Asian Legal Resource Centre, Hong Kong
Footnote: This article comprises of submissions that the Asian Legal Resource Centre made to the UN Human Rights Council at its 13th and 14th sessions, in February and May 2010. All submissions from these and other sessions are available on the ALRC website: www.alrc.net
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Council’s complete inaction concerning torture mandate’s recommendations denounced
The Asian Legal Resource Centre and its sister-organisation, the Asian Human Rights Commission, document hundreds of cases of torture each year in the Asian region. The eradication of torture must be at the heart of any realistic attempts to improve human rights in any given country, yet, the Special Rapporteur on torture, Manfred Nowak, has noted the Council’s failure to act on his study on torture and his report to the 13th session of the Council (A/HRC/13/39/Add.5).
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The ALRC is disappointed to note that despite so many members of the Council ritually repeating the mantra of “cooperation” in the Council, it is clear that States are failing to cooperate in practice with the Special Procedures. The Rapporteur notes in his report concerning communications that “While the majority of Governments replied in one way or another, serious investigations into the allegations of torture and ill-treatment which actually led to sanctions against the officials responsible were only conducted in exceptional cases.” Some governments have even completely failed to respond to communications. Similarly, the fact that a significant number of requests for country visits remain pending after many years is an indicator of a failure of cooperation by States with the Council’s mechanisms. The ALRC is, for example, particularly concerned that the government of India has still not invited the Special Rapporteur to conduct a country visit, despite a request having been pending since 1993.
Of major concern is the fact that country-specific conclusions and recommendations by the mandate have never led to any specific resolutions or recommendations by the Human Rights Council. The members of the Council are all responsible for this serious failure and are urged to move beyond the gamesmanship and empty rhetoric that have been witnessed to date in the work of the Council and to begin to have a tangible impact at the country level concerning human rights.
The fight against torture would be an appropriate place to start. The practice of torture is at the crux of most grave human rights abuses. It is a typical means through which the state violently impacts on the individual. Torture forms an essential link in the chain of grave human rights abuses, from arbitrary and incommunicado arrests and detentions, through to forced disappearances or extrajudicial executions. In tackling this practice with the seriousness that it evidently requires, the Council would begin to show that it is relevant and valuable. A failure to do so will convey the opposite message.
The Council clearly needs to move beyond the superficial discussions that have been the hallmark of its work to date and tackle the substance of issues in a tangible and verifiable way. The Council is hiding behind excuses, such as the desire to avoid selectivity, in order to avoid taking any action. Instead of freezing in the headlights, the Council should address all allegations of grave human rights violations as and wherever they surface in order to ensure that it cannot be accused of selectivity over time.
The Rapporteur notes that the problem of torture and ill-treatment is global. Victims of torture all need the support of the international system, regardless of their nationality. Addressing torture across the board therefore cannot be deemed selective. Beyond this, the key is not to engage in simply denouncing torture and making use of allegations of abuses for political posturing, but to make constructive and effective use of the information already made available by the Special Rapporteur, which is regrettably being ignored at present, in order to take concrete action to support governments in the eradication of torture.
The ALRC applauds the work of the Special Rapporteur and welcomes his report and study on the phenomenon of torture, which concisely presents many of the issues that the ALRC has also encountered through its work in Asia. As noted in the report, despite torture being amongst the gravest of human rights violations and despite its absolute prohibition, torture and ill-treatment are widespread practices in the majority of the countries on our planet. This is particularly true in Asia, where torture is endemic and practiced systematically, including in fighting ordinary crime, in the majority of the region’s nations.
In addition, the ALRC welcomes the efforts made by the Special Procedures as part of the “Joint study on global practices in relation to secret detention in the context of countering terrorism” (A/HRC/13/42). The ALRC notes that the report has included a number of examples from the past in several Asian nations and wishes to highlight one issue that is not contained therein. The ALRC has informed the Council and the Special Procedures on several occasions about its identification of some 52 secret detention and torture centres in Pakistan. The ALRC urges the relevant Special Procedures and the Council to address this issue as a matter of urgency and take all necessary steps to ensure that the Government of Pakistan closes these centres immediately and investigates and renders justice concerning all related allegations of abuse stemming from these centres.
While acknowledging the value of the attention given to the specific issue of torture as part of counter-terrorism, the ALRC recalls the Special Rapporteur’s finding that “most victims of torture are not political prisoners or suspected of having committed political ‘crimes’, but ordinary persons suspected of having committed criminal offences. They usually belong to disadvantaged, discriminated and vulnerable groups, above all those suffering from poverty.” The ALRC urges the Special Procedures and the Council to find ways to give particular attention to the chronic, endemic and systematic nature of torture, as this aspect of the phenomenon is being overlooked despite it representing the greatest component of the problem of torture.
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It is important to take into account that torture is most frequently practiced in the context of investigations concerning petty crimes. The ALRC has documented numerous cases in which torture is used in order to extract money from hapless victims. In Bangladesh, for example, Mr. Abdul Razzak, a law graduate, was arrested without any legitimate reason on 21 October 2008, and detained at a police station in Kartun for several days. He was charged with the abduction of a young girl, a charge which had no basis in fact. Between October 21 and November 12, Razzak’s family had to pay bribes to police officers and others on 16 occasions. This case is indicative of so many in Bangladesh, in which arbitrary arrests and torture are used by officials simply to make money. The ALRC has documented cases showing the nexus between torture and extortion in numerous countries in Asia, including, inter alia, India, Myanmar, Pakistan, Sri Lanka and Thailand.
In many Asian States, torture is not even a crime. As an example, the ALRC has also submitted a written submission to the 13th session of the HRC concerning the specific need to criminalize torture in Bangladesh. Even in countries where torture is criminalized, such as in Sri Lanka, which adopted a law by way of Act No. 22 of 1994, or the Philippines, which has recently adopted a law against torture, these laws have not been implemented in practice and torture continues to be practiced endemically and with impunity.
