that matter is a reflection of a failed system, and that is why people resort to conflict resolution. The stark increase in crime can also be linked to the failure of the system. When people can no longer achieve justice in the courts, they resort to street justice; hiring thugs to settle their personal scores. In Sri Lanka for example, there have been numerous cases of entire families murdered in cold blood over a petty land dispute. Sri Lanka: The atmosphere of impunity for the wealthy and powerful is so rife, that it almost encourages them to commit crimes. Abductions of wealthy and influential persons for ransom are taking place at the rate of almost 1 per day now. Lawyers and businessman are actually paying bribes to ensure their security. Yet, no one does or says anything in protest. There needs to be more capacity building in our society. The tendency is to now, where possible, settle cases outside the courts. Judges often even pressurise lawyers to settle torture cases, instead of taking it to trial. Tolerating this culture of corruption and violence is a dangerous state, which many of our societies have unfortunately reached. When people do not even bat an eyelid at the murder of innocent people over petty scores, or of trial witnesses, then their societal conscience functions but in a highly deteriorated capacity. Bangladesh: The Royal Action Battalion (RAB), Bangladeshs best hopes for battling corruption, have coincidentally failed to accept accountability for the deaths of several people, some of whom were arbitrarily tortured to death. Peaceloving Bangladeshis feel let down and extremely frustrated at this situation. We are an extremely frustrated nation. The people no longer have faith in the normal course of justice. And as activists, this sense of pessimistic resignation to the current state of affairs is very disheartening to witness. Cambodia: Cambodia was previously ranked the second most corrupt state in the world by Transparency International. Our country has just survived a civil war, and the law is a tricky thing. A major issue in Cambodia at the moment is the lack of judicial

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independence. In many cases that I have defended in our courts, the judge often asks leading questions thereby almost forcing a confession of guilt, and many suspects are charged without sufficient evidence of their guilt. The Supreme Court often only takes action upon orders from the top levels of the executive. When the public voice has been deliberately deactivated, anything can happen. For example, when Pol Pots regime first entered Phnom Penh, they were welcome and loved by all. But in a few years, Pol Pots army started to commit mass murder; thousands of people were killed, raped and tortured every day. Unless we learn from our mistakes, we cannot move forward. We must find a way to overcome this public perception that nothing can be done; there is always something that can be done. We must do what we can to dispel these pessimistic notions that things will never change. Documentation is one way of doing this. In Sri Lanka, several years ago, torture was accepted as a routine practice of law and order; but now, people understand that torture under any circumstances is wrong, and there is a social discourse on the issue. Now, hundreds of torture cases are being taken to trial. All this in the midst of a civil war. This just shows that it can be done, even under extreme circumstances. There needs to be a system in place whereby all government officials are required to declare their personal assets, and those of their family. This is the case in Hong Kong and has been instrumental in nailing corrupt officials. The simple fact is that the system is not geared to deliver what it is supposed to. Points of Discussion: Combating Corruption: An Independent Judiciary A presentation from our Sri Lankan panel effectively unfolded the larger issue of judicial independence as a course of combating corruption into digestible and achievable points of action. Although primarily in relation to the Sri Lankan situation, we found that the issues raised were equally applicable throughout Asia and set the pace for wider discussion on the matter. If we are ever to have an independent judiciary in Sri Lanka, and indeed in many countries in Asia, we must implement the four following features:

