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Vol. VI, No. 30 Sept.
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DEMOCRATIC SPACE
ASIA:
Still a Long Way to Go to Rule of Law and Human
Rights in Asia
Closing statement of the 6th
Human Rights Folk School of the Asian Human Rights
Commission
BY THE ASIAN HUMAN RIGHTS COMMISSION
Posted by Bulatlat
The 6th Human
Rights Folks School of the Asian Human Rights
Commission (AHRC) was held in Hong Kong from 21 to 26
August 2006. Over 30 persons from Korea, Japan, the
Philippines, Indonesia, Cambodia, Thailand, Burma,
Bangladesh, Nepal, India, Sri Lanka, Pakistan, and
others expressed a common opinion that Asia still has
a long way to go to secure the rule of law and basic
human rights. The participants pointed to the
prevalence of custodial torture and related abuses
along with a lack of ways to obtain redress as the
key issues of concern for human rights defenders in
Asia today.
South Korea, for instance, although a relatively
developed jurisdiction in comparison to the other
Asian countries, has not yet eradicated custodial
abuse. When the National Human Rights Commission of
Korea was established a few years ago, it received
about 10,000 complaints of alleged abuses. Police
brutality against demonstrators, sometimes resulting
in death, has also been common, and a subject of
growing concern. Rather than addressing the problem
with sincerity, the government has sought to restrict
the right to assembly, contrary to international
standards. Domestic laws need to be reformed and the
justice system developed to allow for better redress
to victims. For example, the absence of registered
lawyers in around half of the country's districts
greatly inhibits the possibility for victims of
abuses to obtain redress.
Participants expressed special concern about the lack
of laws and unwillingness of judicial agencies to
combat torture. In Indonesia, there has been no
proper adjudication of cases alleging brutal torture
by police and army personnel. Although the country
has ratified the UN Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment, torture has not been specifically defined
as a crime there. The existing definition is so broad
as to render it meaningless: even domestic violence
can be classified as 'torture'. Meanwhile,
Indonesia's courts make a mockery of justice. The
chief justice of the Supreme Court recently passed an
extraordinary order to extend his own term in office,
and decided on his own case in an appeal against the
order that challenged its constitutionality. The
court ruled that the National Judicial Commission
cannot intervene in the appointment, retirement and
extension of service of judges, effectively defeating
its entire purpose. When the highest court behaves in
this manner it sets an example for all other courts
that has long-lasting and negative effects.
In China too a prohibition on torture is limited by
definition to only certain categories of acts, which
fall short of the standards set by international law.
In addition, the courts are not independent. Although
the criminal justice system is improving, custodial
torture remains widespread and there is a great deal
more work for the country to do if the rule of law is
to be established.
Bangladesh is much like China in that with the
exception of the Supreme Court its judiciary is under
government control. However, unlike China it is not
making reforms or showing evidence of change.
Its government has taken years to make even the
smallest reforms under intense pressure from inside
and outside the country. Custodial torture,
"crossfire" killings and other gross abuses occur
daily but although the government has joined the
anti-torture treaty for the sake of its international
reputation, it has done nothing to modify the
domestic law to criminalize torture and has failed to
ever submit a report to the UN on torture in the
country as required.
Neighboring India has for its part failed both to
ratify the Convention against Torture and do anything
to stop the rampant custodial torture within its
borders. In heavily militarized states like those in
the northeast the army and paramilitary units are the
main perpetrators. In these areas draconian laws such
as the Armed Forces Special Powers Act provide
absolute impunity to state officers for whatever
abuses they commit. In other parts of the country,
the police and other regular law-enforcement agencies
are primarily responsible. They too are beyond the
reach of complainants, due to the absence of a law to
address torture and the enormous obstacles that
India's broken down courts place before them.
Although Sri Lanka has ratified the UN convention and
introduced a law to prohibit torture, custodial abuse
continues to be rampant in police stations. Few
perpetrators are convicted, due to the country's
corrupted and inept investigative, prosecution and
judicial agencies. At the same time, other
institutions such as the Human Rights Commission of
Sri Lanka have performed poorly. The public has no
faith in the capacity of the state to give them
relief when their rights are violated. However, they
are not silent. People are taking to the streets to
demand change. A growing number understand that the
only way out of the situation that they are in is
through concerted demands for re-establishing of the
rule of law.
Participants at the folk school discussed the links
between torture and other gross abuses, including
forced disappearances and killings. They discussed
how in the Philippines all forms of abuse are
commonly practiced, including through sexual assault.
The police and army are systematically used to
suppress popular movements, such as those for the
rights of landless peasants. People who raise their
voices in protest loud enough are either killed or
imprisoned on fabricated charges. They have trouble
obtaining lawyers, as fear of being killed, abducted
or tortured has caused fewer advocates to take up
human rights cases.
In Thailand also custodial torture is believed to be
widespread and victims have no avenues to justice.
The country has not ratified the Convention against
Torture or made any law to give protection against
the police or others accused of abuse. There are many
other related problems, such as the absence of any
effective witness and victim protection. Although an
office for witness protection was recently
established, it has only a handful of staff and is
not yet able to function independently. Another
problem is that despite the principle of presumption
of innocence, poor persons brought by the police
before courts in Thailand are generally treated as if
they are already guilty. Even persons complaining
that they have been tortured to extract a confession
are not heard or understood by the courts, which
routinely hand out very harsh sentences for minor
offences. On the other hand, highly placed officials
and politicians are almost always exempt from
prosecution.