The use of torture for gathering information, for extracting confessions, or for intimidating persons is prohibited by the Convention Against Torture. That notwithstanding, torture is being used systematically as the main method of investigation in many Asian nations. The AHRC has documented thousands of such cases of torture in Asia and published a compilation and analysis of 200 cases in Sri Lanka in early 2009.
Importantly, the Rapporteur notes in his report that the criminal justice systems in most countries are not functioning properly and that there is a lack in many country settings of a specific crime of torture in accordance with the definition in article 1 of the CAT. These factors represent major obstacles to the realisation of the protection against torture. While the ALRC urges all states to ratify the Convention against Torture and its Optional Protocol, ratification devoid of full implementation is of little value in practice. Beyond ratification, there is a need to criminalize torture and to provide adequate political will and resources to ensure the implementation of domestic and international laws and obligations. This is sadly lacking in most Asian nations at present. No will has been shown to eliminate the use of torture by equipping officers with other methods of investigation, such as better training in interrogation techniques, providing better equipment for investigations, and providing forensic and other technologies for use in criminal investigations. The failure to develop a proper methodology for investigations is often a result of the failure by states to invest adequate funds in the administration of justice, including investigation systems, professional prosecution staff and the judiciary.
Membership in the Council should be contingent on verifiable actions by governments to criminalize torture and to reform national justice delivery mechanisms to ensure the law’s effective implementation. The lack of procedural safeguards, of complaints mechanisms, of independent bodies for the investigation of torture and obstacles to the right to a remedy and adequate reparation in practice have all been highlighted by the Rapporteur in his report. The ALRC urges the Council to include a technical assessment of all of these issues in states’ Universal Periodic Reviews and throughout the body’s other work.
The Special Rapporteur has also noted that the fight against impunity is the key battleground. He has stated that “impunity is one of the main reasons why torture is so strongly entrenched—In most States I visited, impunity was close to total, despite an undeniable, sometimes routine, widespread or even systematic practice of torture. In a few countries, the Government was not able to provide me with one single case in which a perpetrator of torture had been held accountable under criminal law and punished with adequate sanctions.” The ALRC’s experience of the problem of torture in Asia confirms the prevalence of impunity and also mirrors the Special Rapporteur’s findings concerning the non-existent or severely limited right to remedy and adequate reparation.
The ALRC therefore urges all United Nations members, notably actual or future members of the Human Rights Council, to ensure that they establish a legal framework that unambiguously prohibits and sanctions torture. The Council should ensure that its members have verifiably implemented the criminalization of torture. The idea that a State can be engaged in any form of effective protection of human rights, let alone to the level required for credible membership within the UN’s apex human rights body, without such action, is laughable.
The Council must also ensure the implementation of recommendations by the Special Procedures. The ALRC welcomes the suggested establishment of a Global Fund for National Human Rights Protection Systems. The abject lack of any action resulting from the recommendations of the Special Rapporteur on torture should act as a wake-up call. The continued failure by the Council to act upon such expert input places the relevance and credibility of the Council under serious risk.
Finally, the Council is urged to ensure that a competent, independent mandate holder is selected to follow in the footsteps of Manfred Nowak when his tenure as Special Rapporteur comes to an end later this year. The Council must make a strong selection, taking into consideration the proposals of non-governmental organisations, to show that it is working to make amends for its inaction concerning torture to date and to continue the tradition of able and competent mandate holders concerning this crucial issue.
Council failing to address situations of widespread forced disappearances
The Asian Legal Resource Centre is gravely concerned by the fact that, despite regularly receiving information concerning widespread and numerous cases of forced disappearance, including many in the Asian region, the Human Rights Council has failed to take effective action to have a tangible impact on the prevention of further abuses on the ground.
The Council’s much-vilified predecessor, the Commission on Human Rights, was nevertheless able to take action based on reports of widespread disappearances that lead to their reduction. For example, in establishing an office of the High Commissioner for Human Rights in Nepal, the Commission took action that contributed to a significant reduction in the number of disappearances in the country, which had previously had the highest number of disappearances in the world. Faced with similar situations of mass disappearances in Sri Lanka and Pakistan, where thousands have allegedly been subjected to forced disappearance by the state, the Council has remained wholly ineffectual.
Oversight and monitoring of critical situations remains a key element in preventing disappearances. Those countries in Asia that have forced disappearances have all failed to provide effective systems for witnesses and relatives of victims to register complaints and for effective investigations to be conducted into allegations of disappearances. The investigating authorities, particularly the police, are complicit in routinely refusing to register complaints. The lack of effective investigation engenders impunity concerning this grave human rights violation. Those committing disappearances—frequently the security forces—have been encouraged as a result to ignore standard legal procedures on arrest and investigation and instead arbitrarily detain and disappear individuals that they seek to question or have under their control.
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In Sri Lanka, the government has admitted to having “removed” 10,000 internally displaced persons from IDP camps to question them about their links to the LTTE after the conflict concluded in May 2009. The military-run IDP camps have not issued any public records concerning the identities and number of persons being held there. This has provided an open invitation to either the security forces or those working for them to remove persons on the pretext of questioning without a trace. Disappearances have therefore been enabled by systemic lacuna on the part of the state. Custodial interrogations should have been conducted under investigation procedures defined by law. These have been deliberately ignored, and not for the first time in the country. This type of removal and disappearance was common during the JVP suppression campaigns between 1987 and 1991, which resulted in 30,000 disappeared persons.
The breakdown of the rule of law, the corruption of law-enforcement agencies and the absence of effective protection mechanisms have combined to enable mass disappearances carried out with impunity in Sri Lanka. Accompanying such practices has been the emerging phenomenon of abductions for ransom. The case of a 6-year-old girl, Varsha Jude Regi, who was abducted in exchange for money in March 2009, illustrates the failure by the government to ensure that its citizens’ right to life, security and liberty are protected. Abductions are being perpetrated by hooded persons in white vans, some of whom have been identified as being police officers.
