Interventions made during the 55th Session of the Sub-Commission on the Promotion and Protection of Human Rights, Geneva, 28th July to 15th August, 2003
Question of the human rights violations and fundamental freedoms including policies of racial discrimination and segregation, in all countries, with particular reference to colonial and other dependent countries and territories: report of the Sub - Commission under Commission on Human Rights resolution 8 (XXIII)
Madam Chair,
Pax Romana would like to draw the attention of the Sub Commission to the, situation of systematic and consistent pattern of human rights in Bangladesh, Sri Lanka and Zimbabwe, particularly focusing on the issues of cleansing of religious minorities, torture and media freedom in respective countries.
The Constitution of Bangladesh is founded on four pillars: Secularism, Democracy, Socialism and Nationalism. Out of the total population 90.5% were Muslims and the rest 9.5% were of other religions such as Hindu, Buddhists, Christians and others. This ratio is of 2001 as per the Hindu-Buddhist-Christian Unity Council as there was no statistic of the government. In 1974 it was 85.4:14.6 and in 1941 it was 70:30 percent. This trend of reduction of the religious minorities is due to various factors in different time.
After the election a coalition government came into power headed by the Bangladesh Nationalist Party (BNP). The power was shared with two Islamic fundamentalist parties: Jamaat-I-Islami and Islamic Okkyo Jote (Islamic Unity Council). Awami League is the party, which fought for Liberation in 1971 and the leader of the party along with his 18 family members were assassinated in August 15, 1975. In 1978, Islamic ideology was introduced in the Constitution in place of secularism. In 1988 Islam was introduced as State Religion by the then President General Ershad while other religious people were made second-class citizens in their own motherland.
The most trouble began after this coalition government came in power. The extensive oppression on the minority Hindus, Christians and Buddhist occurred but the perpetrators remained un-punished. The most affected area was Bhola District where 90% of the Hindu women and girls were raped and gang raped, more than 50% Hindus had to flee their homes. Pirojpur, Barisal, Bagerhat, Mongla Port, Satkhira, etc. Hindu majority areas were attacked and their houses damaged, women assaulted and properties occupied. Christians were attacked in Boraigram, Chatiangacha, Bonpara under Natore District, Foiljana and Kodamtali under Chatmohor PS, Pabna District, Mr. Paul Baidhya's (75) both arms and Mr. Subal Mondol's left arm was broken by the perpetrators. Subol's wife was assaulted along with some other women in Foiljana. All these happened during broad daylight but the victims got no justice. They are still under threat by the criminals who are protected by the ruling party in the above areas.
Indigenous populations are attacked and their lands occupied in Madhupur and in Sylhet District by the majority community people. A Hindu professor was killed in his house in Chittagong under Nazirhat PS; a Buddhist monk was killed in his residence in Raozan, a Hindu priest was killed in his orphanage in Khagrachari Disctrict, a Christian preacher was killed in Manikgonj. Few of the criminals involved in these incidents were arrested but the main perpetrators remained untouched.
Government denied all these atrocities and blamed journalists, human rights activists, writers and civil society people who expressed their concerns over the incidents and visited the affected areas. They were also accused for creating communal tension.
The above scenario proves how the situation is polarized with religious intolerance in Bangladesh and how the religious minorities are leaving the country silently, seeking political asylum. That cannot be the solution of the problem. The ordinary people of Bangladesh are very peace loving and non-communal but only during the last one decade or so communal tension is continued.
Madam Chair, in the recent years, the Sri Lankan government seems to be practicing a policy of justifying torture by it's Police officers, as displayed by the Interior Minister's public utterance about "unnecessary beatings" by the Police, which directly implies that some beatings are "necessary" This is a direct failing of the government to uphold its commitments to the International Covenant on Civil and Political Rights, as well as the Convention Against Torture.
Firstly, I would like to highlight the continuing impunity of offenders, inspite of Sri Lankan law, Act. No. 22 of 1994, under which torture is recognized as a crime punishable with 7 - 10 years mandatory imprisonment and fines, but no one has been brought to trial leave alone being convicted under this Act. Furthermore, the National Police Commission, which is mandated with maintaining disciplinary issues of the Police Force, has also not acted in any way to exercise it's powers and the National Human Rights Commission too is not playing the proactive role in line with it's mandate.
Even Police officers who the Supreme Court has found guilty of committing torture are allowed to remain as police officers. To have such persons as law enforcement officers raises serious moral as well as legal concerns. In the case of Mr. Gerald Perera, who the Supreme Court awarded the highest compensation ever to a victim of torture, the concerned Police officers were allowed to continue their service and subsequently, the same OIC and officers in his charge had gone on to commit further acts of torture against two young men.
Madam Chair, Secondly, I would like to draw the Sub Commission's attention to the fact that children, as young as 10, 12, 15 and 17 have been severely tortured by Police, being accused of simple offences such as theft from school canteens. Recently, Police beat a seventy-year-old man to death and several women have also been victims of torture, including sexual harassment in the last two years and it is obvious that the Police is not sparing even the most vulnerable sectors of society from their barbaric acts.
Police stations in the country are places where an ordinary citizen would have second thoughts of stepping into, due to fear of being beaten and tortured. For the Sri Lankan Police, torture undoubtedly seems to be the best way of investigating crime.
Mr. Theo van Boven, Special Rapporteur on the question of torture, has taken up a number of torture cases with the Sri Lankan government and according to the report of Mr. Van Boven, the reply of the government clearly indicates that no one has been brought to justice.