The participants widely explored and agreed upon the
links between grave abuses and impunity in their
countries. In Pakistan today government opponents are
being slaughtered and the country is being driven to
anarchy due in large part to the massive numbers of
abductions and murders by state agents. Detainees are
tortured in order to admit to being involved in
'anti-national' activities: no law exists to protect
them against torture and the country has not joined
the Convention against Torture. Although the number
of such cases has escalated in the past two years,
not a single perpetrator has ever been held to
account. In many cases, the police have not even
received or recorded complaints. Even if cases ever
go to court, the judiciary is completely compliant
with the government's wishes, so the prospects for
justice are naught.
Folk school participants also agreed that as
custodial torture is a form of systemic violence by
the state upon its own people, efforts to oppose it
involve a fight against the authorities who stand
behind it. This requires the ability to speak out
loudly. Where freedom of expression is seriously
curtailed or completely prohibited, addressing
torture and concomitant abuses is all but impossible.
The participants agreed that promotion and protection
of human rights is constantly hindered by control
over modes of communication and other means to
restrict freedom of speech and greater awareness
about the shocking realities afflicting countless
millions throughout Asia.
In Bangladesh and the Philippines journalists are
routinely targeted and killed by the police, army and
people working on their behalf. In the Philippines
alleged perpetrators escape even arrest or
investigation; in Bangladesh, the
executive-controlled courts have acquitted the
accused. In Pakistan laws imposed by the military are
used to stifle opposition. And in Thailand, criminal
defamation is used widely and severely to silence
dissent. The country's leadership in general is
intolerant of any kind of criticism. All this
restricts the possibility in these countries to
address grave abuses.
In Cambodia too, the government has prohibited
freedom of expression despite a constitutional
provision to the contrary. Protests are quickly and
uncompromisingly put down. Victims of abuses have no
means to complain or assert their rights under law.
As many other parts of Asia, the government has
organized gangs such as the so-called "Pagoda Boys"
to be used violently against opponents.
Burma is among the worst examples of a lack of
freedom of expression in Asia. It has for decades
been tightly controlled. Any form of dissent is
fiercely opposed. There is only a single permitted
narrative in the country: that imposed by the state.
Persons seeking to complain about police abuses find
themselves made the subject of fraudulent charges and
jailed. Even farmers who complain about land
confiscation, local corruption or ineptitude are
arrested and prosecuted. The courts are completely
corrupt and little more than a weak arm of the
military government.
By contrast to Burma, Nepal is a country that is now
coming out of a period of very severe repression;
nonetheless, it faces enormous challenges in the
days, months and years ahead. Both the government and
Maoists have been responsible for huge numbers of
atrocities in the last few years. Many incidents are
still occurring. However, the trading of allegations
and insults has damaged prospects for genuine
discussion towards change. Both sides remain armed
and ready to fight, and the lack of cases being
investigated and brought against army and police
personnel for abuses has the possibility to severely
affect public confidence at this critical time. It
may be that both sides will negotiate for an amnesty
as part of a political settlement, to the detriment
of countless victims and their families. So far also
there has been no move to change the law on torture,
which only allows for petty compensation, not
prosecution. And as in other states, the courts and
prosecution and investigating agencies are completely
defective: restoring them will require immense work,
resources and political will.
Both Nepal and India also suffer from the blight of
caste discrimination, which is itself closely linked
to torture and the failure of justice institutions in
Asia. Throughout Nepal and in parts of India--such as
Uttar Pradesh--separation by caste is still widely
enforced. Huge numbers of people are classed as
"untouchables", today broadly identified as Dalits.
These people suffer from excessive poverty and
degradation. They starve in the face of utter neglect
by the authorities. They cannot put their children
into schools, eat in restaurants or drink in
teashops, get registered to vote or listed as
scheduled castes and tribes, rent accommodation, or
visit temples. Feudal lords continue to hold them in
modern forms of slavery, such as bonded labor. Laws
to prohibit all of these practices and give relief
are simply not applied.
The participants at the folk school agreed that there
is still a long way to go for the rule of law and
human rights in Asia to be made reality. However,
they were encouraged by the commonality of their
efforts and joint recognition that change and
progress is possible. Authoritarian regimes in Korea,
Indonesia, the Philippines, Thailand and Bangladesh
have all been brought down by their peoples. In 2006
the people's overthrow of the absolute monarch in
Nepal has been a great example for others in the
region, as has the determined opposition to the
illegal election of the government in Thailand by the
public there. The government of the Philippines is
being subjected to growing and determined pressure
over its failure to end extrajudicial killings. There
are continued serious efforts by legal professionals
in China to make lasting reforms to criminal
procedure and law. Still, there are only two states
in the region that can be classed as democracies:
Korea and Japan; while Hong Kong has done much to
uphold rule of law principles despite not having
obtained universal franchise. In the Philippines,
Indonesia, Cambodia, Thailand, Bangladesh, India and
Sri Lanka elected governments promote a false image
of democracy while in fact undermining it through
overt or covert control of the courts and laws,
police, media and other key public institutions. And
in all countries of the region there are many areas
yet to be addressed in order to see that the rule of
law and human rights are truly enjoyed. The
participants reaffirmed their commitment to work
together towards these goals, to utilize modern
technology in order to advocate at the domestic,
regional and global levels, and build a common
understanding of the problems they face and
possibilities for change.
August 28, 2006
The Asian Human Rights Commission is a regional non-governmental
organization monitoring and lobbying human rights issues in Asia. The Hong
Kong-based group was founded in 1984.
Posted by Bulatlat
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© 2006 Bulatlat
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