Also in Sri Lanka, child rights defender Mr. Sinnavan Stephen Sunthararaj was abducted and disappeared in May 2009. He had previously evaded an attempted abduction in February 2009 by persons riding in a white van. They were identified as being Special Task Force officers. Despite complaints, no credible investigation has been conducted in the case of Pregeeth Ekanaliyagoda, a journalist and political analyst, who was abducted in September 2009, and reportedly detained handcuffed in an unknown location underground before being released. He again went missing on 24 January 2010.
In Pakistan, the government has admitted to the Supreme Court that around 1600 persons disappeared in 2008 and the Balochistan Provincial Ministry issued a list that contains 992 names of missing persons on 10 December 2009. The disappeared are thought to include 168 children and 148 women. The police are complicit in these disappearances, as police officers typically refuse to register First Information Reports regarding cases of disappearances, eliminating the prospect of having these cases investigated, and therefore enabling impunity. The aforementioned list issued by the ministry resulted from it making a public appeal for people to report missing persons. However, despite the Supreme Court and the ministry now having lists of disappeared persons, there is only a small chance that any of these will be investigated, the victims’ whereabouts located or those responsible prosecuted.
The country’s notorious Inter-Services Intelligence has allegedly been involved in orchestrating the disappearance of dozens of persons that they had trained as Jihadis in Pakistani-held Kashmir, Azad Kashmir. The ISI reportedly recruits, trains and sends Jihadis into Indian-occupied Kashmir to conduct espionage. Jihadis that return to Pakistan after completing their assignments and that refuse further assignments have reportedly been disappeared. Between July 2009 and February 2010 around 15 such cases have been reported to the ALRC. The ALRC has documented numerous other cases of forced disappearances allegedly perpetrated by the intelligence agency, which is able to carry out these grave rights violations with impunity due to a lack of civilian oversight, the police’s refusal to register complaints, and the lack of a system of accountability for the military and the intelligence agencies. Despite the democratic change of political leadership in the country, the military remains above the law and able to enjoy impunity for past and ongoing human rights abuses.
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In Nepal, although cases of disappearance have dropped, as mentioned above, the military interferes in and undermines the investigation of forced disappearance cases. In the case of Maina Sunuwar, a 15-year-old girl who disappeared in February 2004, it took four years for Major Niranjan Basnet of the Nepal Army and his three co-accused to be charged in court for illegally arresting, disappearing, torturing, raping and murdering Maina Sunuwar. The military initially obstructed numerous attempts by the police to investigate the case and to retrieve the victim’s body. The Kavre District Court issued an arrest warrant against the alleged main perpetrator, Major Basnet, on 10 February 2008. Despite this, he was allowed to be sent to Chad in September 2009 as part of the United Nations peacekeeping mission. He was finally repatriated on 12 December 2009 to face trial in Nepal, although concerns remain as to whether justice will ultimately be done.
In the Philippines and Thailand, although the police may register complaints of disappearances there are no domestic legal remedies for relatives of victims seeking the prosecution of those responsible as enforced disappearance has yet to be criminalized. Despite evidence often linking the police and the military to the disappearances, such cases are typically not effectively investigated and impunity prevails.
In Thailand, the police only act on reports of forced disappearance 48 hours after the person was reported as missing. In cases of forced disappearance, time is of the essence, so to treat such cases as simple missing person cases is evidently problematic. In the Philippines, the police also routinely tell those who report disappearances even before investigating the complaint that their loved ones may just have eloped with their lover, and tell them to just wait until they return home.
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Numerous enforced disappearances of human rights and political activists remain unresolved in the Philippines. From January 2001 to December 2009, local human rights organisation KARAPATAN documented 205 cases of forcible abduction and disappearance. In two of these cases, concerning Jonas Burgos, who was abducted and disappeared in April 2007; and James Balao, who disappeared in September 2008, evidence links their disappearances to the security forces.
Despite this, no progress has been made in locating their whereabouts. On 19 January 2009, a court in La Trinidad, Benguet, ordered the government, in approving the writ of amparo Balao’s relatives had filed, to “disclose where (Balao) is detained or confined (and) release (him)”. Despite the court’s findings that the police and military had “failed in conducting effective investigation of (Balao’s) abduction”, none of those responsible have been held to account. This case illustrates that even if the court reveals the police and the military’s failure in carrying out effective investigation concerning cases of disappearance, no punishment is imposed.
Similar problems are encountered in the case of Somchai Neelaphaijit, a prominent human rights lawyer who was forcibly disappeared in March 2004 in Thailand. Despite eyewitness testimony that Police Major Ngern Tongsuk was among a group of police who abducted Somchai, the Criminal Court in Bangkok on 12 January 2006 convicted him alone for coercion. He was later released pending an appeal but has reportedly fled the country after faking his death. The failure to promptly resolve Somchai’s disappearance has also exposed witnesses and Somchai’s family to continuing threats and intimidation since 2004. On 11 December 2009, Mr. Abduloh Abukaree, one of the key witnesses in the continuing investigation by the Department of Special Investigation into Somchai’s case disappeared while returning from a teashop near his home in Ra-ngae district, Narathiwat Province.
Asia remains the scene of a significant proportion of the world’s cases of forced disappearance and while there is no functioning effective regional human rights mechanism, the onus is on the Human Rights Council to take action to address such serious and widespread human rights violations. The Human Rights Council needs to go beyond cursory examinations of certain crises and show that it can have a tangible impact in protecting human rights in line with its mandate. If it is to avoid losing all credibility, the Council needs to take action to protect individuals from serious human rights abuses. The root causes that enable serious violations of human rights on a massive scale, such as the patterns of forced disappearances seen in Sri Lanka and Pakistan, need to be understood and addressed.