Madam Chair, this situation violates 5 of the UDHR and article 7 of the International Covenant on Civil and Political Rights, which expressly states that no one shall be subject to torture, cruel, inhuman or degrading punishment, in whatsoever circumstances.
We request this Sub Commission, to ensure that the Sri Lankan authorities, particularly the Attorney General's department and especially it's Prosecution of Torture Perpetuators Unit, The National Police Commission and the National Human Rights Commission do all that is possible within their mandate to eradicate torture and especially to bring perpetrators to justice.
Madam chair, Pax Romana would also like to call the attention of the Sub-Commission to the situation of continuous and systematical violation of human rights, especially the rights to freedom of the Press and expression, committed by the government of Zimbabwe against the civilian population, human rights defenders, NGOs, civil society, free expression activists and the private media.
Madam chair, freedom of expression is everyone's right. Indeed, it is the foundation stone of all participatory democracies because many other rights depend upon it. Any state that undermines and diminishes this right (and the right to receive and impart information freely) undermines the practice of democracy.
Government's persecution of privately owned media institutions and their staff through the selective application of unconstitutional and anti-democratic legislation, chief among them the Access to Information and Protection of Privacy Act (AIPPA) and the Public Order and Security Act (POSA) need to be condemned. Both laws criminalize the peaceful, democratic, activities of civilians and journalists. Government should repeal these prohibitive laws and recognize the public's rights and freedoms. They violate Sections 20 and 21 of the Zimbabwean Constitution that guarantee freedom of expression and freedom of assembly and association respectively. They also violate Article 19 and 20 of the UDHR that guarantee similar freedoms.
Madam chair, the destabilization of information and debate in Zimbabwe has direct implications for the overall social, economic and political stability of the country. Powerful institutions in society - both the state and the private sector - hold information that has a direct impact on the lives of the rest of the citizenry. It (information) is an integral part of democracy and development. It is an urgent and critical necessity that the information and media environment in Zimbabwe be normalized.
Assaults on media workers and attacks on media houses are now commonplace in Zimbabwe. For example, on 18th March 2003, Gugulethu Moyo, a female lawyer who was trying to secure the release of a journalist arrested during the course of his work, was assaulted at a police station in Harare. No arrests have been effected on the perpetrators just like no one has been arrested over the bombing of The Daily News printing Press in January 2001 and the bombing of Radio VOP last August.
Some rural areas like Makoni East have been demarcated no-go areas for the private media especially The Daily News denying citizens the right to alternative sources of information.
Madam chair, it is imperative that this sub-commission does everything possible to ensure that the government of Zimbabwe repeals all unconstitutional laws; recognise and impartially enforce of rights and freedoms contained in Zimbabwe's constitution, and in the relevant regional and international agreements to which Zimbabwe is a signatory and end violence and intimidation (in all their forms) of media and information workers and institutions.
Thank you
Madam Chair,
Pax Romana would like to draw the attention of the Sub-Commission to the way justice is administered in three South African states namely Lesotho, Swaziland and Zimbabwe.
Madam chair,
The government of Lesotho has recently attempted to render irrelevant the office of the Ombudsman by tailoring the contract of the incumbent to make him answerable to the Prime Minister who also happens to be the Minister of Public Service under which the Ombudsman's office falls. The country's constitution stipulates that he should directly report to parliament.
Recently, the Chief Magistrate was removed from his post to a civil service one and the Law Society condemned the move as a calculated campaign to bring the courts of law under the control and influence of the government. The pricked conscience of the democratic-minded sections of the nation had hardly recovered from this shocking disdain for the pillars of the country's tormented democracy when a police unit ransacked the house and offices of the president of the Law Society, who was the signatory of a letter chastising the removal of the Chief Magistrate from office as unlawful.
This catalogue of closely related instances constitutes a very sombre environment in which Civil and Political rights of people are hard to be exercised.
The influence of the government over the courts of law has created an environment in which some cases are delayed to dilute evidence given to the courts of law.
Madam chair, the above facts are only a clue of how justice is administered in Lesotho. Lesotho is on record for her main Human Rights violations that include torture, ill-treatment of suspects by the police, excessive use of force by security forces a as well as political arrests and trials.
Madam Chair,
Lesotho is not the only country in South Africa that faces problems in the administration of justice. It is with great concern that Pax Romana brings the Zimbabwe situation once again to the fore. We present before this Sub-Commission our alarm at the way the Zimbabwean government is influencing and tailoring the judiciary in that country. Early this year, a High Court judge was arrested from his chambers for allegedly obstructing the course of justice in a matter involving one of his acquaintances. The particular judge has a history of passing judgements perceived as unfavourable to the authorities, including his order in January to release the opposition Harare Mayor after he was arrested for holding a town meeting without police authorisation.
Madam chair, the executive in Zimbabwe should learn to respect the sanctity and authority of the judiciary. We note with great concern utterances recently made by the executive that it will not respect court rulings that it thinks are not objective. Madam chair, the government of Zimbabwe should stop abusing its powers by invoking the Temporary Presidential Powers Measures Act in order to overturn court rulings as what happened in March 2002 a few days before the presidential election. In this particular case, the President re-introduced an electoral law that had been thrown out by the High Court.
