Advocacy within the Commonwealth

Submission by the Commonwealth Human Rights Initiative to the Commonwealth Ministerial Action Group, due to meet in London, 3-4 September 2001

General

1. The Commonwealth Human Rights Initiative ( CHRI ) welcomes reports that the High Level Review Group, chaired by South Africa, has reached an agreement on new terms of reference for the Commonwealth Ministerial Action Group ( CMAG ), which aligns these more closely with the good offices role of the Secretary-General. The Initiative cannot comment in detail until these proposals are made public, but it is obviously desirable that Commonwealth machinery is made more coherent, and that Secretariat support for CMAG is made more explicit and properly resourced.

2. However the CHRI is strongly aware that many human rights crises in the Commonwealth, particularly those involving economic, social and cultural rights, still may not come before CMAG and are not ideally addressed by Foreign Ministers. This is one reason why the CHRI continues to argue for a Commonwealth High Commissioner for Human Rights, capable of providing a high-level human rights perspective, and of catalysing the skills and interests of Commonwealth organisations and individuals of all types. It is important too that CMAG itself should remember the potential of non-governmental inputs, especially in preventing crises from worsening.

3. As an indication of the kind of human rights issue which the Commonwealth needs to address, but which lies outside the CMAG remit, this submission takes the case of the large Dalit community in India ( see below ). It remains marginalised and oppressed, with great difficulty in realising its rights, and the Indian government has argued that the situation of lower caste communities should not be of interest to the UN World Conference Against Racism in South Africa.

4. The Harare Declaration, 1991, called for fundamental human rights and Commonwealth Heads in Cyprus in 1993 defined them in terms of the interdependence and interrelationship of civil and political and economic, social and cultural rights. The CHRI believes that it is time to take this concept forward. If CMAG will not do so it is time to appoint a Commonwealth High Commissioner for Human Rights who will.

5. The London meeting of CMAG overlaps in time with the UN World Conference Against Racism in South Africa. It would be appropriate for CMAG to commend the work of the UN conference, given the Commonwealth's own long commitment against racism, but also to recognise that racism is still alive in many Commonwealth member states against many vulnerable communities, including indigenous peoples.

Pakistan

6. The Millbrook Action Programme, 1995, stipulated two years as the time frame for the restoration of democracy, and it appears unlikely that Pakistan, suspended from the councils of the Commonwealth in 1999, will again have an elected government within this period. President Musharraf, responding to a Supreme Court ruling, has announced that elections will be held in October 2002. Millbrook did not say what might happen at the end of the two years, though some commentators assumed that after two years of suspension and no progress a government might be expelled from the Commonwealth.

7. When General Musharraf unilaterally made himself President of Pakistan, the move was widely condemned, and proposed constitutional amendments could extend his tenure, and give him powers over the Prime Minister and Parliament. It was regrettable too that his recent meeting with Prime Minister Vajpayee broke up without agreement, though it is to be hoped that the Indian Prime Minister will make a return visit to Islamabad. There is no doubt that the human rights situation throughout South Asia, and particularly in Kashmir, will greatly improve if these two large neighbouring countries establish a more friendly relationship.

8. Following the line taken by the Fiji judiciary ( see below ) the Pakistani judiciary has done well to stand up for its country's civilian constitution, with the Supreme Court insisting that elections be held by 12 October 2002. But in fact, leaving aside the reduction in democratic rights, the human rights picture in Pakistan remains confused, and there have been many high profile murders: these include the murder of 60 Shia doctors, and the sectarian killing of the managing director of Pakistan State Oil. Gains have been claimed in the areas of women's rights and media freedom. Socio-economic rights are still limited, and are likely to remain so while debt servicing and military spending account for two thirds of the budget.

9. CMAG should send a further mission to Pakistan, two years after its suspension from the councils of the Commonwealth, to check on the fairness of the arrangements for elections next year, and on human rights issues more generally. The Commonwealth should guard against the possibility of electoral fraud, or manipulation by the military regime. If the promised elections do take place, they should be observed by a Commonwealth team and -- in the light of previous events -- this should be linked to other Commonwealth inputs under the Deepening Democracy programme.