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1. Appointment: The appointment of Judges, the Attorney General and other key officers of the judiciary must be done according to regulated law. In many Asian countries, the appointment of judiciary officers (and all government ministers for that matter) is a highly politicized affair prioritizing personal interest over that of the people. 2. Functionality: Incompetence is as bad as corruption. Most Asian countries lack an established and consistent system of training judiciary officers, which is reflected in the shoddy standards of justice throughout the region. Lack of training coupled with political interference and power-play means that judiciary officers are often removed from and immune to the desperate realities of their country. 3. Salaries: Many judges and prosecutors are poorly paid, and as a result, often give vent to their frustrations in open court, accusing high-earning officers of being in it only for the money. Salary should not be a grievance; as such, we need to specify a fair and long-term salary scheme for our government officers to prevent intra-legal conflict. 4. Removal: There must be a mechanism by which incompetent, corrupt and ineffective judges may be removed from duty. At present in Asia, it is impossible to remove supreme court judges and other high-ranking judicial officers despite their blatant incompetency; this indulges a culture of apathy and a sail with the system attitude amongst lawyers. Key Issues: Judiciary There is a clear absence of equality and uniformity in judicial decisions (eg.: imposing conditions for bail, granting compensation in human rights violation cases, ordering fines). Judges often make remand orders without the defendant being present in the court; a direct violation of their right to a fair trial. Differential treatment for lawyers depending on their seniority, and in some cases, social class; a highly discriminatory practice which should not be tolerated in an open and just court-of-law. There have been many cases recorded where the residing judge makes orders without actually completing the judgment. Some cases have been pending for up to 3 years without the passing of a formal judgment. It is commonplace for litigants/lawyers to fix the bench before commencing a court trial. Lawyers will often bribe court staff to fix a jury

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which is favourable to their client and their case. Failure on the part of court Magistrates to inspect prisons as required by law. Key Issues: Lawyers The failure on the part of lawyers to recognize and fulfill their legal responsibilities to their client(s): This is also related to the issue of professional incompetency and a lack of consistent training. Shockingly, lawyers have been known to compel their clients to plead guilty without taking into account the circumstances of the case and the existing evidence; this is particularly true, when representing financially poorer clients. Lawyers are also involved in the culture of bribery rampant within the lawenforcement system, and often partake in corrupt dealing with judges, court staff and police alike. Adopting a sailing with the system mentality: Turning a blind eye to the blatant wrongdoings of court judges for the sake of protecting ones own career. Venting their professional frustrations on their clients; sometimes even scolding and ridiculing them. Particularly in cases of fundamental rights violations brought against the state, lawyers have been known to consciously sabotage their client(s) and the case for fear of the repercussions of openly challenging the government in open court. Key Issues: State Counsel The State Counsel, in many Asian legal systems, are not competent or qualified to handle criminal cases, and neglect their responsibilities to the administration of justice. The State counsel have yet to implement a framework that will enable the speedy release of government analysis reports. Objecting to bail without recourse to the individual circumstances of each case. Undue interference in criminal investigations in which the government or particular government ministers have a strong political stake. Key Issues: Police Failure to fulfill their fundamental responsibilities in recording, investigating and submitting criminal cases and complaints for prosecutory consideration:

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This is also related to the issue of professional incompetency and a lack of consistent training. Police officers are in many cases, the ringleader of this rampant culture of bribery. This mentality of bribery as a means to all ends must be uprooted, which ironically enough stems from the law-enforcement system itself. Horrific records of torture of detainees, suspects and otherwise innocent civilians. Torture has become a routine practice among many, if not most police authorities across Asia; from forcing confessions of guilt to brute bullying tactics, the once protector has now become the perpetrator. Appointed to enforce and uphold the rule-of-law, Asias police are in fact wreaking total havoc on the very system they were appointed to protect. The prevailing culture of impunity enjoyed by police and all state officers from owning accountability for their actions, further feeds the anarchy that is engulfing Asia. Key Issues: Prisons Prisons are desperately under-staffed; prison staff are poorly paid and receive precious little by the way of benefits. The state cannot afford to neglect its own staff if it wants to maintain the system. Prisons in Asia are poorly maintained in every aspect; general cleanliness, building maintenance, management of prison inmates, prison facilities, medical care etc. Inmate over-crowding is becoming a critical issue in Asias prison; prisons originally designed to equip 2 inmates hold up to 15 inmates. Some of our participants who have visited prisons as part of their work, recounted how inmates in a single cell had to alternate sleeping shifts because the cell space was far too inadequate. Prison staff often aid and even participate in criminal activity within the prison; drug trafficking, weapons trafficking, acting as a go-between for inmates and their external criminal connections etc. Key Issues: Medical Officers Often subject to intimidation and/or influence by powerful individuals/ groups to manage a medical examination of a torture victim in a case against the state. Failure to fulfill their fundamental responsibilities in conducting medical examinations of torture victims: This is also related to the issue of professional incompetency and a lack of consistent training.