Another serious cause of concern is the way the government has been handling "retirement" and recruitment of judges under very controversial circumstances. The first victim was former Chief Justice Antony Gubbay. He was replaced by Chief Justice Godfrey Chidyausiku who, in 1999, was the chairman of the government-sponsored constitutional reform, whose draft constitution was rejected by Zimbabweans. Unfortunately, Madam chair, the trend spread to other judges perceived to have been making anti-government rulings. Recently, the Attorney General went on an immediate and early leave pending "retirement". There had been talk, Madam chair, that his office was failing to prosecute what Zimbabwe Information Minister called "opposition thugs and criminals".
Madam chair, the Zimbabwean government should stop circumventing court rulings and using its executive powers. Recently a Mail and Guardian journalist and permanent resident of Zimbabwe, Andrew Meldrum was deported against three High Court orders barring government from doing so. The High Court had initially blocked the deportation of Meldrum last year after he was acquitted by the courts.
Madam chair, everyone has the right to be heard in a reasonable time but Zimbabwe courts are delaying justice unduly. For example, the opposition filed court petitions just after the June 2000 General Elections and up to now most of the cases are still to be resolved while the challenge to last year's presidential election is still to be heard.
Madam chair,
Swaziland's judiciary has also been in tatters, with the Swazi government interfering with the Judiciary. In November last year, the Director of Public Prosecutions (DPP) was taken from his home in the middle of the night to a clandestine meeting with the Attorney-General, the Prime Minister and other high-ranking government officials where he was 'advised' to withdraw charges levied against the Attorney-General for sedition and contempt of court, or resign. He was further informed that failure to cooperate would lead to his deportation.
Madam Chair, the Kenyan born DPP, Lincoln N'garua, brought charges against the Attorney-General because of an ultimatum that he had issued to the Chief Justice and two other High Court judges who were presiding over an unprecedented legal challenge by amother who claimed her daughter was abducted by King Mswati III's aides.
On November 1 last year, judges of the High Court were officially informed in writing by the Attorney-General that if they continued hearing the case laid before the court by the abducted girl's mother, they must resign immediately after issuing their judgement. If they failed to do so, arrangements would be made for their removal from office.
This written order came two days after the chiefs of staff of the army, the police and correctional services and the Attorney-General met privately with the three judges to convey a message from the Royal Palace that the judges must stop hearing the case or resign.
Madam chair, there will be no independence of judiciary in Swaziland if this Sub-Commission does not see to it that it attends to the interference of the judiciary in Swaziland. The newly issued law, Decree No.2, which confirms that the appointment of the judges is at the sole discretion of the King who also determines the terms and conditions of such appointment, represents an attack on the independence of the judiciary and removes the right to legally challenge the actions of the Executive.
This Decree lays down harsh penalties for any person who fails to obey any order made by the King or offends against the dignity or office of the King or the Queen Mother. Any one convicted could be imprisoned for up ten years or fined US $6 000.
In conclusion Madam Chair, the wide and vaguely phrased offences, together with the reinstatement of the Non-bailable Offences Order, have increased fears that government critics will be subjected to arbitrary detention or politically-motivated prosecutions solely on the grounds of the peacefully held political beliefs.
The governments of the three countries mentioned are recommended to observe and respect article 26 of the International Covenant on Civil and Political Rights to which it is a signatory.
On behalf of:
International ALLIANCE OF WOMEN; International ASSociation for religious freedom; International MOVEMENT AGAINST ALL FORMS OF DISCRIMINATION and racism (imadr); LUTHERAN WORLD FEDERATION; NEW HUMANITY; INTERNATIONAL ORGANISATION FOR THE RIGHT TO EDUCATION AND FREEDOM OF EDUCATION (OIDEL); Soka Gakkai International UN LIAISON OFFICE; WORLD FEDERATION OF METHoDIST AND UNITING CHURCH WOMEN
Madame Chair,
I speak on behalf of 8 organizations who strongly believe that human rights education has a key role to play in promoting good governance and the rule of law, and help ensure that international human rights standards are respected and implemented in every domain of governance in all nations.
During the last session of the Commission on Human Rights, (x) organizations that co-signed this statement came together in support of Costa Rica's initiative to launch a second UN decade for Human Rights Education (HRE) to run from 2005 to 2014. Although the first decade was unanimously proclaimed by the General Assembly in 1994 only a few states have taken concrete steps to initiate national HRE programs. And, though resolutions have been adopted by consensus every year since, the International Community has not been forthcoming in supporting enough the coordination role of the Office of the High Commissioner.
In 2001, halfway through the Decade, and in the light of the High Commissioner's mid-term evaluation report A/55/360, we had felt that it was time that the International Community not only advocate further the principle of human rights education - which is said to be widely acknowledged - but take immediate action to meet the goals set out by the Decade framework. Though the Decade has acted as a catalyst for some governments and has generated some funding for NGOs, the report stressed the persistent discrepancy between the intentions initially proclaimed and their implementation. NGOs had recommended that the conclusions of the mid-term report be taken into account by the Commission on Human Rights and, as a result, it was decided that these recommendations be an integral part of the 2001 resolution on the Decade for HRE. As of today, this resolution remains a very comprehensive document and an important stepping-stone for further action on the part of the International Community.