Fiji

10. Considering that the first democratic elections to be held in Fiji since the attempted coup on 19 May 2000 begin on 25 August 2001, it is clear that the Commonwealth is presently unable to determine an approach until after the results are announced and power is transferred to the duly elected government.

11. However, in view of the fact that Fiji commences its first election period since the attempted coup, CHRI recommends that the CMAG reaffirm its expectation and stance that race politics are unacceptable in the Commonwealth, nor are policies that encourage race based hatred.

12. The CMAG should stipulate that the Fiji military must respect the results of the election process and that the interim administration and all political parties should work towards an orderly transfer of power in a timely fashion. The adoption of any racist policies by an incumbent government is unacceptable.

13. Furthermore, it is necessary that any new government should not attempt to introduce a notion of paramountcy or Fijian supremacy into the Constitution that would prohibit people taking up positions in government based on their race or ethnicity. The rights of minorities, such as women and children and, in particular, ethnic minorities, must also be protected. The new government must also address the problems of people displaced internally as a result of the violence in the aftermath of the attempted coup.

Zimbabwe

14. The human rights situation has deteriorated severely since CMAG last met; this has been well documented in a report by the Zimbabwe Human Rights NGO Forum, "Politically motivated violence in Zimbabwe, 2000-2001." High inflation has continued to erode the socio-economic rights of Zimbabweans and there is a looming food crisis. The police are politicised. The ZANU-PF government is doing everything it can to intimidate the opposition and the state media are partial. Farm and factory invasions are creating an atmosphere of lawlessness and impunity. Anti-white racism is being stimulated in a way that contradicts a succession of Commonwealth statements ( at Singapore, Lusaka, Harare and elsewhere ). The guarantees of the Harare Declaration are not being observed in Harare or elsewhere in Zimbabwe.

15. The CHRI welcomes the plan for a meeting in Nigeria of Commonwealth Foreign Ministers, to discuss the Zimbabwe crisis. Efforts to send Sir Shridath Ramphal, or another emissary of the Secretary-General, to Harare should continue. In the meantime CMAG should state that, without a verifiable commitment to the rule of law, just and accountable government and fundamental human rights, it will recommend that Commonwealth Heads in Brisbane should suspend the Zimbabwe government from the councils of the Commonwealth. This is a very sad period, holding much danger for southern Africa. But the Commonwealth must remain true to its principles. Otherwise the Harare Declaration, basis for much valuable work over the last decade, will be robbed of meaning.

Sierra Leone and The Gambia

16. The CHRI is pleased by gradual signs of the growth of peace and improvements in human rights in Sierra Leone. It calls on the Commonwealth, member states and NGOs to redouble their efforts. It remains concerned at the way in which the presidential term of President Kabbah has been lengthened, after MPs were offered inducements in the form of motor vehicles, and the practical difficulty in holding fair elections. It welcomes the repeal of the schedule to Decree 89 in The Gambia which has proscribed certain political parties and individuals, and hopes this leads to a freer political atmosphere in future.

Socio-economic rights: the case of the Dalits in India

17. The CHRI intends to use its submissions to CMAG to highlight certain egregious human rights cases of a socio-economic nature. Therefore, the situation of Dalits in India is the focus of this submission.

18. Caste is a recognised system of social stratification that contradicts the universal norm of equality and the specific constitutional provisions in the constitutions of South Asia that guarantee all people equality. The 'Independent Downtrodden and Oppressed Community Council' was formed in 1998 in Nepal, the Hindu Kingdom, with the objective of co-ordinating policies and supervising programmes of benefit to Dalits. By contrast, India, with 160 million Dalits or former 'untouchables' and the largest population concentration in the Commonwealth has refused to acknowledge the State's responsibility for the continued discrimination and violation of everyday rights that go unpunished within its jurisdiction.

