Monday, 12 December 2011 12:26
On the occasion of the annual International Human Rights Day, held on December 10, 2011, the Asian Human Rights Commission (AHRC) is releasing reports on the human rights situations in ten Asian countries: Bangladesh, Burma, India, Indonesia, Nepal, Pakistan, the Philippines, Thailand, South Korea and Sri Lanka. In 2011, the AHRC has witnessed the continuing widespread use of torture, enforced disappearances and extrajudicial killings by state agents, serious clampdowns on the freedom of expression, and attacks on human rights defenders. Furthermore, in some of the countries listed above, religious intolerance has led to suppression of religious freedoms and violence against religious minorities.
*Failure of the justice institutions
The reports, which are based on the AHRC's documentation of cases throughout the year, show that the failure of these countries' justice institutions to the deliver justice and protect of human rights is the main factor that propagates the widespread abuse of human rights by state agents as well as non-state actors. As long as these justice institutions remain dysfunctional, the perpetrators of human rights violations will continue to enjoy impunity for their actions. There are currently few consequences faced by perpetrators who violate people's rights, even though there are provisions concerning the protection of rights under countries' constitutions, laws and international obligations. The lack of implementation of such provisions ensures that there is no effective deterrent to prevent further rights violations being carried out.
The protection of human rights starts with the right to make complaints. The police, as a key law enforcement agency within States' justice delivery mechanism, should stand at the frontline in the protection of rights, notably by receiving and acting upon complaints. However, in most Asian countries, people generally are not willing to make complaints to the police. This is not only because there is a lack of confidence in the police's ability or willingness to conduct proper investigations or provide protection to persons at risk, but because there is a fear of reprisals against people if they make complaints. Where victims belong to poor or marginalized communities, or the perpetrators belong to influential or political groups, the police usually refuse to register complaints. Where complaints are against police officers and state agents, victims often face intimidation and threats, forcing them to withdraw their complaints. In many documented cases, the police often framed fabricated charges against the victims and the human rights defenders who were assisting them.
The effective functioning of the police is further hindered in situations where they are in practice subordinated to the military. As well as in Pakistan, where the powerful military dominates both internal and external affairs, in countries such as Indonesia, India and the Philippines, the military is given enormous powers in specific areas within the country to maintain public order, in the name of counter-insurgency and counter-terrorism. In Mindanao in the Philippines, soldiers carry out arrest orders and usurp fundamental police powers, such as the investigation of crimes. This has been witnessed as being a common practice not only in conflict areas but also in heavily militarized communities. Substantial regions in Manipur and other north-eastern states in India, as well as in the state of Jammu and Kashmir, remain under the Armed Forces (Special Powers) Act, 1958, under which the military is granted extraordinary powers to detain persons, use lethal force, and enter and search premises without warrants. In Papua in Indonesia, increased military deployments to the region - notably by going beyond the purpose of border control and defence against external threats - seriously affect the rights and living conditions of the region's people. This militarization subverts the supremacy of civilian oversight over the military, and continues to cause serious and widespread violations of rights, including torture, disappearances and extrajudicial killings in these countries.
Furthermore, the prosecution systems in many of these countries have also contributed to the persistence of impunity. In most Asian countries, Attorney General's Offices and public prosecutors are highly politicized. In cases involving state agents, including the military and the police, as well as those concerning political groups or influential people, prosecutions are routinely obstructed. In Bangladesh and India, ruling political parties appoint prosecutors after every new regime assumes office. These prosecutors maintain close affinities with the ruling party and with the police, and participate in covering up the crimes of state agents and influential individuals. In Bangladesh, the government arbitrarily withdraws criminal cases under the justification that they are politically motivated, by abusing Section 494 of the Code of Criminal Procedure. Such arbitrary case withdrawals are also seen in Nepal. On May 20, 2011, the Home Minister of Nepal, Krishna Bahadur Mahara, announced that his office was seeking to withdraw criminal cases dating from the time of the country's conflict. As many as 300 cases filed at the district level were at risk of being withdrawn, including cases of serious human rights violations, such as the disappearance and murder of Arjun Bahadur Lama and the disappearance and torture to death of Maina Sunuwar. Such a practice denies the right to justice and judicial remedies for victims and their families concerning grave abuses of human rights.