In the wake of the recommendations we submitted to the Commission in 2002 on behalf of 91 supporting NGOs, this year, our efforts were aimed at promoting a concise and pragmatically oriented resolution in order to build on the conclusions and recommendations of the mid-term report and to set a limited number of priorities for the years to come. The outcome was a little disappointing, as the resolution adopted by the Commission did not retain the idea of a second decade on HRE. However, upon close scrutiny it appears that we may anticipate further positive developments provided efficient lobbying to governments and national human rights institutions is carried out in the coming months. Needless to say, the support of the Sub-Commission is much needed in this regard.
We do hope that the Members of the Sub-Commission give proper consideration to the views of governments, national institutions and NGOs reflected in the report of the OHCHR on the follow-up to the Decade (E/CN.4/2003/101) which was before the Commission in April-March this year as requested in Commission resolution 2002/74 0P. 17.
Let me briefly highlight the main findings of the report:
First of all, the input received by the Office strongly supports the idea of a second decade, considering that HRE is a long term process and that the current decade has been useful to those institutions, governmental and non-governmental, who have used the opportunity to initiate national and regional partnership programs. Although the overall objectives of the Decade are not being met, it is essential to maintain - I quote from the report "some focus at the international level on human rights education, including funding for related activities" and "to provide Governments which have not given attention to human rights education the opportunity to start programs based on the experiences of other countries and institutions."
Secondly, many actors have stressed the importance of establishing a voluntary fund for HRE as already set out in the Action Plan of the current Decade. Such a fund would be administered by the OHCHR and would be aimed at supporting civil society HRE activities. The need for establishing a voluntary fund was first stressed in Vienna in 1993. It has been mentioned repeatedly in Commission and GA resolutions as a possibility requiring further study by the International Community, but no progress has been made in this regard.
Thirdly, an important issue of international monitoring mechanisms for HRE activities is still to be addressed. The High Commissioner's report mentions as a suggested course of action "the establishment of an intergovernmental or of a joint governmental/non-governmental committee, including major human rights education actors, to develop both monitoring systems and ongoing assessment of human rights education efforts, as well as the development of a specific normative instrument focusing on human rights education".
Although the potential of existing monitoring mechanisms for advancing human rights education, such as the Special Rapporteur on the right to education and the Treaty Bodies, has been acknowledged and recommendations to include HRE on their agendas have been made, these mechanisms have achieved little results since their attention has not been sufficiently focused on HRE. Surprisingly, it still remains unclear to many governments that the promotion of HRE is an obligation under the existing instruments. This is why we believe that clarification as to the binding nature of the right to human rights education, at this point in time, has become necessary.
Let me now reflect briefly on the role of the Special Rapporteur on the right to education. Though many have suggested that HRE should be an integral part of her mandate, Ms. Katarina Tomasevski has repeatedly stated that there are many other priorities she must address, such as access to primary education, the struggle against illiteracy, and equal opportunity for girls and women, to mention only a few. Certainly, HRE should not be viewed as a separate domain in the implementation of the right to education but as central with regard to the universal nature of this right and its role in conveying a universal message. Yet defining HRE solely in the wake of efforts to promote the right to education may undermine efforts to bring HRE out as a key element of a more comprehensive agenda.
If we are to recognize the cross-sectorial impact of HRE, education and training for all personnel engaged in the administration of justice and law-making procedures should clearly be one of the main objectives of the Decade. Yet, efforts to overcome educational deficits should not only be aimed at improving the transmission of knowledge and know-how in government but also be aimed at promoting empowerment as a precondition for the establishment of good governance and the rule of law. Human rights education has an important role to play with regard to the promotion of transformational models in community development as well as models aimed at promoting greater accountability in government, judicial systems and multinational corporations. I should add that HRE also has a key role to play in post-conflict reconstruction and in the transition from autocratic rule to democratic participation. These objectives, Mme. Chair, are clearly beyond the scope of the mandate of the Special Rapporteur on the right to education.
To conclude, Mme chair, we believe that the proposal to launch a second decade for HRE is both timely and realistic. With regard to objectives however, we suggest that the International Community focus on the promotion of specific HRE issues and the implementation of measurable targets over periods of two to three years rather than on a comprehensive agenda which, so far, has proven unsuccessful, perhaps because too broad in scope.
Taking into account these views and the views expressed in the High Commissioner's report, we do hope that the members of the Sub-Commission will invite the Commission to recommend that the General Assembly declare a second Decade for HRE to begin in 2005.
I thank you for your attention.
Administration of Justice - Discrimination against Human Rights Defenders and limitations of national remedies - the case of Sri Lanka
Madam Chairperson, in the light of the preliminary paper of Ms. Leila Zerrougui, on the Discrimination in the criminal justice system and its special focus towards vulnerable persons and detecting discriminations in matters relating to procedure as well as substance, we would like to bring to the attention of the Sub Commission the challenges faced by Human Rights Defenders in obtaining redress through national justice systems.
In many instances, state officials, especially the police and security forces regard Human Rights Defenders as persons who obstruct their work and they are subject to harassment. In such situations, the Human Rights Defenders have to fall back on the justice system, but unfortunately, in many countries, the wheels of the justice system too seems to discriminates Human Rights Defenders.
To illustrate the situation, we would like to present the case of Sri Lanka, and in particular, the case of Mr. Michael Anthony Emmanuel Fernando, a Human Rights Defender, who remains unjustly imprisoned since 6th February 2003, in what the UN Special Rappoteur on the Independence of Judges and Lawyers, Dato Param Cumaraswamy, has termed "a flawed judicial process". Mr. Fernando, who is the Secretary of the Lakjana Human Rights Organization, was convicted for contempt of court by the Supreme Court of Sri Lanka while presenting a writ before the same court, and sentenced to one years rigorous imprisonment. We consider the sentence as excessive, for a charge of contempt of court, especially considering the fact that Mr. Fernando is not a lawyer and that he was conducting his own case at the time of sentencing.