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Sri Lanka: A Sorry Story

In the period directly following independence, Sri Lanka had a fairly functioning judiciary; its functionality was seriously undermined by the 1972 constitution which handed all power and prestige to one person- the President. Under the 1972 constitution, the President now had the authority to personally appoint the entire cabinet, court judges and the Chief Justice and could also hold political portfolios themselves. This fast led to a situation where the entire government were at the constant beck and call of the President who now held near kingly status. The concentration of power in the hands of one person has wreaked complete havoc on all aspects of government and indeed, wider society. Former President JR Jayawardene once said of his presidency; I have the power to do anything. I can make a man a woman, and a woman a man! The Chief Justices of the past were respected and learned persons; but even they realized that for the sake of their professional survival under this new constitution, they too had to kowtow to the will and whims of the President. The existing judiciary system in Sri Lanka is not based on the rule-of-law. For example, the recently passed Prevention of Terrorism Act (PTA) is a complete violation of the individuals fundamental civil liberties, and grants the Army full autonomy and power to do as they please, while the judiciary must now fall in line. Anyone presented before the Courts under the PTA as a suspect can be arrested, detained, sentenced without legal representation (a fundamental right of any defendant) and even tortured, without the need for conclusive evidence of any wrongdoing. This has only amplified the inherently discriminatory nature of the judiciary in Sri Lanka. More than 70% of all persons who were arbitrarily detained under the PTA were Tamil. Points of Discussion: The Elimination of Corruption: A structured human right

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FUNDAMENTAL HUMAN RIGHT

LEGAL

SOCIETAL

CULTURAL

Equal treatment before the Law. Credible investigation under criminal law, a fair trial, effective prosecution.

Moral- Ethical obligations. Societal norms and values which regulate public perceptions of right and wrong.

Ideals- AestheticsFraternity. A sense of unity and brotherhood in a time of trouble.

Points of Discussion: The way forward for Human Rights activism On the last day of our consultation, our panel rounded up the discussions with concrete proposals on how to move forward with our human rights movement, as well as ways in which we could collaborate more closely in the near future: We must merge the notion of ethics with measures taken to enforce the rule of law in our respective countries. If the measures are wrong, then it just goes to show how deeply corruption has infiltrated society. When the AHRC receives information from our local partners, we try to follow it up at different levels. First, we send out an appeal to get the case heard by the wider international community. After that, we reflect upon these cases, our statements and reports that we made and we then develop what we feel to be the most effective country-specific strategies. If the NGOs and various interest groups represented here can keep us updated with their work, then we can go public with the information. It is about putting pressure by going public. Many local NGOs have security fears due to the highly sensitive nature of their work; this is also where the AHRC can be an asset. We can go public on your behalf. In a number of countries, such as India, the government uses a social charter whereby institutions make public pledges to the people. For example, a post office might pledge that their customers will be able to buy a stamp in less than 5 minutes. We should really press the issue of a social charter, which could prove to be invaluable in making the judiciary and the state apparatus more accountable.

