The South Asia has been metamorphosing, transforming and transiting in desire and discourse, grace and guidance, purpose and practicality, pace and propensity, terrorism and transcendentalism, unity and ubiquity, and its regimental ruthlessness is mawkish with modernity, primordial with present and furtive with future that is devitalized to the proliferation of prognostications.
The propensity of the planet earth transcended its limits of growth, wealth of nations and industrialization of civility in an unprecedented fashion marked with producing rich out of rich, poor out of poor since the baseline of parochial peace inaugurated on October 24, 1945 as United Nations Organization whereunder human nature has become most conspicuous, covetous and cataclysmic in the present age needed by the ever-growing exemplary shift in its dialectics, dimensions, and delineation in terms of understanding, interpretation, and resolutions of human care and crises in its existentialism.
Idea of Human Rights
The idea of human right has had a long and diverse history that has given multiple meanings, hues and tones dependent on the context, condition and the objective of those conceptualizing this idea but, unfortunately, this idea has been predominantly understood in terms of intrinsic and extrinsic political priorities since time immemorial by the national and international jurisdictions at the level of nation-states and by the individuals, institutions and groups at the communitarian level. But to fit human right into any definition has not been met with intellectual and juridical consensus since the inception of the critters and creatures of reason who coddled human rights in a fashion acceptable to all but in vain. The concept of human rights, which was developed during the Enlightenment, re-emerged following the II-World War, and since then has repeatedly been utilized in the international and local realms. The hundreds of dedicated people around the globe have been working incessantly over the past 70 years to frame human rights protocols, covenants, and treaties, and in the process have produced an inspiring discourse.
Therefore, I have also attempted to clinch an understanding of human rights in the expositions henceforth that the human rights are natural rights whereto every man is the heir apparent without being deprived except according to the procedure, principles, and pursuits duly codified in law. Human rights are the perennial pursuits provided and protected by the state for the overall development of its citizens devoid of denial, deprivation and demonization owing to the grounds contrary to natural justice, the rule of law and good conscience. Human rights are the rights of human beings because of their status as human beings for sustenance and survival with human dignity wedded to state protection and societal sanctions deviant to geo-politico-cultural dichotomies. Human rights are the classical and contemporary civil liberties preserved, promoted and protected by the oriental and occidental societies alike within the confines of the law. Human rights are the human spirits emanating from a confluence of equality, fraternity, and liberty founded upon pluralism, secularism, and universalism guaranteed by the state and its laws. Human rights are pre-political and pre-social conditions blessed by nature upon human beings by virtue of their being human beings protected under the principles of natural law. Human rights are peremptory norms wherefrom no derogation or deviation or otherwise is contemplated, conceptualized and camouflaged contrary to dignity, decency and development of human personality under a just order founded upon democracy of judicial remedies, the majesty of the rule of law and supremacy of humanity. Human rights are conditions of peace, security and development of state and its citizens alike alien to avarice, corruption, deprivation, exploitation, fear, genocide, hate, inequality, jingoism, nepotism, oppression, persecution, repression, subjugation, totalitarianism, vengeance and xenophobia, etc.
What is South Asia
South Asia is the home to 22 percent of the world population and also a home of 43 percent poor people of the world. Despite the promising microeconomic growth, South Asia is the most impoverished region looked from human development indicators, such as health and education. The South Asian region inhabits 47 percent of the world’s illiterate population aged 15 years and above (up to 59 years). Over 71 percent of the South Asians live in rural areas mostly unemployed. Estimated 437 million people live below 1.25 US dollar a day and 237 million live at risk of dying before the age of 40 years. 867 million have no access to basic sanitation and more than 300 million undernourished. Therefore, South Asian discourse on human rights must take care of these people. The human rights discourse has transformed international and humanitarian laws, has helped reshape the relations between international organizations, governments and citizens and has become an active political and legal tool used by the politicians, non-governmental organizations (NGOs) and social movements to advance their objectives. The human rights discourse is not some panacea for all social ills, and at times it can produce unanticipated detrimental results. The rights language can be and has been co-opted by people who promote oppressive policies. The leaders often cynically invoke rights discourse to enhance the realpolitik concerns and not because they care about the rights of individuals living in other countries or even the rights of their citizens. The once decreed as a norm or as a preferred goal, groups, and individuals can utilize this discourse to demand the enforcement and implementation of more ethical policies while marshaling internal forces and external support.
