Asian Chart Errol 2007

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The Asian Hum an 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

R E P O R T

Edited by

Shalini

The Asian Human Rights Commission Hong Kong


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The Asian Human Rights Charter on The Rule of Law


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C O N T E N TC O N T E N TC O N T E N TC O N T E N TC 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 otherAsian countries?

The Right to Information (RTI) Act: An IndianSuccess story

The Karuna Trust- Health as a fundamental humanright

Question and Answer session with Mr. JohnClancey, Chairman of AHRC

Money, Money, Money!

Indonesia: From Bad to worse to.........

Sri Lanka: A sorry story

Conclusions

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Introduction

The Hong Kong-based Asian Human Rights Commission (AHRC) held its Second

Annual Consultation on Executive Control of the Judiciary and JudicialCorruption in Asiafrom 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 Charterin 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 cometo 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 eliteclass 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

REPORT OF THE CONSULTATION

ON THE RULE OF LAW


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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 NAME PROFESSION

BANGLADESH Dr. Nazrul Islam Professor of Law:

University of Dhaka.

CAMBODIA Mr. Bun Rithy Human Rights Lawyer/Provincial

Officer: Cambodian Defenders

Project.

CAMBODIA Mr. Ly Ping Lawyer/Court Monitor:Centre for Social Development.

CAMBODIA Mr. Ly Tay Seng Secretary General:

Cambodian Bar Association.

CHINA Mr. ZHANG Wanhong Professor of Law:

Wuhan University School of Law.

HONG KONG Mr. Raymond SO Wing Keung Principal Investigator:

Independent Commission Against

Corruption (ICAC).

HONG KONG Mr. John Clancey Solicitor/Human Rights Activist/

Chairperson of the AHRC.

HONG KONG Mr. Cheung Yiu Leung Barrister/Board of Directors of

the AHRC.

HONG KONG/ Mr. Basil Fernando Lawyer/Executive Director of

SRI LANKA (Moderator) the AHRC.

HONG KONG/ Mr. Bijo Francis Lawyer/ Programme Officer of

INDIA (Moderator) South Asia Desk: Asian Legal

Resource Centre (ALRC).

INDIA Mr. Aravind Kejriwal Human Rights Activist/ Mechanical

Engineer: Recipient of the 2006

Ramon Magsaysay Award for Emergent

Leadership.

INDIA Dr. Sudarshan Doctor: Vivekananda Girijana

Kalyana Kendra, Karnataka.

INDIA Mr. Jijo Paul Lawyer: High Court of Kerala

INDIA Mr. Salar M. Khan Lawyer: Supreme Court of India.


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INDONESIA Mr. Danang Widyatmoko Indonesian Corruption Watch.

NEPAL Ms. Mandira Sharma Executive Director: Advocacy

Forum, Kathmandu, Nepal.

PAKISTAN Justice Rasheed Razvi Judge: High Court of Sindh Province.

PHILIPPINES Mr. Hernando Pagluanan Lawyer.

SRI LANKA Mr. Ratnavele Attorney at Law:

Supreme Court of Sri Lanka.

SRI LANKA Ms. Sharmaine Gunaratne Attorney at Law:

Supreme Court of Sri Lanka.

THAILAND Mr. Somnuek Tumsupat Lawyer.

THAILAND Mr. Adilan Ali-Ishak Lawyer.

THAILAND Ms. Noi 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


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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, ExecutiveControl & 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.

Asia: Rule of Law and Elimination of

Corruption1

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


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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 inturn 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 andpractices 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.


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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 institutionsare 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 corruptionOften 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 policingAt 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 prosecutorsProsecutors 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 officersoften fails and there are various ways by which illegal practices are devised or allowed

to go on.


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Corrupt judgesIn 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 thehighest 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 deliberatelyto 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 corruptionJustice 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 nopossibility 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 resolutionOne 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 areturn 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 aretrying 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 disputeresolution 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 eliminatecorruptionTo devise and establish an agency able to eliminate corruption requires serious

policy decisions on how to overcome weaknesses of law and its implementation towipe 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 ensurethat 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 prosecutingbranch 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.