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Pakistan: A couple of months ago, I received a report from a Sessions judge about the state of prisons in Pakistan. We filed a Haebus Corpus petition, and we did manage to achieve considerable success like getting a juvenile delinquent released. You have to begin somewhere, and people do eventually come round, and it can work. There is no magic time-frame; you have to struggle long and hard, but it can work. Sri Lanka: Several books have been written by activist journalists within the country about the corruption by the Chief Justice, which have not been denied by the government. We should really try and make sure that those books are internationally circulated and read. Can we commit that we will organize ourselves into a collaborative campaign to tackle the issue of judicial corruption, and build a strong network base to move forward with this? We must also strengthen our existing avenues for filing and processing complaints in our countries. The major difference between the AHRC and other human rights organizations is that we want to make a more in-depth analysis, and we also want to promote discourse at the local level so that the people will become empowered. There is no such thing as an overflow of information; what we are worried about is an underflow of information! Some organizations, because they have limited resources, are highly selective abut which human rights violation cases they take up and actually even make it clear to local NGOs to send them as few cases as possible. When the AHRC began, we wanted to create a culture where information is always welcome. So please, do not be afraid about sending us too much information. There should be no criteria for adjudging what constitutes a human rights violation as opposed to a regular crime: EVERY case is a human rights issue. Sri Lanka: The government in Sri Lanka seems to be completely impervious to international pressure. But we shouldnt let that discourage us. We need to fight against this current culture of government impunity. So I ask all of you to please pay special attention to the situation in Sri Lanka, and to respond quickly to cases

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as and when you hear about them. When we go back to our countries, we should give serious thought to the issue of values and of promoting values of sensitivity towards other human beings and human injustices. When we come to a state where we dont even blink when people are being murdered in the streets, something is desperately wrong with our values of humanity. India: I would just like to narrate an incident that happened a couple of days ago. When we were travelling in the taxi to an Indian restaurant for lunch, Sarada turned to me and asked me what I thought of the HKICAC. Before I could even answer him, the taxi driver said they are independent! Thats why we believe in them, because they are an organization for the people, not the government. I was really struck by the strong sense of public faith in Hong Kong in their government, its institutions, and in the justice system. This is what is desperately lacking in our countries. This has been a tremendously successful week. And what it has shown is that political will is still alive in our countries and societies. And the spirit and depth of our discussions have also shown that there is still a strong will among the people to combat corruption in our countries and to move forward. If corruption is a way of life, any strategy to fight against it must take into consideration very fundamental problems. Taking the time to develop a long-term and long-lasting strategy is much more important than promoting campaigns and activism. If corruption is a way of life, then commissions of inquiry into corruption which are just minor institutions without sufficient powers, expertise, independence and resources cannot have any significant influence in addressing the issue. Such commissions are often an attempt to make it appear that something is being done. No serious movement against corruption should rely on such commissions. A good starting point for such a strategy should be the rejection of such commissions on the basis of their inadequacy. Critiquing these institutions in a sophisticated manner by way of in-depth studies, research and media discussions may pave the way in encouraging a larger cross-section of civil society to take a greater interest in the matter and to develop better strategies. The mere formulation of codes of conduct cannot combat corruption which has become a way of life. Codes of conduct, in order to be effective, have to be associated with a much broader strategy for struggle against corruption. It would

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be misleading to the people to create faith in such codes of conduct when there is no real way of breaking the devastating hold of corruption over civil society and social life. If these codes of conduct are formulated in the context of developing a broader combative strategy, then it could also be useful in educating the masses on the gravity of the problem of corruption. If corruption is a way of life, it means that negligence is also a way of life. There must be terrible examples of the result of such negligence. Meticulous and extensive documentation of the stories of such acts of gross negligence may create more effective forms of education on the gravity of the problem. Such stories may enlighten the masses on the destructive effects of corruption in their own lives. From that perspective, more people may take an interest in looking for more effective ways of controlling corruption as a part of their own self preservation. If it can be shown how medical negligence, negligence in construction of roads leading to accidents, and other various forms of social catastrophes are the product of such negligence and corruption, it is very likely that the people will want to take proactive steps in bringing about a change. Worse forms of negligence result in the dysfunctionalism and complete collapse of all systems of an organized society. Of all state institutions, police dysfunctionalism has the most severe effect on society . The most important component of corruption in any modern society is the corruption that exists within the policing system. Except in a few places like in Hong Kong, very few attempts to curb corruption at the national state level have understood the critical link between controlling corruption within the police force, and breaking the hold that corruption has over all levels of society and social life. Breaking the force of criminality within the policing system has to be the beginning of ending corruption as a way of life. Before acting on this issue, if concerned groups begin to understand how important this is, then they could find many different ways to deal with this issue. A successful information drive, if it is concentrated against the key agents that are responsible for maintaining corruption as a way of life can go a long way in creating public awareness to fight against such agents. For example, if an information drive concentrates deliberately on exposing corruption within the policing system, this will generate much interest and support in addressing the core component of corruption as a way of life.