1. According to article 14 of the ICCPR, to which Sri Lanka is a party, everyone is entitled to a fair hearing by an impartial and independent tribunal. In Mr. Fernando's case, he was clearly denied a fair hearing, and the tribunal was not independent, nor impartial, as one of the respondents, the Chief Justice, Honourable Sarath N. Silva, himself was part of the presiding panel of judges hearing the case. Mr. Fernando's written motion before the case was taken up and the oral application in court, requesting that the Chief Justice not be a member of the panel of judges, was ignored.
This was also in violation of section 49 (3) of the Sri Lankan Judicature Act, which stipulates that any judge who is a party to or personally involved in a proceeding or matter, should be heard by another judge.
Moreover, we also submit that this judicial process was contrary to principles of natural justice.
Thus, not only was Mr. Fernando's Human Rights violated under article 14 of the ICCPR, but the conviction and sentencing of Mr. Fernando by the panel of judges was made without jurisdiction and thus, the said order has no legal standing, which follows that the conviction and the sentencing is also invalid.
2. Furthermore, Mr. Fernando's rights under article 14.3c of the ICCPR was also violated as,
3. Madam Chairperson, based on the above facts, Mr. Fernando made a revision application to the Supreme Court, which was heard by the same court on 2nd June. Again, the Chief Justice was a member of the panel of judges, again denying the applicant a fair hearing under an independent and impartial tribunal and thus violating article 14.1 of the ICCPR. On 17th July, the said panel of judges rejected Mr. Fernando's revision application, ignoring the UN Special Rappoteur´ss call to "remedy the injustice" and public outcry locally and internationally.
4. Madam chairperson, since the decision was by the highest court in the country and the same court also rejected the revision application, there exists no other national mechanism for the victim to seek justice. Thousands of Sri Lankan people and many organizations, as well as the international community have appealed to the government, but the government is either reluctant or unable to ensure justice to Mr. Fernando.
5. Furthermore, inspite of the special interest and efforts of the UN Special Rappoteur on the Independence of Judges and Lawyers, the submission made during the 59th session of the Commission on Human Rights and the individual communication to the UN by the victim, Mr. Fernando remains a prisoner todate. We would also like to note that Mr. Fernando has been tortured while being taken to prison and denied access to proper medical care and clothing while in custody.
6. Madam Chairperson, this case is just a current example of the fate of Human Rights Defenders who seek justice from national justice systems. In this context, where there is no protection from the justice system itself, Human Rights Defenders are even more vulnerable in promoting and protecting human rights. This type of situation results in Human Rights Defenders losing their confidence, faith and trust in the national justice system. In the larger context of the lack of confidence of the poor, marginalized people in the justice system, this is an alarming trend.
7. It should be noted that Mr. Fernando is not the first person to file fundamental rights petition against the Chief Justice in Sri Lanka. Infact, the present government itself had brought a motion of no confidence against the same Chief Justice, when it was in the opposition. In the words of the UN Special Rapporter on the Independence of Judges and Lawyers, "The Supreme Court of Sri Lanka has done an act of injustice. A man who came to seek justice was served with injustice".
8. Madam Chairperson, as mentioned above, Mr. Fernando remains a prisoner todate. Since all domestic remedies have been exhausted, we urge this Sub Commission to urge all relevant UN bodies and agencies to prevail upon the Sri Lankan government to ensure that justice is done to Mr. Fernando and credibility of the Supreme Court and Justice system in Sri Lanka is restored. We believe that as long as the judgment in the case of Mr. Fernando's case is not reversed, Mr. Fernando is not released and duly compensated, it is impossible to regain confidence of Human Rights Defenders and marginalized people in institutions and systems entrusted with the administration of justice in Sri Lanka.
9. We also request the Special Rappoteur to pay special attention to the situation of Human Rights Defenders, viz a viz the justice systems, as she continues her study.
Thank you.
Thank you Madam Chair. I speak on behalf of Pax Romana, on 8(b) Problems in prosecuting sexual assault, especially the problem of rape. First of all I thank the Sub-Commission for considering this issue of sexual abuse seriously. I would like to bring the attention of the WG on the alarming situation of sexual abuse in the schools. The schools are no longer a safe place for children. I had dealt with few incidents of sexual abuse in schools in Tamil Nadu, India. The experiences are painful.
We have also noticed that the domestic mechanisms are often irrelevant and inadequate. In one of the major cases of sexual abuse in a college, where the alleged accused are some higher authorities the women's commission didn't turn up even though the students and human rights organizations appealed the State women's commission to conduct a inquiry.
As you know sexual abuses in campuses are quite rampant. There have been few alleged cases of sexual abuses by the professors. Students are afraid of being re-victimized by placing the case before the court.
In this circumstance what could be the alternative inquiry process or mechanisms, which can render Justice to the young women and children.
Thank You Madam.