In many cases, prosecutors used an alleged lack of evidence to justify their failure to act, notably as the result of the absence of witnesses. However, the unwillingness of witnesses to come forwards stems from the lack of effective state witness protection mechanisms. Witnesses in such contexts are too frightened to testify, due to continuing threats, the fear of reprisals and uncertainties resulting from endemic delays in trials of cases. To secure the appearance of witnesses, states must ensure that effective protection systems are put in place, which include interim protection measures for witnesses prior to trials, as well as effective security and support for persons and their families for the entire period in which they are at risk during lengthy trials. However, most Asian countries are either lacking such witness protection programs, or the existing programs lack credibility and are inadequately resourced, which renders them incapable of fulfilling their functions. This lack ensures a lack of evidence and therefore the persistence of impunity.
It is impossible to deliver justice and protect rights without a functioning and independent judiciary. However, the judiciaries in most Asian countries are dysfunctional and lack independence. Executive control over the judiciary, as well as judicial corruption, have paralyzed these institutions. The appointment of judicial officers in many Asian countries is highly politicized, with judges being selected or promoted not on the basis of their professional knowledge and ethics, but based on their political affiliations. In some countries, the executive still maintains de facto control of magistrate courts and their handling of transfers of judicial officers and finances. In Sri Lanka, the constitution itself places the head of the state above the law and outside the jurisdiction of court. The principle of the separation of powers has been replaced by the supremacy of the executive. Judicial corruption is a common phenomenon in many Asian countries, and has given rise to expressions such as the ‘judicial mafia,' as judges are seen to be protecting each other's illegal activities rather than ensuring the rule of law. It is increasingly common to see members of the judiciary in parts of Asia ganging together to support a particular political party or to defend each other against allegations of abuse of power and corruption. Another factor that obstructs the delivery of justice is the problem of lengthy court delays. A simple criminal case in some countries, for instance India, can remain stuck in the court for a decade or more without any tangible progress being made. Delays in the delivery of justice discourage complainants from coming forwards concerning their cases. As a result of these problems, even high profile cases, such as the murder of leading human rights activist Munir Said Thalib in Indonesia, and the disappearance of human rights lawyer Mr. Somchai Neelaphaijit in Thailand, which both took place in 2004, have still not resulted in justice being delivered.
In Burma, corruption within the judicial system is omnipresent. The AHRC has urged human rights defenders in Burma and abroad to pay much more attention to the extent of corruption in all areas of the criminal justice system and related institutions. The rapid increase in commercial investment in the country from around the region, and the growing number of conflicts and problems arising out of rapid social and economic change, are bound to result in larger amounts of money entering the judicial system, further worsening the levels of corruption there, and the negative impact this has on the prospect for the protection of human rights and the delivery of justice.
Another matter of grave concern is the failure of national court systems to implement applicable obligations under international human rights law in their rulings, despite states having ratified international human rights legal instruments. This is frequently observed in most Asian nations. For instance, regarding the views of the United Nations Human Rights Committee in the case of Nallaratnam Singarasa vs. the Attorney General, the Supreme Court of Sri Lanka held that the signing of the First Optional Protocol of the ICCPR in 1997 by the president was ultra vires and unconstitutional. Despite protests by local and international groups, Sri Lanka, as a State Party to the ICCPR and its optional protocol, had not taken any measures to rectify the legal situation arising from this decision. In Thailand, recent court judgments have provoked similar concerns. For instance, on August 10, 2011, the Criminal Court convicted Mr. Suderueman, a torture victim, and sentenced him to two years in prison under sections 173 and 174 of the Criminal Code, for allegedly maliciously giving false information to inquiry officers. The prosecution and conviction of Mr. Suderueman represents a violation of the Government of Thailand's obligations under the Convention against Torture (CAT).
Persistent discrimination and decaying justice systems effectively deprive those marginalized communities of the protection of the law and the State. South Asia, notably India and Nepal, continue to suffer exceptionally high levels of entrenched discrimination against specific communities based on caste or ethnicity, This often translates into direct and extreme forms of violence against Dalit, tribal or indigenous communities. In Nepal, 2011 saw a welcomed development in the adoption of the first law comprehensively criminalizing caste-based discrimination. In India, the discussions are now focusing exclusively on the adoption of a new legislation to address violence against scheduled castes and scheduled tribes, but without having identified the reasons for the failures of the existing legal framework. None of those two countries have embraced the necessity of a tangible rejuvenation of the justice institutions to effectively extend the State's protection to the rights of those communities.