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Corruption as a way of life is also associated with certain taboos. While people freely talk about politicians as corrupt, they do not equally freely talk about police corruption, corruption of prosecution systems and of the judiciary. A culture of passive resignation ensures that these issues are never the subject of public discourse. Such taboos need to be broken. It is not difficult to break such taboos. All that is needed is a group of very conscious and dedicated persons who are willing to take the first step in making these issues a matter of public debate and discussion. Amongst ordinary citizens, there is an intense feeling of dissatisfaction and frustration with these institutions. They have a great deal of knowledge about these institutions. For people to express what they internally feel about these institutions, they need a forum in which to do so. If corruption is a way of life, it means that there are plenty of stories about the way in which corruption takes hold. But because corruption is so common, people may not even be keeping records of such acts. The documentation of corruption is an essential component in exposing it, and in generating public awareness and protest. In the current age of technology, communication has never been easier; therefore, there is no excuse for inaction. What is required is a group of dedicated persons who understand the power of recording ordinary day to day details of corruption. When resentment against corruption becomes a way of life, and when peoples sensitivity on the issue of corruption develops to the level that they begin to complain about it, to write about it and to act on it, this marks the beginnings of social change. Between these two ways of life, there is no halfway. It is either a society intolerant of any form of corruption at any level, or it is a society resigned to corruption as a way of life. The fight against a way of life cannot be done by borrowing from models. First of all, the natural reactions that are already there amongst the people against this way of life has to be harnessed and brought to surface. The public should also be encouraged to actively participate and contribute to the strategical process; and in order to do so, we must first create an environment conducive for public debate and dialogue. Once such a social discourse exists, it is then possible to draw from the experiences of other countries which have successfully eliminated corruption. It is a fundamental mistake to think that because corruption remains as a way of life, people are resigned to it. In fact what appears to be resignation, is actually the peoples way of marking time until they see a more credible solution. Thus, we need to create a solid social movement, and forum in which such a solution may be found. When that begins to happen, it will be very clear that the distance between seeming resignation and proactive participation of the people is not that great.

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Conclusions

In closing, let us compress and compound the key issues, ideas and proposals raised over the course of the consultation into a solid bank of knowledge with which we can move forward as human rights activists and as Asian citizens, in our struggle to restore law and order in our troubled region. (1) THE PROBLEM OF PROSECUTION... Need for an established and systematic procedure with which to record, file, process and investigate criminal complaints. Active and immediate measures must be taken to suppress the prevailing culture of bribery in many Asian countries, in which victims must often pay bribes in order to report their grievance in the first place, and even lawyers must pay bribes in order to pursue their case in the courts. In order to do this, the government must take immediate reformative steps at all levels of the prosecution system; from the police to the prosecution. Police and judicial officers who are found guilty of accepting bribes should be duly prosecuted and indefinitely suspended from service so as to deter their colleagues from doing the same. Shoddy standards of investigation and prosecution of criminal casesparticularly of victims of poorer socio-economic backgrounds- should not be tolerated by any modern state. That some cases are often pending without judgment for up to 10 years is simply unacceptable. The privileges of impunity currently enjoyed by politicians, government officers and moneyed/powerful individuals from prosecution must be immediately revoked. We need to strive for a society where no one is above the law, and definitely not above prosecution should they consciously break the law. The Attorney Generals department should be held accountable for their part played in the near total collapse of the justice system in many of our Asian countries. It is the fundamental responsibility of the Attorney General to ensure transparency, efficiency, fairness and equality of access to justice. We need to introduce an evaluational mechanism which will allow for the