The ALRC therefore urges the Human Rights Council to study and review the complaints and investigation mechanisms of all states under review by its Universal Periodic Review. Ratification and implementation of the International Convention for the Protection of All Persons from Enforced Disappearance, including the criminalization of this practice, should be a precondition for membership in the Council. All the states mentioned here should also be urged to extend standing invitations to the Working Group on Enforced or Involuntary Disappearances and to cooperate fully with this mechanism. Furthermore, all necessary support must be provided to the Working Group on Enforced or Involuntary Disappearances, which continues to play a key role in addressing cases and situations involving forced disappearance. Finally, the Council should also develop a mechanism to ensure rapid, independent international investigations into all credible allegations of widespread and numerous disappearances in a particular country.
Council urged to do more to prevent arbitrary detention, the gateway to other grave abuses
The Asian Legal Resource Centre and its sister organisation, the Asian Human Rights Commission, have documented numerous arbitrary detentions throughout the Asian region in the year preceding the 13th session of the Human Rights Council. Cases, notably from Bangladesh, Cambodia, India, Indonesia, Myanmar, Nepal, Pakistan, the Philippines, Sri Lanka and Thailand, show a consistent and widespread pattern of abuse of authority by law enforcement agencies concerning illegal and arbitrary detention. Arbitrary detention is not an exceptional measure in many Asian settings, but is endemic, engenders a climate of fear and is a gateway violation that enables a chain of abuses, including torture and forced disappearance, which continue to blight the region.
The prevalence of arbitrary detention in the Asian region is a reflection of failing justice systems. It is an immediate and visible symptom of suppressive policing systems and ineffective justice machineries. Arbitrary detention is directly proportionate to the absence of democratic space in a particular state. It is augmented by justifications provided by counter-terrorism, but finds its root in weak institutions and the lack of remedies available to victims.
For this reason, dealing with arbitrary detention in the Asian context requires adequate understanding of its root causes, notably corruption associated with law enforcement and impunity.
The unwillingness of states in the region to deal with problems concerning law enforcement agencies have only contributed to the further deterioration of the rule of law and the need for effective and meaningful attention to this problem by the international system, notably the Human Rights Council.
Arbitrary detention is widely utilised by the economic and political elites in most Asian nations, through state agents and institutions, to maintain social control and to retain their dominance within societal power structures. Numerous cases have been communicated by the ALRC to the UN Working Group on Arbitrary Detention, requesting intervention. Below are some examples that highlight issues such as corruption, the lack of remedies, negative trends in legislation and counter-terrorism, and the use of arbitrary detention to target migrants, silence political opposition, stifle media freedom and undermine the work of human rights defenders.
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In Pakistan, on 26 April 2009, officers from the Airport Police Station in Rawalpindi (Punjab province), arrested Nadia (19 years old), Shazia Riaz (16) and Nazia (12) from their residence. At the police station, Station House Officer Choudhry Safdar and Assistant Sub-Inspector Basheer abused and assaulted the three girls. After four days of illegal detention, the police produced the girls before civil judge, Mr. Azmat Ullah, in Rawalpindi. The police accused the girls of helping their brother, Fazal Abbas, to abduct Ms. Kulsoom Baloch, the daughter of a wealthy businessman. In fact, Kulsoom had married Abbas against the wishes of her family. Kulsoom’s family was using their influence with the local police to exact revenge on Abbas’ family.
Corrupt law enforcement officers enter into pacts with the wealthy and influential and abuse their powers to illegally and arbitrarily detain innocent persons in this way in many Asian countries. Law enforcement agencies also often resort to arbitrary detention as part of criminal investigations, due to the absence of a functioning institutional and legal framework for proper criminal investigation and the lack of proper procedures to check arbitrary uses of power. The victims of arbitrary detention are often poor and therefore unable to afford legal protection to seek redress and combat impunity concerning excesses of authority by the State.
Mrs. Muliyana (24) from Natar, Indonesia, was arrested by the Jakarta Metropolitan police on 24 July 2009, detained for six days and tortured in order to force her husband, Mr. Azwan Effendi, to surrender to the police. He was suspected of involvement in a bank robbery. Despite Effendi having surrendered himself, the police continued to torture Muliyana, including using electric shocks on her stomach in front of her husband to get him to confess to the robbery and to locate the stolen money. The police released Muliyana without registering a case and charged her husband with robbery.
There is a serious lack of legal remedies available to victims of arbitrary detention in Asia. For example, there is no specific law that prevents a police officer from committing arbitrary detention in Nepal and Cambodia. In jurisdictions where there are legislative provisions, such as India, these are rendered void in practice through the inability of the justice delivery system to provide timely remedies and punish perpetrators. This weakness is exploited by governments to use arbitrary detention as a tool to silence political opposition.
There is a trend concerning legislative changes in India, Sri Lanka, Thailand, Indonesia and South Korea that favours extended periods of statutory detention, for which national security is used as an excuse. For instance, a person charged under the Internal Security Act BE 2551 (2008) in Thailand can be detained for a period of 30 days and the arresting authority is given wide-ranging discretionary powers that can infringe the fundamental rights of the detainee. While in most States the 24 hour norm is still the standard under the ordinary criminal procedure, newly-drafted statutes provide exceptions to this norm for periods ranging from 30 to 90 days of detention. National security and the concept of preventive detention are being used to justify an increasing number of arbitrary, lengthy detentions.
Arbitrary detention has also become an effective instrument to impart fear among human rights defenders. The state police in the Indian state of Manipur arrested human rights defender and environmental activist, Mr. Jiten Yumnan, on 14 September 2009, along with seven other local political activists to end a state-wide protest against the state government demanding investigation and prompt action against the police officers who had killed two persons. The detainees were charged under the provisions of a draconian law, the National Security Act, 1980. The police tortured Jiten in custody. After four months, the police released Jiten and withdrew the charges. Even though the victims want to pursue a case against the government and the police officers, they are afraid to do so since the courts in India will take at least a decade to decide the case, an inordinately long period during which the victims have no means to find protection from further persecution.