19. The Government of India's position is that 'Untouchability' is outlawed under the Indian Constitution. The Constitution also makes provision for affirmative action, special political representation and sets up special mechanisms for the protection and promotion of the rights of so called 'scheduled' castes. The Government has set up several development schemes and also set aside special financing for the development of this historically disadvantaged and discriminated against group.

20. However, it must be noted that there is neglect in the implementation of the aforementioned initiatives and, despite all of this the Dalits, like women in India and Tribal communities throughout the world, continue to be very sharply discriminated against in all walks of life. All social indicators such as education, employment, land and labour, livelihood, gender equity and the right to life and security, bear out this condition.

21. Most Dalits live beneath the poverty line; their education levels continue to be much lower than the national averages, as well as their employment, health and land ownership.

22. Despite 50 years of protection, the Dalit position is one of violated rights and little realisation of the citizenhood promised at Independence. The Government of India argues that there is no discrimination at law. On the other hand, since the representation of the Dalits (due to their discriminated status) in government, poverty alleviation, and other economic, social and political arenas of national activity is so poor, the situation perpetuates itself in biases that are inherent and unspoken but demonstrated in the outcome. The Government further argues that this condition is more a function of poverty than of being within a category known as the Dalits but the mere fact of belonging to this category is also a contributing factor to the stubborn inability of Dalits to rise above their poverty.

23. Discrimination continues to be central to the life experiences of the Dalits and these are as pervasive as they are humiliating: most commonly Dalits are forbidden from entering temples or the inner sanctum of temples and have frequently been lynched for trying; Dalit women are routinely raped and sexually exploited; they have been marched through towns and villages naked for small or imagined infractions of unegalitarian social codes; Dalit school children are routinely discouraged from attending mixed schools or at best made to sit separately in class; they are not permitted to drink out of the same water sources as other children. In a recent case a Dalit child lost an eye when the teacher beat her up for daring to do so - the village community did not condemn the act. Poor and often highly indebted Dalits form a large part of the bonded labour system that continues as a form of slavery to the present day with little change. Dalits are also traditionally required to carry nightsoil on their head and there are several communities in India who continue to do this outlawed work. They are commonly known and recognised as 'scavengers'. In rural India where the majority of India's Dalits live, they are invariably surviving in the poorest and most segregated areas. They are required to acknowledge their lower status when passing through other areas by removing their turbans or their shoes so as not to offend the village gentry and the powerful elite.

24. Furthermore, Dalits who have changed their religion to Islam, Sikhism, Buddhism and Christianity are in no better position for having left the Hindu Varna system of caste. Several cases in the recent past have highlighted that they are still seen as distinctive groups within these religions and have been refused the sacrament in church and been prevented from being buried in the same cemeteries and the like.

25. All of these methods of discrimination have been outlawed and can in fact draw down severe criminal penalties and compensation for civil wrong. Yet, despite the wide publicity and public knowledge of the system few prosecutions are brought and even fewer convictions recorded.

26. The international community has recently recognised the particular and unique nature of Dalit discrimination, the International Covenant on Civil an Political Rights recognises that all persons are entitled to the equal protection of the law "without any discrimination." The International Convention on the Elimination of All Forms of Racial Discrimination specifically prohibits discrimination based on "descent" which the Committee on the Elimination of all Racial Discrimination has interpreted to mean not solely race but tribal or caste distinctions as well. The International Labour Organisation calls on States to "eliminate discrimination based on race, national extraction or social origin" and called upon the Government of India to be less neglectful of its duty and more proactive in stamping it out. Also, the response of the Sub Commission on Human Rights to the Report of Mr.Rajendra Kalidas Goonesekere on "The Prevention of Discrimination and Protection of Indigenous Peoples and Minorities" has been to ask the reporter to study the phenomenon further. It has said that in terms of India, it is an issue of non-implementation and denial of access to justice.

27. CHRI, therefore, urges CMAG to take the issue into consideration in view of the significant numbers of those involved alone, as well as their conditions of living and the nature of their oppression that is indicative of the serious and persistent nature of the violation. Similar violations also exist in Pakistan, Sri Lanka and Bangladesh.