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periodic assessment of the Attorney General in the fulfillment of their duties. We should look into using alternative methods of recording complaints in the absence of a functioning state mechanism. Independent human rights organizations and NGOs have at times stepped into the shoes of the police in recording criminal complaints and grievances. As we saw with Mr. Aravind Kejriwals campaign, the Right to Information Act (RTI) has been invaluable in holding the government accountable for their actions (or inactivity), and also in the redressal of criminal and other grievances which reached a dead-end in the courts. We should look to pursue the Right to Information in other Asian countries. (2) FOR AN INDEPENDENT JUDICIARY... The separation of the judiciary from executive control is imperative for a lawful and stable society. The appointment of Judges, the Attorney General, Chief Justice, and other key officers of the judiciary must be done according to regulated law. In many Asian countries, the appointment of judicial officers (and all government ministers for that matter) is a highly politicized affair prioritizing personal and political interest over that of the people. For the sake of minimizing avenues of corrupt dealings within the state apparatus, the expenditure records and personal assets of all judges and judicial officers should be carefully monitored, as well as their general conduct and performance. The matter of budgetary allocation, resources, and salary schemes for all judicial officers should be handled by an independent committee consisting of distinguished academics and legal experts who have no government and/ or political affiliations. The issue of salaries is often a highly sensitive issue for many court judges and lawyers in Asia who are often underpaid and overworked; this often leads to intra-judiciary conflict which compromises basic standards of judicial procedure. This should be avoided at all costs by introducing a long-term salary scheme for judges and judicial officers, which is inclusive of state benefits (e.g.: health, housing, security etc.). The professional incompetence of judicial, law-enforcement and other government officers is a major concern in Asia, and is also conducive to corruption and the mismanagement of constitutional legislation. Therefore, there should be a long-term system of legal training to maintain a basic standard of professionalism among judiciary and government officers. Human rights education should be integral to the training curriculum for

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all judges, lawyers, law-enforcement and other government officers. There must be a mechanism in place by which incompetent, corrupt and ineffective judges and judicial officers may be removed from duty. At present in Asia, it is impossible to remove Supreme Court judges and other highranking judicial officers despite their blatant incompetency; this indulges a culture of apathy and a sail with the system attitude among lawyers. Bench-fixing and any other such trickery which compromises the integrity of the court and court trial should be seen as and treated as a serious breach of conduct, and all judicial officers found guilty of doing so should be severely prosecuted. Any attempts by the government to interfere in investigative and trial proceedings should also be treated as a serious breach of conduct, and prosecuted accordingly. Bullying and badgering of lawyers by court judges looking for a speedy trial and conviction (even if the evidence suggests otherwise) is completely unacceptable, and should be grounds for immediate dismissal. There needs to be a functioning witness protection system in place that offers constant security, change of identification and housing in extreme cases. It is the fundamental right of any defendant to be entitled to legal representation. All necessary measures should be taken to ensure a fair and efficient trial procedure; delays in court trials and in passing judgments are not acceptable, unless with very good reason, and in such cases, the defendant and all concerned parties should be duly informed. The defendant(s) and plaintiff(s) have the right to appeal a trial judgment if they see fit. The independence of the judiciary is also critical in ensuring fair medical examinations of torture victims, and autopsies of murder victims as trial evidence. Particularly in cases implicating state agencies and/or officers (e. g.: the police), medical officers are often pressured to throw a medical examination in favour of the accused. The autonomy of medical officers should be guaranteed. Prison conditions should be carefully monitored and maintained by the judiciary. Judges must fulfill their obligations to regularly visit and review the conditions of state prisons. There needs to be clear provisions within the constitution that outlaw corruption as a punishable offence. The judiciary needs to take a tough stance on corruption, and should make it clear that anyone charged and found guilty of corrupt dealings, regardless of their position, wealth and/or power will be duly prosecuted under the law.