In a similar case reported from South Korea, the police arrested two human rights defenders, Mr. Park Lae-gun and Mr. Lee Jong-hoi, on 11 January 2010. Arrest warrants had been issued against Park and Lee for reportedly being instrumental in organising protests concerning forced evictions in Youngsan-Gu, Seoul. Several participants were reportedly killed by the authorities during a crackdown on the protests. The cases registered against Park and Lee and their arbitrary arrests represent serious violations of their rights and of South Korea’s obligations under the International Covenant on Civil and Political Rights (ICCPR).
Arbitrary detention is also used to infringe media freedoms. On 2 April 2009, the AHRC reported the cases in Myanmar of Ms. Ma Eint Khaing Oo working for Ecovision Journal and Mr. Kyaw Kyaw Thant, a freelancer with Weekly Eleven, who were arrested by the authorities for arranging for victims of Cyclone Nargis to meet with officers of the International Committee of the Red Cross (ICRC) and United Nations Development Programme (UNDP) in Yangon. The authorities accused the journalists of inciting the citizens to stir up trouble and of creating animosity towards the government. Both were sentenced to two years’ imprisonment with hard labour, but were released in September owing to external interventions.
During the past two years, the Government of Sri Lanka has used arbitrary detention as a tool to silence political opposition in the country. Recent events, particularly in connection with the presidential election, reveal shocking use of arbitrary detention as a tool of repression and revenge. The government has openly resorted to arbitrary detention of not only journalists and human rights defenders, but also of its own officials, including military officers who publicly condemned the government. During the civil war, human rights defenders who condemned breaches of international humanitarian law were either detained without charges for long durations or were charged with offences under the draconian Emergency (Miscellaneous Provisions and Powers) Regulation No 1, as amended vide gazette notification 1132/14.
Arbitrary detention is also used against migrants. For instance, it is widely used for mass arrests of Burmese refugees staying in Thailand. The government of Thailand uses arbitrary detention as an instrument to ‘clean’ the country of unwanted migrants, violating their rights and its obligations under the ICCPR in the process.
Governments in Asia are making use of the fight against terrorism to justify oppression within their states, contributing to the increase of arbitrary detention of persons in undisclosed destinations. The Working Group on Arbitrary Detention has repeatedly requested states not to resort to arbitrary detention as a tool for combating terrorism. In 2009, the existence of secret detention centres in India was exposed by the media, but the government continues to deny their existence. This is not a surprise, as the government has continuously failed to cooperate with most United Nations human rights mechanisms concerning human rights situations in India: a fact that has been reported by the Working Group on Arbitrary Detention in its report to the Council.
While arbitrary detention is itself a violation of human rights, it is also a gateway to a range of further abuses and should therefore be addressed as an important component in the prevention of grave human rights abuses. Arbitrary detention provides the mechanism through which state authorities can exert control over individuals, allowing for graver abuses to be perpetrated, often in secret locations and with impunity.
The ALRC has noted that except for a few jurisdictions like India and the Philippines, the writ of habeas corpus or its legal principles either do not exist in practice or are poorly developed in Asia. For instance, in Thailand, although an equivalent of the writ exists it is obstructed through a heavy burden of proof being placed on the petitioner. In most cases, state agencies simply deny having missing persons in custody and such petitions are dismissed. In other jurisdictions, such as in Sri Lanka, the courts themselves entertain a negative attitude towards the application of the writ. The ALRC has studied 800 such cases dismissed by the Sri Lankan courts during the past two years that led to this conclusion.
In light of the importance of the practice of arbitrary detention in limiting a range of human rights and enabling further grave abuses, the ALRC urges the Council to:
1. Provide more institutional as well as infrastructural support for the Working Group on Arbitrary Detention, considering its unique status as the only non-treaty-based mechanism whose mandate expressly provides for consideration of individual complaints;
2. Ensure that all States ensure full cooperation with the Working Group on Arbitrary Detention, including concerning individual complaints and appeals as well as by issuing standing invitations for country visits;
3. Assist the Working Group on Arbitrary Detention in identifying and addressing patterns in different regions, including Asia, of arbitrary arrests and their root causes, including weaknesses in justice institutions, as well as linkages with other rights violations, notably torture and disappearances; and,
4. Urge States to prevent violations of their mandatory obligations under the ICCPR on the pretext of national security and counter-terrorism.
Wide-ranging restrictions on freedoms of expression must be addressed
The Asian Legal Resource Centre wishes to highlight a number of restrictions to the freedom of expression ongoing in several countries in the Asian region. There are a number of situations in the region that are cause for concern with regard to this important right, affecting a range of countries with different levels of development, democracy and records concerning human rights.
At one extreme, in Myanmar, the absence of opportunities for free speech is nullifying the prospect for any notion of free and fair elections. The media have been prohibited from analysing the new laws and rules for the planned elections, or from saying anything about parties already registering for the ballot.
Furthermore, in countries in the Asian region that have a range of records concerning the respect for human rights, the ALRC has also noted worrying trends to curtail and violate the freedom of expression, pointing to a wide-ranging and complex problem affecting the entire Asian region in various forms.
In the Republic of Korea, for example, since the current government came to power, it has appointed a close supporter of the President as CEO of the Korean Communications Commission. Mr. Jeong Yeong-ju, the CEO of the Korea Broadcasting System, was also forced out of office and union members were dismissed for protesting against these developments.
Mr. Park Dae-sung—a blogger also known as ‘Minerva’—was arrested on 6 January 2009 and detained until April 20 for publishing articles on the Internet, notably concerning gloomy predictions about the future of the Korean economy. In July 2008, the Ministry of National Defence labelled 23 books as being seditious. Mr. Park Won-soon, a human rights lawyer alleged illegal activities by the National Intelligence Service in an interview with a weekly magazine on 10 June 2009, and based on this the NIS sued him on September 14 for civil defamation, requesting 200 million Korean Won, or around USD 170,000 in damages. Several bills that will likely further undermine the freedom of expression have been introduced without adequate public discourse. They include measures to expand the number of internet portal websites that have to adopt a ‘self-verification identity system’ that registers the identity of users, as well as the creation of a new form of illegal act, known as a cyber insult.