Pax Romana welcomes with deep appreciation the final report on Globalization and its impact on the full enjoyment of the human rights (E/CN.4/Sub.2/2003/14) of Mr.Oloka-Onyango and Ms. Deepika Udagama. We call upon the Sub-Commission to the Section 5 of his report that Sub-Commission should remain seized and continue dialogue between the Sub-Commission and principle actors involved in the process of globalization in particular WTO, IMF, WB and other multilateral Forums including the World Water Forum. Equally important is the Annex attached to the final report in the part of Group and Culture Rights as well as Environment and human rights in the context of right to life, right to safe drinking water and right to healthy environment.
Pax Romana has been involved with the working group on TNCs. In this connection we welcome the proposal made by Mr.Bengoa to include the Declaration on Right to Development in the preamble. We also welcome the proposal made by Ms.Hampson on the role of NGOs in the implementation of the norms. Furthermore, we urge the member States of UN to give due consideration to the norms when they enter into agreement with TNCs as well as local companies in the process of trade liberalization, and privatisation. In this regard it will be equally important to integrate the norms into the national protection system as envisaged by the OHCHR and that the OHCHR under the Global Compact of UN can maintain oversight regarding business and human rights.
Pax Romana welcomes the presentation made by Mr.Guisse on right to safe drinking water. It would be important in his forthcoming report to have a more substantial review of Johannesburg Declaration on Sustainable Development and the plan of implementation, which include substantial enumeration on water from a right-based approach. Given the fact that UN has announced this year to be the International Year of Fresh Water, all aspects concerning the privatisation of water actively promoted by WTO, as well as International Financial Institutions merits rigorous consideration prior to arriving at a Declaration. It would be helpful for the expert to work with the Commission on Sustainable Development.
In India, the Coca Cola Company, which is situated in the state of Kerala, one of the most fertile states in India, left the local community to beg for water everyday. The Coca Cola Company for its maximum consumption of water dug deep giant bore wells, which extracted the locality's entire water. It also dumped its waste in the nearby locality. These people lost their control over their own natural resources and their daily lives became a misery without drinking water. They pleaded for water for agricultural purposes and received none. This has led to economic devastation due to unemployment in this agricultural sector. After the people's long struggle for their rights on their own natural resources the Coca Cola plant, without taking any responsibility, has merely moved to another area called Sivangangai in the State of Tamil Nadu. At present the locals of Sivagangai are in serious risk of losing their water. Apparently, the Coco Cola Company is operating without any rights norms. The government authorities have failed to monitor their activities.
Through the agenda of WTO and conditionality imposed by IMF and WB, water becomes a marketable commodity instead of a natural resource. The privatisation schemes have resulted in the local population taking almost all the risks while the TNCs or even local elite companies get the benefits in profits. The quality of water which is generally available, and accessible becomes expensive which is hard for the poor to afford. Moreover, it's taking away the substantial portion amount of meagre income. Water becomes a luxury and available only for those are able to afford it. Besides it has a large impact on rural population engaged in agriculture who constitute the largest consumer of water and on which food production depends.
This privatisation practice has serious impact on a number of Millennium Development Goals particularly the eradication of poverty. I quote, "The plight of the world's poor cannot be alleviated without addressing the quality of the resource base upon which they depend - land and water resources. The improvement of water use is central for all of the other dimensions of sustainable development." (Nitin Desai, Secretary-General of the WSSD).
Whenever and wherever big and powerful corporations and multi-nationals privatize these basic services, the poor people, economical minorities, and indigenous people are the most vulnerable victims. The privatization has deprived the poor and other vulnerable groups like minorities, urban and rural poor, women and children from the right to water, right to life, right to health and consequently the right to development.
Water should be treated as a social and cultural good, and not primarily as an economic commodity. I quote "Water is probably the only natural resource to touch all aspects of human civilization - from agricultural and industrial development to the cultural and religious values embedded in society." (Koichiro Matsuura, Director'General, UNESCO)
Consequently, Pax Romana urges governments:
We also request the Sub-Commission to continue to carry out a more in-depth study on privatisation concerning the full enjoyment of all rights. It will be helpful to introduce these key elements including the rights to safe drinking water in the dialogue with WTO and International Financial Institutions.
Madame Chairperson, Pax Romana welcomes the preliminary working paper submitted by Mr.Bengoa concerning the implementation of existing human rights norms and standards in the context of the fight against extreme poverty (E/CN.4/Sub.2/2003/17). Here we draw attention to the UNDP Human Development Report 2003 that "there is little hope of Africa in meeting the 2015 goals; on the present trend it will be 2147 before the poorest country in the poorest continent halve poverty and 2165 before child mortality falls by two third". Hence we urge the Sub-Commission to finalize with urgency and immediatly the conceptual framework for the elaboration of guiding principles on existing human rights norms and standards in the context of the fight against poverty, including extreme poverty.
Thank you
Mr. Chairperson,
Mr. Chairperson, in reviewing the Norms presented, Pax Romana wishes to raise some specific concerns based on ground realities:
Mr. Chair, address in the general provisions of implementations under section H, as well as the general obligations under section A, there is an urgent need to be specific in mentioning the focal point within the State machinery for compliance and enforcement. As was said often at the WSSD 2002, many State obligations are rarely well-coordinated among the line ministeries within a State machinery. For example between Trade, Environment and Foreign Affairs. This was particularly mentioned by an high ranking UNECE officials even in the case of European countries. Hence this question of implementation deserves much more rigorous attention.
Concluding, Pax Romana suggests that the implementation could be situated within the national protection system as envisaged by the Office of the High Commissioner for Human Rights.
Thank you, Mr. Chairperson.