Human Rights Implementation
The implementation of human rights is in crisis worldwide. The annual reports of Amnesty International, Human Rights Watch and other human rights organizations continue to reveal widespread gross violations of human rights in numerous countries the world over and South Asia region is not an exception. Democracy is non-existent or a sham in many countries in our part of the world. National resources are squandered by despotic rulers instead of being used to satisfy the basic economic and social needs of their people. Corruption is rife. The judiciary lacks the strength, the means, or the will to protect human rights in many places. The national human rights institutions are non-existent or non-performing in some cases in South Asia and elsewhere. In South Asia, many countries ratify human rights treaties without making the slightest attempt to give effect to them. The self-righteous representatives gather in the halls of the United Nations and use their majorities to insist that countries are grossly violating human rights be treated with kid gloves through dialogue and cooperation, instead of through forthright condemnation of atrocities. The UN Human Rights Council does little for the actual protection of human rights, and its Universal Periodic Reporting Process, for the time being, lacks teeth. The situation is dire.
The issue of human rights is frequently discussed in international and regional discourse, among the world leaders, and in the international media. There are international conferences and speeches on human rights, from Presidents, Prime Ministers and Popes alike about the importance of tolerance and respect for human rights, and media outlets broadcasting one program after another on the human miseries like poverty, ill-health and poor living conditions around the world. But what exactly is meant by human rights remains controversial and ambiguous, it is increasingly clear that there is some universal concept of human rights. In societies where citizens are free to participate in the political process and express opposition to their government, where they do not simply disappear in the blink of an eye and are free from starvation and poverty, human rights may never be a chief consideration or concern. But this only describes the condition of a minority of the global population.
Global Grimes and Crimes
Thus, identification and acceptance of human rights as an international issue by the world community has led to the establishment of a vast system of laws, treaties, and international organizations. Most states today recognize some limits to their sovereignty and, at least ostensibly, acquiesce to agreements and covenants designed to protect those rights. Before World War II, such a concept would have been deemed untenable, as state sovereignty remained the norm of international relations. The states were the final arbiter in the treatment of their citizens, and other countries should refrain from intervening in their affairs. The Holocaust and atrocities associated with the Nazi regime catalyzed the human rights movement, propelling the issue into the international arena. While South Asian discourse on the importance of human rights has incessantly swelled since the end of World War II, many states continue to violate a broad range of human rights. In fact, some of the worst human rights violations have occurred in modern times: the atrocities committed and perpetrated by the Khmer Rouge in Cambodia, the ethnic cleansing in the former Yugoslavia, the slaughter in Rwanda, the genocide in the Darfur region of United Sudan, persecution of Minorities in South Asia. The food insecurity, lack of clean water, and lack of primary health care continue to be everyday realities in many parts of the world including South Asia. Whereas slavery is on the rise today: in Eastern Europe and South Asia women trafficking as sex slaves; in the DRC (Democratic Republic of Congo), children are being forced to fight in wars; and in most of the SAARC region particularly in India and Nepal, children are being compelled to work as child labour or in sweat-shops for subsistence wages instead of attending school. For many people, the lack of human rights is a daily reality, and this suggests that while citizens in parts of the South Asia have been experiencing greater respect for human rights, the majority have yet to realize and enjoy the full spectrum of human rights. The disjuncture between the South Asian discourse in human rights and the attainment of human rights is one of the pivotal paradoxes of the human life.