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Freedom of expression is greatly constricted in Thailand. Through the lesè majesté law (Article 112 of the Criminal Code) and the more recent Computer Crimes Act of 2007, a series of dissidents, journalists, and observers of politics have been threatened, intimidated, and in some cases, arrested and prosecuted. The Computer Crimes Act of 2007 was passed in order to address hacking, unlawful accessing of computers or network resources not in possession of the user, and intercepting of emails and other electronic data with the aim to commit theft or other criminal activities. The act gives authorities wide-ranging powers to search the computers of suspected users, as well as to request information from internet service providers about the identities of owners of computers with particular IP addresses. Since its inception, the act has been used to silence opposition and intimidate journalists and other citizens.
In April 2009, Suwicha Thakor was sentenced to ten years in prison under both the lesè majesté law and the Computer Crimes Act for allegedly posting YouTube clips insulting to King Bhumipol, Thailand’s 82-year-old monarch, to a web board. Compounding the dangers to freedom of expression contained within the two laws, full information about all of the pending and prosecuted cases is not available, as to repeat information about the charges risks causing the speaker to be charged as well. Several exemplary cases illustrate the range of abuses possible under the two laws.
Darunee Charnchoengsilpakul was sentenced to eighteen years in August 2009 for alleged crimes of lesè majesté she committed during speeches she made during political rallies in support of ousted former PM Thaksin Shinawatra in June and July 2008. When she was sentenced in August 2009, the court decision included transcripts of her comments. She never mentioned the monarchy or related institutions or individuals by name. However, as noted in the judgment, the court extrapolated the objects of her speech, as well as made conclusions about her intentions. On the basis of the court’s extrapolation and interpretation, she was sentenced to eighteen years in prison. Of primary concern, she has significant untreated dental problems. In early 2010, the physician at the prison wrote a report explaining the seriousness of her condition and his inability to treat it with the facilities at the prison. Darunee’s family filed an appeal for temporary release for her to seek care at a specialized clinic outside the prison. The appeal was denied, on the basis of the alleged severity of her crimes, and the non-life-threatening nature of her dental problems.
Under the Computer Crimes Act, computer users have been accused of committing crimes by circulating others’ words and images, and web editors have been accused of not censoring others’ words, or not doing so quickly enough. Chiranuch Premchaiporn, webmaster of the Thai and English-language progressive news site Prachatai, was arrested and charged on 31 March 2010 under the Computer Crimes Act for allegedly not removing offensive webboard comments quickly enough. She is currently out on bail, but could be sentenced to up to fifty years for her alleged crimes. On 1 April 2010, the government-majority-owned Mass Communications Organization of Thailand reported the arrest of Thanthawut Thaweewarodomkul, who “confessed to posting messages received from a person using a pseudonym on eight websites.” The terms of the draconian lesè majesté law and the Computer Crimes Act mean that the alleged content of his crimes have not been made public, but other reports indicate that Thanthawut also maintained websites which cover the opposition red-shirt movement.
Increased arrests, charges and convictions under both the lesè majesté law and the Computer Crimes Act of 2007 represent a grave threat to freedom of expression and human rights broadly in Thailand. During the crisis between the opposition red-shirts and the government which began in late March 2010, the government announced extensive funding and other state resources being allocated for monitoring of websites and web boards. This means that anyone active in dissident Thai politics online must wonder if, and when, there will be a knock at the door.
In Sri Lanka, since the end of the conflict the government has tightened restrictions on the freedom of the media in order to silence any form of dissent or criticism. Journalists have even been killed; the most infamous example concerns Lasantha Wickramatunga, the editor of the Sunday Leader who, a few weeks before his death predicted his assassination and pointed the finger at the government in the event that it should come to pass. He was killed on 8 January 2009; however, to date no effective investigation has been conducted and no-one has been prosecuted for this crime. An estimated 40 prominent journalists have left Sri Lanka claiming that their lives have been seriously threatened. For example, Poddala Jayantha, a senior journalist who is also the General Secretary of the Sri Lanka Working Journalists Association and a key activist of the Free Media Movement in Sri Lanka was abducted on 1 June 2009 in broad daylight near the Embuldeniya junction in Nugegoda. His legs were broken and he was thrown out of a white van. He survived but was forced to leave the country due to further threats.
Keith Noyer, another well-known journalist, was abducted after he wrote an article critical of some financial aspects of the Sri Lankan military. After resurfacing he fled the country. Many others have imposed self-censorship on themselves for fear of repercussions. Journalists who have visited the country have complained of various kinds of harassment. The overall situation is extremely threatening to all those who are engaged in the publication of material that challenges the government, particularly concerning the issue of corruption or the manner in which the security laws have been used.
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In Indonesia, the Attorney General’s Office has been engaged in acts of censorship. On 23 December 2009 the attorney general’s office announced the banning of five books including an Indonesian translation of John Roosa’s “Pretext for Mass Murder: The September 30 Movement and Suharto’s Coup,” a historical review of the political turmoil in the 1960s that resulted in millions of persons being imprisoned or killed. Other censored books include writings about human rights violations in the Papuan provinces and religious freedom. The office justified this claiming that such books risked “disturbing public order” or threaten “state unity”.
The Indonesian Film Censorship Board (LSF) dates back to the colonial period in Indonesia’s history and continues to ban movies, as recent cases show. Three documentaries about East Timor and one about Aceh were banned during a movie festival in order to avoid “social unrest”, according to the authorities. The ALRC is concerned that the prohibition of these publications not only violates the fundamental freedom of expression but also fosters impunity by blocking public discourse on key human rights issues in Indonesia. Censorship by the office and the LSF is arbitrary and doesn’t follow any objective standards or legal criteria.