Access to justice institutions remained virtually impossible to women in almost all Asian countries. Patriarchal values also corrupt the justice institutions, providing shelter and impunity to perpetrators of violence against women. This accounts for the continuity of the most severe forms of violence against women which are being documented from all over Asia. Our report on Pakistan details the brutal treatment and violence women experience every day, while the state walks away from its responsibilities, failing to take credible and effective action to bring those abuses to an end"
A crosscutting factor that seriously affects the proper functioning of justice institutions is corruption. This is illustrated in the report on Bangladesh, which states that “the pattern of law-enforcement in Bangladesh is based on illegal arrests based on suspicion without any credible investigations into crimes before making the arrest, which by default leads to arbitrary detention for indefinite periods, the extortion of money from detainees or their relatives through the use of torture, and the fabrication of criminal cases or implication of persons in pending cases for failing to pay the required amount of bribes.” Due to rampant corruption, the public has lost faith in the policing and prosecution systems as well as these countries' judiciaries.
Without tackling the problems affecting states' justice institutions and corruption, by conducting legal and institutional reforms, there will be no significant and long-term improvement to the human rights situations and rights protection problems witnessed in Asian countries, as impunity will continue to reign supreme. To achieve these much-needed reforms, deeper understanding of the problems affecting each country is required, and must be accompanied by the mobilization of public discussion and support for effective reforms. The AHRC's reports aim to assist this process.
*Torture, enforced disappearances and extrajudicial killings
The AHRC continued to receive numerous cases of torture from across Asia throughout 2011, notably from Sri Lanka, Pakistan and India. Police personnel, as well as members of the military and intelligence agencies, are the primary perpetrators of torture. Torture is widely used by the police to extract confessions during criminal investigation. Torture is also used as a tool to extract bribes. Most of the victims of torture are from poor and marginalized communities. Among them, many are juveniles arrested by police officers concerning petty crimes, who are tortured severely, sometimes to death, while in custody. In Nepal, for example, numerous cases have been reported concerning juveniles being tortured during interrogation.
In Pakistan, the police and members of the armed forces have even conducted torture in public places in order to create fear in the wider population. The Pakistan Army is running detention and torture cells in almost every city in the country. Large scale extrajudicial killings and forced disappearances have also been committed by the Pakistan Army in Balochistan province and other militarized areas. The people of Pakistan were stunned when they watched the video showing Sindh Rangers (a paramilitary force) personnel killing a young man in cold blood in a public place in the evening of 8 June 2011. Disappearances in Pakistan have become a routine matter and it has been accepted by the authorities as a normal practice of the law enforcement agencies, including the army and its intelligence agencies.
In places such as the southern Thailand, Papua in Indonesia, Mindanao in the Philippines, and the north-eastern states and state of Jammu and Kashmir in India, military operations have led to many cases of torture, disappearances and extrajudicial killings. Many cases of extrajudicial killings have been disguised as “encountering killings” or “killings resulting from crossfire.”
To begin to effectively address the problem of widespread torture, the practice must be criminalized under domestic law. In many Asian countries, torture, as defined under the International Convention against Torture (CAT), is still not a crime. Addressing torture also requires independent mechanisms to receive complaints and investigate torture committed by the police and the military. This must be accompanied by effective witness protection mechanisms, in order to protect victims and witnesses from threats and intimidation by perpetrators or their accomplices, as mentioned above. As a result of torture, victims suffer from severe physical and psychological problems as well as social marginalization. There remains a serious lack of effective measures to ensure that victims are provided with the physical and psychological treatment necessary for their rehabilitation. Reforms to justice institutions as described above remain a key requirement for any serious effort to address the problem of impunity that typically accompanies the use of torture throughout Asia.
Furthermore, in some Asian countries, such as Bangladesh and India, courts insist obtaining prior sanction from the government to prosecute criminal cases against government officers. This has created serious obstacles for victims of torture seeking to initiate complaints against state agents. Such legacies of colonial laws must be repealed. In Indonesia, members of the military cannot be held accountable by independent investigations and civilian courts. They continue to be tried exclusively by the Indonesian National Army's (TNI) legal system, which has serious flaws and typically perpetuates impunity. This system should be changed to ensure that crimes committed by members of the military against civilians are tried exclusively by civilian courts.
(To be continued)
By The Asian Human Rights Commission
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