Therefore, the quest for sustainability of democratic values and institutions is unceasing in South Asia and all members of SAARC have constitutionally endorsed the liberal democracy, the rule of law and human rights. All the SAARC members have written constitutions based on the constitutionalism of human rights and fundamental freedoms. The principle of independence of the judiciary and its activist role to ensure implementation of pro-people and pro-democratic policies is manifestly higher in South Asia. The most top courts in the region have played crucial roles in shaping the people’s human rights. The recognition of the Justiciability of the economic, social and cultural rights in India, Nepal, and Bangladesh is spectacular. The grammar of modern South Asia determines the structure and limits of essential components of contemporary human rights discourse. The idea of South Asia constitutes an important part of our human rights discourse and imagination that determines what questions we ask about our law, polities and policy as well as the range of possible answers to these issues.
The idea of Human Rights Discourse in South Asia comprises of a synthesis of rules and principles about the suitable use of concepts like people, self-government, citizen, rights, equality, autonomy, nation and popular sovereignty. That quest about the normative relationship between nation-states and the cultural diversity as the criteria that should be employed to determine the legitimacy of the State, the individuals that can be regarded partners of the polity, the distinctions and limits between the private and the public spheres, and the dichotomies between autonomous and heteronomous political communities makes sense to us because they emerge from the rules and principles of human rights discourse. Different traditions of interpretation in human rights discourse in South Asia—constitutionalism, liberalism, communitarianism, and nationalism, among others–compete to control the way these concepts are understood and put into practice. However, it was difficult to deny that South Asian constitutionalism and western legal traditions in human rights have exerted a strong influence on most of the South Asian legal systems.
South Asian Legal Systems
Hence, this influence has been constrained or structured by many factors, with particular influences explaining the actual impact of eastern legal traditions on the various Asian legal systems. Each particular South Asian legal system remains unique in many ways, the result being a mixture or a “blend” of these numerous factors. However, it is worth attempting to classify the major South Asian legal systems in the light of these many different influences. That history, religion, culture and political regime constitute the major criteria that can be used to differentiate the various South Asian legal systems and better measure the influence exerted on them by South Asian constitutionalism and Western traditions of human rights. Though every South Asian state has consistently espoused the constitutional values and principles of human rights and no government, no matter how authoritarian, claims to be anything other than a constitutional government. But, of late, vibrant constitutional democracies have taken hold in the South Asian soil. However, scant attention has been placed upon the ways that human rights have been brought into being and developed into distinctive forms in South Asia. By studying the South Asian jurisdictions together, some standard features communicated by the constitutional advancements in them, which include contributory democratic state-building, textual and institutional continuity, reactive judicial review and a wide range of human rights in tune with social and political progress, have emerged.
Human Rights Desiderata
However, there are desiderata like what is a right in South Asia? What are human rights in South Asia? Why do we have them or should we have them? Who is counted as a human and on what grounds? Is Dignity the Foundation of Human Rights? Are human rights truly universal, global or regional in South Asia? Does the disagreement about the meaning of human rights undermine it as a political project in South Asia? What kinds of human rights problems do the South Asia and the world face today? What role do South Asian judicial institutions play in addressing the human rights issues? Do the South Asian governments care about human rights? How did a South Asian discourse on human rights come to shape the regional consciousness imperatives in post-1985? What do human rights treaties require South Asian states to do? Why do countries sign up to human rights treaties? Do they ever respect human rights obligations and commitments? How do citizens and NGO’s exert pressure on states? Is human rights politics just ‘Selectivism’ in South Asia? Why does the US promote human rights and refuse to sign on to major human rights treaties? Are human rights just window-dressing for national interests in South Asia? What is the political economy of human rights discourse in South Asia? To attend and appreciate the contours of human rights discourse in South Asia and obligations and options available to the region with South Asian values, approaches to human rights, human rights of minorities in South Asia, place of gender in South Asia and how to go about exploring the feasibility of South Asian Charter of Human Rights