ModelsThe 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 corruptionDocumentation 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 audiencesthrough 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 corruptionThe 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 corruptionThe 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 thecredibility 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 movementThe participants agreed to develop various methodologies for the purpose of betterunderstanding, 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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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 toextend 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 upto 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

The meeting:

Introductory presentation by Mr. Basil Fernando


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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-of-law. 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 toconform 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 adaily 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. Butwhen 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. Themilitary 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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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 inHong 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 part-

and-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, anddemanded that the Government take immediate steps in combating the Rule-of-

corruption which had infiltrated all levels of society and state. This eventually led

to the establishment of the ICAC.

Hong Kong as a model for

clean politics in Asia


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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;

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 long-

term strategy of educating both the Government and the public on matters of

e f f ec t i ve and e th i ca lgovernance. 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 thaneffective, and is the guiding

principle behind the ICAC

today.

COMMISSIONER

OPERATIONS

DEPARTMENT

CORRUPTION

PREVENTION

COMMUNITY

RELATIONS

Receives, processes

and conducts investiga-

tions into allegations of

corruption.

Takes direct prosecutory actiona g a i n s t t h o s e g u i l t y o fcorruption.Examines and eva luatesGovernment departments andagencies for possible loopholesof justice.

Offers corruption preventionadvice to private companies.

Handles the matter ofpublic education andawareness on the evilsof corruption, and enliststhe support and involve-ment of civil society incombating corruption in

Hong Kong.


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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. Sospresentation, 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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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 high-

risk 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

Can we replicate the Hong Kong

model in other Asian countries?


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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. Soresponded: A determined Government, political will and finding the right

people for the job.


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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 forEmergent 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) Request specific government records, reports and documents.

2) Inspect government records, reports and documents.

3) Make copies of government records, reports and documents.

4) Investigate government work and ongoing projects.5) 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 deductionof their salary from the 31st day onwards.

The Right to Information (RTI) Act:

An Indian success story


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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 civilliberties 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 democracywhich 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 entitledto 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 conclusiveevidence, 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 forprofit.


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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-closed-

doors deal between the Indian

government and the World Bank to

privatize Delhi s centr al water

supply. They obtained and publicly

released official documents of the

Delhi Water Supply and Sewerage

Project, and copies of under-the-

table 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 District-

Management Zones (DMA) to private multinational companies, who would operateby 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 short-

listed 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. WhenDJB 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 press-

release, the RWC stated that if this project were to go ahead, water would becomevirtually 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 thatwe 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 track-

record 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 catalystin 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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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 non-

governmental

organ iza t ion

(NGO), which

has since its in-

ception in the

m i d - 1 9 8 0 s ,

worked prima-

rily on the issue

of health-care

and develop-

ment among

tribal peoples

and disadvan-

taged 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 ofour key guest speakers at this years consultation.

In 1986, tribal communities across the Karnataka region were affectedwith a lep-

rosy 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

The Karuna Trust- Health as a

fundamental human right


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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 insur-

ance programme for tribal communities. In its first year, the Karuna Trust schooledsix 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 under-

standing corruption, whether it be in the judiciary or in health-care, we must firstunderstand 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.

U n d e r t h e K a r n a t a k a

Lokayukta Act of 1986,

which aims to improve the

standards of public adminis-

tration by investigating and

dealing with all public com-

plaints made against public

servants - doctors and nurs-

ing staff who had demandedbribes of up to 2000 Indian

Rupees [US$ 50] from their

pa t i en ts , 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 Depart-

ment 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 cap-

sules 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 whowere 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 cul-

ture of corruption and bribery is equally detrimental to the society in question.


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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 livedthrough 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 thecase 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?

Question and Answer session with

Mr. John Clancey, Chairman of the AHRC


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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 ofthe 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 de-

progression 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 werepaid 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 high-

court 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 achaotic 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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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 makingit 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 countriessuch 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.

Money, Money, Money!


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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 largelyattributed 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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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; choosingto 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 investig

Asian Chart Errol 2007

Documents

Transcript of Asian Chart Errol 2007