The creation of counterfeits in any field of human activity is a result of borrowings and imitations which do not originate from a genuine understanding of the problems and issues that the activity is supposed to address. In Leo Tolstoy’s book entitled ‘What is Art?’ he speaks of counterfeit art, which, according to him, is what art became in his time in Europe. In counterfeit art, ‘the artist’, believing himself to be creating a work of art, is in fact only engaging in creating impressions of art. These ‘impressions of art’ are derived from an understanding of what are considered some of the external qualities of art, which the ‘artist’ now tries to recreate. Looked at from outside, the ‘work of art’ that is produced has externally those characteristics that are found in genuine works of art. By this kind of imitation, there can be ‘mass production’ of artwork to suit the appetites of audiences who are willing to pay for them.
In the human rights field also, with many well intentioned people wanting to do something about the very great problems affecting their societies, there had emerged many activities related to the protection and the promotion of human rights. Do these activities correspond to the problems that they are meant to resolve? That depends on the extent of the understanding of the problem and the measures adapted, with mature use of judgment to address those problems. To put it by way of a comparison, if the sickness identified then the medicine that is developed as a cure for that particular illness should correspond. If the problems that are meant to be resolved are addressed, with activities geared towards resolving them, such activity may give the impression of being ‘cures’ but, in fact, they’re only imitations borrowed from others who were dealing with other problems.
The identification of problems relating to human rights, like any other identification of any other human problem, depends on the grasp on the external situations which combine to produce each particular problem. Therefore the actor must develop in their mind the understanding of the specific problem that he is setting out to resolve. If that is not developed at some time or another, then he or she cannot even know whether or not there is a correspondence between the problem that they are trying to resolve and the action that he as adapted for that purpose.
The situation is even worse if the actor begins on the basis of some training or some understanding gained from observation or reading on the general nature of some problems and assumes that there is no need at all to develop specific knowledge about the specific problems that they may encounter in real life, in the context of the particular circumstances in which they have to work.
It is possible for someone to gain some knowledge of various kinds of things that people have done to resolve some problems without understanding the particular reasons as to why those actions were adopted in those other circumstances. For example, someone looking into various kinds of activity that are being done in many parts of the world on human rights may want to do something similar with their own life. They will begin with the impressions they have gained about those activities and will try to replicate them within their own circumstances. Externally, all such activities will have a semblance or appearance of being similar activities to what others have done in other circumstances. For example, it is possible for someone to understand the external activities which were adapted by others to end slavery, apartheid or to change from an authoritarian system into the development of strong democratic institutions in some countries. Merely trying to imitate some of these activities may give the appearance of genuine human rights efforts.
We could bring these considerations directly to the issue in point. In a particular country, disappearances, extrajudicial killings, torture, illegal arrest and detention may have taken place in a large scale. Â Unjustified attacks on civilians by the military and the police may have taken place. In short, there may have been every kind of human rights violation that is considered a gross human rights violation. Well-intentioned and highly motivated citizens may legitimately demand investigations by impartial and competent bodies, prosecutions by equally impartial and competent prosecutors, and judicial action. If these demands are made within a country where developed criminal justice institutions exist, there will be results sooner or later. Suppose that in the particular country concerned, such institutions may not exist at all, as has happened in some countries, or that these institutions have existed to some degree of authenticity at sometime but have been virtually made dysfunctional by political regimes for various reasons. Now in this second scenario, however long the demands for justice are made, it simply will not happen, simply because there is no institutional possibility of that happening. Even if there is a regime change, still such institutional capacity will not revive automatically.
Under such circumstances, the honest citizen who engages in this work with the best of intentions, make their demand ad infinitum, going on for many years, but they would not attain the result they desire to achieve. They may think of themselves as having done the best under the circumstances, on the basis of impressions they have gathered from others who have dealt with similar problems in other circumstances. Thus, despite of the best of intentions, this kind of activity does not proceed to be much more than an imitation.
Where institutional impediments to justice exist, it is simply the task of anyone who desires to see that justice can happen in their society to struggle for the creation or improvements of the systems of justice. Particular methods and strategies need to be developed with a comprehensive knowledge of the local context. Such knowledge can only be the light that can guide the development of the strategies needed to deal with this problem. Lessons learned or impressions gathered from other circumstances can be useful, but that is no substitute at all for gaining knowledge of the actual circumstances and struggling to improve those circumstances.
The same thing said about criminal justice can also be said about countries which have constitutions which are fundamentally flawed. A ‘constitution’ that places anyone above the law is fundamentally flawed in the most basic sense, as the very essence of constitutionalism is to bring all, and particularly the head of the state, under the law. Also, any constitution which allowed unlimited suspension of normal protections that should be available within the framework of law is fundamentally flawed in a basic sense.
Besides side, there are instances where institutions are completely suspended. (This, for example, is what happened under military dictators in Pakistan leading up to Musharraf. One of the actions taken by the Chief Justice after the fall of Musharraf and his reinstatement as chief justice was to create a judicial precedent laying down that any future suspension of the constitution will be null and void in law.)
In Burma, the military junta says that a constitution is not necessary as there are countries which do not have constitutions. Under these circumstances, to expect any kind of constitutional protection of human rights without ensuring that the constitutionalism itself is restored is only an illusion.
Much of the activities of the imitator are like the imaginary vision of an amputee who still works on the assumption that their lost limb still exists. This complex has been called “phantom limb syndrome” by psychologists. Unfortunately, this syndrome exists in a large scale in countries in which institutions of justice are in a dysfunctional state.