Deviant to the causes whatsoever of human displacement regarding normativity, performativity, and empiricism, there are many nemeses, but two are important and coterminous in their cascading impact, i.e., human displacement and consumerism. The biggest agony in life is a situation of being displaced from his/her country of the homeland in a fashion that is fallible, fallacious and fatal? To uproot anybody from his land of habitual residence amounts to deny and deprive him of his/her right to perpetual live, right to immemorial neighbourhood, right to historical culture, right to classic climate, right to perennial socialization, right to geopolitical predilections, right to socio-economic development, right to be consulted in economic modules, right to take part in community development, right to good governance, right to rule of law, and right to leave and return. Thus, these are not only rights but go beyond the systems of rights known as basic bonds, fundamental freedoms, inalienable entitlements, natural claims, and rudimental human rights. Whereas consumerism has become a catalyst likey to be employed as the last resort of elitism and propelling the priorities of political, social and cultural dispensations in every geo-strategic entity. Consumerism has been cribbed, crabbed and cabined in an envelope of gory globalization wherefrom no escape is possible for the men ordinaire and it is taking its toll to the hilt in a knowledge society which, unfortunately, does not have any knowledge about the society wedded with consumerism. Consumerism of contemporary class has smothered the colossal canvas of human bonds wherefrom oozes emotions, care, concerns and camaraderie well-founded upon the human spirit of co-existence, respect for diversity and civilizational dialogue.
South Asia Ahead
Therefore, the denuded downslide and pejorative permutations in the societal structures across the South Asia are nothing but offshoots of consumerism casting poverty, ecological degradation, environmental hazards, lopsided development, tectonic technologies, hexicological imbalances, deconstruction of a priori norms of normative sciences in research and development, etc. Thus, vicious vicissitudes of global change have presented a scene of development that is murky, mawkish and maneuvered by the political powers that are around the chess board of common heritage of gene-kind in and around national and supranational jurisdictions whereat humanity is at war within the humanity. Consequently, there is an supercilious ambience of peace, progress and prosperity that is exclusive, elite and alienated with a tinge of aggression, arrogance and attitude of above the board while not learning the lessons from economic melt-downs and fiscal drubbings in USA and Eurozone and elsewhere which has made the humanity to move, move and move in addition to the humanitarian crises and climate-induced displacement.
In this conspectus, I envision a concept of South Asian Government (SAG) or Regional Government well-founded upon a duly agreed South Asian Constitution (SAC) wedded with the Constitutionalization of South Asian Constitutionalism, South Asian Rule of Law (SAROL), Borderless South Asian Sovereignty (SAS), South Asian Common Natural Resources (SACONAR), South Asian Ethno-Cultural Synthesization (SAECS), South Asian Accountability Regime (SAAR), and South Asian Constitutional Law (SACOL) based on the regional institutionalization of equitable demography, federalization of humanity, bicameralization of governance, Parliamentarization of Regional Accountability as Parliament of Gene kind consisting of House of Nations (Upper House) and House of People (Lower House) whereunder South Asian Nations have been contemplated as units.
These features developed in the South Asian discourse on human rights do not merely mirror western standard nor are under the shadow of South Asian Values or merely in tandem with transitional understandings of rights jurisprudence. The full blossom of South Asian discourse on human rights will shed a new light and move from periphery to the center of regional engagement. The South Asian nations have had some difficulty in maintaining their independence of constitutional human rights and fundamental freedoms. The human rights discourse in South Asia has swept the world by the end of the last twentieth century. More than two-thirds of global populations observe to a certain extent human rights protection and the rule of law. The human rights discourse in South Asia has moved beyond traditional nation-state borders and developed into regional constitutionalism on rights. The efforts at making South Asian discourse in Human Rights the evolutionary process by which traditional South Asian states have moved closer to one another in a human rights sense illustrates this trend well. At the same time, North American countries including Canada, the United States, and Mexico have gradually been becoming a human rights block by sharing common regulatory powers in a constitutional sense.
Writer: Lawyer, Law Academic and Independent Analyst