(c) Prevention of discrimination and protection of minorities
Pax Romana welcomes the report of Mr Eide on peaceful and constructive approaches to situations involving minorities, which highlights the application of universal human rights to such persons, thus the emphasis is on the political rights of minorities.
Pax Romana, would like to draw the attention of the Sub-Commission on the situation of religious minorities in many countries particularly in the South Asia countries- India, Pakistan, Bangladesh and Nepal. These states fall under the concept of One State-One Religion? This dangerous concept causes polarization among the communities of majority and minority and results in minorities living in fear. In India, the trend of ‘terrorizing?minorities has become alarming especially after the brutal attack and killing of thousands of innocent minorities in Gujarat. Justice has not been accorded to victims of the Gujarat carnage who continue to live in fear. Instead of prosecuting the perpetrators of the crime, the State protects them contrary to Art.2 of CERD to which it is a party. Furthermore, it has allowed these perpetrators to use state resources such as school premises for hate campaigns against minorities, and give full police protection to the leaders of these organizations.
The State has legitimized the action of these ‘non-state?actors by the enactment of the Anti-Conversion Bill in the State of Tamil Nadu and Gujarat. This violates Article 25(1) of the Indian Constitution which guarantees citizens the right "to freely profess, practice and propagate religion,'' and conflicts with basic fundamental rights established by the UDHR, the Declaration on minorities and other treaties. Dalits, who for centuries have been discriminated on the basis of descent and work, are denied their religious rights by this law. In addition, since the implementation of this ambiguous law, human rights activities of human rights defenders, themselves minorities, are being challenged and their persons threatened.
In recognition of this alarming reality, Pax Romana urges the Working Group on Minorities to ensure that practical action is taken to address these gross human rights violations adequately. Recalling the words of the CERD president to the Sub-Commission that it studies the relationship between racial discrimination and ‘discrimination based on religion? Pax Romana asks that the Working Group on Minorities focus on ‘discrimination based on religion?in the political context, and thereby make a crucial distinction between different forms of discrimination.
In this view, Pax Romana welcomes the Working Group’s decision to hold the sub-regional seminar in the South Asian Region and to transmit the "Statement of Principles?’’, to be discussed then, prepared by the International Centre for Ethnic Studies to concerned Governments. We hope that this will lead to the national review of policies and legislation relating to minorities, and will ensure their conformity with international standards. We urge that this seminar also aim to study the relationship between state and non-state actors, and that the OHCHR takes all the necessary steps to ensure participation of grass-root minorities, especially the victimized minority women.
Pax Romana also draws the attention of the Sub-commission, on the consistent pattern of violations of human rights of Karen and Shan ethnic minorities in Burma. We welcome the ECOSOC resolution of July 2003 to extend the mandate of the Special Rapporteur on the human rights situation in Burma. In the midst of a decade-long civil war and unsolved political complexities, the ruling military has extensively discriminated against ethnic minorities with impunity.
To illustrate one of the situations that took place throughout April, May, and June of this year, the State Peace and Development Council military troops came to Karen ethnic villages located at Tha-Ton, Toungoo, Pa-an, Pa-pun, Doo-play-ya Districts, and demanded that the villagers supply food, livestock, clothes and money to the military. They also commanded villagers to construct and repair mortar roads and army camps by cutting their own bamboo without any payment and food. The villagers were forced to carry rations and other supplies for the troops. Among these forced labourers were mothers who had to carry their babies while carrying the supplies. The villagers were sometimes tortured, beaten, and shot without any reason. Moreover villages were under the threat of being burnt if they failed to meet their demands. Sometimes, when the soldiers fired guns and villagers ran and hide, troops looted and deserted houses. In addition, there is no minority participation in public life and development; the free practise of their culture, linguistic and political rights is unimaginable.
In view of this, Pax Romana reiterates the proposal of the Sub-Commission members and other NGO’s–there is a need of a special mechanism for Minorities and immediate action in light of the gross human rights violations of minorities. Such a mechanism would have a specific mandate to receive communications on violations of minority rights and could engage in preventative diplomacy with the parties concerned. Hence, we urge to the sub-commission to recommend the Commission to set up special mechanism for minorities.
Thank you.
c) New priorities, in particular terrorism.
PAX ROMANA CENTRE UNESCO DE CATALUNYA
Mr(s) Chairperson,
1. Under this agenda item, where the Subcommission is requested to consider new human rights, Pax Romana and the UNESCO Centre of Catalonia strongly urge this body to include a reflection on the right to self-determination, which it has sidelined for almost a quarter of a century, but which we deem necessary to include for the following reasons:
2. Globalisation is challenging traditional notions of state sovereignty, which is being continuously relativized. Contemporary examples around the globe testify that under these impulses the right to self-determination can be exercised through innovative forms of power-sharing, diffusing simplistic fears that its' exercise leads to the creation of new states. Several efforts to reframe self-determination in a broad sense have been proposed. Self-determination in a broad sense can no longer be seen as tantamount to the unilateral right to independence but should be recasted as the right of peoples to negotiate their status in relation to the state/ regional/international frameworks. Since intra-state conflicts is the dominant major type of conflict world-wide, the UN has to address this issue if it wishes to preserve its pivotal role as a guarantor of international peace and security. Moreover the principle of and the right to self-determination is a major factor when analysing the civil, political, economic, social and cultural impact on globalisation on the enjoyment of human rights.