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(3)

Reforming the Police... There needs to be a systematic crackdown on corruption, bribery and organized crime within the police force. In many Asian countries, police officers are usually the ringleaders of organized crime and corruption, and exploit their positions of authority in evading prosecution. There should be a long-term and consistent system of police training to maintain a basic standard of professionalism among the police force. Failure to fulfill fundamental responsibilities in recording, investigating and submitting criminal cases and complaints for prosecutory consideration should be treated as a serious offence, and prosecutory action should be taken accordingly. Constitutional and practical mechanisms should immediately be put in place to criminalize torture as a grave human rights violation (under the UN Convention against Torture (CAT)), and should therefore be treated as such. Any police officer found guilty of torture should be duly prosecuted under the law and indefinitely suspended from service. Forcing confessions of guilt, tampering with evidence, intimidating trial witnesses and/or victims, denying defendants their right to legal representation, and sabotaging criminal investigations should be treated as serious offenses, and any officer found guilty of such counts should be immediately discharged and prosecuted under the law. All steps should be taken by the government to revoke existing privileges of prosecutory impunity enjoyed by police officers. One can hardly expect the public to obey the law, if their own law-enforcement authorities do not.

(4)

Developing a Strategy- What we can do... Where local NGOs and human rights groups may have valid security fears due to the highly sensitive nature of their work, the AHRC can act on their behalf. We must endeavor to circulate local activist literature in our countries, internationally. There should be no criteria for adjudging what constitutes a human rights violation as opposed to a regular crime: EVERY case is a human rights issue. We must turn no one away should they come to us for help. While many other human rights organizations are highly selective as to which cases they choose to advocate, we must create an environment where information is always welcome. The media should be fully utilized as a medium of communication and protest; in the modern technological era, there is no excuse for ignorance.

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Our guest-panel and the staff of the AHRC have committed to developing a more collaborative and pan-Asian campaign, and to solidify a strong network base with which to move forward in our human rights movement. A constant-running public information drive which regularly exposes known cases of corruption and government brutality will prove invaluable in raising public awareness and education on these issues, and will hopefully create in the people a desire for reform. Encouraging political discourse and debate at the local level should be seen as a topmost priority; human rights is dependent on the empowerment of the people, which is where we should align our cause. We must endeavor to develop initiatives that involve the public and public interest groups as much as possible. Drawing from the experiences of Hong Kong, we have seen firsthand the immeasurable value of public participation and support in the fight against corruption. We should look at incorporating human rights education into the national school curriculum so that our children may grow up in full knowledge of their rights and entitlements under the law. Where state mechanisms fail, NGOs have been known to step in, in a subsidiary capacity, particularly in the recording of criminal complaints and grievances which the police for the most part neglect to do. Our discussion panel unanimously agreed that for as long as it is in the best interests of the people, we should continue to do so. If this consultation has proved anything, it is that the power of protest and of political will is still very much alive in Asia, despite our current predicament. Our spirited discussions have led us to the realization that our collective voices of protest will achieve far more than our isolated and independent campaigns ever can; we are not alone in our struggle for law, peace and order in Asia, therefore we should not act alone. By solidifying our activist efforts into a single, organized pan-Asian movement, we can aim higher, and reach further. By understanding the complexities of the problem in its entirety, we can be part of the solution. We thank you for your support and hope that you will join us in our campaign. The Asian Human Rights Commission Hong Kong

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