Radio Era Baru – a radio station airing in the local language and Mandarin Chinese has been forcibly shut down by the police. The station had its equipment forcibly seized on 24 March 2010. The police and Batam Radio Frequency Spectrum Monitoring Agency officials, representing the Indonesian Broadcasting Commission, closed the radio offices in Batam, Riau Islands Province to stop broadcasts. An investigation by the National Human Rights Commission concluded that the move was in response to pressure from officials from the People’s Republic of China, who objected to the station’s airing of criticism of Beijing’s human rights record. After a visit from Chinese officials in 2007, several Indonesian institutions and ministers received letters from Beijing, requesting a termination of the licence of the radio station. The Riau regional branch of the Indonesian Broadcasting Commission had refused to renew the radio’s licence ever since, without a valid explanation. The matter is now being appealed in the Supreme Court. The closure of the radio station is of particular concern given its international character.
The Asian Legal Resource Centre is gravely concerned by the fact that it is currently witnessing serious attacks on the freedom of expression in many different contexts in Asia. These restrictions take many forms and are adapting to the level of development and means of communication available, either through direct prohibition, threats and attacks on the media, the censorship of publications, or even attempts to control online content and monitor or even punish the authors of such material.
The ALRC urges the Special Rapporteur on the freedom of opinion and expression to raise the above issues with the relevant governments. More widely, the ALRC urges the Special Rapporteur to conduct a study to evaluate the quantity, timeliness and quality of government responses to the mandate’s interventions and recommendations—similar to the study carried out by the Special Rapporteur on torture—and urges the Human Rights Council to make the required resources available for this.
Access to justice and fair trials a distant dream in Nepal, India and Bangladesh
The Asian Legal Resource Centre welcomes the report by the Special Rapporteur on the independence of judges and lawyers and supports the need for increased efforts to improve human rights training and education for judges. In addition, the ALRC wishes to underline that education must be accompanied by structural and systemic reforms—notably concerning appointments, security of tenure and disciplinary mechanisms—as well as legal provisions to ensure the independence of the judiciary and to protect against corruption, without which education alone will not be able to improve the protection of human rights in many countries, notably those with which the ALRC is concerned in Asia. In this statement, the ALRC will focus on concerns relating to obstacles to access to justice, the functioning of judiciaries and fair trials in Bangladesh, India and Nepal.
Nepal
The ten-year long Maoist insurgency has inflicted long-term damage on Nepalese institutions, notably the judicial institutions. The absence of a comprehensive and coherent legal framework and inadequate financial resources are the cause of such damage.
Since the country only has courts at the district level in its 75 districts, those living in remote areas have to travel for days to attend courts. Village Development Committees entrusted with limited juridical power can adjudicate petty disputes. Nevertheless, in numerous places the conflict that has affected the country in its recent past has led to the physical destruction of the VDC infrastructure and forced the VDC secretaries to flee to the cities. In addition, the prime minister dissolved the elected local bodies in 2002, further denying rural inhabitants access to justice.
The poor functioning of justice institutions denies the country’s citizens their right to due process. According to information received in 2008, the backlog of cases in the country was estimated at around 50,000 cases and this has certainly not been reduced in the interim.
Corruption remains the major concern in the administration of justice in Nepal. Former Chief Justice Anup Raj has acknowledged the necessity to fight corruption and malpractices at all levels of the judiciary. According to the Transparency International’s 2006 and 2007 Corruption Perception Index, the judiciary was deemed the institution most affected by corruption in Nepal. Groups or individuals with vested interests exploit this situation to the disadvantage of the most vulnerable groups. Equality in access to justice remains remote for disadvantaged groups, including Dalits, indigenous communities and women.
The police have been creating obstacles to the access to justice of those groups either by refusing to register cases or by pressuring victims into negotiated settlements with more resourceful perpetrators. In the case of Runchi Mahara, an 11-year-old Dalit girl who was raped and murdered in September 2009, despite strong evidence against the suspect, the police released the suspect, and refused to register a case or launch an investigation. Since the suspect received support from local ruling political party members, the victim’s family had to withdraw the case. In the same month, the District Police Office of Morang pressured Ms. Somandevi Sardar, a 60-year-old Dalit woman who had been accused of witchcraft, beaten up and forced to eat human excreta by her neighbours, into finding a negotiated settlement with the perpetrators and to withdraw her complaint.
Extensive judicial powers granted to police officers by laws such as the Arms and Ammunitions Act, 1962 under which a Chief District Officer has the power to sentence people to up to six years’ imprisonment, increase the risk of denial of justice and expose the vulnerable citizens to arbitrary arrest and detention. In 2009, this act was used in Morang District by the CDO to cover-up a case of torture by the police, by charging the victim, Mr. Sushan Limbu, under the act without hearing the lawyer’s arguments.
Although Article 116 of the Interim Constitution mandates that court orders are to be binding to all, in several cases court orders have not been implemented. For instance, in many torture cases in which the court ordered compensation, this was not paid. This system promotes impunity.
Civilian courts are denied the possibility of prosecuting army personnel suspected of having committed human rights violations, as in the case of Maina Sunuwar. Major Basnet, the accused in the case, received support from high political figures such as the defence minister (for details see: http://campaigns.ahrchk.net/sunuwar). Civilian justice has proven unable to overcome the obstacles established by the army and the Maoists in several other instances. Therefore, impunity for human rights violations, which occurred both during and after the conflict, remains the rule.
The country also suffers from regular political interference in the course of justice. The International Crisis Group reported that in October 2008 the Maoist government withdrew 349 criminal cases filed against political party cadres.