3. The UN has wrongly assumed that self-determination is not longer an issue since the proclaimed end of the decolonisation. Consequently it has not been a priority of the UN human rights bodies. While the activities of human rights treaty monitoring bodies contribute to the implementation of the human rights goals by analysing reports of States parties, these bodies consider country policy, law and practice, and advise Governments on shortcomings and possible improvements. The treaty bodies through their general comments contribute to the clarification of the legal and policy ramifications of the implementation of the human rights standards thus providing an invaluable input to the concretisation and realization of the goals. Yet no treaty body is monitoring the duties of governments to protect and promote the right to self-determination of peoples under their rule as a part of their contractual obligations under international law The Human Rights Committee is the only positive exception. Since 1999 it has been requesting State Parties to the International Covenant on Civil and Political Rights (ICCPR) to report on the implementation of the right of indigenous peoples to self-determination, as a part of their international legal obligations. This important legal precedent needs to be encouraged and extended.
5. Special mechanisms of the Commission on Human Rights (e.g. special rapporteurs and independent experts), provide advice to Governments, nongovernmental actors, and international organizations on various aspects of the implementation of human rights. While the Commission on Human Rights has several mandates side linked to the question of self-determination, a transversal mandate showing the links with self-determination and other mandates has never been adopted. Nevertheless noteworthy conceptual and political developments in this field are currently taking place within the framework of the UN Working Group on the Draft Declaration of Indigenous Peoples
6. While several UN Subcommission's subsidiary bodies deal with self-determination-related issues, the Working Group on Minorities is ill fit for this task since minorities are not entitled to a collective right to self-determination. An in-depth analysis by the Working Group of Indigenous Peoples would be helpful though necessarily incomplete, as it would only address the right of indigenous peoples to self-determination, and not that of peoples in general. While, as a body of independent experts, the Subcommission is the organ par excellence to study this matter, it abstained over the last 24 (!) years from reviewing and updating the findings by Special Rapporteurs Hector Gross Spiell and Aureliu Cristescu in the light of current developments. However, the UN is increasingly called upon to address this urgent matter.
6. UN peace and security bodies now actively apply new conceptual tools to exercise this right, yet always on an ad-hoc basis, reacting ad posteriori to the emergence of conflict on the ground. Yet no thorough UN system-wide reflection guides the UN policy. This increasing gap leads to arbitrary and discriminatory applications in the access to and enjoyment of the right to self-determination. The ensuing injustice is a time bomb under the UN that fuels rather than prevents or resolves conflicts for putting it's credibility at stake. In this respect it should be observed that the cost of the UN's passiveness in addressing the conflict preventative and resolving potential of this right far outweighs the --politically motivated-- alleged benefits of its immobility that causes thousands of casualties every day.
Conclusion: an urgent need for a working paper reviewing UN human rights mechanisms for the effective protection and promotion of the right to self-determination
7. In conclusion, while it is a main duty of States to realize the right to self-determination of peoples under their rule as part of their international legal obligations, the UN's human rights machinery is urgently called upon to advance towards a human rights approach to exercising the right to self-determination in a balanced way
8. We therefore recommend to the Subcommission on the Promotion and Protection of Human Rights to make a working paper without financial implications that reviews the work of the Subcommission between 1981 and 2002 in the field of promoting and protecting self-determination, including an overview of all existing mechanisms, procedures and programmes within the United Nations that contribute to the promotion and protection of this right.
Self-determination in a broad sense can be defined as "ongoing process of choice for the achievement of human security and fulfilment of human needs with a broad scope of possible outcomes and expressions suited to different specific situations. These can include, but are not limited to, guarantees of cultural security, forms of self-governance and autonomy, economic self-reliance, effective participation at the international level, land rights and the ability to care for the natural environment, spiritual freedom and the various forms that ensure the free expression and protection of collective identity in dignity" UNESCO/ UNESCO Center of Catalonia conference The Implementation of the Right to Self-determination as a contribution to conflict prevention"(Barcelona, 1998), p.19
See e.g. UN doc CCPR/C/79/ Add.105 (April 1999) (Concluding observations related to the Periodic report of Canada) and UN doc CCPR/79/Add.109 (October 1999) (Concluding observations related to the Periodic Report of Norway)
Eg. Those of the Special Rapporteurs on the right to development, on the situation of human rights and fundamental freedoms of indigenous people etc
Hector Gross Spiell. , The Right to Self-Determination. The Implementation of UN Resolutions (E/CN.4/Sub.2/405/ Rev.1) 1979 and Aureliu Cristescu. The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments E/CN.4 / Sub. 2 / 404 / Rev. 1, 1981
See among other Tom Hadden's paper to the UN Working Group on Minorities E/CN.4/Sub.2/AC.5/2003/WP.1, parra 38 (c) : "There is likely to be a need for discussion and guidance on the potentially controversial issues of self-determination or autonomy and their relationship to territorial integrity; the emphasis should be on practical solutions based on consideration of past and present status and the distinction between territorial and other forms of functional or cultural autonomy" .
the UN brokered Peace Agreement between Papua New Guinea and Bougainville provides for a large and doubly entrenched self-rule arrangement with the with a final status referendum to be held in 10-15 years. In his controversal Peace Plan for Self-determination of the Western Sahara UN Special Representative James Baker is also exploring ways forward in a similar direction. At the proposal of the UN, Cyprus of the 21st century was to be remodelled on a confederal basis.