In this context, lawyers and judges are vulnerable to threats and pressure, hampering their independence. In April 2009, the Young Communist League’s cadres in Surkhet District physically interrupted a court hearing, demanding rigorous punishment of a suspect, and locked-up his lawyer, Mr. Nanda Ram Bhandari, in his chamber. Worryingly, the police refused to register any case against those who had hampered the trial.
Such practices have degraded the justice institution to such an extent that now the general public interfere in the process of justice. In 2009, a lawyer defending a person accused of having murdered a young girl, Khyati Shrestha, saw his house surrounded by ordinary citizens pressuring him not to take up the case.
New constitutional provisions further threaten the independence of the judiciary. The second amendment to article 155 of the Constitution requires parliamentary hearings for the recruitment of Supreme Court judges, even after the recommendation of the Judicial Council or of the Constitutional Committee. Given the current political turmoil in Nepal, not only does this disposition submit the judiciary to the fluctuations of political allegiances but also gives more leverage to political parties.
Bangladesh
Article 22 of Bangladesh’s Constitution mandates that “the state shall ensure the separation of the judiciary from the executive organs of the state”. In 1999, the Supreme Court directed the government to de-link the lower judiciary from the direct control of the government and place it under the supervision and management of the Supreme Court, a vital step required to ensure its independence.
Finally, in October 2007, the government de-linked the magistrates’ and the sessions’ courts from the direct control of the Ministry of Home Affairs and the Ministry of Law, Justice and Parliamentary Affairs and placed them under the management of the Supreme Court. However, most of the lower judiciary is presided over by the same officers who once worked directly for the government, limiting the judiciary’s independence in practice.
The Judicial Secretariat and Judicial Service Commission required for dealing with recruitment, appointment, transfer, promotion and taking disciplinary actions against the officers of the lower judiciary are yet to be established in Bangladesh. In the absence of the Judicial Secretariat, the Ministry of Law, Justice and Parliamentary Affairs continues to perform this job, thereby effectively annulling any progress that could have been achieved by de-linking the lower judiciary from the government.
The government and politicians directly intervene in the functioning of the judiciary. On 11 April 2010, the President of Bangladesh appointed 17 additional judges to the High Court Division. Political allegiance and nepotism prevailed over merits and professional qualifications—most new recruits are closely linked to the ruling political elite, which will seriously affect the independence of the country’s judiciary for years to come.
Two of the nominees had serious criminal charges against them. One is a suspect in a murder case and the other faced charges of arson and destruction of public property concerning the offices of the Supreme Court during a strike sponsored by the current ruling political party in November 2006. The government withdrew the charges before their appointment. When the media exposed the scam, the chief justice refrained from administering the oath to the two, although there is no guarantee that they will not be appointed when the public attention shifts elsewhere.
The appointment, promotion and transfer of government prosecutors also suffer from similar interference from the ruling elite, nepotism and widespread corruption. Whenever power changes hands, prosecutors are dismissed en masse and new officers are appointed on the basis political affinity. The attorney general’s department demonstrated its high degree of politicisation in 2010 when it intervened in cases overriding bail orders of persons released from custody after being detained arbitrarily due to political rivalry. The ALRC has recently published a book entitled “Politics – Corruption Nexus in Bangladesh” highlighting these and other issues (available online at: http://www.ahrchk.net/pub/pdf/ALRC-PUB-001-2010-BN-Politics-Corruption.pdf).
India
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Lack of adequate facilities, legal frameworks that provide absolute impunity nullifying the possibility of fair trial, court delays and extrajudicial executions continue to be the most challenging obstacles for seeking justice and redress for human rights violations in India. The absence of courts in the Indian state of Arunachal Pradesh is one example of India’s neglect of justice institutions in general and in the north-eastern states in particular. Though Arunachal Pradesh has relatively low population density, it has only two Sessions Courts and has no High Court.
Within the judicial framework of the country, each district is entitled to have a Sessions Court where cases involving serious crimes like murder are tried. Additionally, every state is eligible to have a High Court. North-eastern states like Manipur, Meghalaya, Arunachal Pradesh, Sikkim, Mizoram, Nagaland and Tripura are denied this facility. Due to this individuals have to travel for days to reach the High Court at Guwahati, Assam.
The mandate-holder on independence of the judiciary has repeatedly noted that counter terrorism measures must not be used as an excuse to deny the right to fair trial (A/63/271, paras. 8-10; A/HRC/4/25, paras. 52-53; E/CN.4/2006/52; A/60/321, paras. 30-34). The Armed Forces (Special Powers) Act, 1958 used in several parts of India, the north-eastern states in particular (the law is not applicable to the whole of northeast but only in selected districts in the region, often covering large areas as in the case of the Manipur state) nullifies the right, since this law allows armed officers to shoot to kill on mere suspicion, a practice widespread and misused in the region, particularly in Manipur.
Additionally, the Manipur state police engage in an alarming number of extrajudicial executions, the latest of which was reported from Mao town of Senapati district. Extrajudicial executions are however not limited to the north-eastern states and are justified as ‘encounter killing’ in the rest of the country. In a country where extrajudicial executions are practiced by law enforcement agencies with statutory impunity, the concept of fair trial has no meaning.
The ALRC therefore requests the Council to:
1. Engage in dialogues with the governments of Nepal, Bangladesh and India to end corruption, ineptitude and neglect that hampers the functioning of justice institutions;
2. Require the Rapporteur to conduct independent studies and assist the Council to engage the states to address deep-rooted issues affecting justice and fair trial;
3. Request states to include detailed reports about justice institutions presenting realistic pictures of their fulfilment or denial of states’ obligations under common article 2 of international conventions and find means to assist states, in particular Nepal, in rebuilding a justice framework;
4. Request states, India in particular, to annul legislation that hampers the very notion of fair trial; and,
5. To conduct in-depth studies with the assistance of internationally recognized independent experts and bodies available within the region and outside with a view to assist the states concerned to develop a dependable judicial framework to fulfil their obligations in providing effective remedies for all forms of human rights violations.
